GHULAM HAIDER VS FEDERATION OF PAKISTAN
2005 P T D 1192
[Karachi High Court]
Before Saiyed Saeed Ashhad C.J. and Maqbool Baqar, J
GHULAM HAIDER
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and 3 others
Constitutional Petition No.D-906 of 2003, decided on /01/.
2nd February, 2005. Chartered Accountants Ordinance (X of 1961)---
----Ss. 20A, 20B, 20C, 9 & Sched. I, Part 4, Cl.(5)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allegation of professional misconduct against a Chartered Accountant on account of getting an advertisement published in the daily newspaper---Initiation of proceedings by the Institute of Chartered Accountants of Pakistan---Procedure---Institute in initiating the disciplinary proceedings against the petitioner committed a grave and serious illegality in overlooking the provisions of Ss.20A & 20B of the Chartered Accountants Ordinance, 1961 and in violation thereof, issued show-cause notice and the Investigation Committee proceeded to investigate/inquire into the guilt of the petitioner---Such conduct/procedure was not proper irrespective of the fact that the material on record might have made out a prima facie case against the petitioner of being guilty of professional misconduct---Institute, in circumstances, had failed to proceed in accordance with law against the petitioner and the proceedings for professional misconduct initiated against him were defective being in contravention and violation of statutory provisions---Principles---High Court accepted the Constitutional petition and set aside the inquiry proceedings pending against the petitioner being contrary to law and illegal---High Court, however, observed that the Institute would be at liberty to initiate fresh proceedings against the petitioner for professional misconduct in accordance with the relevant provisions of the Ordinance.
In the present case the petitioner, who is a Chartered Accountant, got published an advertisement in the daily newspaper for expressing thanks and gratitude to the Chairman, Securities and Exchange Commission of Pakistan for implementing the decision of introducing the rotation of auditors and putting bar on the award of consultancy assignment to the auditors of listed companies. The advertisement further contained that the above decision provided an even playing field to the smaller firms of Chartered Accountants who will get rid of the so-called big five Accounting Firms from their monopoly/ Clout.
When the above advertisement came to the notice of the Institute of Chartered Accountants of Pakistan by its letter called upon the petitioner to show cause why action under section 20B of the Chartered Accountants Ordinance, 1961 for professional misconduct be not taken against him.
From a bare perusal of section 20A of the Chartered Accountants Ordinance, 1961, it reveals that the requirements spelt out from the language are that the Secretary of the Institute, any member or any aggrieved person is required to lay before the Investigation Committee any fact indicating that any member of the Institute was, primafacie,guiltyofanyprofessionalmisconductspecifiedinSchedule I or Schedule II. Subsection (2) of section 20A of the Ordinance deals with a situation where a complaint is received by the Institute against any member of the Institute or student of being guilty of professional misconduct then such complaint with the relevant and necessary facts shall be laid before the Investigation Committee. From the provisions of section 20A it is absolutely clear that initially any fact or a complaint relating to professional misconduct against a member of the Institute or student is to be laid before the Investigation Committee as envisaged in section 20A of the Ordinance. By virtue of the provisions of section 20B of the Ordinance the Investigation Committee is required to consider the facts or complaint laid before it and in case it is of the opinion that such facts or complaint required investigation then it shall, after giving a notice to the member of the Institute, hold an inquiry, on conclusion whereof the Investigation Committee is required to submit its report relative to the result of the inquiry to the Council constituted under section 9 of the Ordinance of 1961. Section 20B lays down the procedure to be followed by the Council in cases where the Investigation Committee finds a member or student guilty of professional misconduct.
The proceedings for professional misconduct against the petitioner were not initiated in accordance with the provisions of the Ordinance of 1961. There is nothing on record to indicate that the factum of publication of the advertisement was placed or laid by the Secretary of the Institute before the Investigation Committee or that any member or any aggrieved person had brought to the notice of the Investigation Committee the alleged professional misconduct in getting published the advertisement. From the letter of the Institute it is to be inferred that without resorting to the provisions of section 20A of the Ordinance of 1961, the Manager of the Institute issued the said letter purporting to be a show-cause notice requiring the petitioner to show cause as to why proceedings be not initiated against him by the Investigation Committee under section 20B of the Ordinance of 1961. As a matter of fact, the advertisement in the daily newspaper was required to be placed before the Investigation Committee by the Secretary in accordance with the provisions of section 20A of the Ordinance of 1961 but the said requirement was not complied with. Provisions of section 20B were also violated inasmuch as before placing or laying the advertisement before the Investigation Committee for holding an inquiry and preparing a report of the result of the inquiry, a show-cause notice was issued to the petitioner.
If a Statute requires a thing to be done in a particular manner or lays down the manner in which it is to be done or accomplished then it is obligatory on the part of the person concerned to follow the provisions of the Statute in letter and spirit and that all methods/manners in doing or accomplishing the object are followed. The provisions of the statute are to be adhered to strictly and no provision is to be left as surplus, redundant or naugatory. Institute in initiating the disciplinary proceedings against the petitioner committed a grave and serious illegality in overlooking the provisions of section 20A and 20B of the Ordinance of 1961 and in violation thereof, issued a show-cause notice and the Investigation Committee proceeded to investigate/inquire into the guilt of the petitioner. Such conduct/procedure cannot be held to be legal and proper irrespective of the fact that the material on record might have made out a prima facie case against the petitioner of being guilty of professional misconduct. In the circumstances, the Institute had failed to proceed in accordance with law against the petitioner and the proceedings for professional misconduct initiated against him were defective being in contravention and violation of Statutory provisions.
The inquiry proceedings pending against the petitioner were set aside as being contrary to law and illegal. The Institute, however, will be at liberty to initiate fresh proceedings against the petitioner for professional misconduct in accordance with the relevant provisions of the Ordinance of 1961.
Syed Sami Ahmed and M.A. Baig for Petitioner.
Syed Zaki Muhammad, D.A.-G.
I.H. Zaidi for Respondent No.2.
ORDER
In this Constitutional Petition, the petitioner has sought the following reliefs:--
(1)That, this Honourable Court may, by an order, hold and declare that the entire proceedings of professional misconduct, initiated againstthe petitioner by the respondents 2 to 4 in Complaint No.8/242/CA-2002 are without any lawful authority and of no legal effect.
(2)That, this Honourable Court may, by an order, direct the respondent No.3 to drop the case of professional misconduct against the petitioner in terms of section 20C of the Chartered Accountants Ordinance, 1961.
(3)Any other relief or reliefs, as may be deemed fit and proper by this Honourable Court.
(4)Costs of the petition.
The brief facts necessary for disposal of this Constitutional petition are that the petitioner, who is a Chartered Accountant, carrying on the business under the name and style of Haider Shamsi and Co. got published an advertisement in the Daily Business Recorder of 10th April, 2002 for expressing thanks and gratitude to the Chairman, Messrs Securities and Exchange Commission of Pakistan (hereinafter referred to as the SECP) for implementing the decision of introducing the rotation of auditors and putting bar on the award of consultancy assignment to the auditors of listed companies. The advertisement further contained that the above decision provided an even playing field to the smaller firms of Chartered Accountants who will get rid of the so-called big five Accounting Firms from their monopoly/Clout.
When the above advertisement came to the notice of Respondent No.2, the Institute of Chartered Accountants of Pakistan (hereinafter referred to as, the ICAP) by its letter dated 11-4-2002, called upon the petitioner to show cause why action under section 20B of the Chartered Accountants Ordinance, 1961 (hereinafter referred to as the Ordinance of 1961) for professional misconduct be not taken against him. The above letter was replied to by the petitioner vide his undated letter (annexure E ) wherein he expressed deep sense of regret to the ICAP if the advertisement amounted personal affront to the ICAP or any member thereof and further that he had no intention to malign the Institute, the Council or its Committee or any member of the ICAP. He also submitted that the citation wasplaced by one of his colleagues and in his opinion didnot violate the directives issued or pronouncement made by the Council or any of its Standing Committees. The explanation was not found satisfactory. By another undated letter (annexure I ), the petitioner submitted as under:--
However, I consider it appropriate to confirm the following to the best of my understanding of discussion held at the above referred hearing:---
(1)That the advertisement was a bad taste and should not have been there.
(2)That I did the mistake of not disowning the advertisement the very next day of its appearance in the Newspaper.
(3)That there is a lot more to the advertisement and the Investigation Committee must have the means to know and investigate.
(4)That the above submissions are further to the initial reply filed by me in response to the cause dated 11th April, 2002.
The matter was investigated by the Investigation Committee and appropriate opportunity was provided to the petitioner to absolve himself of the allegations made in the show-cause notice. The Committee found the petitioner guilty of professional misconduct under clause (5) of Part 4 of Schedule I of the Ordinance of 1961 and decided to report the matter to the Councilaccordingly. The petitioner feeling aggrieved and dissatisfied with the findings of the Investigation Committee filedthis Constitutional Petition with the above prayers.
Notice was served on the respondents, in pursuance whereof Mr. I.H. Zaidi filed power on behalf of respondent No.2, ICAP while Mr. Syed Zaki Muhammad, learned DAG appeared on behalf of the Federation.
We have heard the arguments of Mr. Syed Sami Ahmed, learned Advocate for the petitioner, Mr. I.H. Zaidi, learned Advocate appearing on behalf of respondent No.2 and Mr. Syed Zaki Muhammad, the learned DAG appearing on behalf of the Federation.
Mr. Syed Sami Ahmed submitted that the entire proceedings starting from the show-cause notice were absolutely illegal. mala fide and with ulterior motive as they were in violation of the provisions of sections 20A and 20B of the Ordinance of 1961. Elaborating his arguments he submitted that the proceedings for professional misconduct against the petitioner could have been initiated only if there was a complaint by an aggrieved person in accordance with section 20A of the Ordinance of 1961.
Messrs I.H. Zaidi and Syed Zaki Muhammad submitted that no illegality or material irregularity wascommitted by respondent No.2 in initiating disciplinary proceedings against the petitioner. It was further submitted that from a bare perusal of the advertisement, dated 10-4-2002 in the Daily Business Recorder, it was sufficient to infer that prima facie the petitioner had been guilty of professional misconduct as by the said advertisement respondent No.2 ICAP had been ridiculed, disrespected and maligned which amounted to lowering the prestige not only of respondent No.2 but also ofthe profession of the Chartered Accountant on the whole. They further submitted that a minor or little digression or deviation in following the provisions of sections 20A and 20B of the Ordinance of 1961 would not render the proceedings as illegal, malafide and void. They fully supported the initiation of the disciplinaryproceedings against the petitioner and further submitted that the petition was not maintainable as itamountedtothwartingthedueprocessoflawwhichhadbeeninitiatedinaccordancewiththeprovisionsoflaw.
For deciding the validity of the proceedings of professional misconduct initiated against the petitioner it will be necessary to peruse sections 20A and 20B of the Ordinance of 1961 and for the sake of convenience both the above sections are reproduced as under:--
20A. (1) The Secretary of the Institute shall, and any member or any aggrieved person may, lay before the Investigation Committee any fact indicating that
(a)a member of the Institute has prima facie been guilty of any professional misconduct specified in Schedule I or Schedule II; or
(b)a student has prima facie been guilty of any professional misconduct specified in Schedule III.
(2)Where a complaint is received by the Institute that any member of the Institute or student is guilty of professional misconduct referred to in subsection (1), the complaint shall, with relevant and necessary facts, be laid before the Investigation Committee.
20B. (1) If on considering the facts or complaint laid before it under section 20A, the Investigation Committee is of opinion that such facts or complaint require investigation, it shall, after giving a notice to the member of the Institute or student whose conduct is in question, hold an inquiry.
(2)A member of the Institute or student whose conduct is in question shall be given an opportunity of being heard and, if such member or student so desires, the Investigation Committee shall permit such member or student to be represented before it by a council or by a member of the Institute.
(3)After the conclusion of inquiry, the Investigation Committee shall report the result ofthe inquiry to the Council.
From a bare perusal of section 20A it reveals that the requirements spelt out from the language are that the Secretary of the Institute, any member or any aggrieved person is required to lay before the Investigation Committee any fact indicating that any member of the Institute was, prima facie, guilty of any professional misconduct specified in Schedule I or Schedule II. Subsection (2) of section 20A deals with a situation where a complaint is received by the Institute against any member of the Institute or student of being guilty of professional misconduct then such complaint with the relevant and necessary facts shall be laid before the Investigation Committee. From the above provisions of section 20A it is absolutely clear that initially any fact or a complaint relating to professional misconduct against a member of the Institute or student is to be laid before the Investigation Committee as envisaged in section 20A of the Ordinance of 1961. By virtue of the provisions of section 20B the Investigation Committee is required to consider the facts or complaint laid before it and in case it is of the opinion that such facts or complaint required investigation then it shall, after giving a notice to the member of the Institute, hold an inquiry, on conclusion whereof the Investigation Committee is required to submit its report relative to the result of the inquiry to the council constituted under section 9 of the Ordinance of 1961. Section 20B lays down the procedure to be followed by the Council in cases where the Investigation Committee finds a member or student guilty of professional misconduct.
From perusal of the material on record we are unable to agree with the contention of Messrs I.H. Zaidi and Syed Zaki Muhammad that the proceedings for professional misconduct against the petitioner were initiated in accordance with the provisions of the Ordinance of 1961. There is nothing on record to indicate that the factum of publication of the advertisement was placed or laid by the Secretary of the Institute before the Investigation Committee or that any member or any aggrieved person had brought to the notice of the Investigation Committee the alleged professional misconduct in getting published the advertisement. From the letter dated 11-4-2002 of the Institute it is to be inferred that without resorting to the provisions of section 20A of the Ordinance of 1961, the Manager of respondent No.2 issued the said letter purporting to be a show-cause notice requiring the petitioner to show cause as to why proceedings be not initiated against him by the Investigation Committee under section 20B of the Ordinance of 1961. As a matter of fact, the advertisement in the Daily Business Recorded of 10th April, 2002 was required to be placed before the Investigation Committee by the Secretary in accordance with the provisions of section 20A of the Ordinance of 1961 but the said requirement was not complied with. Provisions of section 20B were also violated inasmuch as before placing or laying the advertisement before the Investigation Committee for holding an inquiry and preparing a report of the result of the inquiry, a show-cause notice was issued to the petitioner.
It is a settled principle of law that if a Statute requires a thing to be done in a particular manner or lays down the manner in which it is to be done or accomplished then it is obligatory on the part of the person concerned to follow the provisions of the Statute in letter and spirit and that all methods/manners in doing or accomplishing the object are followed. It is also a settled principle of law that the provisions of the statute are to be adhered to strictly and no provision is to be left as surplus, redundant or naugatory. Respondent No.2 in initiating the disciplinary proceedings against the petitioner committed a grave and serious illegality in overlooking the provisions of section 20A and 20B of the Ordinance of 1961 and in violation thereof, issued a show-cause notice and the Investigation Committee proceeded to investigate/inquire into the guilt of the petitioner. Such conduct/procedure cannot be held to be legal and proper irrespective of the fact that the material on record might have made out a prima facie case against the petitioner of being guilty of professional misconduct. In the circumstances, we are constrained to hold that respondent No.2 had failed to proceed in accordance with law against the petitioner and the proceedings for professional misconduct initiated against him were defective being in contravention and violation of statutory provisions.
For the foregoing reasons and upon the above discussion, we find that this Constitutional petition carried weight. Accordingly, the same is allowed and the inquiry proceedings pending against the petitioner are set aside as being contrary to law and illegal. It is however, observed that respondent No. 2 will be at liberty to initiate fresh proceedings against the petitioner for professional misconduct in accordance with the relevant provisions of the Ordinance of 1961.
M.B.A./G-48/KPetition allowed.