Procedure of Enquiry (Continued) – Part V
Arjun (A) — Procedure of Investigations of Professional and other misconduct and conduct of cases – Rules, 2007 ….. (repeats 3 – 4 times)
Shrikrishna —Arey, Arey, Arjun. Why are you repeating the same name again and again?
A — The name of the Rules is so long! I am trying to memorise it –by heart!
S — Ha! Ha! Ha! You can always make it short – as Misconduct Enquiry Rules.
A — I know, but I was just killing time until you came. Last time you told me that once the hearing is concluded, one can get the minutes – verbatim, Notes of hearing.
S — Yes – Not only when concluded; but even in between if it is adjourned for further evidence or any other reason. And you need to apply for it.
A— Good. If there is a long gap between two hearings, one may lose track of what has transpired earlier.
S — Sometimes, after the hearing is half-done and adjourned, the Committee may undergo a change. Usually, every February, your Council Committee changes.
A — Oh! Then what happens?
S — The new Committee gives you an option whether you want a de novo hearing; or it can continue from where it ended last.
A — What is the implication?
S — See, sometimes, for strategic reasons, it would be worthwhile to have a fresh hearing. After all, there is always an element of subjectivity in any judicial proceedings. All are human beings!
A — That’s true. If an Assessing Officer or CIT is changed, it makes lot of difference; either way. But tell me, what precaution one should take during the hearing?
S — After all, you should always project yourself as a decent professional. Approach should be polite and co-operative. Handling of papers should reflect your preparedness. Temper should be cool. No agony, no irritation, no nervousness.
A — It is easy to advise. But very difficult when you are sitting there!
S — I agree. That is where an experienced Counsel can help. You should not get excited or argumentative. If there is a mistake that occurrs, it is appreciated if you candidly admit it. Remember, the panel consists of CA professionals. So you can’t fool them.
A — Yes. One should not act too smart. That’s what you mean. How many times can one seek adjournment?
S — In practice, there is no limit if there is a valid reason. They don’t tolerate dilatory tactics. Already they give you a lot of time.
A — Once the enquiry concludes, what happens?
S — They declare it as concluded. You are given fullest opportunity to plead your case. Even after conclusion, at your request or on its own, the Committee may direct you to place on record any document or submission within 8 to 10 days of time.Of course, that cannot be a new evidence. Otherwise, the other party can object.
A — What happens if the complainant does not remain present?
S — Even then, the Council proceeds with the enquiry. The Administration steps into the shoes of the complainant. There is no automatic escape for the respondent.
A — Do they declare the result immediately?
S — No! No! It takes more than 8 to 10 months for the Committee to release its report. It is a very detailed report with reasons. The conclusion is stated as to whether a respondent is guilty or not in respect of each charge or allegation.
A — And punishment?
S — For punishment, there is one more hearing before the BOD or DC – as the case may be, But in that hearing, the respondent has to appear alone, without any counsel. There, he can plead why the punishment should be less harsh! Usually, they orally inform the punishment there itself. A formal communication is sent after a few days. That is called the ‘order’. The first one, holding you guilty, is a ‘Report’.
A — Oh My God! It is a long procedure. How long all this takes?
S — After the enquiry is initiated ………….
A — (interrupts) That means, prima facie opinion?
S — Yes. Right. After that, there may be a period of even two to three years until you actually receive the order!
A — Is that the end of it?
S — No. There are many points. But we will discuss them when we meet next. 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 February 28, 2007 (‘Enquiry Rules’).
