2019 (3) TMI 337 - HC - Indian Laws

Guilty of other misconduct - inappropriate behaviors of CA - Clause 2 of Part IV of the First Schedule to the Chartered Accountants Act, 1949 - It is the petitioner s case that the allegations made against him have no bearing with him carrying on the profession as a Chartered Accountant and, therefore, the Board and/or ICAI would have no jurisdiction to entertain a complaint in this regard - inter-personal relationships between HA and the petitioner. Held that - Section 21A of the Act contains provisions for constitution of a Board of Discipline. Sub-section (3) of Section 21A provides that where the Board of Discipline is of the opinion that a member is guilty of professional or other misconduct as specified in the First Schedule, it shall afford to the member an opportunity of being heard and may, thereafter, take any one of the actions as specified therein. Section 21B of the Act contains provisions relating to the Disciplinary Committee - As is apparent from the plain language of Part IV of the First Schedule to the Act, the expression other misconduct includes any conduct, which brings disrepute to the profession or the ICAI as a result of an action whether or not related to professional work. Thus, it is not necessary that the misconduct complained of should be a conduct in exercise of the profession of Chartered Accountancy. Any conduct, which tends to bring disrepute, would be a subject matter of proceedings under Chapter V of the Act. In Council of the Institute of Chartered Accountants and Another v. B. Mukherjea 1957 (9) TMI 60 - SUPREME COURT , the Supreme Court had examined the provisions of the Act, as in force at the material time (prior to the amendments in the year 2006 and in the year 2011). The Court had explained that the acts of commission and omissions specified in the Schedule were not exhaustive and did not purport to limit the power of the Council under Section 21(1) of the Act. In a recent decision in Council of the Institute of Chartered Accountants of India v. Shri Gurvinder Singh & Anr. 2018 (11) TMI 1163 - SUPREME COURT OF INDIA , the Supreme Court had allowed an appeal preferred against the decision of this Court. In that case, a complaint was made against a Chartered Accountant who had sold certain shares of a public limited company to the complainant therein, in the year 1999 - The Division Bench answered the reference in favour of the Chartered Accountant and held that since he was acting in an individual capacity while dealing with the complainant and not acting as a Chartered Accountant, he could not be held guilty of misconduct. The Supreme Court allowed the ICAI s appeal against the said decision and held that the High Court had incorrectly appreciated the provisions of the Act. Thus, this Court is unable to accept the contention that the Board of Discipline does not have the jurisdiction to examine the alleged misconduct on the part of the petitioner. Clause (2) of Part-IV of the First Schedule to the Act is wide, and would include within its scope, any conduct that would tend to bring disrepute to the profession or the Institute. If a Chartered Accountant is found to have been guilty in outraging the modesty of a woman and/or other offences involving moral turpitude, it would not be inapposite for the Board of Discipline to also conclude that the conduct did, in fact, lower the dignity of the profession. In this view, this Court is not able to accept that the proceedings before the Board of Discipline are without jurisdiction. Whilst, it is correct that the Board of Discipline has no jurisdiction to sentence the petitioner, it would be erroneous to contend that the Board of Discipline does not have the jurisdiction, to examine the allegations made against the petitioner, in the context of determining whether the petitioner is guilty of other misconduct as defined under Part-IV of the Schedule-I to the Act - This Court is refraining from expressing any opinion on the merits of the complaint made by respondent no.2, as the question whether the petitioner is guilty of other misconduct is yet to be decided by the Board of Discipline. Petition dismissed.

Summary

Issues Involved:
1. Jurisdiction of the Board of Discipline of ICAI.
2. Definition and scope of "other misconduct" under the Chartered Accountants Act, 1949.
3. Standards of proof in disciplinary proceedings versus criminal proceedings.
4. Procedural propriety and fairness of the disciplinary process.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the Board of Discipline of ICAI:
The petitioner contested the jurisdiction of the Board of Discipline of ICAI to entertain the complaint, arguing that the allegations pertained to personal conduct and were already under trial in criminal courts. The petitioner relied on precedents such as *Chief of the Army Staff and Others v. Major Dharam Pal Kukrety* and *M/s Dhampur Sugar Mills Ltd. v. State of UP and Ors.* to support his contention that the disciplinary proceedings were without jurisdiction.

The court, however, upheld the jurisdiction of the Board, emphasizing that Clause (2) of Part IV of the First Schedule to the Chartered Accountants Act, 1949, is broad enough to include any conduct that brings disrepute to the profession, regardless of whether it is related to professional work. The court referenced the Supreme Court's decision in *Council of the Institute of Chartered Accountants of India v. Shri Gurvinder Singh & Anr.*, which clarified that misconduct not in a professional capacity could still be subject to disciplinary proceedings if it brought disrepute to the profession.

2. Definition and Scope of "Other Misconduct" Under the Chartered Accountants Act, 1949:
The court examined the definition of "other misconduct" as provided in Part IV of the First Schedule to the Act. It noted that "other misconduct" includes any conduct that brings disrepute to the profession or the ICAI, irrespective of its relation to professional work. The court cited *Council of the Institute of Chartered Accountants of India v. P. C. Parekh*, where a member was found guilty of misconduct for authoring a book on tax evasion, as an example of conduct unrelated to professional work but still subject to disciplinary action.

The court concluded that the Board of Discipline has the authority to examine allegations of misconduct that could potentially lower the dignity of the profession, including those involving moral turpitude or criminal behavior.

3. Standards of Proof in Disciplinary Proceedings Versus Criminal Proceedings:
The petitioner argued that the Board of Discipline should not render any findings on the allegations as they were pending trial in criminal courts. The court clarified that the standards of proof in disciplinary proceedings differ from those in criminal proceedings. While criminal proceedings require proof beyond a reasonable doubt, disciplinary proceedings are based on the preponderance of probability.

The court acknowledged that the Board of Discipline does not have the jurisdiction to impose criminal sentences but can still examine the allegations to determine if they constitute "other misconduct" under the Act. The court also noted that the Board has the discretion to defer its decision pending the outcome of the criminal trial, but this does not negate its jurisdiction.

4. Procedural Propriety and Fairness of the Disciplinary Process:
The petitioner contended that the disciplinary proceedings were initiated without proper jurisdiction and fairness. The court reviewed the procedural framework under Chapter V of the Act, which includes provisions for the constitution of a Disciplinary Directorate and a Board of Discipline, as well as the process for handling complaints and forming prima facie opinions on misconduct.

The court found no procedural impropriety in the Board's actions and emphasized that the petitioner would have the opportunity to present his case before the Board. Furthermore, the petitioner has the right to appeal any decision made by the Board to the Appellate Authority under Section 22G of the Act.

Conclusion:
The court dismissed the petition, affirming the jurisdiction of the Board of Discipline to proceed with the complaint against the petitioner. The court refrained from commenting on the merits of the complaint, leaving it to the Board of Discipline to decide based on the evidence presented. The petitioner's concerns about jurisdiction and procedural fairness were addressed, and the court found no reason to interfere with the ongoing disciplinary process. All pending applications were disposed of.