Case: J K Paper Limited Vs. Securities and Exchange Board of India

4. The Petitioner- JK Paper Limited is a public limited company. The Petitioner manufactures and supplies paper and board. The Respondent, Securities and Exchange Board of India, SEBI, is established under the Securities and Exchange Board of India Act, 1992.5. SEBI, in the year 1999, had framed Securities and Exchange Board of India (Employee Stock Option Scheme and Employee Stock Purchase Scheme) Guidelines, 1999 which provided for the stock-based incentive schemes to employees. On 28 October 2014, SEBI notified Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014, (Regulations of 014). SEBI has framed the Regulations of 2014 in the exercise of the power conferred by sections 11, 11A and 30 of the Act of 1992 read with section 62 of the Companies Act of 2013 and rule 12 of Companies (Share Capital and Debentures) Rules, 2014. The Regulations govern the following schemes: (a) employee stock option schemes; (b) employee stock purchase schemes; (c)stock appreciation rights schemes; (d) general employee benefits schemes; and (e)retirement benefit schemes consequent upon which the existing guidelines have been repealed. The Regulations shall apply to those companies whose shares are listed on any recognised stock exchange in India, and which fulfils the following: (i) has a scheme for the direct or indirect benefit of employees; (ii )involves dealing in or subscribing to or purchasing securities of the company, directly or indirectly; and which has a scheme set up by the company or any other company in its group; the scheme is funded or guaranteed by the company or any other company in its group; the scheme is controlled or managed by the company or any other company in its group. The Regulations of 2014 lay down various regulatory measures regarding such a scheme. The object of the Regulations of 2014 is to check and prevent manipulation of share prices in the larger interest of the investors.6. The Petitioner, in January 2004, formed an employee welfare trust named JK Paper Welfare Trust. Around ninety seven percent of its assets are shares of the Petitioner and around 4.73% of its share capital. The Trust administers Continuity Facility Assistance Scheme; Medical Assistance Scheme; Education Scholarship Scheme; and Prize Scheme for Sports.7. On 7 May 2018, the Petitioner sought clarification regarding the Regulations of 2014. By letter dated 29 June 2018, SEBI provided guidance to the Petitioner. SEBI informed that the Regulations of 2014 apply to the Petitioner.8. On 24 October 2019, the Petitioner applied seeking relaxation from the applicability of Regulations under the Regulation 29 of the Regulations of 2014, the SEBI is empowered to grant relaxation for the strict compliance of the Regulations.. Relying upon Regulation 29, the Petitioner sought exemption from the strict compliance of Regulations 1(3), 1(4), 3(1), 26(2) and 31(2)(b)(i) and (ii). Reasons for exemption were in the application.9. By communication dated 3 February 2020, the SEBI rejected the Petitioners request for exemption. The communication did not spell out any reasons for rejection. The Petitioner filed an appeal before the Securities Appellate Tribunal under the Act of 1992 and the Securities Appellate Tribunal (Procedure) Rules, 2000. The Appellate Tribunal allowed the appeal on 11 August 2020. The Appellate Tribunal held that the SEBI had to give reasons in the order rejecting the exemption application. The Tribunal directed the SEBI to pass a reasoned order within the set time limit.10. The SEBI, by an email communication dated 26 August 2020, sought certain information from the Petitioner. The Petitioner responded on 2 September 2020 and submitted information. The Petitioner sought a personal hearing before any decision is taken on the exemption application. By communication dated 7 September 2020, the SEBI informed the Petitioner to make submissions in writing by 12 September 2020. The Petitioner again, by an email dated 11 September 2020, requested an opportunity to make submissions in person. The SEBI replied on 14 September 2020 stating that according to it, all the relevant submissions have been brought on record and there is no such requirement for a personal hearing. However, the Petitioner was given liberty to file additional information through written submissions, if necessary.11. Since the request for a personal hearing was refused, the Petitioner has approached this Court with a prayer that SEBI be directed to give an opportunity of hearing to the Petitioner in respect its exemption application. The SEBI has filed its reply and has opposed the petition.

Reasoning: 17. When SEBI had rejected the application of the Petitioner for exemption/relaxation on 3 February 2020, the Petitioner filed an appeal before the Securities Appellate Tribunal. The Petitioner contended that the communication was non-speaking. The stand taken by SEBI was that it is only when an exemption is granted that the reasons need to be given. There is no obligation to provide any reasons when the exemption application is rejected. The Tribunal noted the phrase for reasons to be recorded and observed that this requirement would apply in both contingencies, i.e. for rejection of the application and for grant of the same. After interpreting the language of Regulation 29(1) in this manner, the Appellate Tribunal also made a general comment on the evolution of law regarding the right to information. In paragraph-11 of the order, the Appellate Tribunal observed thus:11. We would also like to reiterate at this stage that implementation of the Right to Information Act, 2005 and the various judgments emanating on/from the same have emphasised the need for greater transparency as well as for providing reasons, at least in brief, in even in ordinary administrative communications issued by various authorities. Therefore, application of such transparency requirements on the part of quasi-judicial authorities has to be of a much higher order.Petitioners sole emphasis is on the last line of this paragraph. No other observation is shown to us. Except for a general reference to the quasi-judicial authorities in this sentence, there is no finding by the Appellate Tribunal much less any specific finding interpreting Regulation 29. Therefore, the contention of the Petitioner that because of the finding of the Appellate Tribunal that exercise of power under Regulation 29 being quasi-judicial, personal hearing has to be provided cannot be accepted. We do not need to comment on the interpretation of Regulation 29 by the Appellate Tribunal regarding providing of reasons while not granting the exemption, as the said issue is not debated before us in this petition.20. We find no merit in the consequence-based argument that is that since serious consequences would flow from the rejection of the exemption under Regulation 29, a personal hearing must be mandated. No such absolute proposition, without reference to the scheme and purpose of the statutory instrument in question, can be accepted. Having governed by the Regulations, if any entity is in breach thereof, the consequences would follow as provided in Regulation 30, unless the entity is exempted. Liability thus originates from the breach of the Regulations 2014. Refusal to grant an exception under Regulation 29 is not the origin of liability. Grant of exemption is a matter of exception from the general rule contained under the Regulations. The contention of the Petitioner that right of personal hearing must follow because the power under Regulation 29 is a quasi-judicial power, cannot be accepted.23. However, in the case of Sahara India, the Supreme Court has further observed that reading of requirement of personal hearing in a statute when there are consequences cannot be applied as a rule. The Supreme Court has observed that no general rule of universal application can be laid down to the applicability of principle audi alteram partem in addition to the provision. The Supreme Court has clarified this position in the judgment in the case of Gorkha Security Services v. Government (NCT of Delhi)(2014) 9 SCC 105   , wherein the appellant before the Supreme Court had questioned the form and content of show cause notice to be issued to blacklist the petitioner. One question framed by the Supreme Court was the necessity to serve show cause notice as requisite of principles of natural justice. The Supreme Court observed that once a show cause notice is given and an opportunity is accorded to give a reply, it is not necessary to give personal hearing. The case of State Bank of India v. M/s.Jah Developers Pvt. Ltd.Civil Appeal No.4776/2019 decided on 8 May 2019. , came up before the Supreme Court in respect of the declaration of a borrower as a willful defaulter under the circulars issued by the Reserve Bank of India. The question was whether an advocate ought to be allowed to represent the borrower before the Committee taking a decision. The issue was answered in negative. The Supreme Court, in State Bank of India, reiterated the principle that natural justice is a flexible tool used in order to arrive at a just result and such result can be achieved without a personal hearing, on written representations given by the parties. The Petitioner seeks to distinguish these two judgments on the ground that these judgments pertain to show cause notice for which nature of the proceeding is different and in the present case, according to the Petitioner, non-grant of exemption would straightway result in serious consequences. This cannot be the sole ground for distinguishing the dicta laid down. In the case of State Bank of India, the Supreme Court has emphasized that what is required is a just result. Therefore, the purpose, ambit and the measures under the statutory instrument have to be seen.24. The Regulations of 2014 are a code in itself. They regulate employee stock option schemes in the larger interest of the investors. They incorporate conditions, regulate the activity and provide for consequences. The reason for exemption can be elaborated in the application. If additional material is required, it can be submitted. Based on this material, SEBI will take a decision whether to grant exemption or refuse it. The conditions to be imposed are in the interest of the investors. Thus, it is for the SEBI to deliberate upon the extent and ambit of the conditions. This process can be easily achieved by the Petitioner by submitting submissions in writing. If SEBI finds that exemption need not be granted, it will give reasons for the same which can be tested in appeal. If the conditions are arbitrarily imposed or that the exercise is perverse, the validity can be challenged. The Petitioners argument proceeds on the footing that the principles of natural justice in all circumstances include personal hearing which is not a correct position of law. The Petitioner also erroneously proceeds on the basis that the need and extent of imposition of conditions can be a matter of debate for which personal hearing is required. As stated earlier, the power in question is a discretionary power and the use of this discretion can be challenged in appeal within the well settled parameters. Full transparency is maintained by permitting written submissions providing reasons and the right to appeal .25. It is a settled position that the requirement of compliance with the principle of natural justice can vary in different situations and conditions. Even where situations where principles of natural justice require an opportunity of hearing, it does not in all circumstances mean a personal hearing. SEBI has placed two Regulations before us and has pointed out two of the provisions. First is Regulation 5 of the SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 2011. It incorporates a condition of giving a reasonable opportunity. Second is Regulation 25A(4) of the SEBI (Delisting of Equity Shares) Regulation, 2009. It provides for a reasonable opportunity of being heard to the applicant before deciding exemption application. Therefore whenever it is found necessary to provide for an opportunity, SEBI has expressly incorporated it in such provisions. No such stipulation is found in the Regulation at hand.26. The apprehension expressed by the SEBI that by reading duty to give personal hearing in this Regulation would have adverse ramifications on its working cannot be said to be unwarranted. The SEBI has framed several regulations on various aspects of the securities market. A large number of applications are filed before it. It will hamper the functioning of the SEBI if the exercise of its every power is preceded by mandatory personal hearing, whether the regulation provides for it or not.27. We conclude, therefore that there is no duty on the Board while considering an exemption application under Regulation 29 of the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014, to give a personal hearing to the applicant.As rightly pointed out by SEBI, there is no such formation of opinion.There were no reasons given in the earlier order. The Petitioner has submitted the relevant material. Petitioner has also been given an opportunity to submit additional written submissions. Once there is no requirement of a personal hearing under Regulation 29, we do not find that there is a special case made out by the Petitioner or any extraordinary circumstances exist to give special direction for the Petitioner.19. The power to grant relaxation under Regulation 29 is a discretion to be exercised by the SEBI, and the conditions to be imposed are in the interest of the investors. Besides contending that serious consequences would flow from not granting exemption nothing else is pointed out to us as to how the exercise of this power can be called as quasi-judicial power to import duty of personal hearing.14. The Petitioners have not challenged the applicability of the Regulations of 2014 in this petition, and we proceed on the basis that the Petitioner is governed under the said regulations.3. The question therefore is: whether the Board is obliged to grant a personal hearing to the petitioner while considering an exemption application under the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014.The answer is-No.