TaxTMI 
TaxTMI 
2015 (12) TMI 1893
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....pellants could become a party to the final order passed under Section 27 of the Competition Act, 2002 (for short, 'the Act') is one of the questions which arises in these appeals filed against order dated 20.06.2012 passed by the Commission in Case No. 29/2010 whereby the appellants were held guilty of having acted in violation of Section 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act and penalty @ 0.5 times of net profit for 2009-2010 (from 20.05.2009) and 2010-2011 was imposed on ten appellants (manufacturers of cement) and penalty of 10% on total receipts for two years was imposed on the Cement Manufacturer's Association. 2. The record of the case reveals that after about two months of the presentation made by Respondent No. 2- Builders' Association of India (BAI) and the Competition Commission of India (for short 'the Commission') before the Parliamentary Standing Committee in the context of allegation of cartelization by the manufacturers of cement and manipulation of prices by them, BAI filed information dated 26.07.2010 under Section 19(1)(a) of the Act, against the Cement Manufacturer's Association and 11 cement manufacturers with the a....
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....r four companies control the market share of more than 50%. 8.5 During the course of investigation, the analysis has been done on the basis of market structure, behavioural methodology and by collecting evidences from various stakeholders and third parties. References from various studies and international cases have also been made during the course of investigation. 8.6 The investigation has revealed that the top cement manufacturers and CMA are violating the provisions of Section 3(1), 3(3)(a), 3(3)(b) of the Competition Act, 2002. The circumstantial evidences as well as the oral evidences gathered during the course of inquiry have established that the cement manufacturers are indulging in collusive price fixing. The circumstantial evidences clearly indicate the meeting of mind and coordinated activities. 8.7 In Chapter 6 of this report, the price parallelism is proved on the basis of analysis of price data of all the companies. The economic analysis of price data established that the price of all the companies are moving in the same direction in all the states. The analysis shows that the coefficient of correlation of price changes in terms of absolute....
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....e gathering the information of market price. Further, the monthly publications of CMA relation to plant-wise, company-wise data of cement production, dispatch and movement also facilitates the exchange of vital information relating to the competing cement manufacturers. The activities of CMA have been found to be anti-competitive, as its various conducts and activities lead to lessening the competition in the cement industry. 8.13 In view of investigation conducted by this office, as discussed in detail in chapters 6 and 7 of this report, the allegations leveled against the opposite parties i.e. the top cement manufacturers, have been found to be substantiated and hence the conduct of opposite parties are anti-competitive and in violation to section 3(1), 3(3)(a), 3(3)(b) of the Competition Act, 2002" 6. Volume-II of the report comprises of documents marked as Annexures 1 to 18, the statements marked as S-1 to S-21, data of costing of different companies and working of margins marked as Annexure 'C and State-wise price data and economic analysis marked as Annexure 'E' 7. The report of the Jt. DG was considered by the Commission in its ordinary meeting hel....
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....ly confidential information and the disclosure thereof could have an adverse impact on the business of the applicant causing irreparable harm and may result in losing its competitive edge vis-à-vis other cement manufacturers. The DG, after examining the information claimed as confidential by ACC, vide its notings in the order sheets of even date i.e. 20.05.2011 in RTPE No. 52 of 2006 and Case No. 29 of 2010 respectively, decided to grant confidentiality to the stated documents under regulation 35 of the General Regulations. However, as mentioned above, since no application was moved by ACL under and in accordance with regulation 35 of the General Regulations seeking confidentiality of the information, no decision was taken by the DG in this regard. 13. From the averments made in the applications and on examining the entire material on record, it appears that certain information which was decided to be granted confidential treatment by the DG vide notings in the order sheets dated 20.05.2011 was incorporated in the reports of the DG, as detailed later in this order, which were supplied to the other parties in these cases. 14. At the outset, it needs to be hi....
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.... regulation 35(4) of the General Regulations such a request has to be accompanied with the statement setting out cogent reasons for such treatment and to the extent possible the date on which such confidential treatment shall expire. 17. We may also note that under regulation 35(9) of the General Regulations, the Commission or the DG, as the case may be may also consider the following factors while arriving at a decision regarding confidentiality: (a) the extent to which the information is known to outside public; (b) the extent to which the information is known to the employees, suppliers, distributors and others involved in the party's business; (c) the measures taken by the party to guard the secrecy of the information; (d) the ease or difficulty with which the information could be acquired or duplicated by others. 18. In the instant case, ACC has made a grievance regarding breach of the provisions relating to confidentiality in disseminating the reports of the DG to the parties which contain inter alia data on capacity utilization, pricing, costs, dispatch details and margins that had been claimed to be confidential by A....
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.... value of any information or to be reasonably expected to cause serious injury. In any event, the applicants have failed to place on record or to cite any instance which can cause serious injury. 23. It may be noted that in the matters relating to grant of confidentiality, the Commission exercises concurrent powers along with the DG under regulation 35(2) of the General Regulations and it is trite that while exercising concurrent powers in the event of conflict, the decision made by the higher authorities prevails. 24. However, as mentioned above, it is to be noted that it is not the intent of the Commission in these proceedings to sit in appeal over the decisions of the DG to grant confidentiality to the documents. Nor does the Commission wish to revisit or review the said decisions in exercise of its plenary and supervisory powers conferred upon it under the scheme of the Act and in particular vested in it under regulation 3 of the General Regulations. 25. Since the DG has already decided to grant confidential treatment to the information which was disseminated through the reports of the DG and therefore it is imperative that such information is kept co....
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....d RTPE No. 52 of 2006 in terms of the directions contained at (i), (ii) and 27. Further, the importance of maintaining confidentiality cannot be overemphasized, and the Commission has taken a very serious note of the entire matter resulting in disclosure of information which was decided to be kept confidential. Accordingly, the Commission is also taking appropriate administrative measured in this regard separately." 9. Similar application made by Ultratech Cement Limited was disposed of by the Commission vide order dated 14.09.2011, paragraphs 8 to 12 of which are reproduced below: "8. At the outset, it may be noted that in the present matters, the information was collected from about 37 cement manufacturers by the DG. From the records it appears that only three parties Viz., Associated Cement Company Ltd. (ACC), Jaiprakash Associates Ltd., (Jaypee) and Lafarge India Ltd. (Lafarge), had claimed confidentiality under regulation 35 of the General Regulations with regard to some of the information supplied to the DG. However, the applicant did not make any request for confidential treatment of the information furnished by it during the course of the investigation ....
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....rned to the Office of the DG in sealed covers for resubmitting the same with necessary changes, if any, made pursuant to the directions contained in this order." 10. The orders passed on the applications filed by ACC Ltd., Ambuja Cement and Ultratech Cement Ltd. were reviewed by the Commission and confidentiality granted to pricing data was revoked vide order dated 29.11.2011, paragraphs 4, 5 and 14 to 18 of which are reproduced below: "4. After the investigation when the matter came up for arguments, it was found by the Commission, that the report of DG about the violation of the provision of the Competition Act was based on comparison of price data of different cement manufacturers and price parallelism apart from other factors based on data collected by DG from different cement manufacturers regarding pricing, costing and utilization of the installed capacity. The Commission found that different cement manufacturers would not be able to argue the case about price parallelism, other comparative factors relevant for the purpose of deciding cartelization issue unless the data collected by DG was made available to the parties in the matter about the prices in different p....
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....players in the industry concerning violation of provision of section 3 & 4 of the Competition Act. The data collected by DG even otherwise is not for public consumption and remains confidential vis-à-vis public and can be used by DG & CCI only for the purpose of the Act. No official of the Competition Commission can reveal the data of any enterprise to public even if no confidentiality is granted to the party. Confidentiality is granted for keeping data even away from the eyes of the opposite parties. This confidentiality is permitted by the Commission where Commission considers that the data pertain to certain trade secrets and revealing of the data to opposite party was not necessary for the purpose of the Act. 15. The present enquiry is being done by the commission into issue of cartelization in industry for the purpose of increasing prices, non-utilization of capacities and thereby killing competition and keeping high profit margins. Cartelization, if proved, invites heavy penalties on the parties involved. It is mandatory for the Commission to give an opportunity to all the parties facing allegation of cartelization to discredit the allegation and argue that th....
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....s of the parties were adjudicated by granting confidentiality. These powers are not called in, in respect of procedural orders made by regulatory body. Rule 3 of the CCI (General) Regulations makes it abundantly clear that in a situation which is not provided by the Regulation, the Commission has to evolve a procedure and has to record in writing the reasons for the procedure being followed in a particular case. We consider that wherever the Commission finds difficulty in procedure, the Commission can remove such difficulty by recording reasons and determine the procedure. The Commission, if has given some concession to a party by exercising discretion, can withdraw the concession if necessary. If the commission granted confidentiality to a party without realizing that the data about which confidentiality was granted would be necessary to be provided to other parties for effective hearing, Commission can always withdraw the confidentiality. There is no legal bar in the Act, or in the Regulations on the Commission disabling it to withdraw the confidentiality over particular data as and when necessary. What is to be seen is that withdrawing this confidentiality must be in consonance ....
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....s the oral request of some of the opposite parties requesting for extension of time for filing their response/objections to the investigation report in the matter. 2. After considering the request of the parties, the Commission decided to extend time up to 14.02.2012 as last opportunity for filing their response/objections (both in hard copies and soft copy), along with profit & loss accounts and balance sheet of their enterprise for last three financial years, and to give oral hearing to the parties, either personally or through their authorized representative on 21.02.2012, 22.02.2012 and 23.02.2012. It was made clear to the parties that no further extension of time will be granted in the matter and no adjournment of hearing argument will be granted. 3. The Commission considered the applications filed on behalf of ACC Ltd. and Ambuja Cements Ltd. seeking confidential treatment to their reply/objections filed with the Commission. The Commission directed them to file nonconfidential version of their reply/objections at the earliest in hard and soft copy. 4. The Commission considered the application filed on behalf of Jaiprakash Associates requesting for a....
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.... of putting penalties on violators of the provisions of section 3, 4, 5 & 6 of the Act but the Commission has an onerous duty of promoting competition and competitive attitude in the country. The Commission is duty bound to inform in its orders as to why a penalty was imposed on certain parties and what were the economic concerns which Commission considered. Before parting with this application, we feel that the application was deliberately made to delay the proceedings and the parties should desist from making such applications. The application is hereby dismissed." 14. The oral arguments were heard by the Commission comprising six Members on three consecutive dates i.e. 21.02.2012, 22.02.2012 and 23.02.2012. On the first day, the arguments were advanced by the advocates representing Ambuja Cements Limited, ACC Limited and Ultratech Cement Limited. On the second day, the arguments were advanced by the counsel representing Lafarge India Pvt. Limited, Jaiprakash Associates Ltd., Madras Cement, India Cement, Century Cement, J.K. Cement, Binani Cement and Cement Manufacturers' Association. On the last day, the Commission heard the advocates for BAI and granted two week....
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....hallenged the same by filing appeals under Section 53-A(2) read with Section 53(1) of the Act. They also applied for stay. The Tribunal issued notice of the appeals and stay application and directed that no coercive steps should be taken for recovery of penalty till the next date. 18. During the pendency of the appeals before the Tribunal, applications dated 16.07.2012 and 18.07.2012 were filed on behalf of Ambuja Cement Ltd. and ACC Limited respectively under Section 38 of the Act for supply of un-redacted copy of order dated 20.06.2012.Both the applications were disposed of by the Commission comprising the Chairperson and six Members vide order dated 04.09.2012 and it was decided to rectify the final order by supplying the information, which was earlier redacted from the order. Paragraphs 4 to 9 of that order, which have some bearing on the decision of these appeals are reproduced below: "3. It may be noted here that due to the involvement of confidentiality aspect in this case, the Commission passed two versions of the final order dated 20.06.2012 i.e. confidential and public versions. In public version of the order, certain data relating to pricing and production wa....
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....dingly, the public version of the report already submitted by the DG pursuant to order dated 08.08.2011, was returned to the Office of DG in sealed cover for resubmitting the same with necessary changes, if any. 7. Pursuant to the aforesaid directions, the office of the DG sent a note date 10.10.2011 to the Commission wherein it was stated that the state-wise monthly price data submitted by all the top companies have been used in the report for economic analysis of price parallelism and have been made part of the report. Also when the price data of Ultra Tech being already supplied to four parties as per direction of CCI, it may be meaningless to grant confidentiality status to the price data of Ultra Tech and remaining parties. 8. The Commission, after considering the note of DG office, vide order dated 18.10.2011, decided that the price data of Ultra Tech cannot be treated as confidential. The Commission also directed ACC and Lafarge to show cause as to why the confidential treatment given by DG to their price data, be not revoked. After hearing these parties, the Commission vide order dated 29.11.2011 directed the DG that the data in respect of pricing of the c....
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....eeting held on 16.10.2012. The Commission considered the Competition Appellate Tribunal's orders dated 11th October, 2012 in the Appeals filed by various cement companies in the matter regarding supply of all the copies maintained under Sub Regulation 13 of Regulation 35 of the Competition Commission of India (General) Regulations, 2009 to the concerned Appellants within one week from that day. In view of the above, the Commission directed to provide the certified copy of the order dated 20.06.2012 (confidential version) u/s. 27 of the Competition Act, 2002 to the parties or their authorized representative." 21. The interlocutory applications filed by the appellants were finally disposed of by the Tribunal vide order dated 17.05.2013 and penalty imposed by the Commission was stayed subject to the condition that the appellants shall deposit 10% thereof. 22. When the appeals were taken up for final hearing, learned counsel for the parties pointed out that the records have not been received from the Commission. Thereupon, the Tribunal passed order dated 26.11.2014 and directed the Registry to send for the records of the Commission and that of the Jt. DG. Th....
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....nspect the same." 4. The Applicant was informed by the Registry that the Commission record was brought to the Hon'ble Tribunal on 19 February 2015. The Applicant conducted an inspection on 20 February 2015 of these documents, however it was discovered that the record was in complete disarray without proper indexing. Due to the record being voluminous and in a disorganized state the Applicant was unable to conduct a meaningful inspection of the records. 5. The captioned matter was listed before the Hon'ble Tribunal on 25 February 2015 wherein the Hon'ble Tribunal was pleased to pass the following order: "Learned counsel for the Applicants complained that the record sent by the Competition Commission of India has not been properly arranged making it impossible for them to inspect the same in a methodical manner. Since hearing of these appeals cannot take place without giving adequate opportunity to the counsel for the parties to inspect the record and, if necessary, take copies of the documents, I direct the learned counsel appearing for Competition Commission of India to ensure that the record is arranged methodically within a period o....
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....presenting the case before the Tribunal. Learned counsel for the Commission could not controvert assertion of the applicants' advocate that the Director General and the Commission have relied upon the documents enumerated in Annexure-C for recording findings adverse to the appellants. In view of the above, the applications are allowed and the Commission is directed to supply copies of the documents mentioned in Annexure - C to the applicants-appellants. The needful be done within 4 weeks from the date of submission of copy of this order." ARGUMENTS: 23. Shri Gopal Subramanium, Senior Advocate appearing for the appellant in Appeal No. 105 of 2012 (Lafarge India Limited) made the following arguments: "(a) The impugned order is vitiated due to violation of the rule that 'only the one who hears can decide'. They pointed out that even though the Chairperson of the Commission was not a party to the hearing held on 21st, 22nd and 23rd February, 2012 and had no idea about the contentions raised by the counsel appearing for the parties, not only became a party to the final order but also authored the same. According to the learned senior counsel,....
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.... (Member), who was heading the Economic Division of the Commission and argued that the investigation was prejudiced on account of the observations contained in that note. In support of his arguments, Shri Subramanium relied upon the following judgements and orders: (i) Morgan v. United States, 289 U.S. 468, 56 S. Ct. 906 (ii) Gullapalli Nageswar Rao v. Andhra Pradesh State Road Transport Corporation and another, AIR 1959 SC 308 (iii) Rasid Javed and others v. State of Uttar Pradesh, (2010) 7 SCC 781 (iv) Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others, (2001) 2 SCC 182 (v) Automotive Tyre Manufacturers Association v. Designated Authority and others, (2011) 2 SCC 258 (vi) Kwality Restaurants & Ice-cream Co. v. Commissioner, (2012) 194 DLT195 (DB) (vii) Union of India v. Shiv Raj and others, (2014) SCC 546 (viii) Nanhekhan Guabkhan Pathan v. The State of Maharashtra, 1992 (2) BomCR 121 (ix) Union of India v. E.K. Andrew, ILR 1996 (2) Kerala 118 (x) Order of the Competition Appellate Tribunal dated 27.04.2015 in All India Organisation of Chemists and Druggists v. Competition Commi....
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....behavioural evidence and is not based on any concrete evidence and suggested that economic analysis thereof may be got conducted but the Commission did not act upon the recommendations of Anti-Trust Division and proceeded to pass the impugned order. 25. Shri Gourab Banerji, Senior Advocate appearing for the appellants in Appeal Nos. 104 and 126 of 2012 (Ultratech Cement Ltd.) argued that the manner in which the Jt. DG conducted the investigation and the Commission dealt with the report shows that even before initiation of proceedings, the guilt of the appellants had been presumed and the exercise of investigation and inquiry was done with a closed mind. He submitted that Dr. Geeta Gouri, Member, who was heading economic division, had by her note dated 24.02.2011 determined the course of investigation and the sole object thereof was to record a finding that the appellants are guilty of violating Section 3 of the Act. He argued that such pre-determined investigation was a farce and, therefore, the decision taken by the Commission is liable to be declared as nullity. Shri Banerjee relied upon the judgment of the Supreme Court in Rangi International v. Nova Scotia Bank [(2013) 7 SCC....
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....ive, it has been pleaded that in this case there has been substantial compliance with the principles of natural justice in as much as the Jt. DG had issued notices to the appellants under Section 36(2) read with Section 41(2) and called upon them to furnish the specified information, the statements of their representatives were recorded and final order was passed after supplying copies of the investigation report, giving them opportunity of filing replies/objections and hearing their advocates. 27.1 Shri Pallav Shishodia, Senior Advocate appearing for the Commission referred to Section 36(1) and submitted that even though in the discharge of its functions, the Commission is to be guided by the principles of natural justice, the same cannot be treated to have been violated merely because the Chairperson, who had not heard oral arguments on 21st, 22nd, and 23rd February, 2012, joined other six Members in passing the final order. Shri Shishodia emphasized that similar plea taken by the appellants in the arguments advanced at the time of hearing of the applications for interim relief was not accepted by the Commission and, therefore, the repeat of that argument should not be enterta....
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....on in the final order. 27.2 Learned senior counsel further argued that the Tribunal should not accept the argument based on the rule that 'one who has not heard the case is not entitled to decide' because originally only six out of eleven appellants had taken a ground in their memo of appeals to question the participation of the Chairperson in the decision making process on the premise that he had not heard the argument and the other five took this objection at a later stage. In support of this argument, Shri Shishodia strongly relied on Cumbum Roadways (P) Ltd., Madurai and others v. Somu Transport (P) Ltd. and others - [(1996) 3 SCR 7]. Shri Shishodia submitted that the Tribunal should remove the smoke screen of invalidity created by the appellants on the ground of alleged illegality, which has crept in the final order due to participation of Chairperson and decide the issue of cartelization on merits, else they will feel emboldened and continue such anti-competitive practice with impunity and that would be highly detrimental to public interest. Learned counsel emphasized that the findings recorded by the Jt. D.G. and Commission are based not only on the information/ma....
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....mmissioner of Central Exercise-[(2015) 8 SCC 519]." 27.3 Learned senior counsel highlighted the following differences in the powers and functions of the Commission and Competition Appellate Tribunal and like bodies to show that the Commission is not required to comply with the rules of natural justice in strict sense: "a) CCI is a body corporate having perpetual succession and a seal. No such provision exists in relation to COMPAT or any judicial body. b) Earlier, the word used in section 19 was "complaint". It has now been amended to read as "information" which makes CCI only an administrative body and not a judicial body. c) A third party can file an information before the CCI. However, there is no such power given to COMPAT. An appeal is to be filed only by an aggrieved person. Even in judicial proceedings, courts do not allow a person who is not a proper or a necessary party to initiate proceedings. d) The CCI has the power to initiate suo moto action and direct investigation by the DG which is another arm of the body. No such powers are contemplated to any judicial body. It's only under the inherent powers of the extraordinary jurisdi....
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....y's stand before the standing committee is that grant of temporary injunction is a judicial process which is not performed by the CCI. n) The 2007 amendment removed the provisions of a judicial member and an expert member as well as sitting in benches by the Commission to be in tune with the Brahm Dutt judgement. The entire strength of the CCI now sits to look into contraventions of the Act, a feature non-existent in judicial determinations. The legislature in its wisdom realized that every issue that the Commission would need to evaluate would involve complex questions of economics, commerce and competition law which would have an impact on the entire economy of the country. o) Under Section 55, the Central Government can issue directions to the Commission. Such provision is non existent for a judicial body and no such provision exists for COMPAT. p) Under section 56, the Central Government has the power to supersede the Commission. This is a power provided against an administrative body/authority but is unheard of in relation to a judicial body." 27.4 Shri Shishodia also pointed that while deciding the interlocutory applications filed by the appe....
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....a has responded to opening up its economy, removing controls and resorting to liberalization. The natural corollary of this is that the Indian market should be geared to face competition from within the country and outside. The Monopolies and Restrictive Trade Practices Act, 1969 has become obsolete in certain respects in the light of international economic developments relating more particularly to competition laws and there is a need to shift our focus from curbing monopolies to promoting competition. 2. The Central Government constituted a High Level Committee on Competition Policy and Law. The Committee submitted its report on the 22nd May, 2000 to the Central Government. The Central Government consulted all concerned including the trade and industry associations and the general public decided to enact a law on Competition. 3. The Competition Bill, 2001 seeks to ensure fair competition in India by prohibiting trade practices, which cause appreciable adverse effect on competition in markets within India and, for this purpose, provides for the establishment of a quasi-judicial body to be called the Competition Commission of India (hereinafter referred to as CCI)....
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....ealing the Monopolies and Restrictive Trade Practices Act, 1969 and the dissolution of the Monopolies and Restrictive Trade Practices Commission. The Bill provides that the cases pending before the Monopolies and Restrictive Trade Practices Commission will be transferred to the CCI except those relating to unfair trade practices which are proposed to be transferred to the relevant flora established under the Consumer Protection Act, 1986." 31. Section 2 of the Act contains definitions of various terms i.e. (a) acquisition (b) agreement (c) cartel (d) Chairperson (e) Commission (f) consumer (g) Director -General (h) enterprise (i) goods (j) Member (k) notification (I) person (m) practice (n) prescribed (o) price (p) public financial institution (q) regulations (r) relevant market (s) relevant geographical market (t) relevant product market (u) service (v) shares (w) statutory authority (x) trade (y) turnover and (z) words and expressions used but not defined in this Act and defined in the Companies Act, 1956 shall have the same meanings respectively assigned to them in that Act. By Amending Act 39 of 2007, the definition of 'Appellate Tribunal' was added. 32. Chapter I....
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....6 contains procedure of enquiry under Section 19. Section 27 empowers the Commission to impose penalty for contravention of Section 3 and/or Section 4 to give appropriate directions. Section 28 provides for division of enterprise enjoying dominant position. Section 29 contains procedure for investigation of combinations. Section 30 enumerates the procedure to be followed in case where any person or enterprise is given notice under Section 6(2). Section 31 provides for orders of Commission on certain combinations. Section 32 deals with acts taking place outside India but having an effect on competition in India. Section 33 enumerates the powers to the Commission to issue interim orders. Before its repeal in 2007, Section 34 powered the Commission to award compensation. Section 35 deals with issue relating to appearance before the Commission. Section 36 enumerates the power of the Commission to regulate its own procedure. Before its repeal, by Act 37 of 2009, Section 37 conferred power upon the Commission to review its order. Section 38 provides for rectification of orders. Section 39 deals with execution of orders of the Commission imposing monetary penalty. Before its repeal by Act....
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....se of that power. Section 57 prohibits disclosure of information relating to any enterprise, which has been obtained by or on behalf of the Commission for the purposes of the Act. The only exception to this rule is that the information can be disclosed with the previous written permission of the enterprise. Section 58 declared that Members, Director General, Registrar, officers and other employees etc. are public servants. Section 59 gives protection to action taken in good faith. Section 60 declares that the provisions of the Act shall have overriding effect qua any other law for the time being in force. Section 61 declares that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Section 62 lays down that the provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Section 63 confers power upon th....
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....fer, with the prior approval of the Central Government, a Member from one Bench situated in one city to another Bench situated in another city. (4) The Chairperson may, for the purpose of securing that any case or matter which, having regard to the nature of the questions involved, requires or is required in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than two Members issue such general or special orders as he may deem fit." "Sec. 24. Procedure for deciding a case where Members of a Bench differ in opinion. - If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it." "Sec. 25. Jurisdiction of Bench - An inquiry shall be initiated or a complaint be instituted or a reference be made under thi....
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....ector General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General. (6) If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint. (7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint. (8) If the report of the Director General relates on a reference made under sub-section (1) and such report recommends that there is no contravention of the provisions of this Act, the Commission shall invite comments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case. (9) If the report of the Director General referred to in sub-section (2) recommends that there is contraventio....
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....sion shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908), while trying a suit, in respect of the following matters, namely:--- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1of 1872), requisitioning any public record or document or copy of such record or document from any office; (f) dismissing an application in default or deciding it ex parte; (g) any other matter which may be prescribed. (3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 (2 of 1974) and Chapter XXVI of ....
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....the proper implementation or execution of the order, and any person who commits breach of, or fails to comply with, any obligation imposed on him under such direction, may be ordered by the Commission to be detained in civil prison for a term not exceeding one year unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs." "Sec. 43. Penalty for failure to comply with directions of Commission and Director General. - If any person fails to comply with a direction given by-- (a) the Commission under sub-section (5) of section 36; or (b) the Director General while exercising powers referred to in sub-section (2) of section 41, the Commission shall impose on such person a penalty of rupees one lakh for each day during which such failure continues." 34. The constitutional validity of Rule 3 of the Competition Commission of India (Selection of Chairperson and other Members of the Commission) Rules, 2003 was challenged in by one Shri Brahm Dutt by filing a petition under Article 32 of the Constitution. His main contention was that the appointment of non-judicial person as Chairperson of t....
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....ion of powers recognised by the Constitution." [Braham Dutt v. Union of India - (2005) 2 SCC 431] 36. Although, during the course of hearing in Brahm Dutt's case (supra), an impression was given to the Supreme Court that the Commission will have two bodies, one dealing with regulatory and advisory functions and the other dealing with adjudicatory functions, a half-hearted attempt was made in 2006 to denude the Commission of its adjudicatory functions by proposing addition of paragraphs 3(b) in the Competition (Amendment) Bill, 2006to omit the provisions relating to adjudication of disputes between two or more parties. This is evident from the following extracts of the Bill presented before the Parliament: "3. The Competition (Amendment) Bill, 2006, inter alia, seeks to make the following amendments to the Competition Act so as to address various legal issues and to make the CCI fully operational on a sustainable basis, namely:-- (a) to provide the CCI would be an expert body which will function as a market regulator for preventing anticompetitive practices in the country and it would also have advisory and advocacy functions in its role as a regulator; ....
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....de; that all questions which came up before any meeting shall be decided by the majority of Members present and voting, and in the event of an equality of votes, the Chairperson and in his absence the Presiding Member, shall have a second or casting vote and that quorum for such meeting shall be three. Simultaneously, Sections 23, 24 and 25 relating to distribution of business of the Commission amongst Benches, procedure for deciding a case involving dissent by a Member and jurisdiction of the Bench and Section 40, which provided for an appeal to the Supreme Court against any decision or order was repealed and Chapter VINA was inserted for Establishment of Appellate Tribunal, its jurisdiction, composition, qualification for appointment of Chairperson and Members, the term of office of Chairperson and Members and conditions of their service, resignation, removal and suspension of Chairperson and Members, restriction on employment of Chairperson and other Members in certain cases, power of the Tribunal to award compensation, procedures and powers of the Tribunal etc. Section 53T, which is a part of Chapter VINA provides for an appeal to the Supreme Court against any decision or order....
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....inion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission may forward a copy of the report referred to in sub section(3) to the parties concerned: Provided that in case the investigation is caused to be made based on reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub- section (3) to the Central Government or the State Government or the statutory authority, as the case may be. (5) If the report of the Director General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory....
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....cing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses or documents; (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office. (3) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary to assist the Commission in the conduct of any inquiry by it. (4) The Commission may direct any person- (a) to produce before the Director General or the Secretary or an officer authorized by it, such books, or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act; (b) to furnish to the Director General or the Secretary or any other officer autho....
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....HE PROMOTION OF COMPETITION ADVOCACY, AWARNESS AND TRAINING ON COMPETITION ISSUES) RULES, 2008 THE COMPETITION COMMISSION OF INDIA (FORM AND TIME OF PREPARATION OF ANNUAL REPORT) RULES, 2008 THE COMPETITION COMMISSION OF INDIA (FORM OF ANNUAL STATEMENT OF ACCOUNTS) RULES, 2009" 41. Likewise, the Commission has, in exercise of its power under Section 64, made the following Regulations: "THE COMPETITION COMMISSION OF INDIA (GENERAL) REGULATIONS, 2009 THE COMPETITION COMMISSION OF INDIA (LESSER PENALTY) REGULATIONS, 2009 THE COMPETITION COMMISSION OF INDIA (DETERMINATION OF COST OF PRODUCTION) REGULATIONS, 2009 THE COMPETITION COMMISSION OF INDIA (PROCEDURE FOR ENGAGEMENT OF EXPERTS AND PROFESSIONALS) REGULATIONS, 2009 THE COMPETITION COMMISSION OF INDIA (MANNER OF RECOVERY OF MONETARY PENALTY) REGULATIONS, 2011 THE COMPETITION COMMISSION OF INDIA (PROCEDURE IN REGARD TO THE TRANSACTION OF BUSINESS RELATING TO COMBINATIONS) REGULATIONS, 2011" 42. Some of the provisions contained in the Competition Commission of India (General) Regulations, 2009, which also have bearing on these appeals read as under: ....
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....ith the direction of the Commission, forward either a hard or a soft copy (in electronic form) of non-confidential version thereof to the Central Government or the State Government or statutory authority or the parties concerned, as the case may be. (2) If the report of the Director-General finds no contravention of the provisions of the Act, the Secretary shall within seven days convey the directions of the Commission for inviting objections or suggestions to be filed within 15 days from the Central Government or the State Government or the statutory authority, or from the parties concerned, as the case may be on such report of the Director-General. (3) If the Commission orders closure of the matter on consideration of the objections or suggestions, if any, referred to in sub-regulation (2), and agrees with the findings of the Director-General, the Secretary shall convey the orders of the Commission to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (4) If the Commission, on consideration of the objections or suggestions, referred to in sub-regulation (2), directs further investigati....
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....hrough any of his officers in accordance with the provisions of section 35 of the Act. 25. Power of Commission to permit a person or enterprise to take part in proceedings. (1) While considering a matter in an ordinary meeting, the Commission, on an application made to it in writing, if satisfied, that a person or enterprise has substantial interest in the outcome of proceedings and that it is necessary in the public interest to allow such person or enterprise to present his or its opinion on that matter, may permit that person or enterprise to present such opinion and to take part in further proceedings of the matter, as the Commission may specify. (2) The application referred to in sub-regulation (1) shall be accompanied by proof of payment of fees, in accordance with regulation 49. (3) The application referred to in sub-regulation (1) shall contain, - (a) legal name of the person or the enterprise making the request; (b) address in India for service of notice or documents; (c) telephone number, facsimile number and electronic mail address, if available; (d) the mode of service of notice or documents to be us....
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....Where an order has been passed by the Commission under sub-regulation (1) or sub-regulation (2) and the party shows that it was prevented from participating in the proceeding before the Commission and/or furnishing the information required, for reasons beyond its control, the Commission, on being satisfied, may recall the order. 32. Final order. (1) Every order of the Commission shall be signed and dated by the Members including a dissenting note by the dissenting Member, if that be the case. (2) Every order or decision of the Commission shall, as far as practicable, be made within twenty-one working days from the date of conclusion of final arguments. (3) A copy of the order duly certified by the Secretary or such other officer authorized by the Secretary shall be served on the parties to the proceeding as provided in regulation 22 within four weeks of the date of the order. 41. Taking of evidence. (1) Subject to the provisions of the Act, the Commission or the Director General, as the case may be, may determine the manner in which evidence may be adduced in the proceedings before them. (2) Without prejudice to sub-reg....
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.... forming part of India as genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the National Government of such country to be the manner commonly in use in that country for the certification of copies of such records, including certification by the Embassy or the High Commission of that country in India. (i) admit such documents including electronic records in evidence as may be considered relevant and material for the proceedings. (3) Subject to the provision of sub-regulation (2), the following sections of the Indian Evidence Act, 1872 (1 of 1872), in so far as they are applicable to the matters relating to,- (a) section 22-A -when oral admission as to contents of electronic records are relevant; (b) section 47-A - opinion as to digital signature when relevant; (c) section 65-B - admissibility of electronic records; (d) section 67-A - proof as to digital signature; (e) section 73-A - proof as to verification of digital signature; (f) section 81 -A - presumption as to Gazettes in electronic forms; (g) section 85-A - presumption as to e....
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.... (53 of 1952) or any officer or other person a High Court may appoint in this behalf or any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf vide authority mentioned in section 139 of the Code of Civil Procedure, 1908 (5 of 1908). (6) Every exhibit annexed to an affidavit shall be marked with the title and number of the cause or matter and shall be initialled and dated by the authority before whom it is sworn. (7) No affidavit having any interlineations, alteration or erasure shall be filed in Commission or the Director General, as the case may be, unless the interlineations or alteration is initialled or unless in the case of an erasure the words or figures written on the erasure are re-written in the margin and initialled, by the authority before whom, the affidavit is sworn. (8) The Commission or the Director General, as the case may be, may refuse to receive an affidavit where in its opinion the interlineations, alterations or erasures are numerous as to make it expedient that the affidavit should be rewritten. (9) Where a specific time is given for filing affidavits, no affid....
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.... any other person whom the Commission considers appropriate, to produce such documents or other material objects as evidence as the Commission may consider necessary for the purpose of enabling it to pass orders. (2) The Commission or the Director General, as the case may be, may direct the summoning of the witnesses, discovery and production of any document or other material objects producible in evidence, requisition of any public record from any office, examination by an officer of the Commission the books, accounts or other documents or information in the custody or control of any person which the Commission considers relevant for the purpose. (3) The Commission or the Director General, as the case may be, at any time, summon and enforce the attendance of any person and examine him, or cause him to be examined on oath. 45. Power of Commission or Director General to issue commissions for examination of witnesses or documents. (1) Subject to the provisions of clause (d) of sub-section (2) of section 36 and sub-section (2) of section 41 of the Act, the Commission or the Director General, as the case may be, either on its or his own motion or on ....
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....rwise or for examination of a document issued under sub-regulation (1) or (2) or (3) may be issued to any public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860) or a counsel and such public servant or the counsel, as the case may be, shall be appointed as "the Commissioner" only for the purposes of executing the commission. (5) Every public servant or the counsel, referred to in sub-regulation (4), upon receiving a commission under sub-regulation (4) shall examine the witness or the document, as the case may be, or cause the witness or the document to be examined pursuant thereto and on due execution, shall return the commission together with the evidence taken under it to the Commission or the Director General, as the case may be. (6) The Commission or the Director General, as the case may be, shall furnish the Commissioner appointed under sub-regulation (4) with such part of record of the proceedings and such instructions as appear necessary and the instructions shall distinctly specify that the commission is restricted to finding the facts through the examination as directed and the Commissioner is merely required to transmit the ....
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....rence for that purpose. The Commission can invite the information provider and such other person, as may be considered necessary for the preliminary conference. Section 26(1) read with Regulation 18 provides that if the Commission forms an opinion that there exists a prima facie case, then it is required to issue direction to the Director General to cause an investigation to be made into the matter. The detailed procedure for conducting investigation is contained in Section 41 read with Section 36 and Regulations 20, 21, 35, 41, 42 and 45. In terms of Regulation 41, the Director General can determine the manner in which the evidence may be adduced. In the proceedings before him in terms of Regulation 41(2), the Director General can admit evidence taken in the form of verifiable transcripts of tape recordings, unedited versions of video recording, electronic mail, telephone records including authenticated mobile telephone records, written signed unsworn statements of individuals or signed responses to written questionnaires or interviews or comments or opinions or analyses of experts based upon market surveys or economic studies or other authoritative texts or otherwise, as material....
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....he parties to lead evidence by way of affidavit or lead oral evidence in the matter. In terms of clause (5), the Director General can give an opportunity to the other party or parties to cross-examine the person giving the evidence. Clause (6) empowers the Director General to entrust the task of recording evidence to any officer or person designated for the said purpose. Regulation 42 provides that the Director General can, for sufficient reasons, order that any particular fact or facts may be supported by an affidavit. Various clauses of this Regulation prescribe the mode and manner in which the affidavit required to be filed under clause (1) is to be prepared. On completion of investigation, the Director General is required to submit his report to the Commission. Clause (4) of Regulation 20 provides that the report shall contain his findings on each of the allegations made in the information or reference, as the case may be, together with all evidences or documents or statements or analyses collected during the investigation. Proviso to this clause empowers the Director General to grant partial or total confidentiality to the commercially sensitive information and documents. 4....
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.... are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of the matters relating to summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of documents; receiving evidence on affidavit; issuing commissions for the examination of witnesses or documents and requisitioning any public record or document or copy of such record or document from any office. Under Section 36(3), the Commission is empowered to call upon experts, from the fields of economics, commerce and accountancy. Under Section 36(4), the Commission can issue direction to any person to produce books of accounts or other documents in his custody or under the control before the Director General and to furnish to him or Secretary of the Commission such other information as may be in his possession in relation to trade carried on by such person as may be required for the purposes of the Act. At the end of this exercise, the Commission can pass appropriate orders under Section 27 including an order for imposing penalty in cases involving contravention of Section 3 and/or Section 4. By virtue of Section 41(2), Director General is entitled to....
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.... not bound by the technicalities of the procedure contained in the Code of Civil Procedure, 1908 and rules embodied in the Evidence Act except to the extent indicated in the Act. 47. The above survey of various provisions of the Act and the Regulations shows that even while amending the Act by Act 39 of 2007 and Act 39 of 2009, Parliament consciously decided to retain provisions relating to adjudicatory functions of the Commission in their full vigour and the mere fact that by virtue of substituted Section 22, the business of the Commission is required to be transacted in its meetings and the business would necessarily include exercise of adjudicatory functions/powers, cannot lead to an inference that while deciding the allegations contained in the information filed or reference made under Section 19(1)(a) and passing orders under Sections 27, 33, 39, 42, 42A, 43, 43A, 44 and 45, the Commission exercises purely administrative power or discharge administrative functions or that while passing orders under those sections and also under Section 28, which can have far-reaching impact on the rights of the parties, the Commission is not required to act as per the accepted standard of f....
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....ssed by the Commission and the Appellate Tribunal can have far-reaching consequences. Therefore, the minimum that is required of the Commission as well as the Appellate Tribunal is that the orders are supported by reasons, even briefly." 50. At this stage, we consider it appropriate to mention that till mid-sixties, the Courts having power of judicial review did not readily interfere with the orders passed by the administrative bodies and authorities. However, with the proliferation of the Regulatory Bodies like Commissions and Tribunals, which have been clothed with enormous powers to pass orders adversely affecting the rights of the parties, it became necessary for the Courts to exercise power to correct substantive and procedural errors committed by such bodies and the thin line between the exercise of the administrative power and quasi-judicial power got gradually obliterated. One of the main reasons for this shift in the Court's approach is that even though the Legislations under which these bodies have been created envisaged appointment of experts and persons possessing specialised knowledge in the particular fields, most of these bodies i.e. the Commissions and Tribun....
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....ocedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom in enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed: it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an ord....
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....nd controlled by the rule of law. In a Welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power. [Underlining is ours] 53. While holding that the participation of Naqishbund in the meetings by the Selection Board has the effect of influencing the final recommendation on the ground of bias, the Supreme Court took cognisance of the fact that each member of the Selection Board filed affidavits swearing that Naqishbund had, in no manner, influenced....
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....h Division In re H.K. (An Infant). [(1967) 2 QB 617 at p. 630] Therein the validity of the action taken by an Immigration Officer came up for consideration. In the course of his judgment Lord Parker C.J. observed thus: "But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the sub-section, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate tha....
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....were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala [Civil Appeal No. 990/68, decided on 15-7-1968] the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case." [Underlining is ours] 55. In Sayeedur Rehman v. State of Bihar - [(1973) 3 SCC 333], the Supreme Court while considering the challenge the decision of the Board of Sec....
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....days of Adam--and of Kautilya's Arthasastra--the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system." The Court further observed: "Fair hearing is thus a postulate of decision making cancelling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or form of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law. ...The silence of a statute has no exclusionary effect except where it flows from necessary implication." 58. In Mahipal Singh Tomar v. State of Uttar Pradesh (supra), the Supreme Court examined the issue relating to violation of natu....
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....the following words: "The State Information Commission has been vested with wide powers including imposition of penalty or taking of disciplinary action against the employees. Exercise of such power is bound to adversely affect or bring civil consequences to the delinquent. Thus, the provisions relating to penalty or to penal consequences have to be construed strictly. It will not be open to the Court to give them such liberal construction that it would be beyond the specific language of the statute or would be in violation of the principles of natural justice. The State Information Commission is performing adjudicatory functions where two parties raise their respective issues to which the State Information Commission is expected to apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the Commission. If there were no rival contentions, the matter would rest at the level of the designated Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights....
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....onsideration by the Council regarding the regulations and ethical rules in respect of Management Consultancy Services by Chartered Accountants and invited members to send their suggestions on the proposals. It was pointed out further that the recommendations to be made by the Council would require appropriate amendments in Part I of the First Schedule to the Act which contained rules in respect of professional misconduct. Meanwhile, Ratna had prepared a brochure relating to the Management Consultancy Service to be provided by Ferguson & Co. It was stated that the brochure was intended for the use of the clients of the firm who requested information regarding such services and that it was for limited circulation only, the clients themselves being warned of that restriction. On February 19, 1973, the Council wrote to Ferguson & Co. inviting its attention to the brochure and alleging that it contained information against the firm under Section 21 of the Chartered Accountants Act read with clauses 6 and 7 of Part I of the First Schedule to the Act, and in accordance with Regulation 11(5)(jb) read with Regulation 12 of the Chartered Accountants Regulations, 1964, the firm was required t....
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.... the finding by the Council operates with finality in the proceeding, and it constitutes the foundation for the penalty imposed by the Council on him. We consider it significant that the power to find and record whether a member is guilty of misconduct has been specifically entrusted by the Act to the entire Council itself and not to a few of its members who constitute the Disciplinary Committee. It is the character and complexion of the proceeding considered in conjunction with the structure of power constituted by the Act which leads us to the conclusion that the member is entitled to a hearing by the Council before it can find him guilty." The Supreme Court rejected the appellant's argument that the person against whom the proceedings are held does not have a right to make representation before the Council questioning the report of the Disciplinary Committee by making the following observations: "It is next pointed out on behalf of the appellant that while Regulation 15 requires the Council, when it proceeds to act under Section 21(4), to furnish to the member a copy of the report of the Disciplinary Committee, no such requirement is incorporated in Regulation 14....
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....must be contested on a level playing field with the outcome to be determined solely by the respective merits of the competing teams. The Anti-Corruption Code of BCCI does not mince words in accepting the stark reality that if the confidence of the public in the purity of the game is undermined then the very essence of the game of cricket shall be shaken. BCCI has in no uncertain terms declared its resolve to protect the fundamental imperatives constituting the essence of the game of cricket and its determination to take every step in its power to prevent corrupt betting practices undermining the integrity of the sport including any effort to influence the outcome of any match. Unfortunately, however, the amendment to Rule 6.2.4 clearly negates the declarations and resolves of BCCI by permitting situations in which conflict of interest would grossly erode the confidence of the people in the authenticity, purity and integrity of the game. An amendment which strikes at the very essence of the game as stated in the Anti-Corruption Code cannot obviously co-exist with the fundamental imperatives. Conflict of interest situation is a complete antithesis to everything recognised by BCCI as ....
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....nce. This one principle uniformly appears in all the cases commencing from the celebrated judgment of Lord Loreburn L.C. in Board of Education in Rice [(1911) A.C. 179 at page 182.] wherein the following passage appears: "Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty, of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose usually be of an administrative kind but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a Question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in anyway....
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.... a person hearing to the objectors and heard the representations made on behalf of the State Transport undertaking. The entire material gathered by him was placed before the Chief Minister of the State in charge of transport who made the order approving the scheme. The approved scheme was published in the Andhra Pradesh Gazette dated January 9, 1958, and it was directed to come into force with effect from January 10, 1958. Thereafter the Andhra Pradesh Road Transport Corporation, which was formed under the provisions of the Road Transport Corporation Act, 1950, took over the Undertaking and proceeded to implement the scheme under a phased programme. The appellant moved the Supreme Court under Article 32 of the Constitution for quashing the said scheme on various grounds. The Court rejected most of the objections raised by the appellants except in regard to two pertaining to the hearing given by the Secretary in charge of the Transport department which resulted in the quashing of the order of the Government approving the scheme and directing it to forbear from taking over any of the routes on which the appellants were engaged in transport business. After the said order, notices were....
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.... objection is that while the Act and the rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules imposes a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedures defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argued to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold the said procedure followed in this case also offends another basic principle of judicial procedure." [Underlining is ours] 64. In Rasid Javed v. State of U.P. - [(2010) 7 SCC 781], the Supreme Court relied upon the judgment of Gullapalli Nageswara Rao's case and observed: "...a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted."....
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....y to file objections and adduce evidence as also opportunity of personal hearing was quoted by one officer and the final order was passed by another officer and held: "In the present case, admittedly, the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly." 66. In Union of India v. Shiv Raj - [(2014) 6 SCC 564], a three-Judge Bench of the Supreme Court reiterated the principle laid down in Gullapalli Nageswara Rao's case. This is evident from paragraphs 17 to 20 of the judgement, which are reproduced below: "17. This Court in Gupllapalli Nageswara Rao, held: (AIR p. 327, para 31) ....
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....2, the relevant portions of which have been extracted hereinabove but what is interesting and intriguing to note is that even though in paragraph 10 of that order, the Commission comprising Chairperson and six Members had directed the Secretary to get the required portions of the final order dated 20.06.2012 (public version) amended and supply the same to the parties after due approval and signatures of the Commission, the latter did not undertake that exercise and served copies of confidential version of the order on the parties in the purported compliance of order dated 11.12.2012 passed by the Tribunal on the basis of the statement made by the Commission's own advocate. Each page of both the orders have been initialed by the Chairperson and the last page has been signed by other six Members and the Chairperson albeit without putting the date on which they had signed the orders ignoring the mandate of Regulation 32(1) in terms of which every order of the Commission is required to be signed and dated by the Members including the dissenting note by the dissenting Member. 68. The signing of each page by the Chairperson is strongly indicative of the fact that the orders were a....
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.... the record or is otherwise laconic in several respects. They might have argued that the Jt. Director General did not take into consideration the relevant material or considered the irrelevant material. For us, it is not possible to imagine as to what the learned counsel representing the parties might have argued. It is a matter of mystery that without having any idea about the arguments advanced by the Advocates representing the parties, which lasted for three days, the Chairperson of the Commission could become party to the final order, which resulted in imposition of penalty of over Rs. 6100 crores. It must be remembered that the rule of law is an important corner stone of our democratic setup and principles of natural justice are required to be followed in each and every case where an order adversely affecting a person is passed, except when the application of the particular facet of natural justice or all of them are excluded by legislation and it is nobody's case that 2002 Act has expressly excluded the applicability of the principles of natural justice. Rather, Section 36(1) mandates that in the discharge of its functions, the Commission shall be guided by the principles....
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....d Union of India v. Shiv Raj and others (supra). 72. Although no concrete evidence can possibly be produced by any person other than the Members of the Commission as to what extent the Chairperson influenced their views on the merits of the case but there can be no doubt that his presence in the decision-making process must have had telling effect. Even though, while discharging adjudicatory functions of the Commission, all Members enjoy coordinate position vis-à-vis Chairperson, there can be no denying that the latter, who is over-all In-charge of the Commission plays a pivotal role in the functioning of the body including orders passed by it on the basis of investigation conducted by the Director General. His influence on the decision-making process is subtle and it is not possible to accept the argument that the Chairperson had not influenced the final verdict. None of the Members, who heard the arguments on 21st, 22nd and 23rd February, 2012, has filed affidavit to swear that the decision to penalize the appellants was taken without being influenced by the view of the Chairperson or that he was a mute spectator in the meetings held for discussing the final verdict. Ev....
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....nt Limited for grant of confidentiality to pricing data was accepted and another order passed on 02.12.2011 refusing to grant confidentiality to certain information/documents furnished by Ambuja Cement Limited along with its objections. How could the Chairperson and other Members of the Commission be oblivious of the detailed order passed on the issue of confidentiality of the pricing data and record two orders on the same date (public version and confidential version). It is, therefore, reasonable to conclude that the final order was passed without thorough examination of the record of the Director General, the submissions made by the parties and the interlocutory orders passed by the Commission. 74. Although, we have decided not to deal with other grounds of challenge, including the one that entire exercise of finding the appellants guilty of violating Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the 2002 Act was undertaken with a pre-determination, the anxiety of Chairperson to become a party to the final order and initial each page of the two versions of the order can be gauged from the detailed interviews given by him on 30.06.2012 and 03.07.2012. 75. The argum....
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....the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body." The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall [(1974) 42 DLR (3d) 323]. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practitioners Disciplinary Committee [(1974) 1 NZLR 29], and so was the Court of Appeal of New Zealand in Reid v. Rowley [(1977) 2 NZLR 472]." "But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected a publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. "Not all the ....
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....one is not a case of a vacancy or any defect in the constitution of the Commission. It is also not a case of any defect in the appointment of a Chairperson or a Member. The challenge to the impugned order is also not founded on any irregularity in the procedure of the Commission. Rather, one of the main grounds of attack is that the Chairperson, who did not hear the arguments could not have participated in the decision-making process and passed the impugned order and as we have held in the earlier part of this order, the final verdict is vitiated due to participation of the Chairperson in the decision-making process despite the fact that he did not have the opportunity to hear the arguments of the Advocates for the parties on any of the three dates i.e. 21st, 22nd and 23rd February, 2012. 77. We shall now deal with judgments relied upon by learned senior counsel for the Commission. In Cumbum Roadways (P) Ltd., Madurai and others v. Somu Transport (P) Ltd. and others (Supra), which was cited by learned senior counsel in support of his argument that those who had not initially challenged the Chairperson's participation in the decision making process are precluded from doing so....
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.... High Court by way of writ proceedings against another party, and the appellants in the other six appeals were content with the order passed by the Appellate Tribunal, the High Court should interfere in favour of those persons also who had not thought fit to challenge the order of the Appellate Tribunal. On principle therefore it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring up the matter before the High Court, simply because as a matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by a consolidated order. Therefore, we are of opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour of or against the parties which have not come to it. In the circumstances the order of the Appeal Court will have to be modified and the remand confined to a reconsideration of the appeal of the present appellant alone as against the claims of the respondent, and the Appellate ....
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....ally, the District Court declared the Statute unconstitutional but subsequently modified its judgement to eliminate the declaration of unconstitutionality. While dealing with the contention that the combination of investigative and adjudicative functions necessarily create an unconstitutional risk of bias in administrative adjudication, the U.S. Supreme Court made a reference to an earlier decision in Murchison and observed: "Plainly enough, Murchison has not been understood to stand for the broad rule that the members of an administrative agency may not investigate the facts, institute proceedings, and then make the necessary adjudications. The Court did not purport to question the Cement Institute case, supra, or the Administrative Procedure Act and did not lay down any general principle that a judge before whom an alleged contempt is committed may not bring and preside over the ensuing contempt proceedings. The accepted rule is to the contrary. Ungar v. Sarafite, 376 U.S. 575, 584 - 585, 84 S.Ct. 841, 846 - 847, 11 L.Ed.2d 921 (1964); Nilva v. United States, 352 U.S. 385, 395--396, 77 S.Ct. 431, 437-38, 1 L.Ed.2d 415 (1957). Nor is there anything in this cas....
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....pproached the President for change of his recorded date of birth but could not succeed. While rejecting the contention of the appellant that the President had not given him an opportunity of oral hearing, the Supreme Court observed: "The President had given ample opportunities at diverse stages to the respondent to make his representations. All evidence placed before the, President when he considered the question as to the age of the respondent was disclosed to him and he - respondent - was given an opportunity to make his representation thereon. There is nothing in clause (3) of Article 217 which requires that the Judge whose age is in dispute, should be given a personal hearing by the President. The President may in appropriate cases in the exercise of his discretion give to the Judge concerned an oral hearing, but he is not bound to do so. An order made by the President which is declared final by clause (3) of Article 217 is not invalid merely because no oral hearing was given by the President to the Judge concerned. An opportunity to make representation to the Judge, after apprising him of the evidence which was likely to be used against him and consideration of the re....
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....Secretary of the Ministry of Home Affairs on the same day he stated that all the papers may be placed before the President and the President may be "pleased to grant an audience for the purpose of deciding the question of his age". Article 217(3) does not guarantee a right of personal hearing. In a proceeding of a judicial nature, the basic rules of natural justice must be followed. The respondent was on that account entitled to make a representation. But it is not necessarily an incident of the Rules of natural justice that personal hearing must be given to a party likely to be affected by the order. Except in proceedings in Courts, a mere denial of opportunity of making an oral representation will not, without more, vitiate the proceeding. A party likely to be affected by a decision is entitled to know the evidence against him, and to have an opportunity of making a representation. He however cannot claim that an order made without affording him an opportunity of a personal hearing is invalid. The President is performing a judicial function when he determines a dispute as to the age of a Judge, but he is not constituted by the Constitution or a Court. Whether in a given ....
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....atural justice that a quasi-judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed Rule 55 of the Rules, quoted supra, recognizes the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the tribunal. The facts of the present case disclose that a written representation would effectively meet the requirements of the principles of natural justice...." [Emphasis supplied] 81. In K.L. Tripathi v. State Bank of India and others (supra), the Supreme Court while dismissing the appeal filed by the appellant against the order of Allahabad High Court, which had declined to interfere with the punishment imposed on the appellant, observed....
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....mittee consisting of more than one person by the impression formed by him about the truthfulness or otherwise of a particular witness examined during the inquiry. From the stage antecedent to the framing of the charges everything is recorded in writing: the allegations on which the charges are based are made known to the railway servant and he is called upon to file his written statement after looking into all the relevant records. The oral evidence of all the witnesses tendered during the enquiry is recorded in writing. Whereas here the oral evidence is recorded in the presence of three persons constituting the Inquiry Committee, any impression created by the demeanour of a particular witness on the mind of any one member cannot affect the conclusion afterwards arrived at jointly by them. It cannot be suggested that all the three persons would record their impressions separately about the demeanour of a witness and it is quite possible that a particular witness may appear to one member of the committee to be untruthful without his being considered so by the others. The members of the Inquiry Committee cannot record their findings separately but it is their duty to record findings ....
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....one who heard the parties. However, the proceedings were not in the nature of formal judicial hearings. They were in the nature of meetings and full minutes were recorded of all the points discussed at each meeting. It has not been brought to our notice that any salient point urged by the petitioners has been missed. On the contrary, the order itself summarises and deals with all the important objections of the petitioners.... "There was some discussion before us on a larger question as to whether the requirements of natural justice can be said to have been complied with where the objections of parties are heard by one officer but the order is passed by another. Shri Salve, referring to certain passages in Local Government Board v. Alridge [1915 AC 120 84 LJKB 72], Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 3], Regina v. Race Relations Board, Ex parte Selvarajan [(1975) 1 WLR 1686] and in de Smith's Judicial Review of Administrative Action (4th Edn., pp. 219-220) submitted that this was not necessarily so and that the contents of natural justice will vary with the nature of the enquiry, the object of the proceeding and whether the decision involve....
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....jority of four Judges of the Committee, even in the absence of such express resolution, does constitute the quorum and is competent to transact the administrative business of the Court. Out of five, three members always constitute a quorum so as to be competent to take decision since even if it is assumed that all the five members were present and they decided against the respondent, the opinion of four Judges would constitute majority decision. It may be expedient that all the Judges sit or the record is circulated to all of them and they take decision. Unless someone of the members express their/his dissent from the decision taken per majority, the fifth member also must be deemed to have agreed to the decision of the majority, though no formal concurrence in that behalf was recorded. It is seen that all the four learned Judges unanimously decided recommending to the Governor to impose the punishment of dismissal of the respondent from service. It constitutes the quorum. The Governor acted upon the same and issued order of dismissal of the respondent. A resume of the contents of the dismissal order by the Government, does indicate that the Government did in fact understand the re....
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.... circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari. The rest of the notification of the State Government dated April 6, 1962 with regard to other categories will stand unaffected. So far as Category 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law." 86. In Securities and Exchange Board of India v. Askhya Infrastructure Private Limited - [(2014) 11 SCC 112], the Supreme Court considered whether denial of opportunity of hearing before passing an order of takeover is vitiated and answered the sa....
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.... Thereafter, Respondent No. 1 passed recovery order dated 03.06.2003 and demanded Rs. 2,93,43,244/- from the appellant. By another order, the appellant was directed to pay excise duty. The recovery orders were challenged by the appellant before the Gauhati High Court but the writ petition was dismissed by the learned Single Judge. During the pendency of the appeal before the Division Bench, a direction was given not to dismiss the appeals preferred by the appellant. The Commissioner (Appeals) set aside the orders for recovery on the ground that notice had not been given. After this, the appeals pending before the Division Bench of the High Court were disposed of as infructuous. The Union of India challenged the decision of the Commissioner by contending that the issue of show cause notice was not mandatory. The appellant also challenged the order by which the matter was remanded to the competent authority. The Customs, Excise and Service Tax Appellate Tribunal allowed the appeal of the Union of India and dismissed the one filed by the appellant. The appellant again approached the Gauhati High Court. The learned Single Judge dismissed the writ petition as also the review petit....
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....r of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India. 48. Therefore, on the facts of this case, we are of the opinion that non-issuance of notice before sending communication dated 23-6-2003 has not resulted in any prejudice to the appellant and it may not be feasible to direct the respondents to take fresh action after issuing notice as that would be a mere formality." 88. In State of Jammu and Kashmir and Others v. Bakshi ....
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....ere has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant." 90. In Mohd. Shahabuddin v. State of Bihar and Others - [(2010) 4 SCC 653], an administrative order passed by the High Court for shifting the criminal trial of the appellant from a regular court to a special court was challenged on several grounds including the one of violation of the principles of natural justice. While rejecting the contention, the Supreme Court relied upon some of the precedents and observ....
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....oceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would ....
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.... whether in a given case, the President should give a personal hearing is for him to decide. In Madhya Pradesh Industries Ltd. v. Union of India's case, the Supreme Court held that the opportunity to make representation does not necessarily include an opportunity of personal hearing. In K.L. Tripathi v. State Bank of India's case (supra), the Supreme Court ruled that denial of opportunity of cross-examination does not per se invalidate and vitiate the decision. Similar view has been expressed in State of Jammu and Kashmir and Others v. Bakshi Gulam Mohammad (supra), M/s. Kanungo & Company v. Collector of Customs and Others (supra). Though the judgements in General Manager, Eastern Railway and another v. Jawala Prasad Singh (supra), Ossein and Gelatine Manufacturers Association of India v. Modi Alkalies and Chemicals Limited and another (supra) and High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patil and another (supra) ostensibly support the argument of Shri Shishodia that hearing by one person and decision by another does not violate the principles of natural justice, but a careful reading of three judgements makes it clear that ratio thereof is not w....
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....ti and Others (supra), the Court has emphasized that prejudice must be shown to have been suffered by the aggrieved person before he can seek invalidation of the impugned order. 94. In our view, the prejudice caused to the appellants is writ large on the face of the record. As mentioned above, the Chairperson did not have the opportunity of hearing the arguments of the advocates for the parties, which lasted for three days i.e. 21st, 22nd and 23rd February, 2012 and yet he became party to the decision. Obviously, he did not know what are the nature and contents of the arguments of the seven Senior Advocates and other advocates, who appeared for the parties. The minutes of the meetings recorded on those dates do not show that the remaining six Members had recorded the arguments advanced by the learned advocates, as was done by the officer who heard the arguments in Ossein and Gelatine Manufacturers' Association of India v. Modi Alkalies and Chemicals Limited and Another (supra). The Chairperson's participation in the decision making process had salutary effect on the final verdict. As held by the Supreme Court in A.K. Kraipak's case, the views of the Chairperson must ....
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....d non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence". The learned Judge then proceeded to quote from Black's Legal Dictionary and to consider the interest of a candidate at a Parliamentary election. He finally said: "The appellant has a right to have the election conducted not according to humour or hubris but according to law and justice. And so natural justice cannot be stumped out on this score. In the region of public law locus standi and person aggrieved, right and interest have a broader import". In Schmidt and Another v. Secretary of State for Home Affairs Lord Denning M.R., observed: "The speeches in Ridge v. Baldwin [1964] AC 40, show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him". It was held in that case that a foreign alien had no right to enter the country except by leave, but, if he was given leave to ....
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....unicipal councils with the administration of a large area and the discharge of important duties. No one would consider that its activities should be lightly interfered with.... The legislature has enacted a statute setting up municipal authorities with a considerable measure of independence from the central government within defined local areas and fields of government. No Minister should have the right to dissolve such an authority without allowing it the right to be heard upon that matter unless the statute is so clear that it is plain it has no right of self defence. Upon the second matter it is clear that the Minister can dissolve the council on one of the three grounds: that it (a) is not competent to perform any duty or duties imposed upon it (for brevity their Lordships will refer to this head as incompetency); or (b) persistently makes default in the performance of any duty or duties imposed upon it; or (c) persistently refuses or neglects to comply with any provision of law.... It seems clear to their Lordships that it is a most serious charge to allege that the council, entrusted with these very important duties, persistently makes default in the performance of a....
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....the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary. In Ridge v. Baldwin & Ors., one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. The House of Lords observed (at p. 68): "It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the respondents would, in my view, fail on the facts. It....
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....ial here. The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. 'To one who protest against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits'". In Chintepalli Agency Taluk Arrack Sales Cooperative Society Ltd., etc. v. Secretary (Food & Agriculture) Govt. of Andhra Pradesh etc., there was a non-compliance with sec. 77(2) of the Cooperative Societies Act which provided that no order prejudicial to any person shall be passed unless such person had been given an opportunity of making his representation. The argument was that since the facts were clear the non-compliance did not matter. It was also said that the appellant had of his own motion made some representation in the matter. This Court rejected the arguments observing (at p. 567, 569-570): "It is submitted that the Government did not afford any opportunity to the appellant for making representation before it. The High Court rejected this plea on the ground that from a perusal of the voluntary....
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....e done but should be seen to be done. Jackson's Natural Justice (1980 Edn.) contains a very interesting discussion of the subject. He says: "The distinction between justice being done and being seen to be done has been emphasised in many cases. The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery C.J.'s judgment in R.V. Home Secretary, Ex. P. Hosenball (1977) 1 W.L.R. 766, 772, whereafter saying that "the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done" he went on to describe the maxim as "one of the rules generally accepted in the bundle of the rules making up natural justice". It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would st....
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....ontrary view taken by the Delhi High Court in the judgment under appeal." [Emphasis supplied] 96. In view of the above noted judgements, the arguments of Shri Shishodia that no prejudice has been caused to the appellants due the participation of the Chairperson in the decision-making process cannot be accepted. It is not possible to make a guesswork of what would have been the fate of the case if the Chairperson had not taken part in the decision-making process. One does not know whether the remaining six Members would have reached a positive conclusion that the appellants are not guilty of violating Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act and/or they would not have imposed the particular penalty under Section 27 of the Act. 97. In view of our conclusion that the impugned order is vitiated due to the violation of one of the facets of the principles of natural justice, we do not consider it necessary to deal with and decide other points argued by the learned counsel for the appellants for assailing the order under challenge. 98. In the result, the appeals are allowed. The impugned order is set aside and the matter is remitted to the Commissio....