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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