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Procedure of Enquiry (Continued) – Part VI
Shrikrishna (S) —
Arjun, you are looking tired today. Actually, your deadline for
tax-returns is postponed to 31st August. Isn’t it?
Arjun (A) —Yes.
S — Then you should be relaxing. The CAs don’t take any tensions except at the11th hour!
A — Bhagawan, I am tired of these rains. It came after a long wait. And it is not stopping at all!.
S
— Ha!Ha!Ha! These are the blessings of Lord Varuna. You CAs are
expected to plan and phase out your work over the available period. But
you also accumulate and do it in only few days; And then complain of
pressure!
A — What you say is true. Anyway, you were to explain to me the final part of disciplinary proceedings.
S — Yes. Upto where we had come?
A
— A separate order is passed awarding the punishment. That is on a
fresh hearing given after the first report holding you guilty is issued.
S — Right! You are a brilliant ‘shishya’; and hence so dear to me.
A — Now tell me, once the order is received – say for one month’s suspension, do we have any remedy? Or it is final?
S — No, it is not final. You can prefer an appeal.
A — To the court?
S — There is an Appellate Authority constituted under your CA Act. It is presided over by a High Court judge.
A — Is he the single judge?
S — No, there are four other members. Two ex-Central Council Members and two Government nominees.
A — But how to go about it?
S
— There is a prescribed form. One has to pay a fee of Rs. 5,500/-.
Remember, it is to be submitted within 90 days from the date of receipt
of the order.
A — How do they decide?
S — The
proceedings are like that of your Income Tax Appellate Tribunal. Just as
in ITAT, even the IT Department is represented by a counsel, and here
also, there is a counsel from the side of Disciplinary Directorate.
A — Oh, my God! And what do they argue?
S
— See, the Respondent will try to plead ‘Not guilty’ or to lessen the
punishment. On the other hand, the DD will try to defend the order of
the BOD or DC.
A — That is alright. But can DD also prefer an appeal?
S — Yes. Section 22G states that the member aggrieved by the order of BOD/DC; or the DD can prefer an appeal.
A — And what about the complainant?
S — The section is silent about it. It is like prosecution of a criminal matter where the Government pursues the matter.
A — And where is the Appellate Authority located?
S
— Strictly, it is located at Delhi – in your ICAI’s Headquarters. But
occasionally, the hearings are held in cities like Mumbai.
A — And if AA’s verdict goes against us, what to do? Can we approach the High Court?
S — The CA Act does not contain any provision permitting you to approach the High Court; unlike in the Incometax Act.
A — That means, the AA is the end of it!
S — In a sense, yes. But you can always go in for a writ if you are so aggrieved.
A — OK. Now tell me, once such order is passed, the punishment is immediately effective?
S
— Not necessarily. Once the order of BOD/DC is received or the order of
AA is received, the DD after a few weeks may formally write to you
about reprimand or suspension.
A — And if it comes exactly around the time we sign maximum number of audits, then we are doomed!
S — Yes. And your name is published in your CA journal. That is a stigma.
A — After the suspension period is over, what is our status?
S
— You have to apply afresh for restoration of membership. And then your
seniority is lost. It is as if you were a new member. Back to square
one!
A — That means, it will matter in terms of getting bank audits, training articles and so on.
S
— But the real punishment is the mental agony and stress that you have
to carry from the date of receiving the complaint till the conclusion of
the proceedings.
A — But why do they disqualify us for bank and government audit even before we are held finally guilty? That is unjust.
S
— Actually, that is not your Council’s rule. It is the policy of C
& AG and RBI that they don’t want to allot audits to someone who is
held prima facie guilty.
A — Oh! And depriving of audit
assignments for so many years is also a punishment. I agree; that rather
than the prescribed punishments, the other consequences are much more
grave.
S — So, prevention is better than cure. Follow the code
scrupulously. Don’t resort to short-cuts, cultivate discipline and
professional habits.
A — He Bhagawan, please bless me so that I am not caught in this trap of disciplinary proceedings.
S — You are always Blessed, Arjun! Om shanti !!!!
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’).
