R.K. Sharma vs Institute Of Chartered ...
1991 Latest Caselaw 234 Del

JUDGMENT

B.N. Kirpal, J.

(1) The challenge in this writ petition is to the notice dated 29th January, 1990 issued by the respondent-institute to the petitioner wherein it is stated that the Council has decided, under Regulation l2(11) of the Chartered Accountants Regulations, 1988, to refer the complaint to the Disciplinary Committee for an inquiry.

(2) It appears that there was a complaint made alleging professional misconduct against the petitioner. This complaint .was made to the Institute The Institute, in accordance with the provisions of the aforesaid Regulation 12 sent a copy of the complaint to the petitioner. The petitioner thereupon filed his written statement and comments with the Institute. The Council thereupon considered the written statement as well as the rejoinder of the complainant and then formed a prima facie opinion that the petitioner was guilty of professional and/or other misconduct and it thereupon decided to cause an inquiry to be made. Thereupon the impugned letter dated 29th January, 1990 was sent to the petitioner.

(3) It is contended by the learned counsel for the petitioner that the petitioner has to be informed of the charges on which the inquiry is proposed to be held. It is contended that formal charges have to be formulated and it is only then that a question can arise of the petitioner being required to file his list of witnesses.

(4) In our opinion, there is no infirmity in the procedure which has been adopted by the respondents so far. Section 21(1) requires the Council to form a primafacie opinion that a member is guilty of professional misconduct before it can refer the case to the disciplinary committee. This prima facie opinion is to be formed on the receipt of information or a complaint by the Council. Section 21 does not stipulate the mode or manner in which the information or complaint will be dealt with by the Council prior to its forming the opinion as to what to do on the said complaint. It is Regulation 12 where the procedure on the receipt of the complaint is laid down. Regulation 12, inter ate, requires copy of the complaint being sent to the member against whom misconduct is alleged who is given an opportunity of filing a written statement. A copy of the written statement is sent to the complainant who gives his comments thereupon. Then the President of the Institute is empowered to ask for any further information which he desires. Thereafter all the material is collected and examined by the Council which may then come to the conclusion that there is a prima facie case made out which calls for a more detailed and further inquiry.

(5) Neither in Regulation 12 nor in Section 21 is there any requirement for formulation of formal charges on which the inquiry is to be held. Infact formulation of such formal charges, like issues, is not necessary. The complaint itself would contain the allegations against the member. The opinion which has to be formed by the Council under Section 21 is whether the complaint discloses a prima facie material that the member is guilty of professional misconduct. The inquiry is to be held with regard to the allegations contained in the complaint. A copy of the complaint is made available to the member and in fact when a detailed notice is sent by the Council to the member, after primafacie opinion has been formed under Section 21, even the list of witnesses which are sought to be examined on behalf of the complainant are indicated. The member is thereupon asked to give his list of witnesses. There is no requirement either in the detailed notice or at any earlier stage for any formal charges to be framed. As we have already indicated the inquiry is with regard to the allegations contained in the complaint and there is no necessity at this stage prior to the commencement of the inquiry, at least, that any formal charges are required to be framed.

(6) It is contended, relying upon , that formal charges are required to be framed. We do not find any such interpretation to Section 21 or regulation 12 having been put by the Delhi High Court. All that the Court stated was, while referring to a decision of the Calcutta High Court, that the inquiry should proceed on formulated charges not only in fairness to the person charged with professional misconduct but in order that the evidence may relevantly bear on the particular issue. It is for the disciplinary committee to decide as to what issues or charges, if any, are required to be framed depending upon the nature of the complaint at the time when the inquiry is to be proceeded with. The disciplinary committee is required to bear in mind that the complainant as well as the member concerned know as to what are the specific allegations of misconduct which have to be established by the complainant and disproved by the member concerned. No party, specially the member concerned, should be put to any disadvantage in the conduct of the inquiry. That stage has not yet reached in this case.

(7) As we have already observed, prior to the conduct of the formal disciplinary proceedings, there is no provision or requirement in law or otherwise for any formal charges to be formulated and/or communicated to the member concerned.

(8) No other point has been raised. We find no merit in this petition. Dismissed.