Wednesday, September 30, 2015

Candidate proves she has height for sub-inspector's job

Gujarat high court's intervention ensured Hetal Vihol a job with the Gujarat police after she was rejected on the ground that she did not have the required height for selection as police sub-inspector (PSI).
City-based Vihol participated in the recently-concluded recruitment process for PSIs. She successfully cleared the tests but, at the last moment, she was dis qualified because the authorities measured her height as 157.2 cm.
After the relaxation in physical qualification granted in February by the Anandiben Patel-government, women candidates for this post are required to have 158 cm height. Earlier the requisite height for women candidates was 160 cm.
Vihol was not satisfied with the measurement process adopted by the recruitment body and she moved the high court questioning the result. Her lawyer, claimed that the measurement of candidate's height was not properly recorded. He argued that there are new equipment, including laser instruments, that are used to measure height and these instruments measure height precisely. He urged the court to direct medical experts to measure Vihol's height once again.
The high court ordered the Sola Hospital Board to arrange for a fresh measurement of Vihol's height. Accordingly, the medical superintendent and RMO measured her height and found it to be 158 cm, exactly the minimum required for qualification. When the result was placed before the court, it directed the police recruitment board to select Vihol for the post of PSI.

Thursday, September 24, 2015

UP officials to be punished for deaths due to potholes?

Government officials in UP could soon be held accountable for fatal accidents due to potholes and charged under Section 304A (causing death due to negligence), if an order issued by the state transport commissioner comes into effect. 

This is in contrast to two recent cases in which police in Maharashtra and Karnataka used the same section to book family members of accident victims. 

UP transport commissioner K Ravindra Naik had written to district magistrates, civic bodies and development authorities of cities directing them to punish those responsible for potholes. "Dig as much as you can fill in a day . Why should pits be left open on roads at night?" said Naik. 

On September 24, police booked Priti Prasad, 26, of Thane for the death of her mother, who was riding pillion and fell while the scooter was negotiating potholes. The Thane police commissioner has since asked his men not to arrest the woman and probe the possible role of the contractor and MMRDA officials. UP transport commissioner K Ravindra Naik, who has issued an order seeking officials to be held accountable for accident deaths due to potholes, said though a large number of people died due to overspeeding, bad roads killed a significant number every year. 

In his order, Naik sought punishment for those guilty under section 304(A) of IPC, which states, "whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". 

Muslims marrying off minor daughters will be prosecuted: HC

Gujarat high court has held that the special law - Prohibition of Child Marriage Act (PCMA) - will prevail over the Muslim Personal Law in cases where Muslims marry off their minor daughters. Promoters of such marriages will face legal proceedings. 

The question was whether action can be taken against people who promote or permit marriage of a Muslim girl less than 18 years because the Sharia laws permit a girl to take decision about her marriage when she attains the age of puberty, at around 15. Justice J B Pardiwala on Wednesday ruled that all those who promote or permit such child marriages are liable to be prosecuted under the central law that bans such early nuptials. 

The case in question before the high court was from Gaekwad Haveli police station, where abduction and rape charges were leveled against Yunush Shaikh (28) who had eloped with a 16-year old girl living in his neighbourhood. Before elopement, they had also got married in December last year. The girl's father lodged an FIR and sections 363, 366, 376 of the IPC, provisions of Prevention of Children from Sexual Offences Act (POCSO) were invoked apart from the PCMA. 

Looking at the provisions of Personal Laws and IPC, Justice Pardiwala dropped charges of abduction, luring and rape. However, the HC said that even in cases of child marriage involving Muslims, the provisions of PCMA cannot be overlooked and action must be taken against those responsible, said Shaikhs' counsel Soeb Bhoheria. 

In reaching this conclusion, the judge spoke of numerous citations from other high courts, the Supreme Court as well as from laws of other countries. He also extensively cited the Islamic texts besides relying on an article written by former SC judge Markandey Katju. 

The HC observed about rigidity on part of Islamic authorities in interpretation of ancient laws, "Those who have not allowed to change the Muslim Personal Law have done a great disservice to the community. At the same time, it is also true that as the social condition in the nation and throughout the world continues to change. The reality of life is that even without a code on personal law of Muslim in so far as the marriage is concerned, the child marriage is going into oblivion. Education, changing pattern of the family structure, the structure of the family in the context of reality of the world, and economic necessities are on their own precipitating the situation. The members of the community have realized the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years." 

Supreme Court slams government for not complying with orders

If judges in this country can be appointed by the government in 24 hours, why can’t they show the same alacrity in complying with court orders, asked Supreme Court Thursday, as it sent a strong message to authorities for reluctance to abide by its directives. “If you (government) can have judges appointed… in 24 hours, you can also comply with our orders in 48 hours but here you have taken two years and still counting,” said a bench of Justices Kurian Joseph and Arun Mishra.


It underlined that once an order has been passed, it must be complied with. “When we pass an order, you cannot sit in appeal. You cannot say you have become wiser after our orders and need to examine it again,” said the bench. It said the government may choose to act “dodgy” over implementing orders but the court knows how to get them implemented. “Nobody else needs to feel strained… Leave it to the court, which has passed the order, to also take care of its implementation,” added the bench. The top court made the observations as it took notice of the government’s delay in implementing its directions on providing promotional avenues and financial upgradation to the employees of the Song and Drama Division (SandDD). The SandDD is a media unit under the I&B Ministry that propagates various policy programmes and schemes of the Centre through live media. By a proposal dated April 9, 2014, the dispute over promotions and grade pay was held to be amicably resolved between the parties by the apex court, which asked the ministry to accord benefits to the employees. The court was hearing an appeal by the ministry against a Delhi High Court order. The high court had in 2008 granted four weeks to the ministry to grant benefits to the SandDD employees. Even as the dispute was said to be resolved, the government kept asking for more time from the Supreme Court to implement the directives relating to grade pay and arrears. Aggrieved, the SandDD employees moved a contempt plea, alleging non-compliance by the ministry. 


Thursday, September 17, 2015

US Tourist on First Visit to India Alleges Gang-Rape in Himachal Pradesh

An American tourist has alleged that she was raped by two men in the popular hill station of Dharamsala in Himachal Pradesh.

The 46-year-old woman, who is on her first visit to India, has said in her complaint to the police that she was walking through a crowded market area on Tuesday evening when she was attacked. She alleges that she was drugged and raped.

"She says she had gone out for dinner at around 9 pm. When she was returning at around midnight, someone grabbed her and then she fell unconscious. She said when she came to, she realized she had been raped. She then went to the police station," said senior police officer Renu Sharma.

Ashok Singhvi the Principal Secretary Rajasthan arrested in bribery case

A growing pile of cash had policemen in Rajasthan gaping as they counted what they had seized from raids on senior government officials in Udaipur.

The stacks at the anti-corruption department's office added up to Rs.3.8 crore. The trail led the police to senior bureaucrat Ashok Singhvi, who was arrested at around 3 am this morning for his alleged involvement in massive corruption in the mines department.

"It is one of the biggest seizures in Rajasthan," said Navdeep Singh, the chief of the anti-corruption department.

Ashok Singhvi, the Principal Secretary, and his juniors including additional director Pankaj Gehlot, allegedly had a share in the bribe money.

Over two crores in cash was found from middlemen who were allegedly delivering the money to a Chartered Accountant acting on behalf of the government officials. Raids at the homes and offices of the officials led to the rest of the cash.

The mining officials had allegedly cancelled the lease of six clay mines in Chittorgarh, belonging to a man named Sher Khan, and then demanded the money to allow their reopening.

Pankaj Gehlot had 14 bank accounts, the police found.

The raids continued through the night. A middleman was caught red-handed with more than R
s.
4 lakh in cash as he came to deliver the money at the home of a mining engineer.

"We have arrested five people - two government servants and three middlemen including a chartered account. Our searches are continuing and we may come up with more disclosures soon," said Navdeep Singh said.

Meat Ban Not an Issue to Be Forced Down People's Throats: Supreme Court

Citizens in Mumbai can continue to buy and consume meat when they want, without any restrictions.  Endorsing a Bombay High Court order today, the Supreme Court said: "These are not issues forced down the throat of anyone. A Spirit of tolerance has to be inculcated."

On Monday, the high court put on hold a ban on the sale of meat that was to be enforced today in Mumbai for the Jain fasting period of "Paryushan".

A Jain organisation had challenged the order in the Supreme Court. The petitioner argued that the meat ban is a reasonable restriction, "keeping in mind the sensitivity of the people of a section of the society."


Refusing to interfere with the high court's order, the Supreme Court said: "It is only an interim order and the ban expires today   So you ( petitioner ) can go to the high Court."

The top court did ask the high court to decide within six months, whether the sale of meat should be banned during religious festivals.

The meat ban in Mumbai, originally for four days, had led to protests and debate. It was challenged by mutton traders, who have said that the ban will badly hit their earnings.

The ban during the Jain fast was introduced in 1994 by the then Congress government. Ten years later, the two-day ban was extended to four days but it had never really been implemented until the state government recently ordered a ban.

Last week, the ban was reduced from four days to only one more day, today, by Mumbai's Shiv Sena-dominated civic body. The Sena had opposed the ban, openly disagreeing with its ally, the ruling BJP, which wanted the slaughter and sale of meat to be restricted for eight days, not just four.

"We are only going by law and not by sentiment and politics," said the High Court, adding, "People should know in advance aboard such bans. At the 11th hour it creates complications. Sudden imposition especially on eating habits is not correct."

Monday, September 14, 2015

2002 RIOTS CASE-Gujarat high court has sought explanation on how non-bailable warrants (NBW)

Gujarat high court has sought explanation on how non-bailable warrants (NBW) were issued against six accused of a 2002 riots case in Anand district after they had been acquitted in the same case.
2002 RIOTS CASE After issuing notice to the state government, Justice J B Pardiwala stayed the NBWs till further orders.
According to case details, Kiran Patel and five others were booked by the police for rioting and torching properties belonging to Muslims on March 1, 2002, in Navli village of Anand district. This case was committed to the Sessions court in 2007 and all the six accused were tried and ultimately acquitted in 2009.
Meanwhile, in 2002, a Muslim from the same village -Sattarbhai Vora -filed a private complaint with the concerned magisterial court in Anand which began inquiring into the incident in 2008.
In 2011, the magisterial court issued summons to the accused. They claimed that the court had accepted their bail bonds in January 2012. A month later, the court issued a non-bailable warrants against them. The accused challenged this before a sessions court but it too upheld the NBWs in 2015. After that they moved the high court questioning how they could face another trial once they had been acquitted in the case.
The high court has posted the case for further hearing on October 24.

SC seeks details of road safety measures taken by AMC

The Supreme Court (SC) committee on road safety has asked Ahmedabad Municipal Corporation (AMC) on measures it has put in place to ensure safer city roads.
Earlier, the committee had sent a list of 16 road safety measures that were to be put in place in a time bound manner by June. The committee now sought an “Action Taken Report“ from the municipal corporation. The special committee was formed in April last year while hearing a writ petition 2952012.
The measures include formulating a state road safety policy. The committee has also asked the state to set up a body that will co-ordinate with police, roads and building department, health, education, local bodies and other departments on road safety issues.
The committee has also sought details of enforcement relating to drunk driving, over speeding, red light jumping and seat belt laws. The AMC has been asked to provide details of accident spots in the city and how the civic body has made road design changes to curb accidents.The committee has also asked to set up a road safety fund and a road safety action plan. Removal of encroachments from pedestrian pathways, implementation of traffic calming techniques like constructing road rumble strips, removing hoardings that may distract drivers.

Thursday, September 10, 2015

Registration of Teesta's NGO suspended

The home ministry on Thursday suspended the registra tion of activ ist Teesta Se talvad's NGO Sabrang Trust under the Foreign Contribution Regulation Act, 2010, besides serving it a notice for cancellation of FCRA licence.
The grounds cited for freezing all foreign funding to the NGO include diversion of such funds to nonFCRA registered entities; using foreign contributions for purposes other than for which they were received, including for personal gains of Setalvad and her husband Javed Anand; utilization of over 50% of foreign funds received for administrative expenses and mixing its FCRA and domestic contributions, etc.
As reported first by TOI on Wednesday , the Union home ministry on Thursday suspended the FCRA licence of Sabrang Trust for a period of 180 days. A simultaneous notice for cancellation of the NGO's FCRA registration was served. The action follows an inspection of Sabrang Trust's records and accounts between April 9 and 11, based on which a report was made listing the FCRA violations detected. The report was shared with the NGO on June 5 and its comments received on June 25, which the MHA has “found unsatisfactory“.
“In exercise of the powers conferred by Section 13 of the FCRA 2010, the Central government has suspended the registration of Sabrang Trust...for a period of 180 days with effect from 10.09.2015,“ said the home ministry order while allowing the NGO to make a representation against the said order within 30 days of its receipt.

Third-party Inspection (TPI) Engineer caught taking Rs 1L bribe

The anti-corruption bureau (ACB) in Gandhidham, Kutch, caught an engineer of a German consulting agency , red-handed accepting bribe of Rs 1 lakh from a contractor in Adipur town.
The accused, Shital Prashad Tripathi, was authorized to conduct third-party inspection (TPI) for various projects of the National Highway Authority of India (NHAI). He was currently inspecting construction of a six-lane highway between Mundra and Gandhidham.“Kamlesh Valand, representative of a company that was given the contract by NHAI to remove electric wire poles which fall on the six-lane highway route, had lodged a complaint against Tripathi,“ C J Sureja, inspector of ACB Gandhidham, told TOI.
The agency had completed the work and submitted a claim of Rs 82 lakh. NHAI asked TPI agency to carry out inspection and submit the report to pass the claim amount. Tripathi, who was assigned the job to do the inspection, called up Valand saying that the work was not satisfactory and that he could only pass claim of Rs 53 lakh. Valand then asked him to submit a report to the NHAI so that he could claim that amount. “Tripathi demanded Rs 1 lakh from Valand to submit the report,“ said Sureja.“Valand approached us and accordingly we laid a trap at Tripathi's office in Adipur and caught him red-handed while accepting bribe of Rs 1 lakh,“ he added.


Wednesday, September 9, 2015

Diplomatic immunity, geopolitical complications: Gurgaon rape accused Saudi diplomat may go scot-free

The Gurgaon Police on Wednesday filed a case against a Saudi Arabian diplomat and ‘unknown persons’ under Sections of gang-rape (376 D), rape (376), unnatural sex (377) and other sections of Indian Penal Code including 342, 323 and 120B (conspiracy). The Ministry of External Affairs has already sought a detailed report from the police.

The case against the Saudi diplomat comes at a delicate time for India-Saudi relations, given that seven Indian nationals are still believed to be missing in an air-strike in Yemen carried out by a Saudi-led alliance. But, with a recently-signed defence agreement  and Saudi Arabia’s extradition of 26/11 plotter Abu Jundal in 2012 (not to mention those who were brought back covertly to India through less orthodox means), New Delhi is unlikely to upset the apple-cart by pushing Riyadh too hard on the prosecution of the diplomat, the gravity of the crime notwithstanding.

The alleged crime occurred in India, and has been charged under the Indian Penal Code. However, with the alleged perpetrator being a Saudi national and the victims Nepali, a spanner may have been thrown into what is already a complicated situation.

While Nepali nationals have often faced hardships in India, this particular case could blow into a three-way diplomatic crisis if not handled sensitively. The Indian MEA is likely to push the Saudis to waive the diplomat’s immunity, but this is likely to be in vain. What is more likely is a situation that sees Riyadh recall the diplomat in question and administer internal punishment.



Tuesday, September 8, 2015

HC ends preferential treatment for Gujarati students in NRI quota

Gujarat high court on Monday scrapped the new rules made by the state government for admissions under the NRI quota in medical courses, by which preferential treatment was given to candidates of domiciled in Gujarat.

A division bench of Acting Chief Justice Jayant Patel and Justice N V Anjaria junked the new amendment on the grounds that it discriminates against students from other states and this is in clear violation of the constitutional right to equality of opportunity.

The HC intervened in the issue in response to a petition by a student, Kolasani Sai Yaswant Reddy from Andhra Pradesh, who complained that in the name of preferential treatment to local students, the new provisions gave merit the go-bye. Even if a student from another state had secured a higher percentage of marks, he would lose admission under the NRI quota to a Gujarati student with fewer marks.

In May, the state government issued a notification and made changes to the Gujarat Professional Medical Educational Courses (Regulation of Admission and Payment Fees) (Amendment), 2015. By providing new provision to the sub clause (i) of clause (4) of sub rule C of Rule 7 of the laws, the state government has denied admission to students coming from states other than Gujarat. The petition questioned this amendment as violative of Article 14 of the Constitution.

Earlier, during a hearing of this petition former ACJ V M Sahai commented, "The secretaries make policies to please their bosses and do not bother to see whether they are in accordance with law." With this remark, the HC had stayed the recent amendment.

Monday, September 7, 2015

No mercy for the corrupt, says SC

The Supreme Court on Monday called for 'zero tolerance' approach towards corruption and advised the courts not to get swayed by mercy and forgiveness while awarding punishment to the corrupt. 

Asking the courts to impose stringent punishment in corruption cases, a bench of Justices Dipak Misra and Prafulla C Pant said courts must deal with corrupt people with an iron hand, particularly when the country is witnessing cancerous growth of corruption which had polluted moral standards of people and administration.

Ordering termination of services of a conductor in UP State Road Transport Corporation for indulging in corrupt practices in 1992 to allow 25 passengers to travel ticketless, the bench said the degree of corruption was immaterial while awarding punishment to an accused. It quashed concurrent findings of a labour court and the Allahabad High Court, which had ordered reinstatement of the conductor. 

The bench said the HC and labour court appeared to have been swayed by the concept of forgiveness and mercy while remaining oblivious to the great harm caused to the institution, the transport corporation, through the corrupt act which had the potential to hit at the root of the faith of employer in the employee. 

"Does he deserve leniency," the bench asked. It said: "When such kind of indiscipline causes financial loss to the Corporation, adequate punishment has to be imposed and in our view such misconduct does not stand on a lesser footing than embezzlement and more importantly results in loss of faith and breaches the trust."
The bench held that HC order granting the erring conductor a chance for reformation and to make him disciplined was wrong and terminated his services 23 years after he was caught red-handed for allowing the passengers to travel without ticket. 

"The delinquent employee has harboured the notion that when the cancerous growth has affected the system, he can further allow it to grow by covering it like an octopus, with its tentacles disallowing any kind of surgical operation or treatment so that the lesion continues. The whole act is reprehensible and such a situation does not even remotely commend any lenience," it said. 

The bench said the approach of the HC and labour court showing leniency towards the conductor is not judicially maintainable. 

"Go and fall at the feet of the girl and seek her forgiveness" - Supreme court

The pitfalls of one-sided love dawned on a man on Monday when the Supreme Court told him that it could reduce his five-year sentence to one year if he fell at the feet of the girl and sought her forgiveness for entering her bedroom 10 years ago and holding her hand.

A resident of Bhagyalaxminagar in Kaviguda area of Secunderabad was smitten by a girl who lived just two houses down the road. He followed her to her coaching classes. She informed her parents and they took local elders with them and warned the man not to follow the girl.
But blinded by love, the man continued to follow the girl and on January 30, 2005, he could no longer keep his emotions under control and entered her bedroom early in the morning while she was asleep. Finding him in the room, she rushed out. But he held her hand and asked whether she would marry him. In the process, she fell and hurt herself.

The girl filed a complaint with the police and accused the man of entering her bedroom and forcing her to marry him. The trial court convicted him for attempting to outrage the modesty of the girl and also trespass and sentenced him to five years in jail with a fine of Rs 1,000.
On appeal against the trial court order, the high court maintained the conviction but reduced the sentence from five years to two years. He appealed against it in the Supreme Court. On August 8, the SC suspended the sentence and granted him bail on furnishing a bond of Rs 20,000 with two sureties of like amount.

On Monday, a bench of Justices T S Thakur and V Gopala Gowda told the man's counsel ATM Ranga Ramanujam that there was no escaping the imprisonment given the evidence on record and the concurrent findings of the trial court and the HC.

The bench said, at best, it could reduce the sentence to one year jail term. However, it said the only way to escape being led back to prison was to "go and fall at the feet of the girl and seek her forgiveness".

"If she pardons you and you can convince her for a compromise, only then we can permit the sentence to be limited to the period already undergone by you," the bench said. It gave him time till October 6 to seek mercy from the girl.

Sunday, September 6, 2015

M/S Bharat Coking Coal Ltd.& Ors vs Chhota Birsa Uranw on 25 April, 2014


                                                                             Reportable


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.4890/2014
        (Arising out of Special Leave Petition (C) No. 34133 of 2011)


       M/S Bharat Coking Coal Ltd and Ors.      … Appellants

                                     vs.

      Chhota Birsa Uranw                          …  Respondent




                               J U D G M E N T
Pinaki Chandra Ghose, J.
1. Leave granted.
2. The present appeal arises against the order of the High Court of Jharkhand at Ranchi in Letters Patent Appeal No.90 of 2010 dated September 20, 2010, which was filed against the order dated December 11, 2009 passed by the learned Single Judge in a writ being W.P. (S) No. 496 of 2007 filed by the respondent in the present matter, wherein the court quashed the order dated August 2, 2006 passed by the Project Officer, Jamunia Open Cast Project (hereinafter referred to as ‘Project Officer’) Area of the Bharat Coking Coal Ltd. (being appellant No. 1 in the present matter), which stated that the respondent will superannuate on February 28, 2007.
3. The brief facts leading to the same are as under :
1. The respondent joined appellant No. 1, Bharat Coking Coal Ltd. (‘BCCL’), a ‘Government Company’ as under Section 617 of the Companies Act, 1956, his date of joining as per the impugned order is stated to be March 31, 1973. At the time of joining, his date of birth was recorded as February 15, 1947, in Form ‘B’, a statutory form stipulated under the Mines Rules, 1955, the basis of recording the same is not clear. The respondent obtained a Secondary School Leaving Certificate issued on October 12, 1979, which indicated that he attended Rajya Samposhit Uchcha Vidyalaya, Baghmara, a Government school in Dhanbad from January, 1964 to August, 1964. In the said certificate, the date of birth of the respondent is recorded as February 6, 1950, which is in conflict with his date of birth as entered by him in the service records being the aforementioned Form ‘B’.
2. Subsequently, in 1983, he was transferred to the Jamunia Open Cast Project and as stated, he once again signed the Form ‘B’ wherein his date of birth was recorded as February 15, 1947 and he allegedly did not raise any objections then.
3. In 1986, the respondent passed the Mining Sardarship and in the certificate acknowledging the same his date of birth was recorded as February 6, 1950, corresponding to the date recorded in the aforementioned School Leaving Certificate. Therefore, there existed two sets of records of the respondent’s details; first being the Form ‘B’ register on one hand in which the date of birth was recorded to be February 15, 1947 and second being the Mining Sardar Certificate and the School Leaving Certificate wherein the date of birth was recorded as February 6, 1950.
4. In 1987, the National Coal Wage Agreement III (hereinafter referred as ‘NCWA III’) being Implementation Instructions were put into operation for stabilizing service records of employees. Pursuant to Implementation Instruction No. 76, appellant No. 1 provided its employees with Nominee Forms as prescribed by the Implementation Instructions which contained relevant extracts from the service records in the Form ‘B’ register, thereby enabling the employees to identify any discrepancy or error in the records and get the same rectified as per the prescribed procedure. In wake of the same the respondent became aware of inconsistencies in the records regarding his date of birth, date of appointment, father’s name and permanent address; therein the respondent made representations to the Project Officer, Jamunia Open Cast Project for rectification of the abovementioned errors and he specifically sought the incorrect date of birth to be corrected as per the date mentioned in the Mining Sardar Certificate and the School Leaving Certificate. It appears that the concerned authorities rectified the discrepancies regarding the name of the father and the permanent address; however the date of birth and date of appointment remained unchanged. Thereafter, as stated by the respondent, he made a subsequent representation to the concerned Project Officer on July 16, 2006 for correction of the date of birth in the Form ‘B’ register in accordance with the Mining Sardar Certificate and the same was rejected by the appellant company vide letter dated July 19, 2006.
5. The Project Officer vide order dated August 2, 2006 intimated the respondent that he is to superannuate from February 28, 2007. Aggrieved by the same, the respondent filed a writ bearing W.P. (S) No. 496 of 2007 for quashing of the order of superannuation by the Project Officer on the grounds that the date of superannuation has been incorrectly calculated by relying on the erroneous date of birth which should have been rectified in terms of the NCWA III, which provided that the Mining Sardar Certificate and the School Leaving Certificate must be treated as authentic documents by the employer as proof of the date of birth of the employee. The appellant company without challenging the genuineness of the same countered the respondent on the grounds that the Form ‘B’ register was a conclusive proof of date of birth as it was verified by the signature of the employee being the respondent; and having accepted the entry then, the respondent is not entitled to raise any dispute after twenty years and at the fag end of his service. The High Court while allowing the writ determined that the respondent did not raise such a claim at the fag end of his career, rather such a claim was made in 1987 itself and the appellant company had failed to respond suitably to the dispute raised by the respondent. Thereby, the Court directed the appellant company to conduct an enquiry on the basis of the certificates produced by the respondent and to effectively communicate to the respondent the decision taken together with the reasons assigned within three months of the passing of the order.
6. Aggrieved, the appellant company preferred a Letters Patent Appeal, the order in which is impugned herein. The High Court dismissed the appeal having found no merit in the same in light of the clauses in Implementation Instruction No. 76.
7. Thereafter, the matter lies before us.
4. The appellant in the present appeal has come before us seeking that the impugned judgment be set aside. The case of the appellant is, firstly, when a school leaving certificate is not a document mentioned in Implementation Instruction No. 76, the High Court was incorrect in substituting the same with the documents given in the said Instruction, thereby creating a situation which supersedes all other statutory documents like Form ‘B’ register. Secondly, the High Court should have considered that the date of birth recorded in Form ‘B’ register being a statutory document under Mines Act is binding and cannot be preceded by a non-statutory document and therefore, the inter alia holding of the High Court that School Leaving Certificate and Mining Sardar Certificate would take precedence over company records and other statutory documents is contrary to the judgment of this Court in G.M. Bharat Coking Coal Ltd., West Bengal vs. Shib Kumar Dushad and Ors.[1]. Thirdly, the appellant has challenged the exercise of jurisdiction by the High Court under Article 226 considering that the respondent as workman could avail efficacious remedy from the forum under the Industrial Disputes Act and the respondent could raise such a dispute at the fag end of his career de hors the judgment in Bharat Coking Coal Ltd. vs. Presiding Officer and Anr[2]. Fourthly, that the documents on which the respondent has relied being School Leaving Certificate and Mining Sardar Certificate are not those mentioned in Implementation Instruction No. 76 for review of determination of date of birth with respect to existing employees and that the implementation of the impugned order would give way to many unscrupulous employees to procure such documents and take advantage of the same. Fifthly, the respondent while signing the Form ‘B’ register at the time of appointment had verified his date of birth as February 15, 1947 on his joining on January 1, 1973 and later on his transfer in 1983; since he is a supervisory staff capable of reading and writing and understanding English his verification amounts to acceptance and his raising of dispute in 1987, fourteen years after is incorrect. Sixthly, the appellant has challenged the reliance placed on the School Leaving Certificate by the respondent on the grounds that the same was issued on October 12, 1979 six years after his appointment and as the Mining Sardar Certificate was based on the same reliance on it is also doubtful; furthermore, since both the documents were issued after the date of employment they cannot form basis of correction of date of birth; furthermore, the appellant has challenged the correctness of the School Leaving Certificate on the grounds that the alleged Certificate was not verified by the District Education Commissioner; that the attendance register for relevant period when the respondent allegedly attended school was not available and the verification was with respect to one Sri Birsa Prasad Uranw; it is further submitted that these discrepancies which were covered by legal inspector of company (who was duly charge- sheeted) in collusion with the respondent make the school leaving certificate dubious. Finally, it was submitted that the respondent has raised the issue at the fag end by means of a belated writ i.e. thirty years after appointment and after twenty years (as claimed by him) of his knowledge.
5. Per contra, the respondent has denied the averments of the appellant and has submitted that he has not disputed his date of birth at the fag end of his service as found by the learned Single Judge. It has been submitted that the respondent joined service on March 31, 1973, when his date of birth was recorded as February 15, 1947 basis of which is not clear; that subsequently in 1986 he cleared his Mining Sardarship and was given a Mining Sardar Certificate where his date of birth was recorded as February 6, 1950 same as in his School Leaving Certificate; that subsequently in 1987, on noticing the incorrect date of birth and other details in his service records, the respondent immediately submitted an application for the correction of his date of birth as February 6, 1950 and other minor corrections in his service records. On receiving no information regarding the same on inquiry from his superiors, he was given the impression that the necessary corrections were made in the service records and the respondent was surprised to receive his superannuation order in 2006 on the basis of the incorrect date of birth being February 15, 1947.
6. In these circumstances, the respondent has contended, firstly, that it is not the case that the respondent disputed date of birth at the end of service, instead he had disputed the same way back in the year 1987, it is the employer who disputed the same at the fag end by creating the impression that claim of respondent for correction of date of birth was accepted when, in reality, it was not and even the learned Single Judge has concurred that the rectification was not sought at the fag end. Secondly, it was contended that the respondent has relied on two documents for correction of his date of birth as February 6, 1950, namely the statutory Mining Sardar Certificate and the School Leaving Certificate. Thirdly, it has been contended that in light of the policy contained in part (B) of Implementation Instruction No. 76, the appellant as per clause (i)(a) accepted the School Leaving Certificate but it was contended before the High Court that as the same was issued in 1979 and as the workman joined service in 1979, the certificate was thus, ‘not issued’ prior to the date of employment and therefore cannot form the basis of correction of date of birth. However, this contention was rejected by the High Court, which held that the school records were created prior to joining and a copy issued on a subsequent date does not create a difference as the date of issue of certificate refers to the date when the relevant record was created on the basis of which the certificate has been issued. In addition to the same, it has also been submitted that the appellate court had granted time to the appellant to verify the genuineness of the School Leaving Certificate and in response through a supplementary affidavit, the appellants have admitted the school leaving certificate to be genuine, thus contended by the respondent that as the School Leaving Certificate was found to be genuine, it warrants no interference. Fourthly, it has been contended by the respondent that his claim for correction was not considered on the basis of the Mining Sardar Certificate which as claimed has been given by the Central Government and was submitted by him, which is also mentioned as a basis for correction of date of birth in Clause (i)(b) in Part B of Implementation Instruction No. 76. It is further submitted that the appellant did not give any reason as to why the Mining Sardar Certificate was rejected by them. Finally, the respondent has submitted that he was made to retire prematurely and not allowed to work inspite of favourable orders from the High Court; furthermore, the respondent filed a contempt petition but was not allowed to work by the petitioners on the pretext of pendency of matter before higher courts. It is also the case of the respondent that he was not gainfully employed anywhere else during that period.
7. It is pertinent to note at this point that during the oral proceedings, this Court vide order dated July 4, 2013 directed the appellants as under:
“List after four weeks to enable the counsel for the petitioners to produce the original and also photocopy of the Form ‘B’ register where it is alleged that the respondent had affixed his signature on the date of birth which was recorded as 15.02.1947.” However, as found by us and pointed out by the respondent instead of filing the original Form ‘B’ prepared in 1973, at the time of joining of the respondent with designation as Explosive Carrier (which as claimed admittedly did not bear the signature of the respondent), filed a photocopy of the alleged Form ‘B’ dated January 27, 1987 which showed the designation of the respondent to be that of Mining Sardar. It has been submitted by the respondent that his signature was taken on the alleged form on January 27, 1987 while handing over the photocopy of the same for necessary correction of the record.
8. On the basis of the above, we find that within the given set of facts the dispute is regarding the manner in which the date of birth should be determined; whether the reliance should be placed on the set of records being the Mining Sardar Certificate and the School Leaving Certificate which state the date of birth to be February 6, 1950 or reliance should be placed on the extracts of the Form ‘B’ register which state the date of birth to be February 15, 1947. The position which emerges on the basis of the above is that after having joined service in 1973 when the Form ‘B’ register was filled and when it was filled once again in 1983 when the respondent was transferred, there were certain discrepancies regarding permanent address, father’s name and date of joining. In 1987, when the appellant made available the details of all employees for verification of service records, the respondent raised the dispute regarding his incorrect particulars being the date of joining, father’s name, permanent address and date of birth. Apparently, the abovementioned corrections other than date of birth were made. Thus, it is evident and correctly determined by the learned Single Judge that the dispute was not raised at the fag end of service or on the eve of superannuation but it was raised at the earliest possible opportunity in 1987 when the respondent became aware of the discrepancy. As the factum of when the dispute was raised is settled what remains to be determined is the issue of date of birth.
9. In the corpus of service law over a period of time, a certain approach towards date of birth disputes has emerged in wake of the decisions of this Court as an impact created by the change in date of birth of an employee is akin to the far reaching ripples created when a single piece of stone is dropped into the water. This Court has succinctly laid down the same in Secretary and Commissioner, Home Department vs. R. Kirubakaran (supra), which is as under:-
“7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.” The same approach had been followed by this Court while deciding on date of birth disputes irrespective of the relief being in favour of the workman or the employer. (See:State of Punjab vs. S.C. Chadha[3], State of U.P. & Anr. v. Shiv Narain Upadhyay[4], State of Gujarat & Ors. v. Vali Mohd. Dosabhai Sindhi[5], State of Maharashtra & Anr. vs. Goraknath Sitaram Kamble[6])
10. Another practice followed by the courts regarding such disputes is that date of birth of an employee is determined as per the prescribed applicable rules or framework existing in the organization. Even this Court inspite of the extraordinary powers conferred under Article 136 has decided date of birth disputes in accordance with the applicable rules and seldom has the Court determined the date of birth as it is a question of fact fit to be determined by the appropriate forum. (See: State of Maharashtra & Anr. vs. Goraknath Sitaram Kamble & Ors.[7] Registrar General, High Court of Madras vs. M. Manickam & Ors.[8] High Court of Andhra Pradesh vs. N. Sanyasi Rao[9] )
11. As stated earlier, this Court needs to decide the manner in which date of birth has to be determined. It is the case of the appellant that as the respondent raised the dispute at the fag end of his career and as there exists a set of records being the Form ‘B’ register which is a statutory document in which the date of birth has been verified by the respondent himself twice, other non statutory documents should not be given precedence and the orders of the High Court must be set aside. This claim of the appellant does not stand in the present matter. As determined, the dispute was not raised at the fag end of the career; on the contrary, it was raised in 1987 almost two decades prior to his superannuation when he first came to know of the discrepancy. It has been held in Mohd. Yunus Khan v. U.P. Power Corporation Ltd.[10], that, “an employee may take action as is permissible in law only after coming to know that a mistake has been committed by the employer.” Thus, the case of the respondent should not be barred on account of unreasonable delay. Admittedly, the appellant as the employer in view of its own regulations being Implementation Instruction No. 76 contained in the National Coal Wage Agreement III, gave all its employees a chance to identify and rectify the discrepancies in the service records by providing them a nominee form containing details of their service records. This initiative of the appellants clearly indicated the existence of errors in service records of which the appellants were aware and were taking steps to rectify the same. Against this backdrop, the stance of the appellant that the records in the Form ‘B’ register must be relied upon does not hold good as it is admitted by the appellant that errors existed in the same. Even a perusal of the nominee form exhibits the ambiguity regarding the date of birth and date of joining. It was due to the discrepancies which subsisted that the appellants gave all its employees a chance to rectify the same. In such circumstances, the appellants are bound by their actions and their attempt to deny the claims of the respondent is incorrect. The respondent in this case duly followed the procedure available and the attempt of the appellant to deny the claim of the respondent on the basis of technicality is incorrect. We, therefore, feel that the learned Single Judge has correctly held that:
“11. Having given the petitioner, like all employees, the benefit of seeking correction of the entries contained in their service records including their date of birth, the petitioner’s claim cannot be denied, merely because he had signed upon the Form ‘B’ Register at the time of its opening and containing the entry of date of birth a recorded therein.”
12. The appellant in the present case should have followed the procedure as laid down by Implementation Instruction No. 76 to determine the date of birth of an existing employee. The provisions of which read as follows:
“(B) Review determination of date of birth in respect of existing employees.
(i)(a) In the case of the existing employees Matriculation Certificate of (sic: or) Higher Secondary Certificate issued by the recognized Universities of Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards Institutions prior to the date of employment.
(i)(b) Similarly, Mining Sardarship, winding engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic.
Provided that where both documents mentioned in (i)(a) and
(i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic
(ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through determination committee/medical board.
(C) Age Determination Committee/medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B) (i) (a) or (B) (i) (b) above, the date of birth recorded in the records of the company, namely, Form ‘B’ register, CMP Records and Identity Cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for the determination of age.
(D) Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or (E) Medical Board constituted for determination of age will be required to manage (sic assess) the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately.” In another case, being G.M. Bharat Coking Coal Ltd. vs. Shib Kumar Dushad (supra) where the date of birth of an employee of the Bharat Coking Coal was in dispute and the same set of instructions were applicable, this court referring to the Implementation Instruction held that:
“20. From the provisions in the instructions referred to above, it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board.”
13. We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R. Kirubakaran Case (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellant’s omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large.
14. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, legal inspector of the appellant company on September 6, 2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction No.76 clause (i)(a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words ‘were issued’ was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school
15. Therefore, the order of the High Court does not call for any interference. We endorse the reasoning given by the High Court and affirm the same.
16. In these circumstances, we do not find any merit in the appeal. Accordingly, this appeal is dismissed.
…....……………………..J.
(Gyan Sudha Misra) New Delhi;
.........…………………….J.
March 25, 2014. (Pinaki Chandra Ghose)

Securities and Exchange Board of India V.M/s. Akshya Infrastructure Pvt. Ltd. April 25 2014 SC

Supreme Court of India


Sebi vs Akshya Infrastructure Pvt.Ltd on 25 April, 2014
S S Nijjar
Bench: Surinder Singh Nijjar, A.K. Sikri
           REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 6041  OF 2013




      Securities and Exchange Board of India         …Appellant


                                   VERSUS


      M/s. Akshya Infrastructure Pvt. Ltd.           ..Respondent


                               J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. This appeal under Section 15Z of the Securities and Exchange Board of India Act, 1992 (the ‘SEBI Act’) is directed against the judgment and final order of the Securities Appellate Tribunal, Mumbai (SAT) dated 19th June, 2013 rendered in Appeal No.3 of 2013, by which the appeal filed by M/s. Akshya Infrastructure Private Limited – the respondent herein against the directions issued by SEBI on 30th November, 2012 has been allowed.
2. The fundamental issue which arises in this appeal is whether an open offer voluntarily made through a Public Announcement for purchase of shares of the target company can be permitted to be withdrawn at a time when the voluntary open offer has become uneconomical to be performed.
3. In this case, the respondent herein, M/s Akshya Infrastructure Pvt. Ltd., is a part of the Promoter Group of MARG Limited (‘the Target Company’). For the years 2006-07, 2007-08 and 2010-11, the gross acquisition by the Promoter Group of shares in the Target Company was as under :
           “Financial Year          Percentage         Date  triggered
           on
               2006-07         14.34%                30.03.2007
               2007-08          5.64%                12.10.2007
               2010-11           7.11%                19.02.2011”


As a consequence of the foregoing acquisitions, the acquirers breached the 5% creeping acquisition limit and were required to comply with the provisions of Regulation 11 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 (hereinafter referred to as the “Takeover Regulations”).
4. On 20th October, 2011, the respondent made a voluntary open offer through a Public Announcement in major National Newspapers, under Regulation 11 of the Takeover Regulations wherein the public shareholders of the Target Company were given an opportunity to exit at an offer price of Rs.91/- per equity share. This price represents a premium of 10.3% over the average market closing price for the two weeks preceding the Public Announcement. The tendering period was scheduled to commence on 1st December, 2011 and conclude on 20th December, 2011. The consideration for the tendered shares was to be paid on or before 4th January, 2012. As on the date of the open offer, the list of Promoters/Promoter Group Entities was as under:-
           Sl. No.     Name
            1.         Mr. G.RK. Reddy
            2.         Mr. G. Raghava Reddy
            3.         Ms. V.P. Rajini Reddy
            4.         Mr. G. Madhusudan Reddy
            5.         GRK Reddy & Cons (HUF)
            6.         M/s. Global Infoserve Ltd.
            7.         M/s. Marg Capital Markets Limited
            8.         M/s. Exemplarr Worldwide Limited
9. M/s. Marg Projects and Infrastructure Limited (formerly Marg Holdings and Financial Services Limited)
10. M/s. Akshya Infrastructure Private Limited
5. However, due to certain events, which have been highlighted by both the parties, the respondent by letter dated 29th March, 2012 through M/s. Motilal Oswal Investment Advisors (P) Ltd., the Managers to the Issue (hereinafter referred to as the “Merchant Banker”), addressed to SEBI, sought to contend that the open offer in question had become outdated, thereby outliving its necessity and, therefore, the same ought to be permitted to be withdrawn. It was also contended that the amount of Rs.17.46 crores deposited by the respondent in an escrow account towards the open offer ought to be allowed to be withdrawn. The letter emphasizes that the public announcement was in nature of a voluntary open offer under Regulation 11 of the Takeover Regulations for consolidation of shareholding of the Promoter Group in the Target Company. The offer price of Rs.91/- per equity share of the Target Company was aimed at presenting a commercially reasonable opportunity to the public shareholders to exit and at the same time it was meant to consolidate the shareholding of the promoter in the Target Company. It was further stated that due to the unjustified delay by SEBI in taking a decision as to whether to approve the draft letter of offer has rendered the entire open offer exercise academic and meaningless. It was claimed that the transaction envisaged by the respondent is no longer justifiable on any ground, including the grounds of economic rationale and commercial reasonableness. The respondent sought the withdrawal of open offer made under the public announcement in terms of Regulation 27 of the Takeover Regulations. The exact prayer made by the respondent was as follows:-
“Consequently, we hereby seek withdrawal of the open offer made under the public announcement in terms of Regulation 27 of the Takeover Regulations (the benefit of which continue to accrue to us in terms of Regulation 35(2) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 “New Takeover Regulations”). Regulation 23(1)(d) of the New Takeover Regulations equally empowers withdrawal of an open offer.”
6. The appellant by letter dated 30th November, 2012 conveyed its comments in terms of the proviso to Regulation 16(4) of the Takeover Regulations on the draft letter of offer. Certain information was sought in the aforesaid letter. No reference was made in this letter with regard to the request made by the respondent for permission to withdraw the open offer. Rather it was stated as under :
“Please note that failure to carry out the suggested changes in the letter of offer as well as violation of provisions of the Regulations will attract appropriate action. Please also ensure and confirm that apart from above, no other changes are carried out in the letter of offer submitted to us.” The aforesaid comments of SEBI were challenged by the respondent before SAT in Appeal No.3 of 2013.
7. The respondent claimed that the impugned directions, ostensibly in the form of comments and observations on the draft letter of offer, reject the plea of the petitioner that the delay caused by SEBI in clearance of the draft letter of offer, now renders the open offer unviable and academic. Further, the impugned directions purport to bind the appellant and thereby constitute an order by which the respondent was aggrieved; and necessitated the appeal before the SAT.
8. In the appeal before SAT, the respondent claimed that the directions contained in the impugned letter of SEBI dated 30th November, 2012, incorrectly allege that prima facie requirement to make an open offer was triggered by the promoters and the promoter group entities of the Target Company (Promoter Group) under Regulation 11(1) of the Takeover Regulations on three past occasions, viz. March 30, 2007, October 12, 2007 and February 19, 2011 (Alleged Triggers). It was further claimed that the directions to revise the offer price, on account of the requirement to make open offers pursuant to the alleged triggers was illegal and without jurisdiction. It was also claimed that the directions contained in the impugned letter has caused severe civil consequences to the respondent. It was also claimed that the submissions on the issues presented by the respondent before the appellant have neither been considered nor appreciated.
9. The appeal was contested by the appellant by filing a detailed affidavit on 12th April, 2013. As noticed above, the aforesaid appeal has been allowed by SAT in terms of prayer clause (a),
(b) and (c) of Para 7 of the appeal filed by the respondent, which are as under:-
“(a) That this Hon’ble Tribunal be pleased to set aside the Impugned Direction;
(b) That this Hon’ble Tribunal be pleased to order and direct the respondent to allow the appellant to withdraw the open offer without any adverse orders or directions against the appellants or the Promoter Group;
(c) That this Hon’ble Tribunal be pleased to order and direct the respondent to allow the appellant to withdraw the amount of Rs.17.46 crores deposited in escrow in lieu of the Open Offer.”
10. It was, however, made clear that SAT has not made any observation on the merits of the issue regarding the three alleged triggers and the contentions of the parties in this regard were kept open. Aggrieved by the aforesaid impugned judgment, SEBI has filed the present Civil Appeal.
11. We have heard the learned counsel for the parties at length.
12. Mr. C.U. Singh, learned senior counsel appearing for the appellant, has submitted that the issues raised by the appellant herein are squarely covered against the respondent by an earlier judgment of this Court in Nirma Industries Ltd. & Anr. Vs. Securities and Exchange Board of India[1].
13. At this stage, Mr. R.F. Nariman, learned senior counsel appearing for the respondent, has raised certain preliminary objections with regard to the maintainability of the appeal. He submits that the directions issued by the SEBI are based on a misconception of the law applicable to the peculiar facts of this case. He submits that firstly: this is a case where the respondent had made voluntary open offer. It was not a case of an open offer made because of a triggered mechanism under the Takeover Regulations; secondly: since the open offer was a pure and simple voluntary offer, no prejudice has been caused to any shareholder; thirdly: the present case does not fall within the ambit of Regulation 27 of Takeover Regulations. According to Mr. Nariman, Regulation 27 ought to be read in a manner that it would only govern mandatory open offers and not voluntary open offers; fourthly: SEBI has without any justification intermingled acquisition of shares by the respondent on the three earlier occasions in 2006-07, 2008-09 and 2009-10; fifthly: SEBI unjustifiably and arbitrarily took 13 months to offer comment(s) on the draft letter of offer. Even then the clarification sought by the appellant pertained to the past alleged triggers which had no connection with the voluntary open offer. It is submitted that even if the case of the respondent falls within the ambit of Regulation 27, the withdrawal is permissible in such circumstances which in the opinion of SEBI (the Board) merit withdrawal; sixthly: the judgment in Nirma Industries (supra) is distinguishable; lastly: the judgment in Nirma Industries (supra) is incorrect and needs reconsideration.
14. Mr. C.U. Singh, learned senior counsel appearing for the appellant, has submitted that the correspondence exchanged between the parties would show that the delay in consideration of the letter of offer was caused by the respondent by not giving the necessary information. He relies on the voluminous correspondence between the parties in support of his submission which, if necessary, shall be considered later. His second submission is that the request for withdrawal of open offer is to be considered strictly under the provision of Regulation 27 of the Takeover Regulations.
15. The respondent had made a Public Announcement on 20th October, 2011 which clearly informed the public shareholders of the Target Company that they were being given an opportunity to exit at an offer price of Rs.91/- per equity share, which represented a premium of 10.3% over the average market closing price for the two weeks preceding the Public Announcement. This Public Announcement and the Public Offer was sought to be withdrawn on 29th March, 2012. He points out that in the aforesaid letter; the request for withdrawal is specifically made under Regulation 27 of the Takeover Regulations. Therefore, Mr. Nariman cannot be permitted to, now, submit that Regulation 27 is not applicable to the open offer in the present case.
16. Mr. C.U. Singh then submits that the respondents have consciously proceeded with an open offer and they have rightly not been permitted to withdraw the same by the appellant. The next submission of Mr. C.U. Singh is that Regulation 27 deals with only withdrawal of ‘Public Offer’ and not withdrawal of ‘Public Announcement’. In any event, according to learned senior counsel, submission with regard to withdrawal of Public Announcement has been made, only, at the time of arguments before this Court. It was neither pleaded nor raised before the SEBI/SAT, nor even in the counter affidavit before this Court. He next submitted that under the provisions of Regulation 27, public offer is a rule and withdrawal is an exception. Relying on the interpretation of Regulation 27 in Nirma Industries Ltd.(supra), he submits that an offer can be permitted to be withdrawn only if it becomes virtually impermissible to carry out. Permitting public offers once made to be withdrawn on the ground that it has become uneconomical would compromise the integrity of the Securities Market. This would be contrary to the scheme of the Takeover Code. Mr. C.U.
Singh then submits that there is no distinction under Regulation 27 between the voluntary open offer and mandatory open offer which is the result of a triggered acquisition. Relying on Regulations 11 to 14 of the Takeover Regulations, he submits that all the different types of open offers are set out therein. Each one of the open offers has the same effect on shareholders and the market. Therefore, the provisions contained in Regulation 27 have to be strictly adhered to in considering the request for withdrawal of the open offer. It is further submitted that the appellant had fixed the offer price under the relevant regulations and in accordance with the law laid down by this Court in Clariant International Ltd. & Anr. Vs. Securities & Exchange Board of India[2].
17. According to Mr. C.U. Singh, in normal circumstances, withdrawal can only be made under Regulation 27(1)(b), (c) and (d). He submits that in the letter dated 29th March, 2012, the respondent claims that the offer has become “outdated due to the sheer efflux of time”. The second reason given is the delay in clearance of open offer from SEBI. The letter also indicates that the respondent does not agree with the views of the SEBI on the fact situation. Another reason given is that “even if the SEBI were to approve the draft letter of offer today, the open offer exercise would be entirely academic and meaningless.” Another reason given is that “the transaction then envisaged by us is no longer justifiable on any ground including grounds of economic rationale and commercial reasonableness.” All these factors, according to Mr. C.U. Singh, will not be covered by any of the clauses in Regulation 27(1)(b)(c)(d). He then submitted that even if there is a delay by SEBI, the ordinary investor in shares of the Target Company should not be made to suffer. According to Mr. C.U. Singh, the controversy raised in the appeal is squarely covered against the respondent by judgment of this Court in Nirma Industries Ltd. (supra).
18. Mr. Nariman has rebutted the aforesaid submissions of Mr. C.U. Singh. He submits that the single most important distinction between Nirma and this case is that it pertains to a voluntary public offer. This Court had no occasion to deal with a voluntary public offer in Nirma Industries Ltd. (supra). In reply to the other submissions made by Mr. C.U. Singh, Mr. Nariman has also relied on some correspondence. He has also relied upon a table to substantiate the submission that the law laid down in Nirma Industries would not be applicable in the facts and circumstances of this case. Dealing with the issue of delay, it is submitted by Mr. Nariman that there was an unjustifiable and inexplicable delay by SEBI in issuing its comments on the draft letter of offer. In support of this submission, he has relied on some correspondence.
19. He relies on letter dated October 20, 2011, whereby the respondent made a voluntary open offer by Public Announcement under Regulation 11 of the Takeover Regulations. He points out that Clause 11.4 of the Public Announcement clearly states that voluntary open offer can be withdrawn by the respondent at any time. He then points out that on 25th October, 2011, SEBI called upon the respondent to provide information on the changes in shareholding and capital build up of the Target Company, along with compliance of the SEBI Regulations. He submits that although the information sought pertains to the earlier acquisition it was duly provided on November 4, 2011 and November 8, 2011. Mr. Nariman submits that under Regulation 18(1) of the Takeover Regulations, the draft letter of offer is required to be filed with SEBI well within 14 days from the date of the Public Announcement. Once the letter of offer is filed, SEBI was required to dispatch the same to the shareholders immediately after 21 days. During 21 days, SEBI is permitted to stipulate the changes required to be made in the letter of offer which the Merchant Banker and the Acquirer shall incorporate in the letter of offer, before it is dispatched to the shareholders. In case, SEBI receives a complaint or it initiates an enquiry or investigation in respect of public offer, it can call for a revised letter of offer. In this case, he submits that the draft letter of offer was given on October 28, 2011 well within 14 days period stipulated under Regulation 18(1). But SEBI did not issue its comments on the draft letter of offer within 21 days, as required. Not only there was a non-compliance of Regulation 18(1) but there was no occasion to invoke proviso to Regulation 18(2). SEBI did not inform or advise the respondent to revise the draft letter of offer on account of any inadequacy in the disclosure made by the respondent in the draft letter of offer in respect of the voluntary offer. All the queries were related to the past alleged triggers. These alleged triggers were wholly unrelated to the voluntary open offer for which the draft letter of offer was filed with the appellant. He then pointed out that by letter dated 17th November, 2011, the appellant again sought the same clarification on the alleged triggers, as stated in its letter dated November 11, 2011. He submitted that the Merchant Banker and the respondent provided all explanation regarding these acquisitions on November 28, 2011. The letter dated November 24, 2011 of the respondent was forwarded to the appellant by the Merchant Banker on November 28, 2011. This letter gave date wise explanation on all the issues raised as to why no open offer was made pertaining to the alleged triggers, as there was no violation of Regulation 11(1) and 11(2) of the Takeover Regulations. This explanation was reiterated on December 14, 2011 by the respondent/Promoters but there was no response from the appellant to any of the aforesaid letters. This led the respondent to a reasonable belief that the explanation had been accepted. Subsequently, there was a telephonic request by the appellant to provide the same information on the alleged triggers in various formats. The respondent duly re-arranged the same information in the desired format and provided the same to the appellant on January 13, 2012, January 16, 2012 and February 3, 2012. Inspite of all this, still there were no comments from the SEBI. Mr. Nariman emphasized that the unjustifiable, inexplicable and inordinate, delay on the part of the appellant in issuing comments on the draft letter of offer created a situation wherein it was impossible for the respondent to implement the voluntary open offer. By that time, the underlying decision to consolidate shareholding had become infructuous by sheer efflux of time. It was under these circumstances that the respondent intimated its decision to withdraw its voluntary open offer and sought withdrawal of the same in terms of the Regulation 27 of the Takeover Regulations.
20. It was pointed out by Mr. Nariman that the respondent specifically and expressly sought opportunity of a personal hearing on the aforesaid request for withdrawal, the appellant did not revert on the request. The respondent once again furnished the same information on the alleged triggers in different formats as required by the appellant through communications dated April 12, 2012; April 20, 2012;
May 10, 2012; May 21, 2012; June 6, 2012 and July 5, 2012. After a period of more than 13 months, from the date of filing of the draft letter of offer and after more than 8 months from the date of request for withdrawal, the appellant issued the impugned letter dated November 30, 2012. Mr. Nariman points out that the directions issued in the impugned letter are wholly unjustified. He points out to the following two directions :-
(a) Go ahead with the voluntary open offer on account of some alleged triggers (for creeping acquisitions under Regulation 11 of the Takeover Code, 1997) in the past i.e. 2006-07; 2007-08 and 2010-11.
(b) make an open offer with upward revision in price per share. The share prices offered by the respondent in 2009 were RS.91.00 per equity share and as on date the prices is RS.315.90 per equity share.
21. Mr. Nariman submitted that SAT without going into the merits and demerits of the alleged earlier acquisitions, has left it open for SEBI to take appropriate action in accordance with law with regard to the aforesaid three acquisitions. Therefore, clearly the aforesaid three acquisitions have no connection whatsoever with the voluntary offer under consideration in these proceedings.
22. The next submission of Mr. Nariman is the foundation of all his other submissions. According to Mr. Nariman, there is a fundamental difference between a mandatory public offer and a voluntary open offer. It cannot be placed on the same pedestal. According to learned senior counsel, in a mandatory public offer there exists an underlying transaction which triggers the Takeover Code under which the shareholders obtain a right to exit from the company. However, in a voluntary open offer, no such right accrues to the shareholders to exit the company, since the offer is not the result of a triggered acquisition. In the present case, the action of SEBI, according to Mr. Nariman, is contrary to Regulation 18. The letter of offer was not dispatched to the shareholders as per Regulation 18(1). Regulation 15(4) deems that the offer is made on the date on which the Public Announcement has appeared in any newspaper. But according to Mr. Nariman, this deeming fiction is for the purpose of price fixation for the offer. It has nothing to do with Regulation 18 which is to dispatch the actual offer to the shareholders. Therefore, according to Mr. Nariman, reliance placed by Mr. C.U. Singh on the expression “offer once made” in Regulation 27 is misconceived. This expression has to be understood in terms of Regulation 18. Since Regulation 18 had not been complied with and there was no dispatch of the letter of offer to the shareholders, there was no question of any prejudice being caused to the interest of the shareholders. Mr. Nariman then submits that because of the inaction on the part of SEBI, the respondent would be squarely covered under Regulation 27(1)(b). The approval of the letter of offer by the appellant is statutory in nature. Since it had not been granted within the stipulated period of time, the respondent was entitled to assume that it had been refused. According to Mr. Nariman, it has been erroneously submitted by Mr. C.U. Singh that the claim of the respondent is not covered under Regulation 27(1)(b). Mr. Nariman then submits that the judgment in Nirma Industries is not applicable in the facts and circumstances of this case. Finally, he has submitted that the judgment in Nirma Industries (supra) requires reconsideration. In support of this submission, he submits that Regulation 27 has to be interpreted by keeping in mind the earlier Regulation 27(1)(a). In Nirma Industries, this Court has held that Regulation 27 (b), (c) and (d) are all in the nature of impossibility. Mr. Nariman made a mention about Regulation 27(1)(a) which was omitted by the SEBI (Substantial Acquisition of Shares and Takeovers) (Second Amendment) Regulations, 2002 with effect from September 9, 2002. Prior to deletion, it read as under :
“-(a) the withdrawal is consequent upon any competitive bid,” Based on this, he submits that economic viability of public offer was the genus of Regulation 27. The facts of this case would clearly place the request of the respondent for withdrawal of the public offer in the realm of impossibility. Mr. Nariman has submitted that for the interpretation of Regulation 27, the ejusdem generis principle would not apply as there is no common genus between Clauses 27(1)(b)(c) and (d).
23. Mr. C.U. Singh in rejoinder has submitted that in view of the law laid down in Nirma Industries, the public offer made by the respondent cannot be permitted to be withdrawn. Earlier incidence of the alleged triggers can be relied upon. According to him, the price has to be fixed on the basis of the public announcement/offer. He submits that Regulation 18(1) talks of 14 days of the Public Announcement. Furthermore, public offer cannot be said to be made only on dispatch of the letter of offer to the individual shareholders. The impact on the securities market would follow the public announcement. He reiterates that even the withdrawal letter seeks permission to withdraw the Public Offer under Regulation 27. Finally, he submits that the interpretation of Regulation 27 rendered in Nirma Industries Ltd. (supra) is correct. It fully applies to the facts of the present case. It is neither distinguishable nor does it require reconsideration.
24. We have considered the submission made by the learned counsel for the parties.
25. Factually, it cannot be denied that in the years 2006-07, 2007-
08 and 2010-11, the respondent had acquired shares in excess of 5% which breached the 5% creeping acquisition limit. In our opinion, the respondent was required to comply with Regulation 11 and make a Public Announcement to acquire shares in accordance with law. The respondent admittedly not having complied with Regulation 11, in our opinion, the appellant was perfectly justified in taking the non-compliance into consideration whilst considering the feasibility of the public offer made on 20th October, 2011.
26. With regard to delay, we do not find much substance in the submission of Mr. C.U. Singh. Mr. Singh has sought to explain the delay on the ground that information sought by the appellant was not given by the respondent. In our opinion, this was no ground for the appellant to delay the issuance of comments on the letter of offer, especially not for a period of 13 months. In the event the information was not forthcoming, the appellant had the power to refuse the approval of the public offer. It is true that under Regulation 18(2), SEBI was required to dispatch the necessary letters to the shareholders within a reasonable period. It is a matter of record that the comments were not offered for 13 months. Such kind of delay is wholly inexcusable and needs to be avoided. It can lead to avoidable controversy with regard to whether such belated action is bona fide exercise of statutory power by SEBI. By adopting such a lackadaisical, if not callous attitude, the very object for which the regulations have been framed is diluted, if not frustrated. It must be remembered that SEBI is the watchdog of the Securities Market. It is the guardian of the interest of the shareholders. It is the protective shield against unscrupulous practices in the Securities Market. Therefore, SEBI like any other body, which is established as a watchdog, ought not to act in a lackadaisical manner in the performance of its duties. The time frame stipulated by the Act and the Takeover Regulations for performing certain functions is required to be maintained to establish the transparency in the functioning of SEBI.
27. Having said this, we are afraid such delay is of no assistance to the respondent. It will not result in nullifying the action taken by SEBI, even though belated. Ultimately, SEBI is charged with the duty of ensuring that every public offer made is bona fide for the benefit of the shareholders as well as acquirers. In the present case, SEBI has found that permitting the respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is no longer economically viable to continue with the offer. Mr. Nariman has referred to a tabular statement and data to show that there is no substantial variation in the share prices that ensued making of the public offer. Having seen the table, we find substance in the submission of Mr. Nariman that there is hardly any variation in the shares of the Target Company from 20th October, 2011 till 30th November, 2011. The variation seems to have been between Rs.
78.10 (on 24.11.2011) and Rs. 87.60 (on 20.10.2011). Such a variation cannot be said to be the result of the public offer. But this will not detract from the well known phenomena that Public Announcement of the public offering affects the securities market and the shares of the Target Company. The impact is immediate.
28. We are unable to agree with the submission of Mr. Nariman that Regulation 27 would not be applicable to a voluntary public offer. A perusal of Regulation 27(1) makes it patently clear that Regulation 27(1) reads “no public offer, once made, shall not be withdrawn except under the following circumstances.” Accepting Mr. Nariman’s submission would be to reconstruct the aforesaid provision. This Court, or any other court, whilst construing the statutory provision cannot reconstruct the same. The plain reading of the aforesaid regulation makes it clear that no public offer whether it is voluntary or triggered by Regulation 11 can be withdrawn, unless it satisfies the circumstances set out in Regulation 27(1)(b), (c) and (d). There can be no distinction between a triggered public offer and a voluntary public offer. Both have to be considered on an equal footing. We find substance in the submission made by Mr. C.U. Singh that Regulation 18(2) has no relevance to the case projected by the respondents having singularly failed to give the necessary information to SEBI with regard to the earlier three acquisitions.
29. We also do not agree with Mr. Nariman that Regulation 27 has to be read in the context of the Regulation as it existed when it was first enacted. As noticed earlier, Regulation 27(1)(a) before its deletion on September 9, 2002 permitted the public offer to be withdrawn, consequent upon any competitive bid. We see no reason to differ from the view taken in Nirma Industries Ltd. (supra) wherein we have observed as follows:
“62. A bare perusal of the aforesaid Regulations shows that Regulation 27(1) states the general rule in negative terms. It provides that no public offer, once made, shall be withdrawn. Since clause (a) has been omitted, we are required to interpret only the scope and ambit of clauses (b), (c) and (d). The three sub-clauses are exceptions to the general rule and, therefore, have to be construed very strictly. The exceptions cannot be construed in such a manner that would destroy the general rule that no public offer shall be permitted to be withdrawn after the public announcement has been made. Clause (b) would permit a public offer to be withdrawn in case of legal impossibility when the statutory approval required has been refused. Clause (c) again provides for impossibility when the sole acquirer, being a natural person, has died. Clause (b) deals with a legal impossibility whereas clause (c) deals with a natural disaster. Clearly clauses (b) and (c) are within the same genus of impossibility. Clause (d) also being an exception to the general rule would have to be naturally construed in terms of clauses
(b) and (c). Mr Divan has placed a great deal of emphasis on the expression “such circumstances” and “in the opinion” to indicate that the Board would have a wide discretion to permit withdrawal of an offer even though it is not impossible to perform. We are unable to accept such an interpretation.”
30. The submission with regard to the non-applicability of ejusdem generis for interpretation of the Takeover Regulations has been considered and rejected in Nirma Industries Ltd. (supra) (Paragraphs 63 to 71).
31. We are also not impressed by the submission of Mr. Nariman that it has now become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. (supra). We reiterate our opinion in Nirma Industries Ltd. (supra) that under Clause 27(1)(b)(c) and (d), a Public Offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the Public Offer. In fact, the very purpose for deleting Regulation 27(1)(a) was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically not viable. We are of the considered opinion that the distinction sought to be made by Mr. Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted.
32. We also do not find any merit in the submission of Mr. Nariman that the delay of 13 months by SEBI in issuing the impugned directions would permit the respondent to withdraw the Public Offer under Regulation 27(1)(b). The consideration by SEBI is as to whether a Public Offer is in conformity with the provisions of the SEBI Act and the Takeover Regulations. Delay in performance of its duties by SEBI can not be equated to refusal of the statutory approval requires from other independent bodies, such as under the RBI, Taxation Laws and other regulatory statutes including Foreign Exchange Regulations. Delay by SEBI in taking a final decision in making its comments on the letter of offer would not fall under Regulation 27(1)(b).
33. This now brings us to the submission of Mr. Nariman that there was a breach of Rules of Natural Justice. It is matter of record that the respondent had asked for an opportunity of hearing but none was granted. But the question that arises is as to whether this is sufficient to nullify the decision of SEBI. In our opinion, the respondent has failed to place on the record either before SAT or before this Court the prejudice that has been caused by not observing Rules of Natural Justice. It is by now settled proposition of law that mere breach of Rules of Natural Justice is not sufficient. Such breach of Rules of Natural Justice must also entail avoidable prejudice to the respondent. This reasoning of ours is supported by a number of cases. We may, however, refer to the law laid down in Natwar Singh Vs. Director of Enforcement & Anr.,[3] wherein it was held that “there must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice.”
34. All the information sought by SEBI related to the three earlier acquisitions when the creeping limit for acquisition has been breached for triggering the mandatory Takeover Regulations. In appeal, SAT has left the question with regard to the earlier three acquisitions open and to be decided in accordance with law. Therefore, clearly no prejudice has been caused to the respondent.
35. Finally, we are unable to accept the submission of Mr. Nariman that the ratio of law as declared in Nirma Industries Ltd. (supra) would not be applicable to the facts and circumstances of this case. As pointed out earlier, we do not accept the distinction sought to be made by Mr. Nariman with regard to voluntary open offer and mandatory open offer which is the result of a triggered acquisition. The consequences of both kinds of offers to acquire shares in the Target Company, at a particular price, are the same. As soon as the offer price is made public, the securities market would take the same into account in all transactions. Therefore, the withdrawal of the open offer will have to be considered by the Board in terms of Regulation 27(1)(b)(c) and (d). Further, the deletion of Regulation 27(1)(a) does not, in any manner, advance the case of the respondent. It rather reinforces the conclusion that an open offer once made can only be withdrawn in circumstances stipulated under Regulation 27(1)(b)(c) and (d). We also do not agree with Mr. Nariman that voluntary open offer made by the respondent ought to be permitted to be withdrawn under Regulation 27(1)(b) for the reasons already stated. We have already come to the conclusion that the delay in offering comments by the Board on the letter containing voluntary open offer, though undesirable, is not fatal to the decision ultimately taken by the Board. We, therefore, reiterate our conclusion in Nirma Industries (supra).
36. We also do not find substance in the submission of Mr. Nariman that the judgment in Nirma Industries (supra) needs reconsideration. In our opinion, the ejusdem generis principle is fully applicable for the interpretation of Regulation 27(1)(b)(c) and (d) as there is a common genus of impossibility. This impossibility envisioned under the aforesaid regulation would not include a contingency where voluntary open offer once made can be permitted to be withdrawn on the ground that it has now become economically unviable. Accepting such a submission, would give a field day to unscrupulous elements in the securities market to make Public Announcement for acquiring shares in the Target Company, knowing perfectly well that they can pull out when the prices of the shares have been inflated, due to the public offer. Such speculative practices are sought to be prevented by Regulation 27(1)(b)(c) and (d), that is precisely the reason why Regulation 27(1)(a) was deleted. Merely because there has not been any substantial change in the price of shares in this particular case, would not, in any manner, invalidate the conclusion reached in Nirma Industries (supra).
37. Last but not least, we are not able to approve the approach adopted by SAT in adopting the Issue of Capital and Disclosure Requirements Regulations, 2009 (ICDR) Regulation for interpreting the provisions contained in Regulation 27 of the Takeover Regulations. The regulations in Takeover Code have to be interpreted by correlating these regulations to the provisions of the SEBI Act.
38. In view of the above, the appeal is allowed. The impugned order passed by the SAT dated 19th June, 2013 in Appeal No.3 of 2013 is set aside and the directions issued by the appellant in the letter dated 30th November, 2012 are restored.
……………………………….J.
[Surinder Singh Nijjar] 
………………………………..J.
[A.K.Sikri] New Delhi;
April 25, 2014.