The division judge bench of Justice M.R. Shah and Justice M.M. Sundresh of the apex court in the case of Institute of Company Secretaries of India Vs Biman Debnath & Ors held that there is a distinction between the absence and the post fallen vacant.
BRIEF FACTS
The factual matrix of the case is that the notice was issued for the elections to be held for the EIRC. However, the meeting of the Regional Council was required to be chaired by the Chairman, EIRC and the chairman, EIRC was disqualified to hold the office. According to Regulation 117(2) of the Company Secretaries Regulations, 1982 (hereinafter referred to as "Regulations 1982"), the position of Chairman consequently became vacant. As the position of Chairman became empty, it had to be replaced for the remainder of the term in accordance with Regulation 119. (2).
As Vice Chairman, the opposing respondent in this case was permitted to preside over the meeting only for the purpose of being elected to the position of Chairman for the balance of the current year. Since it looks that contested respondent no. 1 was interfering with the meeting, the other participants agreed to move on to the next item on the agenda, picking the chairman for the remaining time, and they chose respondent no. 3 to preside over it. Respondent no. 1 didn’t participate in the elections and filed the writ petition before the single judge.
The learned Single Judge allowed the writ petition and set aside the elections of the office bearers elected in the meeting mainly on the ground that the meeting was not chaired by the ViceChairman who in absence of the Chairman was required to conduct and/or chair the meeting as Chairman. The same was confirmed by the division judge bench of the High Court.
COURT’S OBSERVATION
The hon’ble court held,
"Heavy reliance was placed on Regulation 92(2). 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)). In that view of the matter both, the learned Single Judge as well as the Division Bench of the High Court have seriously erred in misinterpreting Regulation 92(2) and Regulation 117 read with 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)."
CASE NAME- Institute of Company Secretaries of India Vs Biman Debnath & Ors
CITATION- CIVIL APPEAL NO. 8039 OF 2022
CORUM- Justice M.R. Shah and Justice M.M. Sundresh
DATE- 07.11.22
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