BEFORE THE ELECTION TRJBUNAL, NEW DELHI No. 4-2015 - CS...BEFORE THE ELECTION TRJBUNAL, NEW DELHI ... Advisories and the Directi ves and ... aforesaid provisions, the two emails

BEFORE THE ELECTION TRJBUNAL NEW DELHI [ESTABLISHED US lOB OF THE COMPANY SECRETARlES ACT 1980]

APPLICATION NO 412015

IN THE MATTER OF

CS Sanjay Kumar Gupta

VS

Applicant (In person)

CS Mamta Binani Respondent

(Represented by Shyi Pradeep Kumar Miffal Advocate Shj Pra veen K Mittal AdvocOIe

Shri Govind Kumar Advocate Shri Manish Singh Advocate)

30032016

ORDER

I This Application dated 22012015 has been filed by CS Sanjay

Kumar Gupta the Applicant herein under Section 10(A) of the

Company Secretaries Act 1980 (the Act) raising a dispute

regarding the election of CS Mamta Binani the Respondent as a

Member of the Central Council of the Institute of Company

Secretaries of India (the ICSI) from the Eastern India Regional

Constituency of the ICS] in the Central Councils Election of the ICSI

held in December 2014

2 The Applicant stated that he was a candidate for the Election to the

Counci l of the ICSt from the Eastern India Regional Council

Cortstituency held Ort 12122014 The Applicant submitted that he

1 A

lost lhe contest due to unfair practices adopted by the other

bull candidates including th e Respondent vvh o VOll the election

The Applicant a lleged that the re were numerous of instances of

violations of (a) The Company Secretaries (Ejection to the Council )

Rule 2006 (the Rules ) (b) Code or Conduct of Elect ions (c)

Direc ti ves issued from lim e to tim e by Returning Officerhis office

(d) Advisories issued h om time to time by RelUrning O fficerhis

oftice and (c) other communications hy the Retuming Officerhis

oHi ce

4 The Applicant further a ll eged that the Returning Offilter in his

communication dated 10112014 sent to atl the contesting

candidates Advisory -II dated 13 102014 and Direc ti ve shy III dated

271 12014 had observed th e violation o f Elecliun Code of Conduct

Advi sories and Directives hy some orthc candidales

5 The Applicant fUJ1her alleged that in her manifesto the Respondent

used at number or p laces the photographs or (he programmes

attended and addressed by he r which nlso includes the display of

logo of the TeSt ill violation o f Electi on Rules Election Code of

Conduct Adviso ries and Direc ti ves issued by the RelUming Orticer

The Applicant furth er lt)llcged Ihm the Respondent issued more than

one manifestocircular in vio lation and disregard to the Rules

Elec tion Code Advisories and the Directi ves and (l lso deliberately

suppressed this fact hy not sending the additional manifesto Icircular

to the Returning Ofti cer

2

6 The Applicclnt furth er alleged that the Respondent did not conlply

w ilh rhe advice g iven by tht Returning Officer daled 10 J J 2014 by

not purging photographs of the programmes 3uendcd and being

addressed by her whic h included the display or logo of the rcsi

7 The Respondent in her Written Statement dated 04-11-2015 denied

the a llegat ions o f the Appliclt)m and submitted thal these were

baseless vexatious and the app lica tion has been filed to harass and

malign her image She vehemently denied that the A pplicant lost the

contest due to unfair practices adopted by her The Respondent

denied that she had violated any provision of Election Rules

E lection Code of Conducts Directives Adviso ries and other

communication issued hy he Returning Offic er or his office witb

regard 10 Election

x T he Responden t admitted that the impugned election manifes to

containing the pholOgraph(s) logo of lCSI pe11aining to

eventsp rograms organised by the lCSIRegional Counc ilsChap ters

was isslIed on 31 -1 0-2014 through email

9 The Respondent fur th er submitted that Advisory-I II dated 3 1-10shy

p 2014 was not rece ived by her as the same was not c inulated by the

ICS[ to the candidate at all She further submitted that Directive - r

and Dircctjve II were issued by Re turn ing O ffi cer and Ch ief

EXccuLive amp Officiating Secretary s On-i ce (Mr Sutanu Sinha) all

07 1120 14 -herein dir(cl ions were given 10 nor publishpro pagate

by whatever means it may be logo of Lhe rCSl and hisher

photograph(s) perta ining to any events progrdms organized by the

JnsriluteKegion al Counei IChaptcrs She further submHted that

3 CA ~ b

restriction on use of pholograph(s)l logo was communicated by th e (CS I for the very fi rs l lime on 071120 14 by way of Directive middot 1

and Directive - II nnd that prior to 07112014 no email was sent by

rhl ICSJlrccciv(d by the Respondent restricting such inclusion in

manifesto

10 The Respondent further suhmiued thai she came to know about the

alresaid Directives al aboul 930 PM on 7112014 She had

ulreildy released the election manifesto on 3110 2014 much prior to

Directive - 1 and Direc(ive - II She issued the impug~ed Manifesto

on 31102014 aner proper deliberation and as per the law wh ich W(IS

then in rorce and ex istent on (hal day and that the manifesto was sent

through ern ail in different lots and all emails were Se nt well betore

07112014

11 The Respondent furlh er subm itted lhal on Ihe very sa me day of

receipi 01Direel ive - I and Direct ive - II ie 07 1120 14 she herself

scnt an emai l (at 1012 PM) 10 Ihe Relurning Oll1ce and Chief

Execulive amp Officialing Secrelaris OHlec Ms Meenakshi Gupta

Mr TR Manik Orricers of til e ICS I intimating about the issuance

of impugned manifesto on 31102014 and that she herself assured to

comply with the additional requirement forthwith (lnd Ihal if at all

Ihe elecli on manitltsto is c ircu lated again pOSI 07112014 due

ltomp liance of said Directive shall be ensured and shall send her first

mani festo and amended maniiesto (if any) tor the record orthe rcsT

12 The Respondent further subm itted th at if the allegations of lhe

Applican( are true the same would have been noted by th e Relurning

4

o[ticer on 071 12014 andiar 131 120 14 (da te 0 f original receipt of

manifes to by the Reluming Officer) or even at the later date llnd

orfice o f the Return ing O ffi cer would have taken appropriate ac tion

aga inst he r

13 The Respondent deni ed that she bas issued more than one

maniresloCircutar The R~spondent fu rther submitted that on and

Io rn the ecerp of Di reei vcs datcd 7 1120 14 he election

manifesto neither as ever repeated Ire-circu lated nor was it ever

amended for fresh circul ation The mode of sending the impugned

manifesto vas only thrOllgh emails and 110 repeat circulation or tiesh

circulat ion was made by any olher mode even

14 The Respondent furth er subm itted that in th e communication given

by ICS I vide email da led I0l l 20 14 nowhere d irection has been

gi ven for mandatorily re~circ ul aling the already issued mani festoes)

by purging Ihc photo(s) The Respondent further suhrn illed that if

election manifesto was modified in any manner il could be deemed

as new mani tes [() tantamounl ing to non compli ance of the Election

Code of Conduct as well of the Rules The Respondent fUithe r

submitted that impugned man i festu was issued as per guidelines middotand

direc tion encapsulated under Rule 42(3) of the Election Rules

IS The Responden t further suhmit ted that plead ing made in the

App lication cannot be relied upon be ing devoid of verificat ion or

affi nnation of the lac ts or affidnv il declar ing the contents of the

same to be t(ue and conmiddoteet The Respondent also doubted the

5

credibility of the annexures fi led by the Appl icant along wi th hi s

appl ication

16 The Respondent rUlther submitted thut present proleeding is sheer

abuse of right ava ilah le uls I oI o f the Act and out of the App li cant s

sheer tilIs tration ltIS the Applicant was anle lo score only 198 fi rst

preference votes in cOInparison 10 the Respondents amp44 first

preference voles

17 Sine the Election vas conducted by the ICSt in order (0 ascertain

Iht true and correct lactual posit ion of the mCltler the ICS I was

req uested to provide its (omments to the applica tion The ICSI jn ils

commen ts dated 16 1120 15 stated that in the Mani fes to rimed

3 I I 020 14 Ii lcd hy CS Mamta Bi nan i w ith the Retuming Offi cer it

was seen that she had pub lished the photographs o f the programmes

of lCSI attended and being addressed by her and in some of the

pho tographs t ile logo of lCS I was also d isplayed T he l CSI fllrther

submitled that restrict ions on the d isp lay or logo was imposed on the

lirst time th rough ADV ISO RY- III daLed 3 11 020 14 which was

posted on th e ICS1s webs ite but through in advertence the same

was 110t e111a ied to the cnndidates and subsequently the same was

repeated in 0 1 RECTIVE- f which was di splayed on the website and

also sent th rough email to the candidates on 071 12014

18 The ICS fll rlh er submitted that the Returning Officer did not receive

frum lilt Respondent any other Manifesto other than the one issued

by her 011 311020 14 The l CSl contended that the Applicant has

also not p laced on record u copy o f the second ManifestoCircular

6

alleged to have been issued by the Resrondent The rCS) further

contended Ihat the Applicant had also not placed on record any

dOCUll1entsevidcnce to substantiate his allegations that the

Respondent has not complied with the advice given under the

communication orthe Returning Officer dated JO lh November 20 14

19 The Applicant in his rejoinder dated 231120)5 repeated and

re i~ratcd his allegations m(ldc in the application and denied Lhe

subm issions made by the Respondent in her wri tten statement The

Applicant vide letter dated J O 2201 5 along with supporting

nffidavit submiued addilional documellls Ie emails dated

31 102014 and 01 12014 alleged to havc been sent by the

Respondent to three di fferent vOlers

020 The malter was heard on 040120 16 in the presence of both the

parties The Aprli cant appeared in person whereas the Respondent

appeared through her advoca tes The Parties reiterated their

respective content ions

2 1 The Applicant argued that as per Rule 42(2) and Rule 42(3)(f) of the

Election Rules a candidates can issue only one manifest or circular

ho-vever candidate may repeat such maoifest or ci rcular in any form

without changing its contents He also argued that as per Clause

4(xxi) or EJection Code of Conduct manifesto or ci rcular may be

rcreated in any toml including SMS without changing th e contents

thereof any manner and that in ltIlly other communicat ion in re lation

to the election issued by the candidate in electronic roml or

otherwise shlJl he d~ctncd to bc second manifesto or circular and

7

bull

will he in contravention orthe Electi on Rules -Ie vehemently argued

that as per combined reading or aforesa id provisions the two emails

both dated 3 1102014 and another email 011 12014 of the

Respondent vide which she sent her manifesto dated 3 11020 14 to

three different voters are deemed to be second circular as al these

cmails are e1cctronilt communications by the Respondents and are in

contravention of lhe Rule 42 or the Election Rules He emphas ized

thal al the cmails are difJerent as much these contain different name

diffe rent po lling booth no e tc and submitted that even the covering

lener sent by email is a communication and as per Elect ion Rules

and Code of Conducts rhese shall be deemed different circular

manifesto

22 The Applicant placed the reliance on thlt admiss ion made by the

Respondent jn her wrillen argument that impugned election

manifesto containing the photograph(s)Iogo of rcsr pertaini ng to

eventsprogram$ organised by the I CSTRegional CouncilsChapters

was issued on 3 I 102014 through em a i I He submits that the

Respondent ought to have complied with the Advisory -Ill dated

31102014 whi ch had been posted on the ICSs website on

31 1020 14 ilsclr The Advisory-Ill dated 3 1- t0-20 14 had come in to

force on 31102014 on posting of the same on lCSIs websi te and

the Respondent cannot take advan tage of non-rece ipt of the same He

furLher ltI rgucd that ignorance of law is no excuse and the Respondent

has lI sed the logo and photographs of (he ICSt in her manifesto in

violation of ~lcction Rules E lection Code of Conduct Advisories

and Directives issued by the Returning Officer

8

23 Mr P K Millal advoca te for the Respondent rei terated the

contentions ra ised in the written statement and argutd that it is

nobodv ca~e that the Responden t has issued any manifesto after

07 1 120 14 when all the candidates were nlHde aware o r Directi ve ]

sent through ema il by the Relurn ing O ffi cer He argued that the

Respondent canno t bemiddot said to have vi olated the Advisory dated

3 I I 020 I 4 in which candidate were restricted Iiom publishing

exhibit ing his her photograph pertaining 10 any event p rogra mme

orgmized by the ICSI as the JCS I itscll has adm itted in its comments

to the application that this Advisory waS never communicated to any

of the contesting candidate including the Respondent The learned

Advocate vebemently argued that the alleged emai ls dated

3 11020 14 and 01) 1201 4 cannOl be termed as second manih~slo as

sel id emails are ma inly covering letters vide wh ich Election

Manifesto were sent by the Respondent and there is no appeal or

request Co r vote in the sa id emails He further argued that the

observation of the rewming officer in his Adv isory Direclives

regarding (he v iolation orCode of Conduc() Advisory and Directives

by the some of the candidates does not mention the name or any

cand idate hence the S(lme cannot be const rued against the

Respondent in any manner

24 The learned advoc(lte fu rther argued rhell th e Applicant has not

placed any documen U evidence show ing that the Respondent has not

complied with Di rect ives AdvisOlY issued by re tuming onicer on

07 1 120 14 or therea fter The learned ad vocate rely and emphasized

upon the o rde r dated 14 220 14 passed by the Appellate Authority of

tbe leST const ituted for the purpose of disputed matte r wherein

9 A~

shy Arpe llate Authority held that the Appellant (in the said appeal)

cannot bt penali zed 101 the us ing o f logo o f the ICSl in the Election

aniresto issued on ) 8 1120 ) 0 and 191120 I0 when the directions

were issued on 29 112010 for the irsl time imposing restriction on

use or logo of the ICSI in the Election manitesto

25 The parties w~re given libeny to nle the ir vrilten arguments made

by them du ri ng the course of argument The Applicant as well as the

Responden have tiled their written arguments Both the parties have

reitermed their submissions The Appl icant also quoted the

provis ions o f Election Rul es and E lection Code of Conducts in his

wr itten argumen ts The Applicant contended that much before the

Adviso ri es and Directive issued by the Reuming Officer there was

a clear cut prohibition for publication or the photographs andor logo

or the ICSI under c lause no4(i) of the Election Code of Conduct

issued On 0992014 and by using the photograph(sJlogo of [CSI

peltaining to eventsprograms organised by the leSI in manifesto

the Respondent has violated the Election Code of Conduct

26 The Tribunal carefully considered the submissions made by the

parties and also gOIl~ through the application Nr ittcn statement

vritten arguments and al1 the documents available on record

27 Rulc 16 of the Election Rules conrerred power upon the returning

ofliccr to issue a Election Code of Conduct to maintain a hea lthy and

peaceful alnlosphcrc during the election profcss tor ensuring a nmiddotee

and fa ir e lection Rule 16 further prov id(S tha I Election Code of

Conduci shall conwin inrelHioll and norms LO be follo wed by the

10

candidate and their authori 7ed represen tati ve Rule 16 makes it

obligatory for each candidate 1O comply with this Election Code of

Conduct

28 Rule 42(4)(viii) of the Rules makes it obligatory to the Members of

the ICSI to comp ly with any or the Directives or Circu lar or

instructions issued by the Returning Officer under Election Rules in

any matter relating to tbe elections Retuming officer in exercjse on

the authority vested him under th is rule had issued Advisory 111 on

3 1-10-2014 The same was repealed in Uirec li ve I issued on 07-11shy

20 14

29 In terms of Rule 42(2) read with Rule 42(3)(1) of the Flection Rules

a candidate can issue only one Manifesto or circular in relation to

elec tion during the period commencing from the date of issue of

fina l list of nomination to candidates

30 Elec tion Code of Conduct under Ru le 16 o f the Elec tion Rules was

issued by the Renmling Ollicc( on 09920 14 Restrictions on use of

pholograph(s)Iogo were imposed fo r the first time by the Returning

Omcer througll ADVISORY- lIl dated 3 1102014 In Advisory III

dared 3 1l020 14 the contest ing candidates were advised by the

Retun ing Officer that they sha li not pick lip any photograph logo of

th e In stituteJimage of the building or the InslituteRegiona l

Coumil slChpoundlp lers from offic i(ll joumal of (he Ins titute or he

News letter IMagazines of Regional Counci lChapters and use the

same In any manne r ADV (SORY- JJ1 dated 3110201 4 was posted

on the leS l s vebsitc but through inadvertence the same was not

II

emailed to the candidates Such restrictions were repeated by the

Retuming Orneer 111 DIRECTl VE- I and

Directive 11 which were displayed on the ICSls website and also

sent through email to the candidates on 071 1 20 14

31 Rule 42 ( I) o f the Elect ion Rules provides Ihal any vio lalion of subshy

rule (2) (3) and (4) of Rule 42 is liable 10 invite punishmenl lor

bringing disrepute to the Council of the leSt under item (2) of Part

I V o f the Firs t Schedu le of the Company Secretaries lIel 1980

32 From the above fo llowing issues appear for the adjud ication

I Whether pleading made in the application can be relied being

devoid or verilkation of aftirmation o f fCltts or affidavit

declaring the Gontcnts of the smnc 10 be true and cOITecL

2 Wherher the Respondent has issued more than one Election

manircs to ill violation of prov isions of Ejection Rules EJection

Code o r Conduct Or any or Advi sories Directives issued by the

Returning Officer

3 Whether th e Respondent has violated the provisions of Election

Rules Election Code or Conduct or any of Advisories

Directives issued by the returning officer In issuing of

manifesto on 31-10-20 14 through email containing the

photograph(s)i logo or leSI pertaining to event i programm e

organized by the leSI)

4 Whelher Ihe Respondent has violated the

AdvisoryCommunicat ion dated 10112014 issued by the

Returning O fticer by not purging photograph(s)Iogo of lCSl

I2

used in her manifesto pertaining to cvenlsJprograms orga nised

hy the ICS

5 Rel ief if any

32 The afores(lid issues are discussed herein in helow shy

321 [SSUpoundNOI

I Whether pleading made io the ltlppl ication can be relied

being devoid of verification of aftirrnation of facts or affidavit

declaring the contents of the same to be true and correct

322 Rule No8( 1) of Ihe Company Secretaries (Election Tribunal)

Rules 2006 made by the Central Government prov ides that in the

di scharge of the funct ions the Tribunal shall he guided by the

principles of natural justice and subject to the other prov ision of

the Act and these Rul es the Tribunal shall regulate its own

r rocedures Hence under these Rules the poer has been conferred

upon the Tribunal to regulat e its own procedure in di sch arge of its

function Only obl igation on the Tribunal is to comply with the

principles o f natural justice and other prov isions of the Company

Secretaries Act 1980 and these Rules in the Company Secretaries

Act 1980 as well as in these Rules there is no such requirement

that the appli cation or pleadings filed before the Tribunal should be

veri fied by th e party or accompanied by a Suppol1ing affidavit to

the effect rhat content of Ihe application or pleadings to be true and

correc t Under these rules libeJt y is granted to the Tribunal to take

the cognizance of the applicmion ra ising the ElecLion dispute

13

though the pleading orsuch app licat ion is not verified or supported

by affidavit Therefore we do not tind any force in the contention

of the Respondent to rejed the tlppl ica tion on this technical ground

w ithout going into the merit orthe casco

323 This issue is thus decided against the Respondent and in favour of

Applicant

324 ISSlJ I NO2

2 Whether the Respondent has issued morc than one Election

111anifesto in violation of provisions of Election Rules EJection

Code of Conduct or any or Adv isories J)irclttives issued by the

Returning Officer

325 Rule 42(2) of the Election Rules prov ides that unly one manifesto

or c ircular shaH be issued by (J candidate in relation to the Election

Rule 42(3)(1) orthe Election Rulcs provides that thc cand idate may

repeat in any form the manifes to or circular without changing its

contents but he shall not issue more than one manifesto or circular

Iknee a clear restriction is imposed on the cand idltes to issue only

one manifes[O or c ircular However candidates are given liberty to

repeat Election manifesto or circular in any form wi thout changing

its content In other words the change in the contents of manifesto

or circular would amount to second manifesto The restrictions

contained in rule 42 (2) and 42(3)(1) were also reiterated by the

Returning Officer in Elect ion Code o r Conduct at clause No(xxi)

issue on 0909 2014 Igt

326 In the light of provisions as discussed as above the contention of

the Applicant that ema ilsdated 31 IG 2014andOll I 2014 vide

14

which the Respondent has forwarded her manitesto to three

different voters amounts to second c ircular has no basis

Admittedly it is not the case of the Jrplicant that the Respondent

has changed the contents of her manifesto Menti oning ofdilTerent

name and different poll ing booth in slIch el11ai ls are very much

obv ious as these emails were addressed 10 th ree difre rent voters

32 7 If thi s content ion of the App licant is acccplcd then all the emailsl

letters or the contesting candidates forvlarding therewith the

Election mani tes to for c ircular would amOLlot to second manifes to

or circular and the middotwme middoti ll result in the vio lat ion of Election rules

by all sLich contesting cand idates This is nor the intention of these

EleClion Ruks The contention of the Appli cant is based upon the

misunderstand ing of election rules Clnd devo id or Clny merit and

hcncc not Cllcepwble

32S llIL1hermore the leS I III its comments spec ifically stated that the

office of the Returning Officer has not received from the

Respondent any other manifesto other than the one issued by her

on 3 11 02014 The Appl icant has never challenged the

submissions of th c leSI Thus the A pplicant has fa iled to prove

th (1 t the Respondent had issued second munifesto

32 9 Thus this issue is decided against the Jppli cant and in favour of

the Respondent

3210 ISSUE NO3

3 Whether the Respondent has violated the proVISiOns of

Election Ru les Election Code of Conduct or any of Adv isories

Directives issued by the relUrning officer 111 ISS lilng or

IS j1 Cl

manifesto on 31-10-2014 through email contain ing the

photograph(s) logo of ICS I pellaining to event programme

organi zed by the ICSI

3211 It is admitted by the Respondent that she used tile photographs

and logo of the [CSI pertaining to the event programme organized

by the tCSt in her Election mani festo whi ch was issued on 31- 10shy

2014 through email 11 is never been the case of the Applicant that

the Respondent after issuing of Direc tive [ and Directive II on

07-1 J -20 14 by the Returning Officer has ever circulated sa id

mani festo or amended changed the content of tbe same Rather

than the App licant contended argued th at the AdvisOlY III was

p issucd on 3101020 14 impos ing res trict ions on the display of

photograph(s) Iogo of ICSI pertaining to event programme

organi zed by the leSl and tha r the Respondent s manifesto was

issued on the ve ry sa me day ie ~10-20 14 in the v iol ation of

AdvisOlY lIl The Respondent contented that she came to kn ow

ahoul the restric tion on use of photograph logo for Ihe very first

time on 071 12014 Volhen she received Direct ive and Directive II

from tile res I and that and (hat sbe has not circulated or sent her

sa id Elect ion l1lani((sto subsequ ent to 0711 20 14

32 J2 The leSTin its com ments specitlcnlly stated that the restricti ons on

the display of logo vas imposed on the tLrst time through Advisory

III dated 3 11020 14 which was pos ted on the ICS Is website but

through in auvertence the same WClS no t cmailed to the candida lts

and subsequen tl y the same was repeated in Directi ve I hich was

di splayed on lhc Wlbs ite and also sen t through ema il to the

cand id ates on 07112014 From the submi ssion of the IC SI it is

established that the res triction on the display of logu of the ICSI

16

bull

pertaining to eVell I programme organi 7ed by the ICSI was first

lime e ffect ively commun icated to the Respondent only 011 07-11shy

2014

32 13 Advisory Iff ~ was issued on 31102014 and Directive I amp 11

prohibiting the use of photographs of eventsprogrammes

organized hy the InstituteRegional CouncilsCharters and logo of

ICS I were issucd by the Return ing Officer on 07 112014 and the

in struct ionsdirections contained therein became effective hom the

dale of Issue as no date was mentioned U1 these

Advisory ID ireCI iyes

3214 D1RECnVE- 1 und Directive - 1I wh ich were displayed on the

TCSIs website and also sent through cnw il to the cand idates on

07 ]12014 and did not have reLrospective effect Since the

MltlIlileslo containing photograph(s) Iogo of ICS pet1(1ining to

eventspro grat11 S~rganisecl by (he ICSI Vas issued by the

Respondent on 311J0 20 14 that is before Lhe date of issue of

DlRECTIVb- J and Directive - JJ on 07 1120 14 there IS no

vio lation of these directive

32 1 6 The contenrionl argument of the ~rpJI~c~t that the Advisory III

elated 3Ll O20 14 had come inLo force on 31 102014 by posting of

the same on ICSls webs ite and the Respondent can not take

advantage of non-receirt of the same as ignorance of law is no

excuse docs not sound good and have no place in legal prosrective

The said Advisory I cannot be given lhe effec t and implications a

law passed or made by lhe competent authuri ty An adviso ry by the

Executive Cilnnot be replaced or substituted vith the law made by

the Legislarures or made by the Exetutives under delegated power

17

The purposes of IllHking [avv and issuing an advisory are enti rely

different and there is no cO ITtlation between a law and an advisory

32 7 The legal posi tion s is that the law making agency for the

compliance of law in true spirit has to ensu re that such law is

known to the person on whom sucb law is havi ng binding force In

the E lect ion Rules and even in the Company Secretaries Act 1980

no spcc ific procedure is prov ided 10 make such Advisories or

Directives known to the candidates rn the ahsence o f s lIch specific

procedure these Advisories or Directives cannot have any binding

force on the cmdidates until the same are communicated to the

candidmes There is a rea)onable probahility that the candidates

may not have noticed the ADVISORY III daled 31102014 In

any case the benefit of doubt goes is in favour of the contesting

candidates

32 J 8 The arguments I contention of (he pplicant that much before the

Ad visories and Directive issued by the Returning Onmiddotjeer there

was a clear cut prOhibition for publicati on of the photographs

andlor logo of Ihe lCSl under clnllse no4(i) of the Ejection Code

of Conduct issued on 0992014 is also 11 0t tenab le Clause 1104(i)

of the Eleclion Code o r Conduc s tat tS The contesting candidates

andlor their althorized representatives shall not use any

inraslructure forum including programmes by middotvhafever name

caled manpower machineyo fadlilies or communicofion

medium - electronic or otherwise of he insillite ifS Regional

Councils and Chapfers in any IIanner whatsoever While Ihere is

no bar jor participalion in an eventprogramme organized by the

Instflule andor ils Regional Councils Chapters as an ordinOlJl

participant however he evenlprogramme shall not be used for

18

bull

pubifiryeectioneering in Clny form whatsoever Th is restriction is

equally applicable 10 any Study Circle meeting by whatever name

called

32 19 C lause oo4( i) o r [he EJec[i on Cocllt of Conduct prohibits the

candidates frol11 ui ing infrflst ruclUfc forum includ ing programmes

1l1 anpover mach inery facililies or comm unicati on medium of the

ICS I and a lso [he eventprogramme of the rcsr for

publicityeleclioneering in any form whatsoever II does no t even

whisper abo ut [he usc of [h e photograpb(s)Iogo of ICSI pertaining

to eventsprograms organ ised by the lCSI by the contesting

cand idate in manifesto which is the subject malter of the case in

hand C lause no4( i) of the Election Code of Conduct does not help

the Respondent in prov ing his case

3220 Hence the AppLicant has not been abJ e to prove that the

Respondent bad v iolated the provis ions or Election Rules Election

Code of Cond uct or any o r Advisories Directives issued by the

returning o ffi cer in issuing of manifesto on 3 110204 through

ema il eonLOining the pho[ograph(s) logo of ICS I pel1nining [ 0

event programme organized by the lCSJ

Thus this issue also decided aga inst the Applicant In favour of

Respondent

322 1 ISSUE NO4

4 Whether the Respond ent has vio lated the

AdvisoryCommunica [ion dated 101120 14 issued by [he

Returning O fficer hy not purging photograph(s)Iogo of ICST used

in her manifesto perta ining to eventsprograms organised by the

ICS T)

19

3222 In his communication dated 101 J 2014 Retuming Officer had

advised the candidales Nho have printed the photograph(s)logo of

reS pertaining to (vcntslprograms organised by (he ICSI in the ir

man ifesto to purge the same from their rnanifestq The Respondent

has specifica ll y submiued (hat after issuing of Directive 1 and

Directive U on 07middot11middot2014 by the Retuming Omcer she never

repeated Ire-cirCllluted said manifesto Or amended changed the

con tent of the Sam ror fresh circulation This submission has not

been contravened or chH lleoged by the Applicant As discussed

above the reSl (lJso in ils comments has stated (hat Returning

O tlicer did nol receive from [he Respondent any other Manifesto

o ther than the one issucd by her on 31 102014

3223 When the alleged manifesto has not been rcpeated re~ circu lated by

the Respondent after the receipt of Directive r and Directive li on

07 112014 she was not req uired to purge the photograph(s)Iogo

of ICSJ used in man ifesto dated ~I020 14 The purpose of said

communica tion daled 10 112014 arrears La eliminate the

photograph(s)Iogo or ICSJ from rhe manirestos which were in

circulati(ln even atler the issuance of Di rective I and Directive fl on

071 120 14 Said communicalion is not applicable on the

Respondent who had already restricted hersel f on 07 11 20 14 from

repeating Ire-circulat ing a lleged maniles lO dated 3 11020 14 This

issue is a lso decided agains t the Aprlicant in favou r of Respondent

33 Keeping in view the facts and circumstances this Tribunal hold

thac none of the allegations made by the App licant against the

Respondent has any merit T l1e Application heing devoid of

20

mer it deserves to be dismissed Accordingly the Application is

di smissed No order as to cost

copy o1 this order be sent to the parties and a lso to the res

)K~

(AK Cbatllrvedi) (R Asokan) Memher Member

~ (D Bhardwaj)

Presiding Officer

21

lost lhe contest due to unfair practices adopted by the other

bull candidates including th e Respondent vvh o VOll the election

The Applicant a lleged that the re were numerous of instances of

violations of (a) The Company Secretaries (Ejection to the Council )

Rule 2006 (the Rules ) (b) Code or Conduct of Elect ions (c)

Direc ti ves issued from lim e to tim e by Returning Officerhis office

(d) Advisories issued h om time to time by RelUrning O fficerhis

oftice and (c) other communications hy the Retuming Officerhis

oHi ce

4 The Applicant further a ll eged that the Returning Offilter in his

communication dated 10112014 sent to atl the contesting

candidates Advisory -II dated 13 102014 and Direc ti ve shy III dated

271 12014 had observed th e violation o f Elecliun Code of Conduct

Advi sories and Directives hy some orthc candidales

5 The Applicant fUJ1her alleged that in her manifesto the Respondent

used at number or p laces the photographs or (he programmes

attended and addressed by he r which nlso includes the display of

logo of the TeSt ill violation o f Electi on Rules Election Code of

Conduct Adviso ries and Direc ti ves issued by the RelUming Orticer

The Applicant furth er lt)llcged Ihm the Respondent issued more than

one manifestocircular in vio lation and disregard to the Rules

Elec tion Code Advisories and the Directi ves and (l lso deliberately

suppressed this fact hy not sending the additional manifesto Icircular

to the Returning Ofti cer

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~ (D Bhardwaj)

Presiding Officer

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Presiding Officer

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~ (D Bhardwaj)

Presiding Officer

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~ (D Bhardwaj)

Presiding Officer

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3210 ISSUE NO3




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322 1 ISSUE NO4





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Presiding Officer

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3210 ISSUE NO3




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bull



2014

























17














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18

bull



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322 1 ISSUE NO4





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19



























20




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~ (D Bhardwaj)

Presiding Officer

21

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5 Rel ief if any


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13






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324 ISSlJ I NO2




Returning Officer
















14






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























16

bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





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19



























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~ (D Bhardwaj)

Presiding Officer

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Returning Officer
















14






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























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bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





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19



























20




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~ (D Bhardwaj)

Presiding Officer

21


























10



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20 14
















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Returning Officer










I2


hy the ICS

5 Rel ief if any


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13






Applicant

324 ISSlJ I NO2




Returning Officer
















14






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























16

bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





ICS T)

19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21



Conduct







20 14
















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Returning Officer










I2


hy the ICS

5 Rel ief if any


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13






Applicant

324 ISSlJ I NO2




Returning Officer
















14






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























16

bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





ICS T)

19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21
















Returning Officer










I2


hy the ICS

5 Rel ief if any


321 [SSUpoundNOI




















13






Applicant

324 ISSlJ I NO2




Returning Officer
















14






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























16

bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





ICS T)

19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21


hy the ICS

5 Rel ief if any


321 [SSUpoundNOI




















13






Applicant

324 ISSlJ I NO2




Returning Officer
















14






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























16

bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





ICS T)

19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21






Applicant

324 ISSlJ I NO2




Returning Officer
















14






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























16

bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





ICS T)

19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21






















the Respondent

3210 ISSUE NO3




IS j1 Cl





























16

bull



2014

























17














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





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19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21





























16

bull



2014

























17














candidates















18

bull



called


















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322 1 ISSUE NO4





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19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21

bull



2014

























17














candidates















18

bull



called


















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322 1 ISSUE NO4





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19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21














candidates















18

bull



called


















Respondent

322 1 ISSUE NO4





ICS T)

19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21

bull



called


















Respondent

322 1 ISSUE NO4





ICS T)

19



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21



























20




)K~


~ (D Bhardwaj)

Presiding Officer

21




)K~


~ (D Bhardwaj)

Presiding Officer

21

Documents

BEFORE THE ELECTION TRJBUNAL, NEW DELHI No. 4-2015 - CS...BEFORE THE ELECTION TRJBUNAL, NEW DELHI ... Advisories and the Directi ves and ... aforesaid provisions, the two emails