TMI Blog2011 (9) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee must accept that opinion and the only option to the Board of Discipline is to advise the Director (Discipline) to investigate the matter further. The provisions do not postulate finality to the prima facie opinion of the Director (Discipline). On the other hand, Director (Discipline) is the Secretary of the Board. The final determination whether or not a member is guilty of professional or other misconduct in the First Schedule or the Second Schedule, is decided by the Board of Discipline or the Disciplinary Committee. Board is not bound in all cases of disagreement to refer for reinvestigation. Rule 9(3)(b) is procedural and states how the steps should be taken and, therefore, it would be an anathema to the basic conception of statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e . (1) The Council shall, by notification, establish a Disciplinary Directorate headed by an officer of the Institute designated as Director (Discipline) and such other employees for making investigations in respect of any information or complaint received by it. (2) On receipt of any information or complaint along with the prescribed fee. The Director (Discipline) shall arrive at a prima facie opinion on the occurrence of the alleged misconduct. (3) Where the Director (Discipline) is of the opinion that a member is guilty of any professional or other misconduct mentioned in the First Schedule, he shall place the matter before the Board of Discipline and where the Director (Discipline) is of the opinion that a member is guilty of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of formation of an opinion. If the Director (Discipline) is of the opinion that there is no prima facie case and the Board of Discipline agrees with the opinion of the Director (Discipline), the matter is closed. In case of disagreement, the Board of Discipline may advise the Director (Discipline) to carry further investigation. 6. The Rule 9(3)( b ), which is the subject-matter of assail is as follows: "9. (3) Where the Director is of the prima facie opinion that the member or the firm is not guilty of any misconduct either under the First Schedule or the Second Schedule, he shall place the matter before the Board of Discipline, and the Board of Discipline,- ( b ) if it disagrees with such opinion of the Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the Director (Discipline) and not refer the matter to the Disciplinary Committee when violation/breach of the Second Schedule or both Schedules is alleged. Any such restriction on the Board of Discipline is not expressly stipulated and should not impliedly inferred if we examine the provisions dealing disciplinary proceedings. 9. Section 21A sub-section (3) reads: "21A. (3) Where the Board of Discipline is of the opinion that a member is guilty of a professional or other misconduct mentioned in the First Schedule, it shall afford to the member an opportunity of being heard before making any order against him and may thereafter take any one or more of the following actions, namely: ( a )reprimand the member; ( b )remove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government shall be such as may be specified." 11. Section 21(4) stipulates that the Disciplinary Directorate shall follow the procedure as they may be specified. The procedure is specified in Rules including the impugned Rule 9(3)( b ). We have also examined Chapter IV of 2007 Rules which includes Rules 13, 14 and 15, which prescribe the procedure. As noticed above, Director (Discipline) functions as the Secretary of the Board of Discipline. However, it is difficult to accept that in case Director (Discipline) gives a closure report on the basis of his or her opinion that there is no prima facie case, the Board of Discipline/Disciplinary Committee must accept that opinion and the only option to the Board of Discipline ..... X X X X Extracts X X X X X X X X Extracts X X X X
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