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Date of Decision: 13.12.2017
HITENDER KUMAR MEHTA ..... Appellant
Through: Mr. J.K. Mittal and Mr. Rajeev Singh, Advs.
Through: Mr. Jasmeet Singh, CGSC and Mr. Srivats Kaushal, Adv. for UOI.
Mr. R.D. Makheeja, Adv. for R-2.
Mr. Desh Ratan Nigam, Adv. for R-3.
HON'BLE MR. JUSTICE SANJEEV SACHDEVA S. RAVINDRA BHAT, J.(ORAL)
JUDGMENT
1. The appellant claims to be aggrieved by an order of the Single Judge who affirmed the findings of the Election Tribunal established under Section 10B of the Company Secretaries Act,
1980. The grievance articulated in the writ proceeding was that the respondent – a successful candidate for the membership of the Council (Central Council of the Institute) had secured his registration as “Fellow Member” contrary to the regulation and had therefore acted in an arbitrary manner disentitling him to offer candidature. 2017:DHC:7779-DB LPA No.374/2016 Page 2
2. The Tribunal after considering the circumstances concluded that the respondent candidate was undoubtedly registered or enrolled as an Advocate but was not “engaged in that profession”. It is also a matter of record that the appellant’s complaint with respect to professional misconduct is under enquiry and investigation by the Disciplinary Committee of the Institute. In these circumstances, the Tribunal – and subsequently the Single Judge found that since Section 10A provides for disputes settlement with respect to elections held under Section 9(2)(a) and Section 10B, the allegations could not have been investigated and adverse finding rendered without casting aspersions upon the respondent’s conduct which was the subject matter of the disciplinary proceedings.
3. Mr. Mittal, learned counsel submitted that the Single Judge fell into error. It was contended that the Single Judge misinterpreted the provisions in holding that the onus of proving that the elected candidate was, in fact, practising, was upon the complainant. It was submitted that once the Tribunal was made aware that candidate was registered or enrolled as a lawyer, his status as “Fellow Member” was immediately suspect and could not have been given effect to for the purpose of election. It was also submitted that the judgments relied upon were not relevant or germane to the issue. LPA No.374/2016 Page 3
4. Rule 7 of the Company Secretaries (Election to the Council) Rules, 2006, i.e. the governing norm in this case, reads as follows:-
5. A plain reading of the proviso to Rule 7 makes it apparent that the disqualifying conditions are spelt out in clauses (a) to (e). For the purpose of determining whether the candidate fell within any of those conditions so as to confer jurisdiction upon the Tribunal, the enquiry had to necessarily be focused and limited to those five conditions. In the present case, the appellant’s grievance is that the continued treatment or status of the candidate as a “Fellow Member” is not cluttered and consequently he made a fraudulent declaration disentitling his candidature. On this aspect, the Election Tribunal rendered clear findings that the respondent was not engaged in the profession as an Advocate but was merely enrolled. Besides this finding of fact, the Court is cognizant of the circumstance that the issue as to whether the candidate had, in fact, committed misconduct is the subject matter of an enquiry before the competent Tribunal i.e. the Disciplinary Committee. LPA No.374/2016 Page 6 In these circumstances, the findings rendered by the Tribunal and the Single Judge are not erroneous.
6. The appeal is therefore dismissed.
S. RAVINDRA BHAT, J
SANJEEV SACHDEVA, J DECEMBER 13, 2017 kks