Delhi High Court
The Council Of The Institute Of ... vs Shri S.N. Sachdeva on 24 January, 2011
Author: A.K. Sikri
Bench: A.K. Sikri, M.L. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CHAT. A. REF. NO.1 OF 2002
&
CHAT. A. APPEAL NO.1 OF 2003
% Judgment Reserved on : January 3, 2011
Judgment Delivered on: January 24,2011
(1) CHAT. A. REF. NO.1 OF 2002
THE COUNCIL OF THE INSTITUTE OF .... APPELLANT
CHARTERED ACCOUNTANTS OF INDIA
Through : Mr. Rakesh Agarwal, Advocate.
VERSUS
SHRI S.N. SACHDEVA ....RESPONDENTS
Through: Mr. Sandeep Sethi, Sr.
Advocate with Mr. Sindhu
Sinha and Mr. Nikhil Bhalla,
Advocates.
(2) CHAT. A. APPEAL NO.1 OF 2003
SHRI S.N. SACHDEVA .... .... APPELLANT
Through: Mr. Sandeep Sethi, Sr.
Advocate with Mr. Sindhu
Sinha and Mr. Nikhil Bhalla,
Advocates.
VERSUS
THE COUNCIL OF THE INSTITUTE OF ....RESPONDENTS
CHARTERED ACCOUNTANTS OF INDIA
Through : Mr. Rakesh Agarwal, Advocate.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 1 of 21
A.K. SIKRI, J.
1. Both these cases relate to Disciplinary Enquiry conducted by the Institute of Chartered Accountants of India (hereinafter referred to as the „Institute‟). The enquiry was conducted against Shri S.N. Sachdeva, FCA (hereinafter referred to as the „respondent‟), on certain charges which were found established. The Council of the Institute accepted the findings and accordingly found the respondent guilty of:-
(a) professional misconduct within the meaning of Clause (11) of Part I of the First Schedule and Clause (1) of Part III of the First Schedule to the Chartered Accountants Act, 1949 and
(b) guilty of professional misconduct within the meaning of Clause (i) of Part II of the Second Schedule to the said Act read with regulation 43 (8) of the Chartered Accountants Regulations, 1988.
2. In respect of misconduct falling under the First Schedule, the Council decided that an opportunity of hearing under Section 21(4) of the Chartered Accountants Act, 1949 be afforded to the respondent before passing orders against him. In respect of the misconduct falling under the Second Schedule, the Council decided to recommend it to the High Court that the name of the respondent be removed from the Register of Members for a period of three months.
3. This is how the Council has filed Reference Petition forwarding the case for appropriate penalty with aforesaid recommendation of removal of the name of the respondent from the Register of Members for a period of three months. As regards the misconduct falling under First Schedule is concerned, Sh. S.N. Sachdeva, FCA has approached this Court by filing appeal under sub-Section (1) of Section 22-A and under Section 21 (5) of the Chartered Accountants Act. That was a reason CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 2 of 21 that both these cases were heard together and are being disposed of by this common judgment. The fact of the matter is in a very narrow compass and there is hardly any dispute about the same. The respondent was charged with three acts of misconduct and though the respondent initially showed mode of denial by disputing the charges, subsequently during the course of enquiry, he accepted the charges and requested for a lenient view. Therefore, we would take note of the facts in briefest possible manner.
4. On the basis of information received, three charges which were leveled against the respondent are as under:-
(i) The respondent while holding the Certificate of Practice w.e.f. 2nd June, 1982 was also in full time employment with M/s Indian Railway Construction Company Ltd. (IRCON) as Deputy Manager/Manager Accounts from 1st April 1982 to 30th September, 1990. The respondent having not taken prior permission of the Council as required, is said to have committed professional misconduct under Clause (11) of Part I of First Schedule to the Chartered Accountants Act, 1949;
(ii) During the period of his employment with IRCON from 1982 to 30th September, 1990, the respondent had also trained the following articled clerks in violation of Regulation 43 (8) of the Chartered Accountants Regulation, 1988 and thus committed a professional misconduct under Clause (i) of Part II of the Second Schedule to the Chartered Accountants Act, 1949- CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 3 of 21
Name of the Articled Clerk Registration No. Period of Training Miss Vinita Bansal DD-18372 11.8.86-7.8.87 Ashok Taneja DD-22306 17.2.88-15.6.89 Rajesh Kumar DD-23521 01.8.88-10.7.90 Lalit Kumar DD23522 22.7.88-8.7.90
(iii) The respondent had disclosed in the „Form of Application for Empanelment as Auditor of Branches of Public Sector Banks and Statutory Central Audit and Branch Audit of Regional Rural Banks for the year 1990-91" (wherein information as on 1.4.1990 was sought to be given), that his main occupation was „profession‟. This statement is false since on that date he was in full time employment with IRCON. In the said form the fact of the respondent devoting time to „other occupation‟ was not disclosed rather it was stated by the respondent „not applicable‟. The respondent having given wrong information in the above mentioned empanelment application for the year 1990-91 that his main occupation was practice, is said to have violated Clause (1) of Part III of the First Schedule to the Chartered Accountants Act, 1949.
The said information was conveyed to the respondent vide letter dated 24th July, 1992. The respondent took time for filing his written statement and ultimately he filed the same on 20th March, 1995. CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 4 of 21 DEFENCE OF THE RESPONDENT:
5. In the beginning the respondent took various pleas as under:-
(i) The letter asking for the written statement is beyond the time limit as specified in Regulation 14 of the Chartered Accountants Regulations, 1988.
(ii) The respondent was enrolled, as a Member of the Institute on 2nd September, 1981 and thereafter was in the service of IRCON with effect from 1st April, 1982 and informed the Institute vide letter dated 17th May, 1982. Thereafter the respondent was granted Certificate of Practice with effect from 11th June, 1982 on an application in the prescribed from dated 2nd June, 1982 after due verification of the respondent entitlement thereto, though he was engaged as a salaried employment with IRCON.
(iii) That the employment from 1st April, 1982 to 6th October, 1985 with IRCON was on full time basis. From 7th October, 1985, the same was deemed to be on part time basis and as such the respondent was working half a day in IRCON office from 9.30 A.M. to 1.00 P.M and thereafter was working in his office and as such the main occupation of the respondent was a profession of accountancy with effect from 7th October, 1985. With effect from 30th September, 1990 the respondent ceased to be in the employment of IRCON and has been solely occupied in the practice of profession of accountancy only. The respondent stated in his reply that the alleged acts of omission on the part of the respondent pertains to the year 1982, 1986 and 1988 CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 5 of 21 respectively when the Chartered Accountants Regulation 1988 were not in force. However, the provision of Regulation 190-A of the Chartered Accountants Regulations, 1988 corresponding to provisions contained in Regulation 166 of the Chartered Accountants Regulations, 1964. A certificate of Practice was granted after information was given that the respondent was in service with IRCON. The respondent bona fide believed that the requisite permission if any stood suo-moto granted as the particulars of employment had been initiated prior thereto.
(iv) As regards the training of Articled Clerks during the year 1986-88 while in the employment with IRCON from 1982 to 1990, in violation of Regulation 43 of the said Regulations, it was submitted that from 7th October, 1985 the respondent‟s main occupation was the practice of accountancy as the respondent was deemed to be with IRCON on the part time basis as aforesaid. The Institute having this knowledge had permitted the respondent to register as articled clerk with him.
(v) That the respondent was not working full time with IRCON with effect from 7th October, 1985. The disclosures made in the form of application for empanelment as Auditor of the branches of Public Sector Banks for the year 1990-91 was correctly stated that the main occupation of the respondent was profession of accountancy but the respondent admitted that the requisite mentioning of other occupation was inadvertently ticked as not applicable. In view of this the CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 6 of 21 respondent pleaded that he had committed no professional misconduct.
REPORT OF THE DISCIPLINARY COMMITTEE:
6. The First meeting of the Disciplinary Committee was held on 10th February, 1998 wherein the witnesses were present but the respondent sent a letter dated 5th February, 1998 informing that he would not be in town from 9th February, 1998 to 13th February, 1998 and sought adjournment. As such, the hearing was adjourned with the stipulation that any further adjournment would not be granted. Thereafter the hearing took place on 19th March, 1998. On that date it was noted that a letter dated 12th March, 1998 was received from the respondent. He pleaded guilty and requested for taking a lenient view in the matter. In a statement before the Disciplinary Committee made on 19th March, 1998 the respondent admitted three charges which were read out. The respondent stated that he was totally inexperienced at that point of time and he would be grateful if in his case he is reprimanded. He has further stated that he had committed mistakes due to his family circumstances were one of the factors which compelled him to improve his financial position.
7. The Disciplinary Committee took into consideration the provisions of Regulation 15 (2) of the Chartered Accountants Regulations, 1988 perusing the statement of witnesses present and the documents on record and after recording the submissions made by the respondent the committee submitted its report on 17th February, 1998. In the said report the Committee came to the conclusion that the respondent was CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 7 of 21 guilty of professional misconduct Under Section 21 and 22 of the Chartered Accountants Act, 1949 read with Clause II of Part I and Clause I of Part III of the First Schedule and Clause (i) of part II of the Second Schedule to the Act read with Regulation 43 (8) of the Chartered Accountants Regulations, 1988.
FINDINGS OF THE COUNCIL:
8. A copy of the report of Disciplinary Committee was sent to the respondent on 17th January, 2000 and he was informed that the report would be considered by the Council at one of its forth coming meetings. He was requested to send written representation and also if he so desire he may appear before the Council. The respondent submitted its written representation vide his letter dated 21st February, 2000, wherein the respondent prayed for condonation of breach committed by him, as the same was committed at his young age and prompted by financial stringed is haunting at family level.
9. On consideration of the report of the Disciplinary Committee and the written representation dated 21st February, 2000 of the respondent the Council decided to accept the report of the Disciplinary Committee and found that the respondent was:-
(a) professional misconduct within the meaning of Clause (11) of Part I of the First Schedule and Clause (1) of Part III of the First Schedule to the Chartered Accountants Act, 1949 and
(b) guilty of professional misconduct within the meaning of Clause (i) of Part II of the Second Schedule to the said Act read with regulation 43 (8) of the Chartered Accountants Regulations, 1988.CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 8 of 21
In respect of misconduct falling under the First Schedule, the Council decided that an opportunity of hearing under Section 21 (4) of the Chartered Accountants Act, 1949 be afforded to the respondent before passing orders against him. The action under Section 21 (4) of the Act is being taken separately by the Institute.
RECOMMENDATION
10. In respect of the misconduct falling under the Second Schedule, the Council recommended to this Court that the name of the respondent be removed from the Register of Members for a period of three months.
11. As pointed out above, the respondent had accepted the aforesaid charges and during the enquiry proceedings and requested for taking lenient view in the matter. The letter dated 12th March, 1998 written by him to the Disciplinary Committee, in this behalf, reads as under:-
"Dear Sir, This is w.r. to your letter no. 25-CA (89)/93 dated 20th Feb.1998 requiring my presence before the Disciplinary Committee on 18th & 19th March, 1998.
In this connection I wish to submit as under :
I plead guilty and accordingly request you to take a lenient view in the matter. In view of my pleading guilty in writing, I seek abstention from attending the proceedings in person.
Thanking you,"
12. In view of the above, entire thrust of Mr. Sandeep Sethi, learned Senior Counsel for the respondent was on the quantum of punishment proposed and his submission was that in similar matters, the Council had taken lenient view on earlier occasions and had imposed the CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 9 of 21 penalty of "reprimand" only. To buttress the submission, Mr. Sethi gave following examples:-
(i) In Re: Arvind Kumar 25-CA (88)/93 In this case the concerned Chartered Accountant was also in full time employment with M/s IRCON for the period 5th July, 1985 to 30th August, 1990 and he got this employment without prior permission of the Institute. At that time he was holding Certificate of Practice which was obtained by him w.e.f. 9th August, 1983. During this period, he had also sent various Forms to the Institute giving false particulars and suppressing the fact that he was in the employment with M/s IRCON. On both these charges, enquiry was conducted against him and charges were proved. The Council in its meeting held on 9th March, 2002 recorded the finding of guilt and after giving him opportunity of hearing under Section 21 (4) of the Act, decided to impose the punishment of "reprimand" in its meeting held on 27th December, 2002.
(ii) In another case where one Chartered Accountant had issued erroneous Certificates, that too, without prior verification of books of accounts, enquiry was held on the basis of complaint received from the Joint Chief Controller, Import and Exports, New Delhi. On this charge also, the Council had recommended the punishment of "reprimand" and reference was made to this Court which was registered as CHAT. A. Ref. 2/98 wherein the aforesaid recommendations were accepted. The judgment is reported as 2000 (VI) AD (Del) 1101.It CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 10 of 21 was submitted that even when in such a case where the respondent was found guilty of gross negligence, the recommendation of "reprimand" was treated as reasonable.
(iii) In Re: Harish Kumar 25-CA (66)/89 The charge against the said Chartered Accountant was that he had engaged himself as a partner of two firms and was also a Managing Director of two Private Ltd. Companies even when he was holding the Certificate of Practice during the said period and had not obtained the permission of the Institute. In the Forms filed with the Institute, also, he did not disclose the aforesaid engagements. On these charges, the Council imposed punishment of "reprimand" only.
13. Mr. Sethi also submitted that the period involved is upto 1990 and long time was taken in completing the disciplinary proceedings and the reference was made in the year 2002. In the entire proceedings, almost 20 years have passed and imposing the penalty of suspension of licence at this juncture would prejudice the respondent immensely and the punishment imposed now in this backdrop would clearly be disproportionate having regard to the fact that the respondent thereafter has been in continuous practice for 20 years and has not committed any act of this nature and his record during the last 20 years is without blemish. He also referred to the following circumstances in which due to lack of time, the lesser punishment of "reprimand" was imposed:-
CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 11 of 21
(i) S.K. Beria In this case, charges against the Chartered Accountant were that many unsatisfactory features in the balance sheet prepared by them were noticed and inspite thereof, the Chartered Accountant had certified the same. On this charge, though, the Council had recommended to the High Court that the name of the said Chartered Accountant removed from the Register of Member for a period of one month, the Gauhati High Court, However, decided to impose the penalty of severe "reprimand" instead of removal in place of the penalty recommended by the Council recording as under:-
"However, in view of the pendency of the proceedings against the respondent for long 12 years during which respondent suffered much mental agonies, we hold that ends of justice will meet in this case if the respondent is severely reprimanded for the proved misconduct instead of imposing penalty as recommended by the „Council‟"
(ii) in Re: P.R. Vishwanadham 25-CA (43)/80 In this case the charge against the Chartered Accountant was that he had failed to pay stipend to his articled clerk during the period of his articleship and when that clerk asked the Chartered Accountant to give him stipend, he refused to do so and rather told him to work at his friend‟s office or give ` 5000/- as premium. He also attempted to terminate his articles unilaterally under one pretext or another. On these charges, having been proved, the Council had recommended the penalty of reprimand only which CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 12 of 21 was not approved by the Andhra Pradesh High Court in Reference Case No. 94/1988 with following observation:-
"We are of the opinion that the Institute of Chartered Accountants of India have to evolve appropriate amendments in the Regulations so as to provide a time frame within which (1) proceedings shall be initiated on complaint or information of misconduct of members of the Institute (2) Disciplinary Committee completes its proceedings on receipt of the case and submits its report, and (3) the Council takes a final decision in the matter. We also feel that it is desirable that in such references like the present one with far-reaching consequences, an individual fortunes or fate of members of the Institute with possible repercussions on various sectors of the public, appropriate amendments are made in the rules framed by the High Court, so that such reference applications are heard and disposed of within as short a period as possible.
In view of the inordinate delay of over 12 years from the commencement of disciplinary proceedings against the respondent, which itself has operated as sufficient punishment against him, we feel that it is not necessary to impose any further punishment o the respondent. We therefore accept the reference and order under Section 21 (6) (a) of the Chartered Accountants Act, 1949 that the proceedings be filed."
14. Mr. Aggarwal, learned Counsel for the Institute, on the other hand, argued that the respondent herein was charged with multiple acts of misconducts which are of very serious nature and, therefore, punishment recommended was very reasonable. He also submitted that each case was to be viewed on its own merits and aforesaid instances were not only distinguishable on facts but could not make precedents in disciplinary matters. He also submitted that in this case, the respondent had initially tried to put false defence and only when he CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 13 of 21 came to know that sufficient documentary evidence was collected and exist on record, which made his case indefensible that he came out with the plea of guilt. Mr. Aggarwal, in this behalf, pointed out that though he was asked to give his reply vide memo in the year 1995, he took three years in submitting his reply and there also he put a false defence. He accepted his charges only vide letter dated 12th March, 1998 and, therefore, the Institute could not be blamed for the so called delay.
15. Section 22 of the Act deals with "professional misconduct" and reads as under:-
"22. Professional misconduct defined For the purposes of this Act, the expression "professional misconduct" shall be deemed to include any act or omission specified in any of the Schedules, but nothing in this section shall be construed to limit or abridge in any way the power conferred or duty cast on the Council under sub- Section (1) of Section 21 to inquire into the conduct of any member of the Institute under any other circumstances."
16. In Council of Institute of Chartered Accountants of India Vs. B. Ram Goel, 2000 VII AD (Delhi) 982, a Division Bench of this Court emphasized and laid stress on the intendment and object of the Act which is to maintain standard of the profession at a high level, and consequently a code of conduct has been prescribed. The genesis of this provision is brought out in the following manner:-
"Misconduct implies failure to act honestly and reasonably either according to the ordinary and natural standard, or according to the standard of a particular profession. Chartered Accountants‟ profession occupies a place of pride amongst various professions of the world. That makes observance of the professional duties and propriety more CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 14 of 21 imperative. When conduct of a member of the profession is contrary to honesty, or opposed to good morals, or is unethical, it is misconduct-warranting consequences indicated in the Statute. An auditor holds a position of trust. That is why disclosure of information has been made a ground for imputing misconduct. By betrayal of the trust, the conduct becomes one which is unbecoming of the professional. Sections 126 and 129 of the Indian Evidence Act, 1872 (in short, the „Evidence Act‟) throws beacon light on the importance of professional communications. As observed in Mc. Kelvery‟s Evidence (page 236), at common law, in very early times, a privilege war recognized as to matters between an attorney and his client, and this privilege has continued in the strictest form to the present day. The privileges mentioned in Sections 126 and 129 are designed to secure the clients confidence in the secrecy of his communication. Any breach of the confidence is a stigma not only on the individual concerned, but is also likely to have effect on credibility of the profession as a whole That is why the anxiety of the legislature to punish the erring individual. It is to be noted that for breach of trust by a person entrusted with property or dominion over it, action under criminal law can be taken. When considered in that background, disclosure of information which would not have otherwise come within his knowledge, but for his professional appointment, without consent of his client is an act of grave professional misconduct. As observed by the Apex Court in the context of professional misconduct of an Advocate, an act which is done otherwise than with utmost good faith is unprofessional. (See Pandurang Dattatreya Khandekar Vs. The Bar Council of Maharashtra, Bombay & Ors. AIR 1984 SC 110). The test of what constitutes "grossly improper conduct in the discharge of professional CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 15 of 21 duties" has been laid down in many cases. In the case of a Solicitor Ex parte the Law Society (1912) 1 KB 302, Darling, J. adopted the definition of "infamous conduct in a professional respect", on the part of a medical man as stated in Allinson Vs. General Council of Medical Education and Registration (1894) 1 QB 750, and applied to the same professional misconduct on the part of Solicitor, and observed:-
"If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of "infamous conduct in a professional respect"
17. In that case the Council had recommended the removal of the respondent name for a period of 15 days on the facts of that case, the Court found same to be slightly disproportionate. It was also observed that the occurrence had taken place more than a decade back. Though the Court observed that long passage of time cannot be a mitigating factor in all cases. In the aforesaid judgment the Court was of the opinion that "reprimand" to the respondent would meet the ends of justice and the reference was answered as follows:-
"Judged in the aforesaid background, respondent was clearly guilty of professional misconduct, and has been held to be so by the Disciplinary Committee and the Council. So far as the proposed removal fo the respondent‟s name for a period of 15 days is concerned, we feel that it appears to be slightly disproportionate considering the background highlighted above. Additionally, the occurrence took place more than a decade back. Though in all cases, long passage of time cannot be a mitigating factor, while considering the appropriate punishment to be CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 16 of 21 awarded, in the peculiar circumstances of the case, reprimand to the respondent would met the ends of justice. Reference is according disposed of".
18. In the present case, the respondent could not state that the proposed recommendation is disproportionate and no such mitigating factors are pointed out in this behalf. Only lapse of time is primary reason given by the respondent for taking lenient view with the additional plea that in a similar case, reprimand is generally the penalty given.
19. In so far as instances by the respondent are concerned, we are inclined to give learned counsel for the Institute that they may not become the basis for awarding the penalty of reprimand. Each case has to be viewed at its own facts. In the present case, the respondent was already in the employment when it obtained Certificate of Practice as well. Unlike, the case of Arvind Kumar (supra) where he was already having a Certificate of practice but he while taking the employment he did not take prior permission of the Institute. Further, there was another serious charge that during this period of employment, he had failed to pay stipend to his articled clerk in violation of provisions of the Act.
Initially, the defence put up by him qua this charge was that after 1985, he was in part time employment with M/s IRCON and was given permission to practice. This defence has also proved as false. The documents obtained from M/s IRCON which are produced by the Institute clearly demonstrate that the respondent remained in full time employment. There is yet another charge against the respondent namely in the „„Form of Application for Empanelment as Auditor of Branches of Public Sector Banks and Statutory Central Audit and Branch CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 17 of 21 Audit of Regional Rural Banks for the year 1990-91" he had given false information by stating that his main occupation was „profession‟ whereas as on 1st April, 1990 when this information was sought he was in full time employment with M/s IRCON. Therefore, the respondent cannot equate his case with the examples given.
20. We may reiterate that code of ethics stipulated in the Act, is essentially to command the respect and confidence of the general public. It is highlighted by the Institute itself that is for this reasons that member is liable for disciplinary action under Section 21 of the Act and if he is found guilty of any act of professional misconduct.
21. In this backdrop, the only aspect which is to be examined is as to whether lapse of time is a mitigating factor.
22. Our observations in this behalf are that normal time-lag, particularly when the time consumed is because of the pendency of matters in the Court, should not be a ground to award lesser punishment. The Court should consider the suggestion of the Institute recommending the punishment in the light of the gravity of the charges proved against the delinquent Chartered Accountant. On that touch- stone may be, we would not have accepted the recommendation of the Institute in the instant case. However, in the peculiar facts of this case, the delay that is caused is substantial and imposition of penalty at this distance of time, may not advance the course of justice. The facts narrated above, would show that the period of employment of the respondent with IRCON, during which period the irregularities were committed by the respondent, is from 1982 to 1990. The respondent left the service of IRCON on 30th September, 1990. Thus, he is in private CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 18 of 21 practice for more than twenty years now. The Institute received the complaint sometime in the year 1992 and issued notice to the respondent to explain on 24th July, 1992. No doubt, the respondent took substantial time in submitting his written statement which was filed only on 20th Mary, 1995. However, during this period, even the Institute kept- quiet and started further action only after the receipt of written statement. The Institute could have proceeded to take action if the respondent was not submitting reply. To that extent, the Institute has contributed to delay. Thereafter, the matter was referred to the Disciplinary Committee and first meeting of the Committee was held only in February, 1998 almost three years after the submission of the Written Statement by the respondent. The respondent pleaded guilty vide his letter dated 12th March, 1998 i.e. after a month of first hearing. However, again time was taken by the Disciplinary Committee. Even when the respondent had pleaded guilty vide letter dated 12 th March, 1998, the Disciplinary Committee took almost two years in submitting its Report which was sent to the respondent on 17th January, 2000. Though, reply to this was sent by the respondent in February, 2000, the Council recorded its finding in its meeting held on 9th March, 2002 thereby taking two more years to take decision. The present Reference was filed in the year 2002 which kept pending for one or the other reason in this Court. Taking all these facts cumulatively, we are of the opinion that after a gap of more than twenty years, imposition of the penalty of removal from the Register of Members the name of the respondent for a period of three months would not be proper. It would CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 19 of 21 totally disturbed and disrupt the practice of the respondent which he may have established in last twenty years. We are of the view that ends of justice would be met if penalty of reprimand is imposed in the respect of misconduct falling under second schedule for the same reasons, in respect of misconduct falling under the First Schedule penalty of reprimand suffice.
23. However, we do not want to put the matter rest at that rest. As pointed above, the charges established against the respondent, to which even respondent himself plead guilty are in prevail. For a professional such kind of conduct is not accepted. Therefore, we are of the opinion that in addition to the penalty of reprimand; the respondent should be called upon, an act of 'penance' is also required from the respondent. For this reason, we had suggested Mr. Sethi, during the course of arguments that respondent do some social service by rendering pro-bono professional services to certain Charitable Institute/NGO by auditing their accounts without fee. Mr. Sethi readily agreed to the suggestion and also made a statement at the Bar that this would be acceptable to the respondent as well. In these circumstances, we direct the respondent to undertake audit of two such organization for a period of three years without charging any professional fee. Such organizations/NGO shall be identified by the Institute and the Institute CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 20 of 21 shall verify that the respondent undertake this job and perform the same satisfactorily.
24. Both the petitions are disposed of in the aforesaid terms.
(A.K. SIKRI) JUDGE (M.L. MEHTA) JUDGE JANUARY 24,2011 skb CHAT.A. REF. 1 OF 2002 & CHAT .A. APPEAL 1 OF 2003 Page 21 of 21