HIGH COURT OF BOMBAY
WRIT PETITION (PIL) NO.62 OF 2006
Tarun Jamnadas Ghia
The State of Maharashtra and others
11th October, 2007.
1. The Petitioner is a Chartered Accountant in practice and claims to be qualified to undertake the audit of societies as contemplated under Section 81 (1)(a) and 81(1)(b) of the Maharashtra Co-operative Societies Act, 1960. He was on the panel of auditors maintained by the Divisional Joint Registrar, Cooperative Societies – Respondent No.3. According to the Petitioner the powers of empanelment, removal and other matters relating to functioning of the Chartered Accounts in contemplation to those provision was arbitrary and discretionary; and the Respondents were acting in a very unfair manner. On these 2 premises the Petitioner prayed for an issuance of an appropriate writ, order or direction directing Respondent No.3 to produce the entire records in connection with the list of societies with basic details like turnover, working capital, audit fees of the previous year and the Respondents be directed to prepare proper guidelines introducing transparency and fairness in empanelment of the auditors for awarding of auditing work in the co-operative societies. The Petitioner has further prayed that Respondent No.3 should publish the list and the consideration for empanelment should be objective and not supported by extraneous criteria.
2. This Petition was contested by the State Government as well as the other Respondents. However, during the pendency of this Writ Petition, the Respondent issued a circular dated 13thAugust, 2007 amending the previous circulars. This circular was in suppression of the earlier circulars issued on 31st January, 2006 and 23rd May, 2003. All aspects of empanelment and the consequences thereof were dealt with in this circular and according to the Respondents this was most fair and appropriate way of empanelment of auditors. The Petitioner thereafter filed an affidavit on 8th October, 2007 taking up the following objections even to this circular:
“1. Does the new circular by the Respondents meet the requirements of objectivity and transparency and would take cognizance of comparative merits of the panel auditors?
2. Pending the petition alleging many wrongs and manipulations, the Respondent No.3 violated the existing circular by the Commissioner of Co-operation and continued wrongs and manipulations on larger scale. Is not the Respondent No.3 answerable for the same to this Hon’ble Court? The Petitioner has submitted all the evidences, some of them incriminating documents which the Petitioner under the RTI Act but not easily. Initially the Petitioner had to complain to the State Information Commission and in the process the Respondent No.3 was fined by the Hon’ble SC for not parting with information. The Petitioner obtained information by spending few thousands of rupees. Are not the Respondent No.3 who is an administrative head and a quasi judicial authority along with associate officers answerable and accountable for their manipulative and fraudulent actions and inactions to the Hon’ble Court?”
3. The contention of the Petitioner is that the Respondents would still act arbitrarily and they have not provided any criteria marks for determining the merit of the Chartered Accountants for allocation of work in terms of Section 81 (1)(a) and 81(1)(b) of the Act. It is a settled principle of law that certain element of discretion has to be permitted in exercise of such powers. The powers of empanelment and/or removal have to be exercised by the competent authority, obviously in consonance with the rules. It is not disputed that the officers entitled to exercise such powers are statutorily entitled and specified. The Court has no reason to believe as to why such officers would not exercise their power in accordance with law. Any how to put the matter beyond doubt, couns appearing for Respondents 1 and 3 both stated that though the subject in question is squarely governed by the circular, but still they would keep in mind the norms of empanelment for statutory central auditors of Public Sector banks Select All India Financial Institutions and RBI applicable from the year 2005-06 and insofar as they are applicable to the empanelment of auditors for the societies, they shall be duly applied. However, it is further stated by him that in view of a Division Bench judgment of this Court in case of Maharashtra Certified Auditors Association v. State of Maharashtra (2004 (4)All M.R. 490) the categorization is not permissible. Obviously such restriction shall be applicable to the categories stated in that judgment.
4. Another Division Bench judgment of this Court has also been brought to our notice in the case of Tarun Jamnadas Ghia v. Reserve Bank of India where the Petitioner had earlier filed a Writ Petition bearing No.1112 of 2006 decided by a Division Bench of this Court on 26th July, 2006 wherein it was observed that Respondent No.3 on preparing the list in terms of the criteria fixed by Respondent No.1 shall put the same on the website declaring the name of the audit firms in terms of the list prepared by them. The cumulative effect of the above referred discussion would be that the Respondents would act in furtherance to the circular dated 13th August, 2006 read in conjunction with the RBI guidelines insofar as they are applicable and keep in mind the judgment of this Court above referred. The list prepared shall be put up on website.
5. In view of the above discussion, it would not be necessary for this Court to either keep this Petition pending or to issue any further directions. The jurisdiction of this Court to interfere in such matters is a very limited one and would primarily apply to ensuring compliance with the concept of fair play in administrative actions. In the light of this we, dispose of this Petition with the above observations.
DR. D.Y. CHANDRACHUD, J.
EX “2 A”
(Translation of a circular in Marathi)
O. No. C.C/A/U. Banks/Credit/ Circular/ 447/07
Office of the Co-operative Commissioner & Registrar, Co-operative Societies, Maharashtra State, Pune.
Subject: Actions and Measures to be taken in respect of audit of Co- operative Societies.
1) Circular No .U.R.B./ Credit Societies/ Audit by C.A./2003,dt. 23/05/2003
2) Circular No .M.A./C.A /Panel /Bank/Credit Society/127/ 00, dt. 31/01/2006
In exercise of the powers delegated under Section 3 of Maharashtra Co-operative Societies Act, 1960, from view point of general guidance, supervision and control, the instructions in respect of audit system of Co-operative Societies are issued as follows:-
A responsibility of audit of all the Co-operative Societies falling under Section 81(1) (A) of Maharashtra Co-operative Societies Act, 1960, is on the Registrar. Prior to this, instructions had been issued, about the audit of the Co-operative Societies, by the circulars issued by this office from time to time. At the time of hearing in to the Public Interest Petition No.62/2006 filed in the Hon’ble High Court, the Hon’ble High Court, gave directions that in order to bring uniformity in the audit-allotment system and panel (list) of auditors for the audit of Co-operative Societies at Divisional and State level, instructions should be issued and while issuing instructions. The measures suggested by the petitioners and interested applicants should be considered.
Therefore, in order to have co-ordination, uniformity and transparency in the panel of Chartered Accountants/ Certified Auditors and in the system of allotment of societies for the audit of Co-operative Societies, revised guidelines are given by this circular as follows:-
A) Panel at State Level
1) In order to get done the audit from the state level of Urban Co-operative Banks having the deposits of more than 50 crores, a panel of the Chartered Accountants was prepared, for a audit period of the years from 2005 to 2008, on the basis of the information sought by the Circular, dated 16/10/2004 and taking into account the directives given under the Circular, dated 31/1/2006. However, as per the Memorandum of Understanding entered into between the Government and the Reserve Bank, on the date 13 December, 2006; a decision has been taken in the meeting dated 12/4/2007 of TAFCUB that only such Chartered Accountant/firms who/which have been empanelled heretofore by the Registrar at State level and who are registered on the panel of the Reserve Bank of India, should be considered for audit-allotment, for the year 2006-2007 in respect of audit of the Urban Co-operative Banks which are having deposits more than 25 Crores. Accordingly audit programme of the year 2006-07 was implemented, however, some Chartered Accountants submitted that as the Memorandum of Understanding made with Reserve Bank of India has been entered into in the middle of the way, after having prepared the panel for the period from the year 2005-2008, the same may be revised/amended or new panel may be prepared, even this fact has been taken into account. Therefore, now, there is need to prepare a panel newly.
2) This office by the Circular dated 26/2/2007 has determined the criteria and procedure for panel of Chartered Accountants and for allotment system for the audit of Urban Co-operative Credit Societies of the State. A Circular dated 23/5/2003 as well as the Circular dated 31/1/2006, in this regard are cancelled. Irrespective of any area of operation (jurisdiction) , hereafter audit allotment of all the Urban Credit Societies having the deposits of more than Rs.25 Crores will be made by the Co-operative Commissioner & Registrar, Co-operative Societies, Maharashtra State , Pune.
Criteria for State Level Panel shall be as follows:-
1. Panel of only Chartered Accountants’ firms shall be kept at State Level and through them audit of the Urban Co-operative Banks having deposits more than 25 Crores should be got done.
2. Period (Term) of the said panel shall be from the date 1/4/2008 to 31/3/2011 and from this panel, audit allotment shall be made for the financial years 2007-08, 2008-09, 2009-10.
3. In order to prepare panel, a notification should be issued in the month of September 2007 end, for registering the Chartered Accountants on the panel (empanelment) , a form of application as aforesaid should be published. The information in this regard should be displayed in WIRC office, Federation of Urban Co-operative Banks, Information & Public Relation Office, as well as on the websites of Reserve Bank of India and Federation of Urban Co-operative Banks. A Notification in that regard should be published (issued) upto December 2007.
4. Thereafter, an action should be taken to publish/issue panel List/Notification at the end of December by publishing the notice for the newly eligible candidates, every year at end of September. Accordingly, the panel list notified/published at end of December 2008 shall be valid for audit allotment for the years 2008-2009, 2009-10 and the year 2010-11; and the Panel List notified/ published at the end of December 2009 shall be valid for audit allotment for the years 2009-10, 2010-11 and year 2011-12.
Criteria for Empanelment
(1) It is necessary to have 10 years Bank audit experience, by at least one Chartered Accountant of the Partnership Firm. Such 10 years experience of the Chartered Accountant should have been completed as per months after his registration as a member of the Institute of Chartered Accountants.
(2) It is necessary to have the name of the partnership firm on the panel of the Reserve Bank of India. It is necessary to mention Unique Code Number of the Reserve Bank of India , in the Application Form.
(3) It is necessary to annex the Xerox copy to the registration of Partnership Firm, as per the Partnership Act. A Xerox Copy of Registered Partnership Deed. Such firm should have the membership with ICAI.
(4) There should be at least 15 staff members on the pay roll of the firm. For the audit work, strength of the employees possessing minimum equivalent educational qualification will be considered. Wherein the staff such as peons, Attendants will not be considered.
(5) It shall be necessary for the firm to annex Xerox copies of the Financial Statements such as Balance-sheets, Income and Expenditure Statements for the preceding three Financial years, in the name of the Firm/or in the name of the Chartered Accountant bearing minimum 10 years experience and it shall be necessary to annex Xerox copies of the Income Tax Returns in the name of the firm.
(6) It shall be necessary to furnish the information given in the application for panel as well as to submit a latest notarized affidavit made on a stamped paper of Rs. 100/- stating that the Supplementary Information annexed to the application is proper and true.
(7) The information should consist the list of Co-operative Banks/Institute for which the audit done by the firm for the preceding three financial years as well as the information of working capital of the Bank/Institute, audit fees etc. should be furnished.
(8) It is necessary to affix latest photographs of the partners on the application.
(9) If the partnership firm has done Statutory audit, continuous and concurrent audit, Internal audit, Tax audit, Re-audit, System audit and if it has prepared Special report of the Co-operatives Banks and has handled the work of enquiry of the Co-operatives Societies/Banks and of filing (registering) Criminal Offences and taking an action of rectifying the audit queries, then such partnership firm will be given special preference.
The application received within the time specified as per the notice published, will be considered and the application not received within time and the incomplete applications for want of the aforesaid information as well as for the necessary supplementary information will be declared ineligible (disqualified) .
(1) As the firm has acquired the power under Section 81 of Maharashtra Co-op. Societies Act, 1960 to remain personally present for the General Body Meeting of the Society Concerned, such power should be exercised.
(3) If the Registrar seeks the information of the Report pertaining to the audit done by the Firm, then the same is required to be submitted immediately.
(4) If a misappropriation in the bank of which the audit done by the firm is found then Criminal offence is required to be lodged with the prior permission of the Registrar.
(5) As per the Allotment order, 80 % of the audit fee charged as per the prescribed rate can be obtained by the firm after completing the audit and submitting the report and the balance 20 % fee can be obtained after complying with the rectification of queries in the report and the incidental action under section 82 (of the Act). It shall be obligatory to obtain prior sanction of the Additional Registrar, Co-operative Societies (Audit), Maharashtra State , Pune for charging the said audit fees.
(6) Those firms for which the allotment of the bank for audit is made, such firms or their partners cannot accept audit (work) of the Urban Co-operative Credit Societies.
(7) In the following Events, name of the firm from the notified Panel, will be deleted /terminated.
(A) If the partner of firm dies or if the partnership firm is dissolved.
(B) If the Firm Voluntarily makes request to delete its name.
(C) If the firm expresses its refusal to do audit of the Bank allotted to it.
(D) If action is taken for defective audit / violation of criteria/conditions .
(E) If declared disqualified under any prevalent Act.
The work such to make scrutiny of the application received and to make a final panel at the State level and to publish the same in the Gazette and to maintain transparency therein etc. will be carried out with the approval of the Committee.
The Committee shall consist following members:
(1) The Co-operative Commissioner & Registrar, Co-operative Societies, Maharashtra State , Pune. …Chairman
(2) The Additional Commissioner & Special Registrar, Co-operative Societies, Maharashtra State , Pune. …Member
(3) The Additional Registrar, Co-operative Societies (I & E) Maharashtra State , Pune …Member
(4) The Additional Registrar, Co-operative Societies (Audit),Maharashtra State , Pune … Member Secretary
(5) The President/Representative, WIRC, Mumbai …Member
The said State Level Panel should be maintained division wise and the Member Secretary should see that the aforesaid works are carried out smoothly and fairly with the approval of the Committee. Moreover, he should maintain Minutes Register in respect of all the things (items) and should prepare a list of Firms as per the criteria and should prepare a list of the allotable Societies in a descending order and should make an allotment accordingly.
Bank Allotment System:-
In this regard a Committee formed as per this office circular dt.8/2/2006 is cancelled (scrapped) and now, hereafter following committee will look after the work of the bank allotment.
1. The Co-operative Commissioner & Registrar, Co-operative Societies, Maharashtra State , Pune …Chairman
2. The Additional Commissioner & Special Registrar, Co-operative Societies, Maharashtra State, Pune …Member
3. The Additional Registrar (Audit), Co-operatives Societies, Maharashtra State , Pune …Member Secretary
4. The Additional Registrar (Inspection & Election), Co-operative Societies, Maharashtra State , Pune …Member
5. Deputy Registrar, Co-operative Societies, (Urban Banks), Head Quarters, Pune …Member
1. The quality of the work done by the Chartered Accountant in the preceding years, audit work done within time and presentation of Audit Report made within time, Special Report, Lodging of criminal offences, qualitative work of audit, if all these factors are found to be satisfactory then the firm will be considered on a priority basis, at the time of allotment.
2. Each Firm shall, as far as possible, be given only one bank in a year for doing audit.
3. The Firm can remain on only one Panel, out of the Panels at Division Level/State Level.
4. As far as possible, bank allotment should be made to the Firm, for the bank in nearby District instead of the bank from the same District where the Firm is situated.
5. If the Firm or the partner on the panel does the work as a member, Expert Director/Internal Auditor/Continuous Concurrent Auditor of the concerned bank then such Firm or partner cannot do the audit of such bank.
Notwithstanding anything contained herein above, from the view point of strategically control, the rights to take suitable action in respect of deleting (removing) the concerned from the Panel by giving an opportunity of being heard to it on the principle of natural justice, to make scrutiny of Test Audit, Re-audit, to take legal action if erroneous (defective) audit is done and as a result the interest of the society is affected as well as to make change in the allotment system of audit in a particular year, due to some eventually etc. are reserved with the Co-operative Commissioner and Registrar, Co-operative Societies, Maharashtra State, Pune.
Part (B) Panel list of certified Auditors at Divisional level and allotment of Societies.
The Divisional Joint Registrar of Co-operative Societies shall prepare a panel list of certified Auditors at the Divisional level and shall allot societies to them for audit after taking into consideration the below mentioned instructions. With a view to see that there is common procedure and uniformity all over the state in the society allotment system for audit, as directed by the Hon’ble High Court, below mentioned guidelines are issued.
Panel list of Certified Auditors and Criteria
Considering the total number of Co-operative Societies in the State, especially the number of Co-operative Societies in the Concerned Division and the number of Government Auditors available, it does not become possible for the Registrar to fulfill the statutory responsibility of audit of all such societies and therefore, after the Annual Audit Programmes of the Government Auditors are sanctioned as per the criteria of the date 23/5/1997, the Registrar shall fulfill the responsibility to get completed the audit of the remaining societies and if the societies (falling) under section 81(1)(B) of the Act fail to get done the audit within prescribed time limit as per the powers received by them, then to find out such societies and to get completed the audit as per the proviso-provisions of the said section. For that purpose, as per the provisions of Rule 69 (1), Panel of Certified Auditors should be prepared at the Divisional Level.
The eligibility Criteria for the said panel list shall be as follows:-
1. Chartered accountant as per Chartered Accountant Act, 1949, or
2. Government Audit Degree or Government G.D.C. and A Diploma, or
3. The persons who have worked as Auditors in the Co-operation Department of the State Government.
From out of the same, instructions of minimum Audit experience for G.D.C, and A Diploma holders have been issued as per the circular dated 7/1/1997. The same shall remain in tact.
Procedure/Instructions in respect of Panel list at Divisional level shall be as follows:-
1. The existing panel list of Certified Auditors at Divisional level is cancelled for the compliance of the directions of the Hon’ble High Court. The Concerned Divisional Joint Registrar should take appropriate action in that regard without any delay.
2. The tenure of the said panel shall be from 1/4/2008 to 31/3/2011 and the audit allotment for the financial years 2007-08, 2008-09 and 2009-10 shall be made from the said Panel.
3. Notice for setting up the said Panel should be declared by the end of Sept.2007.The information in that regard should be displayed in WIRC office, Nagari Sahakari Banks Federation, Information and Public Relation office and on the web sites of Reserve Bank of India and Federation of Nagari Sahakari Banks. Final Notification in that regard should be issued upto December 2007.
4. Application Form for registering the Certified Auditors on the Panel should be given for publicity as aforesaid.
5. Thereafter, every year by the end of September, instructions should be published for fresh eligible Applicants and by the end of December; action of issuing final list/Notification should be taken. Accordingly, the Panel notified/published at the end of December 2008 shall be valid for audit allotment for the year 2008-09, 2009-10 and 2010-11 and the Panel notified/published at the end of the December 2009 shall be valid for audit allotment for the year 2009-10, 2010-11 and 2011-12.
6. It shall be necessary to submit an up-to-date Notarized Affidavit on a stamp-paper of the value of Rs.100/- stating therein that the information given in the Application for the Panel and the supplementary details enclosed with the Application are appropriate and true.
7. A list of societies audited by Certified Auditor during three preceding financial years which should consist of the details viz, the working Capital of the Society, Audit fee etc. should be furnished.
8. A latest photograph and two additional photographs of the Applicant are required to be enclosed with the Application.
9. If the certified Auditor has carried out statutory audit, audit, internal audit, tax audit, re-audit, system audit, special report of the Co-operative Societies and has handled the works viz. to file criminal offences, to take action on rectifications, to carry out enquiry of the Societies in Co-operative field, then such Certified Auditor will be given special priority.
10. As the Certified Auditor has received powers to personally remain present for the General Body Meeting of the Concerned Society as per section 81 of the Maharashtra Co-operative Societies Act, 1960, he should exercise the same.
11. Copies of the Audit Report should be submitted to the Concerned Registrar of Co- operative Societies and the District Special Auditor.
12. If the Registrar seeks information about the Audit report made by the Certified Auditor, then he shall immediately submit the same.
13. While going for audit, it shall be binding even on each and every Certified Auditor to keep with him the Identity Card issued by the office of the Registrar.
14. If misappropriation is found to have been committed in the society audited by the Certified Auditor, then a Criminal offence shall have to be registered with the prior permission from the Registrar therefore.
15. After the Certified Auditor completes the audit as per the allotment order and submits the Report, he can take 80% of the Audit fee charged at the prescribed rate and can take the remaining 20% fee after the compliance of remarks (queries ) on rectification Reports and incidental action. It shall be binding to obtain prior permission from the Concerned District Special Auditor and the Concerned Divisional Joint Registrar of Co- operative Societies (Audit) as per the level (status) of the society for charging the said Audit fee.
16. The name of the Certified Auditor shall be deleted /terminated from the Notified list in the following events.
A) If the Certified Auditor dies.
B) If the Certified Auditor voluntarily requests to delete his name.
C) If declines to audit the society allotted in the very District.
D) If action is taken for defective auditing /violation of criteria/conditions.
E) If becomes ineligible as per any prevailing Law.
17. If the things viz. the quality of work carried out by the Certified Auditor during the preceding years, audit done and audit report submitted in time, special report, to file criminal offences, the quality of audit is excellent etc. are satisfactory, then preference will be given in the allotment on priority basis.
18. While allotting the Societies, one society each can be allotted to the Certified Auditors on the Panel in the descending order and even thereafter, if any Societies remain, then in the next round, one-one society each shall be allotted as aforesaid.
19. The said Panel shall be prepared each District-wise under the Division and the same shall be later on made functional with the approval of the Divisional Committee.
20. Certified Auditors can remain on the Panel list from any one District only and they shall be allotted the Societies in the very District. However, in the preliminary round, if some of the Certified Auditors do not get the allotment of Societies in a District, they shall be allotted the societies from adjoining District on priority basis from out of the societies remained after the first round.
21. If a certified auditor on the Panel of working as member/expert Director/Internal Auditor/Continuous and Concurrent Auditor of the concerned society, then he can not do auditing of the said society.
22. The Registrar should review the functioning of the Certified Auditors every quarterly. It shall be binding on the Certified Auditors to remain present for the said meeting.
23. It shall be binding on the Certified Auditors to submit information about their audit work sought by Registrar from time to time.
24. As per section 161 of the Maharashtra Co-operative Societies Act, as the Certified Auditor is public Servant, all the restrictions applicable to a public servant shall be applicable to the Certified Auditor as well.
Scrutiny and Allotment Committee (Divisional Level)
For carrying out the works viz. to scrutinize the Applications received in the prescribed time as aforesaid and to form a Panel, to publish the same in the Gazette, to maintain transparency in the allotment of societies etc, a committee is being set up as follows:-
1. Divisional Joint Registrar, of Co-operative societies, Chairman
2. Divisional Joint Registrar, of Co-operative Societies, (Audit), Member
3. Concerned District Deputy Registrar of Co-operative Societies Member
4. Concerned District Special Auditor of Co-operative Societies Member
5. Divisional Deputy Registrar of Co-operative Societies Member Secretary
6. Representative of WIRC/M.P.L.A. Association Member
Notwithstanding anything contained hereinabove, the rights to take appropriate action regarding the things viz. to give appropriate opportunity of being heard to the concerned as per the principle of natural justice and to remove him from the panel, to scrutinize test Audit, Re Audit report, if erroneous audit is made and if it proves to be detrimental to the interest of the society, then to take legal action etc. are reserved with the Divisional Joint Registrar of Co-operative Societies.
The work of the Scrutiny Committee at Divisional Level regarding Panel of Certified Auditors and allotment of societies for audit shall be subject to inspection of Task-Group appointed at the relevant time as per the order of the Co-operation Commissioner and Registrar, Co-operative Societies, Maharashtra State, Pune.
The Concerned officers should scrupulously follow the instruction given in this circular, or else, at the end of enquiry into a specific matte, the concerned officers shall be liable for office disciplinary action, which may please be noted.
Co-operation Commissioner and Registrar,
Co-operative Societies, Maharashtra State , Pune.
1) The Principal Secretary, Co-operation, Marketing and Textile Department, Mantralaya, Mumbai 32.
Copy for necessary action and for compliance to:-
1) Divisional Joint Registrars, Co- operative Societies (All)
2) Divisional Joint Registrars, Co- operative Societies, (Audit) (All)
3) District Deputy Registrar, Co-operative Societies, (All)
4) District Special Auditors Class I, Co-operative Societies, (All)
1) Private Secretary to the Co-operation Commissioner and Registrar, Co-operative Societies, Maharashtra State, Pune.
2) Additional Commissioner and Special Registrar, Co-operative Societies, Maharashtra State, Pune.
3) Supervising Officers, Headquarters, Pune (All)
4) The Chairman, Maharashtra State Co-operative Bank Federation Ltd., Pune.
5) The Chairman, Maharashtra State Co-operative Credit Societies Federation Ltd., Mumbai.
6) The Chairman, Western India Regional Council of India (WIRC), Mumbai-5
Chief Translator and) M 3047 A true Translation
Interpreter’s Office) fs.55
High Court, Bombay) 2007) F