In Re: P.K Mukherji

Chakravartti, C.J.—We do not find it possible to make any order in this case other than an order sending the case back to the Council for further enquiry. It appears that there was a complaint against the respondent by one Sri Anupam Roy in respect of a sum of Rs. 1,500 which he alleged to have paid to the respondent as premium for taking him as an apprentice under him. The complainant's case was that this sum had been paid as a premium and was to be treated as such, whereas the respondent's case was that it was received by him as coaching fee and therefore he was entitled to retain it. The fuller facts are stated in paragraph 8 of the minority report of the Disciplinary Committee to which a reference has been made by the Council in its finding. That statement of facts reads thus :

From the allegations in Shri Roy's various letters to the Institute, particularly his letter, dated 21st Augusts 1950, it is clear that the sum and substance of the "information" conveyed by him to the Institute is that Shri Mukherji took from him Rs. 2,000 as premium but when the time came to execute the agreement, he showed only Rs. 500 as premium with a further sum of Rs. 500 still to be paid as premium; that Shri Roy under compulsion was forced to agree to treat the balance of Rs. 1,500 paid by him as fee for coaching; that no receipt for such sum as coaching fee was given by Shri P. K. Mukherji, although promised; that the balance of Rs. 500 premium was not remitted as promised by Shri Mukherji; and that no coaching was actually given although as much as Rs. 1,500 was purported to have been charged for coaching. In short, taking money on false representation and under undue influence is alleged, apart from a breach of Regulation 34 of the Chartered Accountants Regulations, 1949.

In due course, an enquiry was made into the complaint and evidence was heard. It appears that after the conclusion of the hearing, the composition of the Disciplinary Committee which, held the enquiry under its statutory powers underwent a change. The only member, who continued to remain a member was Mr. Nargolwala, but the remaining members were all replaced by persons freshly nominated or elected. It was the reconstituted Disciplinary Committee composed of Mr. Nargolwala and the other members who had replaced the old members which considered the evidence and reported to the Council. The Committee failed to reach unanimity and consequently decided to submit two separate reports. Mr. Nargolwala, who had seen and heard the witnesses, submitted a long and closely reasoned report and his finding was expressed in the following terms :

......I am clearly of the opinion that all these allegations have been proved beyond doubt and I therefore, consider that Shri Mukherjee has been guilty of misconduct within the meaning of section 22 of the Act.

The remaining members of the Institute submitted a short report of their own and I find it necessary to make some observations on that report.

The majority say in the first instance that they have gone into the allegations and see no reason to disagree with the statement of the material facts of the case, as given by Mr. Nargolwala in his report. One would expect from that statement that, so far as the allegations were concerned, they found them established as much as Mr. Nargolwala had done, although they might differ as regards the offence constituted by them. Such however, was not the meaning of the majority. They proceed to say that they do not feel convinced that the allegations have been proved beyond doubt and they give it as a reason that the complainant, who was the principal witness in the case was an interested party. It is not easy to see how the majority could say on the one hand that they found the allegations of the material facts proved and at the same time say that they were not convinced that the allegations had been established beyond doubt. That is not all. The majority proceed to say that the evidence in the case was "not direct and perfect" and they add that it was "not such as would encourage us to hold that the allegations in question have been proved beyond doubt." Once again, one feels a little puzzled as to how this opinion of the majority could stand alongside the opinion expressed in the first sentence of their report. The majority end their report by saying that they feel strongly that the respondent's conduct in relation to the whole affair is such that it calls for strong comments and disapproval.

Now, it appears to me that the Council which had to come to a decision on a report of that kind, was entitled to deep sympathy. I have already pointed out that the statements made in the first part of the majority report and those contained in the latter part appear to be wholly irreconcilable. Be that as it may, it is impossible to understand from the report what conduct of the respondent the majority considered deserving of strong comments and disapproval, if they would not say what allegations they had found proved and what in their opinion, had not been proved beyond doubt. Before anybody can say that a particular person's conduct calls for strong comments and disapproval, he has to say what that conduct has been; and in order that he may say what the conduct has been, he has to say what facts in relation to that conduct have been proved. As the report stands, it is quite impossible to attach the "strong- comments and disapproval" to any particular act or omission of the respondent and that being so, one must wonder what the Council could possibly do with a report of that kind.

We are, however, not concerned so much with the report of the committee, so far at least the findings are concerned, as with the finding of the Council. That finding is that the allegations made by the complainant have been proved beyond doubt and the respondent has been guilty of misconduct within the meaning of section 22 of the Act. It is somewhat remarkable that Mr. G. Basu, who was the President for the time being, is a signatory to both the majority report and the finding of the Council, but it may be that he was in a minority in the Council and signed the finding merely as the President.

Had the only defect in the case been the very-peculiar structure of the majority report, we would not have felt embarrassed in dealing with the case, because all that we are concerned with under the statute is the finding of the Council. There is, however, a more fundamental defect. In the first place, it is not at all clear how the majority report could be signed by only three members. u/s 17(1) (iii) read with sub-section (3) of the section, the Disciplinary Committee must consist of five members, the President and the Vice-President being members ex-officio. The majority report is signed by only three persons and with Nargolwala who made the minority report, the total number comes up to only four. We asked the learned Counsel appearing for the Institute to inform us what had happened to the fifth member, but he was unable to throw any light on the question. It appears from page 63 of the paper book that the new Committee did, in fact, consist of five members. If, in those circumstances, one of the members did not sign any report at all, it can hardly be said that there was a proper report from the Disciplinary Committee.

We are concerned with the report of the Disciplinary Committee, because under the Statute it is on that report that the Council has to form its opinion. Any defect in the report of the Committee must therefore affect the opinion which the Council may come to form.

I now proceed to refer to another defect of procedure which has occurred in the case and which is of a fundamental character. I have already stated the relevant facts. The enquiry was actually held and the witnesses were heard by a Committee of a certain composition and the report was made by a Committee which was of a totally different composition except as to Mr. Nargolwala. The position, therefore, is that the majority report was made by a body of persons, who had neither seen nor heard the witnesses, but had opportunity for merely considering the evidence on paper. Why such an extraordinary procedure should have been adopted, I do not know, but it was said by Mr. Meyer that the composition of the Disciplinary Committee had to change from time to time, as one or other of the members might be transferred. I see, however, from section 17(5) that at least the ordinary members shall hold office for one year from the date of their election. Be that as it may, it need hardly be stated that in view of the change in the composition of the Committee, the report ultimately submitted by the majority cannot possibly be regarded as a proper report at all. It is fundamentally and radically wrong that someone should hear and see witnesses and someone else should give the decision. Questions of fluctuations in the composition of the Tribunal have often arisen in relation to judicial or semi-judicial proceedings and it is now settled law that unless there is a specific warrant in a statute, no decision of a committee or other body which has undergone changes of personnel during the progress of the enquiry, can be accepted as a valid decision at all. The present case was peculiarly one in which it was essential that the persons forming the ultimate opinion and giving the decision should be persons who had seen and heard the witnesses, because the principal question in the case had to be decided by considering two pieces of documentary evidence, namely, a letter by the complainant and the document embodying the articles of apprenticeship, against the oral evidence in the case. It appears from Mr. Nargolwala's report that he took into account the manner in which the witnesses had given evidence. The complainant might well say as to the remaining members that if the decision had been given by the persons, who, like Mr. Nargolwala, had seen and heard the witnesses, their decision also would have been the same. Equally might the respondent say that the four original members also might have taken a view favourable to him and their opinion might have had a greater weight with Mr. Nargolwala, since they too had seen and heard the witnesses. But it is not a question of what might or might not have happened. As I have said, it is utterly and fundamentally wrong that serious questions affecting the professional interest of Chartered Accountants on the one hand and the interest of members of the public who come to have business with the Chartered Accountants on the other, should be decided by a Tribunal with no fixity of personnel, but by a fluctuating body of persons being added to or subtracted from or replaced from time to time.

As the opinion of the Council is based upon a consideration of the majority report as well as the minority report, I feel bound to hold that the basic defect affecting the majority report affects the Council's finding as well and therefore this Court cannot take any action on those findings. Before this Court can perform its duties u/s 21(2) of the Act, it is necessary that it should have before it a proper finding based on proper materials.

For the reasons given above, we decline to make any order on this reference except the order that we refer the case back to the Council for a further, i.e., fresh enquiry and report under sub-section (3) of section 31. We make no order for costs, so far as this hearing is concerned.

Lahiri, J.

I agree