Risha Lodha D/O Bhagwat Singh Lodha Vs Institute Of Chartered Accountants of India (Rajasthan High Court); S.B. Civil Writ Petition No. 6261/2021; Dated: 13/05/2021

BRIEF SUMMARY OF THE CASE

The petitioner was a student aged 21 years who cleared her CA Foundation Examination in the year 2018, and became eligible to appear in CA Intermediate Examination scheduled for May, 2020. However due to the unprecedented situation of Covid-19 pandemic and consequent imposition of lock-down, the exams due in May, 2020 were cancelled. Thereafter, the exam was re-scheduled and proposed to be conducted between November 21, 2020 and December 14, 2020.

Owing to the said rescheduling, the Respondent 1- ICAI gave an option to all those candidates, who had filled-in application forms for the examinations of May, 2020 to appear in the examinations to be held in November, 2020. ICAI, by way of a Press Note issued on November 7, 2020, also permitted the students to opt-out of examinations scheduled in November,2020 with a liberty to appear in subsequent examinations, which were planned to be convened in January, 2021.

On 20.11.2020, an email was send by the petitioner highlighted the situation of spread of Covid-19 and cautioned against the exponential growth in number of Covid-19 cases, if the examinations were held. The thrust of the e-mail being suggestion w.r.t development of online infrastructure so that all levels of CA Examinations be conducted online.

Then, by her reports dated 21.11.2020, the petitioner and her father got infected with Covid-19 and as a result, the petitioner opted out of the November exams and appeared for all her papers in examinations held from22.1.2021 to 7.2.2021.

On 22.02.2021, the petitioner received an email from the Respondent 2- Dy. Secretary (Examinations), ICAI, informing that the result of the petitioner had been put on hold, because of derogatory remarks she had made in her e-mail and was simultaneously sought an explanation as to why disciplinary proceedings not be initiated against the petitioner for the same to which the petitioner had send a mail expressing her unconditional apology for her in appropriate remarks that the petitioner had made because of constant delay due to Pandemic and also because of safety concerns of the petitioner and her father.

In spite of eschewing whatever was written in the mail by the petitioner, Respondent 2 asked the presence of the petitioner on 10.3.2021 at Jaipur where the petitioner had put forth the explanation but was kept uninformed about the order/result of the hearing.

On 26.03.2021, when ICAI declared CA Intermediate Examinations results, the petitioner found that the result of the petitioner has been cancelled, under caption “ADOPTED UNFAIR MEANS. LETTER FOLLOWS”.

Faced with the situation, the petitioner sent an e-mail to Respondent 2 reiterating that no unfair means was used by the petitioner and submitted that the result had perhaps been cancelled due to misunderstanding. In response to the above email, the Respondent 2 informed that the Examination Committee had reached a conclusion that the petitioner was guilty of making derogatory remarks in the captioned examination and thus, the petitioner’s result of CA Intermediate Examination held in January, 2021 had been cancelled. Thereafter, the petitioner had filed the writ petition oppugning respondents’ actions.

GROUNDS RAISED BY THE PETITIONER

a) The action of the Examination Committee in cancelling result of the petitioner is per-se without jurisdiction as Regulations 41 and 176 of the Chartered Accountants Regulations,1988 (hereinafter referred to as ‘the Regulations’) authorize the Examination Committee to take action in the matters relating to examination and to adjudge behavior of a candidate in or near an examination hall, where as the contentious letter was written about 2 months ahead of exams

b) Respondent 1 had send a registered notice dated 22.11.2020 asking the petitioner to refrain from addressing any such communication concerning the examination, failing which, Respondent 1 would be constrained to initiate legal proceedings against the petitioner. As the email dated 20.11.2020 was the only mail send by the petitioner, the respondents were estopped from taking any legal action against the petitioner until the petitioner sent any further e-mail/letter.

c) There was hardly any offending remark against ICAI or any of its office bearers, though certain things could have been avoided by the petitioner and it was only petitioner’s anxiety to request ICAI to develop online infrastructure, so that the CA Examinations at all levels could be conducted online. The content of the mail was in no manner derogatory.

d) The petitioner had vide her reply email dated 22.02.2021 even apologized. It was also submitted that use of expression “adopted unfair means” was factually incorrect on the face of it.

GROUNDS RAISED BY THE RESPONDENTS

a) As per Regulation 176(3) of the Regulations, any person aggrieved by the decision of the Examination Committee can file a review before the Council, hence, the petitioner should have sought that as a preliminary remedy and therefore, the writ petition is not maintainable.

b) It was also contended that as the petitioner has concealed a material fact of receiving a notice dated 22.11.2020 sent to her by ICAI’s counsel, the petitioner’s writ petition is liable to be dismissed.

c) The respondents also stressed that though the petitioner had been informed vide communication dated 30.3.2021 that the petitioner’s result had been cancelled, but the petitioner has chosen not to assail the same and hence, her writ petition seeking a declaration of result simplicity or, is not maintainable.

d) The respondent has taken all theme assures and precautions to ensure that the examinations beheld keeping the safety of all stakeholders to which even Supreme Court had consented and had dismissed a writ petition filed by one student (Amit Jain) on4.11.2020 and permitted the Respondent 1 to conduct examinations. The Petitioner ought not have raised doubts about ICAI’s preparation.

e) Examination Committee did have the jurisdiction to proceed against the petitioner and annul her examination and such action is well within the powers of Examination Committee as conferred by Regulations 41 and 176 of the Regulations as the Petitioner’s email was disorderly and related to the exams,

ANALYSIS BY THE HON’BLE COURT

a) The Petitioner’s email was addressed to ICAI’s President and other office bearers and not to the Examination Committee. Hence, the Examination Committee ought not have taken cognizance of an e-mail sent to the President of the Institute, unless the President directed it to do so.

b) The very initiation of the proceedings against the petitioner alleging that the e-mail contains derogatory remarks was uncalled for and unwarranted. On the contrary, this Court feels that action of the respondents was rather over bearing or high handed.

c) The Petitioner had in her reply mail dated 22.02.2021 apologized and had even gone to the extent of writing that “I am truly ashamed of myself.

d) The Petitioner was personally heard on 10.3.2021 yet no order was ever communicated/supplied to the Petitioner and the Petitioner came to know about her result had been cancelled, citing “adopted unfair means”. Further, the Examination Committee informed the Petitioner, in the reply mail dated 30.03.2021, that the result was cancelled due to the Petitioner’s making derogatory remarks and that a hard copy would follow, but the same has never seen the light of the day.

e) Though the Petitioner had not challenged the communication of the Respondent dated 30.3.2021 but it cannot be said to be in order and was simply an intimation. Therefore, the petitioner is justified in seeking a prayer for declaration of result.

f) The Petitioner cannot be held guilty for concealment of facts in relation to the notice dated 22.11.2020 as the Petitioner does not stand at any advantageous  position by its non-disclosure but it gives the petitioner an additional ground. Hence, it is a mere oversight.

g) When the fundamental rights have been infringed and when actions of the Respondent 2 are manifestly arbitrary, remedy of review cannot be posited as a road block in Petitioner’s way of invoking writ jurisdiction. Further, the alternate remedy would be illusory and an exercise in futility (Ram & Shyam Company Vs. State of Haryana-AIR 1985 SC 1147)

h) Since the Petitioner has not written even a single letter to the Respondent 1 to any other authority after 20.11.2020, The Respondent 1, therefore bound by its own notice was estopped from initiating any action much less disciplinary proceedings. In the opinion of this Court, the impugned proceedings were, therefore, fundamentally without any basis besides being arbitrary.

i) The Petitioner was never informed or put to notice that Respondent 2 was even contemplating the extreme action of cancellation of Petitioner’s examination which is contrary to principles of natural justice and also against the law as laid down by the Supreme Court in the case of Gorkha Security Services Vs. Govt. of NCT, Delhi reported in (2014) 9 SCC 105 which makes the legal position clear that a show cause notice should necessarily state the action which is proposed to be taken against the notice.

JUDGEMENT BY THE HON’BLE HIGH COURT

Regulation 41 OF THE Regulations reveals that the Examination Committee can initiate disciplinary proceedings in connection with the Examination, if a candidate behaves in a disorderly manner in or near an examination hall or has resorted to unfair means. The incidence or the email in question had no nexus or proximity with the examination hall, hence, the proceedings underchallenge were void since their inception.

The Institute of Chartered Accountants of India is a statutory body. Hence, its decisions, actions and adjudication are supposed to conform to the standards expected of State or instrumentality of a State. A State that suppresses freedom of speech and inflicts or imposes extreme punishment treating an act or attempt of criticism and/or if it treats any suggestion for improvement as a challenge to its authority or supremacy is a State, that disregards rather violates fundamental rights of a citizens guaranteed by Article 19(1)(a) of our Constitution.

The action of the Examination Committee was without jurisdiction; proceedings conducted by it were arbitrary and against the principles of natural justice. the decision dated 9/10.3.2021 of the Examination Committee is hereby quashed and set aside.

The Hon’ble High Court also added that a professional body like the Respondent 1 should introspect and ensure that its overenthusiasm of attaining professional excellence and endeavors of setting high standards of discipline should not silence rather stifle the speech of a student or its member in the manner that has been done in the present case.

The Hon’ble High Court directed Respondent 1 to send original mark sheet and certificate of passing CA Intermediate Examination to the Petitioner, forthwith. It will be required of Respondent 1 to appropriately reflect Petitioner’s result on its official portal. The Court did not impose any cost in the form of damages or otherwise and ordered that the cost of litigation be paid by the Respondents by way of demand draft to the petitioner.

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Disclaimer: The entire contents of this document have been prepared on the basis of relevant order passed by the HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION

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