TaxTMI 
TaxTMI 
2024 (8) TMI 1057
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....ted 05.04.2024, this appeal has been filed. The brief background of the case need to be noticed for deciding the appeal filed by the Appellant: (i) A Company Petition No.71/241-242/PB/2020 was filed by the Union of India, Ministry of Corporate Affairs with regard to affairs of Delhi Gymkhana Club Limited. The Union of India in CP No.71/241- 242/PB/2020 filed petition under Section 241(1) of the Companies Act, 2013 alleging affairs of the Company being held in a manner prejudicial to the public interest. (ii) The Appellant herein had been appointed as Secretary of the Club from 12.04.2018 to 11.04.2021. On the date of filing of the CA, the Appellant was arrayed as Respondent No.18 in the Section 241 Sub- section (1) application filed by Union of India. (iii) In CP No.71/241-242/PB/2020, an interim order was passed by the Tribunal dated 26.06.2020 stating that General Committee (GC) of the Club shall not construct or further construct on the site and it shall not make any policy decisions. Appeals were filed against interim order dated 26.06.2020 before this Tribunal. (iv) During the pendency of the appeal, the General Committee of the Club issued ....
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....plications were filed by the Appellant praying for different reliefs, out of which applications CA-88/2023 and CA-34/2024 were applications filed by the Appellant, order passed on which applications dated 05.04.2024 is the subject matter of this appeal. (ix) The Tribunal on 20.04.2023 passed order in different IAs including CA-88/2023. Company Appeal (AT) No.112 of 2023 has been filed by the Appellant challenging order dated 20.04.2023, which appeal was disposed of by this Tribunal on 10.08.2023. This Tribunal taking view that CA-88/2023 is still pending before the Tribunal, appeal cannot be entertained, observed that in view of the fact that application has been filed by the appellant under Section 218, Companies Act, 2013, the Tribunal shall endeavour to dispose of the application at early date and the appeal was disposed of accordingly. In the disposed of appeal Company Appeal (AT) No.112 of 2023, IA No.194 of 2024 was filed by the Appellant, which was disposed of by this Tribunal on 11.01.2024 observing that 26.01.2024 is date fixed in CA-88/2023 before the Tribunal and requested the Tribunal to dispose of the application on the said date and in any view of the matter ....
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....oth the parties were given liberty to submit short notes of submission of not more than three pages within a week. In pursuance of order dated 24.07.2024, both the parties have submitted their written submissions. 4. Appellant appearing in person challenging the order dated 05.04.2024 submits that inspite of the order of this Tribunal passed on 10.08.2023 and 11.01.2024, NCLAT has not decided CA-88/2023 filed by the Appellant for protection under Section 218 of the Companies Act, 2013. It is submitted that the NCLT has violated Rule 121 and 150 of the NCLT Rules, 2016. It is submitted that inspite of letter dated 20.09.2022 by Government of India holding appointment of new Secretary of the Club void ab-initio, the NCLT has blocked the Central Government's orders. It is submitted that the application filed by Appellant for protection under Section 218 of the Companies Act, 2023 has not been decided whereas Appellant was entitled for protection and he has not been appointed as Secretary of the Club by non-decision of application CA-88/2023 and new CA 34/2024 which has prejudiced the Appellant and dues of Rs.52 Lakhs which were audit qualified has also not been paid. It is submitte....
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....nsideration in different applications filed by the Appellant and are not relevant with regard to CA No.88 of 2023 and CA No.34 of 2024. Counsel submits that the Appeal deserves to be dismissed. 7. We have considered the submissions of learned counsel for the parties and perused the record. 8. The Appellant questions the order dated 05.04.2024 passed by the Tribunal in two CAs i.e. CA-88/2023 and CA-34/2024. We need to first notice the reliefs sought by the Appellant in the appeal including interim relief, which is s follows: "RELIEFS SOUGHT: In view of facts mentioned, facts in issue, questions of law and grounds, the Appellant respectfully prays this Hon'ble Appellate Tribunal may be pleased to: a) Allow present appeal and set aside the order dated 05.04.2024 passed by Ld. NCLT in CA88/2023 and CA-34/2024; b) Impose extraordinary costs on Respondents for abuse of the law and corruption cover up; c) Direct for investigation of Rs. 9 Crore Sect-8 company public funds spent in hearings, objected by shareholders and Auditors in AGMs. d) Pass any order as this Hon'ble Appellate Tribunal may deem fit in the interest of justice.....
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....ction 218 of the Companies Act, 2013 and as interim relief it is prayed for re-appointment as Secretary of the Club. 12. We need to notice Section 218 of the Companies Act under which the Appellant is seeking protection in the applications. Section 218 of the Companies Act, 2013 provides as follows: "Section 218. Protection of employees during investigation (1) Notwithstanding anything contained in any other law for the time being in force, if- (a) during the course of any investigation of the affairs and other matters of or relating to a company, other body corporate or person under section 210, section 212, section 213 or section 219 or of the membership and other matters of or relating to a company, or the ownership of shares in or debenture of a company or body corporate, or the affairs and other matters of or relating to a company, other body corporate or person, under section 216; or (b) during the pendency of any proceeding against any person concerned in the conduct and management of the affairs of a company under Chapter XVI, such company, other body corporate or person proposes- (i) to discharge or suspend any employee; or ....
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.... Respondent No.1 need to be noticed before proceeding further. It is relevant to notice that in the appeal, Appellant has not disclosed application No.409/2020 filed by the Appellant and the orders passed by NCLT, this Tribunal and the Hon'ble Supreme Court. By IA No. 409/2020 Appellant sought prayer from the NCLT to declare the service termination order dated 04.08.2020 as null and void and let the Appellant continue working as Secretary of the Company during pendency of the Company Petition. In Para 4 of the order entire sequence of the event leading to termination of the Appellant's service by order dated 04.08.2020 has been noticed by the Tribunal. Para 4 of the order dated 25.03.2021 is as follows: "4. The narrative of the applicant herein is that he was appointed as a Secretary-cum-Chief Executive Officer (CEO) of the Club on 12.04.2018, thereafter when CP71/2020 was filed against the Club, he was on 09.05.2020 authorized to represent the Club in the said proceedings, he was on 17.06.2020 compelled to accept a salary-cut) of 25% and his Membership to the Club was stopped by the Members of the GC, despite being specifically contained in his appointment letter dated 12....
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....The Tribunal after hearing submissions of both the parties came to the conclusion that case is not covered by Section 218(1)(b) of the Companies Act. NCLT, however, observed that notwithstanding the removal of the Applicant by the earlier management, the Applicant is at liberty to approach the Administrator for employment. The Tribunal has noted in the order itself that under the orders passed by the Appellate Tribunal dated 15.02.2021, ordering suspension of the General Committee and nomination of an Administrator by Union of India to manage the affairs of the Club pending disposal of the main company petition. Para 12 and 14 of the order of the Tribunal are as follows: "12. The case of the applicant is his removal from the company is in violation of the contract in between him and the Club, and his removal having happened during the pendency of the proceeding under section 241 of the Act 2013, he shall be reinstated. Here, this Bench can interfere only when the case falls within the ambit of Section 218 of the Act. As to service matters, if the party is aggrieved of termination of his service, he is at liberty to proceed before the Competent Authority but not to obtain r....
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....ce, if any." 16. Appellant aggrieved by the order dated 15.04.2021 has filed Civil Appeal No.2856 of 2021 before the Hon'ble Supreme Court. The Hon'ble Supreme Court noticed in the order that period of employment of the Appellant of three years from 12.04.2018 has come to an end. The Supreme Court also observed that if any condition of such appointment has been breached, Appellant may take recourse to appropriate remedy, as may be advised. It is useful to extract the entire order of the Hon'ble Supreme Court dated 13.12.2021, which is as follows: "ORDER The grievance of the appellant, is that, because of the observation made by the National Company Law Tribunal (for short, "NCLT") in its order dated 25.03.2021 in paragraph 10, an impression is created that the appellant is guilty and, therefore, Section 218 of the Companies Act, 2013 (for short, "the Act") cannot be invoked. Section 218 of the Act does not make such distinction. It refers to employees of the company. In any case, it is not necessary to dilate on this aspect any further as the appellant was appointed in terms of letter dated 12.04.2018 on the terms and conditions referred to therein including fo....
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....n the event any allegation is raised against him during investigation or during the pendency of any proceeding against such person concerned in the conduct and management of the affairs of a company falling within the ambit of chapter of oppression and mismanagement. 11. In the Company Petition, there is no allegation against the present applicant who is arrayed as R18 in the main Company Petition. Most of the allegations in the Company Petition are in relation to the affairs of the Company falling in the period prior to 2018, therefore though the applicant is arrayed as R18, it cannot be called that this applicant is connected to the impugned affairs of the Company which led to filing of main Company Petition. his is based on appointment is Since service contract, if at all the action of the applicant is in violation of the terms of the contract, the appointing authority is always at liberty to take action against such person. The cause of action and relief falling within the ambit Section 241 and 242 are nowhere related to the service contract of the company entered into with the employee." In any case, it is not necessary to dilate on this aspect any further as....
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....of 2023. The appellant case is that CA No. 88 of 2023 was filed by the appellant under Section 218, Companies Act, 2013 seeking protection and the application has not yet been decided and only order was passed to serve the copy on the counsel for the intervenor. He submits that application is pending for several months which required early consideration and disposal. 2. After having heard counsel for the appellant, we are of the view that since the CA No. 88 of 2023 is still pending consideration before the Adjudicating Authority, we are not inclined to entertain this appeal at this stage. 3. However, in view of the fact that application has been filed by the appellant under Section 218, Companies Act, 2013 the Adjudicating Authority shall endeavor to dispose of the application at early date. 4. We make it clear that we are not expressing any opinion on the merits of the application and contention of the parties are left open. The appeal is disposed of." 2. We have heard Mr. Deepak Khosla appearing for the Applicant. It is submitted that inspite of the order of this Tribunal dt. 10.08.2023 application CA No. 88 of 2023 has not yet been h....
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....nal, after hearing the applicant and respondent, shall make and pronounce an order either at once or, as soon as thereafter as may be practicable but not later than thirty days from the final hearing. (2) Every order of the Tribunal shall be in writing and shall be signed and dated by the President or Member or Members constituting the Bench which heard the case and pronounced the order. (3) A certified copy of every order passed by the Tribunal shall be given to the parties. (4) The Tribunal, may transmit order made by it to any court for enforcement, on application made by either of the parties to the order or suo motu. (5) Every order or judgment or notice shall bear the seal of the Tribunal." 22. Rule 150 Sub-rule (1) provides that after hearing the applicant and respondent, the Tribunal shall make and pronounce an order either at once or, as soon as thereafter as may be practicable but not later than thirty days from the final hearing. In the present case hearing of CA-88/2023 and CA- 34/2024 was held on 22.02.2024, on which date orders were reserved. It is submitted that prior to 22.02.2024 also there have been several hearing on both th....
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....the relevant applications in Para 16 i.e. Item No.1, Item No.12 and Item No.19 which are relevant in the present case are quoted for ready reference: "16. Be that as it may, post the final order dated 01.04.2022 Mr. Ashish Khanna has been filing a number of applications for various reliefs. Total number of applications that have been filed by Mr. Ashish Khanna are given below in tabular form. Few of them have been disposed of while few are pending." S. NO. CP/CA NO. PRAYERS/ RELIEFS CURRENT STATUS 1 CA- 409/2020 a) Declare the Services Termination Notice dated 04.08.2020 as a nullity in law, void ab initio as if non est, in order to enable the Applicant to continue functioning as the Secretary cum CEO of the Respondent No. 1 Club during the pendency of the present Company Petition No. 71 of 2020; and Direct the Respondent Company and members of the General Committee to restore to the Applicant his powers as the CEO; and b) Direct the Respondent Company to produce the minutes of all General Committee meetings for the period from April 2018 to August 2020, all books and records pertaining to the Respondent Company, and also to gr....
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....y CA-440/2022 which has been noticed in Para 13 and 14 of the order. In para 12, the Tribunal has also noticed the various dates atleast 12 dates on which CA-88/2023 was heard. Para 13, 14 and 15 are as follows: "13. From the earliest point of time it was the specific stand of Mr. Deepak Khosla, Ld. Counsel for the Applicant that if CA-440/2022 is decided then the entire case will have to be recalled and everything will come back to square one and therefore, CA-88/2023 can be taken up later effectively because he was regularly arguing CA-440/2022 for recall. 14. CA-34/2024 is a later development which is filed in the year 2024. From this, it is not clear whether the party Mr. Ashish Khanna has informed Hon'ble NCLAT that he and his counsel were seriously pursuing CA440/2022 through the submission of counsel Mr. Deepak Khosla and that despite his request, CA- 88/2023 was not heard. There was no murmur by the Counsel or the party for hearing of CA-88/2023 on priority when CA 440/2022 was regularly heard. The grievance for early disposal of CA-88/2023 was kept in abeyance and is raised after disposal of CA- 440/2022 rejecting his application for recalling the first a....
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....by the Tribunal in Para 23, 24 & 25, which is as follows: "23. The Registrar was on leave on 17, 18, 20 & 21 February and has placed this Email of Mr. Ashish Khanna dated 16.02.2024 at 04:22:18 PM before the Hon'ble President on 21.02.2024. The email dated 16.02.2024 was also copied ("CC") to the Court Officer, NCLT, Principal Bench. The Court Officer, NCLT, Principal Bench has reported that due to huge volume of work, the email was not seen by her till the Registrar, NCLT forwarded the same to the Court Officer on 21.02.2024 with remarks as follows:- "do the needful as per the law.". We have gone through the said Email. Among other things the Email inter alia states various allegations against different persons but it specifically states that the Hon'ble President should be asked to initiate a departmental enquiry on the corrupt collusion between Principal Bench's Court Master and Mr. Gaurav Liberhan (accused in FIR No103/2021). Para-2 in the email are purported to be certain proofs in corroboration of Para-1 & 6 which are not related to proceedings of 08.02.2024 and 15.02.2024. Para-2(e) states that on 26.02.2021, NCLT ordered to remove Mr. Gaurav Liber....
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....ings is totally unjustified and is not correct. The objection raised by Mr. Ashish Khanna and by his counsel Mr. Deepak Khosla against the appearance of Mr. Gaurav Liberhan when he was not participating in the proceedings appears to be an unwanted issue raised disturbing the normal proceedings of this Tribunal. This issue has been time and again raised to derail the adjudication process on various dates of hearing. From the conduct of Mr. Ashish Khanna and his remarks against Mr. Gaurav Liberhan and various allegations against him, we can only infer that there is a long standing inter-personal dispute between Mr. Ashish Khanna and Mr. Gaurav Liberhan which Mr. Ashish Khanna is raising it before this Tribunal time and again more particularly in his multiple e-mails which does not concern this Tribunal in any way. If Mr. Ashish Khanna has a personal grievance against Mr. Gaurav Liberhan, he has to vent it out in any other forum or pursue any proceeding against such person outside the NCLT Forum. This Tribunal cannot be used for mudslinging by one or other person and it is totally irrelevant to our adjudicating process. This is causing unwarranted stress on the working of this Tribuna....
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.... 39. In response, Mr. Deepak Khosla stated that he has cautioned his client that the statement made in para 1 of the email dated 16.02.2024 is not in good taste and he should rethink on the same and he should tender his apology. 40. Similarly, Mr. Deepak Khosla stated that what is stated in paragraph 3 of the email dated 16.02.2024 is also not in good taste and he should tender an apology. He sought further time to discuss with his client and to counsel him and thereafter, take a decision on this email. To our best of information, so far no proper response has been filed before this Tribunal..... In this background, we are of the view that sending of an email by Applicant on Registrar's Email ID on irrelevant issues is not appropriate and unacceptable. This Tribunal is not bound to act upon it. If we allow such kind of email presentations, tomorrow it will become a practice for all. Registry have loads of important court as well as administrative work to do. Applicant expects a response from the Registry on his personal grievances which cannot happen and there is no necessity." 32. The Tribunal in Para 41 has noted the effective dates in CA-88/2023 which indic....
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.... of e-mail allegation at random. He is yet to give his apology after consulting his advocate." 34. When we look in to the impugned order of the Tribunal, it is clear that anguish of the Court with regard to filing of multiple applications by the Appellant is writ large. The Appellant herein has submitted in his Written Submission that even if entire order is not set aside, Para 37-49 be struck off. Observations made in Paras 37 to 49, as noted above, are based on relevant observations of the Court and the material on the record. We do not find the observations baseless or unfounded. The Court who is in control of the proceedings has right to conduct the proceedings in orderly manner and resist attempt of the litigants who tend to raise repeatedly unconnected issues. In the present case we have noticed that the Appellant has been making submissions time and again with regard to CA-88/2023 and CA-34/2024 with regard to entitlement of protection under Section 218 of the Companies Act. Appellant very conveniently in entire appeal has not referred to earlier order of the NCLT dated 25.03.2021 where application under Section 218 was filed and in which no relief was granted of setting ....