Case Law Details
Mr. Ashwani Khanna Vs. ICSI (Appellate Authority)
1. Ms. Preeti Malhotra, one of the members of the Authority, is not available for hearing the application for condonation of delay filed by CBI with the Institute of Company Secretaries of India, which in turn was forwarded to this Authority by the Institute of Company Secretaries of India, in terms of the liberty granted to CBI vide an earlier Order dated 17th July, 2018 passed by this Authority while disposing of Appeal No. 08/ICSI/2017 today as she is pre-occupied elsewhere.
2. Further, a request for adjournment of hearing today has also been received through email dated 22nd October, 2018 from CS Ashwani Khanna, Appellant in this Appeal, on the ground that his Counsel is pre-occupied for some other matters listed in the Chandigarh Bench of NCLT today. Furthermore, the Appellant is also not in a position to appear in person before us.
3. It is relevant to record here that our earlier order dated 17th July, 2018 passed by this Authority while disposing of Appeal No. 08/ICSI/2017 permitted the CBI to file a fresh complaint, if they wish to do so, within a period of 30 days from the date of receipt of the said Order. As such, the fresh complaint should have been filed by CBI with the Institute of Company Secretaries of India latest by 16th August, 2018, whereas, the fresh complaint along-with an application requesting condonation of delay of 25 days was filed and received on 13th September, 2018, that is beyond 30 days.
4. Under the circumstances, an issue arises as to whether this fresh complaint can be allowed to be entertained by the Institute of Company Secretaries of India or not?
5. Even though, on behalf of the proposed Respondent namely Mr. Ashwani Khanna, the application for condonation of delay of 25 days is sought to be opposed by filing a detailed reply for which vide an email dated 22nd October, 2018 addressed to the Registrar of the Authority, he has also requested that a copy of the said application filed by CBI be supplied to him.
6. Much that, we have considered the opposition of Mr. Ashwani Khanna and certainly, we direct the Registrar of the Appellate Authority to supply a copy of the application to him by speed post within seven days from today but taking into consideration that the Company Secretaries Act, 1980 does not allow us to review our own Orders, therefore, we are of the considered view that granting more time, as requested by CBI to file a fresh complaint with the Institute, will tantamount to review the aforesaid Order dated 17th July, 2018 passed earlier by this Authority and certainly by doing so, we would be going ahead out of the legal domain available to us under the said Act.
7. Additionally, in view of our another Order dated 3rd February, 2018 passed in an Appeal No. 10/ICSI/2015 namely Benny Methew vs. ICSI, we have already held that this Authority does not have the power to review its own Orders either expressly or by necessary implication. The relevant paragraphs of this Order are reproduced as hereunder:-
“17. Having heard the arguments advanced by the parties as above besides perusing all relevant records including the Order against which the review is being sought in the present matter, in addition to considering the aforesaid judgments, we are of the considered view that it is a well settled law that the power to review is not an inherent power and it must be conferred by Law either specifically or by necessary implication, whereas, no specific provision of review is present in the Company Secretaries Act, 1980, whereby, this Appellate Authority had been empowered to review its own Order.
18. We may also add that we are not impressed by the submission of the Learned Counsel appearing on behalf of the Institute of the Company Secretaries of India that the Board of Discipline is altogether an independent and a separate body from the Institute itself and therefore, the Institute of Company Secretaries of India was not a party before the Appellate Authority, when, the Impugned Order was passed by it. In fact, this is the Council of the Institute of Company Secretaries of India which is required to constitute a Board of Discipline in terms of Section 21A and a Disciplinary Committee of the Institute in terms of Section 21B of the Company Secretaries Act, 1980. Thus, to consider the Board o f Discipline something different from the Institute is not an appropriate and correct submission. Therefore, in case of any procedural wrong committed by the Board of Discipline or the Disciplinary Committee, as the case may be, we are of the view that the ultimate responsibility will lie on the Institute and the Board o f Discipline and / or the Disciplinary Committee, being the quasi-judicial bodies o f the Institute itself cannot be made a subject of imposing any penalty against them.
19. Consequently, based on the above principle of settled law and not being in agreement with the stand taken by the Learned Counsel appearing on behalf o f the Institute that this is the procedural review, the present review application is accordingly rejected. No cost to either party.”
8. In view of the aforesaid, we cannot entertain the present application dated 13th September, 2018 filed by the Institute of Company Secretaries of India to us seeking advice to entertain the fresh complaint being filed by CBI beyond 30 days granted to them vide our Order dated 17th July, 2018, as permitting to entertain the said complaint by the Institute of Company Secretaries of India would tantamount reviewing our Order. Though, CBI may approach the appropriate forums, in case they wish to continue to file the fresh complaint against Mr. Ashwani Khanna.
9. With these observations, the entire proceedings of this matter are being brought to an end.
