A person refuses to appear in spite of receipt of notice for appearance cannot be allowed to raise plea of violation of principles of natural justice.

 The appellant's contention that he was not heard before taking a decision to remove his name from the register is unsustainable as the appellant, in spite of giving opportunity to appear on 13.1.2009, not only failed to appear and he specifically took a stand not to appear. A person refuses to appear in spite of receipt of notice for appearance cannot be allowed to raise the plea of violation of principles of natural justice.1

Madras High Court

P. Mohanasundaram vs The President on 30 April, 2013

Citation; AIR 2013 Madras 221

This writ appeal is preferred against the order of the learned single Judge made in W.P.No.12069 of 2010 dated 26.7.2010 rejecting the request of the appellant to quash the order passed by the Institute of Chartered Accountants of India, New Delhi, dated 16.4.2010, as published in the Government of India Official Gazette dated 19.2.2010.

2. The case of the appellant/writ petitioner before the learned single Judge runs as follows:

(a) Appellant/writ petition is a qualified Chartered Accountant, having passed examinations conducted by the Institute of Chartered Accountants of India in the year 1975 and enrolled his name as Member of the Southern India Regional Council, Chennai 34. (b) In the year 1984 matrimonial dispute arose between the appellant and his wife, which resulted in granting of divorce decree by the first Additional Family Court, Chennai on 13.11.2003, and the said divorce decree was confirmed by this Court in C.M.A.No.816 of 2005, judgment dated 7.9.2007. (c) Before the said divorce decree was passed by the Family Court, the appellant's estranged wife filed a complaint in the year 1990 before the XIII Metropolitan Magistrate Court, Chennai, under section 494 IPC alleging bigamy. The learned XIII Metropolitan Magistrate, Chennai, tried the said complaint in C.C.No.8575 of 1990 and convicted the appellant and imposed sentence to undergo rigorous imprisonment for one year by judgment dated 10.5.1999. (d) The appellant preferred criminal appeal in C.A.No.131 of 1999 before the VI Additional Sessions Judge, Chennai, who confirmed the conviction and sentence by judgment dated 24.1.2000. The appellant, having aggrieved over the conviction and sentence, challenged the judgment in Crl.R.C.No.602 of 2000 before this Court and by judgment dated 13.2.2003, this Court confirmed the conviction and reduced the period of sentence to six months from one year. (e) Against the said order of this Court, appellant filed SLP (Crl)No.1658 of 2003, which was later on numbered as Criminal Appeal No.1385 of 2003 and the Hon'ble Supreme Court by judgment dated 14.11.2003 modified the sentence as already suffered by the appellant and disposed of the appeal. (f) According to the appellant, on 17.9.1997, his estranged wife filed a complaint before the first respondent under Section 21 of the Chartered Accountants Act, 1949, enclosing copy of the criminal complaint filed before the XIII Metropolitan Magistrate Court, Egmore, Chennai, and also forwarded copy of the judgment. The Institute of Chartered Accountants of India communicated its order to the appellant on 3.2.2004 holding that the appellant was not guilty of any professional or other misconduct, which decision was taken on 29.1.2004. (g) After a lapse of four years and 11 months, that was on 5.7.2009, the first respondent re-opened the said issue and sent a letter to the appellant stating that the conviction for bigamous marriage involves moral turpitude and therefore as per section 8 of the Chartered Accountants Act, 1949, the appellant has to appear for an enquiry on 13.1.2009 at New Delhi to explain as to why his name should not be removed from the rolls/Register of Members. On 5.1.2009 the appellant sent a letter stating that by order dated 29.1.2004, the appellant was held 'not guilty of any professional or other misconduct' by considering the orders of the criminal court, including that of the Supreme Court dated 14.11.2003 and therefore no action need be initiated for the concluded matter. (h) The first respondent, on 16.4.2010 passed an order removing the name of the appellant from the register of members. The said order was challenged on the ground that the appellant having been given a clean chit by order dated 29.1.2004, the first respondent was not justified in removing the name of appellant from the register on the ground of disqualification and the said order was passed in violation of Article 20 of the Constitution of India as he was punished for the same misconduct, in which he was earlier exonerated by the first respondent. (i) The decision of removal of appellant's name from the register by publishing the same in the Government of India Gazette dated 19.2.2010, communicated to the appellant on 16.4.2010, was justified by the first respondent by contending that the order of the Honourable supreme Court dated 14.11.2003 was not considered by the Southern India Regional Council, while deciding the complaint filed by the wife of the appellant. (j) The appellant in his reply dated 5.1.2009, which was given in response to the letter of the respondent dated 29.12.2008, stated that if the Regional Council obtained the Supreme Court order from the Complainant, it must be disclosed, and if it was obtained directly from the Supreme Court it must also be informed to the appellant.

3. The contention of the respondent in the counter affidavit was that the order of the Supreme Court dated 14.11.2003 was not available with the Regional Council while deciding the complaint of the appellant's wife and the conviction rendered in the criminal case of bigamous marriage, having become final, continuance of appellant's name on the roll of the Chartered Accountants/Register of Members is in violation of Section 8 of the Chartered Accountants Act, 1949 and the appellant having incurred disability to continue his membership, his name cannot be allowed to be in the register and is bound to be removed in terms of Section 20(1)(d) of the Act. Thus, removal of appellant's name from the Register of the Chartered Accountants, which was gazetted on 19.2.2010, is by operation of law and so long as appellant's conviction stands, particularly for an offence involving moral turpitude, he has no right to challenge the order and his name cannot be included/retained in the register of Chartered Accountants.

4. The learned single Judge accepting the contentions raised by the respondents, upheld the order removing the name of the appellant from the Register of Chartered Accountants. This appeal is preferred against the said order.

5. Mr.R.Sankara Subbu, learned counsel appearing for the appellant contended that the professional body has no jurisdiction to go into the family matters between the husband and wife, which are not connected to the profession. He further argued that the first respondent having taken a decision on 29.1.2004 holding that the appellant was not guilty of any professional or other misconduct, which was taken after the order of the Supreme Court dated 14.11.2003, the first respondent was not justified in reopening the matter and removing the name of the appellant from the register. The appellant was not heard before passing the removal order, which is in violation of the principles of natural justice. The learned counsel further argued that the allegation of bigamous marriage will not come within the meaning of moral turpitude. Therefore, the disqualification attached to Section 8 of the Act will have no application to the facts of this case. The learned counsel ultimately prayed for setting aside the order of the learned single Judge and prayed for allowing the writ petition so as to continue the name of the appellant in the register of Chartered Accountants.

6. Mr.Krishna Srinivasan, learned counsel appearing for the respondents on the other hand submitted that inclusion, continuance and removal of names of persons from the register of Chartered Accountants is governed under the provisions of the Chartered Accountants Act, 1949 and the Regulations framed thereunder, and the Regulations were framed in the year 1988, and the appellant having been convicted for an offence of bigamy and the said conviction having been confirmed by the trial Court, appellate Court, revisional Court as well as by the Supreme Court, Section 8 of the Act comes into play, and as per section 20(2) of the Act, appellant's name was removed from the register. The learned counsel also submitted that the earlier order dated 29.1.2004 having been passed without knowledge about the order of the Honourable Supreme Court, the first respondent was justified in removing the name of the appellant from the register as he was debarred from continuing as Member of the Council of Chartered Accountants by operation of law, and if any order is passed allowing the appellant to be on the rolls of the register, it would be a statutory violation.

7. We have considered the rival submissions made by the learned counsels for the parties.

8. Even as per the affidavit filed by the appellant, the appellant was proceeded for an offence of bigamy under Section 494 and 109 IPC in C.C.No.8575 of 1990 before the XIII Metropolitan Magistrate, Egmore, Chennai. It is not in dispute, after full trial, the appellant was convicted for the offence of bigamy and he was sentenced to undergo rigorous imprisonment for one year. The said conviction and sentence was confirmed by the VI Additional Sessions Judge, Chennai, in C.A.No.139 of 1999 by judgment dated 24.1.2000. In the criminal revision filed by the appellant before this Court in Crl.R.C.No.102 of 2000, the conviction was confirmed, however, the sentence alone was reduced by judgment dated 13.2.2003. Leave was granted against the said order and in C.A.No.1385 of 2003, the Hon'ble Supreme Court, while confirming the conviction, reduced the sentence to that of sentence already suffered, as per the request made by the learned counsel for the appellant. The order of the Supreme Court dated 14.11.2003 reads as follows: "IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1385 OF 2003

(Arising out of SLP (CRL)No.1658 of 2003)

P. Mohanasundaram .. Appellant

Versus

S. Sayakumari @ Saikumari .. Respondent

O R D E R

Heard learned counsel for the parties.

Leave granted.

This Court while issuing notice on 2nd of May, 2003 in the SLP confined the case to the sentence only. Having heard the learned counsel for the parties in this regard we are of the opinion that the sentence imposed by the High Court should be modified to the sentence already suffered by the appellant in this case. We order accordingly.

With the above modification this appeal is disposed.

Sd/- xxxxxxxxx

(N. SANTOSH HEGDE)

Sd/- xxxxxxxxx

(B.P. SINGH)

NEW DELHI,

November, 14, 2003."

Thus, it is beyond doubt that the conviction recorded in the criminal case against the appellant is subsisting as on today and the sentence imposed alone was reduced to the sentence already suffered. In fact, the Supreme Court declined to go into the issue of conviction recorded upto this Court.

9. The complaint given by the appellant's estranged wife was dated 17.9.1999, wherein bigamy was stated as a reason for preferring the said complaint against the appellant. Action was initiated by the first respondent by issuing notice dated 15.1.2000. Before initiation of action on 28.12.1999, appellant's estranged wife was directed to submit further particulars to proceed with the complaint, based on which on 21.1.2000, the estranged wife of the appellant furnished marriage register document issued by Tiruthani Devasthanam and the acceptance of the appellant regarding the bigamous marriage made in the Family Court, as well as the judgment of the Trial Court. The appellant submitted written statement for the said complaint on 8.2.2001 by contending that the conviction and sentence imposed is still in appeal in the higher court and the lower court order is suspended, and hence there will be no effect on the continuance of his membership and the allegation of bigamy do not fall within the meaning of professional misconduct of the Members. A further reply was also given on 28.2.2002 by the respondent. Based on the said replies submitted and having regard to the fact that the conviction and sentence have not become final, on 29.1.2004 a decision was taken by the first respondent to the following effect: "The Council was prima facie of the opinion that you are not guilty of any professional or other misconduct."

10. The above said facts clearly reveal that the first respondent was not aware of confirmation of conviction by this Court recorded by order dated 13.2.2003 and the order of the Hon'ble Supreme Court dated 14.11.2003. The respondent, after knowing the said fact, particularly the order of the Supreme Court, issued a notice on 29.12.2008 stating as follows: "On perusal of the order passed by the Hon'ble Supreme Court, it is clear that your conviction for bigamous marriage involving moral turpitude stands confirmed, which attracts the provisions of Section 8 of the Chartered Accountants Act, 1949. The Council, however, decided that before initiating further action, a copy of the said order be forwarded to you for your reference and comments, if any, and you also be given opportunity to being before the Council." The appellant was given seven days time to give his comments and he was also requested to appear before the Council at 11.00 a.m. on 13.1.2009 in the office of the Institute at Indraprastha Marg, New Delhi, for personal hearing. It was made clear in the notice that if the appellant fails to appear in person during the date and venue, the matter will be considered and decided by the Council without any further reference in accordance with the provisions of Section 8 of the Act. The appellant thereafter sent his comment on 5.1.2009 and questioned as to how the first respondent got the order of the Supreme Court and further stated that the bigamy case will not come within the purview of professional misconduct and he was in prison hardly for few days, which was accepted by the Supreme court while reducing the sentence and initiation of proceedings invoking section 8 after five years of the earlier closure of the complaint is illegal and ultimately the appellant closed the comments with the following sentence: "I do not want to respond your letter which is wholly unlawful and illegal and it has no effect at all as long as earlier order dated 29.1.2004 passed by the Council stands."

11. As the appellant was not in a position to repudiate the conviction recorded by the Hon'ble Supreme Court in a bigamy case and the appellant having taken a stand that he do not want to respond for appearing before the Council on the date of hearing, that was on 13.1.2009 at 11.00 a.m., the Council took a decision in its 284th meeting by considering the comments of the appellant dated 5.1.2009 and resolved to remove the name of the appellant from the register of Members permanently, under clause (d) of Sub-section (1) of Section 20 of Chartered Accountants Act, 1949, read with Regulation 18 of the Chartered Accountant Regulations, 1988 and a notification was issued in the Government of India Official Gazette dated 19.2.2010, which was also communicated to the appellant on 16.4.2010.

12. The above narrated uncontroverted facts clearly establish the fact about the non-consideration of the order of this Court as well as the order of the Supreme Court, confirming the order of conviction of the appellant for an offence of bigamy. The earlier decision taken on 29.1.2004 by the first respondent, was solely on the comments submitted by the appellant dated 8.2.2001 and 28.2.2002, wherein the appellant specifically had taken a stand that the criminal revision against the conviction and sentence filed before this Court was pending. Therefore, the appellant was not justified in raising a contention in his reply that the first respondent was not justified in issuing notice dated 29.12.2008, calling upon the appellant to send his comments for his personal appearance regarding the attraction of the provisions of Section 8 of the Act. The appellant deliberately failed to appear for personal hearing on 13.1.2009 and the same is evident from the reply/comments sent by him on 5.1.2009. In the comments/reply also the appellant was not able to state anything about the conviction recorded upto the Supreme Court regarding the offence of bigamy against him. The only plea raised by the appellant was that involving in a bigamous case and conviction will not come within the purview of professional misconduct. The said plea was also considered by the Council in its 284th meeting held on 13.1.2009. It is also to be noticed that the earlier decision was on prima facie view and not a final decision. Thus, the appellant is not entitled to raise a contention that the first respondent was not justified in reopening the matter which was closed.

13. The appellant's contention that he was not heard before taking a decision to remove his name from the register is unsustainable as the appellant, in spite of giving opportunity to appear on 13.1.2009, not only failed to appear and he specifically took a stand not to appear. A person, refuses to appear in spite of receipt of notice for appearance, cannot be allowed to raise the plea of violation of principles of natural justice.

14. The next question to be considered is as to whether by virtue of the conviction recorded for bigamous marriage the appellant sustained disability to retain his name in the register of Chartered Accountants. Section 8 of the Chartered Accountants Act, 1949 deals with entering the name of the Chartered Accountant and continuing the name of the person, whose name was entered as Chartered Accountant in the register. The said section reads as follows: "8. Disabilities

Notwithstanding anything contained in Section 4, a person shall not be entitled to have his name entered in or borne on the Register if he-

(i) has attained the age of twenty-one years at the time of his application for the entry of his name in the Register; or

(ii) is of unsound mind and stands so adjudged by a competent Court;

(iii) is an undischarged insolvent; or

(iv) being a discharged insolvent, has not obtained from the Court a certificate stating that his insolvency was caused by misfortune without any misconduct on his part; or

(v) has been convicted by a competent Court whether within or without India (sic), of an offence involving moral turpitude and punishable with transportation of imprisonment or of an offence, not of a technical nature, committed by him in his professional capacity unless in respect of the offence committed he has either been granted a pardon or, on an application made by him in this behalf, the Central Government has, by an order in writing, removed the disability; of (vi) has been removed from membership of the Institute on being found on inquiry to have been guilty of professional or other misconduct."

Section 20 deals with removal from the register of the name of any member of the Institute, which reads as follows:

"20. Removal from the Register. (1) The Council may remove from the Register the name of any member of the Institute

(a) who is dead; or

(b) from whom a request has been received to that effect; or

(c) who has not paid any prescribed fee required to be paid by him; or

(d) who is found to have been subject at the time when his name was entered in the Register, or who at any time thereafter has become subject, to any of the disabilities mentioned in Section 8, or who for any other reason has ceased to be entitled to have his name borne on the Register.

(2) The Council shall remove from the Register the name of any member in respect of whom an order has been passed under this Act removing him from membership of the Institute.

(3) If the name of any member has been removed from the Register under clause (c) of sub-section (1), on receipt of an application, his name may be entered again in the Register on payment of the arrears of annual fee and entrance fee along with such additional fee, as may be determined, by notification, by the Council which shall not exceed Rupees Two thousand." Regulation 18 of the Chartered Accountants Regulation 1988 deals with issuance of notification of removal, which reads as follows:

"18. Notification of removal

The removal of a member's name from the Register shall be notified in the Gazette of India and shall also be communicated in writing to him."

15. The above referred statutory provisions amplifies the disqualification of persons involved in an offence of moral turpitude, either to become a member, or continuing as a Member of the Chartered Accountants Council.

16. One of the contention of the appellant is that involvement of a person in an offence of bigamy is not coming within the purview of "moral turpitude". The appellant and his estranged wife are Hindus, governed under the provisions of the Hindu Marriage Act, 1955. Section 17 of the Act states that marriage between two Hindus is void if two conditions are satisfied, viz., (1) the marriage is solemnized after the commencement of the said Act, and (2) at the date of such marriage, either party had a husband or wife living and the provisions of Sections 494 and 495 shall apply accordingly. Thus, it is evident that if a Hindu marries with a person having a spouse living or he or she have a spouse living, marries any person, shall be liable for bigamy. Similar provision viz., Rule 23(1)(a) of the Central Government Civil Services Conduct Rules, 1964 was challenged before the Delhi High Court and in the decision reported in 1976 (1) SLR 350 (M.S.Mann v. Union of India) it was held thus, "27. ................... It has been urged that Rule 21 is an encroachment on the life and liberty of an individual which progressively has come to mean more than mere taking away of life by killing or putting fetters on liberty by imprisonment. In my view such an extended meaning cannot be given to the restraint put by way of conditions of service in Rule 21 for, as I have observed earlier, a restraint put in consonance with a valid law cannot be regarded as a restraint in contravention of Article 21 of the Constitution." A Division Bench of the Allahabad High Court also in the decision reported in AIR 1961 Allahabad 334 (Ram Prasad Seth v. State of U.P.) upheld similar rule under U.P.Government Servants' Conduct Rules. The said decision of the Allahabad High Court was approved by the Hon'ble Supreme Court in the decision reported in (2003) 8 SCC 369 (Javed v. State of Haryana) in para 58, which reads as follows: "58. The law has been correctly stated by the High Courts of Allahabad, Bombay and Gujarat, in the cases cited hereinabove and we record our respectful approval thereof. The principles stated therein are applicable to all religions practised by whichever religious groups and sects in India."

17. Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1944, which prohibits entering into a contract of marriage with a person having a spouse living was challenged before this Court in W.P.No.15288/2012 and one of us (NPVJ) upheld the said provision by holding that the said provision was made in accordance with the personal law applicable to the parties in order to maintain morality in society.

18. The Supreme Court in (2010) 8 SCC 573 (Sushil Kumar Singhal v. Punjab National Bank)considered the meaning of moral turpitude by taking note of the earlier decisions of the Hon'ble Supreme Court and in paragraphs 21 to 25 held thus, "21. This Court reconsidered the said case i.e. Shankar Dass ((1985) 2 SCC 358) in Swarn Singh v. SBI (1986 Supp SCC 566) and held that the provisions of Article 311(2) of the Constitution of India conferred the power on the Government to dismiss a person on the ground of conduct which has led to his conviction on a criminal charge. It is thus clear that it was open to the respondent Bank to initiate the disciplinary proceedings and impose the punishment in view of the provisions of the Banking Regulation Act, 1949 (hereinafter called as the 1949 Act ).

22. Section 10(1)(b)(i) of the Act, 1949 reads as under:

10. Prohibition of employment of managing agents and restrictions on certain forms of employment. (1) No banking company

(a) * * *

(b) shall employ or continue the employment of any person

(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude; (emphasis supplied)

The aforesaid provision makes it clear that the management is under an obligation to discontinue the services of an employee who is or has been convicted by a criminal court for an offence involving moral turpitude.

23. Moral turpitude means per Black's Law Dictionary (8th Edn., 2004):

Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offenses involving moral turpitude such as fraud or breach of trust. Also termed moral depravity. Moral turpitude means, in general, shameful wickedness so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people. (emphasis in original)

24. In Pawan Kumar v. State of Haryana ((1996) 4 SCC 17) this Court has observed as under: (SCC p. 21, para 12)

12. Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The aforesaid judgment in Pawan Kumar ((1996) 4 SCC 17) has been considered by this Court again in Allahabad Bank v. Deepak Kumar Bhola ((1997)4 SCC 1) and placed reliance on Baleshwar Singh v. District Magistrate and Collector (AIR 1959 All 71) wherein it has been held as under: The expression moral turpitude is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man.

25. In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked and base activities."

19. From the above referred judgments and having regard to the fact that the appellant married another woman, while the first marriage was subsisting, and had acted contrary to the law and to his "estranged wife", we are of the view that the offence of bigamy is coming within the meaning of "moral turpitude".

20. The conviction recorded against the appellant for bigamy stands even today though sentence was reduced to the period already undergone. Hence, the decision taken by the first respondent to remove the name of the appellant from the register maintained by the Chartered Accountants Council in its 284th meeting held on 13.2.2010, which was published in the official gazette dated 19.2.2010 communicated to the appellant on 16.4.2010, which was upheld by the learned single Judge is valid and no interference is required as the appellant has attracted disqualification by operation of law viz., Section 8 of the Chartered Accountants Act, 1949, due to his involvement in an offence involving moral turpitude.

For the foregoing reasons, the writ appeal stands dismissed. No costs. Connected miscellaneous petitions are also dismissed.

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