9911796707
TMI Blog2021 (5) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and meeting the timeline especially when it comes to holding of examinations and declaring results. (2) Although the chronological facts are handful but their culmination has been dreadful and concussion thereof could have been doomful. (3) Aspiring to become a Chartered Accountant, the petitioner cleared her CA Foundation Examination in the year 2018 in the very first attempt. Consequently, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding my family, and now that I think of it, I acted in a very silly and childlike manner. I m truly ashamed of myself. I wish I could undo the damage I have done. Sadly, I can t. Hence, an apology letter. Please forgive me. I promise that I will not behave in such a manner again. I did not in any way intend to hurt or harm the institute and its stakeholders. I sincerely request you to not initiate a disciplinary proceeding 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the result be ordered to be declared, only if the Court found substance in petitioner s submissions and merits of the case. (25) Hence, with the consent of both the parties, the matter was finally heard. (26) Having laid the factual fulcrum, learned counsel for the petitioner raised a number of grounds; some of them are enumerated hereunder: (a) The action of the Examination Committee in cancelling result of the petitioner is per-se without jurisdiction 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. He added that such reflection in relation to petitioner s result shows not only vindictiveness of the respondent No.2, but also irresponsible and unprofessional approach of a professional body. (27) While summing up the arguments, learned counsel would submit that not only does the writ petition deserve to be allowed, but also the glaring facts of the case at hand warrants imposition of exemplary cost for the harassment meted out to the petitioner and to recompense her 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly way forward is to develop online infrastructure and conduct all levels of CA exams online. From what we know (research statistics), jan-feb is gonna be worse (conducting exams physically then is a far-fetched dream). Even if the exams start, they won t conclude successfully. More situations like this (curfew/lockdown) will arise in between exams and a lot of people (students, invigilators, in transit, icai staff, staff at the centre and their families) will get infected. Precaution is better 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-mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or misdemeanor at the altar of the Examination Committee? (41) It is rather disturbing that the petitioner was personally heard on 10.3.2021 yet no order was ever communicated/supplied to her. She came to know that her result had been cancelled that too, citing adopted unfair means . (42) What is more intriguing and perturbing is, that in subsequent mail exchange, the Examination Committee sought to improve upon the earlier reason for cancelling the result by stating that same had occasioned on account of her making derogatory remarks in the 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Examination Committee-respondent No.2 with full force and vigour, this Court conceives that the so called alternate remedy would be illusory and an exercise in futility. The same would be like asking the petitioner to challenge Caesar s order before Caesar s wife ( Re: Ram Shyam Company Vs. State of Haryana AIR 1985 SC 1147). (49) The impugned decision cancelling petitioner s result is nothing short of colourable exercise of powers. It also showcases vindictiveness of respondent Committee. The petitioner had sent the contentious e-mail on 20.11.2020 whereafter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is unable to accept any excuse or justification offered by the respondents for not even communicating the decision to the petitioner. This Court feels concerned about the petitioner s plight who was confronted with a remark that her result has been cancelled due to use of unfair means, when she searched for her result on 26.3.2021. The respondents action of reflecting such information rather mis-information in its official website, in clear contrast with the actual facts is beyond acceptable limits. The Examination Committee ought to have realized that such casual rather reckless approach 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roximity with the examination hall, hence, the proceedings under challenge were void since their inception or very beginning. (59) The e-mail in question, which was written in November, 2020 cannot be used rather misused by the Examination Committee to penalise the petitioner while exercising its purported powers conferred by Regulation 41 of the Regulations of 1988. The impugned action so also consequential decision dated 9/10.3.2021 (Annex.R/1) taken by the Examination Committee are both, without jurisdiction and contrary to law i.e. express provisions embodied in Regulations 41 and 176 of the Regulations of 1988. (60) 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. (61) A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
