Writ petitions are liable to be rejected on the ground of availability of the alternative remedy.
A writ petition is an application filed before a Court, requesting to issue a specific writ. In India, writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India. However, a writ petition can be rejected due to many reasons such as- not filing in due time, no substantial question of law is involved or alternative remedies are there. One such case was decided by Mr. Devender Kumar Sikri (Chairperson), Mr. S. L. Bunker (Member), Mr. Sudhir Mital (Member), Mr. Augustine Peter (Member), Mr. U. C. Nahta (Member), Justice G. P. Mittal (Member) in the case of Maj Pankaj Rai, Pankaj Gupta &amp; Shri Lakshmi Reddy(informants) vs. NIIT Ltd. (Opponent Party) (Case Nos. 47, 48 &amp; 49 of 2017). The facts of the case are that the Informants have the franchisees of the Opponent Party in the city of Hyderabad and are engaged in the business of provision of computer education/ training services. They offer computer education to public for making them more proficient in use of computer software. The Informants have filed a case against the franchisee of the OP. The Informants claim that they were first granted rights to offer a computer diploma programme through the franchisee, but these rights were later cancelled by the OP, However, according to the informants’ claim, the OP has been unfairly continuing the same course at its own facility in Hyderabad’s Basheerbagh. It is further claimed that the OP has been approaching schools in the Informants’ territory directly and has been giving computer-related courses through its application ‘nguru‘. Furthermore, it is claimed that the OP has been encroaching on the region allowed under the licencing agreement, depriving the Informants of their due portion of money generated by that territory. It is claimed that the OP has a different pricing structure for its consumers in metros versus its network centres, i.e., non-metro, which is damaging to both students (customers) and franchisees because the higher rates make the franchisees’ courses uncompetitive. Furthermore, the OP has a different revenue sharing slab and licence renewal price for its franchise licensee in metros than it does for network centres. It is also alleged by the informants that the OP is engaging in market manipulation through the NIIT.tv project, which is an online platform that offers free courses. Due to this, the prospective clients in a franchisee’s region might register online and subscribe for courses through NIIT.tv. The OP is accused of damaging the franchisees’ businesses by directly selling courses to schools, universities, and working professionals via this online platform. Many other such allegations related to this matter were put by the informants against the OP. Based on the aforementioned allegations, the Informants have filed a petition the Commission and prayed to conduct an investigation into the OP’s alleged abuse of dominant position, to direct the OP to discontinue and refrain from entering into any agreement containing allegedly unfair clauses, and to direct the OP to compensate the Informants. The Commission observed that there is no prima facie case framed against the OP. It was held that OP does not possess the market power to act independently of the competitive forces in the relevant market or has the ability to affect its competitors or consumers in the relevant market in its favour. Therefore, the OP is not found to be in a dominant position in the relevant market. it was noted that the prevailing competition is compelling the OP to venture into online mode of delivery though it learning portals such as Training.com, nguru and NIIT.tv.  The prevailing competition is compelling the OP to venture into online mode of delivery. It was also observed that the OP supplies all the necessary course materials and training to its faculty members without discrimination and also equips them with the necessary equipment and training without discrimination. The Commission is of the view that no case under Section 3 is made out against the OP in the instant matters. Owing to differences in the factors such as lower awareness in non-metro areas, lack of affordability by the student in non-metros, responsibility of marketing and placements of students etc., the differential pricing of courses does not seem to be arbitrary. However, Major Pankaj Rai (Informant 1) filed various writ petitions and review petitions before the Hon’ble High Court of Hyderabad. However, the judge stated that writ petitions are liable to be rejected on the ground of availability of the alternative remedy and dismissed the writ petition and the review petition as well. Dissatisfied with the orders of Hon’ble High Court of Hyderabad, the informant moved to Hon’ble NCLAT, where the court dismissed his petition saying that there is no “sufficient cause” for not exercising the statutory right of appeal. he appeals is accordingly dismissed as being barred by limitation. The informant against challenged the orders of Hon’ble NCLAT before the Hon’ble Supreme Court of India, as a Civil Appeal, where the court dismissed his appeal by saying that the appellate tribunal has ruled that the delay in filing an appeal against the decision of a High Court judge to dismiss a petition under Article 226 could not have been acceptable. The legislation requires an appeal to be submitted within sixty days, but the appeal was filed after a delay of seven hundred days.
COMPETITION COMMISSION OF INDIA Case Nos. 47 48 and 417 Case No. 417 In re: Maj. Pankaj Rai 12 Vayupuri Road No. 2 Vayupuri Post Sainikpuri Secunderabad 500094 NIIT Limited 8 Balaji Estate First Floor Guru Ravidas Marg Kalkaji New Delhi 110019 In re: And Ms. Pankaj Gupta Flat 205 Bhavya’s Akhila Exotica Hydernagar Kukatpally Hyderabad 500072 Opposite Party Case No. 417 Informant Case No. 47 48 and 417 Opposite Party Case No. 417 Opposite Party NIIT Limited 8 Balaji Estate First Floor Guru Ravidas Marg Kalkaji New Delhi 110019 In re: And Shri Lakshmi Reddy Eddula A101 Keshavdale Apartments Anand Nagar Colony Kahiaratabad Hyderabad 500004 NIIT Limited 8 Balaji Estate First Floor Guru Ravidas Marg Kalkaji New Delhi 110019 Mr. Devender Kumar Sikri Chairperson Mr. S. L. Bunker Member Case No. 47 48 and 417 Mr. Sudhir Mital Member Mr. Augustine Peter Member Mr. U. C. Nahta Member Justice G. P. Mittal Member For Informantof the Competition Act 2002 The informations in the instant matters have been filed by Maj. Pankaj Rai in case no. 47 of 2017 Ms. Pankaj Gupta in case no. 417 and Shri Lakshmi Reddy Eddula in case no. 49 of 2017 under Section 19(1)(a) of the Case No. 47 48 and 417 Competition Act 2002 against NIIT Limited alleging contravention of the provisions of Sections 3 and 4 of the Act. This common order shall dispose of the afresaid three cases as the OP is common in all the three cases and the allegations of all the Informants are substantially similar. 3. As per the informations the Informants are the franchisees of the OP in the city of Hyderabad and are engaged in the business of provision of computer education training services. They are offering computer education to the members of public for making them more proficient in use of computer softwares and enable them to occupy different professional positions related to the use of computer. That the OP is a well known brand inter alia engaged in the business of computer education and is a global leader in skill and talent development. It offers multi disciplinary courses in management and training delivery solutions to corporations institutions and individuals in over forty countries. The Informants have contended that initially as franchisees of the OP they were granted rights to offer the Post Graduate Diploma in Banking Operations course conducted by the OP in collaboration with ICICI Bank but subsequently the OP revoked the rights for offering the said course from the Informants. It is alleged that the OP was unfairly continuing the same course at its own centre at Basheerbagh Hyderabad. It is averred that the OP is directly approaching schools located within the territories of the Informants and has been offering computer related courses through its computer teaching program ‘nguru’. Further it is alleged that the OP is encroaching into the territory allotted through the license agreement and depriving the Informants of their legitimate share of revenue from that territory. It is alleged that the OP is undercutting prices and offering courses at highly discounted prices as compared to the prices offered by the franchisees. In this regard it is alleged Case No. 47 48 and 417 that the OP has directly been entering into an agreement with ‘Accenture a global management consulting and professional service provider for its courses by offering highly discounted prices as compared to the prices available for Hyderabad city thereby eating into the revenue of the Informants. It is averred that the OP follows a differential pricing pattern for its consumers in metros vis a vis its network centres i.e. non metro which is detrimental for the students as well as the franchisees as the higher prices render the courses of the franchisees uncompetitive. Further the OP has a different revenue sharing slab and license renewal fee for its franchise licensee in metros vis a vis network centres. At network centres the revenue sharing arrangement is 70:30 in favour of the franchisees whereas there is no clear cut policy for revenue sharing between the OP and franchisees for metros nor any rationale is adopted in fixing them. The OP’s share from franchisees at metros is between 50 60 percent depending on the product and is also varied at the whims of the OP without even informing the franchisees. It is alleged that by way of NIIT.tv initiative an online platform which offers courses free of cost the OP is indulging into predatory pricing as the prospective customers in a franchisee’s territory could register online and subscribe for courses through NIIT.tv. Through this platform the OP by offering courses for schools colleges and working professionals directly is alleged to be ruining the business of the franchisees. It is averred that the OP makes invoices which are advantageous to it and the monetary values are round off to next higher value even if the value after the decimal is lower than five which is against the practices followed by convention internationally. This unethical practice of the OP deprives an unsuspecting franchise of its revenue since it believe that a system generated invoice would be error free. 10. Furthermore it is stated that the OP has arbitrarily reduced the Informants share from 20 percent to 10 percent in Imperia courses. NIIT Imperia is an initiative of the OP whereby Case No. 47 48 and 417 advanced management courses ranging from 4 to 12 months are offered to working professionals in collaboration with leading management institutes. It is alleged that such action of the OP is arbitrary and amounts to abuse of dominant position by it. It is averred that the OP is poaching customers of the franchisees through ‘Training.com an online training portal of NIIT through which courses on technology management and digital marketing are offered. The courses that are offered on Training.com are similar to the ones that are available with the franchisees. Through the said portal the OP influences students from the territory of any franchisees to register for online courses while the franchisees who have paid exorbitant license fees to the OP are not passed any corresponding benefits. 12. Based on the above the Informants have prayed to the Commission inter alia for inquiry into abuse of dominant position by the OP to direct the OP to discontinue and not to enter into agreements conveyance deeds containing clauses which have been alleged to be unfair and to direct the OP to compensate the Informants. 13. The Commission has perused the material available on record including the information and heard the parties on 12th October 2017 and also considered their respective submissions. The Commission observes that the Informants are primarily aggrieved by the conduct of the OP in abusing its dominant position through its franchise agreements in contravention of the provisions of Section 4 of the Act and indulging in anti competitive practices in contravention of the provisions of Section 3 of the Act. 14. The Commission observes that the OP has licensed the fanchisees such as the Informants to offer its advance software courses in the field of computer software education such as C C++ Advanced Excel Implementing JAVA Higher Diploma in IT Certificate in IT Diploma in ITetc.. The Commission notes that computer and IT skill training requires special knowledge on the subject and Case No. 47 48 and 417 hence is a distinct service compared to the skill training services in other professional and non professional areas in terms of its characteristics prices and end use. It is observed that the agreement entered into between the OP and each of the Informants specifies that the OP is engaged in the business of computer education and is providing professional skill training in the field of use of computers. Since the allegation in the instant matters pertains to the abusive conduct of the OP in the market for computer education services the ‘market for the provision of computer education and training services’ may be considered as the relevant product market. With respect to the relevant geographic market it is observed that the OP provides computer education services across the country through its own centers through franchisee centres as well as through online. The centres of the OP franchisees scattered across India. Further online courses on computer education are available from various location across India. Hence the relevant geographic market in these matters may be considered as ‘India. Accordingly the relevant market may be considered as ‘market for the provision of computer education and training services in India. 15. With respect to dominance of the OP in the relevant market it is observed that apart from the OP there are many other players such as Aptech CSC Computer Education Private Ltd. Jetking HCL Career Development Centre IICT Computer Academy APOLLO Computer Education and DUCAT operating in the relevant market and offering similar courses in the area of computer education as offered by the OP. As per the information available in public domain the OP has around 400 centres in the relevant market while its competitors like CSC Computer Education Private Ltd. and Aptech are having comparable number of centres in the aforesaid relevant market. It may be noted that during the oral hearing the Informant in case no. 417 had admitted that Jetking has a comparable number of Computer IT training centres as of the OP in the city of Hyderabad where the Informants have been licensed to operate. The aforesaid information indicates that the OP is operating in a competitive environment and faces rivalry from large number of similarly placed players. The presence of such large number Case No. 47 48 and 417 of players with a network centres scattered across the country acts as a competitive constraint upon the OP thereby prevents it from operate independently of the market forces in the relevant market while at the same time providing multiple options to the consumers for availing the aforesaid services. Even if the relevant market is narrowed to the city of Hyderabad the OP is not the dominant player with presence of large players like Jetking Aptech etc in the market. 16. Based on the above the Commission is of the view that the OP does not possess the market power to act independently of the competitive forces in the relevant market or has the ability to affect its competitors or consumers in the relevant market in its favour. Therefore the OP is not found to be in a dominant position in the relevant market. 17. As far as the allegation under Section 3 of the Act is concerned it is noted that the prevailing competition is compelling the OP to venture into online mode of delivery though it learning portals such as Training.com nguru and NIIT.tv. In order to improve efficiency in the market and to add value for the consumers almost all the services including professional training are imparted through online mode rather than through the traditional classroom mode to meet growing requirements of the consumers. This signifies that the OP’s conduct is not contrary to the dynamics of competition in the relevant market. Further with regard to the allegation of discrimination between franchisees it is observed that the OP supplies all the necessary course materials and trains the faculty members of the franchisees. It also equips the franchisees with curriculum courseware detailed operation manuals and process etc. without any discrimination. Owing to differences in the factors such as lower awareness in non metro areas lack of affordability by the student in non metros responsibility of marketing and job placements of students etc. the differential pricing of courses and revenue sharing agreement by the OP does not seem to be arbitrary and thus the allegations of the Informants cannot be said to be justified. Thus the Commission is of the view that no case under Section 3 is made out against the OP in the instant matters. Case No. 47 48 and 417 In the light of the above analysis the Commission finds that no prima facie case of contravention of either the provisions of Sections 3 or 4 of the Act is made out against the OP in the instant matters. Accordingly the matters are closed under the provisions of Section 26(2) of the Act. 19. The Secretary is directed to communicate to the parties accordingly. Sd Chairperson Sd Member Sd Sudhir Mital) Member Sd Member Sd Member Sd Justice G. P. Mittal) Member New Delhi Dated: 28 11 2017 Case No. 47 48 and 417 