Can't Interdict Election Process: Calcutta High Court Refuses To Entertain Writ Petition Against Rejection Of Nomination In ICAI Elections

The Calcutta High Court on Wednesday dismissed a Writ Petition filed by a member of the Institute of Cost Accountants of India (ICAI), Ahmedabad chapter, contesting the rejection of his nomination for elections to the Council of the ICAI.

In dismissing the appeal, a division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattacharya allowed the petitioner liberty to approach the Election Tribunal of the Institute of Cost Accountants and upon his request also observed that in case the grievances of the petitioner were genuine, the Tribunal may attempt to conclude such proceedings within three months.

The Bench observed that if the petition is allowed, then all the dates as fixed for the election, from the stage of nomination, scrutiny and even the dates for polling would have to be rescheduled. Justice Sivagnaman held that such a direction would amount to interdicting of an election process, which is not within the powers of a Writ Court as it would tantamount to the court calling into question the process of election carried out by the ICAI.

It was observed that the nomination of the petitioner was rejected under Rule 7 of the Cost and Work Accountancy (Election) Rules, 2006 (“rules”) which deals with eligibility to contest elections, on the ground that he had “other dues” outstanding with the ICAI to the tune of Rs 472 since 2019, in form of a debit note. Hence it was decided by the ICAI that the petitioner could not contest the elections for being barred under the aforesaid rule.

According to Advocate Vikram Wadhera, the Counsel for the petitioner, the dues in the debit note did not constitute “other dues” as the petitioner continues to be eligible to exercise his right to vote in the election, despite Rule 5 of the rules debarring any member with outstanding dues from being able to cast their vote in the elections as well. To support this contention, the petitioner furnished the latest electoral list published by the ICAI which included the name of the petitioner as a voter, and submitted that even after falling afoul of Rule 5 and other related provisions within the Cost and Work Accountancy Act, the membership of the petitioner with the ICAI was not cancelled for a period of four years of the dues subsisting. Instead, only his filing of nomination for election to the Council became affected by the issue of subsisting “other dues” while his membership otherwise continued.

Taking Rule 5 and Rule 7 to be pari materia, the Counsel for the petitioner argued that if the debit note of Rs 472 had been taken to be “other dues” since 2019, then the membership as well as right to vote of the petitioner would have immediately been revoked as well. Since such action was not taken, Mr Wadhera argued that the debit note does not constitute “other dues” and as such could not preclude the petitioner from standing for elections.

Upon hearing these arguments, the Bench opined that these questions of fact could not be decided by the Writ court at the present stage, and as such the petitioner was directed to approach the Election Tribunal of the ICAI in order to state and resolve his grievances.

Case Title: Dinesh Kumar Birla v Institute of Cost Accountants of India and Anr

Citation: 2023 LiveLaw (Cal) 159

Coram: Chief Justice TS Sivagnaman and Justice Hiranmay Bhattacharya