The Chartered Accountant day celebrations of 1st July 2018 are over now and more or less all the candidates for central council and regional councils have knocked the doorbells of the members of the Institute of Chartered Accountants of India by way of their declaration of candidature on this auspicious day. The elections shall be held in December 2018 at the various centres throughout the country. Surprisingly the string of the election of 2015 is still surfing in the air as the election tribunal constituted for the elections dispute of ICAI elections 2015 is yet to deliver a verdict on the allegations of unfair means used by the candidates for winning or losing their elections. The super allegation was that the elections conducted by the returning officer/secretary of the Institute were not “free and fair”. The millions of the members of the institute deal with the term true and fair view but the agony of the last elections was its unfairness.
SCOPE OF TAMPERING WITH THE ELECTION MECHANISM
ICAI elections are not the exception to the history of elections in India. At our institute level, it starts with persuading candidates to not standing against them, such as through blackmailing, bribery, intimidation or physical violence. The tempering already started as a bulk attempt for shifting of member registration from one region to another to affect the number of the seats allotted to the regions. The largest abuse in our elections is the use of ICAI infrastructure by holding all types of seminars, conferences at the remotest places of the regions to be attended by the already elected members at the cost of the Institute. The electoral abuse also includes confusing or misleading members about how to vote, violation of the secret ballot, ballot stuffing, tampering with postal votes, holding postal votes to cross match with the central / region candidates, destruction of legitimately cast ballots, member suppression, failure to validate voter residency and in the last but not the least use of physical force or verbal intimation at polling places. The election process always results in the disputes but only few dares to challenge it. A central council candidate from Pilibhit is one among three who have attempted to expose the unfairness of the election. The Chartered Accountant act deals with the election dispute by way of inclusion of the section 10 A & 10 B to the act.
A. SECTION 10 A SETTLEMENT OF DISPUTE REGARDING ELECTION.
In case of any dispute regarding any election under clause (a) of sub-section (2) of Section 9, the aggrieved person may make an application within thirty days from the date of declaration of the result of the election to the Secretary of the Institute, who shall forward the same to the Central Government.
B. SECTION 10B. ESTABLISHMENT OF TRIBUNAL
(1) On receipt of any application under Section 10A, the Central Government shall, by notification, establish a Tribunal consisting of a Presiding Officer and two other Members to decide such dispute and the decision of such Tribunal shall be final.
(2) A person shall not be qualified for appointment, −
(a) as a Presiding Officer of the Tribunal unless he has been a member of the Indian Legal Service and has held a post in Grade I of the service for at least three years;
(b) as a Member unless he has been a member of the Council for at least one full term and who is not a sitting member of the Council or who has not been a candidate in the election under dispute; or
(c) as a Member unless he holds the post of a Joint Secretary to the Government of India or any other post under the Central Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India.
(3) The terms and conditions of service of the Presiding Officer and Members of the Tribunal, their place of meetings and allowances shall be such as may be specified.
(4) The expenses of the Tribunal shall be borne by the Council.
THE APPLICANT ROSE HIMSELF FOR THE JUSTICE
The Applicant Sanjay Gupta Chartered Accountant from Pilibhit was also a candidate for central council from central region for the 23rd Council of The Institute of Chartered Accountants of India held on December 2015, being aggrieved by the conduct of the elections and declaration of results of the said council, moved his application with an intention that the Tribunal shall declare the election of the council members elected from central region void and may pass any such order to meet the justice . The crux of the allegation was that the said election conducted in a totally high handed and arbitrary manner without any respect to the prestige of the esteemed profession. The allegations started with the availability of the data in the hands of already elected council members, It was alleged that the candidates have done a number of violations of the code of conduct, attracting misconduct, tempering and used the ICAI infrastructure. The ICAI called for inclusion of email to the voter by 14th of the August 2015 but released the electoral on 11th of the respective month. The petitioner alleged that the inclusion of email to the voters was a scam by the returning officer which was done to please fewer of the candidates. The returning officer has amended the electoral many times till the voting date though no amendments can be made once a final electoral published by the returning officer.
THE ESTABLISHMENT OF ELECTION TRIBUNAL
The aggrieved contestants, CA Sanjeet Kumar From Godda , Jharkhand from central region, CA Raj Pal Singh Chauhan Delhi from Norther Region & CA Sanjay Gupta from Pilibhit , Central Region have moved an application independently to the secretary of the institute alias returning officer of the election to be forwarded to the Central Government. The government through the ministry of corporate affairs notification New Delhi, the 4th May 2016 S.O. 1634(E). established a Tribunal consisting of Shri Ramayan Yadav, Presiding Officer, Joint Secretary and Legal Adviser Ministry of Law and Justice, Shri Alok Samantarai, Director of Inspection and Investigation, Ministry of Corporate Affairs Shri K.L. Kamboj, Regional Director (Western Region) in exercise of the powers conferred by sub-section (1) of section 10B of the Chartered Accountants Act, 1949 (38 of 1949) and in pursuance of rule 3 of the Chartered Accountants (Election Tribunal) Rules, 2006. Later on, some amendments to the designation and further reconstitution of the tribunal happened during this period.
Two of the applications i.e 1 & 2 were disposed off at the first meeting of the tribunal but the petition of Sanjay Gupta is yet to see the daylight. The last hearing was conducted on 8th April 2018 and judgment has been kept reserved. By the end of this month, the Institute shall start its notification for the election of 24th Council of the Institute without having a verdict of the election dispute of 2015. Will it serve any purpose now as Justice delayed is justice denied goes the popular cliché? What to say about missing justice? ‘Justice delayed is Justice denied’, the quoted words of William Goldstone best portrays the delayed tribunal verdict as the term of the council is about to end against which the said application was made. The delay has now reached a crisis situation. What a mockery of the system? Rule of law is more about justice. It is there in the spirit rather than the letter of the law. It must be understood that judgments are more than just writing the law for the statistical purposes only. What’s the purpose of dragging a verdict for three years against or in favour of an elected body of three years term? Will it serve any purpose at the last leg of the three year term of the council?
CASE NO. MISC./AS(RY) TRIBUNAL (ICAI)/3/2016
The applicant Sanjay Gupta filed a Complaint dated 29.01.2016 u/s 10A of The Chartered Accountants Act, 1949. The Tribunal was thus constituted. First Notice was issued by Hon’ble Tribunal to Secretary- ICAI dt.: 17.06.2016. On which Secretary- ICAI, submitted his WS dated 11.07.2016. The applicant filed Rejoinder dated 02-08-2016.In its WS The secretary vehemently raised a plea that as the concerned contestants in the election-2015 have not been impleaded hence the applicant complaint should be dismissed. The applicant moved an application dated 03.10.2016, to the Hon’ble Tribunal, with a request to implead the other concerned persons, if any, because of Secretary observation and objection over not impleaded the elected council members from the central region. On First Hearing on 16.10.2016, An Advocate represented the council before the Tribunal. On 16th October 2016, The Tribunal directed the applicant to submit the Names & Address of the persons to whom the applicant wants to implead. On 19.10.2016, the applicant has given the names of five elected council members from the central region. The secretary hasn’t objected to any of the names given by the applicant and thereafter the legal tactics of delay of date fixing, adjournment with an intention to linger on the matter. The applicant has moved an application to refer the central Government for clarification to which the Tribunal consented in negative.
THE QUESTION OF RECOGNISING THE RESPONDENT
As a measure to delay the process, the question was raised in the case, who is the respondent of the case. Though earlier two applications were disposed off treating Institute as respondent So there was no need to raise the question on the ground which was handled by the same tribunal. The respondent stated that the petitioner has made allegations against other candidates and has also prayed for declaring the elected members to the Council form Central India Regional Constituency as void. However, he has not impleaded any of the candidates in his complaint. The rule of natural justice requires that a decision is to be taken against any person; he should be given an opportunity of being heard. The petitioner has not chosen to implead any of the candidates. Without impleading, he cannot pray for such relief. Further responded that not DENIED – the elected five members from the region shall be against the judicious logistic end of the applicant to declare the election of the present council member void.
There were arguments and counter-arguments to a vital legal question, who is the respondent of the case No. 3 as filed by the Sanjay Gupta. The choice was between The ICAI, Returning Officer in his individual capacity (though he was a Secretary of the Council) or The Council. The applicant was pressing that the respondent should be an institute and secretary cannot be a respondent in his individual capacity. In this particular case, the Tribunal weighted the Returning officer in his individual capacity contrary to the decision given by the same tribunal in Case no. 1. Thus, the pleading was contrary to earlier submissions in a similar petition filed before the Tribunal The Hon’ble Tribunal in the similar Election Dispute Case No.Misc./AS(RY)Tribunal(ICAI)/1/2016 dated 25.11.2016 (CA. Sanjit Kumar, FCA, Vs. Shri V.Sagar, Secretary, ICAI), has invariably held that Respondent is Institute of Chartered Accountants of India, and the Secretary is representing the Institute and the Secretary and Returning officer along with Shri Rakesh Agarwal, Advocate, and two officers of the respondent Institute namely, Shri G. Ranganathan, Deputy Secretary and Shri D. D. Satyawati, Assistant Secretary appeared before the Tribunal.
CLEAR VIOLATION RULE-41 OF ELECTION RULES, 2006
Rule 41. Election Expenses. –
i. No candidate, whose name has been included in the final list of nominations under rule 15, shall incur an expenditure above an amount to be fixed by the Council for this purpose.
ii. Every such candidate shall file an account of expenses incurred for the election in a format approved by the Council, within fifteen days of the notification issued under rule 36.
iii. A member shall be deemed to have brought disrepute to the Council under item (2) of Part IV of the First Schedule to the Act if, in connection with an election to the Council of the Institute, he is found to have contravened the provisions of sub-rule (1) or sub-rule (2)
Further, The Council of ICAI has fixed Rs. 6.00 Lacs as the maximum limit for Election Expenses for CC Election- 2015. (Notified on 28.10.2015). The applicant had sought the information under RTI for the compliance of rule 41. He raised the following RTI
A. How many candidates for Central Council in Council Election-2015, have furnished the details of Election-Expenses.
B. Their Names.
C. Date of furnishing the same.
D. Copies of details of Election-Expenses.
In response to the application under RTI-Act, the ICAI has informed that out of Total 99 Candidates, only 58 candidates have filed, and 41 have not filed their Account of Election Expenses as required under rule 41 of The Chartered Accountants (Election to the Council) Rules, 2006. Moreover out of 58 candidates, the information of 32 candidates has been provided to the applicant that too under RTI, rest 26 candidates (58-32= 26) have made an objection to disclosing their information about Election Expenses to the applicant. Though election documents and papers are public documents and the shelter for their personal information cannot sustain in the case. Further, the applicant prepared a data sheet and compiled all the data of 32 candidates for illustration and analysis purposes, and the simple analysis with a little common sense reveals very-very astonishing facts, which are very vital & crucial to decide the case on the merits. The returning officer has refunded the security money to the candidates without obtaining the details of election expenses, which was a gross negligence at the part of returning officer.
The irony of the case is that those who have violated the rule by not submitting the election expenses details are in the council and a member shall be deemed to have disrepute to the council under item (2) of part IV of the first schedule of the Act if, in connection with the election to the council of the Institute, he is found to have contravened the provisions of sub-rule (1) or sub-rule (2). The region wise details of election expenses of only ten candidates from the elected thirty-two have been provided to the applicant. The details are as follows.
WIRC- Information of Only 4 out of elected 11 provided to applicant.
SIRC- Information of Only 4 out of elected 6 provided to applicant
EIRC- Information of Only 1 out of elected 3 provided to applicant
CIRC- Information of Only 1 out of elected 5 provided to applicant
NIRC- Information of None out of elected 7 provided to applicant
so the election expenses details of Twenty two council members have not been provided to the applicant. Surprisingly, details of all the three Presidents of this council 2016-19 have not been provided.
‘JUSTICE DELAYED IS JUSTICE DENIED’
Unfortunately, apathy and ineffective governance at ICAI have created barriers to accessing justice, which has resulted in delaying the tribunal award. The ICAI is constantly granting certain sections of persons the unlimited access to the full range of its facilities and infrastructure. The said section abuse all kind of powers against the common members who have elected them There are persons who “fence out” the council working and preventing the common member to access any of the Institute section. The delay in the Tribunal judgment is a brilliant example of the wrongdoings by those who are at the helm of affairs. The bells of the next round of election of 2018 have already been ranging and in the next month, the first notification shall appear from ICAI in public domain without a note of applicability of Aachar Sanhita though in general with the announcement of elections the Model Code of Conduct or Aachar Sanhita also comes into effect. All the candidates must follow from the first indicative notice issued by the Institute. The 2018 election shall also happen under the returning officer against whom a judgement of the Tribunal is reserved, and Sanjay Gupta the applicant shall again try his luck to become a central council member along with the author of this article. Both of them are Central council candidates from Central Region and shall test the waters again.
(About the Author– Author was Member of ICAI- Capacity Building Committee 2010-11 and ICAI- Committee For Direct Taxes 2011-12 and can be reached at email amresh_vashisht@yahoo.com or on phone Phone: 0 1 2 1-2 6 6 1 9 4 6. Cell: 9 8 3 7 5 1 5 4 3 2 having office at 1 1 5, Chappel Street, Meerut Cantt, UP, INDIA)
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sir,
please tell me that interest from rec. nhai bond u/s 54EC IS TAXABLE OR FREE FROM TAX.
THANKS