fiogf49gjkf0d
Procedure of Enquiry
Arjun (A) — Hey Shrikrishna! Hey Shrikrishna! Arey, where are you?
Shrikrishna (S) — Yes, yes, my dear. Why are you so panicky? I am here only.
A — Good Lord! Usually, you always arrive at the meeting place before me. Today, you were not to be seen.
S — I am omnipresent, present everywhere. I appear whenever a true devotee remembers me sincerely. Tell me, what is the matter?.
A — Y ou have so far explained to me many items of misconduct. I shared it with my friends. But today, my very close friend received a notice from the Institute. He was asking how to go about it.
S — T hen did you not refer the books?
A — I looked for the procedure in the CA Act as well as Regulations. But couldn’t get the detailed procedure.
S — Which Act you saw? That of 1949?
A — N o. I saw 2006 Act only. That much I know!
S — Good! Many of you may not have referred the CA Act and other books on Ethics ever since you guys passed your CA.
A — What you say is right. When we studied, it was Code of Conduct. Now, it is Code of Ethics. What really is the difference?
S — See, conduct is a generic term. Conduct may be good or bad; but ‘ethics’ denotes something positive. In the context of professionals, ‘ethics’ was thought to be a better word.
A — Y ou mean, the conduct may be ethical or unethical.
S — You are right. And remember; one is either ethical or not ethical. There is no in between stage! One cannot be contented that one is ‘by and large’ ethical!
A — Leave aside the philosophy. Tell me the procedure.
S — F or procedure, you must refer to Chartered Accountants (Procedure of Investigations of Professional and other misconduct and conduct of cases) Rules, 2007 published in the official Gazette of India dated February 28, 2007.
A — Baap re! Such a long name! Better call it misconduct rules?
S — Y es. But before going to these rules, you should know that there are basically four authorities stated in the Act of 2006.
A — What are those?
S — F irstly, the Director Discipline. Then the Board of Discipline and Disciplinary Committee. And thereafter, the Appellate Authority.
A — T ell me the functions of all these.
S — You see, if somebody files a complaint ………..
A — H ow does one do so?
S — I f somebody is not happy with a CA’s work or other behaviour, he has to fill up a very simple form – called Form I. It is to be accompanied by a fee of 2,500/- rupees.
A — But who usually complains?
S — A nybody! Complaint can come from a variety of people and agencies.
A — Such as?
S — R egulators – Tax authorities, ROC, MCA authorities, SEBI, RBI, Registrar of Co-operative societies, then bankers, financial institutions, clients, other members of the Institute.
A — Who else?
S — F urther, even your staff, articles, partners, relatives, friends ………
A — But should he be connected with your work?
S — Not necessarily. Even an altogether stranger can file a complaint. These are quasi –criminal proceedings. Locus standi of complainant is not relevant.
A — Surprising! So anybody under the sun can file a complaint against a member.
S — Y es. There are even professional blackmailers. Beware of them. A — O h God!
S — M oreover, the Council can take suo moto cognisance of any misconduct, based on the information received by it. Information can be received even from public domain and media. So, always be cautious.
A — Y ou were telling me about the functions of those authorities.
S — D isciplinary Directorate, basically receives the complaints; The Director Discipline (DD) acts as a Secretary to the Board of Discipline (BOD) as well as to the Disciplinary Committee (DC). People working in the Directorate are bureaucrats.
A — Oh! S — T hey receive the complaint and forward it to the Respondent. The Respondent is required to submit his explanation. That explanation is sent back to the complainant. He is asked to write his views on the explanation in the form of a rejoinder.
A — T ill that time, they don’t process anything?
S — N ot really. It is only after these three documents are received, that they scrutinise the case. Thereafter, the DD forms a ‘prima facie opinion’ as to whether the Respondent is guilty or not guilty.
A — T hen what happens? It is only a prima facie opinion. Not final. Right?
S — N ow, if it is an item of misconduct stated in the First Schedule, the BOD has jurisdiction. On the other hand, if it is a Second Schedule item, it is within the scope of DC.
A — A nd a mixed one?
S — T hen the DC’s jurisdiction. The prima facie opinion is placed before the BOD or DC as the case may be. BOD or DC may concur with and endorse the views of the DD; or they may disagree. If BOD/DC feel that there is no prima facie guilt, the fact is communicated to both the parties and file is closed.
A — And if they find him prima facie guilty, what next?
S — T hen they direct that a detailed enquiry be conducted. This is the point of time when the disciplinary proceedings are deemed to be commenced.
A — Bhagwan, excuse me. Let me first digest all that you told me just now. We will meet some other time as I wish to understand the whole process. Just now, I am in a little bit of a hurry.
S — Sure. But your friend has to send his explanation in 21 days.
A — See. We CAs never do anything well in time. Can he get extension of time?
S — I was sure, you would ask this question If there is a valid reason, you can get extra time; but not more than 30 additional days.
A — O h! Then I must hurry up. We will meet soon. Bye, Bye. ….. (To be continued)
Note:
This dialogue is based on the procedural rules contained in Chartered Accountants (Procedure of Investigations of Professional and other misconduct and conduct of cases) Rules, 2007 published in official Gazette of India dated 28th February, 2007 (‘Enquiry Rules’).
