T. Takano vs Securities and Exchange Board of India

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. 487-488 of 2022

T. Takano … Appellant

Versus

Securities and Exchange Board of India & Anr. … Respondents

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

A. Factual Background ..........................................................................................3

B Submissions of Counsel...................................................................................10

C. Analysis..........................................................................................................16

C.1 Regulatory Framework of PFUTP Regulations ..........................................16

C.2 Duty to Disclose Investigative Material ......................................................23

C.3. Exceptions to the Duty to Disclose............................................................43

D. Conclusion ......................................................................................................47

PART A

A. Factual Background

1 By a judgment dated 29 September 2020, a Division Bench of the

Bombay High Court dismissed the petition instituted by the appellant under

Article 226 of the Constitution for challenging a show cause notice which was

issued by the first respondent1 alleging a violation of the provisions of the SEBI

(Prohibition of Fraudulent and Unfair Trade Practices) Regulations 20032

. A

petition seeking a review of the judgment of the Division Bench was disposed of

by an order dated 22 October 2020. The appellant moved a Special Leave

Petition against the judgment in the writ petition and the order in review. The

principal issue is whether an investigation report under Regulation 9 of the

PFUTP Regulations must be disclosed to the person to whom a notice to show

cause is issued.

2 The appellant was employed as the Managing Director3 and Chief

Executive Officer4 in Ricoh India Limited5

, a public listed company, for the

financial years 2012-13, 2013-14 and 2014-15, till 31 March 2015. In 2016, BSR

& Co. were appointed as statutory auditors of the Company. The auditors raised

a suspicion regarding the veracity of the financial statements of the Company for

the quarters that ended on June 30, 2015 and September 30, 2015. The Audit

Committee of the Company appointed Price Water House Coopers Private

Limited6 to carry out a forensic audit. PWC submitted a preliminary audit report

on 20 April 2016. The Company addressed a communication to the first

1 “SEBI” or the “Board” 2 “PFUTP Regulations” 3 “MD” 4 “CEO” 5 “Company”

6 “PWC”

PART A

respondent on the same day stating that the financial statements for those

quarters did not reflect the true affairs of the Company and requested the first

respondent to carry out an independent investigation on possible violations of the

provisions of the PFUTP Regulations. The final report submitted by PWC was

forwarded by the Company to the first respondent on 29 November 2016.

3 The first respondent initiated an investigation. During the course of the

investigation, summons was issued to Manoj Kumar (then MD & CEO for the

financial year of 2015-16), Arvind Singhal (then Chief Financial Officer) and Anil

Saini (then Senior Vice President and Chief Operating Officer). The Company in

its letter dated 8 June 2016 submitted that it suspected Manoj Kumar, Arvind

Singhal and Anil Saini for their involvement in misstating the financial affairs. The

first respondent in its ex parte interim order–cum–show cause notice prima facie

found two others, including the appellant, responsible for facilitating the

misstatements of the financial position. With regard to the role of the appellant, it

was noted:

“On examination of the Organization Structure of Ricoh

for past years, it is noted that T. Takano was the MD &

CEO of the Company till March 31, 2015. It is also noted

that the mandate for PwC investigation was restricted to

the half-year ended September 30, 2015 and not

extended to all the years when the misstatements

occurred. If Manoj Kumar, who was MD & CEO in FY

2015-16 was held responsible for the fraud, it is only

logical that T. Takano as the previous MD & CEO (during

whose tenure the fraud actually started) was also

responsible for the misstatements. It appears that by

restricting the investigation period mandated to PwC, the

Company intended to restrain PwC from examining the

transactions of the previous years and thereby ring-fence

the earlier MD & CEO, T. Takano.”

PART A

4 Based on the investigation, it was noted that the financial misstatements

commenced from 2012-13 and the Company suffered a loss due to, inter alia,

transfers to third parties, write-offs and a sale made to Fourth Dimension

Solutions Limited7 without inventory. It was further noted that the share price of

the Company had gone up due to the misstatements. Hence, it was observed

that the appellant, along with five others, has prima facie violated the provisions

of Section 12A(a), 12(A)(b) and 12A(c) of the Securities and Exchange Board of

India Act 19928 read with Regulations 3(b), 3(c), 3(d), 4(1), 4(2)(e), 4(2)(k) and

4(2)(r) of the PFUTP Regulations. Hence, the first respondent issued the

following directions under Sections 11(1), 11(4) and 11B of the SEBI Act and

Regulation 11 of the PFUTP Regulations:

(i) The appellant and the other five key managerial persons were

restrained from accessing the securities market or buying, selling or

otherwise dealing in the securities market ;

(ii) An independent audit firm was appointed for conducting a detailed

forensic audit of the books of accounts of the company from the

financial year 2012-13 ;

(iii) The independent audit firm was called upon to submit a report to the

first respondent within three months from the date of appointment; and

(iv) A show cause notice for directions under Sections 11, 11(4) and 11 (B)

of the SEBI Act, including directions for restraining/prohibiting him from

accessing the securities market and buying, selling or otherwise

dealing in securities in any manner.

7 “FDSL”

8 “SEBI Act”

PART A

5 By his letters dated 6 June 2018 and 28 June 2018, and at a personal

hearing on June 11, 2018 the appellant submitted that:

(i) He had no knowledge of the purported transactions and/or the

misstatements in the books of account;

(ii) The inclusion of his name in the interim order-cum-show cause notice

was speculative, based on the premise that since the MD and CEO of

financial year 2015-16 has been held prima facie responsible, the

appellant who was the MD and CEO during the previous year must also

be held responsible; and

(iii) The financial team was solely responsible for preparing financial

statements. These statements were then examined by the statutory

auditors of the company. The version subsequently prepared was the

final version of the financial statement. Therefore, he had no knowledge

of the intricacies of the financial statements.

6 By an order dated 16 August 20189

, the first respondent confirmed the

directions issued in the ex parte interim order dated 12 February 2018. The order

notes that though the facts indicate large-scale irregularities in business

transactions, the time span of the irregularities and the exact role of the noticees

are not fully ascertained, and therefore, “it would be premature to give credence

to the submissions of the individual noticees”. It was also observed that “a clear

picture regarding the financial affairs of the company and the role of various

noticees in the alleged fraud is yet to emerge pending such investigation.” The

time for submission of the forensic report by the first respondent was extended to

9 “Confirmatory order”

PART A

30 September 2018. SEBI appointed Pipara & Co. LLP on 20 February 2019 to

conduct a forensic audit of the books of account of the Company. The report of

the forensic auditors was submitted on 25 October 2019.

7 The appellant challenged the confirmatory order before the Securities

Appellate Tribunal10, Mumbai. The appeals were allowed and the order against

the appellant was quashed on 29 January 2020 on the grounds that:

(i) The confirmatory order is based on a suspicion about the role of the

appellant;

(ii) The submissions of the appellant were not dealt with appropriately;

(iii) Since the company is in liquidation, the appellant is not in a position to

influence decisions; and

(iv) The appellant cannot be prevented from dealing in the securities

market when the appellant is held to be vicariously liable due to the

position he held as MD/CEO.

The tribunal, however, directed that the first respondent is at liberty to issue a

fresh show cause notice if the evidence against the appellant is made available

through the forensic report or through the first respondent’s investigation.

8 A fresh show cause notice was issued to the appellant on 19 March 2020

under the provisions of Sections 11(1), 11(4), 11(4A), 11B(1) and 11B(2) and

15HA of the SEBI Act and Section 12A(2) read with Section 23H of the Securities

Contracts (Regulation) Act 195611 based on the forensic audit report and

10 “Tribunal” 11 “SCRA”

PART A

investigation conducted by the first respondent. With regard to the appellant, it

was alleged that :

“… Mr. T. Takano, during whose tenure the business

transactions with FDSL started by virtue of his position as

MD & CEO of Ricoh during FY 2012-13 to FY 2014-15,

was actively involved in committing the fraud and had

knowingly restricted the mandate given to PwC to six

month so as to succeed in hiding his role in the

commission of fraud of publishing untrue financial

statements of Ricoh which resulted in misleading the

investors about the financial performance of the company

and thereby resulted in inducement to trades in the scrip.

The said acts of the Noticee no. 2 are alleged to be in

violation of regulations 3 (b), (c), (d), 4(1) and 4(2)(e), (f),

(k) and (r) of SEBI (PFUTP) Regulations, 2003 and

clause 49(V) read with 41(Il)(a) of the erstwhile Listing

Agreement.”

9 The appellant claims that he received the show cause notice by email on

4 August 2020. The appellant responded to the show cause notice on 6 August

2020 stating that though he had received the forensic audit report submitted by

Pipara & Co. LLP, he had not received the report of the investigation conducted

by SEBI. The appellant sought an opportunity to inspect the following records:

“[…] including but not limited to all material on which

reliance was placed Pipara & Co. LLP for the purpose of

preparing the forensic audit report, all material on which

reliance has been placed while issuing the Show Cause

Notice, and on which reliance is intended to be placed

while making any adjudication on the Show Cause Notice

(“material”).”

10 By its communication dated 13 August 2020, the first respondent stated

that the investigation report is an ‘internal document’ which cannot be shared.

The appellant was provided time until 9 August 2020 to inspect the other

documents. The first respondent enclosed soft copies of the annexures to the

forensic report and called upon the appellant to submit a reply. The appellant

PART A

reiterated the demand to inspect the investigation report. By an email dated 4

September 2020, the appellant was informed that the investigation report of SEBI

was not relied on to issue the show cause notice and hence, would not be

provided.

11 The appellant filed a writ petition before the Bombay High Court

challenging the show cause notice which was issued on 19 March 2020. In the

alternative, inspection of all documents relied on to issue the show cause notice

was sought. The appellant submitted before the High Court that to non-disclosure

of all relevant documents relied on to issue the show cause notice violated the

principles of natural justice.

12 By its judgment dated 29 September 2020, the High Court held that the

investigation report prepared under Regulation 9 of PFUTP Regulations is solely

for internal purposes. In concluding that the investigation report need not be

furnished while issuing a show cause notice, the High Court has relied on the

decision of this Court in Natwar Singh v. Director of Enforcement12. In sum and

substance, the High court has held that the report does not form the basis of the

show cause notice and therefore need not be disclosed. The review petition

challenging the judgment of the Division Bench of the High Court was rejected.

12 (2010) 13 SCC 255

PART B

B. Submissions of Counsel

13 Mr Ashim Sood, learned Counsel appearing for the appellant made the

following submissions:

(i) Regulation 10 has two synchronous requirements – (i) consideration of

the investigation report and satisfaction on such consideration that

there is a violation of the PFUTP Regulations; and (ii) a hearing. The

purpose of the investigation report is to adjudicate whether there has

been a contravention of the Regulations. There is no intermediate stage

between the consideration of the report and the adjudication of liability.

Both stages are synchronous, making the investigation report the

primary material on which the adjudicator relies upon under the PFUTP

Regulations;

(ii) The High Court erred in holding that the investigation report is a

preliminary report and is to be used for “internal administrative

discipline”. The investigation report is not a preliminary document and is

compiled at the end of a thorough and exhaustive investigation. The

proviso to Regulation 9, provides for an “interim report” making it clear

that the investigation report is not a preliminary document;

(iii) The investigation report is not a document to be used for internal

deliberations, which is a stage that is crossed at Regulation 5. The

investigation report is to be used for adjudication of liability in terms of

Regulation 10;

(iv) The High Court erred in observing that the investigation report was not

used against the appellant and does not form the basis of the show

PART B

cause notice. The show cause notice dated 19 March 2020 contains

several references to the investigation carried out by the first

respondent. These allegations differ from the ones listed in an earlier

show cause notice, which was issued to the appellant and was set

aside by SAT on 29 January 2020 in Appeal No 427 of 2018. Further,

the duty to disclose is not contingent on whether the respondent relies

on a document; rather the duty is invoked when a request made for a

document is found to be reasonable and relevant for the defence to be

mounted by the noticee;

(v) Regulation 10 mandates that the entire investigation report be

disclosed to the noticee. This mandate can only be subject to certain

well-recognized exceptions. Such exceptions must be invoked with the

utmost circumspection by SEBI and for reasons that are recorded in

writing;

(vi) The decision of this Court in Natwar Singh (supra) supports the

principle that material relied upon in a quasi-judicial proceeding must

be disclosed to the person to whose prejudice such material may be

used for taking adverse action;

(vii) In Khudiram Das v. State of West Bengal13, this Court held that once

a statute prescribes reliance on certain material, such material should

be disclosed to the opposite party. This principle has been followed in

multiple contexts, including proceedings under the Companies Act 1956

and Special Courts Act 1979;

13 (1975) 2 SCC 81

PART B

(viii) If the entire investigation report is not provided, it would be difficult to

come up with a metric for determining which parts of the report are

relevant to the noticee;

(ix) Permitting the respondent to selectively disclose portions of the

investigation report carries with it the risk of conferring unfettered

discretion upon the first respondent. The first respondent will attempt to

disclose the least possible information in an adversarial proceeding,

undermining the mandate of Regulation 10;

(x) Without having access to the entirety of the investigation report, the

noticee will be incapable of effectively challenging the decision of the

first respondent. It will result in the adoption of an opaque process

where SAT or the High Courts would receive the report in sealed

covers and make ex parte determinations of whether the redactions

made by the first respondent are justified, impacting the transparency of

the judicial process;

(xi) Regulation 9 imposes a qualitative requirement in relation to the

investigation. If the investigation report is not disclosed, there is no

incentive for the investigator to meet that qualitative requirement. There

would be no way, therefore, to determine whether the investigation

report was properly compiled and whether the investigation was

conducted in a regular manner, in accordance with the standards of

what a proper investigation entails;

(xii) Redaction of the investigation report can be carried out as an exception

for legitimate reasons. To reduce arbitrariness, the redactions should

PART B

be supported by written reasons indicating the necessity of the

measure. The reasons should have a certain degree of specificity;

(xiii) The exceptional situations in which redactions can be made are known

to law and include business secrets, personal data and third-party

confidential information; and

(xiv) Laws in the United States and European Union also adopt the default

position that the noticee shall have access to the file subject to certain

exceptions relating to business secrets and personal data, amongst

others.

14 On behalf of the respondents, Mr CU Singh, learned senior counsel, made

the following submissions:

(i) The appellant has raised the argument that the investigation has been

solely conducted under the PFUTP Regulations and the failure to

disclose the investigation report amounts to a violation of Regulations 9

and 10. This is incorrect. The proceedings have been initiated under

the provisions of the SEBI Act and the SCRA as well for a violation of

the provisions of the PFUTP Regulations and the Listing Agreement.

The SEBI Act and the SCRA are wider in scope than the PFUTP

Regulations. Additionally, Regulation 11 of PFUTP Regulations

specifically provides that the actions or directions may be issued

without prejudice to the provisions contained in sub-sections (1), (2),

(2A) and (3) of Sections 11 and 11B of the SEBI Act;

(ii) SEBI conducts an investigation under Section 11C of the SEBI Act,

where, based on the findings arrived at during the investigation,

PART B

allegations are levelled in the show cause notice. Together with the

show cause notice all the documents that have been relied upon by the

investigator are provided to the noticee. In the present, case all the

relevant documents have been provided to the noticee, including the

report of Pipara and Co. which formed the basis of the show cause

notice. The appellant is not entitled to any other documents;

(iii) The quasi-judicial proceedings that are initiated by SEBI proceed on the

basis of the allegations that are mentioned in the show cause notice

and the documents that are annexed to it. No other material, document

or investigation is considered for adjudication by the competent

authority. Orders are passed only after an opportunity to file a reply is

given and a personal hearing is provided to comply with the principles

of natural justice;

(iv) Regulation 9 of PFUTP Regulations requires the Investigating Authority

to submit the report, after completion of the investigation, to the

appointing authority. However, the provision does not require the

furnishing of the report to the noticee. The report is only in the nature of

an inter-departmental communication between officers investigating the

matter and the authority who decides if any enforcement action is to be

taken against an entity based on any prima facie grounds. It is not a

piece of evidence but is rather a culmination of documents that the

investigating authority relies upon or comes across during the

investigation;

PART B

(v) This Court in several similar cases have held that internal investigation

reports are not required to be shared. (Krishna Chandra Tandon v.

Union of India14 and Chandrama Tewari v. Union of India15);

(vi) The investigations conducted by SEBI are highly sensitive given the

volatile nature of the market. Disclosure of such information may

adversely affect the market. Further, the investigation reports also

contain the personal information of other stakeholders. They also

include information relating to the commercial and business interests of

third-parties. Sharing such information with the noticee will raise

concerns regarding the privacy of third-parties and also affect their

competitive position in the market;

(vii) Clauses (d), (e) and (h) of sub-Section (1) of Section 8 of the Right to

Information Act 200516 also exempt disclosure of – (i) “information

including commercial confidence, trade secrets or intellectual property,

the disclosure of which would harm the competitive position of a third

party”; (ii) “information available in fiduciary relationship”; and (iii)

“information which would impede the process of investigation”; and

(viii) The US Securities and Exchange Commission conducts its

investigations on a confidential basis to maximize their effectiveness

and protect the privacy of those involved. UK Financial Conduct

Authority also does not share confidential information even when the

same is requested under the Freedom of Information Act stating that a

clear confidentiality restriction encourages free flow of information and if

14 AIR 1974 SC 1589 15 (1988) 1 SCR 1102 16 “RTI Act”

PART C

confidential information were to be made public, sources would be less

willing to give information. Article 54 of Directive 2004/39 of the EU

Parliament provides a legal framework for securities market and

mandates that information of such nature ought not to be shared. Thus,

the refusal of SEBI to furnish the investigation report is in line with

established global practices.

C. Analysis

C.1 Regulatory Framework of PFUTP Regulations

15 The PFUTP Regulations have been notified by SEBI in exercise of powers

conferred by Section 30 of the SEBI Act. Regulation 2(c) defines the expression

‘fraud’ in the following terms:

“2(c) “fraud” includes any act, expression, omission or

concealment committed whether in a deceitful manner or

not by a person or by any other person with his

connivance or by his agent while dealing in securities in

order to induce another person or his agent to deal in

securities, whether or not there is any wrongful gain or

avoidance of any loss, and shall also include—

(1) a knowing misrepresentation of the truth or

concealment of material fact in order that another person

may act to his detriment;

(2) a suggestion as to a fact which is not true by one who

does not believe it to be true;

(3) an active concealment of a fact by a person having

knowledge or belief of the fact;

(4) a promise made without any intention of performing it;

(5) a representation made in a reckless and careless

manner whether it be true or false;

(6) any such act or omission as any other law specifically

declares to be fraudulent,

(7) deceptive behaviour by a person depriving another of

informed consent or full participation,

(8) a false statement made without reasonable ground for

believing it to be true.

PART C

(9) the act of an issuer of securities giving out

misinformation that affects the market price of the

security, resulting in investors being effectively misled

even though they did not rely on the statement itself or

anything derived from it other than the market price.

And “fraudulent” shall be construed accordingly; Nothing

contained in this clause shall apply to any general

comments made in good faith in regard to—

(a) the economic policy of the government

(b) the economic situation of the country

(d) any other matter of a like nature

whether such comments are made in public or in private;”

16 Chapter II of the Regulations relates to the prohibition of fraudulent and

unfair trade practices relating to the securities market. This includes Regulation 3

which deals with “Prohibition of certain dealings in securities” and Regulation 4

which deals with “Prohibition of manipulative, fraudulent and unfair trade

practices”. Chapter II pertains to the power of the Board to order an

investigation. Regulation 5 is extracted below:

“5. Where the Board, the Chairman, the member or the

Executive Director (hereinafter referred to as “appointing

authority”) has reasonable ground to believe that—

(a) the transactions in securities are being dealt with in a

manner detrimental to the investors or the securities

market in violation of these regulations;

(b) any intermediary or any person associated with the

securities market has violated any of the provisions of the

Act or the rules or the regulations, it may, at any time by

order in writing, direct any officer not below the rank of

Division Chief (hereinafter referred to as the “Investigating

Authority”) specified in the order to investigate the affairs

of such intermediary or persons associated with the

securities market or any other person and to report

thereon to the Board in the manner provided in section

11C of the Act.”

PART C

Regulation 6 enunciates the powers of the investigating authority.17 The powers

of the investigating authority include:

(i) Calling for information or records;

(ii) Undertaking inspection of books, registers and documents or records of

any public company;

(iii) Requiring the disclosure of information, documents or records by any

person associated with the securities market or by an intermediary;

(iv) Reservation and custody of books, registers, documents and records

for a stipulated period;

(v) Examination of and recording the statement of directors, partners,

members or employees; and

(vi) Examination on oath.

176. Without prejudice to the powers conferred under the Act, the Investigating Authority shall have the following

powers for the conduct of investigation, namely :

(1) to call for information or records from any person specified in section 11(2)(i) of the Act;

(2) to undertake inspection of any book, or register, or other document or record of any listed public company or a

public company (not being intermediaries referred to in section 12 of the Act) which intends to get its securities

listed on any recognized stock exchange where the Investigating Authority has reasonable grounds to believe

that such company has been conducting in violation of these regulations;

(3) to require any intermediary or any person associated with securities market in any manner to furnish such

information to, or produce such books, or registers, or other documents, or record before him or any person

authorized by him in this behalf as he may consider necessary if the furnishing of such information or the

production of such books, or registers, or other documents, or record is relevant or necessary for the purposes of

the investigation;

(4) to keep in his custody any books, registers, other documents and record produced under this regulation for a

maximum period of one month which may be extended upto a period of six months by the Board :

Provided that the Investigating Authority may call for any book, register, other document or record if the same is

needed again :

Provided further that if the person on whose behalf the books, registers, other documents and record are

produced requires certified copies of the books, registers, other documents and record produced before the

Investigating Authority, he shall give certified copies of such books, registers, other documents and record to

such person or on whose behalf the books, registers, other documents and record were produced;

(5) to examine orally and to record the statement of the person concerned or any director, partner, member or

employee of such person and to take notes of such oral examination to be used as an evidence against such

person :

Provided that the said notes shall be read over to, or by, and signed by, the person so examined;

(6) to examine on oath any manager, managing director, officer or other employee of any intermediary or any

person associated with securities market in any manner in relation to the affairs of his business and may

administer an oath accordingly and for that purpose may require any of those persons to appear before him

personally.

PART C

17 Under Regulation 718, the investigating authority may exercise certain

specified powers after obtaining the specific approval of the Chairman or

Members of the Board. Regulation 819 imposes a duty to cooperate upon every

person in respect of whom an investigation has been ordered under Regulation 7.

18 Regulation 9 upon which the controversy in the present case turns is

extracted below:

“9. The Investigating Authority shall, on completion of

investigation, after taking into account all relevant facts,

submit a report to the appointing authority:

187. The Investigating Authority may, after obtaining specific approval from the Chairman or Member also

exercise all or any of the following powers, namely :

(a) to call for information and record from any bank or any other authority or board or corporation established or

constituted by or under any Central, State or Provincial Act in respect of any transaction in securities which are

under investigation;

(b) to make an application to the Judicial Magistrate of the first class having jurisdiction for an order for the

seizure of any books, registers, other documents and record, if in the course of investigation, the Investigating

Authority has reasonable ground to believe that such books, registers, other documents and record of, or relating

to, any intermediary or any person associated with securities market in any manner may be destroyed, mutilated,

altered, falsified or secreted;

such period not later than the conclusion of the investigation as he considers necessary and thereafter to return

the same to the person, the company or the other body corporate, or, as the case may be, to the managing

director or the manager or any other person from whose custody or power they were seized :

Provided that the Investigating Authority may, before returning such books, registers, other documents and

record as aforesaid, place identification marks on them or any part thereof;

(d) save as otherwise provided in this regulation, every search or seizure made under this regulation shall be

carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to

searches or seizures made under that Code.

198. (1) It shall be the duty of every person in respect of whom an investigation has been ordered under

regulation 7—

(a) to produce to the Investigating Authority or any person authorized by him such books, accounts and other

documents and record in his custody or control and to furnish such statements and information as the

Investigating Authority or the person so authorized by him may reasonably require for the purposes of the

investigation;

(b) to appear before the Investigating Authority personally when required to do so by him under regulation 6 or

regulation 7 to answer any question which is put to him by the Investigating Authority in pursuance of the powers

under the said regulations.

(2) Without prejudice to the provisions of sections 235 to 241 of the Companies Act, 1956 (1 of 1956), it shall be

the duty of every manager, managing director, officer and other employee of the company and every intermediary

referred to in section 12 of the Act or every person associated with the securities market to preserve and to

produce to the Investigating Authority or any person authorized by him in this behalf, all the books, registers,

other documents and record of, or relating to, the company or, as the case may be, of or relating to, the

intermediary or such person, which are in their custody or power.

(3) Without prejudice to the generality of the provisions of sub-regulations (1) and (2), such person shall—

(a) allow the Investigating Authority to have access to the premises occupied by such person at all reasonable

times for the purpose of investigation;

(b) extend to the Investigating Authority reasonable facilities for examining any books, accounts and other

documents in his custody or control (whether kept manually or in computer or in any other form) reasonably

required for the purposes of the investigation;

Investigating Authority, are relevant to the investigation or, as the case may be, allow him to take out computer

outprints thereof.

PART C

Provided that the Investigating Authority may submit an

interim report pending completion of investigations if he

considers necessary in the interest of investors and the

securities market or as directed by the appointing

authority.”

Regulation 9 envisages that the investigating authority must submit a report to

the appointing authority upon the completion of its investigation in the course of

which all relevant facts have to be taken into account. The investigating authority

may even submit an interim report, if necessary, in the interest of investors and

the securities market or, if directed by the appointing authority.

19 Regulation 10 deals with the Board’s power of enforcement. According to

Regulation 10:

“10. The Board may, after consideration of the report

referred to in regulation 9, if satisfied that there is a

violation of these regulations and after giving a

reasonable opportunity of hearing to the persons

concerned, issue such directions or take such action as

mentioned in regulation 11 and regulation 12 :

Provided that the Board may, in the interest of investors

and the securities market, pending the receipt of the

report of the investigating authority referred to in

regulation 9, issue directions under regulation 11:

Provided further that the Board may, in the interest of

investors and securities market, dispense with the

opportunity of pre-decisional hearing by recording

reasons in writing and shall give an opportunity of postdecisional hearing to the persons concerned as

expeditiously as possible.”

20 The directions or measures which can be adopted by the Board are

specified in Regulations 11 and 12 which read as follows: -

“11. (1) The Board may, without prejudice to the

provisions contained in subsections (1), (2), (2A) and (3)

of section 11 and section 11B of the Act, by an order, for

reasons to be recorded in writing, in the interests of

investors and securities market, issue or take any of the

following actions or directions, either pending investigation

or enquiry or on completion of such investigation or

enquiry, namely :—

PART C

(a) suspend the trading of the security found to be or

prima facie found to be involved in fraudulent and unfair

trade practice in a recognized stock exchange;

(b) restrain persons from accessing the securities market

and prohibit any person associated with securities market

to buy, sell or deal in securities;

self-regulatory organization from holding such position;

(d) impound and retain the proceeds or securities in

respect of any transaction which is in violation or prima

facie in violation of these regulations;

(e) direct and intermediary or any person associated with

the securities market in any manner not to dispose of or

alienate an asset forming part of a fraudulent and unfair

transaction;

(f) require the person concerned to call upon any of its

officers, other employees or representatives to refrain

from dealing in securities in any particular manner;

(g) prohibit the person concerned from disposing of any of

the securities acquired in contravention of these

regulations;

(h) direct the person concerned to dispose of any such

securities acquired in contravention of these regulations,

in such manner as the Board may deem fit, for restoring

the status quo ante.

(2) The Board shall issue a press release in respect of

any final order passed under sub-regulation (1) in at least

two newspapers of which one shall have nationwide

circulation and shall also put the order on the website of

the Board.

12. (1) The Board may, without prejudice to the provisions

contained in subsections (1), (2), (2A) and (3) of section

11 and section 11B of the Act, by an order, for reasons to

be recorded in writing, in the interests of investors and

securities market take the following action against an

intermediary :

(a) issue a warning or censure

(b) suspend the registration of the intermediary; or

Provided that no final order of suspension or cancellation

of an intermediary for violation of these regulations shall

be passed unless the procedure specified in the

regulations applicable to such intermediary under the

Securities and Exchange Board of India (Procedure for

PART C

Holding Enquiry by Enquiry Officer and Imposing Penalty)

Regulations, 2002 is complied with.”

21 Regulation 10 empowers the Board to either issue a direction or take

action as is specified in Regulations 11 and 12. Before issuing directions or

taking action under Regulations 11 and 12, three steps have to be traversed by

the Board. The first stage is the consideration of the report of the investigating

authority which has been referred to in Regulation 9. The second is the furnishing

of a reasonable opportunity of being heard. The third is the satisfaction of the

Board that there is a violation of the regulations. Regulation 10 indicates in clear

terms that the report which has been submitted by the investigating authority

under Regulation 9 is an intrinsic component of the Board’s satisfaction for

determining whether there has been any violation of the regulations. Regulation

10 contains a mandate for the Board to consider the report which is referred to in

Regulation 9. The submission which has been urged on behalf of SEBI is to the

effect that (i) the investigation report is a part of the internal administrative

deliberations of the Board; (ii) it need not be disclosed; and that (iii) only those

materials which are relied on have to be disclosed misses a crucial part of

Regulation 10. The language in which Regulation 10 is couched indicates that

consideration of the report of the investigating authority which is submitted under

Regulation 9 is one of the components guiding the Board’s satisfaction on the

violation of the regulations. The words of Regulation 10 indicate that the Board

“after consideration of the report referred to in regulation 9, if satisfied that there

is a violation of these regulations and after giving a reasonable opportunity of

hearing to the persons concerned”, takes action under Regulations 11 and 12. As

a result of the mandate of Regulation 10, the Board has to consider the

PART C

investigation report as an intrinsic element in arriving at its satisfaction on

whether there has been a violation of the regulations.

C.2 Duty to Disclose Investigative Material

22 While the respondents have submitted that only materials that have been

relied on by the Board need to be disclosed, the appellant has contended that all

relevant materials need to be disclosed. While trying to answer this issue, we are

faced with a multitude of other equally important issues. These issues, all

paramount in shaping the jurisprudence surrounding the principles of access to

justice and transparency, range from identifying the purpose and extent of

disclosure required, to balancing the conflicting claims of access to justice and

grounds of public interest such as privacy, confidentiality and market interest. An

identification of the purpose of disclosure would lead us closer identifying the

extent of required disclosure. There are three key purposes that disclosure of

information serves:

(i) Reliability: The possession of information by both the parties can aid

the courts in determining the truth of the contentions. The role of the

court is not restricted to interpreting the provisions of law but also

determining the veracity and truth of the allegations made before it. The

court would be able to perform this function accurately only if both

parties have access to information and possess the opportunity to

address arguments and counter-arguments related to the information;

(ii) Fair Trial: Since a verdict of the Court has far reaching repercussions

on the life and liberty of an individual, it is only fair that there is a

PART C

legitimate expectation that the parties are provided all the aid in order

for them to effectively participate in the proceedings;

(iii) Transparency and accountability: The investigative agencies and the

judicial institution are held accountable through transparency and not

opaqueness of proceedings. Opaqueness furthers a culture of

prejudice, bias, and impunity – principles that are antithetical to

transparency. It is of utmost importance that in a country grounded in

the Rule of Law, the institutions adopt those procedures that further the

democratic principles of transparency and accountability. The principles

of fairness and transparency of adjudicatory proceedings are the

cornerstones of the principle of open justice. This is the reason why an

adjudicatory authority is required to record its reasons for every

judgement or order it passes. However, the duty to be transparent in

the adjudicatory process does not begin and end at providing a

reasoned order. Keeping a party bereft of the information that

influenced the decision of an authority undertaking an adjudicatory

function also undermines the transparency of the judicial process. It

denies the concerned party and the public at large the ability to

effectively scrutinise the decisions of the authority since it creates an

information asymmetry.

23 The purpose of disclosure of information is not merely individualistic, that is

to prevent errors in the verdict but is also towards fulfilling the larger institutional

purpose of fair trial and transparency. Since the purpose of disclosure of

information targets both the outcome (reliability) and the process (fair trial and

PART C

transparency), it would be insufficient if only the material relied on is disclosed.

Such a rule of disclosure, only holds nexus to the outcome and not the process.

Therefore, as a default rule, all relevant material must be disclosed.

24 It would be fundamentally contrary to the principles of natural justice if the

relevant part of the investigation report which pertains to the appellant is not

disclosed. The appellant has to be given a reasonable opportunity of hearing.

The requirement of a reasonable opportunity would postulate that such material

which has been and has to be taken into account under Regulation 10 must be

disclosed to the noticee. If the report of the investigation authority under

Regulation 9 has to be considered by the Board before satisfaction is arrived at

on a possible violation of the regulations, the principles of natural justice require

due disclosure of the report.

25 The consequence of the Board arriving at a satisfaction that there has

been a violation of the regulations is that the Board can take recourse to the

actions specified under Regulations 11 and 12. Regulation 11 empowers the

Board to:

(i) Suspend the trading of the security found to be involved in a fraudulent

and unfair trade practice in a recognized stock exchange;

(ii) Restraining persons from accessing the securities market and

prohibiting any person associated with it from dealing in securities;

(iii) Suspending an office bearer of a recognized stock exchange;

(iv) Impounding and retaining the proceeds or securities;

PART C

(v) Issuing a direction not to dispose of or alienate an asset forming part of

a fraudulent and unfair transaction;

(vi) Prohibit the disposal of any of the securities acquired in contravention

of these regulations; and

(vii) Directing the disposal of any securities in accordance with the mandate

of the Board.

Under Regulation 11(2), a press release has to be issued by the Board in respect

of a final order which is passed under Regulation 11(1).

26 Regulation 12 empowers the Board to suspend or cancel the registration of

an intermediary among other things. The provisions of Regulations 11 and 12

indicate that the consequences of the satisfaction which is arrived at by the Board

under Regulation 10, if there is a violation of the Regulations, are grave.

27 The submission of Mr C U Singh, learned senior counsel is that only those

materials which are relied upon should be disclosed to the first respondent.

Regulation 10, as we have noted earlier, stipulates that the satisfaction of the

Board whether there has been a violation of the regulations has to be arrived at:

(i) after considering the report of the investigating authority referred to in

Regulation 9; and

(ii) after giving a reasonable opportunity of hearing to the person

concerned.

Once the subordinate legislation mandates that the investigating authority’s

report is an essential ingredient for the Board to arrive at the satisfaction, it

requires due disclosure.

PART C

28 Now in the above context, it would be material to advert to the decision of

this court in Natwar Singh (supra). The issue before the two-judge Bench of this

Court was whether a noticee who is served with a show cause notice under Rule

4(1) of the Foreign Exchange Management (Adjudication Proceedings and

Appeal) Rules 200020, is entitled to demand all the documents in the possession

of the adjudicating authority including those documents upon which no reliance

has been placed while issuing a notice to show cause as to why an enquiry

should not be initiated against him. Rule 4 is in the following terms:

“4. Holding of inquiry.--

(1) For the purpose of Adjudicating under section 13 of

the Act whether any person has committed any

contravention as specified in that section of the Act, the

Adjudicating Authority shall, issue a notice to such person

requiring him to show cause within such period as may be

specified in the notice (being not less than ten days from

the date of service thereof) why an inquiry should not be

held against him.

(2) Every notice under sub-rule (1) to any such person

shall indicate the nature of contravention alleged to have

been committed by him. (3) After considering the cause, if

any, shown by such person, the Adjudicating Authority is

of the opinion that an inquiry should be held, he shall

issue a notice fixing a date for the appearance of that

person either personally or through his legal practitioner

or a chartered accountant duly authorised by him.”

Rule 4(1) of the FEMA Rules 2000 indicates that in the first instance, the

adjudicating authority has to issue a notice requiring the person to show cause

why an enquiry should not be held against him. The stage of the notice under

Rule 4(1) is not for adjudication but is for the purpose of deciding whether an

enquiry should be held. If after considering the cause which is shown, the

adjudicating authority is of the opinion that an enquiry should be held, thereupon

under Rule 4(3), a notice is issued for the appearance of the person. Sub-Rule

20 “FEMA Rules 2000”

PART C

(4) provides that on the date fixed, the adjudicating authority shall explain the

contravention alleged to have been committed and under sub-Rule (5) an

opportunity of producing documents or evidence has to be given. Under sub-Rule

(8), the adjudicating authority is empowered to impose a penalty if it is satisfied,

upon considering the evidence produced that there has been a contravention.

29 Now in this backdrop, Justice B. Sudarshan Reddy speaking for the twojudge Bench of this Court interpreted Rule 4 as follows:

“23. The Rules do not provide and empower the

Adjudicating Authority to straightaway make any inquiry

into allegations of contravention against any person

against whom a complaint has been received by it. Rule 4

of the Rules mandates that for the purpose of adjudication

whether any person has committed any contravention, the

Adjudicating Authority shall issue a notice to such person

requiring him to show cause as to why an inquiry should

not be held against him. It is clear from a bare reading of

the rule that show cause notice to be so issued is not for

the purposes of making any adjudication into alleged

contravention but only for the purpose of deciding whether

an inquiry should be held against him or not. Every such

notice is required to indicate the nature of contravention

alleged to have been committed by the person concerned.

That after taking the cause, if any, shown by such person,

the Adjudicating Authority is required to form an opinion

as to whether an inquiry is required to be held into the

allegations of contravention. It is only then the real and

substantial inquiry into allegations of contravention

begins.”

The above extract clearly indicates that the show cause notice under Rule 4(1) is

not for the purpose of making an adjudication into the alleged contravention but

only for deciding whether an enquiry must be conducted. The stage when an

enquiry is held is subsequent to the initial stage contemplated by Rule 4(1).

During the course of the adjudication, the fundamental principle is that material

which is used against a person must be brought to notice. As this Court

observed:

PART C

“30. The right to fair hearing is a guaranteed right.

Every person before an authority exercising the

adjudicatory powers has a right to know the evidence

to be used against him. This principle is firmly

established and recognised by this Court in Dhakeswari

Cotton Mills Ltd. v. CIT [AIR 1955 SC 65 : (1955) 1 SCR

941] . However, disclosure not necessarily involves supply

of the material. A person may be allowed to inspect the

file and take notes. Whatever mode is used, the

fundamental principle remains that nothing should be

used against the person which has not been brought to

his notice. If relevant material is not disclosed to a

party, there is prima facie unfairness irrespective of

whether the material in question arose before, during

or after the hearing. The law is fairly well settled if

prejudicial allegations are to be made against a person,

he must be given particulars of that before hearing so that

he can prepare his defence. However, there are various

exceptions to this general rule where disclosure of

evidential material might inflict serious harm on the

person directly concerned or other persons or where

disclosure would be breach of confidence or might be

injurious to the public interest because it would

involve the revelation of official secrets, inhibit

frankness of comment and the detection of crime,

might make it impossible to obtain certain clauses of

essential information at all in the future

(see R. v. Secy. of State for Home Deptt., ex p H [1995

QB 43 : (1994) 3 WLR 1110 : (1995) 1 All ER 479 (CA)] ).

31. The concept of fairness may require the adjudicating

authority to furnish copies of those documents upon which

reliance has been placed by him to issue show-cause

notice requiring the noticee to explain as to why an inquiry

under Section 16 of the Act should not be initiated. To this

extent, the principles of natural justice and concept of

fairness are required to be read into Rule 4(1) of the

Rules. Fair procedure and the principles of natural justice

are in-built into the Rules. A noticee is always entitled

to satisfy the adjudicating authority that those very

documents upon which reliance has been placed do

not make out even a prima facie case requiring any

further inquiry. In such view of the matter, we hold

that all such documents relied on by the authority are

required to be furnished to the noticee enabling him

to show a proper cause as to why an inquiry should

not be held against him though the Rules do not

provide for the same. Such a fair reading of the

provision would not amount to supplanting the procedure

laid down and would in no manner frustrate the apparent

purpose of the statute.”

(emphasis supplied)

PART C

30 The decision of this Court distinguishes between the initial stage under

Rule 4(1) which is only for the purpose of deciding whether an enquiry has to be

held and the subsequent stage of adjudication into the allegations of

contravention. This Court further held:

“34. As noticed, a reasonable opportunity of being heard

is to be provided by the adjudicating authority in the

manner prescribed for the purpose of imposing any

penalty as provided for in the Act and not at the stage

where the adjudicating authority is required merely to

decide as to whether an inquiry at all be held into the

matter. Imposing of penalty after the adjudication is

fraught with grave and serious consequences and

therefore, the requirement of providing a reasonable

opportunity of being heard before imposition of any such

penalty is to be met. In contradistinction, the opinion

formed by the adjudicating authority whether an inquiry

should be held into the allegations made in the complaint

are not fraught with such grave consequences and

therefore the minimum requirement of a show-cause

notice and consideration of cause shown would meet the

ends of justice. A proper hearing always include, no

doubt, a fair opportunity to those who are parties in the

controversy for correcting or contradicting anything

prejudicial to their view.”

31 On the facts of that case, the Court held that the enquiry against the

noticee was yet to commence:

“36. In the present case, the inquiry against the noticee is

yet to commence. The evidence as may be available

upon which the adjudicating authority may place

reliance, undoubtedly, is required to be furnished to

the person proceeded against at the second stage of

inquiry into allegations of contravention. It is at that

stage, the adjudicating authority is not only required to

give an opportunity to such person to produce such

documents as evidence as he may consider relevant to

the inquiry, but also enforce attendance of any person

acquainted with the facts of the case to give evidence or

to produce any document which in its opinion may be

useful for or relevant to the subject-matter of the inquiry. It

is no doubt true that natural justice often requires the

disclosure of the reports and evidence in the

possession of the deciding authority and such reports

and evidence relevant to the subject-matter of the

inquiry may have to be furnished unless the scheme

of the Act specifically prohibits such disclosure.”

(emphasis supplied)

PART C

This Court further noted that the documents which the appellant wanted were

documents upon which no reliance was placed by the authority for setting the law

into motion. Consequently, this Court concluded that:

“48. On a fair reading of the statute and the Rules

suggests that there is no duty of disclosure of all the

documents in possession of the adjudicating authority

before forming an opinion that an inquiry is required to be

held into the alleged contraventions by a noticee. Even

the principles of natural justice and concept of fairness do

not require the statute and the Rules to be so read. Any

other interpretation may result in defeat of the very object

of the Act. Concept of fairness is not a one-way street.

The principles of natural justice are not intended to

operate as roadblocks to obstruct statutory inquiries. Duty

of adequate disclosure is only an additional procedural

safeguard in order to ensure the attainment of the fairness

and it has its own limitations. The extent of its applicability

depends upon the statutory framework.”

32 The issue in Natwar Singh (supra) was whether the authority was bound

to disclose to the noticee all the documents in its possession before forming an

opinion on whether an enquiry is required to be held into the alleged

contravention by the noticee. The Court held that at that stage there was no

requirement of furnishing all such documents to the noticee since the only

purpose of the notice under Rule 4(1) was for deciding whether an enquiry should

be held. Rule 4(1), in other words, was not a final adjudication and consequently

the requirement of a disclosure of all materials in the possession of the authority

was not attracted. At that stage, it was sufficient that only documents that have

been relied on are disclosed.

33 The High Court in the present case has palpably misconstrued the

judgment in Natwar Singh (supra). The High Court has failed to notice that the

issue in that case was whether at the stage when the authority decides under

Rule 4(1) of the FEMA Rules 2000 whether an enquiry should be held, a

PART C

disclosure of all documents in the possession of the authority to the noticee is

warranted. This was answered in the negative. This Court distinguished the stage

of adjudication as distinct from the initial stage under Rule 4(1). At the stage of

adjudication, all documents useful or relevant to the subject-matter have to be

disclosed to the notice, subject to exceptions noticed by the court.

34 On behalf of the Board, it has been urged that the investigation report is in

the nature of an inter-departmental communication and need not be disclosed.

Reliance was placed on the judgment of this Court in Krishna Chandra Tandon

(supra) to buttress the submission. However, it is clear from the judgment that

even if the documents are merely inter-departmental communications, there is a

duty to disclose such documents if they have been relied upon by the enquiry

officer. A two-Judge Bench of this observed:

“16. Mr Hardy next contended that the appellant had really

no reasonable opportunity to defend himself and in this

connection he invited our attention to some of the points

connected with the enquiry with which we have now to

deal. It was first contended that inspection of relevant

records and copies of documents were not granted to him.

The High Court has dealt with the matter and found that

there was no substance in the complaint. All that Mr

Hardy was able to point out to us was that the reports

received by the CIT from his departmental subordinates

before the charge-sheet was served on the appellant had

not been made available to the appellant. It appears that

on complaints being received about his work the CIT had

asked the Inspecting Assistant Commissioner Shri R.N.

Srivastava to make a report. He made a report. It is

obvious that the appellant was not entitled to a copy of the

report made by Mr Srivastava or any other officer unless

the enquiry officer relied on these reports. It is very

necessary for an authority which orders an enquiry to be

satisfied that there are prima facie grounds for holding a

disciplinary enquiry and, therefore, before he makes up

his mind he will either himself investigate or direct his

subordinates to investigate in the matter and it is only

after he receives the result of these investigations that he

can decide as to whether disciplinary action is called for or

not. Therefore, these documents of the nature of interdepartmental communications between officers

preliminary to the holding of enquiry have really no

PART C

importance unless the Enquiry Officer wants to rely

on them for his conclusions. In that case it would only

be right that copies of the same should be given to

the delinquent. It is not the case here that either the

Enquiry Officer or the CIT relied on the report of Shri R.N.

Srivastava or any other officer for his finding against the

appellant. Therefore, there is no substance in this

submission.”

(emphasis supplied)

35 However, merely because the investigating authority has denied placing

reliance on the report would not mean that such material cannot be disclosed to

the noticee. The court may look into the relevance of the material to the proposed

action and its nexus to the stage of adjudication. Simply put, this entails

evaluating whether the material in all reasonable probability would influence the

decision of the authority. The above position was laid down by this Court in

Khudiram Das v. State of West Bengal21. Ruling in the context of preventive

detention, a four-judge Bench of this Court observed:

“15. Now, the proposition can hardly be disputed that

if there is before the District Magistrate material

against the detenu which is of a highly damaging

character and having nexus and relevancy with the

object of detention, and proximity with the time when

the subjective satisfaction forming the basis of the

detention order was arrived at, it would be legitimate

for the Court to infer that such material must have

influenced the District Magistrate in arriving at his

subjective satisfaction and in such a case the Court

would refuse to accept the bald statement of the

District Magistrate that he did not take such material

into account and excluded it from consideration. It is

elementary that the human mind does not function in

compartments. When it receives impressions from

different sources, it is the totality of the impressions which

goes into the making of the decision and it is not possible

to analyse and dissect the impressions and predicate

which impressions went into the making of the decision

and which did not. Nor is it an easy exercise to erase the

impression created by particular circumstances so as to

exclude the influence of such impression in the decision

making process. Therefore, in a case where the material

before the District Magistrate is of a character which

would in all reasonable probability be likely to influence

the decision of any reasonable human being, the Court

21 (1975) 2 SCC 81

PART C

would be most reluctant to accept the ipse dixit of the

District Magistrate that he was not so influenced and a

fortiori, if such material is not disclosed to the detenu, the

order of detention would be vitiated, both on the ground

that all the basic facts and materials which influenced the

subjective satisfaction of the District Magistrate were not

communicated to the detenu as also on the ground that

the detenu was denied an opportunity of making an

effective representation against the order of detention.”

(emphasis supplied)

The principle that the material that may influence the decision of a quasi-judicial

authority to award a penalty must be disclosed to a delinquent was affirmed by

this Court in Union of India and Ors. v. Mohd. Ramzan Khan22. In that case,

this Court laid down that a delinquent officer is entitled to receive the report of

the enquiry officer which has been furnished to the disciplinary authority. This

principle was affirmed by a Constitution Bench of this Court in Managing

Director, ECIL, Hyderabad v. B. Karunakar23. The rationale behind the right to

receive the report of the enquiry officer was explained by this Court in the

following terms:

“26. The reason why the right to receive the report of

the enquiry officer is considered an essential part of

the reasonable opportunity at the first stage and also

a principle of natural justice is that the findings

recorded by the enquiry officer form an important

material before the disciplinary authority which along

with the evidence is taken into consideration by it to

come to its conclusions. It is difficult to say in

advance, to what extent the said findings including

the punishment, if any, recommended in the report

would influence the disciplinary authority while

drawing its conclusions. The findings further might

have been recorded without considering the relevant

evidence on record, or by misconstruing it or

unsupported by it. If such a finding is to be one of the

documents to be considered by the disciplinary

authority, the principles of natural justice require that

the employee should have a fair opportunity to meet,

explain and controvert it before he is condemned. It is

negation of the tenets of justice and a denial of fair

opportunity to the employee to consider the findings

22 (1991) 1 SCC 588 23 (1993) 4 SCC 727

PART C

recorded by a third party like the enquiry officer

without giving the employee an opportunity to reply to

it. Although it is true that the disciplinary authority is

supposed to arrive at its own findings on the basis of

the evidence recorded in the inquiry, it is also equally

true that the disciplinary authority takes into

consideration the findings recorded by the enquiry

officer along with the evidence on record. In the

circumstances, the findings of the enquiry officer do

constitute an important material before the

disciplinary authority which is likely to influence its

conclusions. If the enquiry officer were only to record the

evidence and forward the same to the disciplinary

authority, that would not constitute any additional material

before the disciplinary authority of which the delinquent

employee has no knowledge. However, when the enquiry

officer goes further and records his findings, as stated

above, which may or may not be based on the evidence

on record or are contrary to the same or in ignorance of it,

such findings are an additional material unknown to the

employee but are taken into consideration by the

disciplinary authority while arriving at its conclusions. Both

the dictates of the reasonable opportunity as well as the

principles of natural justice, therefore, require that before

the disciplinary authority comes to its own conclusions,

the delinquent employee should have an opportunity to

reply to the enquiry officer's findings. The disciplinary

authority is then required to consider the evidence, the

report of the enquiry officer and the representation of the

employee against it.”

(emphasis supplied)

For the purpose of determining if prejudice has been caused by a nondisclosure, this Court held that the report must be furnished to the aggrieved

person and the employee must shoulder the burden of proving on facts that his

case was prejudiced – either the outcome or the punishment – by the nondisclosure:

“30. [v] ] The next question to be answered is what is the

effect on the order of punishment when the report of the

enquiry officer is not furnished to the employee and what

relief should be granted to him in such cases. The answer

to this question has to be relative to the punishment

awarded. When the employee is dismissed or removed

from service and the inquiry is set aside because the

report is not furnished to him, in some cases the nonfurnishing of the report may have prejudiced him gravely

while in other cases it may have made no difference to the

ultimate punishment awarded to him. Hence to direct

reinstatement of the employee with back-wages in all

PART C

cases is to reduce the rules of justice to a mechanical

ritual. The theory of reasonable opportunity and the

principles of natural justice have been evolved to uphold

the rule of law and to assist the individual to vindicate his

just rights. They are not incantations to be invoked nor

rites to be performed on all and sundry occasions.

Whether in fact, prejudice has been caused to the

employee or not on account of the denial to him of the

report, has to be considered on the facts and

circumstances of each case. Where, therefore, even

after the furnishing of the report, no different

consequence would have followed, it would be a

perversion of justice to permit the employee to

resume duty and to get all the consequential benefits.

It amounts to rewarding the dishonest and the guilty and

thus to stretching the concept of justice to illogical and

exasperating limits. It amounts to an “unnatural expansion

of natural justice” which in itself is antithetical to justice.

31. Hence, in all cases where the enquiry officer's report

is not furnished to the delinquent employee in the

disciplinary proceedings, the Courts and Tribunals should

cause the copy of the report to be furnished to the

aggrieved employee if he has not already secured it

before coming to the Court/Tribunal and give the

employee an opportunity to show how his or her case

was prejudiced because of the non-supply of the

report. If after hearing the parties, the Court/Tribunal

comes to the conclusion that the non-supply of the

report would have made no difference to the ultimate

findings and the punishment given, the Court/Tribunal

should not interfere with the order of punishment. The

Court/Tribunal should not mechanically set aside the

order of punishment on the ground that the report was not

furnished as is regrettably being done at present.

(emphasis supplied)

36 In State Bank of Patiala v. SK Sharma24, this Court noted that if a facet of

a rule of natural justice is violated on grounds of preserving public interest, the

entire proceeding is not vitiated unless prejudice has been caused to the

delinquent. A distinction was made between the complete non-abidance of the

principles of natural justice, that is where no information was disclosed and

arguments of insufficient disclosure. It was held that when the latter argument is

24 (1996) 3 SCC 364

PART C

made, the Court must determine if the insufficient disclosure caused prejudice.

This Court observed:

“28. The decisions cited above make one thing clear, viz.,

principles of natural justice cannot be reduced to any hard

and fast formulae. As said in Russell v. Duke of

Norfolk [(1949) 1 All ER 109 : 65 TLR 225] way back in

1949, these principles cannot be put in a strait-jacket.

Their applicability depends upon the context and the facts

and circumstances of each case. (See Mohinder Singh

Gill v. Chief Election Commr. [(1978) 1 SCC 405 : (1978)

2 SCR 272] ) The objective is to ensure a fair hearing, a

fair deal, to the person whose rights are going to be

affected. (See A.K. Roy v. Union of India [(1982) 1 SCC

271 : 1982 SCC (Cri) 152] and Swadeshi Cotton

Mills v. Union of India [(1981) 1 SCC 664] .) As pointed

out by this Court in A.K. Kraipak v. Union of India [(1969)

2 SCC 262] , the dividing line between quasi-judicial

function and administrative function (affecting the rights of

a party) has become quite thin and almost

indistinguishable — a fact also emphasised by House of

Lords in Council of Civil Service Unions v. Minister for the

Civil Service [(1984) 3 All ER 935 : (1984) 3 WLR 1174 :

1985 AC 374, HL] where the principles of natural justice

and a fair hearing were treated as synonymous.

Whichever the case, it is from the standpoint of fair

hearing — applying the test of prejudice, as it may be

called — that any and every complaint of violation of the

rule of audi alteram partem should be examined. Indeed,

there may be situations where observance of the

requirement of prior notice/hearing may defeat the very

proceeding — which may result in grave prejudice to

public interest. It is for this reason that the rule of postdecisional hearing as a sufficient compliance with natural

justice was evolved in some of the cases, e.g., Liberty Oil

Mills v. Union of India [(1984) 3 SCC 465] . There may

also be cases where the public interest or the

interests of the security of State or other similar

considerations may make it inadvisable to observe

the rule of audi alteram partem altogether [as in the

case of situations contemplated by clauses (b) and (c)

of the proviso to Article 311(2)] or to disclose the

material on which a particular action is being taken.

There may indeed be any number of varying situations

which it is not possible for anyone to foresee. In our

respectful opinion, the principles emerging from the

decided cases can be stated in the following terms in

relation to the disciplinary orders and enquiries: a

distinction ought to be made between violation of the

principle of natural justice, audi alteram partem, as

such and violation of a facet of the said principle. In other

words, distinction is between “no notice”/“no hearing” and

“no adequate hearing” or to put it in different words, “no

opportunity” and “no adequate opportunity”. To illustrate

— take a case where the person is dismissed from

service without hearing him altogether (as

PART C

in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 :

(1963) 2 WLR 935] ). It would be a case falling under the

first category and the order of dismissal would

be invalid — or void, if one chooses to use that

expression (Calvin v. Carr [1980 AC 574 : (1979) 2 All ER

440 : (1979) 2 WLR 755, PC] ). But where the person is

dismissed from service, say, without supplying him a copy

of the enquiry officer's report (Managing Director,

ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC

(L&S) 1184 : (1993) 25 ATC 704] ) or without affording

him a due opportunity of cross-examining a witness (K.L.

Tripathi [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] ) it would

be a case falling in the latter category — violation of a

facet of the said rule of natural justice — in which case,

the validity of the order has to be tested on the touchstone

of prejudice, i.e., whether, all in all, the person concerned

did or did not have a fair hearing. It would not be correct

— in the light of the above decisions to say that for

any and every violation of a facet of natural justice or

of a rule incorporating such facet, the order passed is

altogether void and ought to be set aside without

further enquiry. In our opinion, the approach and test

adopted in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC

(L&S) 1184 : (1993) 25 ATC 704] should govern all

cases where the complaint is not that there was no

hearing (no notice, no opportunity and no hearing)

but one of not affording a proper hearing (i.e.,

adequate or a full hearing) or of violation of a

procedural rule or requirement governing the enquiry;

the complaint should be examined on the touchstone

of prejudice as aforesaid.”

(emphasis supplied)

37 In State of Uttar Pradesh v. Ramesh Chandra Mangalik25, it was held

that the duty to disclose is confined only to material and relevant documents

which may have been relied upon in support of the charges. In that case, the

personal file of other officers was not supplied to the delinquent officer. It was

noted that such documents have not been relied upon by the enquiry officer. The

delinquent officer was not able to prove the relevance of the documents that were

suppressed. This Court observed:

“11. Learned counsel for the appellant has further

submitted that particular documents, copies of which are

said to have not been supplied are not indicated by the

respondent, much less in the order of the High Court nor

has their relevance been pointed out. The submission is

that the delinquent will also have to show as to in what

25 (2002) 3 SCC 443

PART C

manner any particular document was relevant in

connection with the inquiry and what prejudice was

caused to him by non-furnishing of a copy of the

document. In support of this contention, reliance has been

placed upon a case reported in Chandrama

Tewari v. Union of India [1987 Supp SCC 518 : 1988 SCC

(L&S) 226 : (1987) 5 ATC 369] . It has been observed in

this case that the obligation to supply copies of

documents is confined only to material and relevant

documents which may have been relied upon in

support of the charges. It is further observed that if a

document even though mentioned in the memo of

charges, has no bearing on the charges or if it is not

relied upon or it may not be necessary for crossexamination of any witness, non-supply of such a

document will not cause any prejudice to the

delinquent. The inquiry would not be vitiated in such

circumstances. In State of T.N. v. Thiru K.V.

Perumal [(1996) 5 SCC 474 : 1996 SCC (L&S) 1280]

relied upon by the appellant, it is held that it is for the

delinquent to show the relevance of a document a

copy of which he insists to be supplied to him.

Prejudice caused by non-supply of document has

also to be seen. In yet another case relied upon by the

learned counsel for the appellant, reported in State of

U.P. v. Harendra Arora [(2001) 6 SCC 392 : 2001 SCC

(L&S) 959] it has been held that a delinquent must show

the prejudice caused to him by non-supply of a copy of

the document where order of punishment is challenged on

that ground.”

(emphasis supplied)

38 In Kothari Filaments v. Commr. Of Customs26, this Court held that the

Commissioner of Customs in the exercise of its quasi-judicial powers cannot pass

an order on the basis of material which is only known to the authorities. This

Court held:

“14. The statutory authorities under the Act exercise

quasi-judicial function. By reason of the impugned order,

the properties could be confiscated, redemption fine and

personal fine could be imposed in the event an importer

was found guilty of violation of the provisions of the Act. In

the event a finding as regards violation of the provisions of

the Act is arrived at, several steps resulting in civil or evil

consequences may be taken. The principles of natural

justice, therefore, were required to be complied with.

15. The Act does not prohibit application of the principles

of natural justice. The Commissioner of Customs either

could not have passed the order on the basis of the

materials which were known only to them, copies whereof

26 (2009) 2 SCC 192

PART C

were not supplied or inspection thereto had not been

given. He, thus, could not have adverted to the report of

the overseas enquiries. A person charged with

misdeclaration is entitled to know the ground on the basis

whereof he would be penalised. He may have an answer

to the charges or may not have. But there cannot be any

doubt whatsoever that in law he is entitled to a proper

hearing which would include supply of the documents.

Only on knowing the contents of the documents, he could

furnish an effective reply….”

39 The following principles emerge from the above discussion:

(i) A quasi-judicial authority has a duty to disclose the material that has

been relied upon at the stage of adjudication; and

(ii) An ipse dixit of the authority that it has not relied on certain material

would not exempt it of its liability to disclose such material if it is

relevant to and has a nexus to the action that is taken by the authority.

In all reasonable probability, such material would have influenced the

decision reached by the authority.

Thus, the actual test is whether the material that is required to be disclosed is

relevant for purpose of adjudication. If it is, then the principles of natural justice

require its due disclosure.

40 The investigation report forms the material considering which, the Board

arrives at a satisfaction regarding whether there has been a violation of the

regulations. If it is satisfied that there has been a violation of the regulations, after

giving a reasonable opportunity to be heard, the Board is empowered to take

action according to Regulations 11 and 12. It would not suffice for the first

respondent to claim as it did before the High Court that it did not rely on the

investigation report. The ipse dixit of the authority that it was not influenced by

certain material would not suffice. If the material is relevant to and has a nexus to

PART C

the stage at which satisfaction is reached by an authority, such material would be

deemed to be important for the purpose of adjudication. The written submissions

of the Board clearly state that the findings of the investigation report are important

for the authority to decide whether there are any prima facie grounds to initiate

enforcement proceedings under Regulation 10. The relevant extract of the

submissions is reproduced below:

“It is submitted that Regulation 9 of PFUTP Regulations

require the Investigating Authority to submit the report

after completion of the investigation to the appointing

authority. However, the provision does not require

furnishing of the report to the Noticee. Further, the

investigation report is merely a culmination of documents

which the investigating authority relies on/come across

while conducting the investigation and is not a piece of

evidence in itself. It is a report which is necessary for

an authority, who orders an investigation, to decide

as to whether there are prima-facie grounds to initiate

enforcement proceedings or not. Therefore, before

the authority makes up his mind, he will either himself

investigate or direct his subordinates to investigate in

the matter. It is only after the authority receives the

report of the investigation that he can decide as to

whether action is called for or not. Therefore, the

investigation report is in the nature of inter-departmental

communications between officers investigating the matter

and authority who can decide any enforcement action

against the entity.

…..

The findings recorded in the investigation report

against the Noticee are brought out in the SCN and the

copies of all the documents that are relied upon by SEBI,

while issuing the SCN are always shared with the

concerned. The present case is no exception.”

(emphasis supplied)

41 The above extracts indicate that the findings of the investigation report are

relevant for the Board to arrive at the satisfaction on whether the Regulations

have been violated. Even if it is assumed that the report is an inter-departmental

communication, as held in Krishna Chandra Tandon (supra), there is a duty to

disclose such report if it is relevant for the satisfaction of the enforcement

authority for the determination of the alleged violation.

PART C

42 In Khudiram Das (supra), a four-Judge Bench of this Court laid down a

two-prong test for the standard of ‘relevancy’; firstly, the material must have

nexus with the order and secondly, the material might have influenced the

decision of the authority. A Constitution Bench of this Court in Karunakar

(supra) held that the non-disclosure of the relevant information is not in itself

sufficient to warrant the setting aside of the order of punishment. It was held that

in order to set aside the order of punishment, the aggrieved person must be able

prove that prejudice has been caused to him due to non-disclosure. To prove

prejudice, he must prove that had the material been disclosed to him the outcome

or the punishment would have been different. The test for the extent of disclosure

and the corresponding remedy for non-disclosure is dependent on the objective

that the disclosure seeks to achieve. Therefore, the impact of non-disclosure on

the reliability of the verdict must also be determined vis-à-vis, the overall fairness

of the proceeding. While determining the reliability of the verdict and punishment,

the court must also look into the possible uses of the undisclosed information for

purposes ancillary to the outcome, but that which might have impacted the

verdict.

43 In Natwar Singh (supra), it was held that material which is relevant to the

subject-matter of the proceedings must be disclosed, unless the scheme of the

statute indicates to the contrary. The non-disclosure of such material is prima

facie arbitrary. A deviation from this general rule was made based on the stage of

the proceedings. It was held that it is sufficient to disclose the materials relied on

if it is for the purpose of issuing a show cause notice for initiating inquiry.

However, in the present case, since the report of the investigating authority under

PART C

Regulation 9 enters into the calculus of circumstances borne in mind by the

Board in arriving at its satisfaction under Regulation 10 for taking actions as

specified in Regulations 11 and 12, it would be contrary to the Regulations to

assert that the investigation report is merely an internal document of which a

disclosure is not warranted. In any event, the language of Regulation 10 makes it

clear that the Board forms an opinion regarding the violation of Regulations after

considering the investigation report prepared under Regulation 9. Thus, the

investigation report has to be duly disclosed to the noticee. However, the right to

disclosure is not absolute. It needs to be determined if the non-disclosure of the

investigative report is protected by any of the exceptions to the rule.

C.3. Exceptions to the Duty to Disclose

44 The contention of the respondents is that since the investigation report

under Regulation 9 would also include information on “commercial and business

interests, documents involving strategic information, investment strategies,

rationale for investments, commercial information and information regarding the

business affairs of the entities/persons concerned” affecting the privacy and the

competitive position of other entities, it should not be disclosed. Buttressing this

argument, the respondent referred to clauses (d), (e) and (h) of the sub-Section

(1) of the RTI Act which states there shall be no duty to disclose information

affecting the commercial confidence or that which could harm the competitive

position of a third party or impede the process of investigation, unless there is a

larger public interest in the disclosure of information. The RTI Act attempts to

balance the interests of third party individuals whose information may be

disclosed and public interest in ensuring transparency and accountability. The

PART C

RTI Act is reflective of the parliamentary intent to facilitate transparency in the

administration, which is the rationale for the disclosure of information. This is

subject to certain defined exceptions.

45 We cannot be oblivious to the wide range of sensitive information that the

investigation report submitted under Regulation 9 may cover, ranging from

information on financial transactions and on other entities in the securities

market, which might affect third-party rights. The report may contain market

sensitive information which may impinge upon the interest of investors and the

stability of the securities market. The requirement of compliance with the

principles of natural justice cannot therefore be read to encompass the right to a

roving disclosure on matters unconnected or as regards the dealings of third

parties. The investigating authority may acquire information of sensitive nature

bearing upon the orderly functioning of the securities market. The right of the

noticee to disclosure must be balanced with a need to preserve any other thirdparty rights that may be affected.

46 In Natwar Singh (supra), this Court has observed that there are

exceptions to the general rule of disclosing evidentiary material. This Court held

that such exceptions can be invoked if the disclosure of material causes harm to

others, is injurious to public health or breaches confidentiality. While identifying

the purpose of disclosure, we have held that one of the crucial objectives of the

right to disclosure is securing the transparency of institutions. The claims of third

party rights vis-à-vis the right to disclosure cannot be pitted as an issue of public

interest and fair adjudication. The creation of such a binary reduces and limits the

purpose that disclosure of information serves. The respondent should prima

PART C

facie establish that the disclosure of the report would affect third party rights. The

onus then shifts to the appellant to prove that the information is necessary to

defend his case appropriately.

47 Applying this test to the facts, we find that the appellant is unable to prove

that the disclosure of the entire report is necessary for him to defend the case.

The first respondent made the following arguments making a prima facie case

that the disclosure of the report would violate third party rights:

(i) Investigation reports contain information on the volatile nature of the

market;

(ii) The report also contains the personal information of various

stakeholders. Disclosure will violate the right to privacy of the third party

individuals; and

(iii) It includes strategic information.

48 The appellant did not sufficiently discharge his burden by proving that the

non-disclosure of the above information would affect his ability to defend himself.

However, merely because a few portions of the enquiry report involve information

on third-parties or confidential information on the securities market, the

respondent does not have a right to withhold the disclosure of the relevant

portions of the report. The first respondent can only claim non-disclosure of those

sections of the report which deal with third party personal information and

strategic information on the functioning of the securities market.

PART C

49 Therefore, the Board should determine such parts of the investigation

report under Regulation 9 which have a bearing on the action which is proposed

to be taken against the person to whom the notice to show cause is issued and

disclose the same. It can redact information that impinges on the privacy of third

parties. It cannot exercise unfettered discretion in redacting information. On the

other hand, such parts of the report which are necessary for the appellant to

defend his case against the action proposed to be taken against him need to be

disclosed. It is needless to say that the investigating authority is duty-bound to

disclose such parts of the report to the noticee in good faith. If the investigating

authority attempts to circumvent its duty by revealing minimal information, to the

prejudice of the appellant, it will be in violation of the principles of natural justice.

The court/appellate forum in an appropriate case will be empowered to call for

the investigation report and determine if the duty to disclose has been effectively

complied with.

50 The notice to show cause issued to the appellant is for violation of the

provisions of the SEBI Act, SCRA and PFUTP Regulations. The show cause

notice has specifically referred to what was revealed during the course of the

investigation and has invoked the provisions of the PFUTP Regulations in the

allegations against the appellant. Para 8 (2) of the show cause notice is extracted

below:

“(II) It is alleged that Mr. T. Takano, during whose tenure

the business transactions with FDSL started by virtue of

his position as MD & CEO of Ricoh during FY 2012-13 to

FY 2014-15, was actively involved in committing the fraud

and had knowingly restricted the mandate given to PwC to

six month so as to succeed in hiding his role in the

commission of fraud of publishing untrue financial

statement of Ricoh which resulted in misleading the

PART D

investors about the financial performance of the company

and thereby resulted in inducement of traders in the scrip.

The said acts of the Noticee no. 2 are alleged to be

violation of regulations 3 (b), (c), (d), 4(1) and 4(2)(e), (f),

(k) and (r) of SEBI (PFUTP) Regulations, 2003 and clause

49 (V) read with 41 (II)(a) of the erstwhile Listing

Agreement.”

Since the show cause notice has specifically relied upon the report of the

investigation and invokes, inter alia, a violation of the PFUTP Regulations by the

appellant, the mandate of Regulation 10 must be complied with. However, while

directing that there should be a disclosure of the investigation report to the

appellant, it needs to be clarified that this would not permit the appellant to

demand roving inspection of the investigation report which may contain sensitive

information as regards unrelated entities and transactions.

D. Conclusion

51 The conclusions are summarised below:

(i) The appellant has a right to disclosure of the material relevant to the

proceedings initiated against him. A deviation from the general rule of

disclosure of relevant information was made in Natwar Singh (supra)

based on the stage of the proceedings. It is sufficient to disclose the

materials relied on if it is for the purpose of issuing a show cause notice

for deciding whether to initiate an inquiry. However, all information that is

relevant to the proceedings must be disclosed in adjudication

proceedings;

(ii) The Board under Regulation 10 considers the investigation report

submitted by the Investigating Authority under Regulation 9, and if it is

PART D

satisfied with the allegations, it could issue punitive measures under

Regulations 11 and 12. Therefore, the investigation report is not merely

an internal document. In any event, the language of Regulation 10 makes

it clear that the Board forms an opinion regarding the violation of

Regulations after considering the investigation report prepared under

Regulation 9;

(iii) The disclosure of material serves a three- fold purpose of decreasing the

error in the verdict, protecting the fairness of the proceedings, and

enhancing the transparency of the investigatory bodies and judicial

institutions;

(iv) A focus on the institutional impact of suppression of material prioritises

the process as opposed to the outcome. The direction of the Constitution

Bench of this Court in Karunakar (supra) that the non-disclosure of

relevant information would render the order of punishment void only if the

aggrieved person is able to prove that prejudice has been caused to him

due to non-disclosure is founded both on the outcome and the process;

(v) The right to disclosure is not absolute. The disclosure of information may

affect other third-party interests and the stability and orderly functioning of

the securities market. The respondent should prima facie establish that

the disclosure of the report would affect third-party rights and the stability

and orderly functioning of the securities market. The onus then shifts to

the appellant to prove that the information is necessary to defend his

case appropriately; and

PART D

(vi) Where some portions of the enquiry report involve information on thirdparties or confidential information on the securities market, the

respondent cannot for that reason assert a privilege against disclosing

any part of the report. The respondents can withhold disclosure of those

sections of the report which deal with third-party personal information and

strategic information bearing upon the stable and orderly functioning of

the securities market.

52 The Board shall be duty-bound to provide copies of such parts of the report

which concern the specific allegations which have been levelled against the

appellant in the notice to show cause. However, this does not entitle the appellant

to receive sensitive information regarding third parties and unrelated transactions

that may form part of the investigation report.

53 During the course of the hearing, the Court has been apprised of the fact

that though the hearing before the designated officer has been held, no orders

have been passed in deference to the pendency of the present proceedings.

Having regard to the conclusion which has been arrived at above, we direct that

after a due disclosure is made to the appellant in terms as noted above, a

reasonable opportunity shall be granted to the appellant of being heard with

reference to the matters of disclosure in compliance with the principles of natural

justice before a final decision is arrived at.

54 The disclosure in terms of the present judgment shall be communicated to

the appellant within one month from the date of this judgment and the appellant

shall be given a period of one month to respond. The officer concerned in charge

PART D

of the enquiry shall fix a date for personal hearing before taking a final decision.

The appeals are allowed in the above terms.

55 The judgment of the Division Bench of the High Court of Judicature at

Bombay dated 29 September 2020 is accordingly set aside. In the circumstances

of the case, there shall be no order as to costs.

56 Pending application(s), if any, shall stand disposed of.

…..…..…....…........……………….…........J.

[Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.

[Sanjiv Khanna]

New Delhi;

February 18, 2022

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T. Takano vs Securities and Exchange Board of India

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