1. This appeal involves an interesting question as to the true construction of Section 30, Chartered Accountants Act, and as to the validity of Regulation 34 framed thereunder. The validity of Clause 4(f) of Form 'L', prescribed for an agreement between a member of the Institute of Chartered Accountants and an articled clerk, is consequential and is also in question.
2. The simple facts are as follows. One Sri Debabrata Basu was a Chartered Accountant, and respondent No. 2, Prasanta Kumar Dutt, entered into an agreement with him on 1-4-1950, for service under articles of clerkship. The regulations framed under 'the Chartered Accountants Act provide that such an agreement is to be sent to the Institute of Chartered Accountants for registration. In forwarding the particular agreement to the Institute, Debabrata Basu said that he had omitted clause 4(f) of the standard form, inasmuch as, in his view, that clause was ultra vires the Act.
The Institute refused to register the agreement, inasmuch as it was not an agreement in accordance with Regulation 36 which required such agreements to be executed in conformity with Form 'L'. Thereupon, Debabrata Easu commenced a suit in which he asked for a declaration that the agreement was valid & proper, a further declaration that the refusal by the Institute to register the agreement was wrongful, illegal and void and a still further declaration that respondent No. 2 should be registered and should be regarded as being registered in the books of the Institute as from the date of the agreement. There were also prayers for certain ancillary reliefs to which it is not necessary to refer.
3. The defence of the Institute was that Clause 4(f) of Form 'L' was based on Regulation 34 and that regulation had been validly made under the powers conferred on the Institute by Section 30(1) of the Act. The contention of the Institute, accordingly, was that the agreement sought to be registered not being in accordance with Regulation 34 & not being in conformity with Form 'L' as required by Regulation 36, was not registrable and that its registration had been rightly refused.
4. It is necessary to state here what the subject-matter of Clause 4(f) of Form ''L' is. Before doing so, however, it will be convenient and indeed logical to refer to Regulation 34 which, so far as is material, reads as follows:
'34. Maximum and minimum rates of premium. --The Council may from time to time prescribe the maximum and minimum rates of premium that can be charged from an articled clerk. But any premium charged by the employer shall be refunded by him in full to the articled clerk in such instalments as the former may deem fit, but not later than 14 days after the date of the completion of the articles subject to satisfactory service and good conduct of the articled clerk.'
5. On that regulation is based Clause 4(f) of Form 'L'. It may be stated here that by virtue of the provisions of Regulation 36, agreements relating to articles of clerkship ''shall be executed in Form 'L' or Form 'M' in the Schedule as the case may be.' Form 'L' applies to cases where the articled clerk is of full age. Clause 4(f) of the Form reads as follows;
'4. The employer covenants with the articled clerk as follows:
* * * * * (f) That he agrees to refund within the period. stipulated under the Regulations the entire premium received from or on behalf of the articled clerk in such instalments as he migth deem fit, subject to satisfactory service and good conduct of the articled clerk.'
It will be noticed that this clause is virtually a reproduction of the second sentence of Regulation 34 which I read a few moments ago.
6. The power of the Institute to frame Regulations relating to service under articles is to be ascertained from the provisions of Section 15(2)(b), Section 30(1) and Section 30(2)(j) of the Act. The general provision contained in Section 15(2)(b) is to the effect that without prejudice to the generality of the powers conferred by Section 15(1), the duties of the Council shall include 'the regulation of the engagement and training of articled clerks'. This section, does not provide for any rule-making power, but has reference to the duties and powers of the Council in carrying out the provisions of the Act. The rule-making power is first conferred by the main provision of Section 30, namely, Section 30(1), which reads as follows:
'30. Power to make regulations. -- (1) The Council may, by notification in the Gazette of India, make regulations for the purpose of carrying out the objects of this Act, and a copy of such regulations shall be sent to each member of the Institute.'
It will again be noticed that the power conferred by this section is expressed in the wide form which has almost become a formula with statutes and comprises power to make regulations for the purpose of carrying out all the objects of the Act. Some further specific provisions are made by Sub-section (2) of the section, of which it is necessary to read only a part. The sub-section begins with the usual formula and says that
'in particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters : --'.
Proceeding then to specify certain matters on which the Council shall have power to frame regulations, the sub-section provides in Clause (j) as follows:
'(j). The training of articled clerks and the fixation of limits within which premia may be charg-ed from such clerks and the cancellation of articles for misconduct or for any other sufficient cause.'
7. The contention urged on behalf of the plaintiff before the learned trial Judge was that although the Council's power under Sub-section (1) of Section 30 of the Act was not limited to the matters enumerated under Sub-section (2), nevertheless, those powers could only be exercised in such manner as might not occasion a conflict with any of the duties or powers enumerated in Clauses (a) to (t) of Sub-section (2). It was contended further that Clause (j) of Section 30(2) clearly implied that the Act intended premia to be charged by Chartered Accountants taking articled clerks and, therefore, it was beyond the power of the Council to frame any regulation which would have virtually the effect of extinguishing the rights to charge premia altogether.
To put it in a more direct form, the argument appears to have been that the clear implication 01 Clause (j) of Section 30(2) was that, in the contemplation of the Act, it was a right of Chartered Accountants to charge premia from pupils whom they might take in unaer articles of clerkship and that, that being so, any regulation which affected or extinguished that right would not be a regulation for carrying out the purposes of the Act but would be a regulation defeating its purpose.
8. The plaintiff's argument, which I have just broadly summarised, was accepted by the learned trial Judge. He too proceeded on the assumption that Clause (j) of Section 30(2) was a provision by which a right was conferred on Chartered Accountants to cnarge premia, or at least such right was impliedly recognised. Proceeding on that basis, the learned judge held that it could not have been the intention of the Legislature that the right conferred under Clause (j) should be nullified by the Council exercising its power to make regulations for the engagement and training of articled clerks in the form of requiring by regulation the premia to be refunded. As the learned Judge thought that Clause (j) of Section 30(2) was a provision in the Act itself, which conferred a right on Chartered Accountants to charge premia from their pupils, he concluded that Regulation 34, which purported to take away a Chartered Accountant's right to charge a premium for the training which he undertook to give to his articled clerk, was 'ultra vires' of Section 30 of the Act. If Regulation 34 was 'ultra vires', Clause 4(f) of Form 'L' fell with it and was equally 'ultra vires'.
9. In the above view, the learned Judge gave the plaintiff the declarations asked for by him and also granted an injunction, restraining the Institute from disallowing the plaintiff to charge a premium from respondent No. 2. It is against that decree of the learned Judge that the present appeal is directed.
10. Both the plaintiff, Debabrata Basu, and the articled clerk, Prosanta Kumar Dutt, were impleaded as respondents in the appeal, but during the pendency of the appeal, Debabrata Basu died and an application was made to substitute his widow in his place and stead. That application was disposed of by an order of Sinha, J., and myself, passed on the 15th of December, 1952, and we dismissed the application. The view taken by us was that the action being purely a personal action brought by the late Debabrata Basu, his widow could not, in any view, be substituted for him in the appeal, even though the claim made in the suit had merged in a decree.
We pointed out, however, that although questions between the Institute and the plaintiff were dead, those between the Institute and the articled clerk were, nevertheless, surviving and therefore the appeal would continue to be a valid appeal as against respondent No. 2 and in so far as the learned trial Judge has granted a declaration in favour of that respondent, it could still be challenged in the appeal. The decree appealed from contains an order for costs made in favour of the plaintiff, Debabrata Basu.
With regard to that order, the widow gave an undertaking to us through her Counsel that if the Institute's appeal succeeded and it obtained a reversal of the declaration which had been given in favour of the articled clerk, she, as the representative of the plaintiff, would abandon the decree for costs and would not seek to enforce it. That undertaking was directed to be made a part of the records of the appeal. See -- 'Institute of Chartered Accountants v. Deba Brata Basu', : AIR1954Cal24 (A).
11. In the circumstances stated above, the appeal has come up for hearing as an appeal directed against respondent No. 2, Prasanta Kumar Dutt, only, who, it will be remembered, is the articled clerk.
12. On behalf of the appellant, it was contended by Mr. sanyal that the learned Judge was not right in holding that Clause (j) of Section 30(2) of the Act conferred any right on the Chartered Accountants to charge premia from their pupils. He referred in particular to Section 15(2)(b) of the Act, by which the regulation of the engagement and training of articled clerks had been placed in the hands of the Council of the Institute and made one of its duties.
Such regulation, Mr. Sanyal contended further, was not qualified by any limitations whatsoever and if the question as to the right of the Council to frame regulations fell to be judged by Section 15(2)(b) and 30(1) alone, there could be no doubt that the Council would be entitled to make any regulation it liked, including the impugned regulation. The powers conferred by Section 30(1) were also free from limitation and comprehended power to make regulations for the purpose of carrying out the objects of the Act, which meant all the objects.
In so far as Clause (j) of Section 30(2) was concerned, Mr. Sanyal's contention was that that clause, like each one of the other clauses set out under Sub-section (2), was a mere illustration of some of the powers comprised within the general power conferred by Section 30(1) and, consequently, even if a particular regulation did not come under one or other of the clauses of Sub-section (2), it would not necessarily be an invalid regulation, but could still be grounded in the general and residuary power vested on the Council by Sub-section (1) of Section 30.
According to Mr. Sanyal, the fact that the impugned regulation could not be supported by reference to Clause (j) of Sub-section (2) of Section 30, was not necessarily or at all fatal to it, inasmuch as the sub-section expressly saved the generality of the power conferred by Sub-section (1) of the section and inasmuch as the general power was naturally and necessarily wider than the specific powers which were given by the detailed provisions under Sub-section (2).
The substance of Mr. Sanyal's contention therefore was that if, under Section 15(2)(b), the Council had unqualified control over the engagement of articled clerks and if under Section 30(1) it could frame any regulation it liked to control such engagements, it necessarily followed that even after regulations had been framed under the specific powers conferred by Sub-section (2) of Section 30, a margin of power was still left in the hands of the council and in exercise of that power it could frame regulations which might not or could not come under any of the detailed provisions.
This argument, as I have already indicated, was based on the view that it was not proper to read Clause (j) of Section 30(2) as embodying a provision for, or recognition of, the right of a Chartered Accountant to charge a premium from his pupil. In aid of his contention, Mr. Sanyal referred us to the decision of the Judicial Committee in the case of -- 'Emperor v. Sibnath Banerji,' AIR 1945 PC 156 (B), which appears to have been cited before me learned trial judge as well, but was distinguished by him.
13. In my opinion, the view of SSection 15 and 30, contended for by Mr. Sanyal, is right. The Council's rule-making power is really conferred on it by Section 30(1) of the Act which entitles it to 'make regulations for the purpose of carrying out the objects of this Act.' That language of the section naturally puts one on enquiry as to what the objects of the Act are. The object, material for the present purpose, is that dealt with by Section 15 of the Act which confers on the Council the duty of carrying out the provisions of the Act and also makes some specific provisions.
One of the provisions, as I have already said more than once, is that the council shall have power to regulate the engagement and training of articled clerks. Regulation of the engagement of articled clerks must, necessarily, comprise the framing or laying down of conditions under which such engagement should take place. It appears to me to be indisputable that if one is to regard the present question, from the point of view of Section 15(2)(b) alone, one would be bound to concede that the Council, acting under the powers conferred by that clause,' could make a provision under Section 30(1) like the one in dispute, namely, a provision requiring the articled clerk to pay a premium in the first instance and requiring the Chartered Accountant to refund it to the articled clerk in certain circumstances and in a certain manner. Up to Section 30(1) of the Act, read with Section 15(2)(b), there is thus no difficulty.
The next question, therefore, is whether any difficulty is created by Clause (j) of Section 30(2) and a difficulty can be said to be created only if that clause must be read as incorporating a statutory provision for the charging of premia. It may be pointed out here that the rest of the Act says nothing whatever as to the charging of premia and nowhere lays down that a Chartered Accountant will be entitled to charge premia from his pupils as of right and independently of any regulations that might be framed by the Council. Indeed, the Act has not taken it upon itself to make any provision as to the conditions of service and training as between Chartered Accountants and their articled clerks, but has left the matter to the Council of the Institute which has been charged with carrying out the purposes of the Act.
In itself and so far as its specific and positive provisions go, the Act is only concerned with the control of Chartered Accountants in the discharge of their professional duties. What then does Clause (j) of Section 30(2) intend by providing for 'fixation of limits within which premia may be charged'? It appears to me that what the clause provides for is that if a provision is otherwise made for the charging of premia or if even without any provision being made, a practice of charging premia grows up, the Council shall have power to frame regulations fixing the upper and lower limits of the premia chargeable, in cases where they may be charged.
The clause, to my mind, does not by itself create a right to charge premia and it cannot be said that in the provisions of the clause itself can be found an intention to provide that Chartered Accountants shall have the right to charge premia from their pupils. If Clause (j) of Section 30(2) contains no indication or implication that one of the objects of the Act is to create in favour of Chartered Accountants a right to charge premia from their pupils, it can by no means be said that a regulation providing for a refund of premia is a regulation contrary to the objects of the Act.
14. It may be useful to remind ourselves at this stage that validity of the impugned regulation or the form prescribed thereunder is not claimed under anything contained in Clause (j) of Section 30(2). The regulation was not framed under that clause. It was framed under the general powers conferred by Sub-section (1) of Section 30, and Clause (j) of Sub-section (2) comes in only because it is said that in that clause is to be found an object to provide for the charging of premia and therefore a regulation framed under Sub-section (1) of Section 30, which defeats or nullifies such an object, would be contrary to the scope and intention of the Act and therefore ultra vires. The question therefore is, could it be said that the impugned regulation is in conflict with the provisions of Section 30(2)(J) and, if it be in conflict, is it ultra vires
15. In my opinion, the answer to both these questions must be in the negative. I have already explained that the true scope of Clause (j) of Section 30(2) is to provide for regulations relating to the fixation of limits within which premia may be charged, that is to say, the fixation of the maximum and the minimum amounts which can be charged by way of premia in cases where premia may be chargeable and, in fact, charged. It does not contain any absolute provision or any provision, at all, conferring a right to charge premia.
If that be so, a regulation providing for the refund of premia cannot possibly be a regulation in conflict with Section 30(2)(j), because that section does not confer or ensure or guarantee a right to charge premia from pupils. It is true that if one judges the disputed regulation by the terms of Clause (j) of Section 30(2), one must hold it to be outside and not warranted by its terms, but such conflict cannot have the effect of invalidating the regulation. In my view, this question must be taken as settled by the decision of the Judicial Committee in the case cited before us and the reasoning on which their Lordships of the Judicial Committee proceeded in that case applies equally to the question before us.
16. The rule which fell to be considered in -- , was Rule 26 Of the rules, framed under Section 2 of the Defence of India Act, 1939. Sub-section (1) of that section may not inappropriately be referred to as the counterpart of Sub-section (1) of Section 30 of the Chartered Accountants Act, because that section also conferred power on the Central Government in general terms to make rules for securing the defence of British India and the maintenance of public order and several other purposes. Sub-section (2) of the section began with a variant of the usual formula and provided that rules might be made for certain matters 'without prejudice to the generality of the powers conferred by Sub-section (1).'
It will be noticed that that language is virtually what occurs in Sub-section (2) of Section 30 which, it will be remembered, is 'without prejudice to the generality of the foregoing power.' Proceeding to enumerate the matters on which the Central Government might make rules, Sub-section (2) of Section 2 of the Defence of India Act mentioned in paragraph (X) 'the apprehension and detention in custody of any person reasonably suspected of being of hostile origin', etc. The language used, namely, that persons who might be apprehended or detained in custody must be 'reasonably suspected' of certain things, obviously had the effect that the reasonableness of the suspicion would be Justiciable in Courts of law.
Rule 26 of the Defence of India Rules, however, empowered the Central Government or the Provincial Government to detain a person 'if it is satisfied that with a view to preventing him from acting in a manner' etc., 'it is necessary so to do.' Thus, for reasons justiciable in Courts of law, reasons satisfactory to the detaining authority were substituted, or, in other words, the subjective satisfaction of the detaining authority was made sufficient. In the case of -- 'Kesav Talpade v. King Emperor' , the Federal Court of India held that Rule 26 was 'ultra vires' of Section 2 of the Defence of India Act, inasmuch as it exceeded the specific provisions of paragraph (X) of Sub-section (2). As regards the general powers conferred by the first sub-section Sir Maurice Gwyer C. J., observed as follows:
'The Legislature having set out in plain, and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody, it is not permissible to pray in aid the more general words in Section 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x); though if paragraph (x) were not in the Act at all, perhaps different considerations might apply.' (See -- .
17. This reasoning of the learned Chief Justice of India was rejected by the Judicial Committee in -- , where their Lordships held that 'Talpade's case (C)' had been wrongly decided. It was pointed out that the rule-making power was conferred by Sub-section (1) of Section 2 of the Defence of India Act and that the function of Sub-section (2) was merely an illustrative one.
'The provisions of Sub-section 2,
their Lordships observed,
'arc not restrictive of Sub-section 1, as, indeed, is expressly stated by the words 'without prejudice to the generality of the powers conferred by Sub-section 1'.'
It will be noticed that although there was a clear conflict between rule 26 and paragraph (x) of Sub-section (2) of Section 2, just as there is said to be a conflict in the present case between the impugned regulation and Clause (j) of Sub-section (2) of Section 30, their Lordships observed that Rule 26 was, nevertheless, valid, as the authority for making it was to be found in the general power conferred by Sub-section (1) of Section 2.
18. The learned trial Judge distinguished the decision of the Privy Council on the ground that Rule 26 Defence of India Rules was not really in conflict with paragraph (x) of Sub-section (2) of Section 2, but merely conferred additional powers for detention and that the only effect of Rule 26 was to extend the scope of paragraph (x) whereas, in the present case, the effect of the impugned regulation was to nullify the provisions of Clause (j) of Section 30(2) of the Act.
With great respect, it appears to me that the learned Judge's reading of the decision of the Privy Council is not correct. As I have pointed out already, Rule 26 was in clear conflict with the provisions of paragraph (x) of Section 2 of the Defence of India Act, inasmuch for suspicion which had to be justified before a Court of law under paragraph (x) of Sub-section (2), suspicion to the satisfaction of the detaining authority was substituted by Rule 26. In my view, the pronouncement of the Privy Council in the decision referred to is decisive of this matter and the reason behind the decision is perfectly plain.
19. It may from one point of view be said against the impugned regulation that it is a very curious provision, inasmuch as it provides for the Chartered Accountant giving back by one hand which he receives by the other. Looked at superficially, it might be thought that if the intention of the Council was to provide that a Chartered Accountant should not receive any remuneration for the instruction imparted by him to his articled clerk, the plain & straightforward form of making such a provision would be to lay down that no Chartered Accountant would be entitled to charge any premia from his pupils. It may also be said again, if the matter is looked at superficially, that Form 'L' is in conflict with itself, inasmuch as it provides by Clause (1) that the Chartered Accountant shall receive a certain amount as consideration and at the same time provides by Clause 4(f) that the amount received must be refunded.
It may be argued that if an amount received by way of consideration has got to be refunded, it is no consideration at all, and, consequently, the whole scheme of the Form is misconceived. It appears to me, however, that such criticism of the Form or even of Regulation 34 would not be just or correct, inasmuch as the provision for refund is not unqualified, but is made subject to satisfactory service and good conduct of the articled clerk.
It was suggested by Mr. Sanyal that the initial payment of a premium had probably been provided for in order to limit applications for service under articles to earnest candidates only and the provision for refund was made either in recognition of the economic circumstances of the country or in recognition of the fact that the master would be receiving valuable service from a competent pupil. It is not necessary for the decision of this appeal to speculate as to what the object of the provision for a refund may be, but I might point out that the provision is not such as to reduce the premium to a condition of being no consideration at all.
The Chartered Accountant receives a premium in the first instance. If the articled clerk proves to be a competent pupil, he receives from him services for which he would have otherwise to pay and it may have been the intention of the Council to provide that a Chartered Accountant, taking a pupil, should not enrich himself doubly, once by receiving a monetary payment and again by receiving services worth a money value. The premium which is at first received in cash and subsequently converted into services which may be taken to be an equivalent of a monetary payment, the cash receipt being returned, is in my view good consideration and, therefore, it cannot be said that Clause 4(f) of the Form, is in conflict with Clause (1) and therefore suffers from an additional infirmity.
20. To return now to the main point in the appeal, in my view, the learned Judge was not right in holding that Clause 34 of the regulations was 'ultra vires' of Section 30 or that Clause 4(f) of Form 'L' was equally 'ultra vires'. In my view, the plaintiff was not entitled to the declarations he asked for, nor entitled to the ancillary reliefs.
21. In the result, this appeal is allowed. The judgment and the decree of the learned Judge are set aside and the plaintiff's suit is dismissed. There will be no order for costs in this appeal as respondent No. 2 has not appeared. In accordance with the undertaking given by the widow of respondent No. 1, she will not be entitled to execute the decree for costs, although that portion of the decree would survive in spite of the dismissal of the suit.
S.R. Das Gupta, J.
22. I agree, but, I want to add only a few words to what my Lord the Chief Justice has said. As indicated by my Lord the Chief Justice, the soundness or otherwise of Mr. Sanyal's contention will depend on the view which, we take of Clause (j) of Sub-section (2) of Section 30. If we hold that the said clause gives a substantive right to an accountant to charge premia, then Mr. Sanyal's contention must fail. If, on the other hand, we come to the conclusion that no such substantive right has been given, then Mr. Sanyal's contention would succeed.
It seems to me, on a proper consideration of not only of Section 30 of the said Act but the general scheme of the Act and the other provisions therein, that it cannot be said that any such substantive right has been conferred. In the first place, Section 30 deals with the power of the Council to make regulations and nothing else. It is very unlikely that while dealing with the power of the Council to make rules, a provision would be made giving a substantive right to the accountant to charge fees. Besides, it appears to me, on a perusal of the general scheme of the Act itself, that the Act does not deal with the question of the private rights of an accountant. It deals with the question of the rights and obligations of the accountant only in their relationship to the Institute.
Chapter I of the said Act deals with the definitions of words used in the Act. chapter II deals with the incorporation of the Institute of chartered accountants and lays down the qualifications necessary to be members of that Institute and further lays down that one, unless he becomes a member of that Institute, would not be entitled to practice. Chapter III deals with the question of the Constitution of the Council of the Institute. Chapter IV provides for the registration of the members and lays down that the Council shall maintain a register in which the names of the members will have to be incorporated and that under certain contingencies the name of a member may be removed from the said register. Chapter V deals with misconduct and the procedure to be followed to enquiring into the misconduct of the members of the Institute.
Chapter VI relates only to the constitution and function of the original Council and Chapter VII deals with the question of penalties to be imposed upon a member if he violates the provisions of the Act and such similar provisions. The last Chapter, that is Chapter VIII, deals with miscellaneous matters and it is in that chapter that Section 30 is incorporated and as I have said Section 30 deals exclusively with the powers of the Council to make rules and it is very much unlikely that although nowhere in the Act there is any provision regarding the substantive right of a chartered accountant, such a provision would be made in one of the sub-rules of the said section.
23. For the reasons stated above and for theother reasons given by my Lord the Chief Justice,with which I entirely agree, I have come to theconclusion that Clause (j) of Sub-section (2) of Section30 does not confer any substantive right upon theaccountant to charge premium from his articledclerk. On that view of the matter I am also of theopinion that the contention of Mr. Sanyal mustprevail.