• •

• BEFORE THE ELECTION TRIBUNAL, NEW DELHI

[ESTABLISHED UNDER SECTION lOB Of' THE COMPANY SECRETARIES ACT, 19801

APPLICATION NO. 2/2015

IN THE MATTER OF:

CS K K Singh .....Applicant

(Represented by : Ms. Madhumita Bhattacharjee, Advocate)

VS.

CS Rajiv Bajaj ..... Respondent

(Represented by : Dr. S. Kumar, Advocate)

30.03.2016

ORDER

1. This Application dated 20.01.2015 has been filed by

CS K. K. Singh, the Applicant herein , under Section

lOA of the Company Secretaries Act , 1980, (the 'Act')

raising a dispute in regard to the election of CS Rajiv

Bajaj, the Respondent herein, as a Member of the

Central Council of the Institute of Company

Secretaries of India (the 'ICSI') from the Northern India

1

,

Regional Constituency of the ICSI in the Elections held

in December, 2014.

2. The Applicant has alleged that the candidature of the

Respondent was on th e basis of mis represen tation of

facts and su bmission of false particulars to the

Institute/Counci l/Returning Officer a bout hi s

occupations in his nomination form for election to the

Central Council. It has been s tated by the Applicant

that as per information available in public domain, the

Respondent h as been simultaneous ly engaged in two

occupations, namely - (i) Advocate in Practice (being a

member of Bar Council of Punjab & Haryana vide

enrolme nt n o. Pj 423/1 996 since 30.3.1996 and an

active m ember of the Supreme Court Ba r Association

(SCBA) since 2005 vide m embers hip no. B-00398 and

(ii) Wh ole- time Company Secretary of a Company

(Panasonic AVC Networks India Co. Ltd .,) since

1.4.1998, particulars whereof h ave been filed with th e

MCA and also avail able in MCA records. The Applicant

has further stated that as per Members Directory ,

20 14 , of SCBA, the Respondent is a an a ctive member

of SCBA since 2005 in terms of Rul e 3(ix) of SCBA

Rules , which defines Resident Member as "a member

residing and practising as an advocate in Delhi or its

s uburbs .»

2

3. The Applicant fu rther submitted that in the Statement

purs uant to SUb-rule (4) of Rule 9 of the Company

Secretaries (Election to the Council) Rules, 2006, read

with Schedule 4 (Annexed to the Nomination Form for

Election to the Council of the Institute of Company

Secretaries of India), the Resp ondent has furnished

particulars knowing th em to be false. It has been

sta ted that in the aforesaid statement, the Respondent

has only dis closed about his employment as Company

Sec retary of Panasonic AVC Networks India Co. Ltd .,

and again st the item requirin g "Particulars of other

Occupation" he has mentioned "Not Applicable"

whereas h e was supposed to mention about his being

practising a dvocate, which is cl early a false statement

and mis -representation of fa cts on the part of the

Respondent.

4. The Applicant further submitted that by dishonestly

mentioning abou t one of th e two professions and

concealing the other, the Respondent has acted

dishonestly and with intent to play with the trust of

the electorate / members of the Institute. It has been

stated that during the election period there was strong

opposition, in section of the electorate) of candidates

who were engaged in a profession other than that of

Company Secretary. Therefore, if the Respondent had

disclosed tru e and correct fac ts, the situation would

have been different. It ha s been alleged by the

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App lica nt tha t it is clea r case of deliberate attempt on

the part of the Responden t to c hea t the In s titute , the

Council and the Electorate and th e Institute with

u lteri o r m otive. It has been s ta ted that th e unlawful

a ct of the Responden t calls for declaring the

candidature of th e Responden t a s null and void and

th e re by declaring fr es h election s to be held on the

basis of true and correct p ar ti culars .

5 . The App lican t h a s prayed t hat th e u nlawful acts of the

Respondent call for declaring his candidatu re as n u ll

a nd void a nd th e reby declaring fresh electio n to be

h eld on th e basis of true and correct particulars.

6 . The Applicant has also prayed tha t till the d isposal of

h is Application, th e Cou n cil , th e President, and the

Vice- Presiden t should n ot allow the Respond en t on

e thical and moral grounds:

(i) to p articipate any of the

m ee tings/proceed in g of the Council ;

(ii) To be nomina ted on any of the

Committees of th e Institute (least he

s hou ld n o t be m ade a m ember of th e

Board of Discip line or Disciplinary

Comm ittee. )

(iii) To represent the In s ti tute a t an y of the

Committees of th e Govern ment /

a utonomou s bodies/ exte rnal agencie s .

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:

(iv) To have access to any of the documents

and record s to which only a Council

Member can h a ve; or

(v) To temper with any documents or

influen ce any authority or officer to

dis tort th e evide nce , if any.

7. The Respondent in hi s Written Stateme nt dated

7 - 11-2015 submitted th a t th e allegation s of the

Applicant against him are wrong and made on flim sy

an d unfounded grounds and denied the same . He

sUbmitted that the Applicant filed the captioned

a pplication out of frustra tion and a s an a fterthou ght

afte r having los t the election to the CounciL Without

admitting the a llegation of the Applicant , the

Respondent submitted that the Hon 'ble Tribunal is not

the appropriate forum to deal the allega tion of h aving

been engaged s imultaneously m the occupation

of "Advocate in p ractice".

8. The Respond ent fu rther submitted th a t he has not

concealed any information and con tested the election

in a fair and transparent manner and information

furnished by him was true to the best of his knowledge

and belief. He further submitted that he had

surrendered th e membership of th e Bar Council of

Punja b & Haryana and Supreme Court Bar Association

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, Jong back and on the date of the fiJing of the

nomination for the election to the CounciJ of the ICSJ ,

he was not a member of the Bar Council of Punjab &

Haryana and Supreme Court Bar Association. He

furth er submitted that h e is a law graduate but he

never practiced as an advocate during his entire career

and till date an d membership of the Bar

Council / Association was taken on the advice of the

employer for providing support to employer's litigation.

He further su bmitted that he had made the request to

the Supreme Court Bar Association vide le tte r dated

7 .7.2011 which were duly received and acknowledged

by the SCBA on 9.7.2011 for striking off his name. He

further submitted that h e has not paid any fees to the

SCBA after the year 2011 and had all the reasons to

believe that his name struck off as the annual payment

of fee was never paid since 2011.

9. The Responden t has stated that he has never been an

advocate in practice and that he was never engaged in

the occupation as an advocate. He further submitted

that the generally a ccepted defini tion of practice of law

is "the practice of law involves giving Jegal advice to th e

clients, drafting legal documen ts for clients , and

representing clie nts in legal nego tiation s and court

proceed ings such a s lawsuit , and is applied to

professional servICes of a la wyer or attorney at law,

barrister, solicitor, or civil law notary". The

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:

Responden t submitted that h e has never provided any

legal services to any client and never appeared in any

court in the en tire cou ntry and never raised any

invoice and received any payments for a ppearing as an

advocate.

10. The Respondent submitted that there was no

m isstatement in the "statement p ursuant to sub-rule

(4) of Rule 9 read with Schedule 4 of the Election

Rules" filed by him along with his n omination form

and he h ad not con cealed any facts In the said

statement. He submitted that s1t1 ce he was not

practising as an Advocate, the question of mentioning

a s such in the said statement did not arise and

th erefore he correctly m entioned his emp loyment

particu lars as wh ole time Company Secretary with

Panasonic AVC Network India Company Ltd.

11. The Respondent further submitted that h e was not

pu rsuIng any profession other than being the

Company Secretary and Director, Finance In

Panasonic Ave Network India Company Ltd. and

obviou s ly the information with regard to the

particulars of other occupatio n was not applicable and

h ence h e correctly wrote "not applicable" against the

re levant column in the said statemen t. He further

s u bmitted that the particulars of occupation as

Company Secretary and Director, Finance In

1">V-v ex..

7

,

Panasonic AVC Network India Company Ltd. , were

mentioned correctly as he was not engaged in any

other occupation and the verifi cation signed in terms

of RuLe 9 (4) of the Election RuLes was correct and true

to th e best of his knowledge and belief and no false

s tatement or m is representati on as alleged had been

made by him.

12 . The Respondent submitted that th e electorates are

composed of hard core professionals namely Company

Secretaries, Chartered Accountants, Cost Accountants,

lAS/IPS , other members of the Institute occupying

prestigious positions In the corporate world and

Government and they have voted for the Respondent

after looking into his credentials and contributions to

the profession . He further submitted that electorates

are well educated and cannot be carried away.

13. The Appli cant 111 his rejoinder affidavit dated

24.11 .2015 denied the avermen ts made by the

Respondent in his written s tatemen t and submitted

th a t the contents of the Respondent in his written

statement cannot be taken on records as the same

were not verified by the Respondent. He furth er

submitted that such veri fi cation IS mandatory

requirement in any proceedings which is guided by the

Code of Civ il Procedure .

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14 . The Applicant, after h aving d rawn atten tion to the

relevant rule s of the Bar Coun cil of Ind ia Rules, alleged

that the Respondent h ad miserably fa il ed to prove that

he surrendered his enrolment certificate to the Bar

Council of Punjab & Haryana and cance lled his

membership of the Supreme Court Bar Association

where he had been enrolled as Advocate , apart from

being in violation of th e Bar Council Rules which is

also very unethical , illegal and speaks volumes of his

maladies.

15. The Applicant furth er a lleged that the Respondent h ad

acted illegal ly In taking the e mpl oyme nt and

members hi p of Bar Cou nc il at the same time thereby

keeping both Au thorities (I CSI & BCI) in dark and he

also misrepresen ted to the electorate and ICSI thereby

hiding th e proper and due information which is

required to be given as per the Company Secretaries

(Election to the Co un cil) Rules , 2006, to have free and

fair election and to exercise fair franchise by the

members while voting for the Respondent.

16. The Applicant has fu rther stated that the Respondent

fai led to prove that why he had not followed the

manda te of Bar Council of Ind ia Rules and by

delibera tely con ceal in g this fact , he committed breach

of trust to the electorate. He furth er al leged tha t the

Respondent was misrepresenting before the Hon 'ble

/:l 9

Tribunal that h e h ad su rrendered h is certificate

/enrolment as Advocate just by sending a simple letter

again without following the rules and procedure of

surrender.

17. The Applicant further sUbmitted that in reply to the

RTI application filed by one another complainant Mr.

Hitender Mehta to the Bar Council of Punjab &.

Haryana, it had come on record tha t the Respondent

had not su rrendered his enrolment certificate with the

Bar Council of Punj ab &. Haryana in gross violation of

the requirement of Bar Council Rules and his name

con tinued on the rolls of Practicing Advocates and that

the SCBA Members' Directory of 2015 also bears his

narne as an active mem ber of the Bar Association.

18. The Applicant further alleged that in response to

further RTI appl ication filed by Mr. Hitender Mehta, it

had come on record that while malcing application to

the lCSr for the issue/restoration of Certificate of

Practice, the Respondent has made a categorical

declaration in form D dated 26.8.1997 that he was not

engaged in any other profession and not enrolled as

Advocate, based on which h e has obtained the

certificate of practice from lCSI in 1997.

19. The Applicant further alleged that while applying for

FCS from rcsr, the Respondent had again not

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disclosed about the fa ct of his being an Advocate and

gave wrong declaration, though h e had mentioned

about his being the office bea rer in Chandigarh

Ch a pter in his experience certificate dated 30 .8.1999.

Otherwise, even at that stage if he wou ld h ave declared

and discl osed the facts about hi s enrolment as a n

Advocate, he would no t have bee n granted PCS status

from ICSl, which is one of the prime conditions for

con testi ng the Council Election , i.e ., candidate should

be FCS.

20. Since th e Election was condu cted by the ICSI, in orde r

to ascertain the t rue and correct factual position of the

ma tter, the ICSI was requested to provide its

comments to the ap plication. The rCSI in its comments

d a ted 16. 11.2015 submitted th at in th e record s of the

TCST including the application s ubmitted for issue of

Certificate of Practice pertainin g to Respondent, it was

sta ted in Porm D that h e is not enrolled as an

Advocate and there is no information that h e is a

member of SCBA. The lCSI further submitted that in

column 1 (c) (i) "Employment (designation with name of

present employer)" of the nomination form, the

Respondent has stated as ' Panasonic AVC Networks

India Company Ltd. , Company Secretary & Associate

Director-Pin an ce." The IeSI referred to Rule 7 of the

Election Rules and sta ted that in the Election Rules,

there is no restriction and proh ibition on the members

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of the ICSI to be members of any State Bar Councilor

the Bar Association, to contest any election of the ICSI

including the election for the Regional Councils.

Copies of the comments of ICS! were g iven to the

Applicant, as well as th e Respondent, for their

information . However, in his rejoinder, the Applicant

s tated that in its comments, the ICSI had not

commented on the p oints when ICS! m ember is taking

COP and FCS on wron g declaration and

misrepresentation in its application form , what should

be the stand of ICS!. The Respondent has not made

any comment on the fa ctual position stated by ICS!.

2 1. The matter was heard on 29.1.2016 in the presence of

both th e parties. Both the parties were represented by

th eir learned Advocates and both of them reiterated

th eir r espective contentions . The paJ·ties were gIven

liberty to file their written argumen ts made by them

during the course of argument. The Applicant as well

as the Respondent have filed their respective written

arguments. Both the parties in their respective written

arguments reiterated their submissions made In

a pplication / written s ta teme nt and oral arguments

advanced during the course of hearing in the m atter.

The Applicant in his written arguments has also

referred to some ru lings of the Hon'ble Supreme Court

of India and other Courts/ Forum in support of pu rity

of election s. The Respondent in his written argument

12

has for first time stated that h e, vide his le tter dated

05.08.1997 duly received by the Bar Council Punjab &

Haryana, had requested the Bar Council to hold his

registration in abeyance. He has) however, not placed

on record a copy of the aforesaid letter dated

05.08.1997 . The same is objected to by the Applicant

vide his objections dated 15 022016,&

22. The Tribu n al has carefully con sidered the submissions

made by the parties and also gone th rough the

application , written s tatement, written argu ments and

all the documents avai lable on record . The

Respondent has, in h is written s ubmissions, made a

new point that while clause (1) of the Statement of

Information in terms of Schedule 4 is mandatory,

Clause (2) th ereof is optional. This point was not

taken by the Respondent in his Written Statement or

during the course of argu ments. Ordinarily, a new

point whi ch was not made in the pleadings or during

the course of argument can n ot be taken cognizance

of, if the same is taken in Written Submission, which

normally is a brief record of the arguments made

during the cou rse of hearing, but since this new point

ra ises a legal issu e, the same has been taken into

cons ideration in the inte rest of justice.

23. Rule 9 (4) of the Company Secretaries (Election to the

Coun cil) Rules, 2006, provides that nomina tion shall

be valid only if it is accompanied by a statement signed

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and verified by the candidate containing informa tion

as provided in Schedule 4. Schedule 4 of the Election

Ru les prescribes the informa tion which is to be

con ta ined in the statement of contesting candidate

accompanying the nom ination form in compliance of

Rule 9 (4) of the Election Rules. Cla use (2)(c) of

Schedule 4 of the Election Rule which requires a

can d ida te to provide particulars of the occupa tions

reads as unde r:

"(c) Particulars of Occupation:

(i) Employment (designation with name of the present employer)

(ii) Practice (sole proprie tor or m partnership including the name of the firm)

(iii) Parti culars of o the r occupa tion / engagement, if not covered by (i) & (ii) above,"

24 . Ru le 42 (4)(xii) of the Election Rules prohibits a

member of the lCS l from contravention or misuse of

a ny of the provisions of the said Rules or making any

false state ment knowing it to be fal se or without

k n owing it to be tru e while complying with any of the

provisions of these Rules.

2 5. Rule 42 (1) of th e Election Rules provides that any

violation of s ub-rules (2) , (3 ) a nd (4) of Rule 42 is liable

to invite punishment for bringing disrepu te to the

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Cou n cil of the ICSI under item (2) of Part IV of the First

Schedule of the Company Secretaries Act, 1980.

26 . This Tribunal is established under Section lOB of the

Company Secretaries Act, 1980 for a specified purpose

to decide the dispute regarding election of th e Council

of the ICSI held in December , 2014. This Tribunal does

not have jurisdiction to entertain and adjudicate upon

any matter other than the dispute raised in respect of

the election to the Council held in December , 2014.

He nce, it is beyond th e jurisd iction of this Tribunal to

go into the allegations of the violation of the provisions

of Advocates Ac t, 1961 , The Companies Act,

1956/2013 and The Company Secretaries Act, 1980,

Company Secreta ries Regulations , 1982, (on the

issues other than the election).

27. From the above, following issues arise for adjudication :

(1) Whether the written statement of the Respondent

could nol be taken on record as the SaITle was not

verified by him as per the requirement of the

Code of Civil Procedure.

(2) Whether the Respondent was enrolled as an

Advocate on the da te he fiLed his nomination

papers for election to the Cou n c iL of th e Ln stitute

from Northem India Regional Const ituency.

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(3)Whether the Respondent was mandatorily

required to give the details of his "other

occupation/engagement" as an Advocate in reply

to Clause 2 (c) of the stateme nt accompanying the

nomination form in terms of Sub-Rule (4) of Rule

9 of th e Election Rules 2006.

(4)Whether non-declaration of the information by

the Respondent about his occupation as a

Practicing Advocate m ade him ineligible to

contes t the elec tion on account of concealment of

material fact or misstate ment in his nomination

form fOT election to th e Council in the election

held in December , 2014.

(5) Whether the election of th e Respondent to the ICSt

Council in the election held in December, 2014 is

not valid , an d

(6 ) Relief, if a ny.

28. ISSUE NO. (1):

(1) Whether the written statemen t of the Respondent could not be taken on record as the same was not verified by him as per the requirement of th e Code of Civil Procedure.

28. 1 Section 10 B of th e Company Secre taries Act,

1980, provides for th e establishment of Tribunal

con s isting of a Presiding Officer and two other

16

m embers by the Central Govt., to decide any

dispute regarding any elec tion under Clause (a) of

SUb-Sec tion (2) of Section 9 of the Company

Secretaries Act, 19 80, which may be made by an

aggrieved person within thirty days from the date

of declaration of the results .

28.2 The Company Secretaries (El ection Tribunal)

Rules, 2006, notified by the Central Govt . in

exercise of the powers conferre d by Clause (5) of

S ub-Section (2) of Section 38 A read with Sub­

Section (3) of Section 10 B of the Company

Secretaries Act, 1980, provides inter-alia that in

the discharge of its fun ctions th e Tribunal shall

be guided by the principles of n a tural jus tice and

subject to other provis ion of the Act and Rules,

the Tribunal shall regu la te its own procedure .

For th e purpose of deciding a dis pute the

Tribunal has been conferred the same powers as

are vested in a Civil Court under the Code of Civil

Procedure , 1908, in respect of th e following

matte rs :

(i) Summoning and enforCing the attendance of any person and examining him on oa th;

(i i) The discovery and production of any document;

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(iii) Receiving evidence on affidavit; and

(iv) Cross-examining the witnesses produced before it.

28.3 In the present case the Application was made by

the Appl ican t to the Returning Officer raisin g a

d ispute In regard to the election of the

Respo ndent to the Council of the Institute from

Northern India Regional Constituen cy in the

election held 111 December, 2014. The said

complaint was referred by the Ins titute to the

Cen tral Govt. for con s tituting the Election

Tribunal in term s of Section to B of th e Company

Secretaries Act, 1980. The Appli cation was

neither verifi ed by the Applicant n or supported by

his Affidavit verifying the contents of the

Application. At n o stage the Applicant was asked

to file an Affidavit verifying the conte nts of the

Application . A copy of his Application was

forwarded by thi s Tribunal to the Respondent for

his written statem en t. The written s ta tement

filed by the Respondent was also neither verified

by him nor was it supported by an Affidavit.

Since the original Application itself was n either

verified n or supported by the Affidavit the

Tribunal is of the view that the written statement

which was neither verified nor supported by an

Affidavit can be taken on record. This issu e is

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decided in favour the Respondent and against th e

Applicant .

29 . ISSUE NO. (2):

(2) Whether the Respondent was enrolled as an Advocate on the date he filed his nomination papers for election to the Co uncil of the Institute from Northe rn India Regiona l Constituency.

29.1 In his Application the Applicant has alleged

that the Respondent concealed the fact of

pursuing the profession as an Advocate in the

statement filed pursuant to Sub- Rule (4) of Rule 9

of the Company Secre taries (Election to the

Council) Rules, 2006, read with Schedule 4

thereof annexed to the nomination form for the

election. It has been alleged that the Respondent

was Advocate in Practice, being a member of the

Bar Council of Punjab & Haryana, vide

enrollment No. P/423jl996 since 30.03.1996

and also actin g member of the Supreme Court

Bar Association since 2005 with Membership No.

B-00398.

29.2 In his written statement, the Respondent

has not denied the fact that h e was enrolled as an

Advocate with the Bar Council of Punjab &

Haryana or that he was Member of Supreme

Court Bar Association (SCBA) . He has only stated

19

that he never practised as an Advocate and that

he had surrendered the membership of Supreme

Court Bar Association, vide his letter dated 7'"

July, 2011, which was delivered by hand and

acknowledgement taken. He did not pay his

membership fee thereafter. He has stated that he

never appeared as an Advocate even for his ov.m

organization and just represented his employer

before the Judicial Authority as a part of job

responsibility clearly assigned to him from time to

time. The Respondent has stated that vide his

letter dated 5'" August, 1997, he requested the

Bar Council of Punjab & Haryana Bar Council to

keep his registration in abeyance.

29.3 In his rejoinder the Applicant has annexed a copy

of the reply dated 13.02.2015 sent by Bar Council

of Punjab & Haryana to Mr. Hitender Mehta

under the RTI Act stating inter-alia that no

Application was received from the Respondent for

voluntarily suspension/cancellation of his

enrollment certificate and that as per his personal

file, his name is continuing on roll of Practicing

Advocates. It is pertinent to observe that Shri

Hitender Mehta has also filed an Application

under Section lOB of this Act, before this

Tribunal on the same issue.

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29 .4 The Respondent h as not placed on record a copy

of h is letter dated 7'" July, 2011, stated to h ave

been written to the Supreme Court Bar

Association to substantiate his claim that h e had

made request to Supreme Court Bar Association

for deletion of his name. The membership of

Supreme Court Bar Association, or for that

matter, of any Bar Association) is not a pre­

requisite for carrying on the practice as an

Advocate. On other hand enrollment with the Bar

Coun cil as an Advocate IS a mandatory

requirement for carrying on the practice as an

Advocate. In terms of Rules of the Bar Council of

India, the surrender of Enrolment Certification is

an essential requirement for suspen SIOn or

cancellation of the Enrolment . As per the records

of the Bar Council of Punj ab & Haryana, the

Respondent never surrendered his Enrolment

Certificate and his enrolment as a Practicing

Advocate is s till al ive.

29.5 Section 2(a) of Advocate Act, 1961, defines an

"advocate" to mean an advocate entered in any

roll under the Ac t. Section 2 (i) of the Advocates

Act defines the "legal Practitioner" as "an

advocate, or val<il of any High Court, a pleader, a

mukhtar or revenue agent." Section 29 of the Act

provides that Advoca tes shall be the only

21

recognized class of persons entitled to practise

law. Section 30 of the Act sta tes that subject to

provisions of th is Act, every advocate whose name

is entered in the State roll shall be entitled as of

right to practise throughout the terri tories to

which this Act exte nds, ­

(i) in all courts including the Supreme Court;

Iii) before any tribun a l or person legally authorize to take evide nce ; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to ractise

29.6 Since the enrollment of the Responden t as an

Advocate with the Bar Council of Punjab &

Haryana is still al ive, th ere is no doubt that he is

an Advocate and can practice law in terms of th e

provisions of Advocates Act. It is, therefore, held

that the Respondent was en rolled as an Advocate

with the Bar Cou ncil of Punjab & Haryana at the

time of his fil ing nominat ion as a candidate for

election to the Council of the Institute in the

e lection held in December, 20 14.

30. ISSUE NO. 3

}v 22

(3 ) Whether the Respondent was m andatorily required to give the deta ils of his "other occupation/ engagement" as an Advocate in reply to Clau se 2 (c) of th e statement accompanying the nomin a tion form in terms of SUb-Rule (4) of Rule 9 of the Election Rules 2006

30.1 Rule 9 (4) of the Election Rules provides that the

nomination of th e candidate s h all be valid only if it

is accompanied by a s tatement s igned and verified

by the candidate containing information as provided

in Schedule 4 of the Rules. Schedule 4 of the Rules

prescribes the information which is required to be

in cluded m th e s tatement accompanymg th e

nomina tion . Cla u se (1) of th e Schedule s tates that

the nomination of a candidate shall be accompanied

by a statement signed and verified by the candidate

containing th e information mentioned m Sub­

Clause (a) to Ul of the said Clause. Clause 2 of the

Sch edule 4 s tates that th e statement referred to in

Clause 1 may also contain , at the option of the

candidate, infonn ation concen1.ing the candidate in

respect of the matters m entioned in Su b-Clauses (a)

to (d) thereof. Sub-Clause (c) of Clause 2 requ ires

the candidate to give the particulars of occupations

I.e. (1) e mploymen t (des ignation with name of the

present employer); (ii) Practice (Sole proprietor or in

partnership including the name of the firm); and (iii)

Particulars of o ther occupation /engagement, if not

covered by (i) and (ii) above . In terms of the Sub­

23

Clause (c) of Clause 2 a candidate is required to give •

the Particulars of his Occupations. Against Clause

2(i) the Respondent furnished the details of his

employment as Wholetime Com pany Secretary In

Panasonic AVC Networks India Company Ltd.

30.2 The Applicant has alleged that the Respondent

deliberately and willfu lly con cealed the material fact

about his other occupation of being a Practising

Advocate. The Respondent has rebutted this allegation

and h as, in his defence, stated that at the time of filing

his nomination he was not pursuing any profession

other than being the Compa ny Secre tary and Director,

Finance in Panasonic AVC Network India Company

Ltd. and obviously the information with regard to the

particulars of other occupation was not applicable and

hence he had correctly written "not applicable" against

the relevant clause in the said statement. He further

submitted that the particulars of occupation as

Company Secretary and Director, Finance In

Panason ic AVC Network India Company Ltd., have

been men tioned correctly as he is not engaged in any

other occupation and the verification signed in terms

of Rule 9 (4) of the Election Rules was correct and true

to the best of his knowledge and belief and no false

statement or misrepresentation as alleged has been

made by him . As there is mention of the word 'may' in

Clause (2) in contradistinction to the word 'shall' in

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Clau se (1) of the Schedu le 4 , the particulars to be•

given against clause (2) of the S tatement under Rule

9(4) of the Rules is optional, the Respondent could

h ave opted n ot to give th e information against any of

th e Sub-Clauses (a) to (d) of Clause 2. However, h e

has voluntarily chosen to give information.

30.3 The su bstantive defen ce of th e Respondent is that

he never practiced as an Advocate and, there fore , it was

n ot his occupation and accordingly the same was n ot

mentioned in the state me n t. Having regard to the fac t

that the Applicant h as not placed on r ecord any

document to show th at the Respondent was actually in

prac tice as an Advocate even though h is name was on the

ro ll s of the Bar Council . Thus, hi s con te ntion cannot be

accepted and the benefit is to be given to the Res pondent.

This issue is answe red accordingly, and, therefore , he

was not mandatorily required to give the details In

addition to his full time employment as whole time

Company Secre tary of Panasonic AVC Networks India

Company Ltd.

31. ISSUE NO . 4:

(5) Wheth er non -declaration of th e information by the Respondent a bout his occupation as a Practicing Advocate made him ineligible to contest the election on account of concealment of m aterial fact or misstate ment in hi s nomination form for election to the Council in the election held in Decembe r , 2014.

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31.1 Ru le 42 of the Election Rules provides for action

agai n s t a Member in connection with the conduct of

election if h e is found guilty of any act of omission or

commission as provided in Sub-Rules (l ) to (4) of Rule

42 . Lt , therefore, follows that if a cand idate is found

guilty of any of misconduct men tion ed in Rule 42 he

has to be proceeded against in terms of Section 22 of

the Company Secretaries Act , 1980 read with Firs t and

Second Schedu le thereof and th e Company Secre taries

(Procedure of investigation s of Professional and Other

Misconduct and Conduct of Cases) Rules, 2007. The

Election Ru les do not provide for settin g aside for

e lection on any of th e ground mentioned in Rule 42 of

the Rules.

3 1.2 In hi s written argu me n ts the Applicant has placed

re li ance on th e decis ions of the Supreme Court in

support of h is al legations, some of which are :

(a) Resurgence India Vs. Election Commission of India and Anr. (AIR 2014 SC 344)

(b) Kisan Shankar Kathore Vs. Arrun Dattatray Sawant and Ors. (AIR 2014 SC 2069)

(c) PUCL Vs. Union of India (2003) 4 SCC 399

(d) Puckerm Sharatchandra Singh Vs . Mairembam Prithviraj (AIR 2015 SC 3783)

Ie) O. P. Sharma Vs. High Court of Punjab & Haryana (2011) 6 SCC 86

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3 1.3 Most of th e cases relied upon by the Applican t are

concerned with the conduct of elections under the

Re presentation of the People Act , 1950. The said Act

s pecifically provides for the grounds on which the

e lection can be declared void (Section 100) and the

grounds for which a candidate, other than the

returned candidate, may be declared to h ave been

elected (Section 10 1) . In our view, the ratio of the

judgments relied upon by the Applicant are not

applicable to this case as the facts are di stinguishable.

The Application filed by the Applicant h as to be

adjudicated in terms of provis ions of the Company

Secretaries Act, 1980 and the Company Secretaries

(Election to the Council) Rules , 2006. In view of the

above discussion , the aforesaid issue is decided

against the Applicant and in fa vour of the Respondent.

32. ISSUE NO.5

(6) Wheth er the election of the Respondent to the lCSI Counc il in the elections held in December, 20 14 is not valid .

32.1 In hi s Application the Applicant had prayed that in

view of the unla wfu l acts of the Respondent , a s

mentioned in the Application, the candidature of the

Respondent , S hri Rajiv Bajaj , shou ld be declared as

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•

null and void a nd thereby declaring a fresh election be

h eld on the basis of true and correct particulars.

32.2 Though the Respondent was enrolled as an Advocate

with the Bar Coun cil of Punjab & Haryana he was not

practicing the profession. The Appli cant was not able

establish by any evidence that the Respondent ever

appeared 111 any case in a court of Law or h e was

engaged in the legal profession. Thus, the allegation

that the Respondent made a fa lse declaration in the

statement under Rule 9 (4) of the Rules is not

established. This issue IS decided against the

Applicant and in favour of the Respondent .

33. ISSUE NO.6

Relief, if a ny.

33. 1 The Applicant's main allegation is that the Respondent

conte sted the e lection based o n false inrormation and

signing of verification knowing it to be false and thus

fraudu lently won the election to the Council of the

Institute in the election held in December , 20 14. We

h a ve taken the view that while the Respondent was

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•

enrolled as an Advocate with the Bar Council of Punjab

& Haryana, the Applican t could not establish that the

Respondent was in active practice as an Advocate.

Therefore, in the declaration in the statement under

Rule 9 (4) of the Rules, there was no concealment of

material fact.

33.2 The Applicant also alleged that the Respondent was a

Practicing Advocate while holding whole time

employment in violation of the Advocates Act and the

Rules made there under and that by engaging in two

occupations i.e. Practicing Advocate and Company

Secretary, the Respondent has violated the provisions

of the Company Secretaries Act, 1980 and the Rules

made there under.

33.3 It has also been alleged that the Respondent is guilty

of serious misconduct in terms of the provisions of

First and Second Schedule of the Company Secretaries

Act, 1980. The Respondent is also alleged to have

contested the election to the Northern India Regional

Constituency in the year 2006 and 2010 without

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·' disclosing the materi al [acts a bou t his simultaneously

being engaged in two occu pations . In our view, for

these allegations the remedy lie s elsewhere and this

Tribuna l has no jurisdiction.

33.4 In the facts and circumstances, we are of the view that

the Applicant has fai led to make out any case against

the Respondent and th e Application deserves to be

d ismissed. Accordingly, thi s Application is dismissed.

No Order as to cos ts.

A copy of th is order be sent to the parties and

also to th e lesJ.

.A.\,-.~ ~. (A.K. Chaturvedi) (R. Asokan) Member Member

~ (D. Bhardwaj) Presiding Officer

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