IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2010
CORAM :
THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI
W.P.No.12069 of 2010
and
M.P.No.1 of 2010
P.Mohanasundaram ... Petitioner
Vs.
1.The President,
The Institute of Chartered Accountants of India,
(Set up under an Act of Parliament),
P.O.No.7100, Indraprastha Marg,
New Delhi 110 002,
2.The Chairman,
Southern India Regional Council,
The Institute of Chartered Accountants of India,
122, Mahatma Gandhi Road,
Nungambakkam, Chennai-600 034 ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records culminating in the order of the first respondent dated 16.04.2010, in order No.3SCA(4)(1)/2009-2010, and as published in Official Gazette on 19.02.2010 in the same reference number and to quash the same.
For Petitioner : Mr.R.Sankara Subbu,
For Respondents : Mr.Krishna Srinivasan
for M/s.S.Ramasubramanian &
Associates for R1 & R2,
O R D E R
On consent the writ petition is taken up for final hearing.
2.The writ petition is filed against the order of the respondents dated 16.04.2010, made in No.3SCA(4)(1)/2009-2010 in and under which the name of the petitioner is permanently removed from the register of members with effect from the date of its publication on 19.02.2010 and to quash the same.
3.The facts, relevant for consideration herein are briefly stated hereunder:
The petitioner along with three others were during 1990 prosecuted in C.C.No.8575 of 1990 for the alleged offence under Sections 494 and 109 I.P.C. for the alleged act of bigamy. The petitioner was, after full-fledged trial by Judgment dated 10.05.1999 convicted for the offence under Section 494 I.P.C. and sentenced to undergo rigorous imprisonment for one year. Against the same, the petitioner and other accused moved Crl.R.C.Nos.102 and 103 of 2000 and both the revisions are by common order dated 13.02.2003 disposed of by this Court and revision petition filed by the petitioner in his capacity as accused No.1 is dismissed, however, subject to modification of sentence by reducing the sentence of rigorous imprisonment from one year to six months. The correctness of the same was challenged by the petitioner before the Hon’ble Supreme Court in Criminal Appeal No.1385 of 2003 and the Hon’ble Supreme Court has by Judgment dated 14.11.2003 confirmed the order of conviction and modified the sentence by restricting it to sentence already suffered by the petitioner/appellant.
4.In the meanwhile, the legally wedded wife of the petitioner, at whose instance the criminal proceedings was launched, lodged a complaint on 17.09.1997 against the petitioner before the Institute of Chartered Accountants of India on 17.09.1997 with copy of the conviction order and the petitioner was called upon to submit his written statement. The petitioner submitted his written statement and comments on 08.02.2001 and 28.02.2002 respectively. The second respondent Council by its proceeding dated 29.01.2004 after considering the issue as to whether the conviction by criminal Court amounts to professional misconduct or other misconduct has arrived at a conclusion that the petitioner was not guilty of any professional or other misconduct and the file relating to the complaint is hence closed. Thereafter, the petitioner was by show-cause notice dated 29.12.2008 requested to appear for personal hearing before the Council along with his comments, on the order of the Hon’ble Supreme Court dated 14.11.2003. The petitioner has duly submitted his representation on 05.01.2009. But, the petitioner did not appear for personal hearing on 13.01.2009, on which date the Council decided to proceed with the matter in the absence of the petitioner and the outcome of the same is the impugned order dated 16.04.2010, thereby permanently removing the name of the petitioner from the register of members as notified in the public gazette.
5.The petitioner has in this petition challenged the correctness of the impugned order mainly on the ground that the earlier order passed by the second respondent Council on 29.01.2004 is only after taking into consideration the order of the Hon’ble Supreme Court dated 14.11.2003 and there is no occasion or necessity for the council to suo moto reopen the matter and the same is passed without observing any procedure and the same is hence arbitrary, illegal and is in violation of the provisions of Chartered Accountants Act (herein after referred to as ‘Act’).
6.Per contra, the learned standing counsel for the Institute of Chartered Accountants of India would seriously urge that the earlier order dated 29.01.2004 was made by the Council only by considering the complaint of the petitioner’s wife by resorting to the procedure laid down under Section 21 of the Act, without any knowledge about the order of the Hon’ble Supreme Court dated 14.11.2003 and the present impugned order passed by the Council is by exercising its power under Section 20 r/w Section 8(V) of the Act. The learned counsel for the respondents would further contend that the first order relates to the professional misconduct and the impugned order relates to the conviction passed by the competent Court and disqualification suffered by the petitioner by reason of such conviction and both the orders are passed under different provisions of law dealing with two different situations and the Council is fully empowered to pass such order of removal as specified under Section 20 r/w Section 8(V) of the Act.
7.Heard the rival submissions made on both sides and perused the materials available on record.
8. In order to appreciate the contention raised on the side of the respondents as referred to in Para 6 above the relevant provisions of law under Sections 21, 20(1)(d) r/w Section 8(V) of the Act are extracted hereunder:
“MISCONDUCT
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 recommendation thereon.”
“20. Removal from the Register
(1) The Council may remove from the Register the name of any member of the Institute–
(a) who is dead; or
(b) from whom a request has been received to that effect; or
(C) who has not paid any prescribed fee required to be paid by him;
(d)who is found to have been subject at the time when his name was entered in the Register, or who at any time thereafter has become subject, to any of the disabilities mentioned in Section 8, or who for any other reason has ceased to be entitled to have his name borne on the Register.
(2) The Council shall remove from the Register the name of any member in respect of whom an order has been passed under this Act removing him from membership of the Institute.”
“8. Disabilities
Notwithstanding anything contained in Section 4, a person shall not be entitled to have his name entered in or borne on the Register if he–
(v)has been convicted by a competent Court whether within or without India, of an offence involving moral turpitude and punishable with transportation or imprisonment or of an offence, not of a technical nature, committed by him in his professional capacity unless in respect of the offence committed he has either been granted a pardon or, on an application made by him in this behalf, the Central Government has, by an order in writing, removed the disability; or
(vi) has been removed from membership of the Institute on being found on inquiry to have been guilty of professional or other misconduct.”
9.The combined reading of the relevant provisions as extracted above would reveal that the removal of name of the member from the register by the Council for period not exceeding five years or by the High Court exceeding five years or permanently shall be passed only by way of penalty on his being found guilty of any one of the professional or other misconduct specified in the first schedule and such penalty can be imposed only pursuant to an enquiry upon any complaint made to the Council against a member by following the procedure provided under Section 21 of the Act. It further discloses that the Council is empowered to pass an order of removal from the register for any professional misconduct as specified in the first schedule for not exceeding five years and the removal for period exceeding five years or permanently for the same misconduct shall be passed only by the High Court under Section 21 of the Act. Whereas the Council itself is empowered to pass an order of removal of name of any member from the register if the member is found to have suffered any disability as mentioned in Sections 8(V) and 20 of the Act by reason of any order of conviction by the competent Court for any offence involving moral turpitude and punishable with sentence of imprisonment. Thus while permanent removal of name from the register under Section 21 shall be passed by the High Court and preceded by an enquiry by Council no such enquiry is contemplated for passing one such order of removal by the Council under Section 20 of the Act.
10.The combined reading of Sections 20 and 8(V) would thus lead to an inference that the conviction by the criminal Court for the offence specified in the same shall lead to his automatic disqualification and the order of removal passed under Section 20 of the Act is only a consequential order. Only in this legal background the orders dated 29.01.2004 and 16.04.2010 are to be appreciated.
11.It is not in dispute that the order dated 29.01.2004 is passed upon the complaint received from the petitioner’s wife and the complaint is received along with copy of the order of conviction passed by the Trial Court. The Council has, after satisfying itself that the order of conviction does not amount to any professional or other misconduct as specified in the first schedule chosen to close the file by treating the petitioner as not guilty of one such professional or other misconduct. Though the issuance of show-cause notice on 29.12.2008 is according to the petitioner, only by way of reopening the earlier file it is not actually so. The show-cause notice dated 29.12.2008 clearly explains the circumstances under which the showcause notice is issued to the petitioner. It is clearly stated in Para 2 of the notice that the order passed by the Hon’ble Supreme Court confirming the petitioner’s conviction for bigamous marriage involving moral turpitude attracted disability section 8 of the Act. The petitioner was also given adequate opportunity for submitting his explanation and making personal appearance before the Council to place his comments upon the order of the Supreme Court. However the petitioner has by his reply dated 05.01.2009 refused to submit his comments and failed to appear before the Council and the same was followed by the impugned order dated 16.04.2010. Thus, the present impugned order is passed by reason of disability suffered by the petitioner because of the order of conviction for bigomous marriage as confirmed by the High Court and Supreme Court. As it cannot be disputed that the offence for which the petitioner is convicted involves moral turpitude and as the offence is punishable with imprisonment there is no illegality or irregularity attached to the impugned order. The same is totally different one and is independently passed, on the basis of the order of the Hon’ble Supreme Court, under different provisions of law other than the one, which is resorted to on earlier occasion while dealing with the complaint given by the petitioner’s wife. Thus, for the discussions held above, this Court is of the considered view that the impugned order does not warrant any interference in this writ petition.
12.Accordingly, this writ petition stands dismissed. Consequently, connected miscellaneous petition is closed. No costs.
krk
To
1.The President,
The Institute of Chartered Accountants of India,
(Set up under an Act of Parliament),
P.O.No.7100, Indraprastha Marg,
New Delhi 110 002,
2.The Chairman,
Southern India Regional Council,
The Institute of Chartered Accountants of India,
122, Mahatma Gandhi Road,
Nungambakkam,
Chennai 600 034