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7. The learned Senior Counsel appearing for the Institute contended that the Council has found the respondent guilty of misconduct other than the professional misconduct on the basis of the material on record gathered during the inquiry conducted by the Disciplinary Committee, which has been statutorily constituted. The Council has upheld the finding of the Disciplinary Committee that, in publicising methods of tax evasion as narrated in the book, the respodnent's conduct was unbecoming of a member of the Institute. It also upheld the finding of the Committee that the argument of the respondent that he had only described the practices followed in the generation of unaccounted money, could not be accepted, and that the effect of the book was to educate the public as to how to evade tax and create unaccounted money. The learned Senior Counsel argued that, on reading the book, it becomes clear that these findings against the respondent are justified and that the book was not intended merely to expose the wrongs of tax evaders but it provided direct and indirect suggestions as to the manner in which taxes could be evaded. If the book was intended only to expose the wrong doers, it would not have given details of the methods that can be employed for the purpose of tax evasion with illustrations and drafts of documents which were to be fabricated and the false entries that were to be made for the purpose of effective tax evasion. It was contended that the professional body was entitled to take disciplinary action against the member who acted against professional ethics violating the principle of integrity and truthfulness. He referred to the Code of Conduct issued by the Institute of Chartered Accountants of India (relevant edition), pointing out that the members of the Institute were required to maintain high standards of integrity and professional behaviour. He also referred to the universally recognised principles of ethics which were adopted in the profession of accountancy, including by the Institute, and submitted that the expression "other misconduct" appearing in Section 21(1) would embrace every conceivable misconduct which may not have been scheduled as a professional misconduct. It was also submitted that there was no unrestricted fundamental right of speech or expression, and that, if a member wanted to remain a member of the Institute, he was bound to abide by the behavioural rules laid down for such members. It was submitted that the disciplinary action was not meant to curb the fundamental right of speech and expression. It was submitted that the Institute and the Council were statutory bodies and the Council was invested with statutory powers of taking disciplinary action against the members also in respect of "other misconduct" and the conduct of the respondent in writing a book which had the effect of teaching the tax payers (who were willing to adopt unfair means) and methods of evading taxes in various fields and such a conduct which was not in consonance with the Code of Conduct issued by the Institute and the universally recognised principle of ethics of integrity and truthfullness was clearly "other misconduct", which warranted disciplinary proceedings against the respondent.

8. The learned counsel appearing for the respondent argued that the misconduct alleged against the respondent was not a professional misconduct as enumerated in the Schedules to the Act, but it amounted to "other misconduct" which was required to be notified under Part II (2)(b) of the Schedule. It was submitted that there was no embargo against writing books and therefore, mere writing of such a book was not a misconduct. Moreover, there was no notification issued by the Council under Part II(2)(b) of the Schedule declaring writing of any particular type of book as a misconduct. It was submitted that disciplinary proceedings under the Act were of a quasi-criminal nature and therefore, unless the misconduct was notified, a member cannot be charged for such misconduct. It was further contended that the intention of the respondent in writing the book was only to inform the public about things which were happening in the society so that they become aware of such instances and understand the consequences thereof. It was argued that there was nothing in the book which was likely to create an impression that the Chartered Accountants were expert in creating black money, nor was there anything in it which would lower the image of the profession. It was, therefore, submitted that there was no basis for proceeding against the respondent on these charges. The learned counsel further contended that the disciplinary authority had gone beyond the charges levelled against the respondent by stating that, the effect of this writing was to educate the public as to how to evade the tax and how to create black money. It was submitted that the respondent had done nothing which could be termed as educating the public. He then argued that the respondent had a fundamental right of speech and expression to inform the public about the things that were happening in the society, even if the writing may not have been palatable to a section of the public. He submitted that the tenor of the book does not go to suggest that the Chartered Accountants were helping to create black money, nor was any advice given by the author in that regard. He quoted various portions of the book (pages 48, 50, 60, 70, 80 etc.) for pointing out that the author had referred to the legal provisions and stated that the tax evasion was illegal. It was submitted that there was nothing in the book that would show that he advocated tax evasion. It was further argued that the Council had not given any detailed reasons for its findings and had merely agreed with the reasoning of the Disciplinary Committee and therefore, the impugned action was vitiated. It was also submitted that there was delay in initiation of the proceedings against the respondent which showed that the authority was biased against the respondent. On the issue of punishment, the learned counsel submitted that the proposed penalty of removing the name of the respondent from the register for a period of six months was excessive and even if the respondent was found to be guilty, "reprimand" would serve the interest of justice in the facts and circumstances of the case, particularly when a long time of about twenty years has elapsed since the book was published.

13.6 Section "B" of the Appendix to the Code emphasizes in para 16(c) that it is not the duty of a member to shield a client from the consequences of his tax frauds; "on the contrary it is a guiding principle of professional conduct to discourage tax evasion".

14. It is a fundamental duty of every citizen "to strive towards excellence in all spheres of individual and collective activity". The profession of Chartered Accountant is a noble profession and is regulated by the norms of behaviour of its members which are universally recognized. Though "professional misconduct" is enumerated in the Schedule, the statute clearly takes into account "other misconduct" by such professionals which may warrant removal of a delinquent member by the Council. The Council is under a duty to ensure that the members keep up to the high standards that govern the profession. The words "professional or other misconduct" in section 21 confers wide powers on the Council by which it can take disciplinary action not only in respect of the professional misconduct specified in the Schedule or notified by it, but any other misconduct of a Chartered Accountant which is such that he must be regarded unworthy to remain a member of the noble profession to which he has been admitted and unfit to be entrusted with the responsible duties attached to his calling. The word "misconduct" in the context of section 21, having regard to the scope of the said Act, would be conduct that is wrong, improper, unlawful or a transgression of an established and definite rule or Code of Conduct. The ambit of "misconduct" has to be construed with reference to the subject matter and the context where the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve, as held by the Supreme Court in State of Punjab v. Ram Singh, Ex-Constable, reported in 1992(4) SCC 54. The word "misconduct" receives its connotation from the context, the delinquency in its performance, its effect on the discipline, and the nature of the duty.

21.1 The Code of Conduct clearly emphasizes the requirement that a professional man should be a man of character and integrity which is a fundamental norm universally recognized in this profession. The wordings of Section 22 that the expression "professional misconduct" shall be deemed to include any act or omission specified in any of the Schedules shows that the types of professional misconduct enumerated in the Schedules to the Act are only illustrative and no exhaustive definition of "professional misconduct" is intended. Therefore, there can be misconduct outside the specifically enumerated or notified acts of omissions or commissions deemed to be included in the expression "professional misconduct", which is a professional misconduct not so enumerated under the Schedule, as also misconduct other than any professional misconduct. The wide powers of the Council to cope up with professional and other misconduct which are not specified in the Schedules are kept intact. This is why, in the First Edition of the Code of Conduct, it was stated: "The booklet basically gives elaborate explanations, where necessary with illustrations, of the various items comprised in the Schedules to the Chartered Accountants Act, and is by no means meant to be exhaustive of all acts of omission and commission which may constitute "professional misconduct".