Delhi High Court
Hitender Kumar Mehta vs Union Of India & Ors. on 13 December, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13.12.2017
+ LPA 374/2016 & CM No.22224/2016
HITENDER KUMAR MEHTA ..... Appellant
Through: Mr. J.K. Mittal and Mr. Rajeev
Singh, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Jasmeet Singh, CGSC and
Mr. Srivats Kaushal, Adv. for UOI.
Mr. R.D. Makheeja, Adv. for R-2.
Mr. Desh Ratan Nigam, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
S. RAVINDRA BHAT, J.(ORAL)
1. The appellant claims to be aggrieved by an order of the
Single Judge who affirmed the findings of the Election Tribunal
established under Section 10B of the Company Secretaries Act,
1980. The grievance articulated in the writ proceeding was that
the respondent - a successful candidate for the membership of
the Council (Central Council of the Institute) had secured his
registration as "Fellow Member" contrary to the regulation and
had therefore acted in an arbitrary manner disentitling him to
offer candidature.
LPA No.374/2016 Page 1
2. The Tribunal after considering the circumstances
concluded that the respondent candidate was undoubtedly
registered or enrolled as an Advocate but was not "engaged in
that profession". It is also a matter of record that the appellant's
complaint with respect to professional misconduct is under
enquiry and investigation by the Disciplinary Committee of the
Institute. In these circumstances, the Tribunal - and
subsequently the Single Judge found that since Section 10A
provides for disputes settlement with respect to elections held
under Section 9(2)(a) and Section 10B, the allegations could not
have been investigated and adverse finding rendered without
casting aspersions upon the respondent's conduct which was the
subject matter of the disciplinary proceedings.
3. Mr. Mittal, learned counsel submitted that the Single
Judge fell into error. It was contended that the Single Judge
misinterpreted the provisions in holding that the onus of proving
that the elected candidate was, in fact, practising, was upon the
complainant. It was submitted that once the Tribunal was made
aware that candidate was registered or enrolled as a lawyer, his
status as "Fellow Member" was immediately suspect and could
not have been given effect to for the purpose of election. It was
also submitted that the judgments relied upon were not relevant
or germane to the issue.
LPA No.374/2016 Page 2
4. Rule 7 of the Company Secretaries (Election to the
Council) Rules, 2006, i.e. the governing norm in this case, reads
as follows:-
"7. Members eligible to stand for election
Subject to other provisions of these Rules, a
member who is a fellow on the first day of April of
the financial year in which an election is to take
place and whose name continues to be borne on
the Register on the last date of scrutiny of
nominations under sub-rule (2) of rule 4, shall be
eligible to stand for election to the Council from
the regional constituency in which he is eligible to
vote:
Provided that no person shall be eligible to
stand for election to the Council, if -
(a) he has been found guilty of any
professional or other misconduct and his
name is removed from the register or he has
been awarded penalty of fine as provided in
proviso to clause (a) of sub-section (2) of
section 9 of the Act;
(b) he is holding a post under the Central or
State Government as provided in sub-section
(3) of section 9 of the Act;
(c) he has been auditor of the Institute
during the last three year as provided in
sub-section (4) of section 9 of the Act;
(d) he has held the office for more than two
consecutive terms as provided in first
proviso to section 10 of the Act; or
LPA No.374/2016 Page 3
(e) he has been elected as President under
sub-section (1) of section 12 of the Act as
provided in second proviso to section 10 of
the Act.
For the purpose of this rule -
(i) the penalties awarded to a person before
coming into force of the Company
Secretaries (Amendment) Act, 2006 or
penalties awarded to a person after coming
into force of the Company Secretaries
(Amendment) Act, 2006 for offences
committed before the coming into force of
the same, shall also be taken account for the
purpose of attracting disqualification under
clause (a) of the proviso above.
(ii) [omitted]
(iii) for a person who has been the auditor
of the Institute before coming into force of
the Company Secretaries (Amendment) Act,
2006, the three year period limitation
provided under Sub-section (4) of Section 9
of the Act shall also include the period
between his ceasing to be an auditor and the
coming into force of the Company
Secretaries (Amendment) Act, 2006.
(iv) the number of term(s) of Office held by a
person as a member of the Council either
under clause (a) or under clause (b) or
partly under clause (a) and partly under
clause (b) of sub-section (2) of section 9 of
the Act, prior to coming into force of the
Company Secretaries (Amendment) Act,
2006, shall not be taken into account for
LPA No.374/2016 Page 4
reckoning of the two consecutive terms for
the purpose of disqualification under clause
(d) of the proviso above.
(v) the holding of the office of the President
of the Institute under sub-section (1) of
Section 12 of the Act, prior to coming into
force of the Company Secretaries
(Amendment) Act, 2006, shall also be taken
into account for the purpose of attracting
disqualification under clause (e) of the
proviso above."
5. A plain reading of the proviso to Rule 7 makes it apparent
that the disqualifying conditions are spelt out in clauses (a) to
(e). For the purpose of determining whether the candidate fell
within any of those conditions so as to confer jurisdiction upon
the Tribunal, the enquiry had to necessarily be focused and
limited to those five conditions. In the present case, the
appellant's grievance is that the continued treatment or status of
the candidate as a "Fellow Member" is not cluttered and
consequently he made a fraudulent declaration disentitling his
candidature. On this aspect, the Election Tribunal rendered
clear findings that the respondent was not engaged in the
profession as an Advocate but was merely enrolled. Besides
this finding of fact, the Court is cognizant of the circumstance
that the issue as to whether the candidate had, in fact,
committed misconduct is the subject matter of an enquiry before
the competent Tribunal i.e. the Disciplinary Committee.
LPA No.374/2016 Page 5
In these circumstances, the findings rendered by the Tribunal
and the Single Judge are not erroneous.
6. The appeal is therefore dismissed.
S. RAVINDRA BHAT, J
SANJEEV SACHDEVA, J
DECEMBER 13, 2017
kks
LPA No.374/2016 Page 6
