Whether membership of a CA/CS can be revoked if it is discovered that he/she was convicted of an offence under IPC during his/her student days?

  

Shubham Budhiraja[1]

Shubhambudhiraja02@gmail.com , 9654055315

 


Mr. A when he was a student of ICAI and during his days of CPT, he was booked under Section 376(2) (g), Section 354 & Section 506-II of IPC, However, post his membership as CA, he was convicted under those sections but the HC modified the conviction to 7 months only. Thereafter ICAI issued show cause notice to Mr. A to disqualify him to practice as CA because of his conviction as moral turpitude. Mr. A challenged the show cause notice before Hon’ble High Court on ground that (i) conviction date back to his days of student journey and therefore same cannot be dragged today because conviction was not made in professional capacity, (ii) The show cause notice is driven by malafide because Mr. A wife who is also CA is contesting for ICAI central council elections. The HC refused both contentions of Mr. A and hold the show cause valid for following reasons[2]:

 

(I)                 The profession of Chartered Accountancy is regulated by the Chartered Accountants Act, 1949. The Regulatory Board is the Institute of Chartered Accountants of India (‘ICAI’), which maintains the Register of Chartered Accountants. As per Section 5 of the Act, there are two categories of members of the Institute - Associates and Fellows. The ICAI conducts examinations which have to be cleared for a person to be recognized as a CA. The ICAI also issues a certificate of practice to such persons who qualify the said exam. Unless and until a person obtains a certificate of practice, he or she cannot practice the profession of Chartered Accountancy in India.

 

(II)               There are three categories of disabilities that are contemplated under Sections 8 (v) and 8 (vi), when read together: (i) Conviction for an offence involving ‘moral turpitude’; (ii) Conviction for an offence committed in professional capacity which is not technical in nature; (iii) Person held guilty of ‘professional’ or ‘other misconduct’ post an inquiry by the Disciplinary Committee, as per Section 21 of the Act. If any of the disabilities as discussed above exist - either at inception or even after a person has qualified as a Chartered Accountant, and is a member of the ICAI, such person would not be entitled to have their name entered upon and would be liable to have their name removed from the register of the ICAI.

 

(III)             a. There are, broadly, two categories of misconduct contemplated under the Act – ‘professional misconduct’ and ‘other misconduct’. These two types of misconduct are covered under Section 8 (vi) read with Section 22 and the Schedules to the Act. b. However, a conviction for an offence involving ‘moral turpitude’ punishable with imprisonment- is a third and higher class of offence under Section 8(v) of the Act and is stipulated as a separate class of disabilities which bars a person’s name from being entered or borne in/continued in the register of the ICAI. This is a graver offence, in terms of the scheme of the Act, juxtaposed to what is contemplated under the third part of the Second Schedule or the fourth part of the First Schedule to the Act. c. In the case of an offence involving ‘moral turpitude’, for which no pardon has been granted, by a strict interpretation of the Act, the matter need not even be referred to the Board of Discipline or to the Disciplinary Committee for an inquiry. In such cases dealing with conviction for offences involving  ‘moral turpitude’ covered under Section 8(v) the same would straight away fall within the jurisdiction of the ICAI Council, and even an inquiry, as contemplated in Section 21, would not be strictly required. The ICAI Council, may however, for the purposes of complying with the Principles of Natural Justice, and for the purposes of fairness, still decide to provide a hearing to the person concerned. d. A reading of Sections 20, 21 & 22 would show that the discretion vested in the Council and the Director (Discipline) are vast. Inquiry can be conducted in respect of professional or other misconduct as also under any other circumstances. e. In the case of offences under Section 8(vi) read with Section 22 and the Schedules, the ICAI is the final authority empowered to accept the recommendation of the Board of Discipline, in the case of misconduct specified in the First Schedule, and of the Disciplinary Committee in cases of misconduct specified in the Second Schedule, or a combination of both the Schedules. f. It is further clear that if a person has been convicted for an offence involving ‘moral turpitude’, such a person’s name cannot be entered into the register or cannot continue in the register, and has to be removed from the register, unless a pardon in respect thereof is granted. g. Although, from a bare reading of sub-section 8(v), it may appear that the Central Government would have the power to remove the disability even in offences involving ‘moral turpitude’, in the opinion of this Court, in case of an offence or a conviction involving ‘moral turpitude’, such power being vested with the Central Government would be contrary to the spirit of the statute as also contrary to the settled judicial precedents, to the effect that `moral turpitude’ would be a complete disqualification. The use of the expression “entered in” contained in Section 8, also shows that offences committed prior to the person qualifying as a CA are also within the purview of the disabilities mentioned under Section 8 of the Act. The only condition, upon which a person convicted can be entered into or can continue on the register of ICAI, would be if the person has been granted a pardon.

 

(IV)             The offences involving moral turpitude included the following: “11. Annexure A to the above policy which refers to offences involving moral turpitude is extracted below: “1. Criminal Conspiracy (Section 120-B, Indian Penal Code) 2. Offences against the State (Sections 121, 130, Indian Penal Code) 3. Offences relating to Army, Navy and Air Force (Sections 131-134, Indian Penal Code) 4. Offence against Public Tranquility (Section 153-A & 153-B, Indian Penal Code). 5. False evidence and offences against Public Justice (Sections 193-216A, Indian Penal Code) 6. Offences relating to coin and government stamps (Section 231-263A, Indian Penal Code). 7. Offences relating to Religion (Section 29 297, Indian Penal Code) 8. Offences affecting Human Body (Sections 302-304, 304B, 305-308, 311-317, 325- W.P.(C) 6819/2020 Page 48 of 88 333, 335, 347, 348, 354, 363-373, 376- 376-A, 376-B, 376-C, 376-D, 377, Indian Penal Code) Offences against Property (Section 379- 462, Indian Penal Code) 10. Offences relating to Documents and Property Marks (Section 465-489, Indian Penal Code) 11. Offences relating to Marriage and Dowry Prohibition Act (Section 498-A, Indian Penal Code)

 

(V)               It is surprising to note that the institute- ICAI in India does not have any checks at the entry level and disclosure requirements, specifically asking an applicant as to whether there is any criminal case/FIR instituted against the said applicant or whether he has been convicted in the past for any offence. The said disclosure ought to be sought at the initial stage itself, i.e., when the person signs up to take the first examination as a chartered accountant and at the stage of registration, so that the person is conscious of the disqualification which could apply qua him and bar such person from practicing as a CA. There also appears to be no continuing disclosure requirement from members.

 

(VI)             The Petitioner, in this case, having been convicted for offences under Section 354 and 506-II of IPC, is clearly attracted by the disability under Section 8(v) of the Act. He has already practiced for almost 12 years by the time the notice was issued by ICAI. Ideally, ICAI ought to have had adequate checks at the time of registration itself. However, the fact that the conviction of the Petitioner may have not come to the attention of the ICAI for more than 10 years would not, in any manner, bar ICAI from taking action, especially, when the offence involved is one of such a grave and serious nature. 119. The ICAI is well within its power under Section 15(2)(p) of the Act to issue the show cause notice and the notice of hearing which is under challenge. During the course of hearing in this petition, the Petitioner was given an option of appearing before the ICAI in pursuance of the notice for hearing, and thereafter for challenging any final order that may be passed by ICAI. However, the response of the Petitioner was that the legal issue involving interpretation of Section 8 would have a bearing on the enquiry, and hence he insisted on pressing the present petition. It is, accordingly, held that in the case of offences involving ‘moral turpitude’ under Section 8(v) and persons who may have been convicted of such offences and sentenced for imprisonment, the disability would be squarely attracted.

 



[1] (LLB, ACS, BCOM(H))

Member- ICSI

Member- Delhi High Court Bar Association

Member- Research Committee, NIRC-ICSI

Secretary- Shaurya ek Samman (NGO)

[2] W.P.(C) 6819/2020 & CM APPL. 23588/2020, Mohit Bansal v. ICAI

Comments

Popular posts from this blog

Whether a person can be appointed as an arbitrator if his daughter is married to the son of the eldest brother of one of the parties in the arbitration proceedings?

ELECTRONIC EVIDENCE: THE UNFERTILE CROP

REPUGANCY UNDER ARTICLE 254 & TEST OF VALIDATING LAW