{"id":80341,"date":"1997-07-11T00:00:00","date_gmt":"1997-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-institute-of-chartered-vs-ms-price-waterhouse-anr-on-11-july-1997"},"modified":"2015-10-11T21:39:12","modified_gmt":"2015-10-11T16:09:12","slug":"the-institute-of-chartered-vs-ms-price-waterhouse-anr-on-11-july-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-institute-of-chartered-vs-ms-price-waterhouse-anr-on-11-july-1997","title":{"rendered":"The Institute Of Chartered … vs M\/S. Price Waterhouse & Anr on 11 July, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Institute Of Chartered … vs M\/S. Price Waterhouse & Anr on 11 July, 1997<\/div>\n
Author: K Ramaswamy<\/div>\n
Bench: K. Ramaswamy, G. B. Pattanaik<\/div>\n
           PETITIONER:\nTHE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA\n\n\tVs.\n\nRESPONDENT:\nM\/S. PRICE WATERHOUSE & ANR.\n\nDATE OF JUDGMENT:\t11\/07\/1997\n\nBENCH:\nK. RAMASWAMY, G. B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nK. Ramaswamy, J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     This appeal  by special  leave arises from the Judgment
\nand Order  of the High Court of Delhi, made on September 12,
\n1996 in Civil Writ No. 676 of 1994.\n<\/p>\n
     The Export-Import\tBank of\t India (for short, the ‘EXIM
\nBANK) commissioned  the services  of the  respondent firm to
\nassist it  in the  preparation of  a book  entitled “India –
\nYour Software  Opportunity”. The  need for  such booklet was
\nexplained by  the EXIM\tBank at\t the  inside  cover  of\t the
\nbooklet which reads as under :\n<\/p>\n
     “The information  set out\tin  this
\n     publication,  meant   for\t general
\n     guidance,\thas   been  compiled  by
\n     Price  Waterhouse\t(India)\t at  the
\n     instance of  the  Export  –  Import
\n     Bank of  India (EXIM  BANK).  While
\n     the booklet  is not  intended to be
\n     an\t exhaustive   Treatment\t of  the
\n     subject, the  information contained
\n     is\t   based    on\t  sources    and
\n     interpretations of applicable Legal
\n     provisions believed  to be reliable
\n     for which,\t however, both Exim Bank
\n     and Price\tWaterhouse  (India)  are
\n     unable to assume any Liability. For
\n     further information, clarifications
\n     and assistance,  interested parties
\n     may    communicate\t   with\t   Price
\n     Waterhouse offices located at:
\n     1102\/1107, Raheja Chambers, Nariman
\n     Point, Bombay – 400021.\n<\/p><\/blockquote>\n
     Telephones :  235138\/2870466. Talex
\n     : (011) 5791.\n<\/p><\/blockquote>\n
     B-102, Himalaya House, 23, Kasturba
\n     Gandhi Marg, New Delhi – 110001.
\n     Telephones : 3313591\/3312656. Telex
\n     : (031) 63070.”<\/p><\/blockquote>\n
     The  appellant-Council   had  at\ttreated\t  the\tsaid
\npublication as\tamounting to  solicitation  of\tprofessional
\nattainments, violating\tclauses (6)  and (7)  of Part  I  of
\nFirst Schedule\tto the\tChartered Accountants Act, 1949 (for
\nshort,\tthe   ‘Act’)  and  called  upon\t the  respondent  by
\nproceedings dated  December 13, 1990 to send the name of the
\nmembers who  were answerable to the charge of misconduct. On
\nJanuary\t 26,  1991,  respondent\t No.2,\tShri  Amal  Ganguli,
\npartner of the first respondent filed his written statement.
\nOn consideration thereof, by proceedings dated 5-6th August,
\n1991,  the  Council  prima  facie  opined  that\t the  second
\nrespondent  and\t  referred  the\t case  to  the\tDisciplinary
\nCommittee for enquiry and report. The Disciplinary Committee
\nsubmitted its  report on  January 16, 1993. The Disciplinary
\nCommittee sent a copy of the report to the second respondent
\ninforming him  that if\the  so\tdesired,  he  may  send\t his
\nrepresentation against\tthe said  report within\t 30 days. By
\nfurther letter\tdated July  6, 1993,  it was communicated to
\nhim that  the report  of the Disciplinary Committee would be
\nconsidered by the Council in its meeting from August 5 to 7,
\n1993 and  that he  can appear in person or through a member.
\nOn August  5, 1993, he sent a letter stating that the report
\nof the\tDisciplinary Authority\tmay be accepted. On the even
\ndate,  the  Council,  after  considering  the  report  dated
\nJanuary 16,  1993 and  the written submissions of the second
\nrespondent dated 5, 1993 came to the conclusion that further
\nenquiry was  necessary and  decided that the further enquiry
\nshould\tbe  made  by  the  Disciplinary\t Committee.  It\t was
\ncommunicated to\t him by\t letter dated  December 21, 1993. On
\nreceipt thereof,  the from  respondent on  February 2, 1994,
\nfiled the  above writ petition in the High Court challenging
\nthe power of the Council to refer the matter to Disciplinary
\nCommittee  for\tfurther\t enquiry.  The\tHigh  Court  in\t the
\nimpugned judgment opined that by operation of the Regulation
\n16 made\t under the  Act, the Council was devoid of the power
\nto  direct   the  Disciplinary\tCommittee  to  hold  further
\nenquiry. Accordingly,  it quashed  the letter dated December
\n21, 1993 and allowed the writ petition. Thus, this appeal by
\nspecial leave.\n<\/p>\n
     Shri Vaidyanathan,\t learned counsel  appearing for\t the
\nappellant, contends  that the  view taken  by  the  Division
\nBench is not correct in law. Section 21 of the Act read with
\nRegulation 16(3)  and (4)  gives power\tto  the\t Council  to
\ndirect the  Disciplinary Committee,  which is a fact-finding
\ncommittee, to  make further  enquiry and to submit a report.
\nThe power under Section 21(2) of the Act should be used only
\nafter the  Council reaches  the conclusion  that the  second
\nrespondent was\tnot guilty  of\tprofessional  misconduct  of
\nother misconduct. The council would take further action only
\nafter consideration of further report to be submitted by the
\nDisciplinary  Committee.   The\tview   of  the\tHigh  Court,
\ntherefore, is  incorrect. If  the view\tof the High Court is
\nupheld, the  primacy would  be given  to the  report of\t the
\nDisciplinary Committee\tdenuding the power to the Council to
\nmaintain discipline among the members of the Institute which
\nis deleterious\tto maintain  discipline among  its  members.
\nShri P.P.  Rao, learned\t senior counsel\t appearing  for\t the
\nrespondents,  on   the\tother\thand,  contends\t  that\t the
\nprovisions, being  penal in  nature, require to be construed
\nstrictly.  The\t Disciplinary  Committee   is  a  high-power
\ncommittee constituted  under the  Act. If  the\tDisciplinary
\nCommittee finds\t that the  guilt of  misconduct has not been
\nproved, the Council is left with no option but to accept the
\nfinding of  no-guilt and  record the  same under sub-section
\n(2) of\tSection 21.  In case the finding of the Disciplinary
\nCommittee that the member is guilty is not acceptable to the
\nCouncil, only  then, the  Council has  power to remit to the
\nDisciplinary Committee for further enquiry and the operation
\nof  Regulation\t 16(4)\twould\tcome  into   play.  In\tthat
\nperspective, on\t a  harmonious\tinterpretation\tof  all\t the
\nprovisions, the finding of the high power committee, namely,
\nthe Disciplinary  Committee, should  always be given primacy
\nand serious consideration by the Council before accepting or
\ncalling for  further report. From this perspective, the view
\nof the\tHigh Court  is correct in law. He also contends that
\nthe Council  has not  applied its  mind to the imputation of
\nmisconduct as reflected in paragraph 10 of the Special Leave
\nPetition.  Therefore,  it  has\tnot  applied  its  mind\t and
\nmechanically  acted   upon  to\trefer  to  the\tDisciplinary
\nCommittee for  further enquiry. A reading of the publication
\nitself does  not posit\tof any\tprofessional  misconduct  or
\nother misconduct  to be dealt with under the Act. Therefore,
\nthere is  no case  made out  warranting\t interference  under
\nArticle 136 of the Constitution.\n<\/p>\n
     Having  regard   to  the  respective  contentions,\t the
\nquestion that  arises for consideration is: whether the view
\ntaken by the High Court is correct in law? The High Court in
\nthe impugned judgment has held thus:\n<\/p>\n
     “The scheme  of  Regulation  16  is
\n     clear and\tunambiguous that in case
\n     of\t     disciplinary      committee
\n     concluding that  a\t member\t is  not
\n     guilty, it is the end of the matter
\n     and  the  disciplinary  proceedings
\n     have to  be dropped by the Council.
\n     In\t  case\t the   report\tof   the
\n     disciplinary  committee  finds  the
\n     member guilty,  another opportunity
\n     is granted\t to the\t member to  make
\n     representation and on consideration
\n     of\t   the\t   report    and     the
\n     representation, if any, the Council
\n     can cause\tfurther\t enquiry  to  be
\n     held. The\tfinding of misconduct is
\n     a serious\tmatter for  a member and
\n     casts  a\tstigma\t on   him   and,
\n     therefore, it  appears that Council
\n     has been empowered to get a further
\n     enquiry conduct  on being satisfied
\n     on the  representation of\ta member
\n     or otherwise  even after receipt of
\n     a\treport\t from  the  disciplinary
\n     committee\tto  the\t effect\t that  a
\n     member  is\t guilty\t of  misconduct.<\/p><\/blockquote>\n
     There is,\thowever, no  such  power
\n     when     disciplinary     committee
\n     exonerates\t   a\tmember\t  since.
\n     Regulation\t 16   does  not\t  permit
\n     further enquiry  to be  held by the
\n     disciplinary committee  when it has
\n     concluded that  the member\t is  not
\n     guilty of any professional or other
\n     misconduct.  When\twe  compare  old
\n     Regulation\t 14   with  the\t present
\n     Regulation\t 16,  we  find\ta  clear
\n     departure\tin   the   language   of
\n     Regulation 16.  Regulation\t 14  was
\n     wider in its scope and ambit. Under
\n     the   said\t   Regulation\tit   was
\n     permissible   to\t cause\t further
\n     enquiry being  held even  where the
\n     report    of    the    disciplinary
\n     committee was  that the  member  is
\n     not guilty\t of any\t professional or
\n     other misconduct.\tRegulation 16 is
\n     narrow in\tits scope and ambit when
\n     compared to  the old Regulation 14.
\n     The Regulation  cannot  be\t without
\n     any purpose.”<\/p><\/blockquote>\n
     On that  basis, it\t was held  that the  report  of\t the
\nDisciplinary Committee\tbeing that  the respondent  was\t not
\nguilty of  any professional misconduct within the meaning of
\nclauses (6)  and (7)  of Part I of the First Schedule of the
\nAct,  the  Council  had\t no  power  to\tdirect\tDisciplinary
\nCommittee to hold further enquiry. With a view to appreciate
\nthe correctness\t of the\t above view, it is necessary to look
\ninto the  relevant provisions of the Act and the Regulations
\nmade thereunder.\n<\/p>\n
     Section 2(b)  defines ‘Chartered  Accountant’ to mean a
\nperson who  is a  member  of  the  Institute.  Section\t2(c)
\ndefines ‘Council’  to mean  the Council\t of  the  Institute.
\nUnder  Section\t2(e)  ‘Institute’  means  the  Institute  of
\nChartered Accountants  of India\t constituted under  the Act.
\n‘Registered Accountant’ is define under Section 2(h) to mean
\nany  person  who  has  been  enrolled  on  the\tregister  of
\nAccountants maintained\tby the\tCentral Government under the
\nAuditor’s  Certificates\t  Rules,  1932.\t  A  member  of\t the
\nInstitute  shall   be  deemed  “to  be\tin  practice”,\twhen
\nindividually or in partnership with Chartered Accountants in
\npractice, he,  in consideration\t of remuneration received or
\nto be  received, as  postulated by  sub-section (2) thereof,
\nengages himself\t in the practice of accountancy or offers to
\nperform or  performs  services\tinvolving  the\tauditing  or
\nverification of\t financial transactions,  books, accounts or
\nrecords, or  the preparation,  verification or certification
\nof financial  accounting and  related  statements  or  holds
\nhimself out  to the  public as\tan  accountant;\t or  renders
\nprofessional services  or assistance  in or about matters of
\nprinciple or  detail relating to accounting procedure or the
\nrecording presentation\tor certification  of financial facts
\nor date or renders such other services as, in the opinion of
\nthe  Council,\tare  or\t may  be  rendered  by\ta  chartered
\naccountant in  practice and  the words\t‘to be\tin practice’
\nwith their  grammatical variations  and cognate\t expressions
\nshall be  construed  accordingly.  The\texplanation  is\t not
\nrelevant for  the purpose,  hence omitted.  Section 5  deals
\nwith “Fellows  and Associates”\tof the\tInstitute. Section 6
\ndeals with  certificate of  practice. Section  7 deals\twith
\n“Members to  be known  as Chartered  Accountants”. Section 9
\ndeals  with   the  “Constitution   of  the  Council  of\t the
\nInstitute”  for\t  the  management  of  the  affairs  of\t the
\nInstitute and  for discharging\tthe functions assigned to it
\nunder the  Act, the details thereof are not relevant for the
\npurpose of  this case.\tThe “duration and dissolution of the
\nCouncil” is  dealt with\t under Section\t14.  Section  19  in
\nChapter IV  deals with\tthe “Register” of Members, Chapter V
\nwith the  heading ‘Misconduct”\twhich comprise. Sections 21,
\n22 and\t22A. Section  21 is relevant for the purpose of this
\ncase which reads as under:\n<\/p>\n
     “21. Procedure\tin     inquiries
\n     relating to  misconduct of\t members
\n     of Institute
\n     (1)  Where\t   on\t  receipt     of
\n     information by,  or of  a complaint
\n     made to  it, the  Council is  prima
\n     facie of opinion that any member of
\n     the Institute  has been  guilty  of
\n     any    professional     or\t   other
\n     misconduct, the Council shall refer
\n     the  case\t to   the   Disciplinary
\n     Committee shall thereupon hold such
\n     enquiry and  in such  manner as may
\n     be prescribed, and shall report the
\n     result  of\t  its  inquiry\t to  the
\n     Council.\n<\/p>\n
     (2)  If on\t receipt of  such report
\n     the Council  finds that  the member
\n     of the  Institute is  not guilty of
\n     any    professional     or\t   other
\n     misconduct,  it  shall  record  its
\n     finding accordingly and direct that
\n     the proceedings  shall be\tfiled or
\n     the complaint  shall be  dismissed,
\n     as the case may be.\n<\/p>\n
     (3)  If on\t receipt of  such report
\n     the Council  finds that  the member
\n     of the  Institute is  guilty of any
\n     professional or  other  misconduct,
\n     it\t  shall\t   record   a\t finding
\n     accordingly and  shall  proceed  in
\n     the  manner   laid\t down\tin   the
\n     succeeding sub-sections.\n<\/p>\n
     (4)  Where the  finding is\t that  a
\n     member of\tthe Institute  has  been
\n     guilty of a professional misconduct
\n     specified in  the\tFirst  Schedule,
\n     the Council  shall\t afford\t to  the
\n     member of\tan opportunity\tof being
\n     heard  before   orders  are  passed
\n     against him  on the  case, and  may
\n     thereafter\t  make\t  any\tof   the
\n     following orders, namely:-\n<\/p>\n
\t  (a)  reprimand the member ;\n<\/p>\n
\t  (b)  remove the  name\t of  the
\n     member from  the Register\tfor such
\n     period, not  exceeding five  years,
\n     as the Council thinks fit :\n<\/p>\n
     Provided that  where it  appears to
\n     the Council that the case is one in
\n     which the\tname of the member ought
\n     to be removed from the Register for
\n     a period  exceeding five  years  or
\n     permanently, it  shall not make any
\n     order referred  to in clause (a) or
\n     clause (b),  but shall  forward the
\n     case to  the High\tCourt  with  its
\n     recommendations thereon.\n<\/p>\n
     (5)  Where\t  the\t misconduct   in
\n     respect of\t which the  Council  has
\n     found any\tmember of  the institute
\n     guilty is misconduct other than any
\n     such misconduct  as is  referred to
\n     in\t sub-section   (4),   it   shall
\n     forward the  case to the High Court
\n     with its recommendations thereon.\n<\/p>\n
     (6)  On receipt  of any  case under
\n     sub-section (4) or sub-section (5),
\n     the High Court shall fix a date for
\n     the hearing  of the  case and shall
\n     cause notice  of the  date so fixed
\n     to be  given to  the member  of the
\n     Institute\tconcerned,  the\t Council
\n     and to  the Central Government, and
\n     shall afford  such member,\t and the
\n     Central Government\t an  opportunity
\n     of being  heard, and may thereafter
\n     make any  of the  following orders,
\n     namely :-\n<\/p>\n
\t  (a)  direct\t   that\t     the
\n     proceedings be  filed,  or\t dismiss
\n     the complaint, as the case may be;\n<\/p>\n
\t  (b)  reprimand the member;\n<\/p>\n
\t  (c)  remove\t   him\t    from
\n     membership of  the Institute either
\n     permanently or  for such  period as
\n     the High Court thinks fit;\n<\/p>\n
\t  (d)  refer  the  case\t to  the
\n     Council  for  further  inquiry  and
\n     report.\n<\/p>\n
     (7)  Where it  appears to\tthe High
\n     Court that the transfer of any case
\n     pending before  it to  another High
\n     Court  will  promote  the\tends  of
\n     justice  or  tend\tto  the\t general
\n     convenience of  the parties, it may
\n     so transfer  the case,  subject  to
\n     such  conditions,\tif  any,  as  it
\n     thinks fit\t to impose, and the High
\n     Court  to\t which\tsuch   case   is
\n     transferred shall\tdeal with  it as
\n     if the  case had  been forwarded to
\n     it by the Council.<\/p>\n
     Explanation  I:-  In  this\t section
\n     “High  Court”   means  the\t highest
\n     civil   court    of   appeal,   not
\n     including\t the\tSupreme\t  Court,
\n     exercising jurisdiction in the area
\n     in which  the person  whose conduct
\n     is being  inquired into  carried on
\n     business,\tor   has  his  principal
\n     place   of\t   business    at    the
\n     commencement of the inquiry:\n<\/p>\n
     Provided  that   where   the   case
\n     relating to  two or more members of
\n     the Institute  have to be forwarded
\n     by the  Council to\t different  High
\n     Courts,  the   Central   Government
\n     shall, having regard to the ends of
\n     justice and the general convenience
\n     of the  parties, determine which of
\n     the High Courts to the exclusion of
\n     others shall hear the cases against
\n     all the members.\n<\/p>\n
     Explanation II:- For the purpose of
\n     this   section   “member\tof   the
\n     Institute” includes  a  person  who
\n     was a  member of  the Institute  on
\n     the date  of the alleged misconduct
\n     although he  has  ceased  to  be  a
\n     member of the Institute at the time
\n     of the inquiry.<\/p>\n
     (8)  For  the   purposes\tof   any
\n     inquiry  under  this  section,  the
\n     Council   and    the   Disciplinary
\n     Committee\tshall\thave  the   same
\n     powers as\tare vested  in\ta  civil
\n     court  under   the\t Code  of  Civil
\n     Procedure, 1908,  in respect of the
\n     following matters, namely:-\n<\/p>\n
\t  (a)  summoning  and  enforcing
\n     the attendance  of any  person  and
\n     examining him on oath;\n<\/p>\n
\t  (b)  the     discovery     and\n     production of any document; and\n\t  (c)  receiving   evidence   on\n     affidavit.\n     \"Professional    misconduct\"     is\n<\/pre>\n
     defined in\t Section 22, which reads
\n     as under ;\n<\/p>\n
     “22.    Professional     misconduct
\n     defined
\n\t  For the  purposes of this Act,
\n     the    expression\t   “professional
\n     misconduct”  shall\t  be  deemed  to
\n     include   any   act   or\tomission
\n     specified in  any of  eh Schedules,
\n     but nothing  in this  section shall
\n     be construed to limit or abridge in
\n     any way the power conferred or duty
\n     cast  on  the  Council  under  sub-\n<\/p>\n
     section  (1)   of\tSection\t  21  to
\n     inquire into  the\tconduct\t of  any
\n     member of\tthe Institute  under any
\n     other circumstances.”\n<\/p>\n
     The procedure  to enquire\tinto the  misconduct on\t the
\npart of\t the members  of the  Institute\t is  dealt  with  in
\nSection 21.  Sub-sections (1),\t(2), (3),  (4) and  (5)\t are
\nrelevant for the purpose of this case.\n<\/p>\n
     By exercise  of the power under Section 30, the Council
\nis empowered  to make Regulations to carry out the object of
\nthe Act.  Sub-section (2)  postulates that in particular and
\nwithout prejudice  to the generality of the foregoing power,
\n“such  regulations  may\t provide  for  all  or\tany  of\t the
\nfollowing  matters”.   Section\t30(2)  (s)  speaks  of\t“the
\nexercise of  disciplinary powers  conferred by\tthe Act” and
\nSection 30(2)  (l) of “any other matter which is requited to
\nbe or  may be prescribed under the Act”. Regulation 16 which
\nwas amended in 1988 read as under :\n<\/p>\n
     “Report   of    the    Disciplinary
\n     Committee.\n<\/p>\n
     (1)  The\tDisciplinary   Committee
\n     shall  submit  its\t report\t to  the
\n     Council.\n<\/p>\n
     (2)  Where\t the   finding\tof   the
\n     Disciplinary Committee  is that the
\n     respondent\t    is\t   guilty     of
\n     professional    and     or\t   other
\n     misconduct, a copy of the report of
\n     the Disciplinary Committee shall be
\n     furnished to  the respondent and he
\n     shall be  given the  opportunity of
\n     marking a representation in writing
\n     to the Council.\n<\/p>\n
     (3)  The Council shall consider the
\n     report    of    the    Disciplinary
\n     Committee\t  along\t    with     the
\n     representation in\twriting\t of  the
\n     respondent, if  any, and if, in its
\n     opinion,  a   further  enquiry   is
\n     necessary, shall cause such further
\n     enquiry  to  be  made  whereupon  a
\n     further   enquiry\t  to   be   made
\n     whereupon a further report shall be
\n     submitted\t by   the   Disciplinary
\n     Committee.\n<\/p>\n
     (4)  The  Council\t shall,\t on  the
\n     consideration of the report and the
\n     further report,  if  any,\tand  the
\n     representation in\twriting\t of  the
\n     respondent,  if   any,  record  its
\n     findings.\n<\/p>\n
     Provided that  if the report of the
\n     Disciplinary Committee  is that the
\n     respondent is  not\t guilty\t of  any
\n     professional or  other  misconduct,
\n     the Council  shall not  record  its
\n     findings contrary\tto the report of
\n     the Disciplinary Committee.\n<\/p>\n
     (5)  The  finding\tof  the\t Council
\n     shall  be\t communicated\tto   the
\n     complainant and the respondent.”\n<\/p>\n
     Section 21\t read with Regulation 16 would indicate that
\nwhere the  Council, upon  receipt of information by, or of a
\ncomplaint made\tto it,\tis prima  facie of  opinion that any
\nmember of  the Institute has been guilty of any professional
\nor other  misconduct defined under Section 22 of the Act, it
\nis enjoined to refer the case to the Disciplinary Committee.
\nThe  Disciplinary  Committee  shall,  thereupon,  hold\tsuch
\nenquiry and  in such a manner as may be prescribed and shall
\nreport the  result of  its enquiry  to the  Council.  If  on
\nreceipt of such report, the Council finds that the member of
\nthe institution\t is not\t guilty of any professional or other
\nmisconduct, it\tshall record a finding under sub-section (2)
\nthereof and accordingly direct that the proceedings shall be
\nfiled or complaint shall be dismissed, as the case may be.\n<\/p>\n
     As seen  earlier, under  Regulation 16(1),\t it shall be
\nthe duty  of the Disciplinary Committee to submit its report
\nto the\tCouncil under  clause  (1)  thereof.  In  case,\t the
\nfinding\t  of\tguilt\tof    a\t  member   of\tprofessional
\nmisconduct\/other misconduct  is reported by the Disciplinary
\nCommittee,  a\tcopy  thereof  shall  be  furnished  to\t the
\ndelinquent member  and he  shall be  given an opportunity to
\nmake representation in writing to the Council. This would be
\ndone under  sub-regulation (2) of Regulation 16. Thereon, by
\noperation of  sub-regulation (3), the Council shall consider
\nthe report  of the  Disciplinary Committee  along  with\t the
\nrepresentation in  writing of the delinquent member, if any.
\nIf on  consideration thereof,  the Council is of the opinion
\nthat the  further enquiry is necessary, it shall direct such
\nfurther enquiry to be made, whereupon a further report shall
\nbe submitted  by the  Disciplinary Committee. Sub-regulation
\n(4) of\tRegulation 16  envisages that  the Council shall, on
\nthe consideration  of the  report and the further report, if
\nany, and  the representation  in writing  of the  respondent
\nrecord its  findings. Under  the  proviso  thereto,  if\t the
\nreport of  the Disciplinary Committee is that the respondent
\nis not\tguilty of  any professional or other misconduct, the
\nCouncil shall not record its findings contrary to the report
\nof  the\t  Disciplinary\tCommittee.   Sub-section  (3)\talso
\nenvisages that\tif on  receipt of  such report\tthe  Council
\nfinds that  the member\tof the\tInstitute is  guilty of\t any
\nprofessional or\t other misconduct, it shall record a finding
\naccordingly and shall proceed in the manner laid down in the
\nsucceeding sub-sections,  namely, sub-section  (4), (5)\t and
\n(6) in\tawarding appropriate  punishment or may refer to the
\nHigh Court,  under sub-section\t(6),  for  award  of  higher
\npenalties which\t the High  Court may  deal with\t under\tsub-
\nsection (7) thereof.\n<\/p>\n
     A combined\t reading of  the above\tstatutory provisions
\nwould indicate\tthat in\t case the  Council  finds  that\t the
\nreport of the Disciplinary Committee recording “no-guilt” is
\nnot correct  or relevant  material was not considered by the
\nDisciplinary Committee,\t the Council  has the power the call
\nfurther report from the Disciplinary Committee. Though prima
\nfacie the  arguments of\t Shri P.P.  Rao\t is  attractive,  on
\ndeeper probe,  it is  difficult to  give acceptance  to\t the
\ncontention that the report of “no-guilt” by the Disciplinary
\nCommittee should  be given  primacy as\tit would deplete the
\ncontent of  the\t power\tto  maintain  discipline  among\t the
\nmembers of  the\t power\tto  maintain  discipline  among\t the
\nmembers of  the Institute. The ultimate control over conduct
\nof the members is by the Council. The Disciplinary Committee
\nis a  fact-finding body\t which is  a body subordinate to the
\nCouncil as  a fact-finding  body which is a body subordinate
\nto the\tCouncil as  a fact-finding authority. If its finding
\nof guilt  or non-guilt\treceives finality,  it\tdenudes\t the
\nCouncil of  the\t power to direct further appropriate enquiry
\ninto the  professional or  other misconduct  not  adequately
\ndealt with  by the  Disciplinary Committee.  Similarly,\t the
\nCouncil would  be disabled  to exercise\t effective vigil and
\nsupervision over the professional or other misconduct of the
\nmembers of  the Institute.  The Parliament has invested that
\npower with the Council and the construction suggested allows
\nthe tail  to wag  while the  controlling body,\tthe  council
\nlamentably  look   at  it.  Such  a  construction  would  be
\ndeleterious  to\t  the  maintenance   of\t discipline  or\t the
\nprofessional conduct  on the  part of  the  members  of\t the
\nInstitute or Associate Members of the Institute, as the case
\nmay be.\t It  is\t true  that  the  discipline  sought  to  be
\nmaintained is  penal in\t nature; nonetheless, maintenance of
\ndiscipline or  professional or\tother conduct of the members
\nor associate  members is  salutary and paramount to maintain
\npublic confidence  in the  members of  the Institute  and to
\ninculcate  sense   of  discipline   and\t excellence  in\t the
\nperformance of\tthe functions  as member of the Institute or
\nassociate member  of the  Institute, as the case may be. The
\ncontrary view would easily defeat the purpose of the Act and
\nthe object  behind  the\t regulatory  measures  envisaged  in
\nSection 21  of the  Act. Regulation  16 is  only an enabling
\nprovision to  conduct by the Disciplinary Committee which is
\na fact-finding\tsubordinate delegated  body whose finding is
\nnot conclusive on the non-guilt of the professional or other
\nmisconduct of  the  member  of\tthe  Institute.\t A  combined
\nreading of  relevant provisions in Section 21 and Regulation
\n16 does indicate that the recording of a finding of guilt or
\nnon-guilt by the Council is mandatory to take further action
\nor to  dismiss the  complaint or  for further  process.\t The
\nCouncil\t is   required\t to   consider\t independently\t the
\nexplanation submitted by the member and the evidence adduced
\nin the\tenquiry before\tthe Disciplinary  Committee and\t the
\nreport of  the Disciplinary  Committee. It  provides an\t in-
\nbuilt mechanism\t under which  the Council itself is required
\nto examine the case of professional or other misconduct of a
\nmember of  the Institute or associate member, taking the aid
\nof the\treport submitted  by the Disciplinary Committee, the
\nevidence adduced  before the  Committee and  the explanation
\noffered\t by   the   delinquent\t member.   Entire   material
\nconstitutes the record of the proceedings before the Council
\nto reach  a finding  whether or\t not the  delinquent  member
\ncommitted professional\tor other  misconduct, Otherwise, the
\nprimacy accorded to the report of the Disciplinary Committee
\nattains finality,  denuding the\t Council  of  the  power  of
\ndiscipline over\t the member  of the  Institute;\t that  would
\nrender deleterious  effect on  the maintenance of discipline
\namong the  members or associate members of the Institute. In
\nthis behalf,  it is  necessary to  consider the view of this
\nCourt prior  to the amendment of the Regulations in 1988. In
\nInstitute of Chartered Accountants of India vs. L.K. Ratna &
\nOrs.<\/a> [(1986) 4 SCC 537], this Court, in paragraph 11, summed
\nup the legal position as under :\n<\/p>\n
     “It is  apparent that in the scheme
\n     incorporated in  Section 21  of the
\n     Act     there\tare\tseparate
\n     functionaries,   the   Disciplinary
\n     Committee,\t the   Council\tand,  in
\n     certain cases,  the High Court. The
\n     controlling   authority\tis   the
\n     Council, which  is only logical for
\n     the Council  is the  governing body
\n     of the  Institute. When the Council
\n     receives information or a complaint
\n     alleging  that   a\t member\t of  the
\n     Institute is  guilty of misconduct,
\n     and it  is prima  facie of\t opinion
\n     that  there  is  substance\t in  the
\n     Disciplinary     Committee.     The
\n     Disciplinary  Committee   plays   a
\n     subordinate role.\tIt  conducts  an
\n     inquiry into the allegations. Since
\n     the inquiry  is into allegations of
\n     misconduct\t by   the   member,   it
\n     possesses the character of a quasi-\n<\/p><\/blockquote>\n
     judicial\t   proceeding.\t     The
\n     Disciplinary  Committee  thereafter
\n     submits a\treport of  the result of
\n     the inquiry  to  the  Council.  The
\n     Disciplinary Committee  is merely a
\n     Committee of  the Institute  with a
\n     function  specifically  limited  by
\n     the provisions  of the  Act.  As  a
\n     subordinate body, it reports of the
\n     Council, the  governing  body.  The
\n     report will  contain a statement of
\n     the   allegations,\t   the\t defence
\n     entered by\t the member, a record of
\n     the evidence  and\tthe  conclusions
\n     are   the\t  conclusions\tof   the
\n     Committee. They are tentative only.\n<\/p><\/blockquote>\n
     They   cannot    be   regarded   as\n     'findings'.    The\t    Disciplinary\n<\/pre>\n
     Committee is  not vested by the Act
\n     with power\t to render any findings.
\n     It\t is   the   Council   which   is
\n     empowered\tto   find  whether   the
\n     member  is\t guilty\t of  misconduct.
\n     Both  Section   21(2)  and\t Section
\n     21(3) are\tclear as  to that. If on
\n     receipt of\t the report  the Council
\n     finds that the member is not guilty
\n     of\t  misconduct,\t Section   21(3)
\n     requites it  to  record  a\t finding
\n     accordingly,  and\t thereafter   to
\n     proceed in\t the manner laid down in
\n     the  succeeding  sub-sections.  So,
\n     the finding  by the  Council is the
\n     determinative decision  as\t to  the
\n     guilt of the member, and because it
\n     is determinative  the  Act requires
\n     it to be recorded. A responsibility
\n     so grave  as the determination that
\n     a member  is guilty  of misconduct,
\n     and the  recording of that finding,
\n     has been  specifically assigned  by
\n     the Act  to the governing body, the
\n     Council. It  is also  apparent that
\n     it is  only upon  a  finding  being
\n     recorded by  the Council  that  the
\n     Act  moves\t forward  to  the  final
\n     stage    of    penalisation.    The
\n     recording of  the\tfinding\t by  the
\n     Council   is   the\t  jurisdictional
\n     springboard   for\t  the\t penalty
\n     proceeding which follows.”<\/p><\/blockquote>\n
     And in  paragraph 13,  it was held that “at this point,
\nit is  necessary to  advert to\tthe fundamental character of
\nthe power conferred on the Council. The Council is empowered
\nto find\t a member  guilty of  misconduct. The  penalty which
\nfollows is  so harsh  that it may result in the removal from
\nthe Register of members for substantial number of years.” In
\nthat case,  the question  was: whether the delinquent member
\nwas entitled  to hearing  before the  delinquent member\t was
\nentitled  to  a\t hearing  before  the  Council\treached\t the
\nconclusion of  the guilt of professional misconduct. In that
\nperspective, this  Court  read\tinto  it  the  principle  of
\nnatural justice and held that an opportunity of hearing is a
\nfacet of  fair\tprocedure  and\taccordingly  the  delinquent
\nmember was  entitled to\t a hearing before the Council, prior
\nto the Council recorded the finding of guilt of professional
\nmisconduct. Here,  it may  be illustrated that the effect of
\ngiving primacy\tto the\tfinding recorded by the Disciplinary
\nCommittee is to make it conclusive. Take for instance, where
\nthe Committee  records a  finding of  guilt of\tprofessional
\nmisconduct. When  the matter comes up before the Council and
\nthe Council  finds that\t the  evidence\tadduced\t before\t the
\nDisciplinary Committee\tin proof  of professional  or  other
\nmisconduct is  not established,\t then the Committee will not
\nhave any  power to  record a  finding except  to call  for a
\nfurther finding\t from the  Disciplinary\t Committee  in\tthat
\nbehalf which does not appear to be warranted. If the Council
\nreaches the conclusion that professional or other misconduct
\nwas not\t proved, without calling for any further finding, it
\ncan straightaway  exonerate the\t delinquent  member  of\t the
\ncharge of  professional or  other misconduct  and would drop
\nthe action  or dismiss\tthe complaint. On the other hand, if
\nthe finding  of\t not  guilt  recorded  by  the\tDisciplinary
\nCommittee is  not consistent  with the\tevidence on  record,
\nthen the Disciplinary Committee will be denuded of the power
\nto call\t for further report, obviously, rendering Regulation
\n16(3) as  surplusage. It  is settled  rule of interpretation
\nthat all  the provisions would be read together harmoniously
\nso as  to give\teffect to all the provisions as a consistent
\nwhole rendering\t no part  of the  provisions as\t surplusage.
\nOtherwise, by  process of  interpretation,  a  part  of\t the
\nprovision or a clause would be rendered otiose. Keeping this
\nlegal  principles,   perspectives,  practical\teffect\t and
\ncontents of  the power\tof  the\t Disciplinary  Committee  or
\nCouncil in  the backdrop  of our above consideration, we are
\nof the\tconsidered view\t that the view expressed by the High
\nCourt is clearly incorrect and it would defeat the object of
\nthe  Act   of  maintaining  professional  standards  of\t the
\nprofessional conduct  or other\tconduct consistent  with the
\ndignity of the profession of the accountants. We, therefore,
\nhold that  the Council\thas the\t power to  call for  further
\nreport from  the Disciplinary  Committee on non-guilt of the
\nprofessional or\t other misconduct of the respondent. In this
\nbackdrop, the proviso to sub-regulation (4) of Regulation 16
\nbecomes relevant.  In case,  on\t the  second  occasion,\t the
\nreport\tof   the  Disciplinary\tCommittee  still  holds\t the
\ndelinquent member  not guilt holds the delinquent member not
\nguilty, there  is no  option left  to the Council except, by
\noperation of  proviso to sub-regulation (4) of Regulation 16
\nread with  Section 21(2),  as the  Council is  enjoined,  to
\nrecord finding\tof no  guilt since  the power of calling for
\nfurther report would stand exhausted. Any other view, in our
\nconsidered opinion, would defeat the object of the Act.\n<\/p>\n
     The contention  of Shri  Rao that\tthe Council  had not
\napplied its  mind to  the facts of this case is not correct.
\nIn fact,  the proceedings dated December 21, 1993, viz., “on
\nconsideration of  the report  of Disciplinary  Committee and
\nyour written  statement, the  Council decided  that  further
\nenquiry in  the\t case  was  necessary  to  be  made  by\t the
\nDisciplinary Committee keeping in view the following issues:\n<\/p>\n
     1.\t  What\twere   the   terms   and
\n     details of\t engagement accepted  by
\n     your firm\tfrom EXIM  Bank relating
\n     to publication of booklet entitled,
\n     “India\t–      Your\tSoftware
\n     Opportunity”?\n<\/p><\/blockquote>\n
     2.\t  Were\t  the\t  contents    of
\n     ‘insertion’    in\t  the\t booklet
\n     containing\t your\tfirms  name  and
\n     address  in   accordance  with  the
\n     engagement accepted?\n<\/p><\/blockquote>\n
     3.\t  Whether  you\/your   firm   had
\n     rendered assistance,  as offered in
\n     the ‘insertion’, to the “interested
\n     parties”?\n<\/p><\/blockquote>\n
     4.\t  Whether  you\/your   firm   had
\n     communicated with\tthe  “interested
\n     parties” for rendering information,
\n     clarifications and assistance?\n<\/p><\/blockquote>\n
     5.\t  Whether    you\/your\t  firm’s
\n     communications with the “interested
\n     parties” were  limited to providing
\n     information and  clarifications  on
\n     the  matters   contained\tin   the
\n     booklet?\n<\/p><\/blockquote>\n
     6.\t  Nature of  assistance provided
\n     by you\/your firm to the “interested
\n     parties”?\n<\/p><\/blockquote>\n
     7.\t  Whether    the    remuneration
\n     accepted by  you\/your firm from the
\n     EXIM  Bank\t included  the\tjobs  of
\n     rendering\t\t    information,
\n     clarifications  and  assistance  to
\n     the “interested parties”?\n<\/p><\/blockquote>\n
     8.\t  Whether  you\/your   firm   had
\n     accepted  remuneration   from   the
\n     “interested parties”  for rendering
\n     information,   clarifications   and
\n     assistance separately?\n<\/p><\/blockquote>\n
     9.\t  Whether  you\/your   firm   had
\n     received any professional work from
\n     the      “interested\tparties”
\n     communicated or contracted pursuant
\n     to publication  of the  booklet  or
\n     from their associates?\n<\/p><\/blockquote>\n
     10.  Whether   the\t  communications
\n     effected by  you\/your firm with the
\n     “interested parties” were either on
\n     your or your firm’s letter-head? If
\n     so, the manner and style of signing
\n     the letters.”<\/p><\/blockquote>\n
     do indicate  the active  application of  its  mind\t and
\nconsideration  to   various   aspects\tmentioned   in\t the
\nquestionnaire based thereon and, therefore, it is not a case
\nof  mechanical\t incantation  of   the\tprovisions  in\tsub-
\nregulation (3)\tof Regulation 16. It is true that in para 10
\nof the Special Leave Petition, they have mentioned that what
\nthey are  required to  consider is  the report\tand not\t the
\nevidence adduced before the Disciplinary Committee is only a
\nmistaken impression  of the  Council as\t projected,  but  by
\nreason thereof, it is difficult to conclude that the Council
\nhas not\t applied its  mind  to\tthe  relevant  facts  before
\ncalling for further report.\n<\/p>\n
     Though Shri  Rao sought  to impress  upon us  that on a
\nreading of  the report\toriginally taken  note of  from\t the
\ncover  of  the\tbooklet\t of  the  EXIM\tBank,  it  does\t not
\nconstitute professional\t misconduct. We\t decline to  go into
\nthat question  for the\treason that  any finding recorded by
\nthis Court  would adversely  affect either party. Therefore,
\nwe do  not propose to express any opinion in that behalf. It
\nis for\tthe Council  to consider the same, after the receipt
\nof  further  report  from  the\tDisciplinary  Committee.  We
\naccordingly allow  the appeal, set aside the judgment of the
\nHigh Court and uphold the direction issued by the Council to
\nDisciplinary Committee to make further enquiry and to submit
\na further report in that behalf.\n<\/p>\n
     The  appeal   is  accordingly   allowed  but,   in\t the
\ncircumstances, without costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Institute Of Chartered … vs M\/S. Price Waterhouse & Anr on 11 July, 1997 Author: K Ramaswamy Bench: K. Ramaswamy, G. B. Pattanaik PETITIONER: THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA Vs. RESPONDENT: M\/S. PRICE WATERHOUSE & ANR. DATE OF JUDGMENT: 11\/07\/1997 BENCH: K. RAMASWAMY, G. B. PATTANAIK ACT: HEADNOTE: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-80341","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Institute Of Chartered ... vs M\/S. Price Waterhouse & Anr on 11 July, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-institute-of-chartered-vs-ms-price-waterhouse-anr-on-11-july-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Institute Of Chartered ... vs M\/S. 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