Provision for submission of ICAI election nomination forms in multiple not required. High Court directs ICAI to consider its discontinuance. Failure to sign the undertaking is a defect of substantial character not a technical one.
ABCAUS Case Law Citation:
ABCAUS 2619 (2018) (11) HC
Important Case Laws Cited/relied upon:
Saroj Vs. Delhi State Election Commission MANU/DE/1258/2017
Jyoti Basu Vs. Debi Ghosal (1982) 1 SCC 691
Nandiesha Reddy Vs. Kavitha Mahesh (2011) 7 SCC 721
Three Writ Petitions had been file under Article 226 of the Constitution of India, challenging the communication of the Returning Officer and Secretary of the Institutes of Chartered Accountants of India (ICAI) rejecting the nomination of the petitioner(s) for election to the 24th Central Council of the ICAI, for the reason of noncompliance with the Chartered Accountants (Election to the Council) Rules, 2006 (the Rules).
Non signing of Nomination Forms
Contravention of Rule 9(3)(i)
The Petitioner CA had filed three nomination forms, two of which were not signed and the third nomination form also did not contain the signature of the petitioner.
In the third form, against the column “Name in Full”, the petitioner had originally written her name but subsequently deleted the first name and wrote it after the last name and put her initials in the margin in support of the said correction. ICAI contended that it could not take the place of the requirement of signature of the candidate.
The ICAI admitted that it is permissible under the Rules for a candidate to submit multiple nomination forms not exceeding ten.
However the Petitioner contended that the deficiency was only technical.
The Hon’ble High Court observed that the petitioner had clearly not put signatures on the form and had put the signatures only to authenticate the correction carried out. The Hon’ble High Court opined that the petitioner had clearly failed to append her signatures at the places earmarked in the form.
The Petitioner withdrew the Petition which as accordingly dismissed as withdrawn.
Non-compliance with Regulation 134(6)(i)
The Petitioner had omitted to sign against the column “Signature of Candidate” though had signed against the column “Signature of Candidate” at another page of the nomination form.
It was argued that the signatures that was missed was required to be appended only to undertake to abide by the provisions of the Chartered Accountants Act, 1949, the Chartered Accountants (Election to the Council) Rules, 2006 (Election Rules) and the Chartered Accountants Regulations and to certify the consent to stand for election and the payment of charges therefor and omission to sign the same is immaterial as it is the signatures made at later page which were in pursuance to Regulation 134(6)(a).
The Hon’ble High Court, with respect to the contention that the deficiency in nomination form being a technical one and not a substantial, observed that it cannot be lost sight of that the elections being held are to a premium professional body which is entrusted with certification of affairs of others and in whom trust is reposed to verify accounts of others and such deficiency on the part of the petitioner cannot be called a technical one and the petitioner cannot be permitted to, in contravention of the Rules, contest the elections.
The Hon’ble High Court also found merit in the contention of the ICAI that a reading of Regulation 12(10)(a)&(b) in entirety does indicate that the failure to comply with Rules 9, 10 & 11 is a defect of substantial character and not a technical one.
The Court opined that failure to sign the undertaking, to abide by the Act, Rules and Regulations, otherwise also has to be viewed as of a serious character and shows that the petitioner, in the event of being elected, did not intend to comply with the Act, Rules and Regulations.
The Hon’ble High Court pointed out that the Hon’ble Supreme Court had held that the right to contest elections is neither a fundamental right nor a common law right and is pure and simple, a creation of statute and is governed by and subject to limitations prescribed in the statute.
The Hon’ble High Court opined that once the statute provides for rejection of the nomination for non-compliance with Rules 9, 10 & 11, the question of the petitioner being permitted to now contest the election does not arise.
The Petition was dismissed.
Failure to attach demand draft towards fee and security deposit
Non compliance with Regulation 134(7) and (7A)
The nomination of the Petitioner was rejected for the reason of failure to comply with Regulation 134(7) and (7A) of the Chartered Accountant Regulations, 1988 i.e. for the reason of the nomination form of the petitioner being not accompanied with the requisite fee and security deposit.
The petitioner contended that he, along with the ten nomination forms filled up by him had enclosed a demand draft towards fee as well as the security deposit and had in the form, also mentioned the particulars of the said demand draft.
The Petitioner in support of his contention produced copy of the demand draft and a letter from the Bank confirming that the petitioner was issued the demand draft.
It was further stated that the nomination form was received by the ICAI before the last date for submission of nominations and the ICAI also sent an acknowledgment of receipt of nomination. It was contended that the petitioner, immediately on learning of the rejection, sent another demand draft which was received by the ICAI before the last date for withdrawal of nominations and thus nobody will suffer a prejudice if the nomination of the petitioner along with the demand draft was accepted.
The Hon’ble High Court opined that the question, whether the petitioner had forwarded the demand draft or not and whether the demand draft was lost at the end of the ICAI was a question of fact and which cannot be adjudicated without evidence.
The Hon’ble High Court rejected the contention of the counsel for the petitioner that at the time of acknowledgment, he was not informed that the demand draft was missing inasmuch as though the proviso to Rule 9(3)(ii) provides for an acknowledgment of delivery to be issued but there is no rule which provides for such acknowledgment to intimate of the deficiencies in the nomination submitted.
The Hon’ble High Court opined that the stage for scrutiny is reached only subsequently, under Rule. Thus, merely from the factum of acknowledgment having been issued, inference cannot be drawn that the demand draft must have been contained in the registered envelope through which the nomination was claimed to have been sent.
The Hon’ble High Court opined that when ten nomination forms are sent in one envelope, it cannot be said that the absence of demand draft would be immediately noticed.
The Hon’ble High Court even enquired from the ICAI, the need for a professional body as the ICAI to provide for submission of nomination forms in multiples, that too with a maximum of ten.
The Hon’ble High Court opined that when the election is to the apex body of a highly educated body of persons, the provision for submission of nomination forms in multiple, is not required. The ICAI was directed to consider the said aspect and take a decision thereon.
The Petitioner withdrew the Petition which as accordingly dismissed as withdrawn.
