Case BriefsHigh Courts

Orissa High Court: K.S. Jahveri, CJ and K.R. Mohapatra, J., partly allowed a writ petition on the ground that the principle of natural justice was not followed by the parties. 

A writ petition was filed against the tender call notice issued by the Executive officer, Jeypore Municipality for grant of licence and underground chamber stall. Even after issuance of the impugned tender call notice, the petitioner’s licence period was continued but the same was cancelled abruptly without issuing any notice to the petitioner. 

The Court after submission by the parties held that order of cancellation of petitioner’s licence was required to be quashed and set aside as it was issued without giving the notice. It was further ordered that the respondents’ were open to issue a notice to the petitioner and thereafter after hearing him, appropriate order may be passed. The Court further submitted that cancellation was made without issuing a notice to the petitioner that too without following due procedure, i.e., in gross violation of the principle of natural justice. Thus, the writ was allowed.[Basanta Kumar Mundra v. Jeypore Municipality, 2019 SCC OnLine Ori 210, decided on 13-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT): The Coram of Tarun Agarwala, J. (Presiding Officer), Dr C.K.G Nair (Member) and M.T. Joshi, J. (Judicial Member) allowed an appeal against the order of delisting the company as a shell company by Bombay Stock Exchange (BSE) and Securities and Exchange Board of India (SEBI).

An appeal was brought against the order of BSE and SEBI against their order of listing the company as shell companies as directed by the Ministry of Corporate Affairs.

The facts of the case were a list of shell companies was prepared by the SEBI with the request to initiate the necessary action as per the SEBI rules and regulations. Further instructions were given to stock exchanges to place the Companies in Graded Surveillance Measures (GSM) Stage VI with immediate effect, and thereafter initiate a process of verifying credentials/fundamentals of such Companies and appoint an independent auditor to conduct an audit or forensic audit of such listed companies. Moreover, a list of document to be verified during the process was also provided in order to seek the fundamentals of the company.

Ram Upadhyay, counsel for the appellant submitted that appellant was kept in the delisting company against which a representation before the respondent contending that their action in keeping them in the list of the suspected shell companies was wholly erroneous as well as their action in placing them in the GSM Stage VI and consequently requested to take immediate remedial action so that their reputation is salvaged and the hardships caused to the investors are removed.  Despite the entire requirement being fulfilled on time the name of the appellant was not removed, thus an appeal was preferred by the appellant.

Gaurav Joshi, counsel for the respondent argued that the balance sheet of the company did not reflect the true and fair position of the company and considering the fact that the company had suspended its operations the entire assets should be written off. It was further submitted the expenses were marked under the wrong head which created the illusion that the company had a huge asset base which was incorrect.

The Tribunal after the submission held that approach adopted by SEBI as well as by BSE was totally erroneous. The court submitted that direction given by the SEBI to place the companies under GSM stage VI without verifying their credentials was wholly illegal and in violation of the principle of natural justice.  It was further submitted that BSE could not pick holes in the balance sheet nor were they competent to hold whether any expenditure should be revenue expenditure or capital expenditure, for which an independent auditor should be appointed which was not complied with. The court further submitted that “the objective of the SEBI Act is to promote the development of, and to regulate the healthy growth of securities market as well as to protect the interest of the investors. It has the power to issue necessary direction if it is satisfied upon an inquiry that such direction is necessary for the interest of the investors.” Thus allowed the appeal and directed to take the action in accordance with the law.[SVC Industries Ltd. v. SEBI, Appeal No. 360 of 2018, decided on 27-05-2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of Ananda Sen, J. set aside a punishment order issued against a police constable in departmental proceedings, for being in violation of principles of natural justice.

Petitioner, a constable in the police department, was served with a departmental charge sheet alleging misconduct. In the departmental inquiry was held. In the inquiry, charges against him were held not to be proved. The disciplinary authority, disagreeing with the findings given of inquiry report, punished him with two black marks and withheld his salary on the basis of no work no pay.  The said order was challenged by the petitioner in departmental appeal, which was also dismissed by the appellate authority. Aggrieved thereby, the instant writ application was filed praying for quashing of the said order.

Petitioner’s only submission was that it is well within the jurisdiction and domain of disciplinary authority to differ with the findings of Inquiry Officer, but if the disciplinary authority wants to punish the delinquent, a second show cause notice has to be served and reasons for his differing from findings of the inquiry report must be mentioned in the show cause notice. This process had not been followed before passing the impugned order, and only on this ground, the impugned order could be set aside.

The Court noted that the respondent had not issued second show cause notice to the petitioner, but punished him after differing with the findings of the inquiry report. It was opined that this procedure was in utter violation of the principles of natural justice, as the petitioner ought to have been issued a second show cause notice indicating the ground of disagreement, before punishing him. Thus, the punishment order was set aside for being unsustainable in the eyes of law.[Lalit Oraon v. State of Jharkhand, 2019 SCC OnLine Jhar 279, Order dated 13-03-2019]