FORECH INDIA LIMITED v. COMPETITION COMMISSION OF INDIA AND ANR

2. Thereafter, this application has been filed by the respondents [Competition Commission of India (CCI) and Director General, Competition Commission of India (DGCCI)] for modification of the order dated 2nd December, 2015 supra to the effect i) that the respondents, instead of being required to furnish „all the documents of investigation available with the respondents, save those with respect to which any party has claimed confidentiality‟ be permitted to supply to the petitioner only those documents „which are to be relied on by the respondents against the petitioner‟; and, ii) that the respondents be exempted from supplying to the petitioner the order of the confidentiality if any passed inasmuch as under the Regulations, only the person who has applied for confidentiality is entitled to the order of confidentiality and giving of order of confidentiality to any other person would give access to that person of all the documents sought to be kept confidential.

3. It is contended that the said modification would not cause any prejudice to the petitioner inasmuch as documents to be relied on against the petitioner would be made available to the petitioner and the petitioner would also get an opportunity to cross examine.

4. Though no formal notice of this application was issued but the senior counsel for the petitioner appeared on advance notice and contended that since the inquiry is in respect of alleged cartelization, the petitioner should be furnished all the documents.

5. Vide order dated 6th January, 2016, the counsel for the respondents was directed to, on the next date of hearing, inform the reasons for which the documents which were not intended to be used against the petitioner were not intended to be given to the petitioner.

6. The counsel for the respondents on 5th February, 2016 handed over a sealed cover and which on opening was found to be containing a four page note dated 14th January, 2016 setting out the reasons aforesaid. After perusing the same, the same was returned to the counsel for the respondents and the following order was passed:

7. Thereafter, on 1st April, 2016, the following order was passed: “2. The senior counsel for the respondents under instructions states i) that the respondents along with final report of the Director General (DG) shall disclose all the material collected during investigation in terms of Regulation 24 (sic 20(4)) of the Competition Commission of India (General) Regulations, 2009 including the documents whether relied upon by the DG or not; ii) that the petitioner if so desires at that stage, will also have a right of inspection of the entire record in terms of Regulation 37; iii) that in the event of the report of the DG being against the petitioner, the petitioner will have an opportunity to make a further statement and to cross examine the witnesses with reference to the material placed by the DG before Competition Commission of India

(CCI) and not earlier disclosed to the petitioner; iv) that the documents with respect to which the respondents at this stage claim confidentiality will not be furnished to the petitioner but the petitioner will be furnished the orders of the CCI upholding the confidentiality plea with respect to the said documents after redacting therefrom the portion which may disclose the nature of the documents, in terms of Regulation 35(14) and Regulation 6 of The Competition Commission of India (Lesser Penalty) Regulations, 2009; v) that though the petitioner at this stage shall be supplied (in terms of para 2 of order dated 2nd December, 2015) only such of the documents that are relevant qua the allegations against the petitioner but along with the report of the DG, the other documents shall also be supplied to the petitioner.”

8. The counsels were further heard on 1st June, 2016 and order reserved giving liberty to the counsels to file written submissions. Written submissions have been filed by both counsels and which have been perused.

9. The senior counsel for the respondents has contended i) that the offer as made and contained in order dated 1st April, 2016 supra balances the rights of the petitioner to confront the evidence against it on the one hand with the unfettered ability of CCI to conduct a free and fair investigation and maintain confidentiality in terms of Regulation 35 of The Competition Commission of India (General) Regulations, 2009 on the other hand; ii) while investigative powers granted to DG, may be wide in scope, the consequences of investigation by DG is a report that is to be placed before the CCI and by which report CCI is not bound and is empowered to invite objections and / or order further investigation; and, iii) in terms of Section 26 read with Regulation 20(4) and Regulation 21 of the General Regulations all materials whether inculpatory and exculpatory are filed with the report and at this stage all this material is made available for inspection and / or is supplied subject to confidentiality, to all the concerned parties including the party against whom action is proposed.

10. Per contra, the senior counsel for the petitioner has contended i) that the respondents, in the garb of modification are back-tracking on their own consent / statements / undertakings given to the Court and the application itself is thus not maintainable; ii) that this Court after the orders dated 30th November, 2015 and 2nd December, 2015 aforesaid has become functus officio and its power of modify the orders is limited to correcting errors apparent on the face of the record – reliance in this regard is placed on A.P.SRTC Vs. Abdul Kareem (2007) 2 SCC 466; iii) that the proceedings before the DG are in the nature of a trial and cannot be equated with a police investigation – reliance in this regard is placed on Google Inc Vs. Competition Commission of India (2015) 150 DRJ 192 (DB) affirmed in Oriental Rubber Industries Pvt. Ltd. Vs. Competition Commission of India 2016 SCC Online Del 2438; iv) that the DG of CCI has been compelling the petitioner to give its defence without informing the petitioner the charge against it; v) that the petitioner has a right to access to all documents / records which are not confidential; vi) that the officials of the petitioner are being examined by the DG of CCI and being confronted with some alleged adverse evidence including certain old e-mails; in the absence of all the related documents, it will be difficult for the petitioner‟s officials to explain documents based solely on their memory and without remembering the context in which such e-mail have been sent or received; vii) reliance is placed on V.K. Sasikala Vs. State (2012) 9 SCC 771 on the rights of an accused; viii) that the petitioner has been accused of being a part of the cartel; evidence of such cartel is in the nature of e-mails / other communications which indicate that competitors were meeting each other; all meetings of competitors cannot be taken and presented as evidence of cartelization; thus the context of the e-mails suggesting or fixing a meeting is necessary; ix) that in the absence of documents, the petitioner is not aware of the evidence that it should submit to defend itself; x) that Regulation 43 of the General Regulations restricts the right of the petitioner to present additional evidence after the completion of investigation before CCI; xi) that the officials of the petitioner examined by the DG of CCI, upon being confronted with old e-mails and without the attendant circumstances / mails, may be stating something that may not be entirely correct and exposing them to penal action under Section 45 of the Act; xii) that the petitioner apprehends that the respondents, in the guise of confidentiality, are suppressing or will suppress the disclosure of important documents to the petitioner and hence it is imperative that the respondents be directed to provide copies of the orders passed in respect of confidentiality claims to the petitioner as mandated by Regulation 35 of the General Regulations; and, xiii) that the practice and procedure adopted by respondents is not in consonance with the principles of natural justice which the respondents are bound to follow in terms of Section 36(1) of the Act.

11. I have considered the rival contentions.

12. I may at the outset notice that the order dated 2nd December, 2015 of which modification is sought is not adjudicatory in nature but is an order passed on the statement of the counsel for the respondents and which statement itself was “without prejudice to the rights and contentions of the respondents and without constituting a precedent.” Supreme Court, not only in Abdul Kareem supra cited by the senior counsel for the petitioner but also in Delhi Administration Vs. Gurdip Singh Uban 2000 (7) SCC 296 and in Inderchand Jain Vs. Motilal (2009) 14 SCC 663 held; i) that no application for review will be entertained in a civil proceedings except on the grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure, 1908; ii) that there is a real distinction between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent; iii) that a review by no means is an appeal in disguise; iv) that sometimes applications are filed for 'clarification', 'modification' or 'recall' not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a re-hearing – such applications if they are in substance review applications deserve to be rejected straightaway; v) the limitations on exercise of power of review are well settled; vi) a re-hearing of the matter is impermissible in law; vii) that power of review can be exercised for correction of a mistake and not to substitute a view and such power can be exercised within the limits of statute dealing with the exercise of power. Reference in this regard may also be made to Cine Exhibition Private Ltd. Vs. Collector, District Gwalior (2013) 2 SCC 698 and Villianur Iyarkkai Padukappu Maiyam Vs. Union of India

13. The respondents indeed, in the garb of modification, are seeking to wriggle out of the consent given by them i) to furnish to the petitioner all the documents of investigation available with the respondents save those with respect to which any party has claimed confidentiality; ii) to give an opportunity to the petitioner to cross-examine any witness whose oral statement pertaining to the petitioner has been recorded; iii) to give to the petitioner an opportunity to make a further statement after copies of the documents have been given to the petitioner and after the official of the petitioner has been confronted with some of the documents; iv) to give to the petitioner the orders passed on the application of any other person claiming confidentiality with respect to any document / material.

14. The respondents, through while seeking modification of their statement to give to the petitioner orders on the application of any other person claiming confidentiality with respect to any document / material have given reasons therefor, for seeking modification of their statement to furnish to the petitioner all documents of investigation with the respondents save those with respect to which any party has claimed confidentiality, have not given any reasons whatsoever save for expressing “difficulties” therein and which reasons were shown to the undersigned subsequently in confidence.

15. I am not satisfied with the reasons shown to me in confidence for withdrawing the consent given on 2nd December, 2015 to furnish to the petitioner all documents of investigation available with the respondents save those with respect to which any party has claimed confidentiality.

16. Since the order disposing of the petition was not adjudicatory order and was without prejudice to the rights and contentions of the respondents and without constituting a precedent for the respondents, I do not deem it appropriate to in this application for modification of the said order enter into an adjudicatory exercise as the counsels have argued. The same would clearly be beyond the scope of modification and even beyond the scope of review. Reference in this regard can be made to the order dated 16th September, 2016 of the Division Bench of this Court in Review Petition No.542/2014 in W.P.(C) No.3821/2014 titled Rosa Power Supply Co. Ltd. Vs. Union of India. I therefore decline to adjudicate, whether the respondents under the law are required to at the stage of investigation before the DG of CCI supply all material to the person being investigated against or not.

17. Though the respondents on 1st April, 2016 and as recorded in the order of that date reproduced above further agreed to grant full opportunity to the petitioner including of adducing evidence and cross-examining witnesses before the CCI also and it appeared that the same offered a viable solution but the same was not acceptable to the senior counsel for the petitioner. In the light of consent earlier given by the respondents in this regard and to withdraw which no satisfactory reason is given, the same cannot be permitted to be withdrawn without consent of the petitioner.

18. The modification of that part of the order sought is thus declined.

19. However as far as the other modification sought with respect to furnishing to the petitioner copies of all the orders passed on the application of any other person claiming confidentiality with respect to any document / material is concerned, I am of the view that the consent of the respondents thereto may affect third parties and thus the respondents cannot be held to be bound thereby. The modification with respect thereto offered on 1st April, 2016 and as recorded in the order of that date i.e. of furnishing the orders of CCI upholding the confidentiality plea with respect to documents / material after redacting therefrom the portions which may disclose the nature of the documents / material in terms of Regulation 35(14) and Regulation 6 of the Competition Commission of India (Lesser Penalty) Regulations, 2009 is found to be more appropriate and is permitted.

20. Accordingly, the application is partly allowed. The order dated 2nd December, 2015 is modified to the extent that the respondents may furnish to the petitioner orders passed on the application of any other person claiming confidentiality with respect to any document / material after redacting therefrom the portion which may disclose the nature of the documents / material. Else the orders dated 30th November, 2015 and 2nd December, 2015 remain the same and bind the respondents. The application is disposed of.

RAJIV SAHAI ENDLAW, J SEPTEMBER 29, 2016 „gsr‟..