9911796707
TMI Blog2023 (12) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 3, which is a registered Society under the Societies Registration Act, 1860. It is stated that the Petitioner was to act as Secretary (Designate) with effect from 01.04.2017 to 31.08.2017 and was to be subsequently appointed as Secretary, IIC, with effect from 01.09.2017. b) It is stated that on 23.06.2017, Mr. Soli Sorabjee, the then President of the Respondent No. 3/Society stepped down and one Mr. N. N. Vohra was appointed as the President of the Respondent No. 3/Society. c) It is alleged that due to personal differences with the Petitioner herein, in the meeting of the Board of Trustees dated 21.07.2017, Mr. N. N. Vohra brought in the agenda of keeping the appointment of the Petitioner herein as Secretary of the Respondent No. 3/Society in abeyance. It is further stated that the Petitioner was accused of financial irregularities in the processing/award of contracts by the Purchase and Maintenance Department and also of granting improper membership of the Respondent No. 3/Society. d) It is stated that in order to carry out a special audit of the allotment of Regular Membership and Short Term Associate Memberships (STAMs) during the period 01.10.2014 to 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said Civil Suit is coming up for hearing on 31.08.2023 for admission/denial and marking of exhibits. k) It is stated that vide Order dated 30.03.2021, passed by the Respondent No. 1, the Petitioner herein was informed that since Mr. Vijay Kumar Lalla, who conducted the Special Audit of Respondent No. 3/IIC, has passed away, the complaint of the Petitioner has become infructuous and the same, therefore, stands closed. l) The Petitioner has, thereafter, approached this Court by filing the present Writ Petition. 3. It is stated by the learned Counsel for the Petitioner that the Impugned Order dated 30.03.2021 is liable to be quashed and set aside as the same is violative of Section 26 of the Indian Partnership Act, 1932, which provides that a firm is liable for any wrongful acts of its partner. Learned Counsel for the Petitioner thereafter draws the attention of this Court to proviso of Rule 8 (2) of the Chartered Accountants (Procedure of Investigation of Professional and Other Misconduct and Conduct of Cases), Rules, 2007, which provides that if no member, whether erstwhile or present, owns responsibility for allegations made against the firm, then the firm as a whole s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name are borne in the Register of members and, therefore, the contention of the Petitioner that disciplinary proceedings can continue against Respondent No. 2/Firm even after the death of Mr. Vijay Kumar Lalla, who conducted the Special Audit of Respondent No. 3/ICC, cannot be accepted. Learned Counsel for Respondent No. 1/ICAI also submits that the reliance placed by the learned Counsel for the Petitioner on Rule 8(2) of the Chartered Accountants (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 to contend that disciplinary proceedings can be initiated against Chartered Accountant firms, holds no water as the said Rules provide for the procedure to conduct disciplinary proceedings. He further relies on Durgawati Dubey vs. State of UP & Ors., 2018 SCC OnLine All 1827, to contend that disciplinary proceedings cannot continue after the death of the concerned person and, therefore, the decision of Respondent No. 1/ICAI in closing the complaint of the Petitioner is correct and no interference is required by this Court. 5. It is stated by the learned Counsel for Respondent No. 2 that on 18.11.2017, Mr. Vijay Lalla, who was the partner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a written statement within twenty-one days which may further be extended by another twenty-one days, in exceptional circumstances, for reasons to be recorded in writing. ***** 21B(3) The Disciplinary Committee shall, on receipt of preliminary examination report from Director (Discipline), require the member or the firm, as the case may be, against whom such preliminary examination report has been filed, to submit a written statement within twenty-one days, which may further be extended by another twenty-one days in exceptional circumstances, for reasons to be recorded in writing." 8. A perusal of the abovementioned Sections would show that Section 2 (b) of the Chartered Accountants Act, 1949 defines a Chartered Accountant as a member of the Institute and as per Section 3 of the Chartered Accountants Act, 1949 all persons who have their name borne on the Register maintained by Respondent No. 1/ICAI are to constitute a body corporate and all such persons are to be known as members of the Institute. In view of the above, the contention of the learned Counsel for the Petitioner that since the complaint was filed against the Respondent No. 2/Firm, the death of Mr. Vijay Kumar L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved for about four years, yet the respondents did not proceed with the said chargesheet, dated 17 January, 1992, though the Appeal Court permitted the respondents to proceed with the departmental proceeding in connection with the said chargesheet, dated 17 January, 1992. Therefore, by their own action the respondents had given a go-bye to or abandoned the said chargesheet, dated 17 January, 1992. That apart, a disciplinary proceeding against an employee is an action in personam. Due to the death of the employee such disciplinary proceeding initiated by the respondents by virtue of the chargesheet, dated 17 January, 1992, becomes infructuous due to the expiry of the writ-petitioner Ajit Kumar on 1 July, 1996. It may be mentioned herein that the charges contained in the chargesheet, dated 17 January, 1992, are nothing but the repetation of the charges earlier levelled against the writ-petitioner which was the subject-matter of the writ proceedings and also the subject-matter of this appeal." (emphasis supplied) 10. The reliance placed by the learned Counsel for the Petitioner on Rule 8(2) of the Chartered Accountants (Procedure of Investigations of Professional and Other Miscond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who were partners or employees of that firm, as on the date of occurrence of the alleged misconduct, shall be responsible for answering the allegation or allegations as contained in the complaint. (3) A member who has been informed of the complaint filed against him (hereinafter referred to as the respondent) shall, within 21 days of the service of a copy of the complaint, or within such additional time, not exceeding thirty days, as may be allowed by the Director, forward to the Director, a written statement in his defence. (4) On receipt of the written statement, if any, the Director may send a copy thereof to the complainant and the complainant shall, within 21 days of the service of a copy of the written statement, or within such additional time, not exceeding thirty days, as may be allowed by the Director, forward to the Director, his rejoinder on the written statement. (5) On perusal of the complaint, the respondent's written statement, if any, and rejoinder of the complainant, if any, the Director may call for such additional particulars or documents connected therewith either from the complainant or the respondent or any third party or parties, as he may consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
