Risha Lodha vs The Institute Of Chartered ...
2021 Latest Caselaw 9439 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 6261/2021

Risha Lodha D/o Bhagwat Singh Lodha, Aged About 21 Years, R/o Rao Ji Ki Nai Haveli, Nursingh Dhara, Opp. Hanuman Temple, Jodhpur- 342001.

----Petitioner Versus

1. The Institute Of Chartered Accountants Of India, Through Its President Ca Nihar N Janbusaria, Icai Bhawan, Indraprastha Marg, Post Box No. 7100, New Delhi - 110002.

2. The Deputy Secretary (Examination), The Institute Of Chartered Accountants Of India, Icai Bhawan, C-1, Sector1, Noida - 201301.

                                                                ----Respondents



For Petitioner(s)        :     Mr. Vikas Balia
For Respondent(s)        :     Mr. Manoj Bhandari
                               Mr. Anjay Kothari, all through Cisco
                               Webex


                    JUSTICE DINESH MEHTA
                          Judgment

Reportable                                                        13/05/2021

(1) The petitioner, a young girl-student of 21 years of age, has

knocked at the doors of this Court being aggrieved by extreme

oppressive action of a professional body-The Institute of Chartered

Accountants of India (for short, 'Institute'), which enjoys a long

earned reputation of setting high standards of professional

excellence, discipline and meeting the timeline especially when it

comes to holding of examinations and declaring results.

(2 of 20) [CW-6261/2021]

(2) Although the chronological facts are handful but their

culmination has been dreadful and concussion thereof could have

been doomful.

(3) Aspiring to become a Chartered Accountant, the petitioner

cleared her CA Foundation Examination in the year 2018 in the

very first attempt. Consequently, she became eligible to appear in

CA Intermediate Examination scheduled for May, 2020.

(4) On account of unprecedented situation of spread of Covid-19

and imposition of lock-down, the exams due in May, 2020 were

cancelled.

(5) Thereafter, a new schedule for CA Examinations came to be

published according to which the exams were re-scheduled to be

conducted between November 21st and December 14th, 2020.

(6) Owing to the said rescheduling, the respondent-Institute

gave an option to all those candidates, who had filled-in

application forms for the examinations of May, 2020 to appear in

the examinations to be held in November, 2020.

(7) Meanwhile, being wary of uncertainty about candidates'

ability to appear, arising out of Pandemic, the Institute permitted

the students to opt-out of examinations scheduled in November,

2020 with a liberty to appear in subsequent examinations, which

were planned to be convened in January, 2021. In this regard, a

Press Note, well in advance, came to be issued by the Institute on

7th November, 2020.

(8) On 20.11.2020, the petitioner chose to address an e-mail to

the office bearers of the Institute, including its President on the

following e-mail addresses:

(i) [email protected]

(ii) [email protected]

(iii) [email protected]

(3 of 20) [CW-6261/2021]

(9) In the said e-mail, the petitioner highlighted the situation

of spread of Covid-19 and cautioned that if the examinations are

held, it will lead to exponential growth in number of Covid cases.

Though the petitioner made many emotional comments, but the

thrust of her e-mail was only to suggest that online infrastructure

be developed so that all levels of CA Examinations be conducted

online.

(10) As luck would have it, the petitioner and her father got

infected with Covid as is evident from their reports dated

21.11.2020, which are on record.

(11) The petitioner opted out of the November exams and was

thus, issued admit card to appear in the examinations held from

22.1.2021 to 7.2.2021.

(12) Petitioner appeared in all the papers/exams held as per

above schedule.

(13) On 22.2.2021, as a bolt from the blue, she received an e-

mail dated 22.2.2021 from the Dy. Secretary (Examinations) -

respondent no.2, informing that her result had been put on hold,

because of derogatory remarks she had made in her e-mail. An

explanation was simultaneously sought as to why disciplinary

proceedings not be initiated against her for the same.

(14) No sooner had the petitioner received the notice aforesaid

than she sent an e-mail (in the evening of 22.2.2021 itself)

expressing her unconditional apology for her inappropriate

remarks. In addition thereto, she clearly wrote that she lost her

cool because of constant delay due to Pandemic and also because

of safety concerns of her and her father. It will not be out of place

to reproduce in extenso, the apologetical e-mail, which she had

sent:

                                          (4 of 20)              [CW-6261/2021]


     "Respected Sir/Ma'am

I'm so sorry for my inappropriate remarks. I completely failed to think about my words and ended up saying something hurtful and insensitive. I just lost my cool because of the situation i.e. constant delays due to the pandemic and safety concerns regarding my family, and now that I think of it, I acted in a very silly and childlike manner. I'm truly ashamed of myself. I wish I could undo the damage I have done. Sadly, I can't. Hence, an apology letter.

Please forgive me. I promise that I will not behave in such a manner again. I did not in any way intend to hurt or harm the institute and its stakeholders. I sincerely request you to not initiate a disciplinary proceeding against me as I really regret my actions and will not repeat this in the future.

I apologize for all the inconvenience and my reactions.

Sincerely,

Risha Lodha"

(15) Regardless of the aforesaid letter, vide which, the petitioner

had literally eschewed whatever she had written in her e-mail,

respondent No.2 proceeded to send her a communication dated

7.3.2021 requiring her presence on 10.3.2021 at Jaipur. The

subject of said e-mail needs special mention, for which, it is being

extracted:

"Alleged resort to unfair means/derogatory remarks during Chartered Accountants Examinations - November 2020."

(16) The petitioner appeared on the scheduled date and time at

Jaipur and put forth her explanation, but she was kept uninformed

about the order/result of the hearing.

(17) Various e-mails were exchanged between petitioner and

respondent no.2 in the meantime, but the same are not of much

significance.

                                            (5 of 20)                     [CW-6261/2021]



(18) On    26.3.2021,       the      Institute       declared       result     of     CA

Intermediate Examinations. The petitioner surfed official website

of the Institute for her result, only to find that her result has been

cancelled, under caption "ADOPTED UNFAIR MEANS. LETTER

FOLLOWS". The screen shot depicting such information has been

placed on record by the petitioner.

(19) Faced with such situation, the petitioner sent an e-mail to

respondent no.2, inter alia, showing her concern that the result

had been cancelled indicating that she had adopted unfair means.

She submitted that a letter was to follow as per the information,

but she had not received any such letter. While reiterating that

she had not used any unfair means, she submitted that her result

had perhaps been cancelled due to misunderstanding.

(20) In response to petitioner's above e-mail, the respondent

no.2 responded vide e-mail dated 30.3.2021 and informed that

the Examination Committee had reached a conclusion that she

was guilty of making derogatory remarks in the captioned

examination and thus, her result of CA Intermediate Examination

held in January, 2021 had been cancelled. Said e-mail records

that a hard copy would follow.

(21) The petitioner preferred the present writ petition on

5.4.2021, oppugning respondents' actions.

(22) When the matter came up for admission hearing,

simultaneous with the issuance of notices, the Court had directed

respondent-Institute to produce petitioner's result in a sealed

envelop.

(23) Mr. Manoj Bhandari and Mr. Anjay Kothari, learned counsel

appeared for the respondent-Institute and informed that

(6 of 20) [CW-6261/2021]

petitioner's result has been produced in a sealed envelop and a

reply to the writ petition has also been filed.

(24) Mr. Vikas Balia, learned counsel appearing for the petitioner

at the outset submitted that in many a cases, the Court opens the

envelop to see as to whether the concerned petitioner has passed

or not before proceeding to decide the case on merits-considering

that if the candidate has cleared the examination, the matter

would be heard and if not, it can be dismissed as infructuous. But

in the instant case, irrespective of the result, he would insist

rather implore the Court that the matter be heard and the result

be ordered to be declared, only if the Court found substance in

petitioner's submissions and merits of the case.

(25) Hence, with the consent of both the parties, the matter was

finally heard.

(26) Having laid the factual fulcrum, learned counsel for the

petitioner raised a number of grounds; some of them are

enumerated hereunder:

(a) The action of the Examination Committee in cancelling result

of the petitioner is per-se without jurisdiction inasmuch as

Regulations 41 and 176 of the Chartered Accountants Regulations,

1988 (hereinafter referred to as 'the Regulations or the

Regulations of 1988') authorize the Examination Committee to

take action in the matters relating to examination and to adjudge

behaviour of a candidate in or near an examination hall, whereas

the contentious letter was written about 2 months ahead of

exams.

(b) On receipt of the contentious e-mail dated 20.11.2020, the

Institute had sent a registered notice dated 22.11.2020 asking the

petitioner to refrain from addressing any such communication

(7 of 20) [CW-6261/2021]

concerning the examination, failing which, the Institute would be

constrained to initiate legal proceedings against her. He submitted

that the notice sent by Institute's advocate was clear and

categorical. Any legal action could therefore, be taken only in case

the petitioner further indulged in any such correspondence with

the Institute. Emphasising that e-mail dated 20.11.2020 is the

only e-mail and the petitioner had not sent any other mail, learned

counsel argued that according to the respondents' own notice,

they were estopped from taking any legal action against the

petitioner until the petitioner sent any further e-mail/letter.

(c) During the entire hearing Mr. Balia maintained that the e-

mail written by the petitioner could not be said to be derogatory in

any manner eliciting disciplinary action. He navigated the Court

through the body of the e-mail dated 20.11.2020 and contended

that there was hardly any offending remark against the Institute

or any of its office bearers, though he meekly added that may be,

certain things could have been avoided by the petitioner. But in

any case, petitioner's anxiety was only to request the Institute to

develop online infrastructure, so that the CA Examinations at all

levels could be conducted online, added learned counsel.

(d) Mr. Balia took the Court through e-mail dated 22.2.2021

which was immediately sent by the petitioner on receipt of the

notice (dated 22.2.2021) given by the respondent no.2. He was at

pains, when he submitted that petitioner's reply/response dated

22.2.2021 is reflective of the enormous pressure and repentance,

which she would have felt on receiving the notice and highlighted

that the petitioner not only apologized, but also went to the extent

of feeling ashamed of herself. Then, he posed a question: "what

else did the respondent Committee expect of the petitioner? "

(8 of 20) [CW-6261/2021]

(e) Without prejudice to his basic contention that e-mail dated

20.11.2020 was in no manner derogatory, learned counsel

submitted that the ego of respondent No.2 ought to have been

satisfied on receiving the apology and instead of continuing with

the proceedings, the respondents ought to have closed the matter.

He submitted that the Institute has failed to show the usual grace,

for which it is known.

(f) Learned counsel expressed his concern, rather anguish about

the words used by the Institute on its official portal in relation to

petitioner's result. He submitted that use of expression "adopted

unfair means" was factually incorrect on the face of it. He added

that such reflection in relation to petitioner's result shows not only

vindictiveness of the respondent No.2, but also irresponsible and

unprofessional approach of a professional body.

(27) While summing up the arguments, learned counsel would

submit that not only does the writ petition deserve to be allowed,

but also the glaring facts of the case at hand warrants imposition

of exemplary cost for the harassment meted out to the petitioner

and to recompense her image that has been tarnished.

(28) Mr. Bhandari, learned counsel appearing for the respondents

firstly raised a preliminary objection that in the face of an

efficacious alternative remedy of filing a review before the Council

against the decision taken by the Examination Committee, as

provided in Regulation 176(3) of the Regulations, the writ petition

is not maintainable.

(29) It was also contended that as the petitioner has concealed a

material fact of receiving a notice dated 22.11.2020 sent to her

by the Institute's counsel, her writ petition is liable to be

dismissed.

(9 of 20) [CW-6261/2021]

(30) A preliminary submission was also made by the respondents

that though the petitioner had been informed vide communication

dated 30.3.2021 that her result had been cancelled, but she has

chosen not to assail the same and hence, her writ petition seeking

a declaration of result simplicitor, is not maintainable.

(31) Joining on merits of the case, Mr. Bhandari did not have

much to defend the impugned action, except that petitioner's e-

mail dated 20.11.2020 reflected disorderly behaviour on her part.

He added that petitioner's contentious e-mail was unwarranted,

particularly a day before the scheduled date of examination.

(32) While stating that the respondent-Institute had taken all the

measures and precautions to ensure that the examinations be

held keeping the safety of all stakeholders, Mr. Bhandari submitted

that even Hon'ble the Supreme Court being satisfied with the

precautionary measures taken by the respondent-Institute, had

dismissed a writ petition filed by one student (Amit Jain) on

4.11.2020 and permitted the respondent-Institute to conduct

examinations. He argued that the petitioner ought not have raised

doubts about the Institute's preparation.

(33) He argued that in any case, petitioner's e-mail dated

20.11.2020 was disorderly and since the same related to the

examinations, Examination Committee did have the jurisdiction to

proceed against the petitioner and annul her examination and

such action is well within the powers of Examination Committee as

conferred by Regulations 41 and 176 of the Regulations.

(34) Having heard learned counsel for the parties and after

wading through the record, this Court finds that not only the

initiation of proceedings against the petitioner, but also the

manner in which, the proceedings have been conducted so also its

(10 of 20) [CW-6261/2021]

culmination in cancellation of petitioner's result suffers from all the

vices which have been voiced by Mr. Vikas Balia. They are without

jurisdiction and against the principles of natural justice on one

hand and capricious and arbitrary on the other.

(35) Before setting out reasons for arriving at such conclusion,

this Court would at first, prefer to reproduce petitioner's e-mail

dated 20.11.2020, which is the sole bone of contention:

"I want to give exams. If the exams happen, I will appear.

But If the exams happen, the no. of cases are bound to sky-rocket.

Sir, with all due respect, Do you not understand the seriousness of the situation or are you just ignorant? I honestly feel the only way forward is to develop online infrastructure and conduct all levels of CA exams online.

From what we know (research & statistics), jan-feb is gonna be worse (conducting exams physically then is a far-fetched dream).

Even if the exams start, they won't conclude successfully. More situations like this (curfew/lockdown) will arise in between exams and a lot of people (students, invigilators, in transit, icai staff, staff at the centre and their families) will get infected.

"Precaution is better than cure"

PLEASE RETHINK YOUR DECISIONS QUERY:

What happens if a student in my class gives say 2 exams in the first group and then opts out. Now it may be due to his lack of preparation or that he himself or his family is infected. What will happen next? Will the other students in the class be informed? Morever how will you know if he opted out because he has covid or just symptoms (could be a viral fever) What happens to all the students if the invigilator gets infected?

I'm not expecting a reply but please go through this once

Thankyou for your time.

I will get back to studying now."

(11 of 20) [CW-6261/2021]

(36) A perusal of the above quoted e-mail sent by the petitioner

reveals that the same was addressed to Institute's President and

other office bearers and not to the Examination Committee.

Hence, the Examination Committee ought not have taken

cognizance of an e-mail sent to the President of the Institute,

unless the President directed it to do so.

(37) That apart, in the opinion of this Court, there is hardly

anything in the e-mail, for which it can be alleged/ considered as

or even construed to be derogatory. May be, the petitioner could

have been more calibrated in her emotional utterness and could

have avoided some of the sentences, but then also, this Court is

unable to countenance respondents' stand that the contents of her

mail were derogatory. The very initiation of the proceedings

against the petitioner alleging that the e-mail contains derogatory

remarks was uncalled for and unwarranted. On the contrary, this

Court feels that action of the respondents was rather over bearing

or high handed.

(38) One cannot lose sight of the fact that on receipt of the notice

dated 22.2.2021 itself, the petitioner had practically knelt down in

subservience before respondent No.2 urging that she regretted

her action and would not repeat the same in future. While

apologizing in the said reply/letter, she had even gone to the

extent of writing that "I am truly ashamed of myself."

(39) As Voltaire said, "With great power comes great

responsibility". Thus, the Institute which is adorned with enormous

power to elevate or uplift the lives of vulnerable & struggling

students, is required to practice greater restraint in invoking its

powers especially against the students. Instant case called for not

just restraint but absolute abstinence from initiating any action

(12 of 20) [CW-6261/2021]

against the petitioner, particularly when she had submitted a

beseeching response. But for the reasons best known to the

Examination Committee, instead of burrying the hatchet, it

literally opened a battle-front and issued a notice to the petitioner

on 7.3.2021 and summoned her to Jaipur to defend her cause in

furtherance of the notice dated 22.2.2021(vide which, the

Institute had called upon the petitioner to explain why the

disciplinary proceedings not be initiated against her for derogatory

remarks she had made).

(40) One would surely wonder as to what more could be expected

of the petitioner for seeking redemption of her purported

misdeeds or misdemeanor at the altar of the Examination

Committee?

(41) It is rather disturbing that the petitioner was personally

heard on 10.3.2021 yet no order was ever communicated/supplied

to her. She came to know that her result had been cancelled that

too, citing "adopted unfair means".

(42) What is more intriguing and perturbing is, that in subsequent

mail exchange, the Examination Committee sought to improve

upon the earlier reason for cancelling the result by stating that

same had occasioned on account of her making derogatory

remarks in the examinations. Though the said e-mail indicated

that a hard copy would follow, but the same has never seen the

light of the day.

(43) The petitioner has been constrained to approach this Court

for the following reliefs:

"I. The respondent institution(sic) may be directed to declare the result of the petitioner;

(13 of 20) [CW-6261/2021]

II. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners. III. Costs of the writ petition may kindly be awarded to the petitioner."

(44) True it is, that the petitioner has not challenged the

communication dated 30.3.2021, as has been argued by Mr.

Bhandari. But then, the communication dated 30.3.2021 cannot

be said to be an order. It is simply an intimation. Therefore, the

petitioner is justified in seeking a prayer for declaration of result.

Ideally, the petitioner could have sought quashment of

communication dated 30.3.2021 or any corresponding order, but

such trivial technicalities cannot come in petitioner's way of

getting her grievance redressed and rights adjudicated.

(45) This court hardly finds any substance in Mr. Bhandari's

allegation that the petitioner is guilty of concealment of facts in

relation to the notice dated 22.11.2020 sent by the Institute's

counsel. Firstly, the petitioner does not stand at any advantageous

position by its nondisclosure and secondly, it rather gives an

additional ground to the petitioner, as noticed in para 26(b) above.

One can easily understand that it was nothing more than an

oversight, due to which the petitioner failed to bring the same

on record.

(46) So far as respondents' preliminary objection regarding

availability of alternative remedy before the Council is concerned,

in the extant facts, when the respondent No.2 has exceeded its

jurisdiction and the impugned decision is arbitrary and further

smacks of abuse of authority, this Court cannot relegate the

(14 of 20) [CW-6261/2021]

petitioner to avail alternative remedy. Needless to say, availability

of alternative remedy is a rule of discretion. In the present factual

backdrop, remedy of review cannot be posited as a road block in

petitioner's way of invoking writ jurisdiction, when her

fundamental rights have been infringed and when actions of the

respondent committee are manifestly arbitrary and dehors its

powers.

(47) It is noteworthy that petitioner had addressed her e-mail to

the President and other office bearers of the Institute without

endorsing/marking its copy to Examination Committee. Hence, it

is apparent that the Examination Committee came into action at

the instance of the office bearers. Such a scenario poses a serious

question about the efficacy of the remedy of Review before the

Council provided under Regulation 176(3) of the Regulations. In

the opinion of this Court it will be a farce or just an eye wash.

(48) Further more, when the Institute -respnodent No.1 itself has

appeared before this Court and has chosen to defend the decision

of the Examination Committee-respondent No.2 with full force and

vigour, this Court conceives that the so called alternate remedy

would be illusory and an exercise in futility. The same would be

like asking the petitioner to challenge Caesar's order before

Caesar's wife (Re:Ram & Shyam Company Vs. State of Haryana-

AIR 1985 SC 1147).

(49) The impugned decision cancelling petitioner's result is

nothing short of colourable exercise of powers. It also showcases

vindictiveness of respondent Committee. The petitioner had sent

the contentious e-mail on 20.11.2020 whereafter on 22.11.2020

the respondent's counsel sent a notice to the petitioner on her e-

mail, relevant extract whereof reads thus:

(15 of 20) [CW-6261/2021]

"In view of the above, you are hereby called upon to refrain from addressing any such communication to ICAI or any other organization concerning the examinations currently being conducted by ICAI, failing which ICAI shall be constrained to initiate appropriate legal proceedings against you at your cost and consequences which you may please note."

(50) A perusal of the substance of the notice leaves no manner of

doubt that the respondent-Institute had warned the petitioner of

dire consequences, if she further indulged in addressing any such

communication to ICAI or any other organization concerning

examinations.

(51) Indisputably, the petitioner has not written even a single

letter to the Institute or to any other authority after 20.11.2020.

Neither there is anything on record nor is it the case of the

respondents that petitioner has ever communicated with the

Institute or published anything on any public platform regarding

examination or the manner in which the examinations were held

by the Institute. The respondent-Institute, therefore bound by its

own notice was estopped from initiating any action much less

disciplinary proceedings with respect to petitioner's e-mail dated

20.11.2020. In the opinion of this Court, the impugned

proceedings were, therefore, fundamentally without any basis

besides being arbitrary.

(52) It is also noteworthy that the first notice, which the

petitioner came to receive from the respondent no.2 vide e-mail

dated 22.2.2021 was only to the extent of seeking petitioner's

explanation as to why disciplinary proceedings not be initiated

against her for writing derogatory remarks. On receiving the

notice, the petitioner appeared before the Committee by travelling

(16 of 20) [CW-6261/2021]

all the way to Jaipur on 10.3.2021 and put-forth her cause. The

petitioner was never informed or put to notice that the respondent

committee was even contemplating the extreme action of

cancellation of her examination.

(53) The action/punishment of cancellation of result was

therefore, not just clearly contrary to principles of natural justice

but also against the law laid down by Hon'ble the Apex Court in

the case of Gorkha Security Services Vs. Govt. of NCT, Delhi

reported in (2014) 9 SCC 105. Though this judgment deals with

the issue relating to black listing but the observations made by

the Supreme Court in that process makes the legal position clear

that a show cause notice should necessarily state the action

which is proposed to be taken against the noticee.

(54) Since there was no mentioning or even indication of

cancellation of result neither in the e-mail dated 22.2.2021 nor in

the subsequent communications, there remains not even an iota

of doubt that the impugned order of cancelling the result is

inherently illegal, falling foul to Article 14 of the Constitution of

India and the same is liable to be quashed.

(55) This Court is unable to accept any excuse or justification

offered by the respondents for not even communicating the

decision to the petitioner. This Court feels concerned about the

petitioner's plight who was confronted with a remark that her

result has been cancelled due to use of unfair means, when she

searched for her result on 26.3.2021. The respondents' action of

reflecting such information rather mis-information in its official

website, in clear contrast with the actual facts is beyond

acceptable limits. The Examination Committee ought to have

realized that such casual rather reckless approach involving

(17 of 20) [CW-6261/2021]

imputation on reputation may have serious repercussions on

emotional or mental equilibrium of a student.

(56) The moot question,which remains to be decided is, as to

whether the Examination Committee had the jurisdiction to cancel

petitioner's result in the present factual matrix. In order to dilate

upon this issue, it will be apposite to run through the following

provisions dealing with the powers of Examination Committee

catalogued in Regulation 41 and 176 of the Regulations of 1988:

"41. Disciplinary action in connection with examination.

If a candidate is reported to have behaved in a disorderly manner in or near an examination hall or is reported to have resorted to or attempted to have resorted to unfair means for the purpose of passing an examination, the Examination Committee may, on receipt of a report to that effect and after such investigation as it may deem necessary, take such disciplinary action as it may think fit, provided that an opportunity shall be given to the candidate of being heard before an order adverse to him is passed.

Explanation -- Disciplinary action may include the cancellation of any examination result, or the cancellation of articles or both in relation to the candidate.

176. Examination Committee

(1) The Examination Committee shall perform all the functions of the Council relating to the examinations, such as holding of examinations, admissions thereto, cancellation of an examination, appointment and selection of examiners, prescription of books for the guidance of candidates, declaration of results, payment of remuneration to examiners and/or assistant examiners, superintendents of the examination and others.

(2) The Examination Committee may delegate any of its functions to the President or the Vice-President or its sub-committee.

(3) The Council shall have the power to review any decision taken by the Examination Committee or its sub-committee or the President or the Vice-President

(18 of 20) [CW-6261/2021]

in the performance of the functions delegated to it or him."

(57) A simple reading of Regulation 41 reveals that the

Examination Committee can initiate disciplinary proceedings in

connection with the Examination. The language used therein is

unequivocal, leaving no room for ambiguity that an action can be

taken if a candidate behaves in a disorderly manner in or near an

examination hall or has resorted to unfair means.

(58) Even if the contentious e-mail written by the petitioner on

20.11.2020 is presumed to be derogatory, then also, it is to be

noted that the same was written when the petitioner had not

even appeared in the examination. Since the petitioner had

appeared in the examinations held by the Institute between

22.1.2021 to 7.2.2021, the respondent no.2 could take action (if

any) only in relation to petitioner's behaviour during examination

in the examination hall, that too, between 22.1.2021 and

7.2.2021. The incidence or the e-mail in question had no nexus or

proximity with the examination hall, hence, the proceedings under

challenge were void since their inception or very beginning.

(59) The e-mail in question, which was written in November, 2020

cannot be used rather misused by the Examination Committee to

penalise the petitioner while exercising its purported powers

conferred by Regulation 41 of the Regulations of 1988. The

impugned action so also consequential decision dated 9/10.3.2021

(Annex.R/1) taken by the Examination Committee are both,

without jurisdiction and contrary to law i.e. express provisions

embodied in Regulations 41 and 176 of the Regulations of 1988.

(60) The Institute of Chartered Accountants of India is a statutory

body. Hence, its decisions, actions and adjudication are supposed

to conform to the standards expected of State or instrumentality

(19 of 20) [CW-6261/2021]

of a State. A State that suppresses freedom of speech and inflicts

or imposes extreme punishment treating an act or attempt of

criticism and/or if it treats any suggestion for improvement as a

challenge to its authority or supremacy is a State, that disregards

rather violates fundamental rights of a citizens guaranteed by

Article 19(1)(a) of our Constitution.

(61) As an upshot of discussion foregoing, this Court has no

hesitation in holding that the action of the Examination Committee

was without jurisdiction; proceedings conducted by it were

arbitrary and against the principles of natural justice and their

culmination in the form of decision dated 9/10.3.2021 has been

contrary to law.

(62) The writ petition is thus, allowed with the cost of litigation,

quantified at Rs.20,000/-.

(63) As a natural fallout, the decision dated 9/10.3.2021 of the

Examination Committee is hereby quashed and set aside.

(64) The result which was produced by the respondents in a

sealed envelop was opened and taken on record. Upon perusal of

the same, this Court finds that the petitioner has passed the CA

Intermediate Examination. Declared accordingly.

(65) The respondent-Institute is directed to send original mark-

sheet and certificate of passing CA Intermediate Examination to

the petitioner, forthwith. It will be required of the respondent-

Institute to appropriately reflect petitioner's result on its official

portal.

(66) Though the facts of the present case warrant imposition of

exemplary costs, but this Court feels that quantification of cost

would be a guesswork and improper assessment of the agony and

trauma which the petitioner has undergone. Hence, this Court

(20 of 20) [CW-6261/2021]

abstains from imposing any cost in the form of damages or

otherwise.

(67) While hoping that in future the Institute will not take any

such action and take any criticism in positive stride, this Court

hastens to add that a professional body like the respondent

Institute should introspect and ensure that its overenthusiasm of

attaining professional excellence and endevours of setting high

standards of discipline should not silence rather stifle the speech

of a student or its member in the manner that has been done in

the present case.

(68) The cost of Rs.20,000/- as indicated above, shall be paid by

the respondents by way of demand draft to the petitioner within a

period of 30 days from today.

(69) The stay application also stands disposed of accordingly.

(DINESH MEHTA),J

44-CPGoyal/-

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