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TMI Blog2015 (5) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant for considering the issues involved are as under:- 3.1. A complaint dated 03.03.2009, in respect of alleged misconduct on the part of the petitioner, was received from respondent no. 2. The said complaint was forwarded to the petitioner, who filed his written statement and thereafter, a rejoinder was filed by respondent no.2. After examining the said documents, Director (Discipline), ICAI rendered a prima facie opinion dated 04.05.2010 wherein the petitioner was held to be prima facie guilty of professional misconduct under clauses (7), (8), and (9) of Part I of second schedule to the Chartered Accountants Act, 1949 (hereafter the 'Act'). 3.2. The prima facie opinion of Director (Discipline), ICAI dated 04.05.2010 was considered by the Disciplinary Committee and by letter dated 09.08.2010 the petitioner was called upon to submit his written statement within 21 days. At the request of the petitioner, the time to file the written statement was initially extended to 30.09.2010 and again to 15.10.2010. However, no such written statement was filed by the petitioner. 3.3. By letter dated 08.12.2010, petitioner was called upon for personal hearing before the Disciplinary Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded in the order dated 16.08.2011 whereby the LPA preferred by the petitioner (LPA 168/2011) was rejected. 7. Notice for the hearing scheduled before the Disciplinary Committee on 25.11.2011 was duly received by the petitioner. This time the petitioner sought an adjournment on the ground of his ill health, which was declined. 8. The notes of the hearing held on 25.11.2011 indicate that the petitioner's request for an adjournment was not acceded to. It is apparent from the above that the Disciplinary Committee did not entertain the petitioner's request for an adjournment on either of the two occasions. 9. A perusal of the notes of hearing also indicates that the Director (Discipline) had stated before the Disciplinary Committee that "Earlier the case was fixed on December 2010 and it was adjourned at his request...". Apparently, the said statement was made to persuade the Disciplinary Committee to reject the petitioner's request for adjourning the hearing. It does appear that the decision of the Disciplinary Committee to decline the petitioner's request for an adjournment was influenced by the statement made by the Director (Discipline), as the President of the Disciplinary Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Committee shall presume that he has no further submissions to make and shall proceed to decide the case on merits. (4) The respondent shall send a copy of his written statement, along with supporting documents and a list of witnesses, to the Director and the complainant within the stipulated time. (5) The complainant or the Director may, after receipt of the written statement, submit a rejoinder to the Committee, with a copy to the respondent, along with supporting documents, if any. (6) The Presiding Officer of the Committee shall fix a date, hour and place of hearing, which shall not ordinarily be later than 45 days from the date of receipt of prima facie opinion and the committee shall cause a notice to be sent of such date, hour and place to the Director, respondent and complainant and require them to appear before it in person to make oral submissions, if any. Explanation. - For the purpose of this rule the appearance includes, unless and otherwise directed, appearance by an advocate or through any authorized representative, who may be a Chartered Accountant, Cost Accountant or Company Secretary. (7) During the first hearing, the Committee shall read out the charge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending the hearing. (16) After evidences have been presented, the Director and the respondent shall present their arguments before the Committee : Provided that after the Director has presented his argument, if the complainant, provided he is present during the hearing, feels that any vital argument has been left out by the Director, may present the argument, after convincing the Committee of the same. (17) The Committee shall consider the evidences and arguments produced before it and arrive at a finding on whether the respondent is guilty or not of any professional or other misconduct. (18) The Committee may, at the request of any of the parties before it or due to other reasons, and on such terms as it thinks fit, and at any stage of the proceedings, adjourn the hearing : Provided that such adjournment shall not be given more than once at any stage of the proceedings. Explanation. - For the purpose of this rule, inability of the complainant, advocate, authorized representative or witness, to appear shall not be treated as a valid reason for adjournment of a hearing." 13. A plain reading of Rule 18(1) of the Rules indicates that the Disciplinary Committee is to be guided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een, the finding by the Council operates with finality in the proceeding, and it constitutes the foundation for the penalty imposed by the Council on him. We consider it significant that the power to find and record whether a member is guilty of misconduct has been specifically entrusted by the Act to the entire Council itself and not to a few of its members who constitute the Disciplinary Committee. It is the character and complexion of the proceeding considered in conjunction with the structure of power constituted by the Act which leads us to the conclusion that the member is entitled to a hearing by the Council before it can find him guilty. Upon the approach which has found favour with us, we find no relevance in James Edward Jeffs and Ors. v. New Zealand Dairy Production and Marketing Board and Ors. [1967] 1 AC 551 cited on behalf of the appellant. The Court made observations there of a general nature and indicated the circumstances when evidence could be recorded and submissions of the parties heard by a person other than the decision making authority. Those observations can have no play in a power structure such as the one before us." 15. Although, there have been signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge to the order of dismissal passed by the Disciplinary Authority was that the appellant (therein) informed the enquiry officer by number of letters supported by medical certificates about his illness with a request to adjourn the departmental proceedings, however, the enquiry Officer rejected the request and recorded his findings holding the appellant (therein) guilty. The Supreme Court set aside the disciplinary proceedings and held as under:- "33. Since in the instant case the appellant was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by nonpayment of subsistence allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the enquiry officer at such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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