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• •
• BEFORE THE ELECTION TRIBUNAL, NEW DELHI
[ESTABLISHED UNDER SECTION lOB Of' THE COMPANY SECRETARIES ACT, 19801
APPLICATION NO. 2/2015
IN THE MATTER OF:
CS K K Singh .....Applicant
(Represented by : Ms. Madhumita Bhattacharjee, Advocate)
VS.
CS Rajiv Bajaj ..... Respondent
(Represented by : Dr. S. Kumar, Advocate)
30.03.2016
ORDER
1. This Application dated 20.01.2015 has been filed by
CS K. K. Singh, the Applicant herein , under Section
lOA 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 'ICSI') from the Northern India
1
,
Regional Constituency of the ICSI in the Elections held
in December, 2014.
2. The Applicant has alleged that the candidature of the
Respondent was on th e basis of mis represen tation of
facts and su bmission of false particulars to the
Institute/Counci l/Returning Officer a bout hi s
occupations in his nomination form for election to the
Central Council. It has been s tated by the Applicant
that as per information available in public domain, the
Respondent h as been simultaneous ly engaged in two
occupations, namely - (i) Advocate in Practice (being a
member of Bar Council of Punjab & Haryana vide
enrolme nt n o. Pj 423/1 996 since 30.3.1996 and an
active m ember of the Supreme Court Ba r Association
(SCBA) since 2005 vide m embers hip no. B-00398 and
(ii) Wh ole- time Company Secretary of a Company
(Panasonic AVC Networks India Co. Ltd .,) since
1.4.1998, particulars whereof h ave been filed with th e
MCA and also avail able in MCA records. The Applicant
has further stated that as per Members Directory ,
20 14 , of SCBA, the Respondent is a an a ctive member
of SCBA since 2005 in terms of Rul e 3(ix) of SCBA
Rules , which defines Resident Member as "a member
residing and practising as an advocate in Delhi or its
s uburbs .»
2
3. The Applicant fu rther submitted that in the Statement
purs uant to SUb-rule (4) of Rule 9 of the Company
Secretaries (Election to the Council) Rules, 2006, read
with Schedule 4 (Annexed to the Nomination Form for
Election to the Council of the Institute of Company
Secretaries of India), the Resp ondent has furnished
particulars knowing th em to be false. It has been
sta ted that in the aforesaid statement, the Respondent
has only dis closed about his employment as Company
Sec retary of Panasonic AVC Networks India Co. Ltd .,
and again st the item requirin g "Particulars of other
Occupation" he has mentioned "Not Applicable"
whereas h e was supposed to mention about his being
practising a dvocate, which is cl early a false statement
and mis -representation of fa cts on the part of the
Respondent.
4. The Applicant further submitted that by dishonestly
mentioning abou t one of th e two professions and
concealing the other, the Respondent has acted
dishonestly and with intent to play with the trust of
the electorate / members of the Institute. It has been
stated that during the election period there was strong
opposition, in section of the electorate) of candidates
who were engaged in a profession other than that of
Company Secretary. Therefore, if the Respondent had
disclosed tru e and correct fac ts, the situation would
have been different. It ha s been alleged by the
k> 3
App lica nt tha t it is clea r case of deliberate attempt on
the part of the Responden t to c hea t the In s titute , the
Council and the Electorate and th e Institute with
u lteri o r m otive. It has been s ta ted that th e unlawful
a ct of the Responden t calls for declaring the
candidature of th e Responden t a s null and void and
th e re by declaring fr es h election s to be held on the
basis of true and correct p ar ti culars .
5 . The App lican t h a s prayed t hat th e u nlawful acts of the
Respondent call for declaring his candidatu re as n u ll
a nd void a nd th e reby declaring fresh electio n to be
h eld on th e basis of true and correct particulars.
6 . The Applicant has also prayed tha t till the d isposal of
h is Application, th e Cou n cil , th e President, and the
Vice- Presiden t should n ot allow the Respond en t on
e thical and moral grounds:
(i) to p articipate any of the
m ee tings/proceed in g of the Council ;
(ii) To be nomina ted on any of the
Committees of th e Institute (least he
s hou ld n o t be m ade a m ember of th e
Board of Discip line or Disciplinary
Comm ittee. )
(iii) To represent the In s ti tute a t an y of the
Committees of th e Govern ment /
a utonomou s bodies/ exte rnal agencie s .
M 4
:
(iv) To have access to any of the documents
and record s to which only a Council
Member can h a ve; or
(v) To temper with any documents or
influen ce any authority or officer to
dis tort th e evide nce , if any.
7. The Respondent in hi s Written Stateme nt dated
7 - 11-2015 submitted th a t th e allegation s of the
Applicant against him are wrong and made on flim sy
an d unfounded grounds and denied the same . He
sUbmitted that the Applicant filed the captioned
a pplication out of frustra tion and a s an a fterthou ght
afte r having los t the election to the CounciL Without
admitting the a llegation of the Applicant , the
Respondent submitted that the Hon 'ble Tribunal is not
the appropriate forum to deal the allega tion of h aving
been engaged s imultaneously m the occupation
of "Advocate in p ractice".
8. The Respond ent fu rther submitted th a t he has not
concealed any information and con tested the election
in a fair and transparent manner and information
furnished by him was true to the best of his knowledge
and belief. He further submitted that he had
surrendered th e membership of th e Bar Council of
Punja b & Haryana and Supreme Court Bar Association
M 5
, Jong back and on the date of the fiJing of the
nomination for the election to the CounciJ of the ICSJ ,
he was not a member of the Bar Council of Punjab &
Haryana and Supreme Court Bar Association. He
furth er submitted that h e is a law graduate but he
never practiced as an advocate during his entire career
and till date an d membership of the Bar
Council / Association was taken on the advice of the
employer for providing support to employer's litigation.
He further su bmitted that he had made the request to
the Supreme Court Bar Association vide le tte r dated
7 .7.2011 which were duly received and acknowledged
by the SCBA on 9.7.2011 for striking off his name. He
further submitted that h e has not paid any fees to the
SCBA after the year 2011 and had all the reasons to
believe that his name struck off as the annual payment
of fee was never paid since 2011.
9. The Responden t has stated that he has never been an
advocate in practice and that he was never engaged in
the occupation as an advocate. He further submitted
that the generally a ccepted defini tion of practice of law
is "the practice of law involves giving Jegal advice to th e
clients, drafting legal documen ts for clients , and
representing clie nts in legal nego tiation s and court
proceed ings such a s lawsuit , and is applied to
professional servICes of a la wyer or attorney at law,
barrister, solicitor, or civil law notary". The
6
:
Responden t submitted that h e has never provided any
legal services to any client and never appeared in any
court in the en tire cou ntry and never raised any
invoice and received any payments for a ppearing as an
advocate.
10. The Respondent submitted that there was no
m isstatement in the "statement p ursuant to sub-rule
(4) of Rule 9 read with Schedule 4 of the Election
Rules" filed by him along with his n omination form
and he h ad not con cealed any facts In the said
statement. He submitted that s1t1 ce he was not
practising as an Advocate, the question of mentioning
a s such in the said statement did not arise and
th erefore he correctly m entioned his emp loyment
particu lars as wh ole time Company Secretary with
Panasonic AVC Network India Company Ltd.
11. The Respondent further submitted that h e was not
pu rsuIng any profession other than being the
Company Secretary and Director, Finance In
Panasonic Ave Network India Company Ltd. and
obviou s ly the information with regard to the
particulars of other occupatio n was not applicable and
h ence h e correctly wrote "not applicable" against the
re levant column in the said statemen t. He further
s u bmitted that the particulars of occupation as
Company Secretary and Director, Finance In
1">V-v ex..
7
,
Panasonic AVC Network India Company Ltd. , were
mentioned correctly as he was not engaged in any
other occupation and the verifi cation signed in terms
of RuLe 9 (4) of the Election RuLes was correct and true
to th e best of his knowledge and belief and no false
s tatement or m is representati on as alleged had been
made by him.
12 . The Respondent submitted that th e electorates are
composed of hard core professionals namely Company
Secretaries, Chartered Accountants, Cost Accountants,
lAS/IPS , other members of the Institute occupying
prestigious positions In the corporate world and
Government and they have voted for the Respondent
after looking into his credentials and contributions to
the profession . He further submitted that electorates
are well educated and cannot be carried away.
13. The Appli cant 111 his rejoinder affidavit dated
24.11 .2015 denied the avermen ts made by the
Respondent in his written s tatemen t and submitted
th a t the contents of the Respondent in his written
statement cannot be taken on records as the same
were not verified by the Respondent. He furth er
submitted that such veri fi cation IS mandatory
requirement in any proceedings which is guided by the
Code of Civ il Procedure .
8
14 . The Applicant, after h aving d rawn atten tion to the
relevant rule s of the Bar Coun cil of Ind ia Rules, alleged
that the Respondent h ad miserably fa il ed to prove that
he surrendered his enrolment certificate to the Bar
Council of Punjab & Haryana and cance lled his
membership of the Supreme Court Bar Association
where he had been enrolled as Advocate , apart from
being in violation of th e Bar Council Rules which is
also very unethical , illegal and speaks volumes of his
maladies.
15. The Applicant furth er a lleged that the Respondent h ad
acted illegal ly In taking the e mpl oyme nt and
members hi p of Bar Cou nc il at the same time thereby
keeping both Au thorities (I CSI & BCI) in dark and he
also misrepresen ted to the electorate and ICSI thereby
hiding th e proper and due information which is
required to be given as per the Company Secretaries
(Election to the Co un cil) Rules , 2006, to have free and
fair election and to exercise fair franchise by the
members while voting for the Respondent.
16. The Applicant has fu rther stated that the Respondent
fai led to prove that why he had not followed the
manda te of Bar Council of Ind ia Rules and by
delibera tely con ceal in g this fact , he committed breach
of trust to the electorate. He furth er al leged tha t the
Respondent was misrepresenting before the Hon 'ble
/:l 9
Tribunal that h e h ad su rrendered h is certificate
/enrolment as Advocate just by sending a simple letter
again without following the rules and procedure of
surrender.
17. The Applicant further sUbmitted that in reply to the
RTI application filed by one another complainant Mr.
Hitender Mehta to the Bar Council of Punjab &.
Haryana, it had come on record tha t the Respondent
had not su rrendered his enrolment certificate with the
Bar Council of Punj ab &. Haryana in gross violation of
the requirement of Bar Council Rules and his name
con tinued on the rolls of Practicing Advocates and that
the SCBA Members' Directory of 2015 also bears his
narne as an active mem ber of the Bar Association.
18. The Applicant further alleged that in response to
further RTI appl ication filed by Mr. Hitender Mehta, it
had come on record that while malcing application to
the lCSr for the issue/restoration of Certificate of
Practice, the Respondent has made a categorical
declaration in form D dated 26.8.1997 that he was not
engaged in any other profession and not enrolled as
Advocate, based on which h e has obtained the
certificate of practice from lCSI in 1997.
19. The Applicant further alleged that while applying for
FCS from rcsr, the Respondent had again not
A> 10
disclosed about the fa ct of his being an Advocate and
gave wrong declaration, though h e had mentioned
about his being the office bea rer in Chandigarh
Ch a pter in his experience certificate dated 30 .8.1999.
Otherwise, even at that stage if he wou ld h ave declared
and discl osed the facts about hi s enrolment as a n
Advocate, he would no t have bee n granted PCS status
from ICSl, which is one of the prime conditions for
con testi ng the Council Election , i.e ., candidate should
be FCS.
20. Since th e Election was condu cted by the ICSI, in orde r
to ascertain the t rue and correct factual position of the
ma tter, the ICSI was requested to provide its
comments to the ap plication. The rCSI in its comments
d a ted 16. 11.2015 submitted th at in th e record s of the
TCST including the application s ubmitted for issue of
Certificate of Practice pertainin g to Respondent, it was
sta ted in Porm D that h e is not enrolled as an
Advocate and there is no information that h e is a
member of SCBA. The lCSI further submitted that in
column 1 (c) (i) "Employment (designation with name of
present employer)" of the nomination form, the
Respondent has stated as ' Panasonic AVC Networks
India Company Ltd. , Company Secretary & Associate
Director-Pin an ce." The IeSI referred to Rule 7 of the
Election Rules and sta ted that in the Election Rules,
there is no restriction and proh ibition on the members
11
of the ICSI to be members of any State Bar Councilor
the Bar Association, to contest any election of the ICSI
including the election for the Regional Councils.
Copies of the comments of ICS! were g iven to the
Applicant, as well as th e Respondent, for their
information . However, in his rejoinder, the Applicant
s tated that in its comments, the ICSI had not
commented on the p oints when ICS! m ember is taking
COP and FCS on wron g declaration and
misrepresentation in its application form , what should
be the stand of ICS!. The Respondent has not made
any comment on the fa ctual position stated by ICS!.
2 1. The matter was heard on 29.1.2016 in the presence of
both th e parties. Both the parties were represented by
th eir learned Advocates and both of them reiterated
th eir r espective contentions . The paJ·ties were gIven
liberty to file their written argumen ts made by them
during the course of argument. The Applicant as well
as the Respondent have filed their respective written
arguments. Both the parties in their respective written
arguments reiterated their submissions made In
a pplication / written s ta teme nt and oral arguments
advanced during the course of hearing in the m atter.
The Applicant in his written arguments has also
referred to some ru lings of the Hon'ble Supreme Court
of India and other Courts/ Forum in support of pu rity
of election s. The Respondent in his written argument
12
has for first time stated that h e, vide his le tter dated
05.08.1997 duly received by the Bar Council Punjab &
Haryana, had requested the Bar Council to hold his
registration in abeyance. He has) however, not placed
on record a copy of the aforesaid letter dated
05.08.1997 . The same is objected to by the Applicant
vide his objections dated 15 022016,&
22. The Tribu n al has carefully con sidered the submissions
made by the parties and also gone th rough the
application , written s tatement, written argu ments and
all the documents avai lable on record . The
Respondent has, in h is written s ubmissions, made a
new point that while clause (1) of the Statement of
Information in terms of Schedule 4 is mandatory,
Clause (2) th ereof is optional. This point was not
taken by the Respondent in his Written Statement or
during the course of argu ments. Ordinarily, a new
point whi ch was not made in the pleadings or during
the course of argument can n ot be taken cognizance
of, if the same is taken in Written Submission, which
normally is a brief record of the arguments made
during the cou rse of hearing, but since this new point
ra ises a legal issu e, the same has been taken into
cons ideration in the inte rest of justice.
23. Rule 9 (4) of the Company Secretaries (Election to the
Coun cil) Rules, 2006, provides that nomina tion shall
be valid only if it is accompanied by a statement signed
M 13
and verified by the candidate containing informa tion
as provided in Schedule 4. Schedule 4 of the Election
Ru les prescribes the informa tion which is to be
con ta ined in the statement of contesting candidate
accompanying the nom ination form in compliance of
Rule 9 (4) of the Election Rules. Cla use (2)(c) of
Schedule 4 of the Election Rule which requires a
can d ida te to provide particulars of the occupa tions
reads as unde r:
"(c) Particulars of Occupation:
(i) Employment (designation with name of the present employer)
(ii) Practice (sole proprie tor or m partnership including the name of the firm)
(iii) Parti culars of o the r occupa tion / engagement, if not covered by (i) & (ii) above,"
24 . Ru le 42 (4)(xii) of the Election Rules prohibits a
member of the lCS l from contravention or misuse of
a ny of the provisions of the said Rules or making any
false state ment knowing it to be fal se or without
k n owing it to be tru e while complying with any of the
provisions of these Rules.
2 5. Rule 42 (1) of th e Election Rules provides that any
violation of s ub-rules (2) , (3 ) a nd (4) of Rule 42 is liable
to invite punishment for bringing disrepu te to the
14
Cou n cil of the ICSI under item (2) of Part IV of the First
Schedule of the Company Secretaries Act, 1980.
26 . This Tribunal is established under Section lOB of the
Company Secretaries Act, 1980 for a specified purpose
to decide the dispute regarding election of th e Council
of the ICSI held in December , 2014. This Tribunal does
not have jurisdiction to entertain and adjudicate upon
any matter other than the dispute raised in respect of
the election to the Council held in December , 2014.
He nce, it is beyond th e jurisd iction of this Tribunal to
go into the allegations of the violation of the provisions
of Advocates Ac t, 1961 , The Companies Act,
1956/2013 and The Company Secretaries Act, 1980,
Company Secreta ries Regulations , 1982, (on the
issues other than the election).
27. From the above, following issues arise for adjudication :
(1) Whether the written statement of the Respondent
could nol be taken on record as the SaITle was not
verified by him as per the requirement of the
Code of Civil Procedure.
(2) Whether the Respondent was enrolled as an
Advocate on the da te he fiLed his nomination
papers for election to the Cou n c iL of th e Ln stitute
from Northem India Regional Const ituency.
J-> 15
(3)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 stateme nt accompanying the
nomination form in terms of Sub-Rule (4) of Rule
9 of th e Election Rules 2006.
(4)Whether non-declaration of the information by
the Respondent about his occupation as a
Practicing Advocate m ade him ineligible to
contes t the elec tion on account of concealment of
material fact or misstate ment in his nomination
form fOT election to th e Council in the election
held in December , 2014.
(5) Whether the election of th e Respondent to the ICSt
Council in the election held in December, 2014 is
not valid , an d
(6 ) Relief, if a ny.
28. ISSUE NO. (1):
(1) Whether the written statemen t of the Respondent could not be taken on record as the same was not verified by him as per the requirement of th e Code of Civil Procedure.
28. 1 Section 10 B of th e Company Secre taries Act,
1980, provides for th e establishment of Tribunal
con s isting of a Presiding Officer and two other
16
m embers by the Central Govt., to decide any
dispute regarding any elec tion under Clause (a) of
SUb-Sec tion (2) of Section 9 of the Company
Secretaries Act, 19 80, which may be made by an
aggrieved person within thirty days from the date
of declaration of the results .
28.2 The Company Secretaries (El ection Tribunal)
Rules, 2006, notified by the Central Govt . in
exercise of the powers conferre d by Clause (5) of
S ub-Section (2) of Section 38 A read with Sub
Section (3) of Section 10 B of the Company
Secretaries Act, 1980, provides inter-alia that in
the discharge of its fun ctions th e Tribunal shall
be guided by the principles of n a tural jus tice and
subject to other provis ion of the Act and Rules,
the Tribunal shall regu la te its own procedure .
For th e purpose of deciding a dis pute the
Tribunal has been conferred the same powers as
are vested in a Civil Court under the Code of Civil
Procedure , 1908, in respect of th e following
matte rs :
(i) Summoning and enforCing the attendance of any person and examining him on oa th;
(i i) The discovery and production of any document;
~ 17
(iii) Receiving evidence on affidavit; and
(iv) Cross-examining the witnesses produced before it.
28.3 In the present case the Application was made by
the Appl ican t to the Returning Officer raisin g a
d ispute In regard to the election of the
Respo ndent to the Council of the Institute from
Northern India Regional Constituen cy in the
election held 111 December, 2014. The said
complaint was referred by the Ins titute to the
Cen tral Govt. for con s tituting the Election
Tribunal in term s of Section to B of th e Company
Secretaries Act, 1980. The Appli cation was
neither verifi ed by the Applicant n or supported by
his Affidavit verifying the contents of the
Application. At n o stage the Applicant was asked
to file an Affidavit verifying the conte nts of the
Application . A copy of his Application was
forwarded by thi s Tribunal to the Respondent for
his written statem en t. The written s ta tement
filed by the Respondent was also neither verified
by him nor was it supported by an Affidavit.
Since the original Application itself was n either
verified n or supported by the Affidavit the
Tribunal is of the view that the written statement
which was neither verified nor supported by an
Affidavit can be taken on record. This issu e is
18
decided in favour the Respondent and against th e
Applicant .
29 . ISSUE NO. (2):
(2) Whether the Respondent was enrolled as an Advocate on the date he filed his nomination papers for election to the Co uncil of the Institute from Northe rn India Regiona l Constituency.
29.1 In his Application the Applicant has alleged
that the Respondent concealed the fact of
pursuing the profession as an Advocate in the
statement filed pursuant to Sub- Rule (4) of Rule 9
of the Company Secre taries (Election to the
Council) Rules, 2006, read with Schedule 4
thereof annexed to the nomination form for the
election. It has been alleged that the Respondent
was Advocate in Practice, being a member of the
Bar Council of Punjab & Haryana, vide
enrollment No. P/423jl996 since 30.03.1996
and also actin g member of the Supreme Court
Bar Association since 2005 with Membership No.
B-00398.
29.2 In his written statement, the Respondent
has not denied the fact that h e was enrolled as an
Advocate with the Bar Council of Punjab &
Haryana or that he was Member of Supreme
Court Bar Association (SCBA) . He has only stated
19
that he never practised as an Advocate and that
he had surrendered the membership of Supreme
Court Bar Association, vide his letter dated 7'"
July, 2011, which was delivered by hand and
acknowledgement taken. He did not pay his
membership fee thereafter. He has stated that he
never appeared as an Advocate even for his ov.m
organization and just represented his employer
before the Judicial Authority as a part of job
responsibility clearly assigned to him from time to
time. The Respondent has stated that vide his
letter dated 5'" August, 1997, he requested the
Bar Council of Punjab & Haryana Bar Council to
keep his registration in abeyance.
29.3 In his rejoinder the Applicant has annexed a copy
of the reply dated 13.02.2015 sent by Bar Council
of Punjab & Haryana to Mr. Hitender Mehta
under the RTI Act stating inter-alia that no
Application was received from the Respondent for
voluntarily suspension/cancellation of his
enrollment certificate and that as per his personal
file, his name is continuing on roll of Practicing
Advocates. It is pertinent to observe that Shri
Hitender Mehta has also filed an Application
under Section lOB of this Act, before this
Tribunal on the same issue.
20
29 .4 The Respondent h as not placed on record a copy
of h is letter dated 7'" July, 2011, stated to h ave
been written to the Supreme Court Bar
Association to substantiate his claim that h e had
made request to Supreme Court Bar Association
for deletion of his name. The membership of
Supreme Court Bar Association, or for that
matter, of any Bar Association) is not a pre
requisite for carrying on the practice as an
Advocate. On other hand enrollment with the Bar
Coun cil as an 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 is
an essential requirement for suspen SIOn or
cancellation of the Enrolment . As per the records
of the Bar Council of Punj ab & Haryana, the
Respondent never surrendered his Enrolment
Certificate and his enrolment as a Practicing
Advocate is s till al ive.
29.5 Section 2(a) of Advocate Act, 1961, defines an
"advocate" to mean an advocate entered in any
roll under the Ac t. Section 2 (i) of the Advocates
Act defines the "legal Practitioner" as "an
advocate, or val<il of any High Court, a pleader, a
mukhtar or revenue agent." Section 29 of the Act
provides that Advoca tes shall be the only
21
recognized class of persons entitled to practise
law. Section 30 of the Act sta tes that subject to
provisions of th is Act, every advocate whose name
is entered in the State roll shall be entitled as of
right to practise throughout the terri tories to
which this Act exte nds,
(i) in all courts including the Supreme Court;
Iii) before any tribun a l or person legally authorize to take evide nce ; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to ractise
29.6 Since the enrollment of the Responden t as an
Advocate with the Bar Council of Punjab &
Haryana is still al ive, th ere is no doubt that he is
an Advocate and can practice law in terms of th e
provisions of Advocates Act. It is, therefore, held
that the Respondent was en rolled as an Advocate
with the Bar Cou ncil of Punjab & Haryana at the
time of his fil ing nominat ion as a candidate for
election to the Council of the Institute in the
e lection held in December, 20 14.
30. ISSUE NO. 3
}v 22
(3 ) Whether the Respondent was m andatorily required to give the deta ils of his "other occupation/ engagement" as an Advocate in reply to Clau se 2 (c) of th e statement accompanying the nomin a tion form in terms of SUb-Rule (4) of Rule 9 of the Election Rules 2006
30.1 Rule 9 (4) of the Election Rules provides that the
nomination of th e candidate s h all be valid only if it
is accompanied by a s tatement s igned and verified
by the candidate containing information as provided
in Schedule 4 of the Rules. Schedule 4 of the Rules
prescribes the information which is required to be
in cluded m th e s tatement accompanymg th e
nomina tion . Cla u se (1) of th e Schedule s tates that
the nomination of a candidate shall be accompanied
by a statement signed and verified by the candidate
containing th e information mentioned m Sub
Clause (a) to Ul of the said Clause. Clause 2 of the
Sch edule 4 s tates that th e statement referred to in
Clause 1 may also contain , at the option of the
candidate, infonn ation concen1.ing the candidate in
respect of the matters m entioned in Su b-Clauses (a)
to (d) thereof. Sub-Clause (c) of Clause 2 requ ires
the candidate to give the particulars of occupations
I.e. (1) e mploymen t (des ignation with name of the
present employer); (ii) Practice (Sole proprietor or in
partnership including the name of the firm); and (iii)
Particulars of o ther occupation /engagement, if not
covered by (i) and (ii) above . In terms of the Sub
23
Clause (c) of Clause 2 a candidate is required to give •
the Particulars of his Occupations. Against Clause
2(i) the Respondent furnished the details of his
employment as Wholetime Com pany Secretary In
Panasonic AVC Networks India Company Ltd.
30.2 The Applicant has alleged that the Respondent
deliberately and willfu lly con cealed the material fact
about his other occupation of being a Practising
Advocate. The Respondent has rebutted this allegation
and h as, in his defence, stated that at the time of filing
his nomination he was not pursuing any profession
other than being the Compa ny Secre tary and Director,
Finance in Panasonic AVC Network India Company
Ltd. and obviously the information with regard to the
particulars of other occupation was not applicable and
hence he had correctly written "not applicable" against
the relevant clause in the said statement. He further
submitted that the particulars of occupation as
Company Secretary and Director, Finance In
Panason ic AVC Network India Company Ltd., have
been men tioned correctly as he is not engaged in any
other occupation and the verification signed in terms
of Rule 9 (4) of the Election Rules was correct and true
to the best of his knowledge and belief and no false
statement or misrepresentation as alleged has been
made by him . As there is mention of the word 'may' in
Clause (2) in contradistinction to the word 'shall' in
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Clau se (1) of the Schedu le 4 , the particulars to be•
given against clause (2) of the S tatement under Rule
9(4) of the Rules is optional, the Respondent could
h ave opted n ot to give th e information against any of
th e Sub-Clauses (a) to (d) of Clause 2. However, h e
has voluntarily chosen to give information.
30.3 The su bstantive defen ce of th e Respondent is that
he never practiced as an Advocate and, there fore , it was
n ot his occupation and accordingly the same was n ot
mentioned in the state me n t. Having regard to the fac t
that the Applicant h as not placed on r ecord any
document to show th at the Respondent was actually in
prac tice as an Advocate even though h is name was on the
ro ll s of the Bar Council . Thus, hi s con te ntion cannot be
accepted and the benefit is to be given to the Res pondent.
This issue is answe red accordingly, and, therefore , he
was not mandatorily required to give the details In
addition to his full time employment as whole time
Company Secre tary of Panasonic AVC Networks India
Company Ltd.
31. ISSUE NO . 4:
(5) Wheth er non -declaration of th e information by the Respondent a bout his occupation as a Practicing Advocate made him ineligible to contest the election on account of concealment of m aterial fact or misstate ment in hi s nomination form for election to the Council in the election held in Decembe r , 2014.
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31.1 Ru le 42 of the Election Rules provides for action
agai n s t a Member in connection with the conduct of
election if h e is found guilty of any act of omission or
commission as provided in Sub-Rules (l ) to (4) of Rule
42 . Lt , therefore, follows that if a cand idate is found
guilty of any of misconduct men tion ed in Rule 42 he
has to be proceeded against in terms of Section 22 of
the Company Secretaries Act , 1980 read with Firs t and
Second Schedu le thereof and th e Company Secre taries
(Procedure of investigation s of Professional and Other
Misconduct and Conduct of Cases) Rules, 2007. The
Election Ru les do not provide for settin g aside for
e lection on any of th e ground mentioned in Rule 42 of
the Rules.
3 1.2 In hi s written argu me n ts the Applicant has placed
re li ance on th e decis ions of the Supreme Court in
support of h is al legations, some of which are :
(a) Resurgence India Vs. Election Commission of India and Anr. (AIR 2014 SC 344)
(b) Kisan Shankar Kathore Vs. Arrun Dattatray Sawant and Ors. (AIR 2014 SC 2069)
(c) PUCL Vs. Union of India (2003) 4 SCC 399
(d) Puckerm Sharatchandra Singh Vs . Mairembam Prithviraj (AIR 2015 SC 3783)
Ie) O. P. Sharma Vs. High Court of Punjab & Haryana (2011) 6 SCC 86
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3 1.3 Most of th e cases relied upon by the Applican t are
concerned with the conduct of elections under the
Re presentation of the People Act , 1950. The said Act
s pecifically provides for the grounds on which the
e lection can be declared void (Section 100) and the
grounds for which a candidate, other than the
returned candidate, may be declared to h ave been
elected (Section 10 1) . In our view, the ratio of the
judgments relied upon by the Applicant are not
applicable to this case as the facts are di stinguishable.
The Application filed by the Applicant h as to be
adjudicated in terms of provis ions of the Company
Secretaries Act, 1980 and the Company Secretaries
(Election to the Council) Rules , 2006. In view of the
above discussion , the aforesaid issue is decided
against the Applicant and in fa vour of the Respondent.
32. ISSUE NO.5
(6) Wheth er the election of the Respondent to the lCSI Counc il in the elections held in December, 20 14 is not valid .
32.1 In hi s Application the Applicant had prayed that in
view of the unla wfu l acts of the Respondent , a s
mentioned in the Application, the candidature of the
Respondent , S hri Rajiv Bajaj , shou ld be declared as
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•
null and void a nd thereby declaring a fresh election be
h eld on the basis of true and correct particulars.
32.2 Though the Respondent was enrolled as an Advocate
with the Bar Coun cil of Punjab & Haryana he was not
practicing the profession. The Appli cant was not able
establish by any evidence that the Respondent ever
appeared 111 any case in a court of Law or h e was
engaged in the legal profession. Thus, the allegation
that the Respondent made a fa lse declaration in the
statement under Rule 9 (4) of the Rules is not
established. This issue IS decided against the
Applicant and in favour of the Respondent .
33. ISSUE NO.6
Relief, if a ny.
33. 1 The Applicant's main allegation is that the Respondent
conte sted the e lection based o n false inrormation and
signing of verification knowing it to be false and thus
fraudu lently won the election to the Council of the
Institute in the election held in December , 20 14. We
h a ve taken the view that while the Respondent was
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•
enrolled as an Advocate with the Bar Council of Punjab
& Haryana, the Applican t could not 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, there was no concealment of
material fact.
33.2 The Applicant also alleged that the Respondent was a
Practicing Advocate while holding whole time
employment in violation of the Advocates Act and the
Rules made there under and that by engaging in two
occupations i.e. Practicing Advocate and Company
Secretary, the Respondent has violated the provisions
of the Company Secretaries Act, 1980 and the Rules
made there under.
33.3 It has also been alleged that the Respondent is guilty
of serious misconduct in terms of the provisions of
First and Second Schedule of the Company Secretaries
Act, 1980. The Respondent is also alleged to have
contested the election to the Northern India Regional
Constituency in the year 2006 and 2010 without
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·' disclosing the materi al [acts a bou t his simultaneously
being engaged in two occu pations . In our view, for
these allegations the remedy lie s elsewhere and this
Tribuna l has no jurisdiction.
33.4 In the facts and circumstances, we are of the view that
the Applicant has fai led to make out any case against
the Respondent and th e Application deserves to be
d ismissed. Accordingly, thi s Application is dismissed.
No Order as to cos ts.
A copy of th is order be sent to the parties and
also to th e lesJ.
.A.\,-.~ ~. (A.K. Chaturvedi) (R. Asokan) Member Member
~ (D. Bhardwaj) Presiding Officer
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