JUDGMENT
Badar Durrez Ahmed, J.
1. The petitioner is a chartered accountant. On the basis of a complaint made by the respondent No. 4, the Council of the Institute of Chartered Accountants of India (Respondent No. 2) (hereinafter referred to as a Council) referred the case to the Disciplinary Committee to examine the question as to whether the petitioner was guilty of any professional or other misconduct. There were three charges framed against the petitioner. After examining the written submissions and hearing the petitioner, the disciplinary committee in its report dated 17.01.2000 in paragraph 8.3 thereof recorded as under:-
“8.3 The Respondent admitted the first charge against him, which read as follows:-
“that the Respondent demanded and received large sums of money towards advance payment and claimed expenses beyond the eligibility/entitlement as pert RBI guidelines and failed to refund the unspent money.”
The third charge was not examined by the disciplinary committee in view of the statement of the complainant that it had no evidence to support the same. Thus, in the inquiry report the disciplinary committee was concerned with the second charge only. In respect of this charge, i.e. the second charge the disciplinary committee found the petitioner to be not guilty The only charge which remained was charge No. 1 which, as aforesaid, had been admitted by the petitioner. Accordingly, the disciplinary committee concluded its report dated 17.1.2000 as under:-
“In conclusion, the Committee is of the opinion that the charge against the Respondent for having demanded and received large sums of money towards advance payment, claiming expenses beyond the eligibility/entitlement as per RBI guidelines and retaining the unspent money for a considerable period of time, is proved beyond doubt. In the opinion of the Committee, the Respondent has, therefore, committed “other misconduct” as defined in the Code of Conduct and thus guilty under Section 21 read with Section 22 of the Chartered Accountants Act, 1949.
The Committee is of the further opinion that rest of the charges against the Respondent are not proved.”
2. Based upon the admission of the petitioner, the disciplinary committee after holding the inquiry in the prescribed manner reported the result of the same to the Council. The Council considered the report of the disciplinary committee at its meetings held from 21st to 24th June, 2001 at New Delhi. Although, the complainant bank (respondent No. 4) submitted its written representation dated 29th May, 2001 on the report of the disciplinary committee nobody appeared in its behalf before the Council for making oral submissions. The petitioner submitted his written representation dated 12th June, 2001 and also appeared in person before the Council on 23rd June, 2001 and made oral submissions. The Council, upon considering the report of the disciplinary committee along with the written representation dated 29.5.2001 of the respondent No. 4, the petitioner’s representation dated 12th June, 2001 and also the oral submissions made by the petitioner before it, accepted the report of the disciplinary committee and accordingly, found the petitioner to be guilty of “other misconduct”, in terms of Section 22 read with Section 21 of the Chartered Accountants Act, 1949 (hereinafter referred to as the said Act). By a letter dated 28th September, 2001 the Council informed the petitioner of the same and also indicated to the petitioner that the Council had decided to recommend to the High Court that the petitioner’s name be removed from the register of members for a period of three months. It was also indicated that the detailed finding of the Council would be sent to the petitioner in due course.
3. Thereafter, the petitioner filed a petition before the Council on 3.6.2002 seeking a review of the “decision” of the Council taken under Section 21(5) read with Section 21(3) of the said Act on the report of the disciplinary committee. This review application dated 3.6.2002 filed by the petitioner was rejected by a letter dated 9.10.2002 sent by the Council to the petitioner. The rejection was in the following terms:-
” In this connection, we wish to inform you that, in terms of the policy decision of the Council, any review of the decision taken by the Council on matters pertaining to disciplinary cases is not permissible. We, therefore, express our inability to accede to your request in connection with the above.”
4. It is at this stage that the petitioner has approached this Court by way of this writ petition and has inter alia prayed that (a) the disciplinary proceedings pending against the petitioner be quashed; (b) the”decision” taken by the Council that the petitioner has committed “other misconduct” in terms of Section 21 and 22 of the said Act and the recommendation to this Court to remove the petitioner from the register of members for a period of three months be quashed; (c) the decision/letter dated 9.10.2002 whereby the Council rejected the petitioner’s review petition be quashed.
5. As is apparent from the aforesaid prayers the petitioner is aggrieved by the Council’s acceptance of the report of the disciplinary committee whereby the petitioner has been found to be guilty of “other misconduct” and the Council’s representation to this Court. Mainly, the petitioner is aggrieved by the fact that his review application dated 3.6.2002 was rejected without any consideration. In this context, the crucial question that arises for consideration is:-
“Whether the Council, being a quasi-judicial authority, has power to review its own decision? ”
6. If it has, then the petitioner’s review application could not have been thrown out by the Council at the threshold. If it does not have the power to review then, the petitioner’s review application could not have been entertained in law and the decision of the Council communicated vide letter dated 9.10.2002 would be valid. Thus, the root question is whether the Council has power to review. It is an admitted position that the Act does not expressly confer a power of review upon the Council. It would be relevant to note the provisions with regard to the procedure in inquiries relating to misconduct of members of the Institute of Chartered Accountants. Section 21, is the relevant provision and is as under:-
“21. Procedure in inquiries relating to misconduct of members of Institute
(1) Where on receipt of information by, or of a complaint made to it, the Council is prima facie of opinion that any member of the Institute has been guilty of any professional or other misconduct, the Council shall refer the case to the Disciplinary Committee, and the Disciplinary Committee shall thereupon hold such inquiry and in such manner as may be prescribed, and shall report the result of its inquiry to the Council.
(2) If on receipt of such report the Council finds that the member of the Institute is not guilty of any professional or other misconduct, it shall record its finding accordingly and direct that the proceedings shall be filed or the complaint shall be dismissed, as the case may be.
(3) If on receipt of such report the Council finds that the member of the Institute is guilty of any professional or other misconduct, it shall record a finding accordingly and shall proceed in the manner laid down in the succeeding sub-sections.
(4) Where the finding is that a member of the Institute has been guilty of a professional misconduct specified in the First Schedule, * the Council shall afford to the member an opportunity of being heard before orders are passed against him on the case, and may thereafter make any of the following orders, namely:-
(a) reprimand the member;
(b) remove the name of the member from the Register for such period, not exceeding five years, as the Council thinks fit:
Provided that where it appears to the Council that the case is one in which the name of the member ought to be removed from the Register for a period exceeding five years or permanently, it shall not make any order referred to in clause (a) or clause (b), but shall forward the case to the High Court with its recommendations thereon.
(5) Where the misconduct in respect of which the Council has found any member of the Institute guilty is misconduct other than any such misconduct as is referred to in sub-section (4), it shall forward the case to the High Court with its recommendations thereon.
(6) On receipt of any case under sub-section (4) or sub-section (5), the High Court shall fix a date for the hearing of the case and shall cause notice of the date so fixed to be given to the member of the Institute concerned, the Council and to the Central Government, and shall afford such member, the Council and the Central Government an opportunity of being heard, and may thereafter make any of the following orders, namely:-
(a) direct that the proceedings be filed, or dismiss the complaint, as the case may be;
(b) reprimand the member;
(c) remove him from membership of the Institute either permanently or for such period as the High Court thinks fit;
(d) refer the case to the Council for further inquiry and report.
(7) Where it appears to the High Court that the transfer of any case pending before it to another High Court will promote the ends of justice or tend to the general convenience of the parties, it may so transfer the case, subject to such conditions, if any, as it thinks fit to impose, and the High Court to which such case is transferred shall deal with it as if the case had been forwarded to it by the Council.
Explanation I:- In this section ” High Court” means the highest civil court of appeal, not including the Supreme Court, exercising jurisdiction in the area in which the person whose conduct is being inquired into carries on business, or has his principal place of business at the commencement of the inquiry:
Provided that where the cases relating to two or more members of the Institute have to be forwarded by the Council to different High Courts, the Central Government shall, having regard to the ends of justice and the general convenience of the parties, determine which of the High Courts to the exclusion of others shall hear the cases against all the membeRs.
Explanation II: – For the purposes of this section ” member of the Institute” includes a person who was a member of the Institute on the date of the alleged misconduct although he was ceased to be a member of the Institute at the time of the inquiry.
(8) For the purposes of any inquiry under this section, the Council and the Disciplinary Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) the discovery and production of any document; and
(c) receiving evidence on affidavit.”
A plain reading of the aforesaid provisions would indicate that upon a receipt of information or upon a complaint made to it and where the Council is prima facie of the opinion that any member of the Institute has been guilty of any professional or other misconduct, the Council is required to refer the case to the disciplinary committee. Thereafter, the disciplinary committee shall hold such inquiry and in such a manner as prescribed and shall report the result of its inquiry to the Council. At this point, it would be pertinent to note that the procedural aspects of looking into complaints and inquiry relating to misconduct of members are prescribed in Regulations 12 to 18 of the Chartered Accountants Regulation, 1988. These regulations have been followed in the present case and I need not examine the same in detail. After the disciplinary committee sends its report to the Council, the Council examines the same under Section 21(2) of the said Act. If the Council finds that the member is not guilty of any professional or other misconduct, it is required to record its findings accordingly and direct that the proceedings be filed or the complaint be dismissed as the case may be. However, if the Council finds that the member of the Institute is guilty of any professional or other misconduct then, in view of the provisions of Section 21(3), the Council is required to record the finding accordingly and is required to proceed in the manner laid down in the succeeding sub-sections of Section 21 of the said Act. Where the finding recorded by the Council is that the member is guilty of professional misconduct, the Council is required, by the provisions of Section 21(4), to afford to the member an opportunity of being heard before any orders are passed against him. The orders that may be passed against the member in the case of professional misconduct include that of reprimanding the member and removing the name of the member from the Register for a period not exceeding five yeaRs. However, if the Council feels that the case before it is such where the name of the members ought to be removed from the Register for a period exceeding five years or permanently, then instead of making any order by itself, it is required, under the proviso to Section 21(4) of the said Act, to forward the case to the High Court with its recommendations thereon.
7. This case is not concerned with professional misconduct inasmuch as the petitioner has been found to be guilty of “other misconduct”. As such, Section 21(4) would have no applicability in the present case. Yet, it was necessary to note the same to understand the scheme of the Act.
8. In terms of Section 21(5), where the case is one of “other misconduct, “, the Council is required to forward the case to the High Court with its recommendation thereon. In other words, the Council merely records a finding and forwards the case with its recommendation. It does not take any decision nor does it pass any ordeRs. This aspect will have a material significance as will be indicated hereinbelow.
9. On receipt of the recommendation, the High Court under Section 21(6) is required to fix a date for hearing of the case and shall cause notice of the date so fixed to be given to the member concerned, the Council and to the Central Government and it is required to afford such member, the Council and the Central Government an opportunity of being heard. After such hearing the High Court may make any of the four types of orders mentioned in Section 21(6) of the said Act. It may direct the proceedings to be filed, dismiss the complaint, reprimand the member, remove him from membership of the Institute either permanently or for such period as the High Court thinks fit or it may refer the case to the Council for further inquiry and report. In the present case, the Council has already made the recommendation and has filed the same before this Court. It is clear from the above that there is no express provision for review of the findings of the Council or the recommendations made by it. This, as indicated above, is an admitted position.
10. This being the case, Mr. Arvind Nigam, the learned counsel for the Petitioner has contended that the Council has an inherent power of review. In this context, there are two aspects to be considered in the present case. Firstly, whether any such power inheres in the Council. And secondly, whether the finding and the recommendation made by the Council thereupon can be construed to be an order or decision capable of being reviewed.
11. I take up the first question assuming that the finding and recommendation is an order or decision. It is well settled that review is a creative of statute. In the case of Patel Narshi Thakershi and Others v. Shri Pradyumansinghji Arjunsinghji, , the Supreme Court (in paragraph 4) held as under:-
“It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the government had power to review its own order.”
Again in the case of Dr. (Smt. ) Kunkesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Others, , the Supreme Court categorically held that:-
“11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction.”
In Kewal Chand Mimani (D) By LRs. v. S.K. Sen and Others, , the Supreme Court reiterates the aforesaid principles following the decision of Patel Narshi Thakershi’s case (supra) as follows:-
“In any event, law is well settled on this score that the power to review is not any inherent power and it must be conferred by law either specifically or by necessary implication. In this context, reference may be made to the decision in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji.”
11.1. So, it is clear that insofar as a quasi-judicial authority is concerned, it has no inherent power to review its own decision. The power to review must be conferred on it by statute, expressly or by necessary implication. In the present case, there is no such conferment of power of review by the said Act on the Council.
11.2. Faced with this, Mr. Nigam placed three decisions of the Supreme Court in an attempt to establish his contention that despite these well settled principles, there are still some situations where a review could be possible and that the present case was one such situation. Mr. Nigam firstly relied on the decision of the Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Others, 1980 (Supp) SCC 420 and in particular paragraph 13 thereof. It is Mr. Nigam’s contention that there are two kinds of powers to review – (a) substantive review; and (b) procedural review. According to him procedural review is inherent in any Court or tribunal. Substantive review is a creature of statute. It is his contention that the Supreme Court decision in Patel Narshi Thakershi’s case (supra) and others following it are only with respect to substantive review and do not touch upon procedural review. To examine this contention of Mr. Nigam, it is necessary to set out paragraph 13 of the Grindlays Bank Ltd. judgment (supra):-
“13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji1 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in sub-section (1) of Section 11 and not in sub-section (3) of Section 11. Furthermore, different considerations arise on review. The expression ‘review’ is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.”
Just as the decision in Patel Narshi Thakershi’s case (supra) was held to be distinguishable in the Grindlay Bank Ltd’s case (supra), the latter is distinguishable in the facts of the present case. From an examination of paragraph 13 of the Grindlays Bank’s decision (supra), it is apparent and clear that the inherent power of review is in relation to the “Court or tribunal.”By no stretch of imagination can the Council be equated with the “Court or tribunal.” The question is with regard to the existence of power of review in the case of a quasi-judicial authority and not in the case of judicial authorities. Courts and Tribunal exercise full judicial functions and poweRs. They have inherent power of review used in both senses. Quasi-judicial authorities have no inherent power of review used in either sense. In any event no procedural defect or inadvertent error is sought to be cured in the present case. The Review application was sought on the merits and on facts and would be a case of substantive review. Thus, Mr. Nigam cannot draw any support from the decision in Grindlays Bank Ltd’s case (supra).
11.3. The next case relied upon by Mr. Nigam was the decision of the Supreme Court in Indian Bank v. Satyam Fibres (India) Pvt. Ltd. , . In particular he relied upon the observations contained in paragraph 20 of the said decision to the following effect:-
“This plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man (Fraus et dolus nemini patrocinari debent).”
However, it must be noticed that the aforesaid observations were with regard to cases of fraud and it is well known that fraud vitiates everything. The present case is not one of fraud. So even these observations would be of no help to the petitioner. In any event, these observations have been explained and qualified in paragraphs 22 and 23 of the said decision itself which are set out as under:-
“22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the court’s business.
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. (See: Benoy Krishna Mukerjee v. Mohanlal Goenka3; Gajanand Sha v. Dayanand Thakur4; Krishnakumar v. Jawand Singh5; Devendra Nath Sarkar v. Ram Rachpal Singh6; Saiyed Mohd. Raza v. Ram Saroop7; Bankey Behari Lal v. Abdul Rahman8; Lakshmi Amma Chacki Amma v. Mammen Mammen.9) The court has also the inherent power to set aside a sale brought about by fraud practiced upon the court (Ishwar Mahton v. Sitaram Kumar10) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh11; Tara Bai v. V.S. Krishnaswamy Rao.12)”
From the above passages, it is apparent that the reference is to be the judiciary in India and to Courts and tribunals. Thus, the inherent power that is being referred to is the Court’s inherent power to recall its order. In this context, the crucial phrases contained in the aforesaid passages are:-
“inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers sprig not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience of its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the court’s business.”
Surely, such powers cannot be construed as having been conferred on in the Council which is neither a Court nor a tribunal. Accordingly, the decision of the Supreme Court in Indian Bank (supra) also does not help the petitioner.
11.4. Lastly, on this question of the inherent power to review, the learned counsel for the petitioner Mr. Nigam has placed reliance on the decision of the Supreme Court in the case of Budhia Swain and Others v. Gopinath Deb and others, . In particular Mr. Nigam placed reliance on paragraphs 6 to 8 thereof which read as under:-
“6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. 1 Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order.
(i) obtained by fraud practiced upon the court,
(ii) when the court is misled by a party. Or
(iii) when the court itself commits a mistake which prejudices a party.
In A.R. Antulay v. R.S. Nayak2 (vide para 130), this Court has noticed motions to set aside judgments being permitted where
(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,
(ii) a judgment was obtained by fraud,
(iii) a party has had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
7. In Corpus Jurisdiction Secundum (Vol. XIX) under the chapter “Judgment — Opening and Vacating” (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.
8. In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party, or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.”
Mr. Nigam contends that the facts of the present case fall under the category of cases mentioned in paragraph 8(i) of the aforesaid decision. In other words, it is his contention that the present case is one where proceedings culminated into an order and the proceedings themselves suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent. Therefore, according to him, the Council had the power to recall the finding as well as the recommendation made to the High Court.
11.5. There are several reasons as to why this submission on behalf of the petitioner is untenable. First of all, it is quite clear from paragraphs 6 to 8 of the aforesaid judgment itself that the power to recall that was being considered was in respect of tribunals or Courts. It was not concerned with the power of recall in the context of a quasi-judicial authority. That aspect has been dealt with and settled by the Supreme Court in the case of Dr. (Smt. ) Kuntesh Gupta’s case (supra) following the three Judge Bench decision of the Supreme Court in the case of Patel Narshi Thakershi (supra). A distinction must be drawn between the inherent powers of Courts or tribunals on the one hand and those of quasi-judicial authorities. While, tribunals and Courts have inherent powers, quasi-judicial authorities have only those powers which are conferred by statute. As such, they do not have any power to review unless specifically conferred by statute. As indicated above, the decision in Budhia Swain’s case (supra) will not apply to the facts and circumstances of the present case inasmuch as the Council has admittedly exercised quasi-judicial functions and is not a Court of tribunal exercising judicial authority and functions.
11.6. Secondly, in any event, it cannot be said that there was any lack of jurisdiction. The argument on behalf of the petitioner is that the TA/HA bills of the petitioner were based on the Reserve Bank of India’s Circular. Clause 2(v) of the Circular reads as under:-
“(v) In case of dispute between the auditors and the bank regarding settlement of their bills, the Chairman of the bank shall be the final authority to decide the claiMs. The Chairman has to satisfy himself that the actual expenses have been incurred by a particular auditor and the claims are settled keeping in view the RBI guidelines.”
According to the learned counsel for the petitioner, there was a bona fide dispute between the Bank (Respondent No. 4) and the auditors, i.e. the petitioner firm. Therefore, the dispute had to be settled by the Chairman, without which no money can be said to be due by either party. In the absence of satisfaction of this pre-condition, it is contended that the disciplinary committee and the Council proceeded on facts which were non-existent and, therefore, the entire proceedings lacked jurisdiction. It is, therefore, contended that as there was an inherent lack of jurisdiction, the Council could exercise powers of recall as indicated in paragraph 8 (i) of the decision of the Supreme Court in Budhia Swain (supra). Apart from the fact that the observations of the Supreme Court in paragraph 8 in Budhia Swain’s case (supra) pertains only to tribunals or Courts and not to quasi-judicial authorities, this argument of the petitioner is also untenable. This is so because the petitioner had admitted the first charge against him. The petitioner had admitted that he had demanded and received large sums of money towards advance payment and claimed expenses beyond the liabality/entitlement as per the RBI guidelines and failed to return the unspent money as indicated in the report of the disciplinary committee referred to above. On the face of such an admission it does not lie in the mouth of the petitioner to contend that the proceedings lacked jurisdiction. Since there is this admission, there is no question of there being any dispute left for the Chairman of the Bank or anybody else to take a decision.
11.7. Moreover, as contended by Mr. Buddy A. Ranganathan, learned counsel for respondent No. 4, the Council is a statutory body exercising its statutory duties, inter alia, of maintaining professional standards which cannot be curbed or curtailed by a RBI Circular appointing statutory auditors for banks and dealing with various aspects wholly between the petitioner and the bank. In any event, Section 21(1) of the said Act entitles and empowers the Council to act on the basis of receipt of information or of a complaint made to it. The complaint made by the complainant may be frivolous, the complaint may be untenable, yet it cannot be said that the Council did not have jurisdiction to act on the basis of the complaint or information that it may receive. The decision of the Council also may not be in accordance with the law or the facts but it cannot be said that the Council did not have the jurisdiction or that the proceedings lacked jurisdiction. In fact, in Budhia Swain’s (supra) decision itself, it is indicated in paragraph 9 thereof that a distinction has to be drawn between the lack of jurisdiction and a mere error in exercise of jurisdiction. While the former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity, a mere error in the exercise of jurisdiction does not vitiate the legality of the proceedings and the orders passed therein unless set aside in the manner known to law by a challenge subject to the law of limitation. Thus, the present case is not one of inherent lack of jurisdiction and much less a case where such purported lack of jurisdiction was patent. Thus, the reliance on the decision of the Supreme Court in Budhia’s case (supra) is also misplaced.
11.8. It is next contended by the learned counsel for the petitioner that the said Act and the said Regulation do not contain any provision which bars the Council from reviewing its own decision. Therefore, according to him, the Council has inherent power to review its own order passed on the principle of construction of statutes which states that “what is not prohibited is permitted.” I am not impressed with this argument. The very premise is wrong. The Supreme Court has clearly held and it is well settled that a quasi-judicial authority has no inherent power to review. That being the case there is a prohibition as regards review insofar as quasi-judicial authorities are concerned unless specifically provided by statute. So it is wrong to assume that Council has inherent power to review and that exercise of such power is not prohibited. It is prohibited, where is the question of it being permitted?
11.9. The learned counsel for the petitioner has also contended that the petitioner does not have any statutory right of appeal. Therefore, such a construction should be adopted to provide the parties with a remedy by permitting the Council the power of review. This argument also has no merit. It is to be remembered that what is challenged under the present proceedings are:- (a) the finding of the Council that the petitioner is guilty of “other misconduct” and; (b) that the Council had made its recommendation to the High Court. It is to be seen that when the Council has been empowered to make orders of reprimand and removal of the name of a member from the Register for a period not exceeding five years in exercise of powers vested in it under Section 21(4) of the said Act, the provision of appeal has been provided under Section 22(1) of the said Act. The appeal may be made to the High Court. This is in the case of professional misconduct. Again in the case of professional misconduct where the Council feels that it is a case where the name of the member ought to be removed from the Register for a period exceeding five years or permanently the Council has not been given the powers to make the such ordeRs. Looking at the gravity of the punishment contemplated the Act has indicated in the proviso to Section 21(4) that in such eventuality the Council shall not make any order but shall forward the case to the High Court with its recommendations thereon. Similar is the case where the Council has found a member guilty of “other misconduct”. In that case also the Council is not empower to pass any orders but it is merely to record its finding and forward the case with its recommendations to the High Court for ordeRs. In both the cases ( i.e. recommendation under Proviso to Section 21(4) and recommendation under Section 21(5) of the said Act), the High Court is empowered to pass the final orders and in such eventuality there is no appeal provided. The scheme of the Act seems to be that ultimately the final authority in cases of misconduct should be the High Court. Where the Council has been empowered to pass orders a provision for appeal to the High Court has been made where the High Court itself is to pass the orders on the recommendations of the Council, no provision of appeal has been provided for. Thus, in all eventualities, actions taken by the Council are subject to judicial review of the High Court whether in appeal or as a result of the forwarding of the case for orders by the Council. In these circumstances, it cannot be argued, as the petitioner has sought to argue, that the petitioner is without any remedy and, therefore, review should be permitted. Reference to the case of Smt. Krishna Goel v. Ajay Kumar Goel 25-CA (20)/83, where the Council decided that the report of the disciplinary committee be considered afresh after giving the parties an opportunity to be heard is also misplaced. The mere fact that in one particular case the Council decided to review its finding and recommendation does not mean that in law the Council is vested with such power of review. It appears that decision of the Council was also rendered in the peculiar facts and circumstances of the case pursuant to the Supreme Court decision in Institute of Chartered Accountants of India v. L.K. Ratna and Others, , where it was held that before a Council came to a finding an opportunity must be given to the parties to be heard. In the present case full opportunity has been given to the petitioner of being heard both before the disciplinary committee as well as before the Council. There is no violation of principles of natural justice and, therefore, the proceedings cannot be vitiated on this ground and a re-hearing/review be sought accordingly.
12. Coming now to the question of whether the finding and the recommendation of the Council under Section 21(5) of the said Act can be regarded to be an “order” or a “decision”. The learned counsel for the petitioner has placed reliance on the Dictionary meanings of the word “order”. He has referred to the Black’s Law Dictionary, Seventh Edition, page 1123: The Law Lexicon, 2nd Edition by P. Ramanatha Aiyar, at page 1373, Stroud’s Judicial Dictionary of Words and Phrases, 4th Edition page 1866-1868 and to the decision of the Madhya Pradesh, Allahabad and Andhra Pradesh High Courts reported in AIR 1971 MP 16, AIR 1953 Allahabad 718 and AIR 1957 AP 462. He has also referred to the provisions of Section 366 and 395 of the Criminal Procedure Code, 1973 and Section 256 of the Income Tax Act, 1961 which indicates that references made to the High Court are ordeRs. Relying upon all these, the learned counsel submits that the concept of an order includes a command, direction or decision of the Court or Judge including a factual finding which may have some effect and it need not be final provided that it is formally communicated. Thus, according to the learned counsel for the petitioner, the Council while exercising jurisdiction under Section 21(5) of the said Act having arrived at a factual finding and having decided that the matter be recommended and be forwarded to the High Court coupled with the fact that this decision was formally communicated to the petitioner meant that the finding as well as the recommendation fell within the ambit and scope of the word “order”. That being so, it is submitted that the same could be the subject matter of review or recall. I am unable to accept this contention of the petitioner. The entire argument has been turned on its head. It is not the word “order” that has to be construed. On the the words”finding”, “recommendation” and “forward” have to be considered. Section 21(5) of the Act requires that where the Council “has found”any member of the Institute guilty of “other misconduct” then it shall “forward” the case to the High Court with its “recommendations” thereon. Can it be construed in this context that what the Council has done has culminated in an order or decision? The Council has merely come to a finding. This finding is not immutable. The High Court can set it aside under Section 21(6) of the said Act. Further, accepting this finding, the High Court can pass any order of penalty ranging from reprimand to removal from membership. The recording of the finding by the Council in the words of the Supreme Court in the case of Institute of Chartered Accountants v. L.K. Ratna, at page 550, “is the jurisdictional springboard for the penalty proceedings which follows.” These findings get culminated into an order affecting the rights of the petitioner only when the High Court approves of it in the same way the nothings get culminated into an “order” affecting rights of parties only when it reaches the head of the department and is expressed in the name of the Governor in the manner provided in Article 166(2) of the Constitution of India as indicated by the Supreme Court in the case of State of Bihar v. Kirpalu Shanker, . Similarly, a recommendation cannot constitute an order. The word “recommend” has been defined in the Concise Oxford English Dictionary as:
“1. Put forward with approval as being suitable for a purpose or role.>advise as a course of action > advise to do something. 2 make appealing or desirable……”
The word “recommendation has been defined in Black’s Law Dictionary, Sixth Edition, inter alia, as follows:
“Recommendation refers to an action which is advisory in nature rather than one having any binding effect. People v. Gates, 41 C.A.3d 590, 116 Cal.Rptr. 172, 178.”
In the context of recommended books as different from prescribed text books the Supreme Court in the case of Narain Das v. State of M.P., observed as follows:-
“It may be noted that there is a basic distinction between recommendation and prescription of a text book. When a text book is prescribed by an appropriate authority having legal power to do so, it has to be followed by the schools. Prescription of a text book carries with it a binding obligation to follow the text book. There is no such obligation when a text book is merely recommended. Recommendation has merely a persuasive effect, it being open to the schools to accept the recommendation or to reject it as they think fit. The schools may use the recommended text book or they may not according as the Principals choose. That is why no conferment of statutory power is needed to enable the Board to recommend text books and no question of ultra vires can arise in such a case.”
It is, therefore, clear that a recommendation has no binding effect. It is merely advisory and, therefore, the recommendation which the Council makes to the High Court while forwarding the case under Section 21(5) of the said Act cannot be construed to be an order. The decision with regard to the finding as well as the penalty to be imposed in case the finding is sustained is to be taken by the High Court and an order is to be passed accordingly. In the present case that stage has not yet arrived. The recommendation has been made to the High Court and the High Court is to consider the matter. Thus, the recommendation cannot be regarded as an order. Therefore, the finding as well as the recommendation of the Council cannot be the subject matter of a review by the Council in view of the fact that the same, in any event, do not constitute an order.
13. It must, however, be noticed that the Council while rejecting the review application moved by the petitioner gave a wholly untenable reason for doing so. It rejected the review application on the ground that it was a policy decision of the Council that review by the Council in matters pertaining to disciplinary cases was not permissible. Learned counsel appearing on behalf of the Council candidly agreed that the expression “policy decision” was not appropriate and that the rejection ought to have been clearly on the ground that the Council had no power to review. However, he submitted that the very fact that an owkward expression was used to reject the review application does not enable us to detract from the legal position that the Council had no power to review and as such, the rejection of the review application must be held to be valid. I agree with this submission on behalf of learned counsel for respondents 2 and 3 that when the Council itself does not have any power to review it matters in the least in what manner and with which words the review application was rejected.
14. Learned counsel appearing on behalf of the respondents further submitted that the Council has already forwarded the case to this Court Along with its finding and recommendations in accordance with Section 21(5) of the Act and that in those proceedings this Court would in any event examine all issues that are being raised by the petitioner in the present writ petition. Accordingly, he submits that the procedure prescribed and remedy provided under the statute ought to be followed and the present writ petition ought to be dismissed. On the other hand, the learned counsel for the petitioner submits that the recommendations merely relate to the suspension of the petitioner whereas the petitioner has impugned the entire proceedings as being without jurisdiction and totally without jurisdiction. I have already found that the proceedings were not without jurisdiction. It is also wrong to suggest that the High Court will merely consider the question of suspension of the petitioner. What is forwarded to the High Court is the entire case of the petitioner. In view of the provisions of Section 2 (6) of the said Act, as explained earlier, it is open to the High Court to set aside the finding of the Council and/or disagree with the recommendation qua suspension made by the Council. Thus, the entire case both on findings as well as on punishment/sentence would be before the High Court in exercise of its powers under Section 21(6) of the said Act.
15. This is exactly what was held by the Supreme Court while examining the powers of the High Court in cases forwarded to it under Section 21 prior to the amendment of 1959 (which does not alter the position in this respect), in the case of Council of the Institute of Chartered Accountants and another v. B. Mukherjea, . In paragraph 6 it is stated thus:-
“It is clear that, in hearing references made under S. 21, sub-s (1), he High Court can examine the correctness of the findings recorded by the statutory bodies in that behalf. The High Court can even refer the matter back for further inquiry by the Council and call for a fresh finding. It is not as if the High Court is bound in every case to deal with the merits of the finding as it has been recorded and either to accept or reject the said finding. If, in a given case it appears to the High Court that, on facts alleged and proved, an alternative finding may be recorded, the High Court can well send the case back to the Council with appropriate directions in that behalf. The powers of the High Court under S. 21, sub-s (3) are undoubtedly wide enough to enable the High Court to adopt any course which in its opinion will enable the High Court to do complete justice between the parties.”
16. Furthermore, the Supreme Court in the case of Seth Chand Ratan v. Pandit Durga Prasad (D) by L.Rs, and others, 2003 AIR SCW 3078 held that
” it has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Art. 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the Court in be exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or Tribunal to take the action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief.”
17. In the case before the Supreme Court the alternative remedy of challenging the judgment of the Court was not before some other forum or Tribunal, on the contrary by virtue of Section 27 (3) of the M.P. Public Trust Act, 1951, the appeal lie to the High Court itself. In this context the Supreme Court in Seth Ratan’s case (supra) in paragraph 13 remarked as under:-
“When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High Court itself, he could not bypass the said remedy and take recourse to proceedings under Arts. 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the Statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal.”
An almost the similar situation arises in the present case. Although, it is not a case of appeal before the High Court, the present case involves determination by the High Court of the entire case of the petitioner. It is a safeguard provided in the statute itself whereby the Council is not empowered to pass the orders but the same is left to the High Court in the event the case is forwarded by the Council. It is a built-in safeguard in the statute itself and it must not be permitted to be by-passed by allowing recourse records to proceedings under Article 226 and 227 of the Constitution of India. In this view of the matter also the writ petition is liable to be dismissed.
18. In view of the foregoing discussion, it is clear that the Council possesses no power of review and in any event the present writ petition is not maintainable. Accordingly, the writ petition is dismissed. No orders as to costs.