CS Hitender Kumar Mehta ......Applicant CS Rajiv Bajaj

BEFORE THE ELECTION TRIBUNAL, NEW DELHI IESTABLISHED U/S lOB OF THE COMPANY SECRETARIES ACT, 19801
APPLICATION NO. 1/2015
IN T
HE MATTER OF:
CS Hitender Kumar Mehta
...... Applicant
(Represented by : Shri J.K. Mittai, Shri
Rajveer Singh & Shri S.M. Sundaram,
Advocates)
VS.
CS
Rajiv Bajaj .... Respondent
(Represented by : Dr. S. K.umar, Advocate)
30.032016
ORDER
1. This Application dated 19.01.2015 has been filed by CS
Hitender Kumar Mehta, the Applicant herein, under
Section lO-A of the Company Secretaries Act, 1980, (the
'Act') raising a dispute in regard to the election of CS
Rajiv Bajaj, the Respondent herein, as a Member of the
Central Council of the Institute of Company Secretaries
of India (the 'rCSI,) from the Northern India Regional
Constituency of the ICSI in the Central Council Election
of the ICSI held in December, 2014. The Applicant has
prayed for declaring the election of the Respondent to be
void ab initio in the election to the Council held in
December,
2014
as well as
1
the election of the
Respondent to th e NIRC of ICS I in Decembj
20 10 and
declaring th e Applicant to have been d uly fIec ted in the
election to th e Cou ncil h eld in Decem be r, 2 014,
2. The Applicant h as submitted that at the t ime of final
round of counting of votes, when the Respondent was
declared elected at SI. No.5, th e Applicant was placed
next to him at SI.No.6.
3. The Applicant has further stated that the Respondent
contested t h e election ba sed on con cealment of material
fact
about
hi s
occupation ,
sub mission
of
false
information wld s igning of verification knowing it to be
false and th us, fra udule n tly won the electio n to the
Council. The Applican t h as further s tated that as pe r
the
information
availa ble
ll1
p ublic
domain ,
the
Responde nt h a d been s imultaneously engaged in two
occupations, namely
til
Advocate in Practice (being a
Member of Bar Council of Punjab & Haryana vide
enrolment n u m ber P/ 423/1996 since 30.3.19 96 and an
ac t ive m e m ber of the Supreme Court Bar Association
s ince 2005) a n d (ii) Whole t ime Company Secretary of a
company i.e., Panasonic AVS Net works India Company
s in ce 1.4. 1998. The Respondent co mpletely s uppre ssed
an d concealed the material fac ts a bout his being an
"Advocate in pra ctice" wh ile filing his n omination paper
for the election to the Central Council of the ICSI h eld in
2
December, 2014 and also in th e elections of Northern
India Regional Council (NIRC) of th e ICSI in the year
2006 and 2010
in whic h
he
was
the contesting
candidate.
4 . Th e Applicant has also s ta t ed tha t in the statement
pursuant to sub-rule (4) of Rule 9 of the Company
Secretaries (Election to the Council) Rules, 2006 (the
'Election Rules')
read with Schedule 4 of the Election
Rules , the Responde n t h as disclosed only about his
be ing whole time Compa n y Secretary of Panasonic AVS
Networks India Company and has deliberately and
wilfully conceal ed the mate rial facts about his oth e r
occupation of being a pra ctis ing advocate and in fac t,
under the head <'parti culars of other occupa tion s" he
has mentioned "No t Ap plicable".
5. It has been s ta ted by the Applicant that the Respondent
has con tested the election based upon the concealment
of material fa c t s a bout his occupation, submission of
false informa tion and signing of verification knowing it
to be fal s e and thu s, fraudulently won th e election . He
furth e r s ta ted that in the 'list of contestin g candida tes
and th e ir pa rticula r s ' circulated by th e Re turning Officer
in compliance o f Election
Rules on
the
basis
of
informa tion furn is hed by the candidate s alongwith the
nomination form , the occupation of the Respondent is
t:>
3
,
,
stated
"Company
Secretary
Associate
&
Director­
Finance, Panasonic AVS Networks India Company" and
In
th e
particu lars of th e othe r
occupation , it is
mentioned" Not applicable".
6,
The Respondent was admitted to the me mbershi p of
S upreme Court Bar Association (SCBA) in the year 2005
against the membership number B-00398 and the name
of the Respondent continued to appear in the list of
ac tive resident mem ber in the Members Directory of
SCBA.
Acco rd ing to Rule 3 (ix) of SCBA Rules and
Regulations "Reside n t
Me mber" m eans "a m e mbe r
residing and practising as an Advocate in Delhi or jts
suburbs", It has further been stated that in the records
of ICS I and MCA (Ministry of Corpo rate Affairs), the
Responde n t is in the occupation of Company Secretary
employed with Panasonic AVS Networks In dia Company
as Whole time Company Secretary,
7.
That
havi n g
simultaneously
been
the
e ngaged
In
Respondent
two
has
occupation
violated
the
provisions of Company Secretaries Act, 1980 and Rules
m ade there un der, Advocate Act , 1961 & Bar Council of
India Rules ( Rule n o.48 & 49) and Companies Act,
2013/1956 and also the prOVISIOns of Indian Penal
Code ,
For the violation of Company Secretaries Ac t,
1980 read with Ru les made th ereunder and Election
Code of Conduct, the Respondent is guil ty of serIOUS
4
,
misconduct in terms of the provisions of First Schedule
and Second Schedule of the C S Act, 1980 and for the
vio lation of the provisions of Companies Act, 2013/1956
a nd Advocates Act, 1961 including Ba r Council of India
Rules, the Respondent has rendered himself disqualified
to continue as an Advocate in Practice and for the
peljury, c riminal breach of t rust and fraud played upon
the Institu te in the elections, the Respondent is liable
to
be prosecuted under Indian Penal Code . The Applicant
filed
and
relied
upon
the
documents/
records/
information obtained from MCA, ICSl and SCBA.
8. iJhe Appli cant has a lso referred to the order dated
30 12.2011 passed by the Board of Discipline of the
lCSl
against
the
Respondent
he rein
whe rein
the
Respon den t was found guilty of professional misconduct
for the violation of Election Rules pertaining to lCSI
eIections-201O for sending an e -mail to the members of
the lCS I in addition to the circular/manifesto circ ulated
as pe rmitted under Rule 42 of the Election Rules.
9. The
Respondent
In
his
Written
Statement
dated
7.11.2015 has submitted th a t the allegations of the
Applicant again st him are wrong and made on flimsy
and unfounded grounds and denied the same.
He h as
furth er s ubmitted that the Applican t fil ed the captioned
5
application out of frustrati on and as an afterthought
after having lost the election to the Council.
10. The
Respondent
has
furth e r
Applicant is resorting to
submitted
Forum
that
the
Shopping as the
Appli cant has filed complaints against the Respondent
with th e Director (Disciplin e) of the ICS! and also with
Bar Council o f Punj a b & Haryana on the same subject
with similar allegation s.
The Appl ican t h as not
approached this Hon'ble Tribunal with clean hands as
the Applicant himsel f is a member of Bar Council of
Delhi and is practi si n g as an Advocate. but has not
m e nti on ed said fact clearly in his statement submitted
pursuant to Rule 9 (4) o f the Elec tion Rules for the
Election to the Council of t he lCS I an d h as simply
indicated him self as the "partner" of Vais h Associates,
w hich does not m ean that he is a practis ing advocate
s ince Vaish &. Associa tes
IS
a
multi di sciplinary firm
providing consultan cy in a number of areas namely
'Corporate Tax a n d Business Advis ory Services'.
The
Respondent furth e r stated that by n o t di sclosing thi s
mate rial fact in hi s statement, the Applicant has himself
rendered
guilty of misconduct
for
having brought
d is re pute to tbe Council under sub-rule (1) of Rule 42
read with cla u se (2) of Part IV of the First Schedule of
the CS Act . 1980.
6
•
11.
The Respondent h as further stated tha t the Ap plicant
has made the allegations unde r diffe rent Acts , viz.,
Ad vocates Act, 1961, The Companies Act, 1956/2013
and The Company Secretaries Act, 1980 (on the issues
other than the election) and that this Tribunal has no
jurisdiction to d eal with/decide the alleged violation of
provision s of Company Secretaries Act, 1980 and Rules
made thereunder, Advocate Act , 196 1 & Bar Counci l of
India Rules and Companies Act, 2013 / 1956 by the
Respondent
being
e n gaged
10
two
occu pations
s imul taneously viz. practising advocate and whole time
Company Secretary in a company .
12. The Respondent has claimed that he has not concealed
any information and contested the election in a fair and
transparent mann er and infonnation furnished by him
was true to the best of my knowledge and belief. He h ad
su rrendered the members hip of the Bar Council of
Punjab & Haryana and S upre m e Court Bar Association
long back and on the date of the filing of the nomination
for the election to the Coun cil of the ICS1 he was not the
member of the Punj ab & Haryana and Supreme Court
Bar Association. He h as further stated that he is a law
graduate but he never practiced as an advocate during
his entire career and till date and m embership of the
Bar Council / Association was taken on the advice of the
e mployer for providing support to employer's litigation.
b
7
He furthe r submitted that he h ad m a de the request to
the Supre me Court Bar Asso cia tion vide Jetter dated
7.7 .20 1 1 which were duly received and ac knowledged
by t h e SC BA on 9.7.2011 for striking off his name and
that that h e has not paid any fees to the SCBA after the
year 2 011 and had all th e reasons to belie ve that his
nam e had been s truck off as the a nnual payment of fee
was n ever paid s ince 2 011. In regard to his enrolment
with the Bar Council of Punj a b & Haryana h e has s ta ted
that v ide his letter dated 5'" Augu st, 199 7, he requested
the Ba r Counci l to hold h is registrat ion in abeyance .
13 . The Re spon d ent s ta ted that h e was neve r e n gaged in the
occupa tion a s an advocate.
He h a s further s ubmitted
that the ge n e rally a ccepted d efiniti o n of practice of la w
is "the practice of law in volves giving legal ad vice to the
clients,
drafting
legal
documents
for
clients,
and
re presenting clients in legal negotia tio ns and court
proceedings
such
as
laws uit ,
a nd
IS
applied
to
professional services of a lawyer or attorney at la w,
barrister , soli citor , or civil law notary". The Responde nt
s ubmitted th a t he has n ever provid ed any legal services
to any client and never a ppeared in any court in the
entire country and never raised any invoi ce and received
an y pay ments for appearing a s an advocate .
8
14. T he Responde nt has s ubmitted that there was no
mi sstatement in the "sta te m e nt pursuant to sub-rule (4)
of Rule 9 r ead with Schedule IV of the Election Rules
filed by him a lon gwith his nominat ion form and h a s not
con cealed any facts in the said s ta tement.
submitted
tha t since h e is not
He has
practising as an
Ad vocate , th e question of mentioning as such
said state m e nt does not a nse
111
the
and therefore he has
correctly m entioned his employme nt particulars as
whole tim e Company Secretary with Panas onic AVC
Network Ind ia Company Ltd . He h a s submitted that
s ince he is no t pursuing any profession other than being
the
Company
Pan asonic
Secre tary
and
Director,
AVC Net work Ind ia
Finance
Company
In
Ltd. , the
informa tio n with regard to the particulars of othe r
occupation was n ot applicable and h e n ce he had
correctly written "n ot applicabl e" a gainst th e relevant
clau se in the said stale men t.
15. The Respondent s ubmitted tha t the electorates are
composed of hard core professionals namely Company
Secre taries, Ch a rte red Accounta nts, Cos t Accountants,
lAS/IPS , other m e mber of the
pre stigious
po s itions
111
th e
Institute occupying
corporate
world
and
Gove rnment and they have vo ted for th e Respond ent
afte r looking into h is crede ntials and contribution s to
9
the profession.
He furth er submitted that electorates
are well educated cannot be carried away.
16. Sin ce the Election was conducted by the rcsr, in order
to asce rtain the true and correct fac tual position of the
matte r, the rcsr was requested to provide its comments
to the application . The ICSI in its comme nts dated
16. 11.2015 submitted that m the records of the rcs l
including
the
application
submitted
for
Issue
of
Cer tificate of Practice pertai ning to Respondent, it was
stated in Form D that he is not enrolled as an Advocate
and there is no information that he is a member of
SCBA. The rCSI fur th e r su bmitted that in column 1 (c)
Ii) "Employm ent (designation with
n ame of present
employer) of the n omin a tion fo rm" the Responde nt h as
s tated as Panasonic AVC Networks India Company Ltd.,
Company Secretary & Associate Director-Fin ance. The
rcsl referred Rule 7 of the Election Rules and su bmitted
that in the Election Rules, there is no restric tion and
prohi bition on the members of the resl t o be m embers
of any S ta te Bar Council o r the Bar Assoc iation , to
contes t any election o f th e ICSI including the election for
tlie RegionaJ Councils.
17. The
Appli cant
111
his
rejoind er
affidavit
dated
23.11. 2015 h as s tated that th e Respondent has not
denied the fact that he has been enrolled with the Bar
10 Counci l o f Punjab & Haryana and he has also admitted
that h e has been enrolled with the SCBA. The Applican t
fur the r sub mitted that the Respondent in para 5 of the"
parawise reply on m e rits" of the Written Statement has
falsely stated that h e h a s surrendered the membe rs hip
of Bar Cou n cil of Punjab & Haryana and SCBA lon g
back.
The Applicant alon g with his rejoinder filed a
1:>
copy RTf reply dated ·13 .2.2 015 and submitted that in
the said RTI reply, the Ba r Coun cil of Punjab & Haryan a
has
con firmed
that
no
application
for
voluntary
s u s pension/cancellation of enrolme nt certificate was
received from t he Respondent and that as per his
personal fi le he is continuing on the Ro ll of Practising
Advocates of th e said Bar Council. He has further
submitted
that
as
per
the
SCBA
Directory
filed
alongwith the application, the name of the Respondent
continue to exist in the SCBA directo ry of the year 2015
also.
The Applicant h as furth er s ubmitted that the
Respondent deliberately made false s ta tements in his
written statement fil ed alongwith a ffidavit without giving
any date and concrete proof that h e had s urre ndered
his membership of Bar Counc il o f Punjab & Haryana
and SCBA and t h e same was contrary to th e reco rds of
both Bar Council and SCBA.
18. The Applican t in hi s rejo in de r a ffid avit h as further
stated that the claim of the Respon de n t in Para number
1;\
11
7 of the "p arawise reply on m erit" of the Written
Statement has fa lsely claimed th at he never practised as
an Advocate and the membership of the Bar Council
was taken on th e a d vice of h is e mployer , is a false
s tatement in as much as Bar Counc il membership was
take n in the year 1996 and wh ereas the Responden t
s tarted working as whole time Company Secretary with
the present employer in the year 1998.
19. The Applicant in his rejoinder affid avit h as furth e r
s ubm itted
tha t
while
the
Responde nt
h olds
the
e n rolment as an Advocate of the Bar Council , he also
took Certificate of Practice (COP) from the ICSI for the
period from Augu st, 1997 to March, 1998, which was
granted by the ICSI under COP num ber 2686. He
further submitted that the ICSI in its RTI rely dated
23.7.2015 has also confirm ed by providing Form D
d a ted 26.8. 1997 filed by the Respondent for seeking
COP from the ICSI , whe rein h e has mad e categorical
s tatement that "I am not e nrolled as an Advocate on roll
of any Bar Council" , which is deliberately a false
statement made by him as he has been enrolled with
the State Bar Council s ince the year 1996 .
20 . Th e Ap plican t h as also su bmitted that as per Rule 7 of
the Election Ru les, only Feliow Me mber of the ICSI is
eligible to stan d for election of the Council. The Fellow
t>
12 Membership wa s obta ined by th e Respondent on the
strength
of his expen ence as p ractis ing Company
Sec retary itself is illegal, as the COP itself has bee n
obtained by him legally which is void ab initio .
21. T he Applicant furth er submitted that as per Rule 15 (3)
of the Election Rules, particulars of the contesting
candidates are prepared from the particulars supplied
by the candidates under Rule 9 (4) of the Election Rules
a nd therefore, if any contesting can didate does not
di sclose the m aterial particu lars fairly and correctly, like
in the present case by the Respondent, then the
information sent to the voters would be materially
incorrect, wh ich definitely innuences the decision of th e
electorate and affect the entire election process . The
Applicant in its rejoinder affidavi t has also re ferred to
some rulings of the Hon 'ble Supreme Court of India.
22. The Applicant filed his written arguments/submissions
dated 10.12.2015 and also evidence by way of affidavit
dated
10.12.2015,
wherein
he
reiterated
the
submission s made by him in his application and
rejoind er affidavit.
He also filed list of witnesses and
m arked the fo llowing documents as exhibi t a longwith
his affidavit of evidence:
13 a) Original copy of the RTJ re ply 13.2.20 15 of Bar
Council
of
Punjab
&
Haryana
alongwith
RTI
application dated 2 l.l.20 15
b) Copy of relevant page n umber 63 of SCBA Directory
of the year 20 15
c) Original
copies
23.7.20 15
of the
alo n gw ith
ICSI's
RT I
RTI
reply
application
da ted
dated
30.4.20 15
d) Co py of the relevan t pages no.2 &3 of the list of
contesting
candida tes
and
their
particulars
prepar ed by the Returning Officer.
e) Copy o f order d ated 30. 12.201 1 passed by the
Board o f Disciplin e of the ICS I.
23. The matter was heard on 29.l. 20 16 in the presence of
both the parties . Both the part ies were r e presented by
th eir learned Advocates and reite rated the ir respective
contentions. The parties we re given liberty to fil e their
written arguments m a de by them during the course of
argu m e nt . Both th e Applican t and the Respondent have
filed
respective
reiterated
their
application/written
written
arguments
respective
wherein
sub missions
s tatement
and
oral
they
made
In
argume nts
advan ced d urin g the course of argumen ts in the matter.
24. The Respondent has, in his written submissions has
stated
that
while cla u se
(1)
of the
S tatement of
j;0
14
Information in terms of Schedule 4
1S
mandatory,
Clause (2 ) thereof is optional.
25. The Tribunal has carefully considered the su bmissions
made by the partie s and a lso perused the a pplication,
written
statement,
written
arguments
and
all the
doc uments available on record.
26. Rule 9 (4) of the Compa ny Secretaries (Election to the
Coun cil)
Rules, 2006, provides that n ominatio n s hall
be valid o nly if it is accompan ied by a s tatement s ign ed
and verified by the candid ate con ta ining information
as provided in Schedu le 4. Sch edule 4 of the Election
Rules prescribes the information
which is
to be
contained in the s ta tement of contesting candidate
accompanying th e nomination form in compliance of
Rule 9 (4) of the Election Ru les .
Clause (2)(c) of
Schedule 4 of the El ection Ru le which requires a
candidate to provide particulars of the occupations
reads as under:
"(c) Particulars of Occupation:
(il Employm e nt (design ation with name of
the present e mployer)
(ii) Practice
(sole
proprietor
or
m
partnersh ip including the name of th e
firm)
~
I>­
15 (iii)
Particu lars
of o ther
occupation/
engagement, if n ot covered by (i) & (ii)
above."
27. Rule 42 (4)(xii) of the Election Rules prohibits a member
of the lCSl from contravention or misuse of any of the
provision s o f these Rules or maki n g any fal se statem e n t
knowi ng it to be fal se or without knowing it to be true
while complying wi th any of the provi s ions of these
Rules
28. Rule 42 (1) of the Election Rules provides that any
violation of sub-rules (2), (3) and (4) of Rule 42 is liable
to invite punishme nt for bringing disrepute to the
Council of the ICSI under item (2) of Part IV of the First
Schedu le of the Company Secretaries Act, 1980.
29. T his Tribunal h as been constituted under Section 108
of the Company Secretaries Ac t, 1980 for a specified
purpose to decide the dispute r egarding election of the
Council o f the ICS I held in December, 20 14. This
Tribunal does not have jurisd icti on to entertain any
other d ispute oth e r than dispute raised in respect to the
election to the Council held in December, 2014 . Hence,
it is beyond th e juris diction of th is Tribunal to go into
the allegation s o f the violation o f the provision s of
Advocates Act, 1961, The Companies Act, 1956/2013
h
16 and The Company Secretaries Act, 1980 (on the issues
other than the elect ion) .
30. From the above, following issues arise for adjudication:
(1) Whether the Respondent was enrolled as an
Advocate on the date he filed his nomination
papers for election to the Cou ncil of the Institute
from Northern India Regional Constituency.
(2) Whether
the
required
to
Respondent
give
the
was
details
of
mandatorily
his
"other
occupation / engagement" as an Advocate in reply
to Clause 2 (c) of the statement accompanying the
nomination form in terms of Sub-Rule (4) of Rule
9 o f the Election Rules 2006.
(3) Whether non-declaration of the information by
the
Respondent
Practicing
about
Advocate
his
made
occupation
him
as
ineligible
a
to
co ntest the election on account of concealment of
material fact or misstatement in his nomination
for m for election to the Council in the election
held in December, 2014.
(4) Whether the election of the Respondent to the
ICSI Council in the election h eld in December,
20 14 is not valid, and
17 15)
31.
Relief, if any.
ISSUE NO, (1):
(1 )Whether the Respondent was enrolled as an
Advocate on the date he filed his nomination
pape rs for election to the Council of the Institute
from Northern India Regional Constituency.
31 .1 As pe r copy of SCBA Directory filed along with the
Appli cation , the name of the Respondent continued to
exis t in the SCBA Directory of the year 2015 also.
31.2 The Respon dent has not placed on record a copy of hi s
letter dated 7· h July, 2011, stated to have been written
to the Supreme Court Bar Association to substantiate
his claim that h e h a d m ade request to Su preme Court
Bar Association
for deletion of hi s
name.
The
membership of Supreme Court Bar Association, or for
that matter, of any Bar Association, is not a pre­
requi s ite [or carrying on the practice as an Advocate.
On other hand enrollme nt with the Bar Council as a n
Advocate is a mandatory requi rement for carrying on
the practice as an Advocate. In terms of Rules of the
Bar Council of India , the surrender of Enrolment
Certification
18
an
essentiaJ
requirement
suspensiOn or cancellation of the Enrolment.
[or
The
Respo ndent h as also not placed on record a copy of
letter dated 5·h August, 1997, stated to have been
18 written by him to Bar Council of Punjab & Haryana
requesting it to keep his registration in abeyance. As
per the records of the Bar Council of Punjab &
Haryana .
the
Enrolment
Respo nden t
Certificate
and
never
his
surrendered
e nrolment
as
his
a
Practic ing Advocate is still alive.
31. 3 Section
2 (a)
of Advocates Act,
1961 , defines
an
"advocate" to mean an advocate en tered In any roll
unde r the Act. Section 2(i) of the Advo cates Act defines
the "legal Practitioner" as "an advocate, or vakil of any
High Court , a pleader, a mukhtar or revenue agent."
Section 29 of the Act provides that Advocates shall be
the on ly recognized class of pe rson s entitled to practise
law.
Section 30 of the Act states that subj ect to
provlslons of this Act, every advocate whose name is
e nte red in the State ro ll s hall be entitled as of right to
practise throughout the territories to which this Act
extends,­
(i) in all courts including th e Supreme Court;
(ii) before any tribunal or person legally a uthori ze to
take evidence; and
(iii) before any other authority or person before whom
s uch advocate is by o r under any law for the time
being in force entitled to practise
19 31.4 Since th e enrollment of the Responde n t as an Advocate
with th e Bar Cou n cil of Punjab & Haryana is s till alive ,
the re is no doubt that he is an Advocate and can
prac tice law in te rm s of the provisions of Advocates
Act. It is, therefore, held that the Respondent was
enrolled as an Advocate with the Bar Council of Punjab
& Haryan a at the time of his filing nomination as a
candidate for election to the Council of the Institute in
the election h eld in December, 2014.
32. ISSUE NO.2
(2)Whether the Respondent was mandatorily
required to gIve the details of his "other
occupation/engagement" as a n Advocate in reply to
Clause 2 (c) o f the stateme nt accompanying th e
n o mination form in te rm s o f Sub· Rule (4) of Rule 9
of the Election Rules 2006.
3 2.1 Rule 9 (4) of th e Election Rules provides that the
nomination of th e candidate shall be valid only if it
is accompanied by a s tatement signed and verified
by the candidate containing information as provided
in Schedule 4 of the Rul es. Schedule 4 of the Rules
prescribes the information which is required to be
in cluded
111
nomination.
the
s ta teme nt
accom pany111g
th e
Clau se (1) of the Sch edule states that
the nomination of a candida te s h all be accompanied
by a statement signed and ve rified by the candidate
20 containing
the information
mentioned
in
Sub­
Clause (a) to (j) of the said Clause. Clause 2 of the
Sch edule 4 states that the statement referred to in
Clause 1 may also con tain, at the option of the
candidate, information concerning the candidate in
,·espect of the matters mentioned in Sub-Clauses (a)
to (d) thereof.
Sub -Clause (c) of Clause 2 requires
the candidate to give the particulars of occupations
i.e . (J) employment (designation with name of the
present employer); (ii) Practice (Sole proprietor or in
partnership including the n ame of the firm); and (iii)
Par ticulars of other occupat ion /engagement, if not
covered by (i) and (ii) above.
In terms of the Sub­
Cla u se (c) of Clause 2 a candidate is required to give
the Part icula rs of h is Occupations. Against Clau se
2(i) the Res pondent furni s hed the details of his
employment as Wholetime Company Secretary
to
Panason ic AVC Networks India Company Ltd .
32.2 The Ap plicant h as alleged th at the Respondent
deliberately and wilfully concealed the material fact
about hi s other occupation of being a Practising
Advocate.
The
Respondent has
rebutted
this
allegation and has, in hi s defence , stated that at the
time of filing his nomination he was not pursuing
any profession other than being the Company
Secretary and Director, Finance m Panasonic AVC
21
Network India Company Ltd. and obviously the
information with regard to th e particulars of other
occupation was not applicable and hen ce he h ad
correctly
written
"not
applicable"
relevant cla use in the said statement.
against
the
He further
submitted that the particu lars of occupation as
Company
Secretary
and
Director,
Fin ance
m
Panasonic AVC Network India Company Ltd ., have
been m entioned correctly as he is not engaged
U1
any other occupation and the verification signed m
terms of Rule 9 (4) of the Election Rules was correct
and true to the best of hi s k nowledge and belief and
no false statement or mi s represen tation as alleged
has been made by him. As there is mention of the
word 'may' in Clause (2) in contradistin ction to the
word 'shall' in Clause (1) of the Schedule 4, the
particulars to be given against clause (2) of the
Statement under Rule 9(4) of the Rules is optional,
the Respondent could have opted not to give the
information against any of the Sub-Clauses (a) to (d)
of Clause 2. However, he has voluntarily chosen to
give information.
32,3 T he substantive defence of the Respondent is that
he never practiced as an Advocate and, therefore, it
was not his occupation and accordingly the same
was not mentioned in the statement. Having regard
22 to the fact that th e Applican t has not placed on
record any docume nt to show that the Respondent
was a c tually in practice as an Advocate even though
his name was o n th e ro lls o f the Bar Council. Thu s,
his conten tion cannot be acce pted and t h e benefit is
to be given to th e Res pondent.
This Issue IS
answered accordin gly, and , therefore , h e was not
manda torily required to give the details in addition
to his full time e mploym e nt as wh ole time Company
Secretary
of
Pa n asonic
AVC
Networks
India
Company Ltd .
33.
ISSUE NO.3
(3) Whether non-declaration of the inform ation by
the Respondent about hi s occu pation as a
Practicing Advocate m a de him in eligible to
contest the election on account of concealment o r
material fact or misstatement in his nomination
form for election to the Council in the election
held in December, 201 4 .
33.1 Rule 42 of the Election Rules provides for action
against a Member in connection with the conduct of
elect ion if h e is found guilty of any act of omission or
comm ission as provided in Sub-Rules (1) to (4) of Rule
4 2.
It, therefo re, follows that if a candidate is found
guilty of any of misconduct mentioned in Rule 42 he
has to be proceeded against in terms of Section 22 of
the Company Secretaries Act, 1980 read with First and
23 Second Sch edu le thereof and the Company Secretaries
(Proced ure of In ves tigation s of Professiona l and Oth er
Misconduct and Condu ct of Cases) Ru les, 2007.
The
Elec tion Ru les do not p rovide for setting aside for
election on any of the ground mention ed in Rule 42 of
the Rules.
33.2 T he Representation of the People Act, 1950, specifically
provid es for the grounds on which the election can be
declared void (Section i OO) and the grounds for which
a candidate. other than the returned candidate, m ay
be d eclared to h ave been elected (Section 10 i) . The re
a re
no
equ ivalent
prov IsIOn s
In
the
Company
Secretaries Act, 1980 a n d the Company Secretaries
(Election to the Council) Rules, 2006. The Application
filed by the Applicant h as to be adj udicated in terms of
provisions of t h e Company Secretaries Act, 1980 and
the Company Secretaries (Election to the Council)
Rules, 2006.
In view of the above disc Llssion th e
aforesaid issue is decided against the Applicant and in
fa vour of the Respondent.
34. ISSUE NO.4
(4) Whether the election of th e Respondent to the
ICSI Council in the election held in December. 20i4 is
not va.lid.
24 34.1 T he Applicant had prayed that the election of the
Respondent as a Member of Cou ncil of the Ins titute in
th e election held in Decembe r , 2014 be declared void
ab-initio; and the Ap plicant should be declared to
have been elected in the election to the Council held in
December, 2014.
34.2 Though th e Respondent was enrolled as an Advocate
with the Bar Council of Punjab & Haryana he did not
ac ti vely engage
a llegation
that
h im self in
the
this profession .
Respon dent
made
The
a
false
declaration in the statement under Rule 9 (4) of the
Rules has not been found established.
Thus, this
issue is decided against the Applicant and in favour of
the Respondent.
35. ISSUE NO.5
(5) Relie f, jf any.
35.1 The Applican t's main allegation is that the Respondent
contested the election based on false information and
s ign ing of verification knowing it to be false and thus
fraudulently won the election to t he Counc il of the
In s ti tute in the elec tion h e ld in Decembe r, 2014.
We
h ave ta ken the view that wh ile th e Responden twas
e nro ll ed as an Advocate with the Bar Council of Punj ab
A'0
25
•
& Haryana, the Applicant co uld no t establish that the
Respondent was in active prac tice as an Advocate .
The refor e, in the declaratio n in the statement under
Rule 9 (4) of the Rules, th ere was , therefore, n o
con cealment of mate rial fac t.
35.2 The Applicant also alleged tha t the Responde nt was a
Prac ticing
Advocate
wh ile
holding
whole
time
e mployment in viola tion of the Advocates Act and the
Rules made there unde r and that by engaging in two
occupations i.e. Prac ticin g Advocate and Company
Secre tary, the Respon dent has violated the p rovi sion s
o f the Company Secre taries Ac t , 1980 and t he Rules
m a d e th e re unde r .
3 5 .3 It has also been al leged that the Respond e nt is guilty
of serious misconduct in tenus of the provision s of
First and Second Sch edule of the Company Secretaries
Act, 1980 .
The Respondent is also alleged to have
contested th e electi on to the Northern India Regional
Con s titue n cy in t h e year 2006 an d 2 0 10 without
d isclosing the m ate r ia l fac t s abou t his s imultaneously
being engaged in two occu pation s.
In our view, for
these allegation s the remedy lies el sewh e re and this
Tribunal h as no jurisdiction.
26 '. ,
"
35.4 In the con spectu s of facts and circumstances, we are
of t he view th at the Applicant has not been able to
make o ut any case against the Respondent and the
Application deserves to be dismissed. Accordingly, this
Application is dismissed. No Order as to costs.
~.
".)<..~ (A.K Chaturvedil
Member
(R. Asokan)
Member
~
(D . Bhardwaj)
Presiding Officer
27