Calcutta High Court (Appellete Side)
In Re: Kamalesh Mitra vs The Institute Of Chartered Accountants ... on 10 September, 2018
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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10.09.2018
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Item No 18 Court No.15 Avijit Mitra W.P. No. 13748 (W) of 2018 In re: Kamalesh Mitra
- Versus -
The Institute of Chartered Accountants of India & Ors. Mr. Y.J. Dastoor, Sr. Adv.
Mr. Samrat Goswami For the Petitioner Mr. Rudraman Bhattacharyya, Mr. Kumarjit Banerjee, Mr. Surajit Dasgupta, Mr. Souvik Mazumdar For the Respondents The present writ petition has been preferred challenging inter alia the decision of the respondent no.3 on the representation submitted by the petitioner challenging the Council Guidelines No.1-CA(7)/02/2008 dated 8th August, 2008 and the disciplinary proceeding initiated against the petitioner.
Mr. Dastoor, learned senior advocate appearing for the petitioner submits that the earlier guidelines of the Institute of Chartered Accountants of India (in short, said Institute) were challenged in a writ petition before the Hon'ble High Court, Madras. The judgement delivered in the same was affirmed in an appeal wherefrom the said Institute approached the Hon'ble Supreme Court and the Civil Appeal No(s) 7208-7209 of 2005 were dismissed by an order dated 1st April, 2013 as having become infructuous. However, it was observed in the said order that "in case any member is aggrieved of the existing guidelines and files a representation before the appellant, the appellant shall consider it and pass appropriate order, and if any member is aggrieved thereof whether he has made representation or not, would have right to challenge it before the 2 appropriate forum". In the said appeals it was submitted on behalf of the Institute that in the event any challenge application against the guidelines is filed, the highest body of the Institute shall consider the same and take a decision.
Subsequent thereto, the petitioner submitted a representation dated 31st May, 2017 challenging the said guidelines. In the midst thereof, the respondents initiated a disciplinary proceeding against the petitioner, as would be explicit from the document at page 85 of the writ petition.
He submits that without granting any opportunity of hearing to the petitioner the Institute in its meeting held in August, 2017 rejected the representation submitted challenging the said guidelines. The said decision was, however, communicated to the petitioner about eight months thereafter by a memo dated 11th April, 2018.
Drawing the attention of this Court to annexure 'P-12' of the writ petition, he further submits that a similar issue was considered by a coordinate bench and the Court was pleased to direct the Institute to hear and decide the challenge application filed by the petitioner therein upon affording a reasonable opportunity of hearing.
Per contra, Mr. Bhattacharya, learned advocate appearing for the Institute submits that the challenge application filed by the petitioner can be considered by the disciplinary authority in the pending proceeding. The decision taken by the Institute in its meeting held in August, 2017 is a reasoned one and it does not suffer from any infirmity warranting interference of this Court. In support of such contention he referred to the provisions of Section 21 of the Chartered Accountants Act, 1949 and Rule 3 of the Chartered Accountants (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007.
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Indisputably, the representation submitted by the petitioner on 31st May, 2017 challenging the guidelines was not considered by the Institute upon granting an opportunity of hearing to the petitioner. It appears that the decision was adopted in the month of August, 2017 but the same was communicated to the petitioner on 11th April, 2018.
In the said conspectus and in view of the observations contained in the order dated 1st April, 2013 passed by the Hon'ble Supreme Court, I am of the opinion that the authorities ought to have granted an opportunity of hearing to the petitioner before taking the decision as communicated to the petitioner by the memo dated 11th April, 2018.
On the said limited ground, the impugned decision of the Institute taken at its meeting held in the month of August, 2017 rejecting the petitioner's challenge to the guidelines is set aside and the Institute is directed to consider the representation submitted by the petitioner on 31st May, 2017 afresh, upon granting an opportunity of hearing to the petitioner and to take a decision, in accordance with law and to communicate the same to the petitioner.
The above exercise shall be completed by the Institute within a period of eight weeks from the date of communication of this order.
Till two weeks from the date of communication of the said decision, the Institute shall not take up for consideration the disciplinary proceeding initiated against the petitioner.
With the above directions and observations the present writ petition is disposed of.
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As the writ petition has been disposed of without calling for affidavits, the allegations levelled in the writ petition against the respondents shall be deemed to have been denied.
There shall however be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Tapabrata Chakraborty, J.)