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2015 Supreme(Del) 79
High Court of Delhi
VIBHU BAKHRU, J.
Naresh Tharad – Appellant
Versus
The Institute of Chartered Accountants of India & Another – Respondent
W.P.(C) No. 4284 of 2012 & CM Nos. 8890 & 12079 of 2012
Decided on: 20-01-2015
For the Petitioner:Subhiksh Vasudev, Karanveer Jindal, MsYukti, Advocates.
For the Respondents:R1, J.S. Bakshi, A.S. Bakshi, Ankush Sharma, R2, Saakshi Agarwal, Advocates, Anil Soni, CGSC.
Headnote:
Chartered Accountants Act, 1949 - Second Schedule - Section 22G, Part I Clauses (7), (8), and (9) - Chartered Accountants (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 - Rule 18 - Disciplinary action - Opportunity of hearing - Quashing of - Petitioner has filed the petition seeking quashing of the report of the Disciplinary Committee of the Institute of Chartered Accountants of India - Allegation of misconduct on the part of the petitioner - Director (Discipline), ICAI held petitioner was guilty of professional misconduct - Disciplinary Committee proceeded on the erroneous assumption that the petitioner had been previously granted an adjournment - Refusal of an adjournment and proceeding ex parte where the concerned member is not in a position to attend on medical grounds would amount to denying an opportunity of a hearing - Existence of an alternate remedy would not bar the jurisdiction of this Court under Article 226 of the Constitution of India - Fair hearing ought to have been granted to the petitioner - Impugned report is set aside - Matter is remanded to the Disciplinary Committee to afford the petitioner an opportunity to be heard.
Vibhu Bakhru, J.
1. The petitioner has filed the present petition seeking quashing of the report of the Disciplinary Committee of the Institute of Chartered Accountants of India (hereafter ‘ICAI’) dated 10.02.2012 (hereafter the ‘impugned report’).
2. According to the petitioner a fair opportunity for being heard has been denied to him. The limited controversy to be considered is whether the proceedings before the Disciplinary Committee of the ICAI (hereafter the ‘Disciplinary Committee’) fall foul of the principles of natural justice.
And, whether any interference is warranted by this Court at this stage of the disciplinary proceedings in question.
3. Briefly stated the facts to relevant for considering the issues involved are as under:-
3.1. A complaint dated 03.03.2009, in respect of alleged misconduct on the part of the petitioner, was received from respondent no. 2. The said complaint was forwarded to the petitioner, who filed his written statement and thereafter, a rejoinder was filed by respondent no.2. After examining the said documents, Director (Discipline), ICAI rendered a prima facie opinion dated 04.05.2010 wherein the petitioner was held to be prima facie guilty of professional misconduct under clauses (7), (8), and (9) of Part I of second schedule to the Chartered Accountants Act, 1949 (hereafter the ‘Act’).
3.2. The prima facie opinion of Director (Discipline), ICAI dated 04.05.2010 was considered by the Disciplinary Committee and by letter dated 09.08.2010 the petitioner was called upon to submit his written statement within 21 days. At the request of the petitioner, the time to file the written statement was initially extended to 30.09.2010 and again to 15.10.2010. However, no such written statement was filed by the petitioner.
3.3. By letter dated 08.12.2010, petitioner was called upon for personal hearing before the Disciplinary Committee on, 26.12.2010, at the office of ICAI, Kolkata. By letter dated 16.12.2012 – which was received by the Disciplinary Committee on 21.12.2010 - the petitioner requested for an adjournment on the ground that he would be travelling out of station on 26.12.2010. This request for adjourning the hearing scheduled on 26.12.2010 was declined.
3.4. Thereafter, the hearing of the Disciplinary Committee was fixed on 25.11.2011 at the office of ICAI, Kolkata and the petitioner was informed of the same by letter dated 16.11.2011. By letter dated 22.11.2011, the petitioner requested for an adjournment on medical grounds; the petitioner forwarded a medical certificate, which indicated that the petitioner was advised bed rest till 28.11.2011. However, on 25.11.2011, the hearing was concluded in the absence of the petitioner. By the impugned report dated 10.02.2012, sent to the petitioner by letter dated 15.06.2012 and received by the petitioner on 19.6.2012, the petitioner was held to be guilty of professional misconduct under clauses (7), (8), and (9) of Part I of second schedule to the Act.
4. The issue whether the petitioner was denied a fair hearing has to be considered in the aforesaid backdrop.
5. It is apparent from the above that the petitioner was given opportunity to appear before the Disciplinary Committee. On the first occasion a hearing was fixed by the Disciplinary Committee on 26.12.2010.
The petitioner sought an adjournment, which was declined. Although the petitioner did not appear, the hearing was adjourned since the complainant also did not appear on the said date.
6. Thereafter, the petitioner had filed a writ petition (being W.P.(C) 63/2011) before this Court challenging the, prima facie, opinion recorded by the Director (Discipline). Apparently, the Disciplinary Committee did not hold any further hearings while the matter was pending before this Court. The writ petition was dismissed by an order dated 06.01.2011and the petitioner preferred an appeal (LPA 168/2011) against the said order dismissing the writ petition preferred by the petitioner (W.P.(C) 63/2011).
LPA 168/201
