- (1.) Heard Sri Rakesh Ranjan Agrawal, learned Senior Advocate, assisted by Sri Suyash Agarwal, counsel for the petitioner, Sri Vinod Swarup, learned counsel for the respondent no. 4 and learned counsel for Union of India.
(2.) By the present writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 24.9.2011 passed by the respondent no. 2 whereby the learned Authority has affirmed the order of Board of Discipline dated 03.02.2011, in terms of which the petitioner was awarded punishment of removal of his name from the register of Member of Institute of Chartered Accountants of India for a period of one month. The Board of Disciplinary Committee held the petitioner guilty of professional misconduct within the meaning of clause (9) of Part I of the First Schedule under Section 21(3) of Chartered Accountants (Amendment) Act, 2006 and awarded him punishment.
(3.) The brief facts of the case are that Agra Club Ltd. is a company incorporated under Section 25 of the Companies Act, 1956. The said company issued AGM dated 20.12.2006. Item no. 3 of the said notice read "open to appoint auditor and fix their remuneration"(the retiring auditor being eligible for reappointment and offer themselves for reappointment). M/s Farsaiya and Company was the retiring auditor of Company as per the notice of AGM. The Company in its AGM held on 30.12.2006 appointed the petitioner as Auditor of the company. The minutes of the AGM shows that the Company has not complied with the provisions of Section 225 of the Companies Act, 1956.? The respondent no. 4 Dr. Suresh Chandra Gupta wrote a letter to the Company bringing the fact of violation of Section 225 of the Companies Act, 1956. According to the complainant the petitioner had full knowledge of the fact that his appointment as Auditor has been made without compliance of the provisions of Section 225 of the Companies Act. The respondent no.1, on consideration of the same, agreed with the prima facie opinion of the Director and decided to proceed further under Chapter IV of the Chartered Accountants (Procedure of Investigation of Professional and other Misconduct and Conduct of Cases) Rules, 2007. The Board also directed that in terms of the provisions of sub-rule (2) of Rule 14, prima facie opinion formed by the Director be sent to the petitioner and respondent no. 4 and the petitioner be asked to submit his written statement within 21 days in accordance with the provisions of Rules, 2007. The petitioner, thereafter, submitted his written statement dated 12.05.2009. The petitioner admitted that no special notice was given, however, since the proposal to remove the auditor was proposed in AGM itself, therefore, no special notice was given, but the Board did not agree with the contention of the petitioner as in the notice of AGM, item 3 mentioned "to appoint auditor and fix their remuneration (the retiring auditor being eligible for re-appointment offer themselves for reappointment)", meaning thereby there was no agenda item to appoint any auditor other than the retiring auditor.;