THE DISCIPLINARY COMMITTEE THE INSTITUTE OF COMPANY SECRETARIES OF INDIA IN THE MATTER OF COMPLAINT OF PROFESSIONAL OR OTHER MISCONDUCT ICSI/ DC/NI/17/2016 Order Reserved on: 24th December, 2016 Order Issued on:,jarukeutj, 2-013 Mr.Arun Gupta, ACS-27748...Informant Vs. Mr. Devender Kumar, ACS-23090...Respondent Present: Director (Discipline) Respondent in person FINAL ORDER 1. An information dated 25th February, 2016 under section 21 of the Company Secretaries Act, 1980 ("the Act") read with the Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 ("the Rules") was received from Shri Arun Gupta, ACS 27748 (the informant) against Shri Devender Kumar, ACS-23090 ("the Respondent"). Pursuant to Rule (7) of the Rules, the informant was asked as to whether he would file the Complaint in Form-I, vide letter dated 7th March, 2016. A letter dated 10th March, 2016 was received from the informant asking the Institute to take action in the matter on the basis of his information or the ICSI has to clear that no action can be taken without making a complaint in Form I. c,0 (II Pan), 0 2. Pursuant to sub-rule (3) of rule 8 of the Rules, a copy of the letter received from the informant was sent to the Respondent vide letter dated 5th April, 2016, calling upon him to submit his Written Statement on the same. The Respondent vide his letter dated 20th April, 2016 requested for additional time to submit his Written Statement which was allowed vide Institute's letter dated 4th May 2016. io Comm
3. The Respondent submitted his Written Statement vide letter dated 28th May, 2016. The Respondent in his written statement has admitted that he had joined GMR Group w.e.f. 27th April, 2015 as Company Secretary and his form DIR 12 has also been filed for M/s GMR Pochanpalli Expressways Limited having registered office at 25/1, SKIP House, Museum Road, Bengaluru, and Karnataka. He further stated that when he joined the GMR Group, his location was not clear whether he would work from Delhi, Gurgaon or any other place because there was also planning to take office at Gurgaon. At that time GMR Group was in the process of shifting its registered/ corporate offices of some of its companies. He did not want to miss any communication from ICSI; consequently kept his residential address i.e. House no. 676, Sector 9, Gurgaon, Haryana as communication address. The Respondent further stated that there was no malafide intention for not informing to ICSI regarding his professional address. 4. On 19th September, 2016, the Disciplinary Committee pursuant to Section 21 (3) of the Act read with Rule 9 (2) (b) of the Rules, considered the prima-facie opinion dated 12th September, 2016 of the Director (Discipline) and the material on record; wherein the Director (Discipline) is prima facie of the opinion that the Respondent is "GUILTY" of Professional Misconduct under item (1) and Item (3) of Part II of Second Schedule to the Act, as the Respondent has contravened the provisions of the Regulation 3 of the Company Secretaries Regulation, 1982 as he did not communicate the change of his professional address to the Institute within one month of such change and has also submitted his wrong address to the Institute. The Disciplinary Committee after considering the prima facie opinion, the material on record, totality of all the facts and circumstances and after detailed deliberations, vide its Interim Order dated 12th November, 2016 agreed with the prima-facie opinion of the Director (Discipline), that the Respondent is "GUILTY" of Professional Misconduct under item (1) and Item (3) of Part II of Second Schedule to the Act for contravention of Regulation 3 of the Company Secretaries Regulations, 1982 for not intimating his professional address to the Institute within the time prescribed. The Disciplinary Committee decided to proceed further in the matter in accordance with the provisions of the Act and the Rules. 5. An Interim Order dated 12th November, 2016 passed by the Disciplinary Committee in the case, was communicated letter dated 15th
November, 2016 and a copy of the Prima-facie opinion of the Director (Discipline) was sent to the Respondent vide letter dated 24th November, 2016asking him to submit his written statement to the primafacie opinion of the Director (Discipline). 6. In response to the Interim Order passed by the Disciplinary Committee, the Respondent vide his letter dated 23rd November, 2016/email dated 30th November, 2016 submitted that the complainant is having the malafide intention as he is the member of the Managing Committee of the Gurgaon and the Complainant has developed personal grudges against the Respondent and filed this complaint out of the political rivalry in the Managing Committee of the Gurgaon chapter of NIRC of the ICSI, where the complainant could not become office bearer through the democratic process. His intention is to get vacated my seat in the Managing Committee of the Gurgaon Chapter and become the office bearer through the back door as he is in minority. The Respondent also stated on record that he has not been heard by Disciplinary Committee and he has not explained his position in person so he is of the view that the Director (Discipline) has formed opinion in violation of principal of natural justice. He was not given an opportunity of being heard to enlighten the facts and other important issues which could be vital. The Respondent requested to set aside the interim order passed against him and if required he is always available to be present before the Hon' ble Authority. 7. Further the Respondent vide email dated 7th December, 2016 requested for additional time to submit the written statement to the prima-facie opinion of the Director (Discipline); which was granted till 22nd December, 2016 vide letter/email dated 10th December, 2016. 8. The Informant vide his email dated 12th December, 2016 marked to the Secretary, ICSI with a copy to President, ICSI and Director (Discipline) referred the Interim Order of the Disciplinary Committee in the matter and stated that still the Respondent is occupying the position of MC members illegally despite the said order and requested that necessary action and direction must be issued to vacate the office of MC members with immediate effect to ensure the governance in the ICSI. The Informant also informed that Notice has also circulated through mail for conducting MC meeting on 16.12.2016 which is also required to be reconsidered with reference to Disciplinary Committed order.
9. The Director (Discipline) vide email dated 13th December, 2016 replied to the Informant that the information dated 25th February, 2016 received against the Respondent is being dealt in accordance with the Act and the Rules; and that the Law of Land clearly works on the principle that an accused being innocent unless proved guilty. The only exception to this principle is any statutory provision so being contrary to the presumption of innocence. No prima facie opinion of the Director (Discipline) can be treated as final pronouncement of guilt until the Disciplinary Committee/Board of Discipline pronounces a member guilty of professional or other misconduct after following due process. The Director (Discipline) further advised the Informant to refrain from circulating such literature/e-mail as the matter is sub-judice. 10.The Respondent was called to appear before the Disciplinary Committee on 24th December, 2016 at New Delhi vide letter/email dated 10th December, 2016. 11.The Respondent submitted his written statement to the prima facie opinion of the Director (Discipline) vide email/letter dated 22 nd December, 2016 stating that there was no malafide intention and no mens rea behind non-intimation of professional address as his residential address was of Gurgaon. He admitted his mistake for nonintimation of professional address which was done inadvertently and not deliberately. He requested the competent authority to take a lenient view in the matter and forgive him. 12.The Respondent appeared before the Disciplinary Committee on 24th December, 2016 at New Delhi wherein the Respondent re-affirmed the contents of his letter dated 22nd December, 2016 wherein he has explained reasons behind the discrepancy in the address given in the said form. He further pointed out that this happened unintentionally and inadvertently without malafide intent on his part. 13.The Respondent fairly admits his mistake for the non-intimation of the professional address and requests the Disciplinary Committee to take a lenient view. 14.The Disciplinary Committee also knowing that the nature of the complaint is in the form of information vide email dated 7th March, 2016. The Assistant Director of the Disciplinary Directorate had also asked the informant to file the complaint in Form I along with the requisite fee and has also provided the requisite.et.ils, vide reply 42-
dated 10th March, 2016, the Informant instead of replying to the issue of filing a complaint has instead sought to wake up extraneous issues that have no direct relevance to the Institute. 15.The Disciplinary Committee observes that the proceedings are not to be driven beyond the scope of information. 16.In light of the submissions of the Respondent admitting his inadvertent mistake and the Interim Order dated 12th November, 2016 passed by the Disciplinary Committee in response to prima facie opinion of the Director (Discipline) dated 12th September, 2016,holding the member the Disciplinary Committee after considering all the material on record; the nature of issues involved and in totality of the circumstances of this case of the opinion that there was an inadvertent error of the respondent in not intimating the professional address as required under the company secretaries Act, 1982 and decided to afford to the Respondent an opportunity of being heard in terms of sub-rule (1) of Rule 19 of the Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 ("the Rules") and after having heard the Respondent again on 24th December, 2016, decided to take following action under Section 218 (3) of the Company Secretaries Act, 1980 read with Rule 19(1) of the Rules: (ii) Reprimand. 17.The Disciplinary Committee further advises the Respondent to be more meticulous in future to prevent reoccurrence\ c; f such mistake. Ahalad ao V Member rialin Kohli Member Mamta Binahl Presiding Officer