Case Law Details
Shri Hitender Kumar Mehta Vs Shri Rajiv Bajaj (ICSI Discipilinar Committee)
The Disciplinary Committee, after considering all material on record, the provisions of the Company Secretaries Act, 1980, the Regulations and Rules made there under; the legal opinions sought in the matter, the prima-facie opinion, Further Investigation Reports of the Director (Discipline) and totality of the facts and circumstances of the matter, held that Respondent has failed to establish that he was not enrolled as an Advocate on the Bar Council of Punjab and Haryana on 26th August, 1997 i.e. the date on which he made the declaration in Form D. Further, the Respondent has failed to establish that his declaration in Form D about non-enrolment as an Advocate is true and correct.
Accordingly, the Disciplinary Committee after considering all the material available on record, the written and oral submissions of parties and in totality of the facts and circumstances of the case and the arguments adduced before it by both the parties, is of the opinion that Respondent is GUILTY of Professional Misconduct under clause (1) and clause (3) of Part-II of the Second Schedule to the Company Secretaries Act, 1980 for making false declaration in his application in Form ‘D’ and violation of the Regulation 168 of the Company Secretaries Regulations, 1982.
The Disciplinary Committee further decided to afford an opportunity of being heard to the Respondent before passing any order under Section 21B (3) of the Company Secretaries Act, 1980 in terms of sub-rule (1) of rule 19 of the Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007.
FULL TEXT OF THE ORDER OF THE DISCIPLINARY COMMITTEE
1. Shri Hitender Kumar Mehta, FCS-3946 (hereinafter referred to as ‘the Complainant’) in his complaint dated 9th June, 2015 in Form ‘I’ filed under Section 21 of the Company Secretaries Act, 1980 (the Act’) read with sub-rule (1) of Rule 3 of the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 (hereinafter referred to ‘the Rules’) has inter-alia levelled the following allegations against Shri Rajiv Bajaj, FCS-3662 (hereinafter referred to as ‘the Respondent’).
(a) The Respondent was wrongfully holding Certificate of Practice of the Institute of Company Secretaries of India (hereinafter referred to as ‘the ICSI’) from August 30, 1997 to March 31, 1998 (for a period of about seven months) while simultaneously being enrolled as an Advocate on the Rolls of the Bar Council of Punjab & Haryana in violation of Regulation 168 of the Company Secretaries Regulations, 1982 (hereinafter referred to as ‘the Regulations’).
(b) The Respondent furnished false declaration to the Institute in Form D for obtaining the Certificate of Practice of the Institute by suppressing the material fact of his having been enrolled as an Advocate on the Rolls of any Bar Council, and wrongfully obtaining Certificate of Practice on the basis of false declaration, and thereby committing the fraud .
2. The Respondent in his written submissions dated 10th August,2015 has denied the allegations of the Complainant and inter-alia stated that:
(a) The Complainant was one of the contesting candidates to the Central Council of the ICSI and after having lost the election. he has filed several complaints out of frustration and as an afterthought. The Respondent also raised the objection on the grounds of limitation. He argued that should the Complainant have any complaint, he should have filed the same immediately before the Disciplinary Authorities, when the alleged violation was committed by the Respondent.
(b) The Complainant is trying to bring in an issue which pertains to the period of about seven months between 1997 and 1998. He also contended that the matter is more than 17 years old and does not stand on the test of limitation. The present complaint is not valid as the same pertains to the period which is beyond the limitation of 7 years as prescribed as per Schedule III of the Company Secretaries Regulations, 1982. Therefore, the complaint is liable to be dismissed.
(c) The Respondent further denied the aforesaid allegation and reiterated that all the declarations furnished were true to the best of his knowledge and there was no false statement, whatsoever in the particulars submitted in Form ‘U. He contends to have applied for suspension vide letter dated 5th August, 1997 to the Bar Council of Punjab & Haryana which was duly received & acknowledged by the Council on 5th August,1997, that his name may kindly be struck off. At that time, he presumed that his name had been struck off.
(d) The Respondent stated that during the period in question, the Complainant has not provided any evidence for his practising as an Advocate. Further, he states that he has not pursued any profession other than being a Practising Company Secretary. Therefore, there is no case of violation of Regulation 168 (1) of the Regulations, against him. The matter being 17 years old it is difficult for him to remember and trace all the old records to challenge the allegations of the Complainant which are basically politically motivated. Considering the dubious intent of the Complainant, it is primarily submitted that as per the Rule 12 of the Rules, the complaint must be dismissed.
3. The Complainant in his rejoinder dated 5th September,2015 to the written statement of the Respondent inter-alia stated that-
(a) That the objection of the Respondent on the maintainability of the complaint is completely misplaced and devoid of merits and, therefore, not sustainable. The Complainant further states that he has filed the present complaint when he came to know about the professional misconduct committed by the Respondent. He argued that the limitation should commence from the date of knowledge and, therefore, the present complaint falls within the period of limitation. It has been stated that the professional misconduct came to his knowledge vide, a response received by him from the Central Public Information Officer of the ICSI vide letter dated 26th May, 2015 on his RTI application and the instant complaint was filed thereafter on 9th June, 2015.
(b) Moreover, in view of the factual information and evidence already available on record, and there being no difficulty in securing proper evidence of the alleged misconduct, the time limit stipulated under Rule 6, Chapter III, Para 12 Rules does not come into play. Therefore, the Respondent, who is a sitting Council Member of the ICSI, does not deserve to be given any benefit on this ground. It has been stated that subsequent to filing of the complaint, the Complainant obtained copy of Form D dated 26th August, 1997 filed by the Respondent with the ICSI at the time of applying for issue of Certificate of Practice (COP). In the said Form D dated 26th August, 1997, the Respondent has unequivocally declared that he is not enrolled as an Advocate on the rolls of any Bar Council. The Complainant has placed on record a copy of the Form D dated 26th August, 1997 as filed by the Respondent at the time of his application for obtaining the Certificate of Practice of the ICSI.
(c) It is contended by the Complainant, whether the Respondent practiced as an Advocate or not is irrelevant and immaterial for the purpose of declaration in Form D. What is relevant is whether the Respondent was at that time simultaneously enrolled as an Advocate or not. According to the Complainant, the Respondent was enrolled as an Advocate on the date of his application to the ICSI to obtain Certificate of Practice and continued to be enrolled as an Advocate thereafter for the period in question. Therefore, he contends that the Respondent has knowingly made a false declaration to the Institute and on the basis of the said false declaration had fraudulently obtained the Certificate of Practice of the ICSI. Further, the Respondent while being a whole-time Company Secretary of M/s. Panasonic AVC Networks India Co. Limited applied for admission as member of the Supreme Court Bar Association (SCBA) on 7th July, 2011. The application form for admission as member of the SCBA requires declaration by the applicant that he is an Advocate and has been in regular practice as such.
(d) The Complainant further stated that the submission of the Respondent relating to striking off his name from the Rolls of Bar Council of Punjab & Haryana are contrary to the facts stated hereinabove and therefore, appear to be an afterthought and do not hold any ground.
4. The Director (Discipline) on consideration of the Complaint, the Written Statement of the Respondent and the Rejoinder of the Complainant and taking into consideration the other material on record, formulated her prima-facie opinion dated 26th August, 2016 that Respondent is guilty of Professional Misconduct under clause (1) and clause (3) of Part-II of the Second Schedule to the Company Secretaries Act, 1980 for making false declaration in his application to ICSI in Form D’ for securing certificate of practice in violation of the provisions of the applicable Regulations. The clause (1) and clause (3) of Part-II of the Second Schedule to the Company Secretaries Act, 1980 read as under:-
“A member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he —
(1) Contravenes any of the provisions of this Act or the regulations made there under or any guidelines issued by the council;
(3) Includes in any information, statement, return or form to be submitted to the Institute, Council or any of its Committees, Director (Discipline), Board of Discipline, Disciplinary Committee, Quality Review Board or the Appellate Authority any particulars knowing them to be false;”
5. The Disciplinary Committee at its meeting held on 27th August, 2016 considered the prima-facie opinion dated 26th August, 2016 of the Director (Discipline) and all the material on record. The Disciplinary Committee after considering the prima-facie opinion dated 26th August, 2016 of the Director (Discipline), pursuant to Clause (c) of Sub-Rule (2) of Rule 9 of the Rules, advised the Director (Discipline) to further investigate the matter and do the following: –
(a) Write a letter to the Bar Council of Punjab & Haryana and enquire with regard to the contention of the Respondent that he had sent a letter dated 5th August, 1997 to the Bar Council of Punjab & Haryana requesting for suspension of his name from the rolls of Advocates to the Bar Council.
(b) Examine the status of the applicability of the provisions of the Company Secretaries Act, 1980 as amended in 2006 and the Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 to the alleged misconduct of the Respondent in the year 1997-1998.
(c) Investigate whether the complaint is barred by period of limitation.
(d) Call further information / documents as may be considered appropriate after further investigation from the parties.
The Disciplinary Committee further advised the Director (Discipline) to place this matter before the Disciplinary Committee, after further investigation on examining the aforesaid.
6. Accordingly, a letter dated 13th October, 2016 was sent to the Bar Council of Punjab & Haryana in the matter by the Director (Discipline). The Bar Council of Punjab & Haryana vide its reply dated 16th November, 2016 inter-alia informed that the Respondent was enrolled as an advocate on 31st March, 1996 and provided copies of about 15 documents/correspondence made by him after enrolment and also confirmed that no letter dated 5th August, 1997 was received by it from Shri Rajiv Bajaj, the Respondent herein on 27th July, 2015. The relevant portion of this letter dated 16th November, 2016 states:
“As per order of the worthy Chairman the photocopy of document/correspondence made by him after enrolment are enclosed herewith.
6………
7……..
8. Letter from Rajiv Bajaj dated 5.8.97 (recd on 27.7.2015) and with copy of licence P/423/1996.”
7. The issue of whether the Complaint is time barred has been adjudicated upon by the Director (Discipline) vide her prima facie Opinion dated 26th August, 2016 after being satisfied about the availability of proper evidence qua the misconduct complained of. Therefore, pursuant to fact finding enquiry if the Director (Discipline) is satisfied about the availability of proper evidence of the alleged misconduct is available, then it cannot be said that the Complaint is time barred.
8. Accordingly, the Further Investigation Report dated 9th January, 2017 along with prima-facie opinion dated 26th August, 2016 was placed before the Disciplinary Committee at its 73rd meeting held on 10th January, 2017. The Disciplinary Committee, 2017 deferred the matter, keeping in mind the continuous Delhi High Court proceedings and the fact that a new Disciplinary Committee was to be formed over the next couple of weeks.
9. The Disciplinary Committee at its meeting held on 24th March, 2017 considered the prima-facie opinion and further investigation report of the Director (Discipline). The Disciplinary Committee asked the Director (Discipline) to further examine the issue including the potential wider ramifications with regard to the members of the Institute; simultaneously enrolling themselves with the Institute and Bar Council. It was further advised to the Director (Discipline) that she may, if thought fit, consider seeking the opinion of a Senior Advocate preferably of a Govt. Law Officer of the Hon’ble Supreme Court of India in this regard.
10. Accordingly, the Director (Discipline) secured a legal opinion from Learned Additional Solicitor General, Supreme Court of India and after referring to this legal opinion, and the documents on record, the Director (Discipline) re-affirmed her prima-facie opinion dated 26th August, 2016 and further investigation report dated 9th January, 2017 through Further Investigation Report dated 12th April, 2018 that “the Respondent is guilty of professional or other misconduct under Clause (1) and Clause (3) of Part II of the Second Schedule to the Company Secretaries Act, 1980.”
11. The Disciplinary Committee in its 90th meeting held on 4th June, 2018 agreed with the following material placed before it (i) the prima-facie opinion dated 26th August, 2016.of the Director (Discipline); read with (ii) Further Investigation Report dated 9th January, 2017 and (iii) Further Investigation Report dated 12th April, 2018, by the Director (Discipline) which covered all aspects of this matter. The Disciplinary Committee decided to adjudicate the matter in accordance with Rule 18 of the Rules read with the Act to finally conclude as to whether the Respondent is guilty or not. The Disciplinary Committee noted and decided that in light of the order dated 22nd May, 2018 passed by the Hon’ble High Court of Delhi, the endeavour should be to dispose of the matter at the earliest after complying with all the mandatory requirements under the prescribed process. Accordingly, Director (Discipline) was advised to provide a copy of each of the Prima-Facie Opinion and Further Investigation Reports to both the parties and also to ask the Respondent to submit his Written Statement within 10 days with a copy to the Complainant. Further the Complainant was to be given an opportunity to submit a Rejoinder, if any, within seven days of the receipt of the Written Statement of the Respondent.
12. Accordingly, copies of the Prima-Facie Opinion, and each of the Further Investigation Reports of the Director (Discipline) were delivered to both the parties. The Respondent after seeking extension of time, submitted his Written Statement dated 20th July, 2018 and thereafter the Complainant submitted his Rejoinder on 1st August, 2018. An interim application was received from the Complainant wherein he urged the Disciplinary Committee to “recall” its order dated 29th June, 2018 granting additional time of 10 days to the Respondent to file his Written Statement to the prima-facie opinion of Director (Discipline). The Disciplinary Committee observed that the Complainant has sought to direct the Disciplinary Committee as to how it should perform its functions and this, in some senses, could also be viewed as an attempt to influence or pressurize the Disciplinary Committee in performing its duties. The Disciplinary Committee reiterates that it is an independent mechanism that conducts the proceedings following due process, in a fair manner and following the Principles of natural justice.
13. The parties were thereafter called to appear before the Disciplinary Committee on 20th August, 2018 at New Delhi. However, the matter was adjourned to 11th September, 2018 due to paucity of time as the hearing in the other matter between the same parties took substantial time. The Disciplinary Committee informed the parties that it has also been apprised of the petitions filed by the Complainant before Hon’ble High Court of Delhi.
14. The parties vide notice dated 23rd August, 2018 were called to appear before the Disciplinary Committee on 11th September, 2018 at 3:30 PM at New Delhi, with a note that in case the hearing is not concluded on 11th September, 2018, it shall resume on 12th September, 2018 at 3:30 PM.
15. On llth September, 2018 the Complainant in person and the Respondent with his Advocate, Shri Ashish Makhija appeared before the Committee and made their respective submissions.
16. The Respondent also filed an application for summoning certain documents from the Bar Council of Punjab & Haryana before the Disciplinary Committee. The Committee after brief hearing on the application rejected the said application. The Disciplinary Committee thereafter started the hearing in the matter wherein the Respondent made his submissions, however, due to paucity of time posted the matter to 12th September, 2018 for further hearing.
17. On 12th September, 2018, the Complainant in person and the Respondent with his Advocate, Shri Ashish Makhija appeared before the Committee and made their further respective submissions. The Disciplinary Committee further advised the parties to submit their written arguments which the parties duly submitted.
18. The Complainant in his written submission dated 21st September, 2018 has inter-alia stated that in the present case, the Respondent has obtained the certificate of practice by making false declaration in Form D dated 26thAugust, 1997 (Application for the issue/ restoration of certificate of practice) that he is not enrolled as an Advocate on the rolls of any Bar Council and do not hold certificate of practice from any professional body. Further, in the said Form D, it is clearly mentioned that “I further declare that the particulars furnished above are true and correct “. Whereas as per the information/ documents receive/provided by the Bar Council of Punjab & Haryana, the Respondent first time filed a back dated letter dated 5th August, 1997 on 27th July, 2015. The Bar Council has never recognized/confirmed that any letter dated 5’1 August,1997 was submitted to it before 27th July, 2015. The same was confirmed in the reply dated 13th February, 2015 from the Bar Council in response to an RTI application, copy of which was also attached with the complaint dated 09th June, 2015. The above averment statement was made by the Respondent despite knowing that same is false. The Complainant further stated that the complaint is not barred by limitation. Further, the Election Tribunal in its Order dated 30th March, 2016 in Appeal No. 0112015 (CS Hitender Kumar Mehta vs. CS Rajiv Bajaj), stated that:
“31.2 … The Respondent has also not placed on record a copy of letter dated 5th August 1997, stated to have been written by him to Bar Council of Punjab & Haryana requesting it to keep his registration in abeyance. As per the records of Bar Council of Punjab & Haryana, the Respondent never surrendered his Enrolment Certificate and his enrolment as a Practicing Advocate is still alive.”
19. The Respondent in his written statement dated 27th September, 2018 has inter-alia stated that the Complainant has failed to prove the charges beyond reasonable doubt as the Respondent has placed on record letter dated 5th August, 1997 which was filed before the Punjab and Haryana Bar Council. The said letter bears the stamp of the Bar Council and hence its bonafide stands established. The Complainant further contended that the complaint is barred by delay and latches as the complaint is related to an act allegedly of 1997. Further, the law prevalent at that time of alleged misconduct should apply in support has stated that the Clause (3) of Part II of Second Schedule to the Company Secretaries Act, 1980 was not there. Further, the Respondent has neither violated any provision of the Company Secretaries Act, 1980 nor the provisions of the Regulations framed there under. Further, the complaint is motivated and is result of election rivalry between the Complainant and the Respondent. Lastly, the enquiry should restrict to the period of consideration.
20. The Disciplinary Committee after considering the submissions made by the parties was of the considered opinion that the following issues are required to be examined:
(1) Whether the complaint is barred by the period of limitation?
(2) Whether the provisions of the Company Secretaries Act, 1980 (amended) and the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 are applicable to this case?
(3) Whether the Respondent furnished false declaration to the Institute in Form D for obtaining the Certificate of Practice (COP) as a Company Secretary by suppressing the material fact of his having been enrolled as an Advocate on the Rolls of any Bar Council, and wrongfully obtaining COP on the basis of false declaration?
(4) Whether the Respondent was wrongfully holding COP from August 30, 1997 to March 31, 1998 while simultaneously being enrolled as Advocate on the Roll of the Bar Council of Punjab & Haryana in violation of Regulation 168 of the Company Secretaries Regulations,1982?
First Issue: Whether the complaint is barred by the period of limitation?
21. The first issue that requires to be examined is whether the complaint is maintainable in the light of the objection raised by the Respondent, with reference to the period of limitation. The Respondent in his Written Statement has stated that the present complaint is not valid as the same pertains to the period which is beyond the limitation of 7 years. The Complainant has filed this Complaint after losing the said elections and has contended that the complaint is well within the limitation stipulated under Rule 12 of the Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 and the Director (Discipline) has noted the same in her prima-facie opinion which has been accepted by the Disciplinary Committee. The Respondent on the other hand has contended though the Director (Discipline) in her opinion has stated that there is no difficulty in securing the proper evidence of the alleged misconduct as the documents / papers related relied upon by the complainant are available in the Institute but has failed to lay emphasis that the documents from the Bar Council also needs consideration and at this stage after so many years he is finding it difficult to lead evidence in the matter as he is unable to trace documents submitted to the Bar Council several years back. The Respondent further contended that disciplinary proceedings are quasi judicial proceedings in nature and the guilt has to be established beyond reasonable doubt. The Respondent further submitted that the Bar Council has itself rejected the complaint on the same issue and the Committee may consider that difficulty of the respondent to collate evidence in the matter which is politically motivated and nothing but arising out of frustration of losing the election.
22. The Committee noted that the alleged misconduct is almost 20 years old and the Respondent has taken a stand that he is finding it difficult to lead evidence relating to his cancellation of membership form the Bar Council of Punjab & Haryana and has also filed an application for seeking certain documents, but it can be seen from the records that the Complainant has annexed a copy of reply dated 13th February, 2015 received from the Bar Council of Punjab & Haryana in response to an application filed under RTI Act stating inter-alia that the name of the Respondent was continuing on the roll of practising advocates which signifies that the name of the Respondent was not removed from the rolls at the time of application in Form ‘D’ prescribed for obtaining Certificate of Practice of the ICSI. Further, the Director (Discipline) is satisfied that there is no bar of limitation and any difficulty in securing evidence. Further, Learned Additional Solicitor General, Supreme Court of India in his opinion dated 11th March, 2018 has inter-alia opined that a reading of Rule 12 makes it abundantly clear that normally, the period of limitation to file a complaint / give information is seven years. But, if any information / complaint is presented even after the period of seven years, then discretion is vested in the Director to satisfy himself regarding the difficulty in leading evidence or if changes have made the inquiry procedurally inconvenient. This aspect would thus have to be decided by the Director while appreciating the facts of each case. In the present case, it is seen that Director (Discipline) in its prima facie opinion dated 26th August, 2016 has specifically taken a view that there is no difficulty in securing proper evidence of the allegci misconduct in the present case because the documents relied by the complainant are available with the Institute. As such, the Director (Discipline) has already exercised the discretion and held that the complaint is not liable to be rejected on the ground of limitation.
23. In light of above, the Disciplinary Committee after considering all the material on record and facts and circumstances in the case, is of the view that there is no bar of limitation in this case.
Second Issue : Whether the provisions of the Company Secretaries Act, 1980 (amended) and the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 are applicable to this case?
24. The second issue that requires to be examined is whether the provisions of the Company Secretaries Act, 1980 (amended) and the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 are applicable to this case. In this regard it is observed that Section 21D, of the Company Secretaries Act,1980 (amended) provides as under-
Section 21 D- Transitional provisions
All the complaints pending before the council or any inquiry initiated by the Disciplinary Committee or any reference or appeal made to a High Court prior to the commencement of the Company Secretaries (Amendment) Act, 2006 shall continue to be governed by the provisions of this Act, as if this Act had not been amended by the Company Secretaries (Amendment) Act, 2006.
25. In light of above, the Disciplinary Committee is of the view that Section 21D of the Company Secretaries Act, 1980(amended) provides that the complaints pending prior to the commencement of the 2006 amendment (i.e. pending prior to 08.08.2006) would be governed by the un-amended provisions of the Act whereas complaints filed after the amendment Act, 2006, would be governed by the amended provisions of the Act. Since the present complaint has been filed on 9th June, 2015 therefore would be governed by the provisions of the amended Act, as amended in 2006 and the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 are applicable to this case.
Third Issue: Whether the Respondent furnished false declaration to the Institute in Form D for obtaining the Certificate of Practice (COP) as a Company Secretary by suppressing the material fact of his having been enrolled as an Advocate on the Rolls of any Bar Council, and wrongfully obtaining COP on the basis of false declaration?
Fourth Issue: Whether the Respondent was wrongfully holding COP from August 30, 1997 to March 31, 1998 while simultaneously being enrolled as :)Advocate on the Roll of the Bar Council of Punjab & Haryana in violation of Regulation 168 of the Company Secretaries Regulations, 1982?
26. With Regard to the issue as to whether the Respondent furnished false declaration to the Institute in Form D for obtaining the Certificate of Practice (COP) of the Institute. The Disciplinary Committee observed that the Respondent in his application dated 26th August,1997 in the Form-D has made the following declaration:-
I declare that I am engaged in the profession of Company Secretary only on whole-time basis and not in any other profession, business, occupation or employment. I am not enrolled as an Advocate on the rolls of any Bar Council and do not hold certificate of practice from any professional body including the ICAI and the ICWAI.
27. The Respondent has admitted that he was enrolled as an Advocate with the Bar Council of Punjab and Haryana but contended that he had never been in practice as an Advocate during his entire career so far. He has further contended that the membership of the Bar Council of Punjab & Haryana was for the purpose of accessing the library and basic facilities and then he applied for suspension before seeking the aforesaid certificate does not mean that the person is in active practice. The Respondent stated that he has made an application dated 05-08-1997 for suspension of his name from the rolls of Advocates to the Bar Council of Punjab & Haryana. It is noticed that though the application carries the date “05.08.1997” it was actually deposited in the Office of the Bar Council of Punjab & Haryana on 27.07.2015, vide diary No. 5179, as is evident from the stamp affixed on the face of the letter. Further, the Respondent placed on record two letters both dated 05-08-1997 requesting for suspension of his name from the rolls of Advocates to the Bar Council of Punjab & Haryana one allegedly made in 1997 and one made out of memory somewhere in 2015 and the second allegedly being the original but found by the Respondent subsequently. Further, in the letter, which the Respondent has allegedly written, based on his memory, there was no reference to his initial letter that he claims to have submitted to the Bar Council of Punjab and Haryana. This initial letter was subsequently found by the Respondent. The Disciplinary Committee observed that the concerned Bar Council has not stated that the records are not available or that the Respondent has not been enrolled as an advocate in the period under question i.e. August 30, 1997 to March 31, 1998. The Disciplinary Committee further observed that the Respondent had declared that he was not enrolled as an Advocate on the rolls of any Bar Council while applying for Certificate of Practice of the Institute. Further, the Disciplinary Committee noted the statement of the Complainant made in his written submissions dated 21st September, 2018. The Complainant has drawn attention to the affidavit dated 30th March, 2005 signed by Respondent and submitted to the Bar Council of Punjab & Haryana, seeking issue of a duplicate copy of his registration certificate. In this affidavit, the Respondent made the following averment
“1) That I, Rajiv Bajaj s/o Shri J L Bajaj, is a member of the Bar Council of Punjab & Haryana.
3) That the said registration certificate to be best of my knowledge is misplaced and therefore be kindly issued in duplicate. The identity card is also misplaced.”
28. From the above, especially in light of affidavit dated 30th March, 2005 submitted by the Respondent to the Bar Council it is thus established that a false declaration was made by the Respondent in Form-D for the purpose of obtaining the Certificate of Practice of the ICSI. Further this affidavit dated 30th March, 2005 contradicts the stand of the Respondent that he had given up his practice as an advocate in 1997 since the affidavit is filed subsequently. In view of the above, Disciplinary Committee is of the view that the Respondent evidently had made a false declaration in the said Form D.
29. The Disciplinary Committee, after considering all material on record, the provisions of the Company Secretaries Act, 1980, the Regulations and Rules made there under; the legal opinions sought in the matter, the prima-facie opinion, Further Investigation Reports of the Director (Discipline) and totality of the facts and circumstances of the matter, held that Respondent has failed to establish that he was not enrolled as an Advocate on the Bar Council of Punjab and Haryana on 26th August, 1997 i.e. the date on which he made the declaration in Form D. Further, the Respondent has failed to establish that his declaration in Form D about non-enrolment as an Advocate is true and correct.
30. Accordingly, the Disciplinary Committee after considering all the material available on record, the written and oral submissions of parties and in totality of the facts and circumstances of the case and the arguments adduced before it by both the parties, is of the opinion that Respondent is GUILTY of Professional Misconduct under clause (1) and clause (3) of Part-II of the Second Schedule to the Company Secretaries Act, 1980 for making false declaration in his application in Form ‘D’ and violation of the Regulation 168 of the Company Secretaries Regulations, 1982.
31. The Disciplinary Committee further decided to afford an opportunity of being heard to the Respondent before passing any order under Section 21B (3) of the Company Secretaries Act, 1980 in terms of sub-rule (1) of rule 19 of the Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007.
