Appeal No. 67 of 2016. Case: Prem Prakash Vs Competition Commission of India and Ors.. COMPAT (Competition Appellate Tribunal)
| Case Number | Appeal No. 67 of 2016 |
| Counsel | For Appellant: Party-in-Person |
| Judges | Rajeev Kher and Anita Kapur, Members |
| Issue | Competition Act, 2002 - Sections 19(4), 19(4)(g), 2 (r), 2 (s), 2 (t), 2(r), 2(s), 26(1), 26(2), 3(4), 4, 4(1), 4(2) |
| Judgement Date | March 09, 2017 |
| Court | COMPAT (Competition Appellate Tribunal) |
Order:
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Having failed to secure a prima-facie decision from the Competition Commission of India (for short, the 'Commission') for directing the Director General (for short, the 'DG') under Section 26 (1) of the Competition Act, 2002 (for short, the 'Act') to investigate upon his information on abuse of dominance by M/s. Power Grid Corporation of India Limited (for short, the 'Respondent No. 2/PGCIL'), the Appellant Shri Prem Prakash has preferred this appeal.
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The Appellant is the proprietor of Venus Testing & Research Laboratory, Bina (M.P.). PGCIL is a public sector company engaged in transmission of Electricity throughout India. The Appellant filed an information dated 25.04.2016 before the Commission informing that PGCIL, in order to lay transmission lines gets transmission towers erected on foundations constructed by contractors selected through a process of tendering. In order to keep a check on the quality of construction the material used by contractors is tested by selected labs in accordance with established standards. The labs are also selected through a process of tendering. PGCIL mandates that only those labs would be selected who have accreditation with NABL (National Accreditation Board for Testing and Calibration Laboratories). The Chief Vigilance Officer of PGCIL through an interoffice memorandum issued guidelines to the effect that all testing labs approved by NABL and recommended by Power Grid may be put in the website of the corporation. According to the Appellant there is nothing like an NABL approval or NABL accreditation. Accreditation is based on International Standards and Laboratories are accredited as per ISO/IEC-17025, and all those agencies who adopt management system as per ISO/IEC-17011 are eligible for providing accreditation to testing labs.
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The Appellant, through several applications under the Right to Information Act, to various agencies in the Government, Quality Council of India (QCI), NABL etc. obtained information in relation to the accreditation system for labs. On the basis of this collection of information the Appellant has stated that the Vigilance Department of PGCIL had issued an inter-office memorandum dated 20.10.2014 directing that the material should be tested from labs approved by NABL.
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It is alleged that PGCIL has put another unfair condition to promote NABL by stipulating that the accreditation will be done only by those agencies which are full members of International Laboratory Accreditation Cooperation (ILAC)/Asia Pacific Laboratory Accreditation Cooperation (APLAC) and should have a Mutual Recognition Agreement (MRA) with these bodies. It has been stated by the Appellant that in order to run an accreditation program in India it is not necessary that the accreditation body should be a member of ILAC or APLAC. QCI is the parent organization of several accrediting bodies such as NABL, NABCB, NABH etc. A membership of QCI by the accreditation body is also not mandatory in India. It has been further informed that the Central Government has also not mandated any international standard in this respect. PGCIL advertised tenders of approximately Rs. 5757 crores within three years between 2013-16. If according to the CPWD directions 1% of the total tender cost, was spent over testing of material from the laboratories, approximately Rs. 57.5 crore might have been spent by PGCIL over testing of material from laboratories. The Appellant has concluded by saying that accreditation of a lab in India is not the sole right of NABL which is also reflected in the fact that several departments such as Ministry of Environment, Forest and Climate Change, Bureau of Indian Standards, Military Engineering Services, Rail Vikas Nigam Limited, RITES Limited, FSSAI and BHEL do not insist upon testing to be done by labs accredited to NABL alone.
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The Appellant has further informed that NABL is a registered society which shows its registered office at Science and Technology Bhawan which is the headquarter of the Department of Science and Technology of the Government of India. This is done to mislead people in believing that NABL is a government department whereas actually it is not so. The appeal memo then goes on to explain NABL's alleged claim to be a government autonomous agency.
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In a nutshell the allegation in the information was that PGCIL while getting its material tested by labs insists that labs should be accredited by NABL or accreditation bodies which are full member of ILAC/APLAC and which have a MRA with ILAC/APLAC. Since NABL is the only body in India which is a full member of ILAC/APLAC and has a MRA with these two bodies, by implication...
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