National Highway Authority Of India vs Securities & Exchange Board Of India

Tarun Agarwala, Presiding Officer

The present appeal has been filed by the Appellant against the impugned order dated 26th May, 2020 passed by the Adjudicating Officer imposing a

penalty of Rs.7 lakhs for violation of Regulation 52(1) of the Securities and Exchange Board of India (Listing Obligations and Disclosure

Requirements) Regulations, 2015 (hereinafter referred to as the ‘LODR Regulations, 2015’) namely, that there was a delay in filing the half

yearly financial results for the period ending 30th September, 2018 and 31st March, 2019 within 45 days from the end of the half financial year.

The facts leading to the filing of the appeal is, that the Appellant is an autonomous body set up by the Parliament under an Act known as National

Highway Authority of India Act, 1988 (hereinafter referred to as ‘NHAI Act’) for the purpose of development, maintenance and management

of national highways. This body which is not a Company as defined under the Companies Act is listed on the Bombay Stock Exchange and National

Stock Exchange in pursuance of a Listing Agreement for Debt Securities dated 7th February, 2012 and, therefore, is subject to the provisions of the

LODR Regulations, 2015. The requirement under Regulation 52(1) of the LODR Regulations, 2015 is to file the unaudited half yearly financial results

within 45 days from the end of the half financial year.

Since the unaudited financial results ending 30th September, 2018 and 31st March, 2019 could not be filed within the stipulated period on account of

circumstances which could not be foreseen, the Appellant made a request by letters dated 31st May, 2019 and 24th June, 2019 for extension of the

period. This application was apparently made under Regulation 102 of the LODR Regulations, 2015 which was accompanied by a fee of Rs.1 lakh.

Based on the aforesaid request, Respondent sought certain clarifications which was given by the Appellant contending that the Board of National

Highway Authority of India (hereinafter referred to as ‘NHAI’) consists of Chairman, five full time Members and five part time Members

appointed by the Government of India. These part time Members includes the CEO of Niti Aoyog, Secretary (Expenditure), Ministry of Finance,

Secretary of Road Transport and Highways and D G (RD)/SS, Ministry of Road Transport and Highways and, therefore, at times it becomes

unavoidable to ensure that all the Members are present to approve the financial results. It was also clarified that the Appellant has more than 200

accounting units spread across the country and consolidation of the accounts requires a lot of coordination and at times due to unavoidable reasons the

accounts could not be placed in the meeting. It was also stated that under Regulation 4(1) of National Highways Authority of India (Transaction of

Business) Regulations, 1997 the meeting of the Board could be considered legal and valid only if it is approved by two-third of the Members.

It was urged that in view of this unforeseen circumstances, the delay in filing the unaudited financial results be condoned.

Inspite of the clarification given, the Respondent by order dated 7th October, 2019 declined to accept the request for extension of time for filing the

unaudited financial results for the half year ending 31st March, 2019 but acceded to the request for filing the audited financial results for the financial

year 2018-19 to be filed by 31st March, 2019.

Thereafter, the Appellant was served with a show cause notice dated 15th January, 2020 to show cause why penalty should not be imposed for

non-compliance of Regulation 52 of the LODR Regulations, 2015. The Appellant submitted its reply contending that due to unforeseen circumstances

as stated aforesaid the Appellant could not file the unaudited financial results within the stipulated period and submitted that in the given circumstances

for reasons which were beyond their control the delay be condoned and no penalty should be imposed.

The Adjudicating Officer after considering all aspects of the matter passed the impugned order imposing a penalty of Rs.7 lakhs. The Adjudicating

Officer held that there was repeated failure on the part of the Appellant in not filing the returns on seven occasions from financial year 2015-2016 to

financial year 2018-2019. The Adjudicating Officer further held that the contention of the Appellant that the procedural delay cannot be taken as a

mitigating factor for relaxation of the period for filing the unaudited financial results. Further, there is no provision for providing relaxation under

Regulation 52. The Adjudicating Officer held that if an act is required to be done in a particular manner and within a particular period then the same

should be done in that particular manner and time and that there cannot be any deviation. The Appellant being aggrieved by the said order has filed the

present appeal.

We have heard Mr. Rajesh Ranjan, Advocate assisted by Mr. Neeraj Matta, Advocate for the Appellant and Mr. Abhiraj Arora, Advocate assisted

by Ms. Rashi Dalmia, Advocate for the Respondent through video conferencing.

The learned counsel for the Appellant contended that in view of Section 27 of the Securities and Exchange Board of India Act, 1992 (hereinafter

referred to as the ‘SEBI Act’) no proceedings could have been initiated for imposing penalty under Section 15A of the SEBI Act unless and

until the Officers in default were identified and prosecuted under Section 27 of the Act. It was also urged that there were genuine circumstances

beyond the control of the Officers of the Appellant in as much as the financial results were prepared but the same could not be approved on account

of lack of quorum in the meeting of the Board of Appellate authority. It was urged that in view of Regulation 4 of National Highways Authority of

India (Transaction of Business) Regulations, 1997 no meeting of the Board would be legal or valid unless it was approved by two-third of the

members. It was contended that on account of composition of the Board which comprises of various dignitaries it becomes difficult to have the

minimum quorum which in turn delayed the approval of the unaudited financial results by the board. It was, thus, urged that there were extenuating

circumstances which should have been taken into consideration by the Respondent. It was also urged that an application by deposit of requisite fees

was filed under Regulation 102 of the LODR Regulations, 2015 and circumstances were indicated giving reasons for the delay in filing the returns.

The said application was rejected mechanically by the Respondent without giving any reason which was arbitrary and violative of the principles of

natural justice. The learned counsel further submitted that the factors contemplated under Section 15J of the SEBI Act was not taken into

consideration while imposing the penalty.

On the other hand, the learned counsel for the Respondent submitted that the violation under Section 52 of the LODR Regulations is admitted by

the Appellant. It was urged that there is no relaxation under Regulation 52 and, therefore, penalty was rightly imposed. The learned counsel further

urged that a procedure has been provided under Regulation 52 of the LODR Regulations to file the unaudited financial results within 45 days from the

end of the half financial year which in the instant case was not done and, therefore, penalty became automatically leviable. It was urged that on

account of the seven instances of violation, a sum of Rs.7 lakhs has been imposed which is just and proper in the circumstances of the case.

Having heard the learned counsel for the parties and, in order to appreciate the submissions, it would be appropriate to take a look at the provisions

of Regulation 52(1) and 102 of the LODR Regulations which are extracted hereunder:-

Regulation 52(1)

“Financial Results.

52(1) The listed entity shall prepare and submit un-audited or audited financial results on a half yearly basis in the format as specified by the Board

within forty five days from the end of the half year to the recognised stock exchange(s).â€​

Regulation 102

“ Power to relax strict enforcement of the regulations.

102.The Board may in the interest of investors and securities market and for the development of the securities market, relax the strict enforcement of

any requirement of these regulations, if the Board is satisfied that:

(a) any provision of Act(s), Rule(s), regulation(s) under which the listed entity is established or is governed by, is required to be given precedence to;

or

(b) the requirement may cause undue hardship to investors; or

(c) the disclosure requirement is not relevant for a particular industry or class of listed entities; or

(d) the requirement is technical in nature; or

(e) the non-compliance is caused due to factors affecting a class of entities but being beyond the control of the entities.â€​

From a perusal of Regulation 52 it is clear that a listed entity is required to prepare and submit the unaudited financial results on a half yearly basis

within 45 days from the end of the half year to the recognized stock exchange.

Admittedly, in the instant case the unaudited half yearly financial results were not filed within the stipulated period. As a result, penalty became

leviable under Section 15A(b) of the SEBI Act which is extracted hereunder:-

“15A. Penalty for failure to furnish information, return, etc.-

If any person, who is required under this Act or any rules or regulations made thereunder,-

(a) ………………

(b) to file any return or furnish any information, books or other documents within the time specified therefor in the regulations, fails to file return or

furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty of one lakh rupees for each day during which such

failure continues or one crore rupees, whichever is less;â€​

Thus, on account of a default of Regulation 52 penalty could be imposed under Section 15A of the SEBI Act.

The contention of the Appellant that Section 27 of SEBI Act should have been invoked as the offence, if any, was carried out by the Company

and, therefore, it was the onerous duty of the Respondent to identify the Officer in default and prosecute them thereafter. In our view, the submissions

of the learned counsel for the Appellant is patently erroneous. Prosecution under Section 27 of the SEBI Act can be initiated against the Company and

its Directors/Officers and persons responsible for the default but penalty proceedings can be initiated under Section 15A for non-filing of the financial

results without taking taking recourse to Sec. 27 of the Act.

The contention of the learned counsel for the Appellant that the factors enumerated under Section 15J of the SEBI Act has not been taken into

consideration while imposing penalty is patently erroneous. In the first instance, we find that the Adjudicating Officer has taken into consideration the

factors mentioned under Section 15J while imposing the penalty of Rs.7 lakhs. We may however note that the Supreme Court in Adjudicating Officer,

SEBI vs. Bhavesh Pabari, (2019) 5 SCC 90 held that the provisions of Section 15J may not apply in adjudication proceedings involving penalty under

Section 15A while determining the quantum of penalty. For facility paragraph 10 in the matter of Bhavesh Pabari (supra) is extracted hereunder:

“10. Therefore, to understand the conditions stipulated in clauses (a), (b) and (c) of Section 15-J to be exhaustive and admitting of no exception or

vesting any discretion in the adjudicating officer would be virtually to admit/concede that in adjudications involving penalties under Sections 15-A, 15-B

and 15-C, Section 15-J will have no application. Such a result could not have been intended by the legislature. We, therefore, hold and take the view

that conditions stipulated in clauses (a), (b) and (c) of Section 15-J are not exhaustive and in the given facts of a case, there can be circumstances

beyond those enumerated by clauses (a), (b) and (c) of Section 15-J which can be taken note of by the adjudicating officer while determining the

quantum of penalty.â€​

In the light of the aforesaid, it is clear that for violation of Regulation the authority of SEBI can impose penalty under the SEBI Act. However,

there is an exeption to the rule and exemption can be granted by extending the time to comply with the provisions of the Act, Rules and Regulations.

In this regard, Regulation 102 of the LODR Regulations gives power to the Board to relax the strict enforcement of the Regulations. Regulation

102(1)(e) stipulates that one of the mitigating circumstances for relaxation could be caused due to a factor which is beyond the control of the entity.

In the instant case, the Appellant is governed by a plethora of statutory rules over and above the rigor of the SEBI provisions including LODR

Regulations, 2015 and is consequently heavily burdened with compliance requirements under the SEBI Act and LODR Regulations apart from the

statutory requirement under the NHAI Act.

The Appellant is governed under the NHAI Act and the rules and regulations made thereunder which warrants involvement of a large number of

members who are highly ranked officials who are appointed by the Government of India who simultaneously discharge their duties under various other

portfolios. It thus becomes slightly tedious and cumbersome to ensure that all the members of the Board meeting come together under one roof and

get the audited or unaudited financial results approved before the stipulated period. At times, it is beyond the control of the Officers of the Appellant to

enforce strict compliance of the Act, Rules and Regulations of SEBI.

In the light of the fact that the Appellate Authority consists of members drawn from the Central Government Ministries at Secretary level rank the

Appellate Authority is a sui generis company and is unlike any other listed entity which is not saddled with the burden of government functions and

senior government functionaries who are entrusted with multifarious functions in the Union Government. It was, thus, essential for the Respondent to

consider this aspect of the matter while considering the application for extension of time under Regulation 102 of the LODR Regulations. We find that

in the instant case whereas the Respondent has granted extension of time to file the audited financial results for the year ending 2018-19 the

Respondent declined to grant extension of time to file unaudited financial results and the request was declined without assigning any reason. In our

opinion, the non-assigning of any reason in the order of 7th October, 2019 was wholly arbitrary.

The finding of the Respondent that there was a repeated failure on the part of the Appellant on seven occasions for not filing the financial results

for the financial years 2015-2016 to 2018-2019 cannot be taken into consideration as a ground for imposition of penalty of Rs.7 lakhs in as much as the

show cause notice was only confined for violation of Regulation 52 of the LODR Regulations for non-filing of the unaudited half yearly financial

results for the year ending 30th September, 2018 and 31st March, 2019. The delay in the filing of the returns for the earlier financial years stood

exempted and condoned by the respondent themselves which cannot be taken as a mitigating circumstance for imposition of penalty.

The finding of the Adjudicating Officer that Regulation 52 does not provide for relaxation of the time period and that the financial results are

required to be filed within the stipulated period is erroneous. The Supreme Court in Bhavesh Pabari’s case (supra) has clearly held that the

conditions stipulated in clause (a), (b), and (c) of Sec. 15-J are not exhaustive and, in a given case, the AO can take note of other factors which are

not specified in clause (a), (b), and (c) of Sec. 15-J of the Act.. In our view, the Adjudicating Officer also could have taken into consideration the

mitigating circumstances in addition to the factors mentioned under Section 15J while considering the imposition of penalty.

In the light of the aforeasaid, there is no doubt that if the Regulations require a particular act to be done in a particular manner and within the

stipulated period then noncompliance of the said provisions would invite imposition of penalty but the law also provides and gives power to the

respondent to relax the strict enforcement of the Regulations. We are of the opinion that the Adjudicating Officer failed to take into consideration the

mitigating circumstances as a factor under Sec. 15-J while considering the imposition of penalty.

Consequently, for the reasons stated aforesaid, we are of the view that even though there has been a violation of Regulation 52 of the LODR

Regulations but in the peculiar facts and circumstances of the present case which should not be treated as a precedent for other matters, we are of

the opinion that the imposition of penalty of Rs.7 lakhs in the given circumstances was harsh and excessive. Thus, the imposition of Rs.7 lakhs upon

the Appellant cannot be sustained and is substituted with a warning with a further condition that in the event the Appellant violates Regulation 52 of

the LODR Regulations in future it will be open to the Respondent to initiate proceedings under the Act/LODR Regulations and proceed in accordance

with law. In view of the aforesaid, the appeal is allowed in part. The penalty of Rs.7 lakhs is substituted with a warning. In the circumstances of the

case, there shall be no order as to costs.

The present matter was heard through video conference due to Covid-19 pandemic. At this stage it is not possible to sign a copy of this order nor

a certified copy of this order could be issued by the registry. In these circumstances, this order will be digitally signed by the Presiding Officer on

behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Parties will act on production of a digitally

signed copy sent by fax and/or email.