DALMIA CEMENT (BHARAT) LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) This intra-court writ appeal is preferred against the judgment and final order dtd. 28/6/2023 passed by the learned Single Judge in connection with Writ Petition (Civil) 76/2022. The appellant in this case is Dalmia Cement (Bharat) Limited. The Union of India [Ministry of Corporate Affairs], the Competition Commission of India, Director General of Competition Commission of India and Oil and Natural Gas Corporation Limited [ONGC for short] are arrayed as Respondent Nos. 1, 2, 3 and 4 respectively, and will hereinafter also be referred to as respondent Nos. 1, 2, 3 and 4, for brevity.

(2.) Brief facts of this case are that an information u/s 19[1][a] of the Competition Commission Act, 2002 (the Competition Act for short) was filed before the respondent No. 2 by the respondent No. 4 [ONGC] on 31/7/2020 alleging cartelisation during the bidding process of four tenders floated by ONGC for the purchase of Oil Well Cement [hereinafter referred to as OWC] in the years 2013, 2015, 2017 and 2018. The aforesaid information was registered and numbered as Case No. 35/2020 against Shree Digvijay Cement Co. Ltd, Dalmia Cement Bharat Ltd (appellant herein) and India Cements Ltd as opposite parties No, 1, 2 and 3. The respondent No. 2, thereafter vide order dtd. 18/11/2020 in the purported exercise of powers u/s 26(1) of the Act formed a prima facie opinion that the appellant and some other cement manufacturing companies rigged through collusion /cartelisation four tenders for the supply of OWC to ONGC for the aforementioned years and fixed prices and allocated various consignees amongst themselves. It was observed by the respondent No. 2 that the appellant and some other cement manufacturing companies have prima facie violated provisions of Ss. 3[3][a], 3[3][b], 3[3][c] and 3[3][d] read with Sec. 3[1] of the Act. The Respondent No. 2 (also referred to as the CCI or the Commission for brevity) vide order dtd. 18/11/2020 u/s 26 of the Act directed the respondent No. 3 to investigate into the matter and submit report within a period of 60 days from the date of receipt of the order. It was also further directed that if during investigation, involvement of any other entities could be unearthed then the respondent No. 2 shall also ascertain the role, if any of the person/persons who are in charge of the affairs of such entities or with whose consent or connivance, the alleged conduct of the opposite-parties took place. It is stated that a year after the order u/s 26[1] of the Act was passed, the respondent No. 3 issued notice dtd. 8/11/2021 u/s 36[2] read with Sec. 41 of the Act directing the appellant to furnish information as was enumerated in the notice. The copy of the order dtd. 18/11/2020 was not annexed with the notice. The appellants were directed to furnish the information by 19/11/2021.

(3.) It is contended that the appellant was unaware of the investigation initiated under the direction of respondent No. 2 vide order dtd. 18/11/2020 till the receipt of notice dtd. 8/11/2021. Thereafter, an application for inspection of record was filed by the appellant on 15/11/2021 and the appellant was allowed to examine the records vide order dtd. 24/11/2021. Although the appellant company filed an application for certified copies of records on 25/11/2021, it was not provided with the full set of documents filed by the ONGC [Respondent No.4] as certain excerpts of opinion as well as minutes of the meeting of the tender committee were treated as confidential. After a second request for documents the appellant received an oral communication from the office of the respondent No. 2, CCI, on 28/11/2021 denying appellant's request, on the grounds of confidentiality.