Mr. Kamall Ahuja with Mr. Priamvada, Mr. Ankit Sethi and Mr. Ritish Chauhan, Advocates v. CS AJAY ANTARKAR AND ANR

Judgment

1. By way of present petition filed under Article 226 of the Constitution of India, the petitioner seeks setting aside of order dated 15.11.2018 (hereinafter, ‘impugned order’) passed by the Disciplinary Committee, the Institute of Company Secretaries of India (hereinafter, ‘ICSI’) whereby respondent No.1 was absolved of the charge of professional misconduct levelled against him by the petitioner.

2. Pithily put, the case of the petitioner is that the respondent No.1 had certified various e-forms 20B with respect to the Annual Returns in respect Signature Not Verified Signed By:GAUTAM ASWAL Signing Date:19.05.2025 18:40:39 W.P.(C) 3131/2019 Page 1 of 8 of the Annual General Meetings held in September 2007 and 2008 with respect of seven companies, of which the petitioner is a shareholder and director. As per the petitioner, one Hanif Somji and Mrs. Jenice Somji had transferred the shares held by them in the subject companies to the petitioner and his wife in 2006-2007 and the Respondent No.1 has certified Form 20B having attachment of the Annual return for FY 2006-07 of M/s. Zerostart Trading Pvt. Ltd, for FY 2007-08 in which the shareholding pattern after the transfer of shares from the abovementioned persons to the petitioner has

been confirmed and verified. However, Hanif Somji and Mrs. Jenice Somji deny the above position and have preferred Company Petitions No. 45 to 53 of 2013 before the CLB, Mumbai, contending that they continue to be shareholders of the company. In these proceedings, the respondent No.1 has filed an affidavit stating that the share transfer deeds were not executed in his presence.

3. The petitioner preferred a complaint bearing no. ICSE/DC/216/2014 against respondent No.1 for professional misconduct before the Disciplinary Committee, ICSI. Petitioner’s case before the Disciplinary Committee was that though the annual returns certified by the respondent No.1 confirm the factum of the share transfer having taken place, and despite the respondent No.1 again confirming the said fact vide letter dated 03.02.2010, the respondent falsely stated on oath in an affidavit that the transfer forms were never executed by the petitioner in his presence and further that he had revoked the said letter vide email/letter of revocation dated 11.03.2010. It was alleged that the Respondent No.1 had acted in a prejudiced manner not befitting a professional by making contrary statements under his signature in Signature Not Verified Signed By:GAUTAM ASWAL Signing Date:19.05.2025 18:40:39 W.P.(C) 3131/2019 Page 2 of 8 his professional capacity while signing the Annual Returns and on Oath before a quasi-judicial authority.

4. On 12.09.2024, the Director (Discipline) in his prima facie opinion held respondent No.1 guilty of professional misconduct under Clauses (6), (7) and (8) of Part-1 of the Second Schedule of the Company Secretaries Act, 1980 (hereinafter, ‘the Act’), however, the Disciplinary Committee, vide the impugned order, exonerated respondent No.1.

5. The respondent has taken a preliminary objection that the Act does not provide an opportunity of appeal to a non-member and the petitioner, not being a member of the ISCI, cannot therefore approach this Court as an appellate forum. Reliance is placed on a decision of the Co-ordinate Bench of this Court in Rajendra Eknath Wagh v. The Institute of Chartered Accountants of India & Ors.1 while drawing a parallel with the Chartered Accountant Act, 1949, which is stated to be pari materia to the subject Act.

6. The petitioner has limited his challenge to the impugned order on the ground of violation of principles of natural justice, insofar as firstly, it is contended that the adjudication was made by a biased committee and secondly, it is stated that the petitioner was denied an effective opportunity of hearing before passing of the impugned award. On the aspect of maintainability, it is submitted that in the absence of an effective alternate remedy, the writ petition against the impugned order is maintainable. In support of his submissions, reliance is placed on United Bank of India v. Satyawati Tondon.2 It is also pointed out that since it is the admitted position 1 W.P.(C) 9003/2024 dated 31.07.2024. 2 2010 SCC OnLine SC 776. Signature Not Verified Signed By:GAUTAM ASWAL Signing Date:19.05.2025 18:40:39 W.P.(C) 3131/2019 Page 3 of 8 of the respondents that the Act provides for no appellate remedy to the petitioner, preferring the writ petition was the only viable avenue available to the petitioner to seek redressal of his grievances.

7. Per contra, learned counsel for the respondent No.1 submits that the Disciplinary Committee being the competent authority to adjudicate on the complaint of the petitioner, the merits of its decision cannot be questioned before this Court as long as it adheres to the principles of natural justice. In this regard, reliance is placed on the decisions in Regional Manager, UCO Bank v. Krishna Kumar Bhardwaj,3 Union of India v. P. Gunasekaran4 and B.C. Chaturvedi v. Union of India.5 The allegations of violation of principles of natural justice are vehemently denied by submitting that both the parties were given a fair opportunity before the Disciplinary Committee insofar as multiple hearings were conducted in both their presence and their respective written submissions were taken on record and considered while passing the impugned order. Moreover, it is submitted that in 2018, a member of the Disciplinary Committee initially constituted, recused himself due to a potential conflict, even in the absence of allegations to that effect.

8. I have heard learned counsels for the parties and gone through the records.

9. When it comes to judicial review of administrative actions, the Court does not sit in appeal and cannot replace the decision of the administrative authorities by its own decision. Interference in an administrative decision is called for when the decision is an outcome of an unfair procedure. Some of