- (1.) THE petitioners in W. P. No. 7034 (W) of 2009 and W. P. No. 7038 (W) of 2009, Harsh Vardhan Lodha and Aditya Vikram Lodha respectively, are chartered accountants. They are enrolled members of the Institute of Chartered accountants of India (hereafter the Institute ). Since the two petitions involve common questions, the same were heard together and shall be governed by this common judgment and order.
(2.) THE geneses of the present proceedings require notice. The Institute had received complaints against the petitioners, who are brothers, and their father Rajendra Singh Lodha (since deceased) alleging professional misconduct committed by them and had duly registered the same under Section 21 of the chartered Accountants Act, 1949 (hereafter the Act ). Thereafter, in terms of provisions in the Chartered Accountants Regulations, 1988 (hereafter the said regulations), it served copies thereof inviting them to file their written statements. The petitioners and their father instead of filing written statements submitted applications seeking dismissal of the complaints. It was contended therein that in view of provisions contained in Regulation 12 (4) of the said regulations, the Council of the Institute was under obligation to consider the complaints for ascertaining whether a prima facie case had been made out or not. Since the Institute did not accept their prayer, the petitioners along with their father had the occasion to approach this Court earlier in its writ jurisdiction.
(3.) THE writ petitions were decided by Hon'ble Jayanta Kumar Biswas, j. by judgment and order dated 17. 3. 2006, since reported in AIR 2006 Cal 223. : (2006)2 WBLR (Cal) 115 (Rajendra Singh Lodha etc. v. The Institute of chartered Accountants of India and Ors. ). His Lordship while proceeding to dismiss the writ petitions held as follows : "18. It seems to me that Counsel for the respondents are right in what they say. In my reading and understanding of the provisions in regn. 12 (4), they did not create a duty or obligation of the council to consider the complaint, even before its form is examined by its secretary, for coming to the conclusion whether it made out a prima facie case for admission. There is no doubt that the council is under the obligation to consider the complaint and form an opinion about the existence of a prima facie case, and that only thereafter it can send the complaint to its disciplinary committee for inquiry. This is the mandate of the provisions in the statute. The expressions "prima facie case" and "prima facie of opinion that the respondent is guilty of professional and or other misconduct". Used in sub-regns. (4) and (1) respectively, do not denote creation of two separate obligations of the council In my opinion, the regulations made for the purpose of carrying out the objects of the statue cannot admit of an interpretation which does not emerge from a plain reading of the provisions in the statute. The statute contemplated examination of the complaint by the council only once. 19. Needless to say that in the absence of a prima facie case the complaint is to be filed : that is to say, no further action is to be taken on the basis thereof. This particular consequence is conspicuously absent in the provisions in regn. 12 (4 ). It is not said there that consequently the complaint shall be filed. The consequence is only regarding forfeiture of the deposit. There is no dispute that at times the deposits are refunded to the complainants. If it is to be held that provisions in regn. 12 (4)contemplate the first examination of the complaint by the council for forming an opinion about the existence of a prima face case, then they have to be rewritten to some extent by the Court. The consequence of the opinion of the council against the complainant should lead to the filing of the complaint, and this part has to be inserted by the Court in them. This is simply not permissible; and there is no reason to do this. 20. In my opinion, provisions in regn. 12 (4) do not contemplate a stage where the council has to examine the complaint for any purpose whatsoever. They dealt purely with the fate of the deposit accompanying the complaint filed by any one except the Central or any State government. If the complaint is not ultimately found to be frivolous or made mala fide, the deposit is not to be forfeited : and this is the only thing contemplated by those provisions. There is absolutely no reason to see such a safety valve in them as is seen by the petitioners. The safety valve for them is available at the sub-regn. (11) stage. I am, however, unable to agree with Counsel for the respondents that the petitioners suppressed any material fact, or that they did not approach the writ Court with clean hands. 21. For these reasons I hold that the authorities have proceeded with the matter in accordance with the provisions of the regulations. I do not find any merit in the contentions of the petitioners. The writ petitions are accordingly dismissed. There shall be no order for costs in them. ";