Procedure of Enquiry (Continued) Arjun
(A) — Where is this Lord Shrikrishna gone? He says he is omnipresent. But often makes me wait! Shrikrishna
(S) — Arey, Arjun. You have already reached! Sorry, I was held up.
A — Don’t worry. We are quite used to such waiting in the tax department. Anyway, you were explaining to me the procedure for enquiry of disciplinary cases.
S — Yes. Your friend was to apply for extension of time to send a reply. Did he do that?
A — Yes, he did. But there is no response from the Institute.
S — That does not mean that he should just wait for reply and do nothing till then. Usually, they do grant additional time of 15 to 20 days.
A — Ok. He has prepared some reply. He is alleging that the complainant himself is a bad person and the complaint is frivolous.
S — Y our friend must be feeling that he had helped the complainant in the past, and now the complainant is acting vindictively! Right?
A — Yes, precisely. How can he complain when he is himself a defaulter? One should come with clean hands before the Court for justice.
S — You are right. But that is in general jurisprudence. Here, your Council has no jurisdiction over nonmember.
A — So, anybody can complain? The Council cannot do anything to outsiders? They will catch hold of only the members?
S — Unfortunately, yes. There are other fora where you can seek justice by retaliating. But your Council is concerned only with the good behaviour of members.
A — Why so?
S — Because the Council has to uphold the reputation of the whole profession. Misconduct of any member adversely affects the image of the profession and it is harmful to all other members.
A — I appreciate what you mean. Then what should my friend do?
S — He should write a proper reply to the point. Each and every point alleged by the complainant should be tackled systematically. One should write objectively and not emotionally. All paragraphs should be serially numbered.
A — So, a counter-attack on the complainant will not help?
S — Exactly. You may point out in a decent language as to how the complainant himself is a wrong-doer. But emphasise that you have acted properly. That is what the Council wants to see.
A — So his errors do not justify mine, right?
S — Obviously. Otherwise, how will the profession have credibility?
A — OK. What happens after he sends the explanation?
S — That explanation is simply forwarded to the complainant. He gets an opportunity to send a rejoinder.
A — Why? Even if my reply is convincing, it has to go to him?
S — Yes. They cannot close it merely on your explanation.
A — Ok. Then to his rejoinder, I can send sur-rejoinder? S — N o. You have no second inning.
A — Ah! This is unfair.
S — Under the new system, you have no further opportunity at this stage. Once these three documents are received, that is, the complaint, your reply and rejoinder, then only the Directorate examines the case.
A — Oh. Nothing till then!
S — But while scrutinising, if they want any further information or document, they will write to either party and get it.
A — After examining the case, they give the final verdict?
S — No. The Director forms what is called as a prima facie opinion; as to whether you are ‘prima facie’ guilty; or not guilty.
A — So, it is the Director who decides this? That means, the justice is left to the bureaucrats?
S — No. The Director has to present the prima facie opinion before the Board of Discipline if it is Schedule I offence.
A — And to Disciplinary Committee if it is 2nd Schedule. Correct?
S — Yes. And if mixed one, then also to DC. BOD or DC may concur or not concur with the prima facie opinion. Or even partly agree or disagree on certain items.
A — What I have understood at this stage is that your first reply itself should be as exhaustive as possible.
S — It should be supported by documentary evidence also.
A — Then what?
S — If you are not prima facie guilty, you receive an intimation that your case is closed. Otherwise, they inform you that there will be a detailed enquiry.
A — I think, this much is enough for the time being. I will explain to my friend all that you have told me. But I need to know more. Next time, you please explain to me how the enquiry is conducted. But please give your blessings to my friend so that he will not be held even prima facie guilty.
S — Tathaastu!
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 February 28, 2007 (‘Enquiry Rules’).
