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TMI Blog2021 (5) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequently, she became eligible to appear in CA Intermediate Examination scheduled for May, 2020. (4) On account of unprecedented situation of spread of Covid-19 and imposition of lock-down, the exams due in May, 2020 were cancelled. (5) Thereafter, a new schedule for CA Examinations came to be published according to which the exams were re-scheduled to be conducted between November 21st and December 14th, 2020. (6) Owing to the said rescheduling, the respondent-Institute gave an option to all those candidates, who had filled-in application forms for the examinations of May, 2020 to appear in the examinations to be held in November, 2020. (7) Meanwhile, being wary of uncertainty about candidates' ability to appear, arising out of Pandemic, the Institute permitted the students to opt-out of examinations scheduled in November, 2020 with a liberty to appear in subsequent examinations, which were planned to be convened in January, 2021. In this regard, a Press Note, well in advance, came to be issued by the Institute on 7th November, 2020. (8) On 20.11.2020, the petitioner chose to address an e-mail to the office bearers of the Institute, including its President on the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding against me as I really regret my actions and will not repeat this in the future. I apologize for all the inconvenience and my reactions. Sincerely, Risha Lodha" (15) Regardless of the aforesaid letter, vide which, the petitioner had literally eschewed whatever she had written in her e-mail, respondent No.2 proceeded to send her a communication dated 7.3.2021 requiring her presence on 10.3.2021 at Jaipur. The subject of said e-mail needs special mention, for which, it is being extracted: "Alleged resort to unfair means/derogatory remarks during Chartered Accountants Examinations - November 2020." (16) The petitioner appeared on the scheduled date and time at Jaipur and put forth her explanation, but she was kept uninformed about the order/result of the hearing. (17) Various e-mails were exchanged between petitioner and respondent no.2 in the meantime, but the same are not of much significance. (18) On 26.3.2021, the Institute declared result of CA Intermediate Examinations. The petitioner surfed official website of the Institute for her result, only to find that her result has been cancelled, under caption "ADOPTED UNFAIR MEANS. LETTER FOLLOWS". The screen shot depicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction inasmuch as Regulations 41 and 176 of the Chartered Accountants Regulations, 1988 (hereinafter referred to as 'the Regulations or the Regulations of 1988') authorize the Examination Committee to take action in the matters relating to examination and to adjudge behaviour of a candidate in or near an examination hall, whereas the contentious letter was written about 2 months ahead of exams. (b) On receipt of the contentious e-mail dated 20.11.2020, the Institute had sent a registered notice dated 22.11.2020 asking the petitioner to refrain from addressing any such communication concerning the examination, failing which, the Institute would be constrained to initiate legal proceedings against her. He submitted that the notice sent by Institute's advocate was clear and categorical. Any legal action could therefore, be taken only in case the petitioner further indulged in any such correspondence with the Institute. Emphasising that e-mail dated 20.11.2020 is the only e-mail and the petitioner had not sent any other mail, learned counsel argued that according to the respondents' own notice, they were estopped from taking any legal action against the petitioner until the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... image that has been tarnished. (28) Mr. Bhandari, learned counsel appearing for the respondents firstly raised a preliminary objection that in the face of an efficacious alternative remedy of filing a review before the Council against the decision taken by the Examination Committee, as provided in Regulation 176(3) of the Regulations, the writ petition is not maintainable. (29) It was also contended that as the petitioner has concealed a material fact of receiving a notice dated 22.11.2020 sent to her by the Institute's counsel, her writ petition is liable to be dismissed. (30) A preliminary submission was also made by the respondents that though the petitioner had been informed vide communication dated 30.3.2021 that her result had been cancelled, but she has chosen not to assail the same and hence, her writ petition seeking a declaration of result simplicitor, is not maintainable. (31) Joining on merits of the case, Mr. Bhandari did not have much to defend the impugned action, except that petitioner's email dated 20.11.2020 reflected disorderly behaviour on her part. He added that petitioner's contentious e-mail was unwarranted, particularly a day before the scheduled date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than cure" PLEASE RETHINK YOUR DECISIONS QUERY: What happens if a student in my class gives say 2 exams in the first group and then opts out. Now it may be due to his lack of preparation or that he himself or his family is infected. What will happen next? Will the other students in the class be informed? Moreover how will you know if he opted out because he has covid or just symptoms (could be a viral fever) What happens to all the students if the invigilator gets infected? I'm not expecting a reply but please go through this once Thankyou for your time. I will get back to studying now." (36) A perusal of the above quoted 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. (37) 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 emotio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examinations. Though the said e-mail indicated that a hard copy would follow, but the same has never seen the light of the day. (43) The petitioner has been constrained to approach this Court for the following reliefs: "I. The respondent institution(sic) may be directed to declare the result of the petitioner; II. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners. III. Costs of the writ petition may kindly be awarded to the petitioner." (44) True it is, that the petitioner has not challenged the communication dated 30.3.2021, as has been argued by Mr. Bhandari. But then, the communication dated 30.3.2021 cannot be said to be an order. It is simply an intimation. Therefore, the petitioner is justified in seeking a prayer for declaration of result. Ideally, the petitioner could have sought quashment of communication dated 30.3.2021 or any corresponding order, but such trivial technicalities cannot come in petitioner's way of getting her grievance redressed and rights adjudicated. (45) This court hardly finds any substance in Mr. Bhanda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter on 22.11.2020 the respondent's counsel sent a notice to the petitioner on her email, relevant extract whereof reads thus: "In view of the above, you are hereby called upon to refrain from addressing any such communication to ICAI or any other organization concerning the examinations currently being conducted by ICAI, failing which ICAI shall be constrained to initiate appropriate legal proceedings against you at your cost and consequences which you may please note." (50) A perusal of the substance of the notice leaves no manner of doubt that the respondent-Institute had warned the petitioner of dire consequences, if she further indulged in addressing any such communication to ICAI or any other organization concerning examinations. (51) Indisputably, the petitioner has not written even a single letter to the Institute or to any other authority after 20.11.2020. Neither there is anything on record nor is it the case of the respondents that petitioner has ever communicated with the Institute or published anything on any public platform regarding examination or the manner in which the examinations were held by the Institute. The respondent-Institute, therefore bound by its o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involving imputation on reputation may have serious repercussions on emotional or mental equilibrium of a student. (56) The moot question, which remains to be decided is, as to whether the Examination Committee had the jurisdiction to cancel petitioner's result in the present factual matrix. In order to dilate upon this issue, it will be apposite to run through the following provisions dealing with the powers of Examination Committee catalogued in Regulation 41 and 176 of the Regulations of 1988: "41. Disciplinary action in connection with examination. If a candidate is reported to have behaved in a disorderly manner in or near an examination hall or is reported to have resorted to or attempted to have resorted to unfair means for the purpose of passing an examination, the Examination Committee may, on receipt of a report to that effect and after such investigation as it may deem necessary, take such disciplinary action as it may think fit, provided that an opportunity shall be given to the candidate of being heard before an order adverse to him is passed. Explanation - Disciplinary action may include the cancellation of any examination result, or the cancellation of articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (61) As an upshot of discussion foregoing, 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. (62) The writ petition is thus, allowed with the cost of litigation, quantified at Rs. 20,000/-. (63) As a natural fallout, the decision dated 9/10.3.2021 of the Examination Committee is hereby quashed and set aside. (64) The result which was produced by the respondents in a sealed envelop was opened and take ..... 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