Regulation 92(2) of Company Secretaries Regulations, 1982 shall be applicable only in a case of absence: Supreme Court 

Regulation 92(2) of Company Secretaries Regulations, 1982 shall be applicable only in a case of absence: Supreme Court 

The Supreme Court ruled that the Regulation 92(2) of Company Secretaries Regulations, 1982 shall be applicable only in a case of absence. 

Background 

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Calcutta by which the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the Single Judge by which the Single Judge allowed the writ petition by quashing and setting aside the election of the office bearers of the Regional Council for the year 2022 held in the 316th Meeting of Eastern India Regional Council of the Institute of Company Secretaries of India, the Institute of Company Secretaries of India has preferred the appeal. 

Decision 

The division bench of Justice M.R. Shah Justice M.M. Sundresh opined thatRegulation 92(2) shall not be applicable at all. 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.

There is a distinction between the absence and the post that has fallen vacant. 

The court said that Regulation 92(2) shall be applicable in a case where the Chairman and/or the office bearer is not disqualified but is absent for some reason. Regulation 117(2) shall be applicable in a case where the elected member of the Regional Council has been disqualified on being found guilty of any professional or other misconduct and awarded a penalty of fine. 

“Therefore, in case of a vacation of office as per Regulation 117(2), such post fallen vacant is required to be filled in by election by electing another person   from   amongst   its   members   to   hold   the   office   for   the remaining period of a year (Regulation 119(2))” the court added. 

The bench observed that the respondent who challenged the election of the office bearers did not even contest the election. Under the circumstances the High Court erred in entertaining the writ petition challenging the election at the instance of the respondent who even did not contest the election of the office bearers.

The court quashed and set aside the judgment and order passed by the Division Bench of the High Court as well as the Single Judge quashing and setting aside the election of the office bearers of the EIRC of the ICSI.

Case title: Institute of Company Secretaries of India v/s Biman Debnath & Ors

Citation: Civil appeal no. 8039 of 2022 

Click here to read the Order/Judgment 

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