2021 (5) TMI 620 - HC - Indian Laws

Seeking to review holding of examinations and declaring results by the ICAI - Allegation of Oppressive action of a professional body-ICAI - petitioner made many emotional comments, but the thrust of her e-mail was only to suggest that online infrastructure be developed so that all levels of CA Examinations be conducted online - result had been put on hold (by ICAI), because of derogatory remarks (as per the institute) she had made in her e-mail - Jurisdiction of Examination Committee to proceed against the petitioner and annul her examination - HELD THAT - This Court finds that not only the initiation of proceedings against the petitioner, but also the manner in which, the proceedings have been conducted so also its culmination in cancellation of petitioner s result suffers from all the vices which have been voiced by Mr. Vikas Balia. They are without jurisdiction and against the principles of natural justice on one hand and capricious and arbitrary on the other. A perusal of the e-mail sent by the petitioner reveals that the same was addressed to Institute s President and other office bearers and not to the Examination Committee. Hence, the Examination Committee ought not have taken cognizance of an e-mail sent to the President of the Institute, unless the President directed it to do so - That apart, in the opinion of this Court, there is hardly anything in the e-mail, for which it can be alleged/ considered as or even construed to be derogatory. May be, the petitioner could have been more calibrated in her emotional utterness and could have avoided some of the sentences, but then also, this Court is unable to countenance respondents stand that the contents of her mail were derogatory. The very initiation of the proceedings against the petitioner alleging that the e-mail contains derogatory remarks was uncalled for and unwarranted. One cannot lose sight of the fact that on receipt of the notice dated 22.2.2021 itself, the petitioner had practically knelt down in subservience before respondent No.2 urging that she regretted her action and would not repeat the same in future. While apologizing in the said reply/letter, she had even gone to the extent of writing that I am truly ashamed of myself - As Voltaire said, With great power comes great responsibility . Thus, the Institute which is adorned with enormous power to elevate or uplift the lives of vulnerable struggling students, is required to practice greater restraint in invoking its powers especially against the students. Instant case called for not just restraint but absolute abstinence from initiating any action against the petitioner, particularly when she had submitted a beseeching response - Since there was no mentioning or even indication of cancellation of result neither in the e-mail dated 22.2.2021 nor in the subsequent communications, there remains not even an iota of doubt that the impugned order of cancelling the result is inherently illegal, falling foul to Article 14 of the Constitution of India and the same is liable to be quashed. The Institute of Chartered Accountants of India is a statutory body. Hence, its decisions, actions and adjudication are supposed to conform to the standards expected of State or instrumentality of a State. A State that suppresses freedom of speech and inflicts or imposes extreme punishment treating an act or attempt of criticism and/or if it treats any suggestion for improvement as a challenge to its authority or supremacy is a State, that disregards rather violates fundamental rights of a citizens guaranteed by Article 19(1)(a) of our Constitution - this Court has no hesitation in holding that the action of the Examination Committee was without jurisdiction; proceedings conducted by it were arbitrary and against the principles of natural justice and their culmination in the form of decision dated 9/10.3.2021 has been contrary to law. The writ petition is thus, allowed with the cost of litigation, quantified at ₹ 20,000/-.

Summary

Issues Involved:
1. Jurisdiction of the Examination Committee.
2. Alleged derogatory remarks by the petitioner.
3. Procedural fairness and principles of natural justice.
4. Validity of the cancellation of examination results.
5. Alternative remedy and maintainability of the writ petition.
6. Relief and costs awarded to the petitioner.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Examination Committee:
The Examination Committee's action in cancelling the petitioner's result was challenged on the grounds of jurisdiction. Regulations 41 and 176 of the Chartered Accountants Regulations, 1988, were cited, which authorize the Examination Committee to take action concerning examination conduct and candidate behavior in or near an examination hall. The court found that the contentious email was sent two months before the exams and not in or near an examination hall, thus falling outside the Committee's jurisdiction. The court concluded that the proceedings and the decision to cancel the result were without jurisdiction and contrary to law.

2. Alleged Derogatory Remarks by the Petitioner:
The petitioner’s email dated 20.11.2020, addressed to the Institute's President and other office bearers, was scrutinized. The court found that the email, while perhaps emotionally charged, did not contain remarks that could be considered derogatory. It emphasized that the petitioner’s intent was to suggest the development of online infrastructure for examinations due to Covid-19 concerns. The court deemed the initiation of proceedings against the petitioner as unwarranted and overbearing.

3. Procedural Fairness and Principles of Natural Justice:
The court noted several procedural lapses, including the lack of a proper show cause notice indicating the potential cancellation of results, which violated principles of natural justice. The petitioner was not informed of the extreme action being contemplated against her and was not given a fair opportunity to defend herself. The court referenced the Supreme Court's judgment in Gorkha Security Services vs. Govt. of NCT, Delhi, emphasizing the necessity of clear communication regarding proposed actions in show cause notices.

4. Validity of the Cancellation of Examination Results:
The court found the cancellation of the petitioner's result to be arbitrary and a colorable exercise of power. The decision was not communicated to the petitioner, and the reason cited on the official portal—"adopted unfair means"—was factually incorrect and misleading. The court held that the action of the Examination Committee was fundamentally flawed and liable to be quashed.

5. Alternative Remedy and Maintainability of the Writ Petition:
The respondents argued that the petitioner had an alternative remedy of filing a review before the Council as per Regulation 176(3). However, the court held that in cases of manifest arbitrariness and jurisdictional overreach, the availability of an alternative remedy does not preclude the invocation of writ jurisdiction. The court also dismissed allegations of concealment of facts by the petitioner as unsubstantial.

6. Relief and Costs Awarded to the Petitioner:
The court allowed the writ petition, quashing the decision dated 9/10.3.2021 of the Examination Committee. It ordered the declaration of the petitioner's result, which showed that she had passed the CA Intermediate Examination. The court directed the Institute to send the original marksheet and certificate to the petitioner and to update the official portal accordingly. Additionally, the court awarded litigation costs of ?20,000 to the petitioner, to be paid by the respondents within 30 days.

Conclusion:
The court emphasized the need for professional bodies like the Institute to handle criticisms constructively and to exercise restraint in disciplinary actions, especially against students. The judgment highlighted the importance of adhering to principles of natural justice and the proper exercise of jurisdictional powers.