Notice dated 20.12.2021 was issued for elections to be held on 27.12.2021 for the Eastern India Regional Council (hereinafter referred to as ‘EIRC’) of Institute of Company Secretaries of India (hereinafter referred to as ‘ICSI’) to take effect from 19.01.2022 for the period of one year.
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As the post of Chairman fell vacant, the same was required to be filled in for the remaining period in terms of Regulation 119(2). The learned Single Judge allowed the writ petition and set aside the elections of the office bearers elected in the meeting held on 27.12.2021 mainly on the ground that the meeting was not chaired by the Vice-Chairman who in absence of the Chairman was required to conduct and/or chair the meeting as Chairman.
From the judgment and order passed by the learned Single Judge confirmed by the Division Bench of the High Court it appears that the learned Single Judge quashed and set aside the election of the office bearers of the EIRC on the ground that the meeting was not presided over by the Vice-Chairman (Respondent no.1 herein). Provided further that in the absence of both the President and the Vice president of the outgoing Council the members of the Council present shall elect one of the members to be the Chairman of the meeting until such time a President is elected under the provisions of sub- section (1) of section 12.” (3) Any vacancy caused by the resignation, death or removal from the Register of an elected member of the Regional Council may be fi by the Regional Council by co-option of another member entitled to vote in and stand for election to the Regional Council with the approval of the President.
(5) In the case of a member of a Regional Council being elected to the Council, without prejudice to his right to be represented on the Regional Council under clause (a) of sub-regulation (2) of Regulation 111, he shall cease to be an elected member of the Regional Council and the vacancy thus caused may be filled up by co-options by the Regional Council in the manner set out in sub- regulation (3). (2) Every Regional Council shall at its first meeting held after its constitution and in subsequent years at a meeting to be held in December of every year elect from amongst its members a Chairman, a Vice-Chairman, a Secretary and a Treasurer thereof to hold office for a period commencing from the date of its first meeting after constitution or from 1st January of the subsequent year as the case may be, till the 31st December of that year and so often as any of those offices become vacant, the Regional Council shall elect another person from amongst its members to hold the office for the remaining period of a year.
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(4) If within half an hour from the time appointed for the said first meeting of the Regional Council referred to hereinbefore, a quorum as mentioned in sub-regulation (1) above is not present, the said first meeting shall notwithstanding anything contained in that Regulation stand adjourned to the same day in the next week at the same time and place and at such adjourned meeting of the Regional Council, the member or members present, shall constitute the quorum and shall have power to transact all the business which could properly have been transacted at the original meeting.” 2 Regulation 117 deals with the vacancies.
As per Regulation 119(2) every Regional Council shall at its first meeting held after its constitution and in subsequent years at a meeting to be held in December of every year elect from amongst its members a Chairman, a Vice-Chairman, a Secretary and a Treasurer thereof to hold office for a period commencing from the date of its first after constitution or from 1 January of the subsequent year as the case may be till the 31 December of that year and so often as any of those offices become vacant, the Regional Council shall elect another person from amongst its members to hold the office for the remaining period of a year. Regulation 92(2) shall be applicable only in a case of absence and not in a case where the post of Chairman and/or office bearer has fallen vacant. Both, the learned Single Judge as well as the Division Bench of the High Court have not appreciated the distinction between the vacation of office under Regulation 117(2) of the Regulation and the absence of an office bearer under Regulation 92.
Now so far as the submission made by Shri Ritin Rai, learned Senior Advocate appearing on behalf of the contesting respondent no.1 that even otherwise the election was not held legally and there was irregularity in conducting the election/meeting is concerned, at the outset it is required to be noted that there were disputed questions of fact on whether the meeting and/or election was irregularly conducted or not.
Under the circumstances the High Court erred in entertaining the writ petition challenging the election at the instance of the respondent no.1 who even did not contest the election of the office bearers. No costs.
Case Title: INSTITUTE OF COMPANY SECRETARIES OF INDIA Vs. BIMAN DEBNATH (2022 INSC 1179)
Case Number: C.A. No.-008039-008039 / 2022
