Delhi High Court
N.C. Bansal vs Board Of Discipline Of Icai & Ors on 3 February, 2014
Author: N.V. Ramana,Chief Justice
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 3rd February, 2014.
+ LPA No.105/2014
N.C. BANSAL ..... Appellant
Through: Mr. Sameer Bhatnagar, Adv.
Versus
BOARD OF DISCIPLINE OF ICAI & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This intra court appeal impugns the judgment dated 28th November,
2013 of the learned Single Judge of this Court of dismissal of WP(C) No.
1043/2013 filed by the appellant. The said writ petition was filed by the
appellant seeking a direction to the respondent, Board of Discipline of Institute
of Chartered Accountants of India to carry out and expedite investigation into
the complaint filed by the appellant and to submit an appropriate report before
the Court.
2. The appellant had filed a complaint dated 20th June, 2008 with the
Secretary, Institute of Chartered Accountants of India, New Delhi to take
disciplinary action against one Mr. Manoj Kumar Gupta, Chartered
Accountant.
LPA 105/2014 Page 1 of 6
3. It is not in dispute that the said complaint, in accordance with the
Chartered Accountants Act 1949, was considered by the Director (Discipline)
of the said Institute, who called for the reply of the said Mr. Manoj Kumar
Gupta to the complaint and furnished a copy of the said reply to the
appellant/complainant and the appellant/complainant submitted his
comments/rejoinder on the said response of Shri Manoj Kumar Gupta. It is
also not in dispute that the Director (Discipline) of the respondent Institute, on
the basis of the said material before him, formed a prima facie opinion that the
said Mr. Manoj Kumar Gupta was not guilty of any professional misconduct as
alleged by the appellant. A detailed report running into as many as 13 pages,
also containing the reasons for the opinion formed, was submitted by the
Director (Discipline) of the Institute before the Board of Discipline of the
Institute constituted under Section 21A of the Act. It is yet further not in
dispute that the Board of Discipline of the respondent Institute, in its meeting
held on 4th October, 2011 considered the said report of the Director (Discipline)
and, concurred with the same and ordered the closure of the case/complaint.
4. It is thus not as if the complaint of the appellant was not considered by
the Institute. However the Institute, after considering the same as per its
procedure, found no merit therein. The relief claimed by the appellant in the
LPA 105/2014 Page 2 of 6
writ petition thus of directing the Institute to look into the complaint was
misconceived.
5. From a reading of the judgment of the learned Single Judge it appears
that the grievance urged by the appellant before the learned Single Judge was,
that no opportunity of hearing had been given to the appellant complainant
before the Director (Discipline) of the Institute formed a prima facie opinion
that there was no misconduct committed by Mr. Manoj Kumar Gupta. The
learned Single Judge in this regard has held that neither the Act nor the
Chartered Accountant (Procedure of Investigation of Professional and Other
Misconduct and Conduct of Cases) Rules 2007 provide for such opportunity of
hearing to be given and in any case this Court in judgment dated 12 th October,
2012 in WP(C) 6470/2012 titled Dinesh Gupta Vs. Shri Vishal Chandra
Gupta confirmed in judgment dated 20th December, 2012 in LPA No.843/2012
preferred thereagainst has held that calling for the comments of the
complainant to the response of the alleged delinquent member is enough
compliance with principles of natural justice and no opportunity of oral hearing
is required to be given. Accordingly, the learned Single Judge did not accept
the contention of the appellant that the decision of the Institute to not take any
action on the complaint and close the same was violative of the principles of
natural justice and held that the said decision did not require any interference.
LPA 105/2014 Page 3 of 6
6. The counsel for the appellant, before us, has not found any error in the
reasoning given by the learned Single Judge. He has however argued that since
the appellant in the writ petition had sought writ of mandamus, the scope
whereof is very wide, extending to prevent failure of justice in a wide variety
of cases and since in the present case injustice had been done, this Court should
intervene.
7. We are unable to agree. The relief claimed in the writ petition, though
in the form of a mandamus, was really of a writ of certiorari interfering with
the decision reached by the Board of Discipline of the Institute that there was
no merit in the complaint by the appellant of misconduct against Mr. Manoj
Kumar Gupta and to close the said complaint. It is not the case of the appellant
before us that there was any error in following the prescribed procedure in
disposing of the complaint. Though the appellant before the learned Single
Judge had argued that there was an error in procedure for the reason of the
appellant having not been given an opportunity of hearing by the Director
(Discipline) of the respondent Institute but in the face of the judgment dated
20th December, 2012 of the Division Bench of this Court in LPA 843/2012
supra, the counsel for the appellant has not pursued the said aspect. He has
also not been able to show any other error in procedure followed by the
Institute in dealing with the complaint filed by the appellant.
LPA 105/2014 Page 4 of 6
8. The Division Bench of this Court in judgment supra has clearly held, (i)
that the Rules do not provide for any hearing; (ii) that the said Rules have to be
examined in the context of the situation with which they deal; (iii) the
complaints dealt thereunder are of professional misconduct; (iv) that the
Institute in its concern to maintain high standards in the profession of Chartered
Accountants, has provided for in-house mechanism of inquiry; (v) that the role
of the Director (Discipline) is merely inquisitorial and the stage of
consideration of the complaint by the Director (Discipline) is intended to
prevent the members of the Institute from being harassed by being required to
undergo the entire adjudicatory process qua each complaint which may be
made against them. In fact, the Division Bench had relied on an earlier
judgment, also of the Division Bench of this Court, in R.K. Sharma Vs.
Institute of Chartered Accountants of India 44 (1991) DLT 298 also holding
that at the stage of forming the prima facie opinion there is no requirement to
frame any formal charges and formation of any prima facie opinion cannot be
challenged on the ground that the member complained against had not been
informed of the charges on which inquiry was proposed to be held. A host of
other judgments were also referred by the Division Bench to conclude that the
complainant has a right only to make a complaint and it is upto the Institute to,
in accordance with Rules and Regulations, deal with the said complaints.
LPA 105/2014 Page 5 of 6
9. The counsel for the appellant wants us to enter into the fora of the merits
of the prima facie findings of the Director (Discipline) to form an opinion that
no case of misconduct is made out. That, we are afraid, is beyond the scope of
the writ jurisdiction which we are exercising, the scope whereof is to ensure
that there is no error in the decision making process and not to interfere as an
appellant authority in the decision so arrived at by the concerned disciplinary
authority/body of the Institute.
10. There is thus no merit in the appeal which is dismissed. No costs.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J.
FEBRUARY 3rd, 2014.
M..
