Sanish D.Jain v. The Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.12.2009CORAM: THE HON'BLE MR. JUSTICE R. SUDHAKAR Writ Petition No.4198 of 2009Sanish D.Jain ..PetitionerVs1. The Secretary, The Council of Institute of Chartered Accountant of India, ICAI Bhawan, Post Box No.7100, Indiraprastha Marg, New Delhi 110 0022. Mr.T.K.Shanmugam M/S.SNB Associates ..Respondents Prayer: The writ petition filed under Article 226 of theConstitution of India praying for a writ of Certiorarified mandamusto call for the records of the first respondent relating to LetterNo.ICA/MSS/SRO 0147795/legal/08 dated 09.03.2009, quash the same andto direct the first respondent to issue No Objection Certificate tothe petitioner herein in order to take effect of Articleshipretrospectively from "September 2007 the date of termination withM/S.Dayalal & Associates, bearing door No.29, Narayana Mudali Street,Sowcarpet, Chennai.79. For Petitioners : Mr. P.Subba Reddy For Respondents : Mr.AR.L.Sundaresan SC for M/S.Sampathkumar Associates (R1)Mr.S.Namasivayam (R2)O R D E RThis Writ Petition is filed seeking to quash the Letter ofthe first respondent in No.ICA/MSS/SRO 0147795/legal/98 dated09.03.2009 to direct the first respondent to issue No ObjectionCertificate to the petitioner.2. The petitioner is a B.Sc Graduate and joined theservices of the second respondent for undergoing Articleship as https://hcservices.ecourts.gov.in/hcservices/ provided under Chapter 4 of the Charted Accountants Regulation 1988on 22.02.2007. After a period of time, the petitioner, due tounforeseen and unfortunate circumstances, met with an accident,resulting in serious injuries to his abdominal area and consequently,his spleen was removed. After treatment, the petitioner was advisedto curtail his travelling. Restriction in food habits was imposed.This resulted in partial immobilisation and petitioner's routineactivities were restricted. The petitioner, who is residing atGeorge Town in North Madras, found it difficult to come toNungambakkam, the place of his office. Therefore, he made a requestfor transfer of his Articleship to a place of his choice. In thisendeavour, he made a request to the second respondent to issue a 'NoObjection' Certificate. 3. The second respondent declined to issue the certificatestating that the grievance of the petitioner was considered andsuitable adjustments were made so as to enable him to continue hisarticleship with the second respondent. 4. Aggrieved by the second respondent's rejection of hisrequest for granting 'No Objection' Certificate, the petitionerapproached the first respondent-Council, which concurred with thesecond respondent. The Council stated that only on the issuance of a'No Objection Certificate' by the second respondent, the transfer ofArticleship can be considered. Therefore, the petitioner approachedthis Court earlier. The matter was remanded to the authority forreconsideration. The first respondent reiterated its stand and statedthat no afresh material was there for the first respondent toreconsider the issue in the absence of 'No Objection' Certificatefrom the second respondent. 5. Be that as it may. Now, the present writ petition hasbeen filed by the petitioner renewing his request for transfer ofArticleship. At the time of final hearing and upon hearing thelearned counsel for the petitioner, Mr.AR.L.Sundaresan, learnedcounsel for the first respondent and Mr.Namasivayam, the learnedcounsel for the second respondent, it is now transpires thatRegulation 56 of Chartered Accountant's Regulations 1988 as on19.05.2009, has undergone a radical change and the issue may have tobe relooked at this point of time.6. The primary reason as to why this Court is inclined tointerfere with the order of the first respondent is that the medicalgrounds on which the request for transfer of Articleship has beenmade by the petitioner has not been properly considered by the firstrespondent, objectively and this is a very serious issue. Therejection by the first respondent merely on the premise that thesecond respondent has not agreed for grant of 'No ObjectionCertificate' can not been countenanced by this Court. The firstrespondent though gives a vague reason in support of the order, which https://hcservices.ecourts.gov.in/hcservices/ has been passed pursuant to the order of this court, the firstrespondent being an authority under the Charted AccountantsRegulations, is also an authority bound by the Chartered Accountant'sRegulations 1988 as amended and is bound to consider the plea interms of the Regulation. Further more, the amended Regulation 56reads as follows:"In Regulation 56, for sub-regulation (1), thefollowing shall be substituted namely,(1) Every articled assistant executing the deed ofarticles for the full period of articled trainingprescribed under these regulations, shall berequired to complete such articles only with themember, who has engaged him:Provided that the articles so engaged may, byagreement between the articled assistant and hisprincipal, be terminated under such exceptionalcircumstances of conditions, as may be decided bythe Council."7. The first respondent has, set out certain matters,which should be considered by Students and Members of the Institutionwhile considering a case under Regulation 56 of the CharteredAccountants Regulations. One of the reasons set out in theannouncement dated 19.05.2009 reads as follows:"If the articled assistant is not able to serve thearticleship for specified genuine medial reasonsthereby opting to discontinue the C A course for aperiod of at least three months, the termination ofarticles be permitted, provided that the medicalgrounds are such that warrant termination ofArticleship."8. In view of the above, it will be necessary for thefirst respondent to consider the extreme medical condition pointedout by the petitioner for the purpose of considering his case fortransfer of Articleship. The first respondent has not taken adecision considering the scope of Regulation 56 and the decisiontaken on 19.10.2007 did not consider the plea for transfer ofArticleship on medical grounds. Therefore, the proceedings of thefirst respondent which is impugned in this writ petition, bereft ofreasons, has to be necessarily interfered with by this Court.Further, the case of the petitioner is only for transfer and not fordiscontinuing the Chartered Accountant Course. Hence, therespondents have to consider the petitioner's claim both under equityand under law. The medical records produced have also to beconsidered. https://hcservices.ecourts.gov.in/hcservices/

9. In the result, the writ petition is allowed and theimpugned order is set aside and the matter is remanded to the firstrespondent to consider the medical certificates, reasons given by thepetitioner, the amended regulation, and the first respondent Circulardated 19.10.2007 for the purpose of considering the case of thepetitioner on merits. Such decision shall be taken by the firstrespondent as expeditiously as possible, preferably on or before31.01.2010.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarPALTo The Secretary, The Council of Institute of Chartered Accountant of India, ICAI Bhawan, Post Box No.7100, Indiraprastha Marg, New Delhi 110 002.+ 1 c.c. to M/s. Sampath Kumar & Associates. S.R.No.71714.+ 1 c.c. to Mr. P. Subba Reddy, Advocate. S.R.No.71588. W.P.No.4198 of 2009TEJ (CO)GSK 11.01.2010.