2022 (11) TMI 334 - SC - Indian Laws
Election of the office bearers of the Regional Council for the year 2022 held in the 316th Meeting of Eastern India Regional Council of the Institute of Company Secretaries of India - Requirement of a meeting to be chaired/presided over by him in absence of the Chairman - whether the meeting i.e. 21.07.2021 was presided over by the person duly elected as Chairman for the remaining period? - HELD THAT:- On fair reading of Regulation 92(2) read with Regulation 117(2), we are of the opinion that Regulation 92(2) shall not be applicable at all. Regulation 92(2) shall be applicable only in a case of absence and not in a case where the post of Chairman and/or office bearer has fallen vacant. There is a distinction between the absence and the post fallen vacant. Regulation 92(2) shall be applicable in a case where the Chairman and/or the office bearer though is not disqualified but is absent for some reason. Regulation 117(2) shall be applicable in a case where the elected member of the Regional Council has been disqualified on he being found guilty of any professional or other misconduct and awarded penalty of fine. Therefore, in case of a vacation of office as per Regulation 117(2), such post fallen vacant is required to be filled in by election by electing another person from amongst its members to hold the office for the remaining period of a year (Regulation 119(2)) - Both, the learned Single Judge as well as the Division Bench of the High Court have not appreciated the distinction between the vacation of office under Regulation 117(2) of the Regulation and the absence of an office bearer under Regulation 92. Under the circumstances both, the learned Single Judge as well as the Division Bench of the High Court have seriously erred in quashing and setting aside the election of the office bearers of the EIRC of ICSI held in the meeting held on 27.12.2021 on the ground that the meeting was not presided over by the Vice Chairman (Respondent no.1 herein).
As per Regulation 114(4) whether any dispute arises regarding any election to a Regional Council, the matter may be referred by the candidate concerned within 30 days from the date of the declaration of the result of the election, to the President and the decision shall be final. Under the circumstances, in view of Regulation 114(4) of the Regulations, the High Court ought not to have entertained the writ petition challenging the validity of the election. Even otherwise, it is required to be noted that even as per Regulation 114(4), the election can be challenged by the candidate concerned. In the present case respondent no.1 who challenged the election of the office bearers did not even contest the election. Under the circumstances the High Court erred in entertaining the writ petition challenging the election at the instance of the respondent no.1 who even did not contest the election of the office bearers.
The impugned judgment and order passed by the Division Bench of the High Court as well as the learned Single Judge is set aside - appeal allowed.