BOARD OF DISCIPLINE CONSITUTE BY ‘ICAI’ - A TRIBUNAL?

[Mr. M. GOVINDARAJAN]

Our judicial systems have civil courts as well as criminal courts.  Besides this various tribunals were constituted to redress the overburden of the Court.  These tribunals are constituted to deal with of a special subject.  For example ‘Income Tax Appellate Tribunal’ hears the appeal against the order of Commissioner of Income Tax (Appeals).  The High Court is having power to hear the revision petition against the orders passed by such Tribunals. 

There may be some administrative committee may be constituted by the respective bodies to hear the complaints etc.  The Institute of Chartered Accountant of India (‘ICAI’ for short)  is used to constitute Board of Discipline for enquiring a complaint filed against the member of the ICAI.  The issue to be discussed in this article whether such board of discipline amounts to a tribunal and whether a revision petitioner may be filed against the order of Board of Discipline.

The test for a body becoming a Tribunal is that-

• there should be a lis;
• the State transfers its judicial powers; and
• its functions including adjudicating special matters and disputes between parties before the said body. 

In T. RAMESH VERSUS THE BOARD OF DISCIPLINE CONSTITUTED UNDER ICAI ACT NEW DELHI AND CA. ANIL KUMAR LUNAWATH - 2023 (12) TMI 945 - MADRAS HIGH COURT , the petitioner T. Ramesh filed a complaint in Form - I against the second respondent, a Chartered Accountant before ICAI alleging that the Chartered Accountant has committed acts of professional misconduct.  ICAI constituted Board of Discipline to enquire the complaint.  The Board of Discipline dismissed the complaint exonerating the Chartered Accountant from the charges.

Against this order the petitioner filed a revision petition before the High Court.  On the outset the High Court raised a doubt as to how the revision is maintainable since the Board of Discipline is not a Court or Tribunal within Article 227 of the Constitution of India.  Therefore the revision petition filed by the petitioner is not maintainable.

The petitioner contended that the Board of Discipline is a ‘Tribunal’ as it has been created under the Chartered Accountants Act, 1949 and therefore the High Court is having power to entertain the present revision petition.  He cited the following case laws before the High Court-

1. UNION OF INDIA VERSUS R.N. RAJAM IYER - 1964 (1) TMI 75 - MADRAS HIGH COURT;

2. L. DAKSHINAMOOR VERSUS BAR COUNCIL OF TAMIL NADU - 1998 (10) TMI 554 - MADRAS HIGH COURT;

3. SURYA DEV RAI VERSUS RAM CHANDER RAI & ORS. - 2003 (8) TMI 527 - SUPREME COURT

4. STATE OF GUJARAT & ANR VERSUS GUJARAT REVENUE TRIBUNAL BAR ASSOCIATION & ANR - 2012 (10) TMI 633 - SUPREME COURT

5. ASSOCIATED CEMENT COMPANIES LTD. VERSUS P.N. SHARMA AND ANOTHER - 1964 (12) TMI 61 - SUPREME COURT.

The High Court analyzed the above cases.  The High Court analyzed the first case law.  It observed that during the relevant time the High Court had the power to revise an order passed by the Council under section 22A of the ICAI Act, 1949.  Now the power is not available and therefore the said judgment is not useful to the petitioner.

Then the High Court analyzed the second case law.  In this case it was held that the High Court has the power of revision under Article 227 of the Constitution of India with respect to the notices issued by the professional bodies.  The High Court observed that in this case there is no decision whether a petition under Article 227 of the Constitution of India is maintainable or not against a disciplinary proceedings/body/committee.  The maintainability was never raised in this case and therefore the same would not be useful to the petitioner.

Then the High Court analyzed the third case law.  The High Court observed that the judgment in the said case law has been overruled in RADHEY SHYAM & ANR & JAGDISH PRASAD VERSUS CHHABI NATH & ORS & IQBAL KAUR & ORS - 2015 (7) TMI 376 - SUPREME COURT  insofar as the position of law the High Court can exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to interfere with the judicial orders passed by a competent court of jurisdiction in which all parties are private individuals. 

Then the High Court analyzed the fourth case law relied on by the petitioner.  In this case, the High Court observed that the Supreme Court held that in order to constitute a Tribunal it must discharge judicial functions.  The decision so made should affect the rights and responsibilities of the parties.  A Tribunal need not necessarily be a ‘Court’ even if it is being presided over by a judicial officer.  In this case the Board of Discipline does not exercise judicial powers and it does not decide the rights and responsibilities of a ‘lis’.

The petitioner contended that the Board of Discipline is a Tribunal with reference to the judgment of the fifth case.  In this case the Supreme Court held that laid down the test to determine as to whether a body is a tribunal.  It was held that the test for a body becoming a Tribunal is that-

• there should be a lis;
• the State transfers its judicial powers; and
• its functions including adjudicating special matters and disputes between parties before the said body. 

A list is a piece of litigation, controversy or dispute.

The High Court while deciding whether a compliant given to a professional body amounts to a lis, observed that in the present case the rights and responsibilities of the parties are not decided. 

Then the High Court relied on a judgment in THE BAR COUNCIL OF MAHARASHTRA VERSUS M.V. DABHOLKAR AND ORS. - 1975 (10) TMI 114 - SUPREME COURT  The Supreme Court held that the Bar Council of India does not decide a suit between the parties.  The Bar Council in placing a matter before the disciplinary committee does not act as a prosecutor in a criminal case.  A complainant who filed a complaint is not like plaintiff in civil suit.  The complaint is examined by the Bar Council in order to find out whether there is any reason to believe that any advocate has been guilty of misconduct. 

The High Court observed that on a reading of the above said judgment it is clear that a complainant who makes a complaint with the disciplinary authority is not akin to the plaintiff in the suit.  The Board only finds out whether it has any reason to believe that the alleged delinquent Chartered Accountant is guilty of misconduct.  The Board of Discipline has the power to get the information suo motu and start investigation on the conduct of the Chartered Accountant.  Such a suo motu investigation is not permitted for a Tribunal to do unless and until it is so empowered by the statute creating it. 

The High Court held that if any one of the conditions of the test to the Tribunal, the Body cannot be treated as a Tribunal.  Since the professional misconduct is not a lis, the Board of Discipline cannot be held to be a Tribunal within the meaning of Article 227 of the Constitution of India.  The High Court, therefore, dismissed the petition as a not maintainable.