CODE OF CONDUCT. OVERVIEW The Company Secretaries Act, 1980: Chapter V – Section 21 to 22E First...
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Transcript of CODE OF CONDUCT. OVERVIEW The Company Secretaries Act, 1980: Chapter V – Section 21 to 22E First...
OVERVIEW
The Company Secretaries Act, 1980:
Chapter V – Section 21 to 22E
First Schedule
Second Schedule
The Company Secretaries (Procedure of
Investigations of Professional and Other
Misconduct and Conduct of Cases) Rules, 2007
Appellate Authority
Also discuss what is the course available after Appellate Authority
Also the complainant cannot file appeal before the Appellate Authority
DISCIPLINARY DIRECTORATE
Council has constituted Disciplinary
Directorate (DD).
Complaint would be first received by DD
then he will form a prima facie opinion.
Depending on the Schedule which covers
the Misconduct, DD further places the
matter before Board of Discipline or
Disciplinary Committee.
CONSTITUTION Council of ICSI constitutes BOD:
Presiding Officer : Person with experience in
Law and having knowledge of
Disciplinary matters and profession
2 Members : 1 Elected Council member
Chief Executive of the Institute
appointed under section 16(1)(c) of
the Act
DD functions as Secretary to the BOD
Summary procedure adopted by
BOD for disposal of complaints
If found guilty, an Opportunity of
being heard given to the
member before making any order.
PUNISHMENT
Reprimand
Removal of the name from the
Register of members upto 3
months
Fine upto Rs. 1 Lakh
If DD is of the view that there is no
prima facie case in the complaint, he
will inform accordingly to the board.
If Board
Agrees - File closed
Disagrees - DD shall further
investigate
CONSTITUTION
Council constitutes DC consisting of:
President or VP of Council as
Presiding Officer
2 Council members
2 Eminent persons nominated
by Central Government
Present Disciplinary Committee
Presiding officer- Mr. R. Sridharan
Members - Mr. Sanjay Grover
Mr. Sudhir Babu C
Mr. S. Balasubramaniam
Mr. S. K. Tuteja
Council may constitute more
Disciplinary Committees
DC free to prescribe own
procedure
Before making any order,
awarding punishment -
Opportunity of being heard
given to the Member.
PUNISHMENT
Reprimand
Removal of name from the
Register of Members (Even
Permanently)
Fine upto Rs. 5 Lakhs
POWERS OF CIVIL COURT
The Authority, Disciplinary Committee, Board of
Discipline and Director Discipline are vested with
the powers of civil court under the Code of Civil
Procedure, 1908 in respect of the following
matters, namely:
Summoning & Enforcing attendance
Examining on oath
Discovery & Production of Documents
Receiving evidence on Affidavit
Person ceasing to be a member of ICSI is
subject to code of conduct if alleged
misconduct was conducted during the
period of his membership.
Misconduct could be professional as well
as other misconduct, the other
misconduct has been included in Part –
IV of First Schedule and Part-III of
Second Schedule
APPELLATE AUTHORITY
Appellate Authority for CA, CS and ICWA is
same except that the two members will
be nominated by the respective Institute.
Three members including the Chairman
will be common.
The Authority shall function in accordance
with Section 22A – 22E of the CS Act.
Section 22E provides for appeal to authority:
Any member aggrieved by order of BOD/DC
may within 90 days from communication of
order to him, prefer an appeal
DD (subject to authority from the Council)
may also file an appeal against decision of
BOD/ DC
Delay beyond 90 days can be condoned by
Appellate Authority
Appellate Authority may
Confirm Modify Order/ PenaltySet Aside
OR Remit the case back to BOD/
DC
Opportunity of being heard
given to the concerned parties
There is no provision for filing
appeal by the complainant.
In such a scenario writ is the
only option
PART I- Misconduct in relation to PCS
Allowing a non-member to practice in
one’s name
Sharing fees with a non member
Accepting profits of a Professional work
of a person, who is a non-member
Entering into Partnership with a non-
member
Securing Professional assignment
through a person unless he is an
employee or a partner
Soliciting clients or professional work
directly or indirectly.
---Applying/ Requesting/ Inviting/
Securing work from other PCS permitted
---Replying to tenders or enquiries
permitted.
Advertising his attainment or services
or using designation other than CS
---Displaying degree of University or
membership of other professional
bodies, if approved by Council, is
permitted.
---Limited advertisement subject to
guidelines issue by Council permitted
Accepting position of PCS without
communicating with earlier incumbent in
writing.
Charging fees as a percentage of profit or
contingent on finding of result of the
assignment.
Engaging in any business/ occupation
other than profession of PCS
---Directorship in other companies is
permitted
Allowing a non partner to sign on one’s
behalf any certificate to be given as PCS.
PART II- Misconduct in relation to members in service
Sharing of Emoluments with any other
person
Accepting fees or profits from lawyers,
CS, brokers, agents or customers by
way of Commission or Gratification
PART III- Misconduct in respect of all Members
Describing oneself as fellow without being FCS.
Not supplying information called by Council/
Committee of the Council/ DD/ BOD/ DC/ QRB
or Appellate Authority
Giving false information for procuring
assignment.
Carry-on practice as a Company Secretary
without proper Certificate of Practice.
PART IV- Other Misconduct
If held guilty by any court for an
offence punishable with imprisonment
for a term upto 6 months
Bringing disrepute to the profession
or the institute due to his action
whether related to Professional work
or otherwise.
PART I- Misconduct in relation to PCS
Disclosing confidential information
of client to others
Issuing certificate or report without
examining the facts by himself or by
his partner or employee or other
PCS
Vouching accuracy of forecast or
future transaction
Expressing opinion in respect of an
enterprise in which he/ his partner has
substantial interest
Suppressing material fact in report or
certificate
Failing to report material misstatement
Not exercising due diligence or being
negligent in Professional duties
Failing to obtain sufficient information
before reporting or certifying.
Failing to bring out material
departure from acceptable procedure
relating to Secretarial practice.
Not keeping advances received from
client for expenses in separate bank
account.
PART II- General Misconduct
Contravening provisions of CS Act, 1980 or
regulations or guidelines issued by the Council.
Disclosing confidential information of a employee
to others
Including false information to Institute, Council,
Committee of Council, DD, BOD, DC, QRB or
Appellate authority.
Embezzling money received in Professional
capacity
PART III- Others
If held guilty by the court for an
offence punishable with an
imprisonment for a term
exceeding six months.
The Company Secretaries (Procedure of Investigations of
Professional and Other Misconduct and Conduct of
Cases) Rules, 2007
SUMMARY OF RULES
Complaint is to filed in Form I in
triplicate before DD
If complainant is a company, Board
Resolution is necessary
Prescribed fee (non-refundable) of
Rs. 2500/- to be paid
Fee to be paid by Demand Draft in
favour of ICSI
Unique reference number given by DD
if complaint found to be in order
A fresh complaint may be clubbed with
the previous complaint on the same
matter against the same member
Complainant has right to rectify the
defects in complaint & resubmit the
same. Such rectification to be done
within given time
Action can be taken suo -moto on
receipt of any information about
misconduct or on a complaint.
Any anonymous information
received by DD is not to be
entertained.
Within 60 days of receipt of
complaint a copy of complaint has
to be forwarded to PCS or Member
Written statement to be filed
within 21 days by the defendant
Rejoinder to be filed within 21
days by the Complainant.
Every communication from DD/
BOD/DC has to be done by RPAD
In case addressee refuses to receive it is
deemed to have been served on addressee
Under rule 12 DD may refuse to entertain
the complaint/information if filed/received
after seven years of commission of the
alleged misconduct.
Principle of natural justice required to be
followed