The Appellate Bench of the CCP comprising of Mr. Khalid A. Mirza, Chairman of CCP and Ms. Rahat Kaunain Hassan, Member (Legal); here on March 16, 2010, accepted the appeal filed by M/s Fecto Belarus Tractors (Pvt.) Limited and remanded the matter back to the Member (Cartels, Monopolies & Trade Abuses) who may after giving both the parties an opportunity of hearing, pass an Order afresh as deemed appropriate under the circumstances. The Appeal was filed against the Order dated October 02, 2009 passed by a single Member whereby the complaint filed by M/s Fecto Belarus Tractors (Pvt.) Limited was dismissed in terms of the recommendations in the Enquiry Report dated 29-09-2009 (the ‘Impugned Order’). It was held in the Impugned Order that the complainant failed to make out any violation of Chapter II of the Competition Ordinance, 2009 (hereinafter referred to as the ‘Ordinance’); therefore, proceedings under Section 30 of the Ordinance could not be initiated. Hence the complaint was dismissed. The main contention of the Appellant was that it filed a complaint against Shehzad Trade Links for entering into an agreement with M/s Minsk Tractor Works in violation of Section 4 of the Competition Ordinance, 2009 (the ‘Ordinance’) and they were neither joined in the Enquiry, confronted by the Enquiry Officer nor was it confronted with the Enquiry Report before passing of the Impugned Order, therefore, the principles of the natural justice has been violated and on this score the Impugned Order is liable to be set aside. The Appellant Bench has observed that, in conducting an enquiry, opportunity of hearing is not mandatory. It was held that, a distinction needs to be made where an enquiry results into initiation of proceedings under Section 30 of the Ordinance, the Ordinance statutorily provides an opportunity of hearing; hence an opportunity of hearing during the enquiry is not mandatory. However, the Impugned Order has been passed in the matter where upon complaint filed by the Appellant, the enquiry records adverse findings against the Complainant/Appellant and the Impugned Order relying upon such findings, disposes of the complaint without providing an opportunity of hearing. This could perhaps be because of the fact that the Ordinance or the rules regulations, thereunder, do not specifically provide the procedure for disposal of complaints, where enquiry is concluded with the findings that it does not merit initiation of proceedings under Section 30 of the Ordinance. Upon consideration of the entire matter, the appellant bench held that, where a complaint has been filed and the findings of an enquiry do not indicate any prima facie violation and/or give any adverse findings against the complainant, it would be only fair and in accordance with the principles of natural justice that prior to the disposal of the complaint an opportunity of hearing be given to the complainant.
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