BEFORE THE ELECTION TRIBUNAL, NEW DELHI
IESTABLISHED U/S lOB OF THE COMPANY SECRETARIES ACT, 19801
APPLICATION NO. 1/2015
IN THE MATTER OF:
CS Hitender Kumar Mehta ......Applicant
(Represented by : Shri J.K. Mittai, Shri Rajveer Singh & Shri S.M. Sundaram, Advocates)
VS.
CS Rajiv Bajaj .... Respondent
(Represented by : Dr. S. K.umar, Advocate)
30.032016
ORDER
1. This Application dated 19.01.2015 has been filed by CS
Hitender Kumar Mehta, the Applicant herein, under
Section lO-A of the Company Secretaries Act, 1980, (the
'Act') raising a dispute in regard to the election of CS
Rajiv Bajaj, the Respondent herein, as a Member of the
Central Council of the Institute of Company Secretaries
of India (the 'rCSI,) from the Northern India Regional
Constituency of the ICSI in the Central Council Election
of the ICSI held in December, 2014. The Applicant has
prayed for declaring the election of the Respondent to be
void ab initio in the election to the Council held in
December, 2014 as well as the election of the
1
Respondent to the NIRC of ICSI in Decembj 20 10 and
declaring th e Applicant to have been duly fIec ted in the
election to th e Cou ncil h eld in Decem be r, 2014,
2. The Applicant h as submitted that at the t ime of final
round of counting of votes, when the Respondent was
declared elected at SI. No.5, th e Applicant was placed
next to him at SI.No.6.
3. The Applicant has further stated that the Respondent
contested the election based on con cealment of material
fact about hi s occupation , submission of false
information wld s igning of verification knowing it to be
false and th us, fra udulen tly won the election to the
Council. The Applican t h as further s tated that as per
the information availa ble ll1 public domain , the
Respondent h a d been s imultaneously engaged in two
occupations, namely til Advocate in Practice (being a
Member of Bar Council of Punjab & Haryana vide
enrolment nu m ber P/ 423/1996 since 30.3.1996 and an
act ive me m ber of the Supreme Court Bar Association
s ince 2005) an d (ii) Whole t ime Company Secretary of a
company i.e., Panasonic AVS Networks India Company
s ince 1.4. 1998. The Respondent completely suppressed
and concealed the material fac ts about his being an
"Advocate in pra ctice" wh ile filing his n omination paper
for the election to the Central Council of the ICSI h eld in
2
December, 2014 and also in th e elections of Northern
India Regional Council (NIRC) of th e ICSI in the year
2006 and 2010 in which he was the contesting
candidate.
4 . The Applicant has also s ta ted tha t in the statement
pursuant to sub-rule (4) of Rule 9 of the Company
Secretaries (Election to the Council) Rules, 2006 (the
'Election Rules') read with Schedule 4 of the Election
Rules , the Responden t h as disclosed only about his
be ing whole time Compa ny Secretary of Panasonic AVS
Networks India Company and has deliberately and
wilfully conceal ed the mate rial facts about his other
occupation of being a pra ctis ing advocate and in fac t,
under the head <'particulars of other occupation s" he
has mentioned "Not Applicable".
5. It has been s ta ted by the Applicant that the Respondent
has con tested the election based upon the concealment
of material fa cts a bout his occupation, submission of
false informa tion and signing of verification knowing it
to be fal se and thus, fraudulently won th e election . He
further s ta ted that in the 'list of contestin g candida tes
and th e ir pa rticula r s ' circulated by th e Re turning Officer
in compliance of Election Rules on the basis of
informa tion furn ished by the candidate s alongwith the
nomination form , the occupation of the Respondent is
t:> 3
,
, stated "Company Secretary & Associate Director
Finance, Panasonic AVS Networks India Company" and
In th e particu lars of th e other occupation , it is
mentioned" Not applicable".
6, The Respondent was admitted to the membership of
Supreme Court Bar Association (SCBA) in the year 2005
against the membership number B-00398 and the name
of the Respondent continued to appear in the list of
ac tive resident member in the Members Directory of
SCBA. Accord ing to Rule 3 (ix) of SCBA Rules and
Regulations "Reside n t Member" m eans "a membe r
residing and practising as an Advocate in Delhi or jts
suburbs", It has further been stated that in the records
of ICS I and MCA (Ministry of Corpo rate Affairs), the
Responden t is in the occupation of Company Secretary
employed with Panasonic AVS Networks In dia Company
as Whole time Company Secretary,
7. That havi ng been engaged In two occupation
simultaneously the Respondent has violated the
provisions of Company Secretaries Act, 1980 and Rules
m ade there under, Advocate Act , 1961 & Bar Council of
India Rules ( Rule n o.48 & 49) and Companies Act,
2013/1956 and also the prOVISIOns of Indian Penal
Code , For the violation of Company Secretaries Act,
1980 read with Ru les made th ereunder and Election
Code of Conduct, the Respondent is guil ty of serIOUS
4
, misconduct in terms of the provisions of First Schedule
and Second Schedule of the C S Act, 1980 and for the
vio lation of the provisions of Companies Act, 2013/1956
a nd Advocates Act, 1961 including Ba r Council of India
Rules, the Respondent has rendered himself disqualified
to continue as an Advocate in Practice and for the
peljury, criminal breach of t rust and fraud played upon
the Institu te in the elections, the Respondent is liable to
be prosecuted under Indian Penal Code. The Applicant
filed and relied upon the documents/ records/
information obtained from MCA, ICSl and SCBA.
8. iJhe Applicant has a lso referred to the order dated
30 12.2011 passed by the Board of Discipline of the
lCSl against the Respondent he rein wherein the
Respon den t was found guilty of professional misconduct
for the violation of Election Rules pertaining to lCSI
eIections-201O for sending an e -mail to the members of
the lCSI in addition to the circular/manifesto circulated
as pe rmitted under Rule 42 of the Election Rules.
9. The Respondent In his Written Statement dated
7.11.2015 has submitted th a t the allegations of the
Applicant against him are wrong and made on flimsy
and unfounded grounds and denied the same. He h as
further submitted that the Applican t fil ed the captioned
5
application out of frustrati on and as an afterthought
after having lost the election to the Council.
10. The Respondent has furth er submitted that the
Applicant is resorting to Forum Shopping as the
Appli cant has filed complaints against the Respondent
with the Director (Discipline) of the ICS! and also with
Bar Council of Punja b & Haryana on the same subject
with similar allegation s. The Appl ican t has not
approached this Hon'ble Tribunal with clean hands as
the Applicant himsel f is a member of Bar Council of
Delhi and is practi si ng as an Advocate. but has not
m enti on ed said fact clearly in his statement submitted
pursuant to Rule 9 (4) of the Elec tion Rules for the
Election to the Council of the lCSI and has simply
indicated himself as the "partner" of Vais h Associates,
which does not m ean that he is a practis ing advocate
s ince Vaish &. Associa tes IS a multi di sciplinary firm
providing consultan cy in a number of areas namely
'Corporate Tax a n d Business Advisory Services'. The
Respondent further stated that by n o t di sclosing thi s
mate rial fact in hi s statement, the Applicant has himself
rendered guilty of misconduct for having brought
d is re pute to tbe Council under sub-rule (1) of Rule 42
read with clau se (2) of Part IV of the First Schedule of
the CS Act . 1980.
6
11. The Respondent has further stated that the Applicant•
has made the allegations under different Acts , viz.,
Advocates Act, 1961, The Companies Act, 1956/2013
and The Company Secretaries Act, 1980 (on the issues
other than the election) and that this Tribunal has no
jurisdiction to deal with/decide the alleged violation of
provisions of Company Secretaries Act, 1980 and Rules
made thereunder, Advocate Act , 196 1 & Bar Counci l of
India Rules and Companies Act, 2013 / 1956 by the
Respondent being e ngaged 10 two occu pations
s imul taneously viz. practising advocate and whole time
Company Secretary in a company.
12. The Respondent has claimed that he has not concealed
any information and contested the election in a fair and
transparent manner and infonnation furnished by him
was true to the best of my knowledge and belief. He h ad
su rrendered the membership of the Bar Council of
Punjab & Haryana and Supre me Court Bar Association
long back and on the date of the filing of the nomination
for the election to the Council of the ICS1 he was not the
member of the Punjab & Haryana and Supreme Court
Bar Association. He h as further stated that he is a law
graduate but he never practiced as an advocate during
his entire career and till date and m embership of the
Bar Council / Association was taken on the advice of the
employer for providing support to employer's litigation.
b 7
He further submitted that he h ad m a de the request to
the Supreme Court Bar Associa tion vide Jetter dated
7.7 .20 11 which were duly received and acknowledged
by the SCBA on 9.7.2011 for striking off his name and
that that he has not paid any fees to the SCBA after the
year 2011 and had al l th e reasons to believe that his
name had been s truck off as the annual payment of fee
was n ever paid s ince 2011. In regard to his enrolment
with the Bar Council of Punja b & Haryana h e has s ta ted
that v ide his letter dated 5'" August, 1997, he requested
the Bar Counci l to hold h is registrat ion in abeyance .
13 . The Respondent s ta ted that he was neve r engaged in the
occupa tion a s an advocate. He h a s further submitted
that the gen erally a ccepted definiti on of practice of law
is "the practice of law in volves giving legal advice to the
clients, drafting legal documents for clients, and
re presenting clients in legal negotia tions and court
proceedings such as laws uit , and IS applied to
professional services of a lawyer or attorney at law,
barrister , soli citor , or civil law notary". The Responde nt
submitted th a t he has never provided any legal services
to any client and never appeared in any court in the
entire country and never raised any invoice and received
any payments for appearing a s an advocate .
8
14. The Respondent has submitted that there was no
misstatement in the "sta tement pursuant to sub-rule (4)
of Rule 9 read with Schedule IV of the Election Rules
filed by him a lon gwith his nominat ion form and h a s not
con cealed any facts in the said s ta tement. He has
submitted tha t since h e is not practising as an
Advocate , the question of mentioning as such 111 the
said state ment does not a nse and therefore he has
correctly mentioned his employment particulars as
whole tim e Company Secretary with Panasonic AVC
Network Ind ia Company Ltd . He ha s submitted that
s ince he is not pursuing any profession other than being
the Company Secretary and Director, Finance In
Panasonic AVC Network Ind ia Company Ltd. , the
informa tion with regard to the particulars of other
occupation was n ot applicable and h en ce he had
correctly written "not applicabl e" against th e relevant
clause in the said stalemen t.
15. The Respondent s ubmitted tha t the electorates are
composed of hard core professionals namely Company
Secre taries, Ch a rtered Accounta nts, Cos t Accountants,
lAS/IPS , other member of the Institute occupying
prestigious pos itions 111 th e corporate world and
Government and they have vo ted for th e Respond ent
after looking into h is credentials and contributions to
9
the profession. He further submitted that electorates
are well educated cannot be carried away.
16. Since the Election was conducted by the rcsr, in order
to ascertain the true and correct fac tual position of the
matte r, the rcsr was requested to provide its comments
to the application . The ICSI in its comments dated
16. 11.2015 submitted that m the records of the rcs l
including the application submitted for Issue of
Cer tificate of Practice pertai ning to Respondent, it was
stated in Form D that he is not enrolled as an Advocate
and there is no information that he is a member of
SCBA. The rCSI fur th e r submitted that in column 1 (c)
Ii) "Employment (designation with name of present
employer) of the nomin ation fo rm" the Respondent has
s tated as Panasonic AVC Networks India Company Ltd.,
Company Secretary & Associate Director-Finance. The
rcsl referred Rule 7 of the Election Rules and su bmitted
that in the Election Rules, there is no restric tion and
prohibition on the members of the resl to be members
of any S ta te Bar Council o r the Bar Assoc iation , to
contest any election of the ICSI including the election for
tlie RegionaJ Councils.
17. The Appli cant 111 his rejoinder affidavit dated
23.11.2015 h as s tated that th e Respondent has not
denied the fact that he has been enrolled with the Bar
10
Counci l of Punjab & Haryana and he has also admitted
that h e has been enrolled with the SCBA. The Applican t
furthe r submitted that the Respondent in para 5 of the"
parawise reply on m erits" of the Written Statement has
falsely stated that h e h a s surrendered the membership
of Bar Council of Punjab & Haryana and SCBA lon g
back. The Applicant alon g with his rejoinder filed a 1:>
copy RTf reply dated ·13 .2.2015 and submitted that in
the said RTI reply, the Ba r Coun cil of Punjab & Haryan a
has con firmed that no application for voluntary
suspension/cancellation of enrolme nt certificate was
received from the Respondent and that as per his
personal fi le he is continuing on the Roll of Practising
Advocates of th e said Bar Council. He has further
submitted that as per the SCBA Directory filed
alongwith the application, the name of the Respondent
continue to exist in the SCBA directory of the year 2015
also. The Applicant h as further submitted that the
Respondent deliberately made false s ta tements in his
written statement fil ed alongwith a ffidavit without giving
any date and concrete proof that he had surrendered
his membership of Bar Counc il of Punjab & Haryana
and SCBA and the same was contrary to th e records of
both Bar Council and SCBA.
18. The Applican t in hi s rejo in de r a ffid avit h as further
stated that the claim of the Respon den t in Para number
1;\ 11
7 of the "parawise reply on m erit" of the Written
Statement has fa lsely claimed th at he never practised as
an Advocate and the membership of the Bar Council
was taken on th e a dvice of h is employer , is a false
s tatement in as much as Bar Counc il membership was
taken in the year 1996 and wh ereas the Responden t
s tarted working as whole time Company Secretary with
the present employer in the year 1998.
19. The Applicant in his rejoinder affidavit h as furthe r
submitted tha t while the Respondent h olds the
e n rolment as an Advocate of the Bar Council , he also
took Certificate of Practice (COP) from the ICSI for the
period from August, 1997 to March, 1998, which was
granted by the ICSI under COP num ber 2686. He
further submitted that the ICSI in its RTI rely dated
23.7.2015 has also confirmed by providing Form D
da ted 26.8. 1997 filed by the Respondent for seeking
COP from the ICSI , whe rein h e has made categorical
s tatement that "I am not e nrolled as an Advocate on roll
of any Bar Council" , which is deliberately a false
statement made by him as he has been enrolled with
the State Bar Council s ince the year 1996.
20. The Applican t has also su bmitted that as per Rule 7 of
the Election Rules, only Feliow Member of the ICSI is
eligible to stand for election of the Council. The Fellow
t> 12
Membership was obta ined by the Respondent on the
strength of his expen ence as p ractis ing Company
Secretary itself is illegal, as the COP itself has been
obtained by him legally which is void ab initio .
21. The Applicant further submitted that as per Rule 15 (3)
of the Election Rules, particulars of the contesting
candidates are prepared from the particulars supplied
by the candidates under Rule 9 (4) of the Election Rules
a nd therefore, if any contesting candidate does not
di sclose the material particu lars fairly and correctly, like
in the present case by the Respondent, then the
information sent to the voters would be materially
incorrect, wh ich definitely innuences the decision of the
electorate and affect the entire election process . The
Applicant in its rejoinder affidavi t has also re ferred to
some rulings of the Hon 'ble Supreme Court of India.
22. The Applicant filed his written arguments/submissions
dated 10.12.2015 and also evidence by way of affidavit
dated 10.12.2015, wherein he reiterated the
submissions made by him in his application and
rejoinder affidavit. He also filed list of witnesses and
marked the fo llowing documents as exhibi t a longwith
his affidavit of evidence:
13
a) Original copy of the RTJ reply 13.2.20 15 of Bar
Council of Punjab & Haryana alongwith RTI
application dated 2 l.l.20 15
b) Copy of relevant page n umber 63 of SCBA Directory
of the year 20 15
c) Original copies of the ICSI's RTI reply da ted
23.7.20 15 alon gw ith RTI application dated
30.4.20 15
d) Co py of the relevan t pages no.2 &3 of the list of
contesting candida tes and their particulars
prepared by the Returning Officer.
e) Copy of order dated 30. 12.201 1 passed by the
Board of Discipline of the ICS I.
23. The matter was heard on 29.l. 20 16 in the presence of
both the parties . Both the part ies were r epresented by
th eir learned Advocates and reiterated the ir respective
contentions. The parties were given liberty to fil e their
written arguments m a de by them during the course of
argu ment . Both th e Applican t and the Respondent have
filed respective written arguments wherein they
reiterated their respective submissions made In
application/written s tatement and oral arguments
advan ced durin g the course of argumen ts in the matter.
24. The Respondent has, in his written submissions has
stated that while cla u se (1) of the Statement of
j;0
14
Information in terms of Schedule 4 1S mandatory,
Clause (2 ) thereof is optional.
25. The Tribunal has carefully considered the submissions
made by the parties and a lso perused the a pplication,
written statement, written arguments and all the
documents available on record.
26. Rule 9 (4) of the Compa ny Secretaries (Election to the
Council) Rules, 2006, provides that n omination shall
be valid only if it is accompan ied by a s tatement s ign ed
and verified by the candidate con ta ining information
as provided in Schedule 4. Sch edule 4 of the Election
Rules prescribes the information which is to be
contained in the s ta tement of contesting candidate
accompanying the nomination form in compliance of
Rule 9 (4) of the Election Ru les . Clause (2)(c) of
Schedule 4 of the Election Rule which requires a
candidate to provide particulars of the occupations
reads as under:
"(c) Particulars of Occupation:
(il Employment (designation with name of the present employer)
(ii) Practice (sole proprietor or m partnersh ip including the name of th e firm) ~
I>
15
(iii ) Particu lars of o ther occupation/ engagement, if not covered by (i) & (ii) above."
27. Rule 42 (4)(xii) of the Election Rules prohibits a member
of the lCSl from contravention or misuse of any of the
provisions of these Rules or maki ng any fal se statemen t
knowing it to be fal se or without knowing it to be true
while complying with any of the provi s ions of these
Rules
28. Rule 42 (1) of the Election Rules provides that any
violation of sub-rules (2), (3) and (4) of Rule 42 is liable
to invite punishme nt for bringing disrepute to the
Council of the ICSI under item (2) of Part IV of the First
Schedule of the Company Secretaries Act, 1980.
29. This Tribunal h as been constituted under Section 108
of the Company Secretaries Act, 1980 for a specified
purpose to decide the dispute regarding election of the
Council o f the ICSI held in December, 20 14. This
Tribunal does not have jurisd icti on to entertain any
other dispute other than dispute raised in respect to the
election to the Council held in December, 2014. Hence,
it is beyond th e jurisdiction of th is Tribunal to go into
the allegations of the violation of the provisions of
Advocates Act, 1961, The Companies Act, 1956/2013
h
16
and The Company Secretaries Act, 1980 (on the issues
other than the elect ion) .
30. From the above, following issues arise for adjudication:
(1) Whether the Respondent was enrolled as an
Advocate on the date he filed his nomination
papers for election to the Cou ncil of the Institute
from Northern India Regional Constituency.
(2) Whether the Respondent was mandatorily
required to give the details of his "other
occupation / engagement" as an Advocate in reply
to Clause 2 (c) of the statement accompanying the
nomination form in terms of Sub-Rule (4) of Rule
9 of the Election Rules 2006.
(3) Whether non-declaration of the information by
the Respondent about his occupation as a
Practicing Advocate made him ineligible to
co ntest the election on account of concealment of
material fact or misstatement in his nomination
for m for election to the Council in the election
held in December, 2014.
(4) Whether the election of the Respondent to the
ICSI Council in the election h eld in December,
20 14 is not valid, and
17
15) Relief, if any.
31. ISSUE NO, (1):
(1 )Whether the Respondent was enrolled as an Advocate on the date he filed his nomination pape rs for election to the Council of the Institute from Northern India Regional Constituency.
31 .1 As per copy of SCBA Directory filed along with the
Appli cation , the name of the Respondent continued to
exis t in the SCBA Directory of the year 2015 also.
31.2 The Respondent has not placed on record a copy of hi s
letter dated 7·h July, 2011, stated to have been written
to the Supreme Court Bar Association to substantiate
his claim that he h a d m ade request to Supreme Court
Bar Association for deletion of hi s name. The
membership of Supreme Court Bar Association, or for
that matter, of any Bar Association, is not a pre
requi s ite [or carrying on the practice as an Advocate.
On other hand enrollme nt with the Bar Council as a n
Advocate is a mandatory requirement for carrying on
the practice as an Advocate. In terms of Rules of the
Bar Council of India , the surrender of Enrolment
Certification 18 an essentiaJ requirement [or
suspensiOn or cancellation of the Enrolment. The
Respondent h as also not placed on record a copy of
letter dated 5·h August, 1997, stated to have been
18
written by him to Bar Council of Punjab & Haryana
requesting it to keep his registration in abeyance. As
per the records of the Bar Council of Punjab &
Haryana . the Responden t never surrendered his
Enrolment Certificate and his enrolment as a
Practic ing Advocate is still alive.
31. 3 Section 2 (a) of Advocates Act, 1961 , defines an
"advocate" to mean an advocate en tered In any roll
under the Act. Section 2(i) of the Advocates Act defines
the "legal Practitioner" as "an advocate, or vakil of any
High Court , a pleader, a mukhtar or revenue agent."
Section 29 of the Act provides that Advocates shall be
the on ly recognized class of person s entitled to practise
law. Section 30 of the Act states that subject to
provlslons of this Act, every advocate whose name is
ente red in the State ro ll s hall be entitled as of right to
practise throughout the territories to which this Act
extends,
(i) in all courts including th e Supreme Court;
(ii) before any tribunal or person legally a uthori ze to take evidence; and
(iii) before any other authority or person before whom such advocate is by o r under any law for the time being in force entitled to practise
19
31.4 Since th e enrollment of the Responden t as an Advocate
with th e Bar Cou n cil of Punjab & Haryana is s till alive ,
there is no doubt that he is an Advocate and can
practice law in te rm s of the provisions of Advocates
Act. It is, therefore, held that the Respondent was
enrolled as an Advocate with the Bar Council of Punjab
& Haryan a at the time of his filing nomination as a
candidate for election to the Council of the Institute in
the election h eld in December, 2014.
32. ISSUE NO.2
(2)Whether the Respondent was mandatorily required to gIve the details of his "other occupation/engagement" as a n Advocate in reply to Clause 2 (c) of the stateme nt accompanying th e nomination form in term s of Sub·Rule (4) of Rule 9 of the Election Rules 2006.
32.1 Rule 9 (4) of th e Election Rules provides that the
nomination of th e candidate shall be valid only if it
is accompanied by a s tatement signed and verified
by the candidate containing information as provided
in Schedule 4 of the Rul es. Schedule 4 of the Rules
prescribes the information which is required to be
included 111 the s ta tement accom pany111g th e
nomination. Clause (1) of the Sch edule states that
the nomination of a candida te s h all be accompanied
by a statement signed and verified by the candidate
20
containing the information mentioned in Sub
Clause (a) to (j) of the said Clause. Clause 2 of the
Sch edule 4 states that the statement referred to in
Clause 1 may also con tain, at the option of the
candidate, information concerning the candidate in
,·espect of the matters mentioned in Sub-Clauses (a)
to (d) thereof. Sub-Clause (c) of Clause 2 requires
the candidate to give the particulars of occupations
i.e . (J) employment (designation with name of the
present employer); (ii) Practice (Sole proprietor or in
partnership including the name of the firm); and (iii)
Particulars of other occupat ion /engagement, if not
covered by (i) and (ii) above. In terms of the Sub
Cla u se (c) of Clause 2 a candidate is required to give
the Part icula rs of h is Occupations. Against Clause
2(i) the Respondent furni shed the details of his
employment as Wholetime Company Secretary to
Panason ic AVC Networks India Company Ltd .
32.2 The Applicant has alleged that the Respondent
deliberately and wilfully concealed the material fact
about hi s other occupation of being a Practising
Advocate. The Respondent has rebutted this
allegation and has, in hi s defence , stated that at the
time of filing his nomination he was not pursuing
any profession other than being the Company
Secretary and Director, Finance m Panasonic AVC
21
Network India Company Ltd. and obviously the
information with regard to th e particulars of other
occupation was not applicable and hen ce he had
correctly written "not applicable" against the
relevant clause in the said statement. He further
submitted that the particu lars of occupation as
Company Secretary and Director, Finance m
Panasonic AVC Network India Company Ltd ., have
been mentioned correctly as he is not engaged U1
any other occupation and the verification signed m
terms of Rule 9 (4) of the Election Rules was correct
and true to the best of hi s knowledge and belief and
no false statement or mi s represen tation as alleged
has been made by him. As there is mention of the
word 'may' in Clause (2) in contradistin ction to the
word 'shall' in Clause (1) of the Schedule 4, the
particulars to be given against clause (2) of the
Statement under Rule 9(4) of the Rules is optional,
the Respondent could have opted not to give the
information against any of the Sub-Clauses (a) to (d)
of Clause 2. However, he has voluntarily chosen to
give information.
32,3 The substantive defence of the Respondent is that
he never practiced as an Advocate and, therefore, it
was not his occupation and accordingly the same
was not mentioned in the statement. Having regard
22
to the fact that th e Applican t has not placed on
record any document to show that the Respondent
was actually in practice as an Advocate even though
his name was on th e ro lls of the Bar Council. Thus,
his conten tion cannot be accepted and the benefit is
to be given to th e Res pondent. This Issue IS
answered accordingly, and , therefore , h e was not
manda torily required to give the details in addition
to his full time employment as whole time Company
Secretary of Pa n asonic AVC Networks India
Company Ltd .
33. ISSUE NO.3
(3) Whether non-declaration of the information by the Respondent about hi s occu pation as a Practicing Advocate ma de him ineligible to contest the election on account of concealment or material fact or misstatement in his nomination form for election to the Council in the election held in December, 201 4 .
33.1 Rule 42 of the Election Rules provides for action
against a Member in connection with the conduct of
elect ion if h e is found guilty of any act of omission or
commission as provided in Sub-Rules (1) to (4) of Rule
42. It, therefore, follows that if a candidate is found
guilty of any of misconduct mentioned in Rule 42 he
has to be proceeded against in terms of Section 22 of
the Company Secretaries Act, 1980 read with First and
23
Second Sch edu le thereof and the Company Secretaries
(Procedure of In vestigation s of Professiona l and Oth er
Misconduct and Condu ct of Cases) Ru les, 2007. The
Elec tion Rules do not provide for setting aside for
election on any of the ground mention ed in Rule 42 of
the Rules.
33.2 The Representation of the People Act, 1950, specifically
provides for the grounds on which the election can be
declared void (Section i OO) and the grounds for which
a candidate. other than the returned candidate, may
be declared to h ave been elected (Section 10 i) . There
are no equ ivalent prov IsIOns In the Company
Secretaries Act, 1980 a n d the Company Secretaries
(Election to the Council) Rules, 2006. The Application
filed by the Applicant h as to be adjudicated in terms of
provisions of th e Company Secretaries Act, 1980 and
the Company Secretaries (Election to the Council)
Rules, 2006. In view of the above discLlssion th e
aforesaid issue is decided against the Applicant and in
fa vour of the Respondent.
34. ISSUE NO.4
(4) Whether the election of th e Respondent to the ICSI Council in the election held in December. 20i4 is not va.lid.
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34.1 The Applicant had prayed that the election of the
Respondent as a Member of Cou ncil of the Ins titute in
th e election held in December , 2014 be declared void
ab-initio; and the Ap plicant should be declared to
have been elected in the election to the Council held in
December, 2014.
34.2 Though th e Respondent was enrolled as an Advocate
with the Bar Council of Punjab & Haryana he did not
actively engage h imself in this profession . The
a llegation that the Respon dent made a false
declaration in the statement under Rule 9 (4) of the
Rules has not been found established. Thus, this
issue is decided against the Applicant and in favour of
the Respondent.
35. ISSUE NO.5
(5) Relie f, jf any.
35.1 The Applican t's main al legation is that the Respondent
contested the election based on false information and
s ign ing of verification knowing it to be false and thus
fraudulently won the election to the Counc il of the
Ins ti tute in the election he ld in December, 2014. We
h ave ta ken the view that wh ile the Responden twas
enro ll ed as an Advocate with the Bar Council of Punjab
A'0 25
•
& Haryana, the Applicant co uld no t establish that the
Respondent was in active practice as an Advocate .
Therefore, in the declaration in the statement under
Rule 9 (4) of the Rules, th ere was , therefore, n o
con cealment of material fac t.
35.2 The Applicant also alleged tha t the Respondent was a
Practicing Advocate wh ile holding whole time
employment in viola tion of the Advocates Act and the
Rules made there unde r and that by engaging in two
occupations i.e. Practicin g Advocate and Company
Secre tary, the Respon dent has violated the p rovi sion s
of the Company Secretaries Act , 1980 and the Rules
m a de th ere unde r .
35 .3 It has also been al leged that the Respond ent is guilty
of serious misconduct in tenus of the provision s of
First and Second Schedule of the Company Secretaries
Act, 1980 . The Respondent is also alleged to have
contested th e electi on to the Northern India Regional
Cons titue ncy in t he year 2006 and 20 10 without
d isclosing the mater ia l facts abou t his s imultaneously
being engaged in two occupation s. In our view, for
these allegation s the remedy lies el sewh ere and this
Tribunal has no jurisdiction.
26
'. , "
35.4 In the con spectu s of facts and circumstances, we are
of the view that the Applicant has not been able to
make out any case against the Respondent and the
Application deserves to be dismissed. Accordingly, this
Application is dismissed. No Order as to costs.
".)<..~ ~. (A.K Chaturvedil (R. Asokan) Member Member
~ (D . Bhardwaj) Presiding Officer
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