Vipin Malik vs The Institute Of Chartered ...
2013 Latest Caselaw 1782 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                            Date: 22nd April, 2013
+     LPA 240/2013
      VIPIN MALIK                                   ..... Appellant
               Through           Mr. V.P. Singh, Sr. Adv. With
                                 Mr.Ashish Mahija and Ms.Yukti
                                 Gupta, Adv.
                   Versus

    THE INSTITUTE OF CHARTERED
    ACCOUNTANT OF INDIA                   ..... Respondent
              Through  Mr. J.S. Bakshi and Mr. A.S. Bakshi,
                       Adv.
    CORAM:
    HON'BLE THE CHIEF JUSTICE
    HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)

CM No. 6364-6365/2013 (exemption) Exemption is allowed subject to just exceptions. LPA 240/2013

1. By the present appeal the appellant seeks to impugn the order dated 08.04.2013 passed by the learned Single Judge whereby the application for stay being CM No. 4199/2013 has been dismissed.

2. By the writ petition the appellant impugned a communication dated 08.03.2013 issued by the respondent whereby the respondent decided to cause further enquiry by the Disciplinary Committee on the specific issue stated. It is the contention of the appellant that for the first time he received a letter dated 23.06.1997 from the respondent where he was requested to send his comments on the information received against his firm and he was informed that the respondent was

prima facie of the opinion that the appellant was guilty of professional/other misconduct and has decided to cause an enquiry to be made by the Disciplinary Committee. The Disciplinary Committee constituted by the respondent vide its report dated 17.01.2001exonerated the appellant and recorded that there is no evidence on record to show that the advertisement that was published in the Accountancy Journal in August, 1996 was at the instance of the appellant.

3. It is further contended by the appellant that on 24.02.2006 after a gap of five years, another communication was sent by the respondent seeking his comments on the copy of the advertisement. It was submitted that the issue stood concluded by the Disciplinary Committee pursuant to report dated 17.01.2001 and the same was sought to be re-opened now.

4. When the matter came up before the learned Single Judge, the counsel for the respondent pointed out that the appellant has withheld vital information and has suppressed communication dated 18.04.2002 which had been received by the appellant and which letter stated that the Council has decided not to accept the report of the Disciplinary Committee and has decided to refer it back to the Disciplinary Committee for further enquiry.

5. Based on the said submission of the counsel for the respondent, the impugned order holds that there is no reference in the writ petition or list of dates to the said crucial date and communication. The Court hence declined any interim stay to the appellant. A direction was issued to the Disciplinary Committee to conclude the proceedings

expeditiously. In the main writ petition, the respondent was given an opportunity to file its counter affidavit. Hence the appellant has preferred the present appeal impugning the said order declining a stay of the proceedings.

6. The learned senior counsel for the appellant also relies upon a judgment of the Division Bench of this High Court in the case of The Council of the Institute of Accountants of India, New Delhi vs. Dinesh Kumar and Anr., 1991(21) DRJ 238. This Court held that there is nothing on record to show as to why it took four years for the Council to deliberate upon the report of the Disciplinary Committee and keep the matter pending to the extreme prejudice of the respondent. The Hon'ble Court noted as follows:-

"......A case like the present one where there is a charge of misconduct against a professional has to be disposed of with utmost expedition. The approach, in the present case, of the Council appears to us to be rather lackluster and the delay inexcusable. We are told that all these years respondent has not been able to get any work of public undertakings and other institutions because of pendency of the disciplinary proceedings....."

The Court finally directed the proceedings to be filed.

7. The learned senior counsel for the appellant also points out that the above judgment was relied upon by the Division Bench of this Court in the case of The Council of the Institute of Chartered Accountants of India vs. Shri. D.R. Bahl and Anr. 117 (2011) DLT

332. In the said case, the complaint was made in the year 1992, the meeting of the Council took place in December, 1996 and the reference to the High Court was made in July 2000. Hence the Court

came to the conclusion that there were latches and delay that remained unexplained. Relying on the above judgment of Dinesh Kumar (supra), this Court directed the reference to be filed.

8. Counsel for the respondent states that the letter of 24.02.2006 pertains to a different disciplinary proceeding and does not concern the present proceedings. He relies on the impugned order to argue that the appellant has suppressed material facts and is not entitled to any interim protection.

9. The learned counsel appearing for the respondent has also relied upon the judgments of the Hon'ble Supreme Court in the case of Niranjan Hemchandra Sashital and Anr. Vs. State of Maharashtra,WP(Crl.)50/2012, dated 15.03.2013 and Ranjan Dwivedi vs. CBI, Through the Director General,WP(Crl.) 200/2011, dated 17.08.2012. He has contended that in these judgments, the consistent view of the Hon'ble Supreme Court has been that the trial in criminal cases cannot be terminated merely on the ground of delay.

10. A perusal of the facts shows that there is gross delay on the part of the respondent in conduct of the proceedings. The first communication regarding the alleged misconduct was issued by the respondent is dated 23.06.1997 where the respondent was asked to submit his reply. The Disciplinary Committee exonerated the appellant vide its report dated 17.01.2001. Thereafter, the Council vide its communication dated 18.04.2002 informed the appellant that the report of the Disciplinary Committee has not been accepted and the matter is being referred back to the Disciplinary Committee for further enquiry. No doubt, this communication dated 18.04.2002 has

not been placed on record by the Appellant. However, after a gap of about 16 years from the date of the alleged misconduct and 11 years from the date of the decision of the Council, the respondent has now sought to re-start the procedure to cause further enquiry by the Disciplinary Committee.

11. A perusal of the judgment of the Hon'ble Supreme Court in the case of Niranjan Hemchandra Sashital (supra) cited by learned counsel for the respondent shows that the said matter pertains to quashing of criminal proceedings on the ground of delay in investigation, filing of charge-sheet, etc. The matter pertains to the criminal prosecution of a public servant under the Prevention of Corruption Act, 1988. In para 19, the Hon'ble Supreme Court held as follows:-

"19. It is to be kept in mind that on one hand, the right of the accused is to have a speedy trial and on the other, the quashment of the indictment or the acquittal or refusal for sending the matter for re-trial has to be weighed, regard being had to the impact of the crime on the society and the confidence of the people in the judicial system. There cannot be a mechanical approach. From the principles laid down in many an authority of this Court, it is clear as crystal that no time limit can be stipulated for disposal of the criminal trial. The delay caused has to be weighed on the factual score, regard being had to the nature of the offence and the concept of social justice and the cry of the collective. In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. The Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. ...."

The Hon'ble Court thus concluded that the balance to continue the proceedings against the accused tilts in favour of the prosecution and hence Hon'ble Court did not quash the proceedings.

12. Similarly in the case of Ranjan Dwivedi (supra) cited by learned counsel for respondent, the Hon'ble Supreme Court reiterated the legal position that the Constitution does not expressly declare the right to speedy trial as a fundamental right. However, the right to speedy trial is implicit in the broad sweep of content of Article 21 of the Constitution. In para 19, the Hon'ble Court held as follows:

"19. The reasons for the delay is one of the factors which courts would normally assess in determining as to whether a particular accused has been deprived of his her right to speedy trial, including the party to whom the delay is attributable. Delay, which occasioned by action or inaction of the prosecution is one of the main factors which will be taken note by the courts while interjecting a criminal trial. A deliberate attempt to delay the trial, in order to hamper the accused, is weighed heavily against the prosecution. However, unintentional and unavoidable delays or administrative factors over which prosecution has no control, such as, over-crowded court dockets, absence of the presiding officers, strike by the lawyers, delay by the superior forum in notifying the designated Judge, (in the present case only), the matterpending before the other forums, including High Courts and Supreme Courts and adjournment of the criminal trial at the instance of the accused, may be a good cause for the failure to complete the trail within a reasonable time. This is only illustrative and not exhaustive. Such delay or delays cannot be violative of accused's right to a speedy trial and needs to be excluded while deciding whether there is unreasonable and unexplained delay. The good cause exception to the speedy trial requirement focuses on only one factor i.e. the reason for the delay and the attending circumstances bear on the inquiry only to the extent to the sufficiency of the reason itself...."

The above petition pertains to prosecution against the accused for alleged assassination of Shri L.N. Mishra, the then Union Railway

Minister. Hence, the Hon'ble Court concluded that the trial could not be terminated merely on the ground of delay without considering the reasons thereof.

13. A reading of the above judgments cited by learned counsel for the respondent makes it clear that they would not apply to the facts of the present case. The above judgments relate to serious criminal offences said to have been committed by the accused. The Hon'ble Court declined to quash the criminal proceedings on the ground of delay based on the facts of those cases. In the present case the issue pertains to issue of an advertisement published in the Accountancy Journal of the Institute of Chartered Accountants of England and Wales in the month of August 1996 wherein details as regards the professional attainment of the principal of the appellant firm have been mentioned. The two judgments of the Division Bench cited by the learned senior counsel for the appellant would apply to the facts of the present case. Further in the present case there is at the moment unexplained delay of nearly 12 years in re-starting the disciplinary proceedings.

14. The main writ petition is still pending before the learned Single Judge. Pleadings are yet to be completed. Given the unexplained delay and the prejudice that would be caused to the appellant due to pendency of the present disciplinary proceedings, we are of the view that it will be appropriate that respondent does not proceed with the enquiry till the pendency of the said noted writ petition. It is true that the appellant had failed to point out communication dated 18.04.2002 in his writ petition. There could be various reasons for the same. On

first reading, the said document does not go to the root of the submissions of the appellant regarding long unexplained delay in re- initiating the matter.

15. In view of the above, we set aside the order of the learned Single Judge to the extent that no interim stay was granted to the appellant. We direct stay of the communication dated 08.03.2013 issued by the respondent and consequential proceeding till the pendency of the writ petition.

16. However it is clarified that whatever we have said herein is only a prima facie view for the purpose of decision of the present appeal. The parties are free to raise all submissions and contentions before the learned Single Judge before whom the Writ Petition is pending as available in law.

17. Appeal is disposed of in the above terms.

                                             JAYANT NATH, J


APRIL 22, 2013/rb                            CHIEF JUSTICE