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Supreme Court Judges (Salaries and Conditions of Service) Act, 1958

Section 1. Short title

41 of 1958

17th October, 1958.

“Under clause (2) of Article 125 of the Constitution, every Judge of the Supreme Court is entitled to “such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament” but neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension can be varied to his disadvantage after appointment.

2. This Bill seeks to determine the rights of the Judges of the Supreme Court in respect of leave of absence, pension and other conditions of service.

3. At present, a Judge of the Supreme Court is entitled, during the whole period of his service in such Court, to leave on medical certificate on Rs. 1,110 per month, to leave otherwise than on medical certificate on Rs. 1,110 per month, and to extraordinary leave without allowances, in each case for a period of six months. It is now proposed to allow them the same leave terms as are admissible to High Court Judges with slight modifications. They will now earn leave on half allowances for a period equal to one-fourth of the time spent on actual service subject to a maxi- mum of three years during entire period of service, leave on full allowances being treated as double the period of leave on half allowances. The maximum amount of leave that may be granted at one time shall not exceed five months, in the case of leave on full allowances and six- teen months, in the case of leave on half allowances. The aggregate amount of leave on full al- allowances which may be granted to a Judge during the whole of period of service shall not exceed one-twenty-fourth of the period spent by him on actual service. Leave not due may also be granted to a Judge up to a specified limit with or without a medical certificate provided the Judge is expected to return to duty and earn such leave. Extraordinary leave without allowances may be taken up to a period of six months during the entire period of service. During leave on full allowances, the Judge will be paid full salary for the first 45 days of such leave and Rs. 2,220 per month for the remaining portion of such leave. During leave on half allowances, the Judge will get Rs. l,110/- per month.

4. No substantial change is proposed in the rates of pension hitherto admissible to the Judges of the Supreme Court. Rates of pension have, however, been expressed in Indian currency and not m sterling. Provision has also been made that a Judge would be entitled to a minimum pension of Rs. 7,500 per annum, if he is not entitled to any other pension.

5. Special provision has also been made to govern certain other subsidiary conditions of ser- vice, such as medical attendance facilities which are enjoyed by all Government servants and which, up to the commencement of the Constitution, were admissible to Judges of the Federal Court under paragraph 23 of the Government of India (Federal Court) Order, 1937. These matters will now be provided for by rules to be made under the Bill.” -Gaz. of Iad., 1958, Extra.. Pt. n, S. 2, p. 977.An Act to regulate certain conditions of service of the Judges of (he Supreme Court.

BE it enacted by Parliament in the Ninth Year of the Republic of India as follows:-

This Act may be called THE SUPREME COURT JUDGES 1[(Salaries and Conditions of Service)]ACT, 1958.

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1. Substituted for “(CONDITIONS OF SERVICE) “, vide The High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1998 (18 Of 1998), Dt. July 7,1998 Published in Received the assent of the President on July 7, 1998, and published in the Gazette of India, Extra., Part II, Section 1, dated 7th July, 1998, pp. 1-3, No. 35

Section 2. Definitions

In this Act, unless the context otherwise requires,-

(a) “acting Chief Justice” means a Judge appointed under Art. 126 of .the Constitution to perform the duties of the Chief Justice of India;

(b) “actual service” includes-

(i) time spent by a Judge on duty as Judge, Of in the performance of such other functions as he nay, at the request of the President, undertake to discharge; and

(ii) vacations:

(c) “Chief Justice” means the Chief Justice of India, but does not include as acting Chief Justice;

(d) “High Court” means the High Court for a State;

(e) “Judge” means a Judge of the Supreme Court and includes the Chief Justice and an acting Chief Justice;

(f) “prescribed” means prescribed by rules made under this Act;

(g) “service as a Judge in India” means service rendered either in the Federal Court or in the Supreme Court or in any such Court and in one or more of the High Courts, and “Judge in India” and “service for pension as a Judge in India” shall be construed accordingly;

(h) “service for pension” includes-

(i) actual service;

(ii) time spent by a Judge of a High Court in attending the sittings of the Supreme Court as an ad hoc Judge underarm. 127 of the Constitution if he is subsequently appointed as a Judge-

(iii) forty-five days or the amount actually taken, whichever is less, of each period of leave on full allowances;

(i) “vacation” means such period or periods during a year as may be fixed as vacation by or under the rules of the Supreme Court made with the prior approval of the President.

Section 3. Kinds of leave admissible to a Judge

(1) Subject to the provisions of this Act, leave granted to a Judge may be at his option either-

1[(a) leave on full allowances (including commuted leave on half allowances into leave on full allowances on. medical certificate); or.]

(b) leave on half allowances; or

(c) leave partly on full allowances and partly on half allowances.

(2) For the purposes of this Chapter, any period of leave on full allowances shallbe reckoned as double that period of leave on half allowances.

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1. Substituted by the Supreme Court Judges (Conditions of Service) Amendment Act, 1971 (77 of 1971), S. 2. (15-1-1972).

Section 4. Leave account showing the amount of leave due

(1)A leave account shall be kept for each Judge showing therein the amount of leave due to him in terms of leave on half allowances.

(2) In the leave account of a Judge-

(a) there shall be credited to him-

(i) one-fourth of the time spent by him on actual service; 1[*].

(ii) where the Judge, by reason of his having been detained for the performance of duties not connected with the Supreme Court, cannot enjoy any vacation which he would otherwise have been entitled to enjoy had he not been so detained, as compensation for the vacation not enjoyed, a period equal to double the period by which the vacation enjoyed by him in any year falls short of one month; and

2[(iii) where the judge was, prior to his appointment as such, a Judge of a High Court, the period of leave earned by him as a Judge of the .High Court, 1[***]and.]

(b) there shall be debited to him all leave with allowances taken by him.

(3) This section shall be deemed to have come into force on the 1st day of May,1958.

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1. Word “and” at the end of sub-clause (i) omitted and sub-clause (iii) inserted by the Supreme Court Judges (Conditions of Service) Amendment Act, 1971 (77 of 1971), S. 3 (w.r.e.f. 1-5-1958).

2. Omitted for “so, however, that such period shall not exceed two hundred and forty days in terms of leave on full allowances” in sub-clause (iii) of clause(a) for sub-section(2) of section 4 by The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998 (7, 1999) dated 8,January, 1999

Section 4A. Leave encashment

A Judge shall be entitled in his entire service, including the period of service rendered either as a Judge of a High Court or in a pension able post under the Union or a State or on re-employment, if any, to claim the cash equivalent of leave salary on his retirement in respect of the period of earned leave at his credit, to the extent of the maximum period prescribed for encashment of such leave under the All India Services (Leave) Rules, 1955.”.

Section 5. Aggregate amount of leave which may be granted

(1) The aggregate amount of leave which may be granted to a Judge during the whole period of his ser-vice as such shall not exceed in terms of leave on half allowances three years 1[including the period credited to his leave account under sub-sec. (2) (a) (iii) of section 4-asleave earned by him as a Judge of a High Court] together with the aggregate of the periods, if any, credited to his leave account under sub-section (2) (a) (ii) of section 4-as compensation for vacation not enjoyed.

(2) The aggregate amount of leave on full allowances which may be granted to a Judge during the whole period of his service as such shall not exceed one-twenty-fourth of the period spent by him on actual service together with one-half of the aggregate periods, if any, credited to his leave account (a) under sub-section (2) (a)(ii) of section 4-as compensation for vacation not enjoyed, and (b) under sub-section(2) (a) (iii) of section 4-as leave earned by him as a Judge of a High Court.

(3) 2[Subject to the provisions of sub-section (2) of section 5A-, the maximum period of leave which may be granted] at one time shall be in the case of leave on full allowances, five months and in the case of leave with allowances of any kind, sixteen months.

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1. Inserted, by the Supreme Court Judges (Conditions of Service) Amendment Act, 1971.

2. Substituted for the words “The maximum period of leave which may be granted” by the Supreme Court Judges (Conditions of Service) Amendment Act, 1971 (77 of 1971), S. 3 (w.r.e.f. 17-10-1958).

Section 5A. Commutation of leave on half allowances into leave on full allowances

(1) Notwithstanding anything contained in sub-section (2) of section 5-, a Judge maybe permitted to commute leave on half allowances into leave on full allowances on medical certificate up to a maximum of three months during the whole period of his service as a Judge.

(2) In computing the maximum period of leave on full allowances which may be granted at one time to a Judge under sub-section (3) of section 5-, the amount of com-muted leave permitted to him under this section shall not be taken, into account.

Section 6. Grant of leave not due

Subject to the maximum limit specified in sub-section (1) of section 5-, leave on half allowances may be granted to a Judge in excess of the amount at his credit-

(i) on medical certificate ; or

(ii) otherwise than on medical certificate, for a period not exceeding six months, or for two or more periods not exceeding in the aggregate six months, during the whole period of his service as a Judge:

Provided that no such leave shall be granted if the Judge is not expected to return to duty at the end of such leave and earn. the leave granted. Note: Leave under this section is granted only when the Judge is expected to re-turn to duly at the end of such leave and earn the leave granted. Leave granted under this section will be adjusted with the leave earned in future.

Section 7. Special disability leave

Special disability leave may be granted to a Judge under such circumstances, on such allowances and for such periods as may be prescribed.

Section 8. Extraordinary leave

Extraordinary leave may be grated to a Judge for a period not exceeding six months, or for two or more periods not exceeding in the aggregate six months, during the whole period of his service as a Judge in excess of any leave permissible under the foregoing provisions of this Chapter, but no salary or allowances shall be payable in respect of such leave.

Section 9. Leave allowances

(1) The monthly rate of leave allowances payable to a Judge while on leave on full allowances shall be for the first forty-five days of such leave a rate equal to the monthly rate of the salary and thereafter two thousand two hundred and twenty rupees.

(2) The monthly rate of leave allowances payable to a Judge while on leave on half allowances shall be one thousand one hundred and ten rupees.

1[Provided that the monthly rate of leave allowances payable to a Judge in respect of leave credit to his leave account under sub-section (2) (a) (iii) of section 4-shall not exceed the rate of leave allowances admissible to him therefore as a Judge of a High Court and shall be payable by the State Government concerned.]

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1. Inserted by the Supreme Court Judges (Conditions of Service) Amendment Act, 1971 (77 of 1971), S. 6 (15-1-1972).

Section 10. Combining leave with vacation

A Judge may be permitted to combine vacation on full salary with leave, if-

(a) where the vacation consists of one continuous period, the leave is taken either at the commencement or at the end of the vacation but not at both;

(b) where the vacation is divided into two periods, the leave is taken for the interval, or part of the interval, between the two periods of that vacation, or for the interval, or part of the interval, between the second period of that vacation and the commencement of the next ensuing vacation: Provided that no such permission to combine vacation with leave shall be grant-ed if it becomes necessary to appoint an acting Chief Justice during the period of vacation or if the Judge is not expected to return to duty at the end of such leave.

Section 11. Consequences of overstaying leave or vacation

(1) If a Judge over styles leave or any vacation, whether combined with leave or not, he shall receive no salary in respect of the period of his absence in excess of the leave granted to him or beyond the end of the vacation, as the case may be:

Provided that, if such absence is due to circumstances beyond his control, the period thereof may be treated as leave and may be debited to his leave account.

(2) Nothing in this Act shall be construed as requiring a Judge to rejoin on the expiration of the period of leave when that period expires immediately before the commencement of a vacation, nor as authorizing any acting Chief Justice to continue to hold the acting appointment during the vacation.

Section 12. Authority competent to grant leave

The authority competent to grantor refuse leave to a Judge or to revoke or curtail the leave already granted to a Judge shall be the President who shall exercise the power after consultation with the Chief Justice.

Section 12A. A Salaries of the Judges

(1) There shall be paid to the Chief Justice of India, by way of salary, thirty-three thousand rupees per mender.

(2) There shall be paid to a Judge of the Supreme Court, by way of salary, thirty thousand rupees per menses.

Section 13. Pension payable to Judges

Subject to the provisions of this Act, a pension shall be payable in accordance with the provisions of Part I of the Schedule to a Judge of the Supreme Court on his retirement if, but only if,-

(a) 1[***]

(b) he has attained the age of sixty-five years; or

(c) his retirement is medically certified to be necessitated by ill-health.

Explanation

In this section, “Judge” means a Judge who is not a member of the Indian Civil Service or has not held any other pension able civil post under the Union or a State and includes a person who was in service as a Judge on the 20th May, 1954, and also includes a Judge who being a member of the Indian Civil Ser- vice or having held any other pension able civil post under the Union or a State has elected to receive the pension payable under Part I of the Schedule.

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1. Omitted by Act No. 46 of 2005 w.e.f. 15-9-2005.

Section 13A. Benefit of added years of service

1[Benefit of added years of service. Subject to the provisions of this Act, a period of ten years shall be added to the service of a Judge for the purposes of his pension, who qualified for appointment as such judge under sub-clause (b) of clause (3) of Article 124 of the Constitution].

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1. Section 13-A Inserted by Act No. 46 of 2005 w.e.f. 15-9-2005.

Section 14. Special provisions for pension In respect of Judges who are members of service

1[(1)] Every Judge-

(a) who is a member of the Indian Civil Service shall, on his retirement, be paid a pension in accordance with the provisions of Part II of the Schedule;

(b) who is not a member of the Indian Civil Service but has held any other pension able civil post under the Union or a State shall, on his retirement, be paid a pension in accordance with the provisions of Part III of the Schedule: Provided that every such Judge shall elect to receive the pension payable to him either under Part I of the Schedule or as the case may be, Part II or Part III of the Schedule, and the pension payable to him shall be calculated accordingly.

1[(2) Notwithstanding anything contained in sub-section (1) any Judge to whom that sub-section applies and who is in service on or after the 1st day of October, 1974 may, if he has elected under the proviso to that sub-section to receive the pension payable to him under Part II or, as the case may be, Part III of the Schedule before the date on which the Supreme Court Judges (Conditions of Ser-vice) Amendment Act, 1976, receives the assent of the President, cancel such election and elect afresh to receive the pension payable to him under Part I of the Schedule and any such Judge who dies before the date of such assent, a hall be deem-ed to have elected afresh to be governed by the provisions of the said Part I if the provisions of that Part are more favorable in his case.]

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1. Section 14 renumbered as sub-section (1) and sub-section (2) inserted by the Supreme Court Judges (Conditions of Service) Amendment Act, 1976 (36 of 1976), S. 2 (w.r.e.f. 1-10-197.4).

Section 15. Power of President to add to the services for pension

The President may, for special reasons, direct that any period not exceeding three months shall be added to the service for pension of a Judge, and any such period so added shall count for pension purposes-

(a) In the case of a Judge who has served in the Supreme Court as Chief Justice, as service as Chief Justice and

(b) In the case of any other Judge, as service as any other Judge.

Section 16. Extraordinary pension

Extraordinary pensions and gratuities may be granted to a Judge under such circumstances and on such scales as may be prescribed.

Section 16A. Family pension and gratuity

1-2(1) Where a Judge who, being in service on or after the commencement of the High Court and Supreme Court Judges(Conditions of Service) Amendment Act, 1986,-

(a) dies before retirement, 3[“family pension calculated at the rate of fifty per cent of his salary”11[plus fifty per cent of his dearness pay]] on the date of his death shall be payable to the person or persons entitled thereto and the amount so payable shall be paid from the day following the date of death of the Judge for a period of seven years or for a period up to the date on which the Judge would have attained the age of sixty-five years, had he survived, whichever is earlier, 4[and thereafter at the rate of thirty per cent of his salary”12[plus thirty per cent of his dearness pay]]; and

(b) dies after retirement, 5[“family pension shall be thirty per cent of his salary”13[plus thirty per cent of his dearness pay]] to him shall be payable to the person third persons entitled thereto.

Explanation

For the purposes of determining the person or persons entitled to family pension under this sub-section,-

(i) in relation to a Judge who elects or is eligible to receive pension under Part I of the Schedule, the rules, notifications and orders for the time being in force with regard to the person or persons entitled to family pension in relation to an officer of the Central Civil Services, Group ‘A”, shall apply;

(ii) in relation to a Judge who elects to receive pension under Part II or Part III of the Schedule, the ordinary rules of his service if he had not been appointed a Judge with respect to the person or persons entitled to family pension shall apply and his service as a Judge being treated as service therein.

6Provided that in no case the amount of family pension calculated under this sub-section shall exceed the pension payable to the Judge under this Act.

(2) The rules, notifications and orders for the time being in force with respectto the grant of death-cum-retirement gratuity benefit to or in relation to an officer of the Central Civil Services, Class I (including the provisions relating to deductions from pension for the purpose) shall apply to or in relation to the grant of death-cum-retirement gratuity benefit to or in relation to a Judge who, being in service on or after the 1st day of October, 1974, retires, or dies in circumstances to which section 16-does not: apply, subject to the modifications that-

(i) the minimum qualifying service for the purpose of entitlement to the gratuity shall be two years and six months-

(ii) The amount of gratuity shall be calculated on the basis of 7[ten day’s] salary for 8[each completed six months period] of service as a Judge; and

(iii) The maximum amount of gratuity payable shall be 9[fifty thousand rupees.]

Explanation

10[In sub-section (2)] the expression “Judge” has the same meaning as insection 13-.]

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1. Inserted by the Supreme Court Judges (Conditions of Service) Amendment Act, 1976 (36 of 1976), S. 3 (w.r.e.f. 1-10-1974).

2. Substituted in section 16-A for subsection (1) by THE HIGH COURT AND SUPREME COURT JUDGES (CONDITIONS OF SERVICE) AMENDMENT ACT, 1986 (38 of 1986) dated 26th August, 1986

3. In Section 16A sub-section (1) clause (a) the words “family pension calculated at the rate of sixty per cent of the pension admissible to him” shall be substituted by Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2002 (Act 8 of 2003), published in the Gazette of India, Extra.. Pan II. Section I, dated 7th January, 2003, pp. 1-2. No. X

4. In Section 16A sub-section (1) clause (a) the words “and thereafter at the rate of half of the family pension so admissible” shall be substituted by Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2002 (Act 8 of 2003), published in the Gazette of India, Extra. Pan II. Section I, dated 7th January, 2003, pp. 1-2. No. X

5. In Section 16A sub-section (1) clause (b) the words shall be substituted by Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2002 (Act 8 of 2003), published in the Gazette of India, Extra.. Pan II. Section I, dated 7th January, 2003, pp. 1-2. No. X

6. In Section 16A sub-section (1) proviso shall be inserted by Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2002 (Act 8 of 2003), published in the Gazette of India, Extra. Pan II. Section I, dated 7th January, 2003, pp. 1-2. No. X

7. Substituted for “twenty days” in clause (ii) of sub-section (2) of section 16-A by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998 (7, 1999) dated 8, January, 1999

8. Substituted for “each completed year” in clause (ii) of sub-section (2) of section 16-A by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998 (7, 1999) dated 8, January, 1999

9. Substituted “thirty thousand rupees” in section 16-A for sub-section (2) of clause (iii) by THE HIGH COURT AND SUPREME COURT JUDGES (CONDITIONS OF SERVICE) AMENDMENT ACT, 1986 (38 of 1986) dated 26th August, 1986

10. Substituted “In this section” in Explanation of section 16-A by THE HIGH COURT AND SUPREME COURT JUDGES (CONDITIONS OF SERVICE) AMENDMENT ACT, 1986 (38 of 1986) dated 26th August, 1986

11. Inserted by Act No. 46 of 2005 w.e.f. 15-9-2005.

12. Inserted by Act No. 46 of 2005 w.e.f. 15-9-2005.

13. Inserted by Act No. 46 of 2005 w.e.f. 15-9-2005.

Section 17. Pension payable to a Judge who was in recent of pension at the time of appointment as such

If, at the time of his appointment to the Supreme Court, a Judge is in receipt of a pension in respect of any previous service either as a Judge of a High Court or in any other pension able civil post under the Union or a State, the pension payable to him under this Act shall be an additional pension for service in the Supreme Court equal to the difference between his original pension and the pension to which he would have been entitled under this Act, if his service in the Supreme Court had been rendered in continuation of the previous service for which his original pension was granted.

Section 18. Conversion of sterling pension into rupees

Pensions expressed in sterling only shall, if paid in India, be converted into rupees at such rate of exchange as the Central Government may, from time to time, specify in this behalf.

Section 19. Commutation of pension

The Civil Pensions (Commutation) Rules for the time being in force shall, with necessary modifications, apply to Judges.

Section 20. Provident fund

Every Judge shall be entitled to subscribe to the General Provident Fund (Central Services):

Provided that a Judge who is a member of the Indian Civil Service or has held any other pension able civil post under the Union or a State shall continue to subscribe to the provident fund to which he was subscribing before his appointment as a Judge:

Provided further that a Judge who was appointed before the commencement of this Act may continue to subscribe to the provident fund to which he was subscribing immediately before such commencement.

Section 20A. Deposit Linked Insurance Scheme

The Deposit Linked Insurance Scheme for the time being in force under the General Provident Fund (Central Services) Rules, 1960, shall apply to every Judge whether he subscribes to the General Provident Fund (Central Services) or any other Provident Fund referred to in Section 20.

Section 21. Authority competent to grant pension

Save as may be otherwise expressly provided in the relevant rules relating to the grant of extraordinary pensions and gratuities, the authority competent to grant pension to a Judge under the provisionsof this Act shall be the President.

Section 22. Traveling allowance to a Judge

A Judge shall receive such reasonable allowance to reimburse him for expenses incurred in traveling on duty within the territory of India and shall be afforded such reasonable facilities in connection with traveling as may, from time to time, be prescribed.

Section 23. Facilities for rent free houses and other conditions of service

(1) Every Judge shall be entitled without payment of rent to the use of an official residence in accordance with such ‘rules as may, from time to time be made in this behalf.

1(1A) Where a Judge does not avail himself of the use of an official residence, he may be paid every month an allowance of 2[“equivalent to an amount of thirty per cent of the salary plus thirty per cent of the dearness pay”].

(2) Every Judge and the members of his family shall be entitled to such facilities for medical treatment and for accommodation in hospitals as may, from time to time, be prescribed.

(3) The conditions of service of a Judge for which no express provision has been made in this Act shall be such as may be determined by rules made under this Act.

3(4) Sub-sections (1), (2) and (3) shall be deemed to have come into force on the 26th day of January. 1950 and sub-section (1-A) shall be deemed to have come into force on the 9th day of May, 1986 and any rule made under any of the said sub-sections may be made so as to be retrospective to any date not earlier than the commencement of the respective sub-section.”]

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1. Inserted vide The Supreme Court Judges (Conditions of Service) Amendment Act, 1993 (72 Of 1993), Dt. 26th December, 1993 Published in Received the assent of the President on December 26. 1993 and published in the Gazette of India. Extra Part II. Section 1, dated 27th December. 1993. pp. 1-2, SI. No. 123

2. Substituted for “ten thousand rupees” by Act No. 46 of 2005 w.e.f. 15-9-2005.

3. Substituted for ” (4) This section shall be deemed to have come into force on the 26th day of January, 1950 and any rule made under this section may be made so as to be retrospective to any date not earlier than the commencement of this section. “, vide The Supreme Court Judges (Conditions of Service) Amendment Act, 1993 (72 Of 1993), Dt. 26th December, 1993 Published in Received the assent of the President on December 26. 1993 and published in the Gazette of India. Extra., Part II. Section 1, dated 27th December. 1993. pp. 1-2, SI No. 123

Section 23A. Conveyance facilities

Every Judge shall be entitled to a staff car and 1[two hundred litters of fuel every month or the actual consumption of fuel]per month, whichever is less.

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1. Substituted for “one hundred and fifty liters of petrol every month or the actual consumption of petrol “, vide The Supreme Court and High Court Judges (Conditions of Service) Amendment Act, 1996 (20 Of 1996), Dt. 31st July, 1996 Published in Received the assent of the President on July 31. 1996 and published in the Gazette of India, Extra., Part II, Section 1. dated 31st July, 1996, pp. 1-2, No. 47

Section 23B. Sumptuary allowance

The Chief Justice and each of the other Judges shall be entitled to a sumptuary allowance of 1[ten thousand]rupees per month and 2[seven thousand five hundred] rupees]per month respectively.

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1. Substituted for “four thousand” by Act No. 46 of 2005 w.e.f. 15-9-2005.

2. Substituted for “three thousand” by Act No. 46 of 2005 w.e.f. 15-9-2005.

Section 23C. Medical facilities for retired Judges

Every retired Judge shall, with effect from the date on which the Supreme Court Judges (Conditions of Service) Amendment Act, 1976 receives the assent of the President, be entitled, for himself and his family, to the same facilities as respects medical treatment and on the same conditions as a retired officer of the Central Civil Services, Class I and his family, are entitled under any rules and orders of the Central Government for the time being in force.

Section 23D. Exemption from liability to pay income-tax on certain perquisites received by a Judge

Notwithstanding anything contained in the Income-tax Act, 1961 (43 of 1961),-

(a) the value of rent-free official residence provided to a Judge under sub-section (1) of Section 23 1[or the allowance paid to him under sub-section (1-A) of that section] ;

(b) the value of the conveyance facilities provided to a Judge under Section 23-A;

(c) the sumptuary allowance provided to a Judge under Section 23-B,

shall not be included in the computation of his income chargeable under the head “Salaries” under Section 15 of the Income-tax Act, 1961(43 of 1961).

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1. Inserted vide The Supreme Court Judges (Conditions of Service) Amendment Act, 1993 (72 of 1993), Dt. 26th December, 1993 Published in Received the assent of the President on December 26. 1993 and published in the Gazette of India. Extra, Part II. Section 1, dated 27th December. 1993. pp. 1-2, SI. No. 123

Section 24. Power to make rules

(1) The Central Government may, by notification in the Official Gazette, make rules 1to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) leave of absence of a Judge, including special disability leave;

(b) pension payable to a Judge, including extraordinary pensions and gratuities;

(c) Traveling allowances to a Judge;

(d) use of official residence by a Judge;

(e) facilities for medical treatment and other conditions of service of a Judge;

(f) any other matter which has to be, or may be, prescribed.

2[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case maybe; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

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1. For Supreme Court Judges Rules 1959, see Gaz. of Ind” 1959, Pt. II, S. 3 (i) p. 1161. For Supreme Court Judges (Travelling Allowance) Rules, 1959 see Gas. Of land” 1959, Pt. II, S. 3 (i), p. 1054.

2. Substituted by the Supreme Court Judges (Conditions of Service) Amendment Act, 1976 (36 of 1976), S. 5 (w.r.e.f. 1-10-1974).

Section 25. Savings

Nothing contained in this Act shall have effect so as to give to a Judge who is serving as such at the commencement of this Act less favourable terms in respect of his privileges and allowances or his rights in respect of leave of absence (including leave allowances) or pension than those to which he would have been entitled, if this Act had not been passed.

Schedule

PENSIONS OF JUDGES

(See sections 13-and14)

PART 1

The Provisions of this Part apply to a Judge who is not a member of the Indian Civil Service or has not held any other pension able civil post under the Union or a State and also apply to a person, who was in service as a Judge on the 20th May 1954 and to a Judge who, being a member of the Indian Civil Service or having held any other pension able civil post under the Union or a State, has elected to receive the pension payable under this Part.

2

Subject to-the provisions of this Part, the pension payable to a Chief Justice to whom this Part applies 1[***] shall be an amount equal to the sum of the following amounts, that is to say,-

(a) an amount equal to the pension which would have been payable to him in accordance with the scale and provisions in Part I of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, if his service as a Judge had been render-ed as the Chief Justice of a High Court;

(b) an additional amount of Rs. 2[6030] per annum for each completed year of service as the Chief Justice of the Supreme Court until he has become entitled to a pensionof Rs. 2[1,82,820] per annum, and thereafter an additional amount of Rs. 2[15,360] for each completed year of such service:

Provided that the aggregate amount of his pension shall in no case exceed Rs, 2[2,97,000] perineum.

3

The pension payable to any other Judge to whom this part applies and 1[***] shall be an amount equal to the pension which would have been payable to him in accordance with the scale and provisions in Part I of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, if his service as a Judge had been rendered as the Chief Justice of a High Court.

Provided that the pension under this paragraph shall in no case exceed Rs. 2[2,70,000] per annum.

4

If a Judge of the Supreme Court who has served as an acting Chief Justice there-of is subsequently appointed Chief Justice, his service as acting Chief Justice shall, for the purposes of paragraph 2 of this Part, be treated as service as Chief Justice.

5

3[***]

PART 2

The provisions of this Part apply to a Judge who is a member of the Indian Civil Service and who has not elected to receive the pension payable under Part 1.

2

The pension payable to such a Judge shall be-

(a) the pension to which he is entitled under the ordinary rules of the Indian Civil Service if he had not been appointed a Judge, his service as a Judge in India being treated as service therein, and

(b) an additional pension of Rs. 2[16,898] per annum for each completed year of service for pension in the Supreme Court:

Provided that the pension under clause (a) and the additional pension under clause (b) together shall in no case exceed Rs. 2[2,97,000] per annum in the case of a Chief Justice and Rs. 2[2,70,000] per annum in the case of any other Judge.

PART 3

The provisions of this Part apply to a Judge who has held any pension able civil post under the Union or a State (but is not a .member of the Indian Civil Service) and who has not elected to receive the pension payable under Part 1.

2

The pension payable to such a Judge shall be-

(a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge in India being treated as service therein for the purpose of calculating that pension; and

(b) a special additional pension of Rs. 2[7800] per annum in respect of each completed year of service for pension as a Judge in India

“Provided that the pension under clause (a) and the additional pension under clause (b) together shall in no case exceed Rs. 2[2,97,000 per annum in the case of the Chief Justice and Rs. 2[2,70,000] per annum in the case of any other Judge.”]

——————–

1. The words “and who has completed not less than seven years of service for pension as a Judge in India” Omitted by Act No. 46 of 2005 w.e.f. 15-9-2005.

2. Subs. by Act No. 46 of 2005 w.e.f. 15-9-2005.

3. Paragraph 5 omitted by Act No. 46 of 2005 w.e.f. 15-9-2005.

Bydeb

Private Security Agencies (Regulation) Act, 2005

PRIVATE SECURITY AGENCIES (REGULATION) ACT, 20051

[No. 29 OF 2005]

[June 23, 2005]

An Act to provide for the regulation of private security agencies and for matters connected therewith or incidental thereto

Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

——————–

1. Received the assent of the President on June 23, 2005 and published in the Gazette of India, Extra., Part II, Section 1

Prefatory Note-Statement of Objects and Reasons.-

Due to increase in the number of business establishments and increasing demands for security, there has been a proliferation of private security agencies in the recent years. The growing tendency to hire security guards from private sources by an industrial or business undertaking has led to coming up of large number of private security agencies all over the country. Though these private security agencies have helped in meeting the security needs of business establishments, there has been a growing concern about the manner of functioning of these agencies, many of which seem to conduct their operations without due care for verifying the antecedents of the personnel employed as private security guards and supervision.

2. Private multi-national security agencies have also established their branches in the country, which unless properly regulated, may have serious security implications. Unless suitable safeguards are devised, these developments are likely to have wide ranging security implications, which may not be in national interest. There is also a danger of the employees of the private security agencies encroaching upon the duties of the police, using weapons in an illegal manner and wearing uniforms which resemble those of the police. In many instances, personnel employed by these agencies have also been involved in criminal activities.

3. For all these reasons, Union Government has been considering to regulate the functioning of these private security agencies, so that they are run within legal parameters and are accountable to a regulatory mechanism. In view of above, it is proposed to regulate the private security agencies through an Act which provides for a Controlling Authority to be appointed by the State Governments for the purpose of granting licences and also to make holding of licences mandatory for the carrying on of business of security agencies and other related matters.

4. The Bill seeks to achieve the above objects.

Section 1. Short title, extent and commencement

(1) This Act may be called the Private Security Agencies (Regulation) Act, 2005.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Section 2. Definitions

In this Act, unless the context otherwise requires,-

(a) “armoured car service” means the service provided by deployment of armed guards along with armoured car and such other related services which may be notified by the Central Government or as the case may be, the State Government from time to time;

(b) “Controlling Authority” means the Controlling Authority appointed under subsection (1) of Section 3;

(c) “licence” means a licence granted under sub-section (5) of Section 7;

(d) “notification” means a notification published in the Official Gazette;

(e) “prescribed” means prescribed by rules made under this Act;

(f) “private security” means security provided by a person, other than a public servant, to protect or guard any person or property or both and includes provision of armoured car service;

(g) “private security agency” means a person or body of persons other than a government agency, department or organisation engaged in the business of providing private security services including training to private security guards or their supervisor or providing private security guards to any industrial or business undertaking or a company or any other person or property;

(h) “private security guard” means a person providing private security with or without arms to another person or property or both and includes a supervisor;

(i) “State Government”, in relation to a Union territory, includes the Administrator of that Union territory appointed by the President under Article 239 of the Constitution.

Section 3. Appointment of Controlling Authority

(1) The State Government shall, by notification, designate an officer not below the rank of a Joint Secretary in the Home Department of the State or an equivalent officer to be the Controlling Authority for the purposes of this Act.

(2) The State Government may, for efficient discharge of functions by the Controlling Authority, provide it with such other officers and staff as that Government considers necessary.

Section 4. Persons or Private Security Agency not to engage or provide private security guard without licence

No person shall carry on or commence the business of private security agency, unless he holds a licence issued under this Act:

Provided that the person carrying on the business of private security agency, immediately before the commencement of this Act, may continue to do so for a period of one year from the date of such commencement and if he has made an application for such licence within the said period of one year, till the disposal of such application:

Provided further that no private security agency shall provide private security abroad without obtaining permission of the Controlling Authority, which shall consult the Central Government before according such permission.

Section 5. Eligibility for licence

An application for issue of a licence under this Act shall only be considered from a person after due verification of his antecedents.

Section 6. Persons not eligible for licence

(1) A person shall not be considered for issue of a licence under this Act, if he has been-

(a) convicted of an offence in connection with promotion, formation or management of a company (any fraud or misfeasance committed by him in relation to the company), including an undischarged insolvent; or

(b) convicted by a competent court for an offence, the prescribed punishment for which is imprisonment of not less than two years; or

(c) keeping links with any organisation or association which is banned under any law on account of their activities which pose threat to national security or public order or there is information about such a person indulging in activities which are prejudicial to national security or public order; or

(d) dismissed or removed from government service on grounds of misconduct or moral turpitude.

(2) A company, firm or an association of persons shall not be considered for issue of a licence under this Act, if, it is not registered in India, or having a proprietor or a majority shareholder, partner or director, who is not a citizen of India.

Section 7. Application for grant of licence

(1) An application for grant of licence to a private security agency shall be made to the Controlling Authority in such form as may be prescribed.

(2) The applicant shall submit an affidavit incorporating the details in relation to the provisions contained in Section 6, ensure the availability of the training for its private security guards and supervisors required under sub-section (2) of Section 9, fulfilment of conditions under Section 11 and of cases registered with police or pending in a court of law involving the applicant.

(3) Every application under sub-section (1) shall be accompanied by a fee of-

(a) Rupees Five thousand if the private security agency is operating in one district of a State;

(b) Rupees Ten thousand if the agency is operating in more than one but up to five districts of a State; and

(c) Rupees Twenty-five thousand if it is operating in the whole State.

(4) On receipt of an application under sub-section (1), the Controlling Authority may, after making such inquiries as it considers necessary and obtaining no objection certificate from the concerned police authority, by order in writing, either grant a licence or refuse to grant the same within a period of sixty days from the date of receipt of application with complete particulars and the prescribed fee :

Provided that no order of refusal shall be made unless-

(a) the applicant has been given a reasonable opportunity of being heard; and

(b) the grounds on which licence is refused is mentioned in the order.

(5) A licence granted under this section-

(a) shall be valid for a period of five years unless the same is cancelled under subsection (1) of Section 13;

(b) may be renewed from time to time after the expiry of five years, for a further period of five years on payment of such fee as may be prescribed; and

(c) shall be subject to such conditions as may be prescribed.

Section 8. Renewal of licence

(1) An application for renewal of licence shall be made to the Controlling Authority, not less than forty-five days before the date of expiry of the period of validity thereof, in such form as may be prescribed and shall be accompanied by the requisite fee and other documents required under Sections 6, 7 and 11 of this Act.

(2) The Controlling Authority shall pass an order on application for renewal of licence within thirty days from the date of receipt of application complete in all respects.

(3) On receipt of an application under sub-section (1), the Controlling Authority may, after making such inquiries as he considers necessary and by order in writing, renew the licence or refuse to renew the same :

Provided that no order of refusal shall be made except after giving the applicant a reasonable opportunity of being heard.

Section 9. Conditions for commencement of operation and engagement of supervisors

(1) Every private security agency shall, within six months of obtaining the licence, commence its activities.

(2) Every private security agency shall ensure imparting of such training and skills to its private security guards and supervisors as may be prescribed :

Provided that the person carrying on the business of private security agency, before the commencement of this Act, shall ensure the required training to its security guards and supervisors within a period of one year from the date of such commencement.

(3) Every private security agency shall, within sixty days from the date of issue of the licence, employ such number of supervisors, as may be prescribed.

(4) A private security agency shall not employ or engage a person as a supervisor unless he fulfils the conditions specified in sub-section (1) of Section 10.

(5) While engaging a supervisor of private security guards, every private security agency shall give preference to a person who has experience of serving in the Army, Navy, Air Force or any other Armed forces of the Union or State Police including armed constabularies and Home Guards for a period of not less than three years.

Section 10. Eligibility to be a private security guard

(1) A private security agency shall not employ or engage any person as a private security guard unless he-

(a) is a citizen of India or a citizen of such other country as the Central Government may, by notification in the Official Gazette, specify;

(b) has completed eighteen years of age but has not attained the age of sixty-five years;

(c) satisfies the agency about his character and antecedents in such manner as may be prescribed;

(d) has completed the prescribed security training successfully;

(e) fulfils such physical standards as may be prescribed; and

(f) satisfies such other conditions as may be prescribed.

(2) No person who has been convicted by a competent court or who has been dismissed or removed on grounds of misconduct or moral turpitude while serving in any of the armed forces of the Union, State Police Organisations, Central or State Governments or in any private security agency shall be employed or engaged as a private security guard or a supervisor.

(3) Every private security agency may, while employing a person as a private security guard, give preference to a person who has served as a member in one or more of the following, namely:-

(i) Army;

(ii) Navy;

(iii) Air Force;

(iv) any other armed forces of the Union;

(v) Police, including armed constabularies of States; and

(vi) Home Guards.

Section 11. Conditions of licence

(1) The State Government may frame rules to prescribe the conditions on which licence shall be granted under this Act and such conditions shall include requirements as to the training which the licensee is to undergo, details of the person or persons forming the agency, obligation as to the information to be provided from time to time to the Controlling Authority regarding any change in their address, change of management and also about any criminal charge made against them in the course of their performance of duties of the private security agency or as the case may be, a private security guard employed or engaged by them.

(2) The State Government may make provision in the rules to verify about imparting of required training by the private security agency under sub-section (2) of Section 9 and to review continuation or otherwise of licence of such private security agency which may not have adhered to the condition of ensuring the required training.

Section 12. Licence to be exhibited

Every private security agency shall exhibit its licence or copy thereof in a conspicuous place of its business.

Section 13. Cancellation and suspension of licence

(1) The Controlling Authority may cancel any licence on any one or more of the following grounds, namely:-

(a) that the licence has been obtained on misrepresentation or suppression of material facts;

(b) that the licence holder has used false documents or photographs;

(c) that the licence holder has violated the provisions of this Act or the rules made thereunder or any of the conditions of the licence;

(d) that the licence holder has misused information obtained by him during the discharge of his duties as the private security agency to any industrial or business undertaking or a company or any other person;

(e) that the licence holder by using any letter-head, advertisement or any other printed matter or in any other manner represented that the private security agency is an instrumentality of the Government or such agency is or has been using a name different from that for which licence has been granted;

(f) that the licence holder is or has been impersonating or permitting or aiding or abetting any body to impersonate as a public servant;

(g) that the private security agency had failed to commence its activities or to engage a supervisor within the specified time period;

(h) that the licence holder is or has wilfully failed or refused to render the services agreed to any person;

(i) that the licence holder has done any act which is in violation of a court order or an order of a lawful authority or is or has been advising, encouraging or assisting any person to violate any such order;

(j) that the licence holder has violated the provisions of the Acts given in the Schedule which may be modified by the Central Government, by notification in the Official Gazette;

(k) that there have been repeated instances when the private security guard or guards provided by the private security agency-

(i) failed to provide private security or were guilty of gross negligence in not providing such security;

(ii) committed a breach of trust or misappropriated the property or a part thereof which they were supposed to protect;

(iii) were found habitually drunk or indisciplined;

(iv) were found to be involved in committing crimes; or

(v) had connived or abetted a crime against the person or property placed under their charge; or

(l) that the licence holder has done any act which poses a threat to national security, or did not provide assistance to the police or other authority in the discharge of its duties or acted in a manner prejudicial to national security or public order or law and order.

(2) Where the Controlling Authority, for reasons to be recorded in writing, is satisfied that pending the question of cancelling of licence on any of the grounds mentioned in subsection (1), it is necessary to do so, that Controlling Authority may, by order in writing, suspend the operation of the licence for such period not exceeding thirty days as may be specified in the order and require the licence holder to show cause, within fifteen days from the date of issue of such order, as to why the suspension of the licence should not be extended till the determination of the question of cancellation.

(3) Every order of suspending or cancelling of a licence shall be in writing and shall specify the reasons for such suspension or cancellation and a copy thereof shall be communicated to the person affected.

(4) No order of cancellation of licence under sub-section (1) shall be made unless the person concerned has been given a reasonable opportunity of being heard.

Section 14. Appeals

(1) Any person aggrieved by an order of the Controlling Authority refusing the licence under sub-section (4) of Section 7 or renewal under sub-section (3) of Section 8 or order of suspension of licence under sub-section (2) of Section 13 or cancellation of licence under sub-section (1) of that section, may prefer an appeal against that order to the Home Secretary of the State Government within a period of sixty days of the date of such order:

Provided that an appeal may be admitted after the expiry of the said period of sixty days if the appellant satisfies the State Government that he has sufficient cause for not preferring the appeal within that period.

(2) Every appeal under sub-section (1) shall be made in such form as may be prescribed and shall be accompanied by a copy of the order appealed against.

(3) Before disposing of an appeal, the State Government shall give the appellant a reasonable opportunity of being heard.

Section 15. Register to be maintained by a private security agency

(1) Every private security agency shall maintain a register containing-

(a) the names and addresses of the persons managing the private security agency;

(b) the names, addresses, photographs and salaries of the private security guards and supervisors under its control;

(c) the names and addresses of the persons whom it had provided private security guards or services; and

(d) such other particulars as may be prescribed.

(2) The Controlling Authority may call for such information as it considers necessary from any private security agency, supervisor or private security guard to ensure due compliance of the Act.

Section 16. Inspection of licence, etc

The Controlling Authority or any other officer authorised by it in this behalf may at any reasonable time, enter the premises of the private security agency and inspect and examine the place of business, the records, accounts and other documents connected with the licence and may take copy of any document.

Section 17. Issue of photo identity card

(1) Every private security guard shall be issued a photo identity card, by the private security agency employing or engaging the guard.

(2) The photo identity card under sub-section (1) shall be issued in such form as may be prescribed.

(3) Every private security guard or supervisor shall carry on his person the photo identity card issued under sub-section (1) and shall produce it on demand for inspection by the Controlling Authority or any other officer authorised by it in this behalf.

Section 18. Disclosure of information to unauthorised person

(1) Any person who may be or has been employed or engaged as a private security guard by the private security agency shall not divulge to anyone other than the employer, or in such manner and to such person as the employer directs, any information acquired by him during such employment with respect to the work which he has been assigned by such employer, except such disclosure as may be required under this Act or in connection with any inquiry or investigation by the police or as may be required by an authority or process of law.

(2) All private security guards of a private security agency shall render necessary assistance to the police or to such authority in the process of any investigation pertaining to the activities of that agency.

(3) If violation of any law is noticed by any private security guard during the course of discharge of his duties, he shall bring it to the notice of his superior, who in turn shall inform the police either through his employer or agency or on his own.

Section 19. Delegation

The State Government may, by notification, direct that any power or function (except the powers to make rules under Section 25)-

(a) which may be exercised or performed by it, or

(b) which may be exercised or performed by the Controlling Authority,

under this Act, may, in relation to such matter and subject to such conditions, if any, as may be specified in the notification, be also exercised or performed by such officer or authority subordinate to the Government or officer subordinate to the Controlling Authority, as may be specified in such notification.

Section 20. Punishment for contravention of certain provisions

(1) Any person who contravenes the provisions of Section 4 shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to twenty-five thousand rupees, or with both.

(2) Any person or private security agency who contravenes the provisions of Sections 9, 10 and 12 of the Act, shall be punishable with a fine which may extend to twenty-five thousand rupees, in addition to suspension or cancellation of the licence.

Section 21. Penalty for unauthorised use of certain uniforms

If any private security guard or supervisor wears the uniform of the Army, Air Force, Navy or any other armed forces of the Union or Police or any dress having the appearance or bearing any of the distinctive marks of that uniform, he and the proprietor of the private security agency shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both.

Section 22. Offences by companies

(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.-For the purposes of this section-

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

Section 23. Indemnity

No suit, prosecution or other legal proceeding shall lie against the Controlling Authority or any other officer authorised by it in respect of anything in good faith done or intended to be done under this Act.

Section 24. Framing of model rules for adoption by States

The Central Government may frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this Act, and where any such model rules have been framed the State Government shall, while making any rules in respect of that matter under Section 25, so far as is practicable, conform to such model rules.

Section 25. Power of State Government to make rules

(1) The State Government may, by notification, make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the procedure for verification of character and antecedents under clause (c) of sub-section (1) of Section 10; the type of training under clause (d) of subsection (1) of Section 10; the physical standard under clause (e) of subsection (1) of Section 10; and other conditions under clause (f) of sub-section (1) of Section 10;

(b) the number of supervisors to be employed under sub-section (3) of Section 9;

(c) the form of an application for grant of licence under sub-section (1) of Section 7;

(d) the form in which the licence to be granted under sub-section (4) of Section 7 and conditions subject to which such licence to be granted under Section 11;

(e) the form of an application for renewal of licence under sub-section (1) of Section 8;

(f) the form under sub-section (2) of Section 14 for preferring an appeal;

(g) particulars to be maintained in a register under sub-section (1) of Section 15;

(h) the form in which photo identity card under sub-section (2) of Section 17 be issued;

(i) any other matter which is required to be, or may be, prescribed.

(3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

(4) In respect of Union territories, every rule made to carry out the provisions of the Act shall be laid before each House of Parliament and where there exists a Legislative Assembly, before that Assembly.

Schedule

THE SCHEDULE

[See Section 13(1)(j)]

(1) The Payment of Wages Act, 1936 (4 of 1936).

(2) The Industrial Disputes Act, 1947 (14 of 1947).

(3) The Minimum Wages Act, 1948 (11 of 1948).

(4) The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952).

(5) The Payment of Bonus Act, 1965 (21 of 1965).

(6) The Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970).

(7) The Payment of Gratuity Act, 1972 (39 of 1972).

(8) The Equal Remuneration Act, 1976 (25 of 1976).

(9) The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (30 of 1979).

Bydeb

The Special Court (Trial of Offences Relating to Transactions Insecurities) Act, 1992

Section 1. Short title and commencement

No.27 OF 1992

[18th August, 1992]

An Act to provide the establishment of a Special Court for the trial of Offences relating to transactions in securities and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Forty-third Year of the Republic of India as follows:–

(1) This Act may be called the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992.

(2) It shall be deemed to have come into force on the 6th day of June, 1992.

Section 2. Definitions

In this Act, unless the context otherwise requires,–

(a) “Code” means the Code of Criminal Procedure, 1973(2 of 1974):

(b) “Custodian” means the custodian appointed under sub-section (1) of section 3;

(c) “Securities” includes—

(i) Shares, Scripps, stocks, bonds, debentures, debenture stock, units of the Unit Trust of India or any other mutual fund or other marketable securities of a like nature in or of any incorporated company of other body corporate;

(ii) Government securities; and

(iii) Rights or interests in securities;

(d) “Special Court” means the Special court established under sub-section (1) of section 5.

Section 3. Appointment and functions of Custodian

(1) The Central Government may appoint one or more Custodians as it may deem fit for the purposes of this Act.

(2) The Custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the 1st day of April, 1991 and on and before the 6th June, 1992, notify the name of such person in the Official Gazette.

(3) Notwithstanding anything contained in the Code and any other law for the time being in force, on and from the date of notification under sub-section (2), any property, movable or immovable, or both, belonging to any person notified under that sub-section shall stand attached simultaneously with the issue of the notification.

(4). The property attached under sub-section (3) shall be dealt with by the Custodian in such manner as the Specula court may direct.

(5) The Custodian may take assistance of any person while exercising his powers or for discharging his duties under this section and section 4.

Section 4. Contracts entered into fraudulently may be cancelled

(1) If the Custodian is satisfied, after such inquiry as he may think fit, that any contract or agreement entered into at any time after the 1st day of April 1991 and on and before the 6th June, 1992 in relation to any property of the person notified under sub-section (2) of section 3 has been entered in to fraudulently or to defeat the provisions of this Act, he may cancel such contract or agreement and on such cancellation such property shall stand attached under this Act:

Provided that no contract or agreement shall be cancelled except after giving to the parties to the contract or agreement a reasonable opportunity of being heard.

(2) Any person aggrieved by a notification used by sub-section (2) of section 3 or any cancellation made under sub-section (1) of section 4 or any other order made by the Custodian in exercise of the powers conferred on him under section3 or 4 may file a petition objecting tot he same within thirty days of the assent to the Special Court (Trial of Offences Relating to Transactions in Securities) Bill, 1992 by the President before the Special Court where such notification, cancellation or order has been issued before the date of assent to the Special Court (Trial of Offences Relating to Transactions in securities) Bill, 1992 by the President and where such notification, cancellation or order has been issued on or after that date, within thirty days of the issuance of such notification, cancellation or order, as the case may be; and the Special court after hearing the parties, may make such order as it deems fit.

Section 5. Establishment of Special Court

(1) The central Government shall, by notification in the Official Gazette, establish a Court to be called the Special court.

(2) The Special court shall consist of a sitting Judge of the High Court nominated by the Chief Justice of the High Court within the local limits of whose jurisdiction the Special court is situated, with the concurrence of the Chief Justice of India.

Section 6. Cognizance of cases by special Court

The Special Court shall take cognizance of or try such cases as are instituted before it or transferred to it as hereinafter provided.

Section 7. Jurisdiction of Special Court

Notwithstanding anything contained in any other law, any prosecution in respect of any offence referred to in sub-section (2) of section 3 shall be instituted only in the Special Court and any prosecution in respect of such offence pending in any court shall stand transferred to the Special Court.

Section 8. Jurisdiction of Special Court as to joint trails

The Special Court shall have jurisdiction to try any person concerned in the offence referred to in sub-section (2) of section 3 either as a principal conspirator or abettor and all other Offences and accused Persians as can be jointly tried therewith at one trial in accordance with the Code.

Section 9. Procedure and Powers of Special Courts

(1) The Special Court shall, in the trial of such cases, follow the procedure prescribed by the Code for the trial of warrant cases before a magistrate.

(2) Save as expressly provided in this Act, the provisions of the code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before the Special Court and for the purposes of the said provisions of the Code, the Special Court shall be deemed to be a court of Session and shall have all the powers of a Court of Session, and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.

(3) The Special Court may pass upon any person convicted by it any sentence authorised by law for the punishment of the offence of which such person is convicted.

(4) While dealing with any other matter brought before it, the Special Court may adopt such procedure as it may deem fit consistent with the principles of natural justice.

Section 10. Appeals

(1) Notwithstanding anything in the Code, an appeal shall lie from any judgement, sentence or order, not being interlocutory order, of the Special Court to the Supreme Court both on facts and on law.

(2) Except as aforesaid, no appeal or revision shall lie to any court form any judgement, sentence or order of the Special court.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of any judgement, sentence or order of the Special Court:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.

Section 11. Discharge of liabilities

(1) Notwithstanding anything contained in the Code and any other law for the time being in force the Special court may make such order as it may deem fit directing the custodian for the disposal of the property under attachment.

(2) The following liabilities shall be paid or discharged in full, as far as may be, in the order as under:–

(a) All revenues, taxes, ceases and rates due from the persons notified by the Custodian under sub-section (2) of section 3 to the Central Government or any State Government or any local authority;

(b) All amounts due from the person so notified by the Custodian to any bank or financial institution or mutual fund;

(c) Any other liability as may be specified by the Special Court from time to time.

Section 12. Protection of action taken in good faith

(1) No suit, procession or other legal proceeding shall lie against the Central Government or the Custodian for anything which is in good faith done or intended to be done under this Act.

(2) No suit or other legal proceeding shall lie against the Central Government or any of its officers or other employees for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.

Section 13. Act to have overriding effect

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any court, tribunal or other authority.

Section 14. Power to make rules

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expire of the session immediately following the session or the successive sessions aforesaid, both House agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 15. Repeal and savings

(1) The Special court (Trial of Offences Relating to Transactions in Securities) Ordinance, 1992 (Ord.10 of 1992) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of this Act.

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Tamil Nadu Legislative Council Act, 2010

TAMIL NADU LEGISLATIVE COUNCIL ACT, 20101

[NO. 16 OF 2010]

[May 18, 2010]

An Act to provide for the creation of Legislative Council for the State of Tamil Nadu and for matters supplemental, incidental and consequential thereto

Be it enacted by Parliament in the Sixty-first Year of the Republic of India as follows—

Prefatory Note—Statement of Objects and Reasons.

Article 168 of the Constitution, inter alia, provides for constitution of two Houses in six States and one House in other States. Where there are two Houses of the Legislature of a State, one is known as Legislative Council and other as Legislative Assembly. At the commencement of Article 168 of the Constitution, a Legislative Council for the erstwhile State of Madras was envisaged. The State was renamed as the State of Tamil Nadu vide the Madras State (Alteration of Name) Act, 1968. However, the Tamil Nadu Legislative Council was abolished with effect from the 1st November, 1986 vide the Tamil Nadu Legislative Council (Abolition) Act, 1986.

2. Clause (1) of Article 169 of the Constitution provides that Parliament may, by law, provide for the abolition of the Legislative Council of a State having such a Council or for the creation of such a Council in a State having no such Council if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.

3. On the 26th July, 1996, the Tamil Nadu Legislative Assembly passed a resolution for creation of a Legislative Council in the State and a Bill, namely, the Legislative Council Bill, 1997 which provided for creation of a Legislative Council in the States of Punjab and Tamil Nadu was introduced in Lok Sabha on the 14th August, 1997 but the Bill lapsed on the dissolution of the Eleventh Lok Sabha. However, the Tamil Nadu Legislative Assembly passed another resolution on the 12 the September, 2001 rescinding its earlier resolution dated the 26th July, 1996 and hence no further action for revival of the proposal could be taken.

4. On the 12th April, 2010, the Tamil Nadu Legislative Assembly passed a resolution in terms of clause (1) of Article 169 of the Constitution for the creation of Legislative Council in that State. It is, accordingly, proposed to enact a law providing for the creation of Legislative Council for the State of Tamil Nadu with seventy-eight members paving way for giving better opportunity to people’s participation in governance and decision making. The expenditure in respect of the Legislative Council will have to be borne by the Government of Tamil Nadu.

5. The Bill seeks to achieve the above objects and also provides for matters supplemental, incidental and consequential to the creation of the proposed Legislative Council.

——————–

1. Received the assent of the President on May 18, 2010 and published in the Gazette of India, Extra., Part II, Section 1, dated 18th May, 2010, pp. 1-2, No. 21

1. Short title.

This Act may be called the Tamil Nadu Legislative Council Act, 2010.

2. Definition.

In this Act, unless the context otherwise requires, each of the words and expressions used herein and not defined but defined in the Representation of the People Act, 1950 (43 of 1950), shall have the same meaning as in that Act.

3. Creation of Legislative Council for Tamil Nadu.

(1) As from such date as the President may, by order appoint, there shall be a Legislative Council for the State of Tamil Nadu; and as from that date, in sub-clause (a) clause (1) of Article 168, after the word “Karnataka,”, the words “Tamil Nadu”, shall be inserted.

(2) In the said Council, there shall be 78 seats of which—

(a) the numbers to be filled by persons elected by the electorates referred to in sub-clauses (a), (b) and (c) of clause (3) of Article 171 shall be 26, 7 and 7 respectively;

(b) the number to be filled by persons elected by the members of the Legislative Assembly of Tamil Nadu in accordance with the provisions of sub-clause (d) of the said clause shall be 26; and

(c) the number to be filled by persons nominated by the Governor of Tamil Nadu in accordance with the provisions of sub-clause (e) of that clause shall be 12.

(3) As soon as may be after the commencement of this Act, the President, after consultation with the Election Commission, shall, by order, determine,—

(a) the constituencies into which the State of Tamil Nadu shall be divided for the purpose of elections to the said Council under each of the sub-clauses (a), (6) and (c) of clause (3) of Article 171;

(b) the extent of each constituency; and

(c) the number of seats to be allotted to each constituency.

(4) As soon as may be after such determination, steps shall be taken to constitute the said Council in accordance with the provisions of this Act, the Representation of the People Act, 1950 (43 of 1950), and the Representation of the People Act, 1951 (43 of 1951).

4. Amendment of Third Schedule and Fourth Schedule to Act 43 of 1950.

In the Representation of the People Act, 1950,—

(a) in the Third Schedule, after Entry No. 6 relating to Karnataka, the following entry shall be inserted, namely—

“7. Tamil Nadu 78 26 7 7 26 12”;

(b) in the Fourth Schedule, after the heading “KARNATAKA” and the entries there¬under, the following heading and entries shall be inserted, namely—

“Tamil Nadu

1. Municipalities, as referred to in Article 243-Q of the Constitution.

2. Panchayat Union Councils.

3. Cantonment Boards.

4. District Panchayats referred to in the Tamil Nadu Panchayat Act, 1994 Tamil Nadu Act 21 of 1994)”.

5. Amendment of Section 15-A of Act 43 of 1951.

In Section 15-A of the Representation of the People Act, 1951, after the words and figures “under the Andhra Pradesh Legislative Council Act, 2005 (1 of 2006)”, the words and figures “and constituting the Legislative Council of the State of Tamil Nadu under the Tamil Nadu Legislative Council Act, 2010” shall be inserted.

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Special Tribunals (Supplementary Provisions) Repeal Act, 2004

SPECIAL TRIBUNALS (SUPPLEMENTARY PROVISIONS) REPEAL ACT, 20041

[No. 28 OF 2004]

[December24, 2004]

An Act to repeal the Special Tribunals (Supplementary Provisions) Act, 1946

Be it enacted by Parliament in the Fifty-fifth Year of the Republic of India as follows:-

Prefatory Note-Statement of Objects and Reasons.-The Commission on Review of Administrative Laws constituted by the Central Government had, inter alia, recommended repeal of the Special Tribunals (Supplementary Provisions) Act, 1946 (26 of 1946).

2. The Special Tribunals (Supplementary Provisions) Act, 1946 was enacted 10 make certain provisions in relation lo sentences and orders passed by Special Tribunals constituted under the Criminal Law Amendment Ordinance, 1943 (Ord. XXIX of 1943) on cessation of functioning of such Tribunals. These Special Tribunals were constituted to provide for more speedy trial and more effective punishment of certain offences punishable under the Indian Penal Code involving certain public servants specified in the Schedule to the aforesaid Ordinance.

3. No Special Tribunal constituted under the Criminal Law Amendment Ordinance, 1943 is in existence now. The orders or sentences passed by the said Special Tribunals, would have been acted upon and sentences served by now. The enabling Criminal Law Amendment Ordinance, 1943 has also been repealed by the Repealing and Amending Act, 1957 (36 of 1957). Section 3 of the Prevention of Corruption Act, 1988 (49 of 1988) empowers the Central Government and the State Governments to appoint as many Special Judges as necessary to try arid offence punishable under that Act and the offences involving public servants, referred to in the Schedule to the Criminal Law Amendment Ordinance, 1943, have been incorporated in the Prevention of Corruption Act, 1988. As the Special Tribunals (Supplementary Provisions) Act, 1946 has thus outlived its utility, it is no longer required to be kept in the statute book. It is, therefore, proposed to repeal the Special Tribunals (Supplementary Provisions) Act, 1946.

4. The Bill seeks to achieve the above objects.

——————–

1. Received the assent of the President on December 24, 2004 and published in the Gazette of India, Extra., Part II, Section I, dated 27th December, 2004, p. I, No. 41

1. Short title

This Act may be called the Special Tribunals (Supplementary Provisions) Repeal Act, 2004.

2. Repeal of Act 26 of 1946.

The Special Tribunals (Supplementary Provisions) Act, 1946 is hereby repealed.

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The Notaries Act, 1952

Preamble

[9th August, 1952]

“An Act to regulate the profession of notaries.”

Be it enacted by Parliament as follows:

1. Short title, extent and commencement:

[9th August, 1952]

“An Act to regulate the profession of notaries.”

Be it enacted by Parliament as follows:

(1) This Act may be called The Notaries Act, 1952

(2) It extends to the whole of India (3) It shall come into force on such date as the central government may, by notification in the official gazette, appoint.

2. Definitions In this Act unless the context otherwise requires,

(a) Omitted by Act 25 of 1968 (b) “Instrument” includes every document by which any right or liability is, or purpose to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded. (c) “Legal Practitioner” means any advocate or agent of the supreme court to any advocate, vakil or attorney of any high court or any pleader authorised under any law for the time being in force to practice in any court of law (d) “Notary” means a person appointed as such under this act:

Provided that for a period of two years from the commencement of this Act it shall include also a person who, before such commencement, was appointed a notary public under the negotiable instruments in 1881 and is, immediately before such commencement, in practice in any part of India.

Provided further that in relation to the sat of Jammu and Kashmir the said period of two years shall be computed from the date on which this act comes into force in that State.

(e) “Prescribed” means prescribed by rules made under this act. (f) “Register” means a register of notaries maintained by the government under section 4

(g) “State Government”, in relation to a Union Territory, means the administrator thereof.

3. Power to appoint Notaries.-

The Central Government, for the whole or any part of India, and any such State Government, for the whole or any part of State, may appoint as notaries, any legal practitioners or other persons who possess such qualifications as may be prescribed.

4. Registers.-

(1) The Central Government and every State Government shall maintain, in such form as may be prescribed, a register of the notaries appointed by that Government and entitled to practice as such under this act.

(2) Every such Register shall include the following particulars about the notary is entered therein, namely:-

(a) his full name, date of birth, residential and professional address.

(b) the date on which his name is entered in the register.

(c) his qualification , and

(d) any other particulars which may be prescribed.

5. Entry of names in the Register and issue or renewal of certificates of practices.-

(1) Every Notary who in ends to practice as such shall, on payment to the government appointing him of the prescribed fee, if any, be entitled.-

(a) to have his name entered in the Register maintained by that government under section 4, and

(b) to a certificate authorizing him to practice for a period of three years from the date on which the certificate is issued to him.

(2) Every such notary who wishes to continue to practice after the expiry of the period for which his certificate of practice has been issued under this section shall, on application made to the Government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate renewed for three years at a time.

6. Annual publication of lists of notaries.-

The Central Government and, every State Government shall, during the month of January each year, publish in the Official Gazzette a list of notaries appointed by that Government and in practice at the beginning of that year together with such details pertaining to them as may be prescribed.

7. seal of Notaries.-

every Notary shall have and use, as occasion may arise, seal of such form and design as may be prescribed.

8. Function of Notaries.-

(1) A notary may do all or any of the following acts by virtue of his office , namely:-

(a) verify, authenticate, certify or attest the execution of any instrument.

(b) Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security.

(c) note to protest the dishonour by non acceptance or non payment of any promissory note, hundi, bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of such note or protest.

(d) note and draw up ship’s protest, boat’s protest or protest relating to de moorage and other commercial matters.

(e) administer oath to, or take affidavit from, any person,

(f) prepare bottom and respondent bonds, charter parties and other mercantile documents.

(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as many conform to the law of the place where such deed is intended to operate.

(h) translate, and verify the translation of, any document from one language to another.

(i) any other act which may be prescribed.

(2) No act specified in sub-section (1) shall be deemed to be a notaries act except when it is done by a notary under his signature and official seal.

9. Bar of practice without certificate.-

(1) Subject to the provision of this section, no person shall practice as a notary or do any notaries act under the official seal of notary unless he holds a certificate of practice in force issued to him under section 5.

Provided that nothing in this sub-section shall apply to the presentation of any promissory note, hundi or bill of exchange for acceptance or payment by the clerk of a notary acting on behalf of such notary.

(2) Nothing contained in sub-section (1) shall, until the expiry of two years from the commencement of this Act, apply to any such person as is referred to in the provision to clause (d) of section 2.

Provided that in relation to Jammu and Kashmir the said period of two years shall be computed from the date on which this act comes in to force in that state.

10. Removal of names from the Register.-

The Government appointing any notary may, by order, remove from the Register maintained by it under section 4, the names of the notary if he:-

(a) makes a request to that effect; or

(b) has not paid any prescribed fee required to be paid by him; or

(c) is an undischarged solvent; or

(d) has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the government, renders him unfit to practice as a notary.

11. Construction of references to notaries public in other laws.-

Any reference to a notary public in any other law shall be construed as a reference to a notary entitled to practice under this act.

12. Penalty for falsely representing to be Notary, etc..-

Any person who –

(a) falsely represents that he is a notary without being appointed as such, or

(b) practices as a notary or does any notaries act in contravention of section 9, shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.

13. Cognizance of Offence.-

(1) No court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his function under this act save upon complaint in writing made by an officer authorised by the Central Government or State Government by general or special order in this behalf.

(2) No Magistrate other than a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this act.

14. Reciprocal arrangements for recognition of notaries acts done by foreign notaries.-

If the Central Government is satisfied that by law or practice of any country or place outside India, the notaries act done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare the notorial acts lawfully done by notaries within such country or place shall be recogniseed within India for all purposes or, as the case may be, for such limited purposes as may be notified in the notification.

15. Power to make rules.-

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this act.

(2) In particular, and without prejudice to the generality of the forgoing power, such rules may provide for all or any of the following matters, namely:-

(a) the qualification of a notary, the form and manner in which applications for the appointment as a notary may be made and the disposal of such applications;

(b) the certificates, testimonials or proofs as to character, integrity, ability and competence which any person applying for appointment as a notary may be required to furnish;

(c) the fee payable for appointment as a notary and for the issue and renewal of sa certificate of practice, and exemption , whether wholly or in part, from such fees in specified classes of cases;

(d) the fees payable to a notary for doing any notarial act;

(e) the form of registers and the particulars to be entered therein;

(f) the form and design of the seal of notary;

(g) the manner in which inquiries into allegations of professional or other misconduct of notaries may be made;

(h) the acts which a notary may do in addition to those specified in section 8 and the manner in which a notary may perform his functions;

(i) any other matter which has to be, or may be prescribed.

(3) Every rule made by the central government under this act shall be laid as soon as may be after it is made, before each house of parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

16. Amendment of Act 26 of 1881.-

Repealed by the repealing and Amending Act, 1957 (36 of 1957), section 2 and schedule I.

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The Continuance Of Legal Proceedings Act, 1948

[Act No .38 of 1948] 1

[3rd September, 1948.]

1. This Act, except s.1 (2), is to remain unmodified by the A.O.1950.

An Act to provide for the continuance of certain legal proceedings by or against the Secretary of State.
WHEREAS it is expedient to provide for the continuance of certain legal proceedings by or against the Secretary of State in respect of any right of India or any part of India which were pending immediately before the 15th day of August’ 1947;
It is hereby enacted as follows:-

2. Interpretation.

In this Act, “the appointed day” means the 15th day of August, 1947.

3. Continuance of legal proceedings.

Any legal proceedings which, immediately before the appointed day,-

(a) Were pending by or against the Secretary of State in any Court within the territories which as from the appointed day became the territories of India by virtue of subsection (1) of section 2 of the Indian Independence Act, 1947, 10 and 11 Geo.6, c.30.and

(b) Were in respect of any right of India or any part of India, shall-

(i) If the right in question was that of the Governor-General in Council be continued by or against the Dominion of India; (ii) If the right in question was that of the former Province of Bengal or the Punjab, be continued by or against the Province of West Bengal or East Punjab, as the case may be; and

(iii) If the right in question was that of any Governor’s Province other than Bengal, the Punjab, the North-West Frontier Province or Sind, be continued by or against that Province.

4. Exclusion of time in computing period of limitation.

In computing the period of limitation prescribed for any appeal or application to a Court in respect of any such proceedings as aforesaid, the period from the appointed day up to the 28th day of May, 1948 shall be excluded.

5. Repeal.

(1) The Continuance of Legal Proceedings Ordinance, 1948 is hereby repealed.

(2) Anything done or any action taken in exercise of any powers conferred by or under the said Ordinance shall be deemed to have been done or taken in exercise of powers conferred by or under this Act as if this Act had commenced on the 28th day of May, 1948.

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The Central Laws (Extension To Arunachal Pradesh) Act, 1993

[ACT No.44 of 1993]

[27th May 1993]

An Act to Provide for the extension of certain Central laws to the State of Arunachal Pradesh.

BE it enacted by Parliament in the Forty Fourth Year of the Republic of India as follows:-

2. Extension of certain laws.

The Acts mentioned in the Schedule and all rules orders, regulations and schemes made thereunder are hereby extended to and shall be in force in the State of Arunachal Pradesh.

3. Construction of references to laws not in force in Arunachal Pradesh.

Any reference in any Act mentioned in the Schedule to a law which is not in force in the State of Arunachal Pradesh shall in relation to that State be construed as a reference to the corresponding law if any in force in that State.

4. Construction of references to authorities where new authorities have been constituted.

Any reference by whatever form of words in any law for the time being in force in the State of Arunachal Pradesh to any authority competent at the date of the passing of that law to exercise any power or discharge any functions in that State shall where a corresponding new authority has been constituted or under any law now extended to that State have effect as if it were a reference to the new authority.

5. Power to remove difficulties.

(1) If any difficulty arises in giving effect to the provisions of any Act now extended to the State of Arunachal Pradesh the Central Government my by order notified in the Official Gazette make such provisions or give such directions as appear to it necessary for the removal of the difficulty

(2) In particular and without prejudice to the generality of the foregoing power any such notified order may

(a) Specify the corresponding authorities within the meaning of section 4 Power to remove difficulties

(b) Provide for the transfer of any matter pending immediately before the commencement of this Act before any court tribunal or other authority to any corresponding court tribunal or other authority for disposal.

Provided that no such order shall be made after the expiry of two years from the date of commencement of this Act.

(3) Every order made under this section shall be laid before each House of Parliament

6. THE SCHEDULE

THE SCHEDULE
(See section 2)

YearNoShort title
123
18623The Government Seal Act, 1862
18735The Government Savings Banks Act, 1873
18744The Foreign Recruiting Act, 1874
188126The Negotiable Instruments Act, 1881
18844The Explosive Act, 1884
188513The Indian Telegraph Act, 1885
18884The Indian Reserve Forces Act, 1888
19054The Indian Railway Board Act, 1905
19086The Explosive Substances Act, 1908
19385The Manoeuvres, Field Firing and Artillary Practice Act, 1938
194125The Railways (Local Authorities Taxation) Act, 1941
194831The National Cadet Corps Act, 1948
194837The Census Act, 1948
194846The Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948
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The Central Laws (Extension To Jammu And Kashmir ) Act, 1968

[ACT No.25 OF 1968]

[24th May, 1968]

An Act to provide for the extension of certain Central Laws to the State of Jammu and Kashmir

BE it enacted by Parliament in the Nineteenth Year of the Republic of India as follows: –

2. Extension and amendment of certain laws.

(1) The Acts mentioned in the Schedule and all rules, orders and

regulations made thereunder are hereby extended to, and shall be in force in, the State of Jammu and Kashmir.

(2) With effect from the commencement of this Act, the Acts mentioned in the Schedule shall be amended as specified therein.

3. Construction of references to laws not in force in Jammu and Kashmir .

Any reference in any Act mentioned in the Schedule to a law which is not in force in the State of Jammu and Kashmir shall, in relation to the State, be construed as a reference to the corresponding law, if any, in force in that State.

4. Construction of references to authorities where new Authorities have been constituted.

Any reference by whatever form of words in any law for the time being in force in the State of Jammu and Kashmir to any authority competent at the date of the passing of that law to exercise any powers or discharge any functions in that State shall, where a corresponding new authority has been constituted by or under any law now extended to that State, have effect as if it were a reference to the new authority.

5. Repeals and savings.

If immediately before the commencement of this Act there is in force in the State of Jammu and Kashmir any law corresponding to any Act now extended to that State, that law shall, save as otherwise expressly provided in this Act, stand repealed on such commencement :

Provided that the repeal shall not affect –

(a) The previous operation of any law so repealed or anything duly done or suffered thereunder,

(b) Any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed,

(c) Any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or

(d) Any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ;

And any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed :

Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, instruction or direction issued, form, bye – law or scheme framed, certificate obtained, permit or licence granted or registration effected) under any such law shall be deemed to have been done or taken under the corresponding provisions of the Act now extended to that State, and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act.

6. Powers to remove difficulties.

(1) If any difficulty arises in giving effect to the provisions of any Act now extended to the State of Jammu and Kashmir, the Central Government may, by order notified in the Official Gazette, make such provisions or give such directions as appear to it necessary for the removal of the difficulty.

(2) In particular, and without prejudice to the generality of the foregoing power, any such notified order may, –

(a) Specify the corresponding authorities within the meaning of section 4,

(b) Provide for the transfer of any matter pending immediately before the commencement of this Act before any court, tribunal or other authority, to any corresponding court, tribunal or other authority for disposal,

(c) Specify the areas or circumstances in which, or the extent to which, or the conditions subject to which, anything done or any action taken (including any of the matters specified in the second proviso to section 5) under any law repealed by that section shall be recognised or given effect to under the corresponding provision of the Act now extended.

7. THE SCHEDULE

THE SCHEDULE
(See Section 2)
ACTS

THE OFFICIAL TRUSTEES ACT, 1913
(ACT NO. 2 OF 1913)

Section 1. In sub section (2), omit “except the State of Jammu and Kashmir

THE MOTOR VEHICLES ACT, 1939
(ACT NO. 4 OF 1939)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

Section 2. Omit clause (9A).

Section 9. Omit sub – sections (2) and (4).

Section 28. Omit sub – sections (2), (3), (4) and (5).

Section 29. In sub – section (1), –

(a) In clause (a) omit “or” ;

(b) Omit clause (b).

Section 38. For sub – section (4), substitute –

“(4) A certificate of fitness issued under this Act shall, while it remains effective, be valid throughout India.”.

Section 42. In sub – section (3), omit clause (h).

Section 63. Omit sub – section (5).

Section 96. (a) In sub – section (2A), omit “in the State of Jammu and Kashmir or” and in the proviso, omit “of the State of Jammu and Kashmir or” ;

(b) In sub – section (6), omit “of the State of Jammu and Kashmir or” ;

The Sixth Schedule. In the first and second columns, after ” West Bengal” and the entry relating thereto in the second column, insert ” Jammu and Kashmir” and “J &K” respectively.

THE CHARTERED ACCOUNTANTS ACT, 1949
(ACT NO. 38 OF 1949)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

THE TRANSFER OF PRISONERS ACT, 1950
(ACT NO. 29 OF 1950)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

THE ROAD TRANSPORT CORPORATION ACT, 1950
(ACT NO. 64 OF 1950)

Section 1. In sub – section (2), omit “the State of Jammu and Kashmir and”.

THE MINES ACT, 1952
(ACT NO. 35 OF 1952)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

THE NOTARIES ACT, 1952
(ACT NO. 53 OF 1952)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

Section 2. (a) Omit clause (a) ;

(b) In the proviso to clause (d) –

(i) for “either under”, substitute “under” ;

(ii) omit “or by the Master of Faculties in England” ;

(iii) for “any part of India”, substitute –

“Any part of India :

Provided further that in relation to the State of Jammu and Kashmir the said period of two years shall be computed from the date on which this Act comes into force in that State ;”.

Section 9. In sub – section (2), insert –

“Provided that in relation to the State of Jammu and Kashmir the said period of two years shall be computed from the date on which this Act comes into force in that State.”

THE ESSENTIAL COMMODITIES ACT, 1955
(ACT NO. 10 OF 1955)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

THE COMPANIES ACT, 1956
(ACT NO. 1 OF 1956)

Section 1. In sub – section (3), –

(a) omit first proviso ;

(b) in the second proviso, omit “further”.

Section 3. In sub – clause (f) (2) of clause (ii) of sub – section (1), insert at the end “in so far as banking, insurance and financial corporations are concerned, and before the commencement of the Central Laws (Extension to Jammu and Kashmir) Act, 1968 in so far as other corporations are concerned”.

After section 620B, insert -“Special provision as to companies in Jammu and Kashmir

620C.Special provision as to companies in Jammu and Kashmir.

The Central Government may by notification in the Official Gazette, direct that with effect from the commencement of the Central Laws (Extension to Jammu and Kashmir) Act, 1968 or any subsequent date, any of the provisions of this Act specified in the notification shall not apply, or shall apply only with such exceptions and modifications or adaptations as may be specified in the notification, to –

(a) Any existing company in the State of Jammu and Kashmir ;

(b) Any company registered in that State under this Act after the commencement of the Central Laws (Extension to Jammu and Kashmir) Act, 1968.”

THE COST AND WORKS ACCOUNTANTS ACT, 1959
(ACT NO. 23 OF 1959)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

THE APPRENTICES ACT, 1961
(ACT NO. 52 OF 1961)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

THE ADMIN ISTRATORS – GENERAL ACT, 1963
(ACT NO. 45 OF 1963)

Section 1. In sub – section (2), omit “except the State of Jammu and Kashmir”.

Section 20. (a) In sub – section (1), for “the territories to which this Act extends” substitute “India” ;

(b) After sub – section (2), insert –

“(3) Any probate or letters of administration granted by the High Court for the State of Jammu and Kashmir before the commencement of the Central Laws (Extension to Jammu and Kashmir) Act, 1968 shall, after such commencement, be as effective as if such probate or letters of administration had been granted under this section.”

Omit section 21.

Section 37. (a) In clause (a), for “to which this Act extends”, substitute “in India” ;

(b) Omit “or in the State of Jammu and Kashmir”.

Section 56. For “the territories to which this Act extends” and for “the said territories”, substitute ” India”.

Bydeb

The Company Secretaries Act, 1980

PREAMBLE

(Act No. 56 of 1980)

An Act to make provision for the regulation and development of the profession of Company Secretaries.

Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows :-

1. SHORT TITLE, EXTENT AND COMMENCEMENT

[Act No.56 of 1980]

[10th December, 1980]

An Act to make provision for the regulation and development of the profession of Company Secretaries.

BE it enacted by Parliament in the Thirty-first Year of the Republic of India as follows:-

(1) This Act may be called the Company Secretaries Act, 1980.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

—————

1. Came into force on 1st January, 1981, vide S.O. 989(E), dated 27th December, 1980.

2. DEFINITIONS AND INTERPRETATION

(1) In this Act, unless the context otherwise requires, –

(a) “Associate” means an Associate Member of the Institute;

(b) “Companies Act” means the Companies Act, 1956, (1 of 1956);

(c) “Company Secretary” means a person who is a member of the Institute;

(d) “Council” means the Council of the Institute constituted under section 9;

(e) “dissolved company” means the Institute of Company Secretaries of India registered under the Companies Act;

(f) “Fellow” means a Fellow Member of the Institute;

(g) “Institute” means the Institute of Company Secretaries of India constituted under this Act;

(h) “prescribed” means prescribed by regulations made under this Act;

(i) “President” means the President of the Council;

(j) “Register” means the Register of members of the Institute maintained under this Act;

1[(ja) “specified” means specified by rules made by the Central Government under this Act;

(jb) “Tribunal” means a Tribunal established under sub-section (1) of section 10B;]

(k) “Vice-President” means the Vice-President of the Council;

(l) “Year” means the period commencing on the 1st day of April of any year and ending on the 31st day of March of the succeeding year;

(m) Words and expressions used herein and not defined but defined in the Companies Act shall have the meanings respectively assigned to them in that Act.

(2) Save as otherwise provided in this Act, a member of the Institute shall be deemed “to be in practice” when, individually or in partnership with one or more members of the Institute in practice or in partnership with members of such other recognised professions as may be prescribed, he, in consideration of remuneration received or to be received,-

(a) Engages himself in the practice of the profession of Company Secretaries to, or in relation to, any company; or

(b) Offers to perform or performs services in relation to the promotion, forming, incorporation, amalgamation, reconstruction, reorganization or winding up of companies; or

(c) Offers to perform or performs such services as may be performed by –

(i) An authorised representative of a company with respect to filing, registering, presenting, attesting or verifying any documents (including forms, applications and returns) by or on behalf of the company,

(ii) A share transfer agent,

(iii) An issue house,

(iv) A share and stock broker,

(v) A secretarial auditor or consultant,

(vi) An adviser to a company on management, including any legal or procedural matter falling under the Capital Issues (Control) Act, 1947, (29 of 1947), the Industries (Development and Regulation) Act, 1951, (65 of 1951), the Companies Act, 1956 the Securities Contracts (Regulation) Act, 1956, (42 of 1956), any of the rules or bye-laws made by a recognised stock exchange, the Monopolies and Restrictive Trade Practices Act, 1969, (54 of 1969), the Foreign Exchange Regulation Act, 1973, (46 of 1973), or under any other law for the time being in force.

(vii) Issuing certificates on behalf of, or for the purposes of, a company; or

(d) Holds himself out to the public as a Company Secretary in practice; or

(e) Renders professional services or assistance with respect to matters of principle or detail relating to the practice of the profession of Company Secretaries, or

(f) Renders such other services as, in the opinion of the Council, are or may be rendered by a Company Secretary in practice; and the words “to be in practice” with their grammatical variations and cognate expressions, shall be construed accordingly.

————

1. Ins. by Act 8 of 2006, sec. 2 (w.e.f. 8-8-2006).

3. INCORPORATION OF THE INSTITUTE

(1) All persons whose names are entered in the Register of the dissolved company immediately before the commencement of this Act and all persons who may hereafter have their names entered in the Register to be maintained under this Act, so long as they continue to have their names borne on the Register to be maintained under this Act, are hereby constituted a body corporate by the name of the Institute of Company Secretaries of India and all such persons shall be known as members of the Institute.

(2) The Institute shall have perpetual succession and a common seal and shall have power to acquire, hold and dispose of property, movable or immovable and shall by its name sue or be sued.

4. ENTRY OF NAMES IN THE REGISTER

(1) Any of the following persons shall be entitled to have his name entered in the Register, namely :-

(a) Any person who immediately before the commencement of this Act was an Associate or a Fellow (including an Honorary Fellow) of the dissolved company;

(b) Any person who is a holder of the Diploma in Company Secretary ship awarded by the Government of India;

(c) Any person who has passed the examinations conducted by the dissolved company and has completed training either as specified by the dissolved company or as prescribed by the Council, except any such person who is not a permanent resident of India;

(d) Any person who has passed such examination and completed such training, as may be prescribed for membership of the Institute;

(e) Any person who has passed such other examination and completed such other training without India as is recognised by the Central Government or the Council as being equivalent to the examination and training prescribed under this Act for membership of the Institute :

Provided that in the case of any person belonging to any of the classes mentioned in this sub-section who is not permanently residing in India, the Central Government or the Council may impose such further conditions as it may deem to be necessary or expedient in the public interest.

(2) Every person belonging to the class mentioned in clause (a) or clause (b) of sub-section (1) shall have his name entered in the Register without the payment of any entrance fee.

1(3) Every person belonging to any of the classes mentioned in clauses (c), (d) and (e) of sub-section (1) shall have his name entered in the Register on application being made and granted in the prescribed manner and on payment of prescribed entrance fee, which shall not exceed four hundred rupees in any case.

(4) The Central Government may take such steps as may be necessary for the purpose of having the names of all persons belonging to the classes mentioned in clauses (a) and (b) of sub-section (1) entered in the Register at the commencement of this Act.

(5) Notwithstanding anything contained in this section, the Council may confer on any person Honorary Fellow Membership, if the Council is of the opinion that such person has made a significant contribution to the profession of Company Secretaries and thereupon the Council shall enter the name of such person in the Register but such person shall not have any voting rights in any election or meetings of the Institute and shall not also be required to pay any fee to the Institute.

—————

1. Subs. by by Act 8 of 2006, sec. 3, for sub-section (3) (w.e.f. 8-8-2006). Sub-section (3), before substitution, stood as under:

 “(3) Every person belonging to any of the classes mentioned in clauses (c), (d) and (e) of sub-section (1) shall have his name entered in the Register on application being made and granted in the prescribed manner and on payment of prescribed entrance fee, which shall not exceed four hundred rupees in any case.”

5. ASSOCIATES AND FELLOWS

(1) The members of the Institute shall be divided into two classes designated respectively as Associates and Fellows.

(2) Any person other than a person to whom the provisions of sub-section (4) apply, shall, on his name being entered in the Register, be deemed to have become an Associate and as long as his name remains so entered, shall be entitled to use the letters “A.C.S.” after his name to indicate that he is an Associate.

1(3) A person, being an Associate who has been in continuous practice in India as a Company Secretary for at least five years and a person who has been an Associate for a continuous period of not less than five years and who possesses such qualifications or practical experience as the Council may prescribe with a view to ensuring that he has experience equivalent to the experience normally acquired as a result of continuous practice for a period of five years as a Company Secretary shall, on payment of the prescribed entrance fee, which shall not exceed four hundred rupees in any case, and on application made and granted in the prescribed manner, be entered in the Register as a Fellow.

Explanation I : For the purposes of this sub-section, a person shall be deemed to have practised in India for any period for which he has held a certificate of practice under section 6, notwithstanding that he did not actually practise during that period.

Explanation II : In computing the period during which a person has been an Associate of the Institute, there shall be included any continuous period during which the person has been an Associate of the dissolved company immediately before he became an Associate of the Institute.

(4) Any person who was a Fellow of the dissolved company and who is entitled to have his name entered in the Register under clause (a) of sub-section (1) of section 4, shall be entered in the Register as a Fellow.

(5) Any person whose name is entered in the Register as a Fellow shall, so long as his name remains so entered, be entitled to use the letters “F.C.S.” after his name to indicate that he is a Fellow.

————

1. Subs. by Act 8 of 2006, sec. 4, for sub-section (3) (w.e.f. 8-8-2006). Sub-section (3), before substitution, stood as under:

 “(3) A person, being an Associate who has been in continuous practice in India as a Company Secretary for at least five years and a person who has been an Associate for a continuous period of not less than five years and who possesses such qualifications or practical experience as the Council may prescribe with a view to ensuring that he has experience equivalent to the experience normally acquired as a result of continuous practice for a period of five years as a Company Secretary shall, on payment of the prescribed entrance fee, which shall not exceed four hundred rupees in any case, and on application made and granted in the prescribed manner, be entered in the Register as a Fellow.

Explanation I.—For the purposes of this sub-section, a person shall be deemed to have practised in India for any period for which he has held a certificate of practice under section 6, notwithstanding that he did not actually practise during that period.

Explanation II.—In computing the period during which a person has been an Associate of the Institute, there shall be included any continuous period during which the person has been an Associate of the dissolved company immediately before he become an Associate of the Institute.”

6. CERTIFICATE OF PRACTICE

(1) No member of the Institute shall be entitled to practise, whether in India or elsewhere, unless he has obtained from the Council a certificate of practice.

1[(2) A member who desires to be entitled to practise shall make an application in such form and pay such annual fee, for his certificate as may be determined, by notification, by the Council, which shall not exceed rupees three thousand, and such fee shall be payable on or before the 1st day of April in each year:

Provided that the Council may with the prior approval of the Central Government, determine the fee exceeding rupees three thousand, which shall not in any case exceed rupees six thousand.]

2[(3) The certificate of practice obtained under sub-section (1) may be cancelled by the Council under such circumstances as may be prescribed.]

—————

1. Subs. by Act 8 of 2006, sec. 5, for sub-section (2) (w.e.f. 8-8-2006). Sub-section (2), before substitution, stood as under:

 “(2) A member who desires to be entitled to practise shall make an application in such form and pay such annual fee, for his certificate as may be prescribed which shall not exceed two hundred rupees in any case, and such fee shall be payable on or before the 1st day of April in each year.”

2. Ins. by Act 8 of 2006, sec. 5 (w.e.f. 8-8-2006).

7. MEMBERS TO BE KNOWN AS COMPANY SECRETARIES

Every member of the Institute in practice shall, and any other member may, use the designation of a Company Secretary and no member using such designation shall use any other description, whether in addition thereto or in substitution therefore :

Provided that nothing in this section shall be deemed to prohibit any such member from adding any other description or letters to his name, if entitled thereto, to indicate membership of such other institute whether in India or elsewhere as may be recognised in this behalf by the Council or any other qualification that he may possess, or to prohibit a firm, all the partners of which are members of the Institute and in practice, from being known by its firm name as Company Secretaries.

8. DISABILITIES

Notwithstanding anything contained in section 4, a person shall not be entitled to have his name entered in, or borne on, the Register if he –

(a) Has not attained the age of twenty-one years at the time of his application for the entry of his name in the Register; or

(b) Is of unsound mind and stands so adjudged by a competent court; or

(c) Is an undischarged insolvent; or

(d) Being a discharged insolvent, has not obtained from the court a certificate stating that his insolvency was caused by misfortune without any misconduct on his part; or

(e) Has been convicted by a competent court, whether within or without India, of an offence involving moral turpitude and punishable with imprisonment or of an offence, not of a technical nature, committed by him in his professional capacity unless in respect of the offence committed he has either been granted a pardon or, on an application made by him in this behalf, the Central Government has, by an order in writing, removed the disability; or

(f) Has been removed from membership of the Institute on being found on inquiry to have been guilty of professional or other misconduct :

Provided that a person who has been removed from membership for a specified period shall not be entitled to have his name entered in the Register until the expiry of such period.

9. CONSTITUTION OF THE COUNCIL OF THE INSTITUTE

(1) There shall be a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it by or under this Act.

1[(2) The Council shall be composed of the following persons, namely:—

(a) not more than fifteen persons elected by the members of the Institute, from amongst the Fellows of the Institute chosen in such manner and from such regional constituencies as may be specified:

Provided that a Fellow of the Institute, who has been found guilty of any professional or other misconduct and whose name is removed from the Register or has been awarded penalty of fine, shall not be eligible to contest the election,—

(i) in case of misconduct falling under the First Schedule of this Act, for a period of three years;

(ii) in case of misconduct falling under the Second Schedule of this Act, for a period of six years,

from the completion of the period of removal of name from the Register or payment of fine, as the case may be;

(b) not more than five persons nominated in the specified manner by the Central Government.]

2[(3) No person holding a post under the Central Government or a State Government shall be eligible for election to the Council under clause (a) of sub-section (2).

(4) No person who has been auditor of the Institute shall be eligible for election to the Council under clause (a) of sub-section (2) for a period of three years after he ceases to be an auditor.]

Comments

For the management of the affairs of the Institute of Company Secretaries, there shall be a Council of the Institute. It shall be composed of (i) not more than fifteen persons elected by the members of the institute, from amongst the Fellows of the Institute chosen in specified manner from the specified regional constituencies; (ii) not more than five persons nominated in the specified manner by the Central Government. No person holding a post under the Central Government or a State Government and no person who has been auditor of the Institute shall be eligible for election to the Council.

—————

1. Subs. by Act 8 of 2006, sec. 6, for sub-section (2) (w.e.f. 5-9-2006). Sub-section (2), before substitution, stood as under:

“(2) The Council shall be composed of—

(a) not more than twelve persons elected by members of the Institute from amongst the Fellows chosen in such manner and from such regional constituencies as may be notified in this behalf by the Central Government in the Official Gazette; and

(b) not more than four persons nominated by the Central Government.”

2. Ins. by Act 8 of 2006, sec. 6 (w.e.f. 5-9-2006).

10. Re-election or re-nomination to Council.—

1[10. Re-election or re-nomination to Council.—A member of the Council, elected or nominated under sub-section (2) of section 9, shall be eligible for re-election or, as the case may be, re-nomination:

Provided that no member shall hold the office for more than two consecutive terms:

Provided further that a member of the Council, who is or has been elected as President under sub-section (1) of section 12, shall not be eligible for election or nomination as a member of the Council.]

Comments

A member of the Council, elected or nominated shall be eligible for re-election or re-nomination. Provided that no member shall hold office for more than two consecutive terms. A member, who has been elected as President of the Council shall not be eligible for section or nomination.

—————

1. Subs. by Act 8 of 2006, sec. 7, for sub-section 10 (w.e.f. 8-8-2006). Section 10, before substitution, stood as under:

“10. Mode of election to the Council.—(1) Elections under clause (a) of sub-section (2) of section 9 shall be conducted in the prescribed manner.

(2) Where any dispute arises regarding any such election, the matter shall be referred by the Council to a Tribunal appointed by the Central Government in this behalf and the decision of such Tribunal shall be final:

Provided that no such reference shall be made except on an application made to the Council by an aggrieved party within thirty days from the date of the declaration of the result of the election.

(3) The expenses of the Tribunal shall be borne by the Council.

(4) Notwithstanding anything contained in this section and in Chapter IX, the Council of the dissolved company shall, on the commencement of this Act, become the Council of the Institute and shall function as such—

(i) for a period of two years from such commencement, or

(ii) till the Council is constituted in accordance with the provisions of sub-section (2) of section 9,

whichever is earlier.

Explanation.—For the purposes of this sub-section the Council shall be deemed to have been constituted in accordance with the provisions of sub-section (2) of section 9 with effect from such date not being later than thirty days from the date on which the results of the first elections, under clause (a) of the said sub-section (2) are announced as the Central Government may notify in the Official Gazette.”

10A. Settlement of disputes regarding election.—

1[10A. Settlement of disputes regarding election.—In case of any dispute regarding any election under clause (a) of sub-section (2) of section 9, the aggrieved person may make an application within thirty days from the date of declaration of the result of election to the Secretary of the Institute, who shall forward the same to the Central Government.]

—————

1. Ins. by Act 8 of 2006, sec. 8 (w.e.f. 17-11-2006).

[10B. Establishment of Tribunal.—

1[10B. Establishment of Tribunal.—(1) On receipt of any application under section 10A, the Central Government shall, by notification, establish a Tribunal consisting of a Presiding Officer and two other Members to decide such dispute and the decision of such Tribunal shall be final.

(2) A person shall not be qualified for appointment,—

(a) as a Presiding Officer of the Tribunal unless he has been a member of the Indian Legal Service and has held a post in Grade I of the service for at least three years;

(b) as a Member unless he has been a member of the Council for at least one full term and who is not a sitting member of the Council or who has not been a candidate in the election under dispute; or

(c) as a Member unless he holds the post of a Joint Secretary to the Government of India or any other post under the Central Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India.

(3) The terms and conditions of service of the Presiding Officer and Members of the Tribunal, their place of meetings and allowances shall be such as may be specified.

(4) The expenses of the Tribunal shall be borne by the Council.]

Comments

The Central Government is to establish a Tribunal consisting of a Presiding Officer and two of the Members. No person shall be qualified for appointment (i) as a Presiding Officer unless he has been a member of the Indian Legal Service and has held a post in Grade I of the service for at least three years; (ii) as a Member unless he has been a member of the Council for at least one full terms and who is not a sitting member of the Council or who has not been a candidate in the election under dispute; or (iii) as a Member unless he holds the post of Joint Secretary to the Government of India or any other post under the Central Government carrying a pay which is not less then that of a Joint Secretary to the Government of India.

—————

1. Ins. by Act 8 of 2006, sec. 8 (w.e.f. 17-11-2006).

11. NOMINATION IN DEFAULT OF ELECTION

If the members of the Institute fail to elect any member under clause (a) of sub-section (2) of section 9 from any of the regional constituencies that may be notified under that clause, the Central Government may nominate any duly qualified person from such constituency to fill up the vacancy, and any person so nominated shall be deemed to be a duly elected member of the Council.

12. PRESIDENT AND VICE-PRESIDENT

(1) The Council at its first meeting shall elect two of its members to be respectively the President and the Vice-President thereof, and so often as the office of the President or the Vice-President falls vacant, the Council shall choose a person to be the President or the Vice-President, as the case may be:

Provided that the President of the Council of the dissolved company shall continue to hold such office after the commencement of this Act, until such time as a President is elected under the provisions of this sub-section.

(2) The President shall be the 1[Head] of the Council.

(3) The President or the Vice-President shall hold office for a period of one year from the date on which he is chosen but so as not to extend beyond his term of office as a member of the Council, and subject to his being a member of the Council at the relevant time, he shall be eligible for re-election 2[under sub-section (1)].

3[(4) On the expiration of the duration of the Council, or of the term of office of the President and the Vice-President thereof, the President and the Vice-President shall continue to hold office until such time as a new President and the Vice-President is elected and takes over charge of their duties.]

(5) In the event of the occurrence of any vacancy in the office of the President, the Vice-President shall act as President until the date on which a new President elected in accordance with the provisions of this section to fill such vacancy enters upon his office and when the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice-President shall discharge his functions until the date on which the President resumes his duties.

—————

1. Subs. by Act 8 of 2006, sec. 9, for “Chief Executive Authority” (w.e.f. 8-8-2006).

2. Ins. by Act 8 of 2006, sec. 9 (w.e.f. 8-8-2006).

3. Subs. by Act 8 of 2006, sec. 9, for sub-section (4) (w.e.f. 8-8-2006). Sub-section (4), before substitution, stood as under:

“(4) On the expiration of the duration of the Council, or of the term of office of the President thereof, the President shall continue to hold office until such time as a new President is elected and takes over charge of his duties.”

13. RESIGNATION OF MEMBERSHIP AND CASUAL VACANCIES

(1) Any member of the Council may at any time resign his membership by writing under his hand addressed to the President, and the seat of such member shall become vacant when such resignation is notified in the Official Gazette.

(2) A member of the Council shall be deemed to have vacated his seat if he is declared by the Council to have been absent without sufficient excuse from three consecutive meetings of the Council 1[or he has been found guilty of any professional or other misconduct and awarded penalty of fine] or of any of the Committees which has been constituted by the Council and of which he is a member or if his name is, for any cause, removed from the Register under the provisions of section 20.

(3) A casual vacancy in the office of a member of the Council shall be filled by fresh election from the constituency concerned or by nomination by the Central Government, as the case may be, and the person elected or nominated to fill the vacancy shall hold office until the dissolution of the Council :

Provided that no election shall be held to fill a casual vacancy occurring within 1one year prior to the date of the expiration of the term of the Council, but such a vacancy may be filled by nomination by the Central Government after consultation with the President of the Council.

(4) No act done by the Council shall be called in question on the ground merely of the existence of any vacancy in, or defect in the constitution of, the Council.

—————

1. Ins. by Act 8 of 2006, sec. 10 (w.e.f. 17-11-2006).

2. Subs. by Act 8 of 2006, sec. 10, for “six months” (w.e.f. 17-11-2006).

14. DURATION AND DISSOLUTION OF THE COUNCIL

(1) The duration of any Council constituted under this Act shall be1 four years from the date of its first meeting.

(2) Notwithstanding the expiration of the duration of a Council (hereafter in this sub-section referred to as the former Council), the former Council shall continue to exercise its functions under this Act until a new Council is constituted in accordance with the provisions of this Act and on such constitution the former Council shall stand dissolved.

—————

1. Subs. by Act 8 of 2006, sec. 11, for “three years”.

15. FUNCTIONS OF THE COUNCIL

1(1) The duty of carrying out the provisions of this Act shall be vested in the Council.

(2) In particular, and without prejudice to the generality of the foregoing power, the duties of the Council shall include –

(a) The prescribing of the standards for, and conduct of examinations for enrolment of candidates in the Register and of the fees therefore;

(b) The registration and training of students;

(c) The prescribing of qualifications for entry in the Register;

(d) The recognition of foreign qualifications and training for purposes of enrolment;

(e) The granting or refusal of certificates of practice under this Act;

(f) The maintenance and publication of a Register of persons qualified to practice as Company Secretaries;

(g) The levy and collection of fees from members, examinees and other persons;

(h) The removal of names from the Register and restoration to the Register of names which have been removed;

(i) The regulation and maintenance of the status and the standards of professional qualifications of members of the Institute;

(j) The carrying out, by granting financial assistance to persons other than members of the Council or in any other manner, of research in such matters of interest to Company Secretaries as may be prescribed;

(k) The maintenance in the prescribed manner of libraries and the publication in the prescribed manner of books and periodicals relating to management of companies and such allied subjects as may be prescribed;

(l) The granting of such financial or other assistance to students of the Institute as may be prescribed;

(m) The exercise of such disciplinary powers as may be prescribed.

—————

1. Subs. by Act 8 of 2006, sec. 12, for section 15 (w.e.f. 17-11-2006). Section 15, before substitution, stood as under:

“15. Functions of the Council.—(1) The duty of carrying out the provisions of this Act shall be vested in the Council.

(2) In particular, and without prejudice to the generality of the foregoing power, the duties of the Council shall include—

(a) the prescribing of the standards for, and conduct of examinations for enrolment of candidates in the Register and of the fees therefor;

(b) the registration and training of students;

(c) the prescribing of qualifications for entry in the Register;

(d) the recognition of foreign qualifications and training for purposes of enrolment;

(e) the granting or refusal of certificates of practice under this Act;

(f) the maintenance and publication of a Register of persons qualified to practise as Company Secretaries;

(g) the levy and collection of fees from members, examinees and other persons;

(h) the removal of names from the Register and restoration to the Register of names which have been removed;

(i) the regulation and maintenance of the status and the standards of professional qualifications of members of the Institute;

(j) the carrying out, by granting financial assistance to persons other than members of the Council or in any other manner, of research in such matters of interest to Company Secretaries as may be prescribed;

(k) the maintenance in the prescribed manner of libraries and the publication in the prescribed manner of books and periodicals relating to management of companies and such allied subjects as may be prescribed;

(l) the granting of such financial or other assistance to students of the Institute as may be prescribed;

(m) the exercise of such disciplinary powers as may be prescribed.”

15A. Functions of Institute.—

1[15A. Functions of Institute.—The functions of the Institute shall include—

(a) the examination of candidates for enrolment;

(b) the regulation of training of students;

(c) the maintenance and publication of a Register of persons qualified to practice as Company Secretaries;

(d) collection of fees from members, examinees and other persons;

(e) subject to the orders of the appropriate authorities under this Act, the removal of names from the Register and the restoration to the Register of names which have been removed;

(f) the maintenance of a library and publication of books and periodicals relating to management of companies and allied subjects;

(g) the conduct of elections to the Council of the Institute; and

(h) the granting or refusal of certificates of practice as per guidelines issued by the Council.]

—————

1. Ins. by Act 8 of 2006, sec. 13 (w.e.f. 17-11-2006).

15B. Imparting education by Universities and other bodies.

1[15B. Imparting education by Universities and other bodies.—(1) Subject to the provisions of this Act, any Universities established by law or any body affiliated to the Institute, may impart education on the subjects covered by the academic courses of the Institute.

(2) The Universities or bodies referred to in sub-section (1) shall, while awarding degree, diploma or certificate or bestowing any designation, ensure that the award or designation do not resemble or is not identical to one awarded by the Institute.

(3) Nothing contained in this section shall enable a University or a body to adopt a name or nomenclature which is in any way similar to that of the Institute.]

—————

1. Ins. by Act 8 of 2006, sec. 13 (w.e.f. 17-11-2006).

16. STAFF, REMUNERATION AND ALLOWANCES

1(1) For the efficient performance of its duties and functions, the Council shall appoint a Secretary who shall be a member of the Institute and may –

(a) Appoint such other persons on the staff of the Institute as it deems necessary;

(b) Prescribe the terms and conditions of service and the scales of pay of the Secretary and other employees of the Institute, including persons who have become employees of the Institute under section 33;

(c) Fix the allowances of the President, Vice-President and other members of the Council and its Committees.

(2) The Secretary of the Institute shall be entitled to participate in the meetings of the Council and the Committees thereof but shall not be entitled to vote thereat.

—————

1. Subs. by Act 8 of 2006, sec. 14, for section 16 (w.e.f. 17-11-2006). Section 16, before substitution, stood as under:

“16. Staff, remuneration and allowances.—(1) For the efficient performance of its duties and functions, the Council shall appoint a Secretary who shall be a member of the Institute and may—

(a) appoint such other persons on the staff of the Institute as it deems necessary;

(b) prescribe the terms and conditions of service and the scales of pay of the Secretary and other employees of the Institute, including persons who have become employees of the Institute under section 33;

(c) fix the allowances of the President, Vice-President and other members of the Council and its Committees.

(2) The Secretary of the Institute shall be entitled to participate in the meetings of the Council and the Committees thereof but shall not be entitled to vote thereat.”

17. COMMITTEES OF THE COUNCIL

(1) The Council shall constitute from amongst its members of the following Standing Committees, namely:—

(a) an Executive Committee;

1[(b) a Finance Committee; and]

(c) an Examination Committee.

(2) The Council may also constitute a Training and Educational Facilities Committee, Professional Research and Publications Committee and such other Committees from amongst its members as it deems necessary for the purpose of carrying out the provisions of this Act.

2[(3) Each of the Standing Committees shall consist of the President and the Vice-President ex officio, and minimum of three and maximum of five members to be elected by the Council from amongst its members.]

3[***]

(6) Notwithstanding anything contained in this section, any Committee formed under sub-section (2) may, with the sanction of the Council, co-opt such other members of the Institute not exceeding 4[one-thirds of the total membership of the Committee] as the Committee thinks fit, and any member so co-opted shall be entitled to exercise all the rights of a member of the Committee.

(7) Every Committee constituted under this section shall elect its own Chairman:

Provided that—

(i) where the President is a member of such Committee, he shall be the Chairman of such Committee, and in his absence, the Vice-President, if he is a member of such Committee, shall be its Chairman; and

(ii) where the President is not a member of such Committee, but the Vice-President is a member, he shall be its Chairman.

(8) The Standing Committees and other Committees formed under this section shall exercise such functions and be subject to such conditions in the exercise thereof as may be prescribed.

—————

1. Subs. by Act 8 of 2006, sec. 15, for clause (b) (w.e.f. 17-11-2006). Clause (b), before substitution, stood as under:

“(b) a Disciplinary Committee; and”

2. Subs. by Act 8 of 2006, sec. 15, for sub-section (3) (w.e.f. 17-11-2006). Sub-section (3), before substitution, stood as under:

“(3) The Executive Committee shall consist of the President, and the Vice-President, ex officio, and three other members of the Council elected by the Council.”

3. Sub-sections (4) and (5) omitted by Act 8 of 2006, sec. 15 (w.e.f. 17-11-2006). Sub-sections (4) and (5), before omission, stood as under:

“(4) The Disciplinary Committee shall consist of the President, ex-officio, one member to be nominated by the Central Government from amongst the members nominated to the Council by that Government and one member to be elected by the Council.

(5) The Examination Committee shall consist of the President or the Vice-President, ex-officio, as the Council may decide, and two other members of the Council elected by the Council.”

4. Sub. by Act 8 of 2006, sec. 15, for “two thirds of the total membership of the Committee” (w.e.f. 17-11-2006).

18. FINANCES OF THE COUNCIL

(1) There shall be established a fund under the management and control of the Council into which shall be paid all moneys (including donations and grants) received by the Council and out of which shall be met all expenses including any donations made and liabilities properly incurred by the Council.

(2) The Council may invest any money for the time being standing to the credit of the fund in any Government security or in any other security approved by the Central Government.

1(3) The Council shall keep proper accounts of the funds distinguishing capital from revenue.

(4) The annual accounts of the Council shall be subject to audit by a Chartered Accountant in practice within the meaning of the Chartered Accountants Act, 1949, (38 of 1949), to be appointed annually by the Council :

(5) The annual accounts of the Council shall be prepared in such manner as may be prescribed and be subject to audit by a Chartered Accountant in practice to be appointed annually by the Council:

Provided that no member of the Council or a person who has been a member of the Council during the last four years or a person who is in partnership with such member shall be eligible for appointment as an auditor under this sub-section:

Provided further that, in the event it is brought to the notice of the Council that the accounts of the Council do not represent a true and fair view of its finances, them the Council may itself cause a special audit to be conducted:

Provided also that if such information, that the accounts of the Council do not represent a true and fair view of its finances, is sent to the Council by the Central Government then, the Council may, wherever appropriate cause a special credit or take such other action as it considers necessary and shall furnish an action taken report on it to the Central Government.]

2[(5A) As soon as may be practicable at end of each year, the Council shall circulate the audited accounts to its members at least fifteen days in advance and consider and approve these accounts in a special meeting convened for the purpose.

(5B) The Council shall cause to be published in the Gazette of India not later than the 30th day of September of the year next following, a copy of the audited accounts and the Report of the Council for that year duly approved by the Council and copies of the said accountants and Report shall be forwarded to the Central Government and to all members of the Institute.]

(6) Subject to such directions as the Central Government may, by order in writing, make in this behalf, the Council may borrow –

(a) Any money required for meeting its liabilities on capital account on the security of the fund or on the security of any other assets for the time being belonging to it; or

(b) For the purpose of meeting current liabilities pending the receipt of income by way of temporary loan or over-draft.

—————

1. Subs. by Act 8 of 2006, sec. 16, for sub-sections (3), (4) and (5) (w.e.f. 17-11-2006). Sub-sections (3), (4) and (5), before substitution, stood as under:

“(3) The Council shall keep proper accounts of the funds distinguishing capital from revenue.

(4) The annual accounts of the Council shall be subject to audit by a Chartered Accountant in practice within the meaning of the Chartered Accountants Act, 1949 (38 of 1949), to be appointed annually by the Council:

Provided that no member of the Council who is a Chartered Accountant or a person who is in partnership with such member shall be eligible for appointment as an auditor under this sub-section.

(5) As soon as may be practicable at the end of each year, but not later than the 30th day of September of the year next following, the Council shall cause to be published in the Gazette of India a copy of the audited accounts and the report of the Council for that year and copies of the said accounts and report shall be forwarded to the Central Government and to all the members of the Institute.”

2. Ins. by Act 8 of 2006, sec. 16 (w.e.f. 17-11-2006).

19. REGISTER

(1) The Council shall maintain in the prescribed manner a Register of the members of the Institute.

(2) The Register shall include the following particulars about every member of the Institute, namely :-

(a) His full name, date of birth, domicile, residential and professional addresses;

(b) The date on which his name is entered in the Register;

(c) His qualifications;

(d) Whether he holds a certificate of practice; and

(e) Any other particulars which may be prescribed.

(3) The Council shall cause to be published in such manner as may be prescribed a list of members of the Institute as on the 1st day of April of each year, and shall, if requested to do so by any such member, send him a copy of such list 1[on payment of such amount as may be prescribed].

2[(4) Every member of the Institute shall, on his name being entered in the Register, pay such annual membership fee as may be determined, by notification, by the Council, which shall not exceed rupees five thousand:

Provided that the Council may with the prior approval of the Central Government, determine the fee exceeding rupees five thousand which shall not in any case exceed rupees ten thousand.]

—————

1. Ins. by Act 8 of 2006, sec. 17 (w.e.f. 17-11-2006).

2. Subs. by Act 8 of 2006, sec. 17, for sub-section (4) (w.e.f. 8-8-2006). Sub-section (4), before substitution, stood as under:

“(4) Every member of the Institute shall, on his name being entered in the Register, pay such annual membership fee differing in amount according as he is an Associate or a Fellow as may be prescribed, which shall not exceed three hundred rupees in any case.”

20. REMOVAL FROM THE REGISTER

(1) The Council may remove from the Register the name of any member of the Institute-

(a) Who is dead; or

(b) From whom a request has been received to that effect; or

(c) Who has not paid any prescribed fee required to be paid by him; or

(d) Who is found to have been subject at the time when his name was entered in the Register, or who at any time thereafter has become subject to any of the disabilities mentioned in section 8, or who for any other reason has ceased to be entitled to have his name borne on the Register.

(2) The Council shall remove from the Register the name of any member in respect of whom an order has been passed under this Act removing him from membership of the Institute.

1[(3) If the name of any member has been removed from the Register under clause (c) of sub-section (1), on receipt of an application, his name may be entered again in the Register on payment of the arrears of annual fee and entrance fee along with such additional fee, as may be determined, by notification, by the Council, which shall not exceed rupees two thousand:

Provided that the Council may with the prior approval of the Central Government, determine the fee exceeding rupees two thousand, which shall not in any case exceed rupees four thousand.]

Comments

The Council has been empowered to remove the name of any member from the Register of the members of the Institute (i) who is dead; or (ii) from whom a request has been received to that effect; or (iii) who has not paid any prescribed fee required to be paid by him; or (iv) who is found to have been subject at the time where his name was entered in the Register, or who at any time thereafter has become subject to any disabilities mention in section 8, who for any other reason has ceased to be entitled to have his name borne on the Register. If the name of any member has been removed from the Register, on receipt of an application, his name may be entered again in the Register on payment of the arrears of annual fee and entrance fee along with such additional fee as may be determined by the Council, which shall not exceed rupees two thousand.

—————

1. Ins. by Act 8 of 2006, sec. 18 (w.e.f. 17-11-2006).

21. Disciplinary Directorate.

1[21. Disciplinary Directorate.—(1) The Council shall, by notification, establish a Disciplinary Directorate headed by an officer of the Institute designated as Director (Discipline) and such other employees for making investigations in respect of any information or complaint received by it.

(2) On receipt of any information or complaint alongwith the prescribed fee, the Director (Discipline) shall arrive at a prima facie opinion on the occurrence of the alleged misconduct.

(3) Where the Director (Discipline) is of the opinion that a member is guilty of any professional or other misconduct mentioned in the First Schedule, he shall place the matter before the Board of Discipline and where the Director (Discipline) is of the opinion that a member is guilty of any professional or other misconduct mentioned in the Second Schedule or in both the Schedules, he shall place the matter before the Disciplinary Committee.

(4) In order to make investigations under the provisions of this Act, the Disciplinary Directorate shall follow such procedure as may be specified.

(5) Where a complainant withdraws the complaint, the Director (Discipline) shall place such withdrawal before the Board of Discipline or as the case may be, the Disciplinary Committee, and the said Board or Committee, if its is of the view that the circumstances so warrant, permit the withdrawal at any stage.]

—————

1. Subs. by Act 8 of 2006, sec. 19, for section 21 (w.e.f. 17-11-2006). Section 21, before substitution, stood as under:

“21. Procedure in inquiries relating to misconduct of members of the Institute.—

(1) Where on receipt of information by, or a complaint made to it, the Council is prima facie of opinion that any member of the Institute has been guilty of any professional or other misconduct, the Council shall refer the case to the Disciplinary Committee constituted under section 17, and the Disciplinary Committee shall thereupon hold such inquiry and in such manner as may be prescribed and shall report the result of its inquiry to the Council.

(2) If on receipt of such report the Council finds that the member of the Institute is not guilty of any professional or other misconduct, it shall record its finding accordingly and direct that the proceedings shall be filed, or the complaint shall be dismissed as the case may be.

(3) If on receipt of such report the Council finds that the member of the Institute is guilty of any professional or other misconduct, it shall record its finding accordingly, and shall proceed in the manner laid down in the succeeding sub-sections.

(4) Where the finding is that a member of the Institute has been guilty of a professional misconduct specified in the First Schedule, the Council shall afford to the member an opportunity of being heard before orders are passed against him on the case, and may thereafter make any of the following orders, namely:—

(a) reprimand the member;

(b) remove the name of the member from the Register for such period, not exceeding five years, as the Council thinks fit:

Provided that where the Council is of opinion that the case is one in which the name of the member ought to be removed from the Register for a period exceeding five years or permanently, it shall not make any order referred to in clause (a) or clause (b), but shall forward the case to the High Court with its recommendations thereon.

(5) Where the misconduct in respect of which the Council has found any member of the Institute guilty is a misconduct specified in the Second Schedule, it shall forward the case to the High Court with its recommendations thereon.

(6) On receipt of any case under sub-section (4) or sub-section (5), the High Court shall fix a date for the hearing of the case and shall cause notice of the date so fixed to be given to the member of the Institute concerned, the Council and to the Central Government, and shall afford such member, the Council and the Central Government an opportunity of being heard and may thereafter make any of the following orders, namely:—

(a) direct that the proceedings be filed, or dismiss the complaint, as the case may be;

(b) reprimand the member;

(c) remove him from membership of the Institute either permanently or for such period as the High Court thinks fit;

(d) refer the case to the Council for further inquiry and report.

(7) Where it appears to the High Court that the transfer of any case pending before it to another High Court will promote the ends of justice or tend to the general convenience of the parties, it may so transfer the case, subject to such conditions, if any, as it thinks fit to impose, and the High Court to which such case is transferred shall deal with it as if the case has been forwarded to it by the Council.

Explanation I.—In this section, “High Court” means the highest civil court of appeal, not including the Supreme Court, exercising jurisdiction in the area in which the person whose conduct is being inquired into is in service or carries on his profession or has his principal place of profession at the commencement of the inquiry:

Provided that where the cases relating to two or more members of the Institute have to be forwarded by the Council to different High Courts, the Central Government shall, having regard to the ends of justice and the general convenience of the parties, determine which of the High Courts to the exclusion of others shall hear the cases against all the members.

Explanation II.—For the purposes of this section, “member of the Institute” includes a person who was a member of the Institute on the date of the alleged misconduct although he has ceased to be a member of the Institute at the time of the inquiry.

(8) For the purposes of any inquiry under this section, the Council and the Disciplinary Committee referred to in sub-section (1), shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) the discovery and production of any document; and

(c) receiving evidence on affidavits.”

1A. Board of Discipline.

1[21A. Board of Discipline.—(1) The Council shall constitute a Board of Discipline consisting of—

(a) a person with experience in law and having knowledge of the disciplinary matters and the profession, to be its presiding officer;

(b) two members one of whom shall be a member of the Council elected by the Council and the other member shall be the person designated under clause (c) of sub-section (1) of section (16);

(c) the Director (Discipline) shall function as the Secretary of the Board.

(2) The Board of Discipline shall follow summary disposal procedure in dealing with all the cases before it.

(3) Where the Board of Discipline is of the opinion that a member is guilty of a professional or other misconduct mentioned in the First Schedule, it shall afford to the member an opportunity of being heard before making any order against him and may thereafter take any one or more of the following actions, namely:—

(a) reprimand the member;

(b) remove the name of the member from the Register up to a period of three months;

(c) impose such fine as it may think fit which may extend to rupees one lakh.

(4) The Director (Discipline) shall submit before the Board of Discipline all information and complaints where he is of the opinion that there is no prima facie case and the Board of Discipline may, if it agrees with the opinion of the Director (Discipline), close the matter or in case of disagreement, may advise the Director (Discipline) to further investigate the matter.]

—————

1. Ins. by Act 8 of 2006, sec. 20 (w.e.f. 17-11-2006).

21B. Disciplinary Committee.

1[[21B. Disciplinary Committee.—(1) The Council shall constitute a Disciplinary Committee consisting of the President or the Vice-President of the Council as the Presiding Officer and two members to be elected from amongst the members of the Council and two members to be nominated by the Central Government from amongst the persons of eminence having experience in the field of law, economics, business, finance or accountancy:

Provided that the Council may constitute more Disciplinary Committees as and when it considers necessary.

(2) The Disciplinary Committee, while considering the cases placed before it, shall follow such procedure as may be specified.

(3) Where the Disciplinary Committee is of the opinion that a member is guilty of a professional or other misconduct mentioned in the Second Schedule or both the First Schedule and the Second Schedule, it shall afford to the member an opportunity of being heard before making any order against him and may thereafter take any one or more of the following actions, namely:—

(a) reprimand the member;

(b) remove the name of the member from the Register permanently or for such period, as it thinks fit;

(c) impose such fine as it may think fit, which may extend to rupees five lakhs.

(4) The allowances payable to the members nominated by the Central Government shall be such as may be specified.]

————

[1. Ins. by Act 8 of 2006, sec. 20 (w.e.f. 17-11-2006).

21C. Authority, Disciplinary Committee, Board of Discipline and Director (Discipline) to have powers of civil court.

1[21C. Authority, Disciplinary Committee, Board of Discipline and Director (Discipline) to have powers of civil court.—For the purposes of an inquiry under the provisions of this Act, the Authority, the Disciplinary Committee, Board of Discipline and the Director (Discipline) shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) the discovery and production of any document; and

(c) receiving evidence on affidavit.

Explanation.—For the purposes of sections 21, 21A, 21B, 21C and 22, “member of the Institute” includes a person who was a member of the Institute on the date of the alleged misconduct although he has ceased to be a member of the Institute at the time of the inquiry.]

—————

1. Ins. by Act 8 of 2006, sec. 20 (w.e.f. 17-11-2006).

21D. Transitional provisions.—

1[21D. Transitional provisions.—All complaints pending before the Council or any inquiry initiated by the Disciplinary Committee or any reference or appeal made to a High Court prior to the commencement of the Company Secretaries (Amendment) Act, 2005 shall continue to be governed by the provisions of this Act, as if this Act had not been amended by the Company Secretaries (Amendment) Act, 2005.]

—————

1. Ins. by Act 8 of 2006, sec. 20 (w.e.f. 17-11-2006).

22. PROFESSIONAL MISCONDUCT DEFINED

For the purposes of this Act, the expression, “professional misconduct” shall be deemed to include any act or omission specified in any of the Schedules, but nothing in this section shall be construed to limit or abridge in any way the power conferred or duty cast on the Council under sub-section (1) of section 21 to inquire into the conduct of any member of the Institute under any other circumstances.

—————

1. Subs. by Act 8 of 2006, sec. 21, for section 22 (w.e.f. 17-11-2006). Section 22, before substitution, stood as under:

‘22. Professional misconduct defined.—For the purposes of this Act, the expression “professional misconduct” shall be deemed to include any act or omission specified in any of the Schedules, but nothing in this section shall be construed to limit or abridge in any way the power conferred or duty cast on the Council under sub-section (1) of section 21 to inquire into the conduct of any member of the Institute under any other circumstances.’

22A. Constitution of Appellate Authority.—

1[22A. Constitution of Appellate Authority.—(1) The Appellate Authority constituted under sub-section (1) of section 22A of the Chartered Accountants Act, 1949 (38 of 1949), shall be deemed to be the Appellate Authority for the purposes of this Act subject to the modification that for clause (b) of said sub-section (1), the following clause had been substituted, namely:—

“(b) the Central Government shall, by notification appoint two part-time members from amongst the persons who have been members of the Council of the Institute of Company Secretaries of India for at least one full term and who is not a sitting member of the Council.”]

—————

1. Ins. by Act 8 of 2006, sec. 22 (w.e.f. 17-11-2006).

22B. Term of office of members of Authority.—

1[22B. Term of office of members of Authority.—A person appointed as a member shall hold office for a term of three years from the date on which he enters upon his office or until he attains the age of sixty-two years, whichever is earlier.]

—————

1. Ins. by Act 8 of 2006, sec. 22 (w.e.f. 17-11-2006).

[22C. Procedure, etc., of Authority.—

1[22C. Procedure, etc., of Authority.—The provisions of section 22C, section 22D and section 22F of the Chartered Accountants Act, 1949 (38 of 1949), shall apply to the Authority in relation to allowances and terms and conditions of service of its Chairperson and members, and in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Chartered Accountants Act, 1949.]

—————

1. Ins. by Act 8 of 2006, sec. 22 (w.e.f. 17-11-2006).

22D. Officers and other staff of Authority.—

1[22D. Officers and other staff of Authority.—(1) The Council shall make available to the Authority such officers and other staff members as may be necessary for the efficient performance of the functions of the Authority.

(2) The salaries and allowances and conditions of service of the officers and other staff members of the Authority shall be such as may be prescribed.]

—————

1. Ins. by Act 8 of 2006, sec. 22 (w.e.f. 17-11-2006).

22E. Appeal to Authority.

1[22E. Appeal to Authority.—(1) Any member of the Institute aggrieved by any order of the Board of Discipline or the Disciplinary Committee imposing on him any of the penalties referred to in sub-section (3) of section 21A and sub-section (3) of section 21B, may within ninety days from the date on which the order is communicated to him, prefer an appeal to the Authority:

Provided that the Director (Discipline) may also appeal against the decision of the Board of Discipline or the Disciplinary Committee to the Authority if so authorised by the Council, within ninety days:

Provided further that the Authority may entertain any such appeal after the expiry of the said period of ninety days, if it is satisfied that there was sufficient cause for not filing the appeal in time.

(2) The Authority may, after calling for the records of any case, revise any order made by the Board of Discipline or the Disciplinary Committee under sub-section (3) of section 21A and sub-section (3) of section 21B and may—

(a) confirm, modify or set aside the order;

(b) impose any penalty or set aside, reduce, or enhance the penalty imposed by the order;

(c) remit the case to the Board of Discipline or Disciplinary Committee for such further enquiry as the Authority considers proper in the circumstances of the case; or

(d) pass such other order as the Authority thinks fit:

Provided that the Authority shall give an opportunity of being heard to the parties concerned before passing any order.]

Comments

Any member of the Institute aggrieved by the order of the Board of Discipline or the Disciplinary Committee imposing on him the penalties may within ninety days from the date on which the order is communicated to him, prefer an appeal to the Authority.

—————

1. Ins. by Act 8 of 2006, sec. 22 (w.e.f. 17-11-2006).

23. CONSTITUTION AND FUNCTIONS OF REGIONAL COUNCILS

For the purpose of advising and assisting it on matters concerning its functions, the Council may constitute such Regional Councils as and when it deems fit for one or more of the regional constituencies that may be notified by the Central Government under clause (a) of sub-section (2) of section 9.

(2) The Regional Councils shall be constituted in such manner and exercise such functions as may be prescribed.

(3) Notwithstanding anything contained in this section, each Regional Council of the dissolved company shall, on the commencement of this Act, become the Regional Council of the Institute for the area for which it was functioning as a Regional Council immediately before such commencement and shall function as such –

(i) For a period of two years from such commencement, or

(ii) Till a Regional Council is constituted for such area in accordance with the provisions of this section, whichever is earlier.

24. PENALTY FOR FALSELY CLAIMING TO BE A MEMBER, ETC.

Subject to the provisions of section 7, any person who, –

(a) Not being a member of the Institute, –

(i) Represents that he is a member of the Institute; or

(ii) Uses the designation “Company Secretary”; or

(iii) Uses the letters “A.C.S.” or “F.C.S.” after his name; or

(b) Being a member of the Institute, but not having a certificate of practice, represents that he is in practice or practices as a Company Secretary,

Shall be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

25. PENALTY FOR USING NAME OF THE COUNCIL, OR AWARDING DEGREE OF COMPANY SECRETARY

(1) Save as otherwise provided in this Act, no person shall –

(a) Use a name or a common seal which is identical with the name or the common seal of the Institute or so nearly resembles it as to deceive or as is likely to deceive the public;

(b) Award any degree, diploma or certificate or bestow any designation which indicates or purports to indicate the position or attainment of any qualification or competence in Company Secretary ship similar to that of a member of the Institute; or

(c) Seek to regulate in any manner whatsoever the profession of Company Secretaries.

(2) Any person contravening the provisions of sub-section (1) shall, without prejudice to any other proceedings which may be taken against him, be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

(3) Nothing contained in this section shall apply to any University or other institution established by law or to any body affiliated to the Institute.

1[***]

—————

1. Sub-section (3) omitted by Act 8 of 2006, sec. 23 (w.e.f. 8-8-2006). Sub-section (3), before omission, stood as under:

“(3) Nothing contained in this section shall apply to any University or other institution established by law or to any body affiliated to the Institute.”

26. COMPANIES NOT TO ENGAGE IN COMPANY SECRETARY SHIP

(1) No company, whether incorporated in India or elsewhere, shall practice as Company Secretaries.

(2) Any company contravening the provisions of sub-section (1) shall be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with fine which may extend to five thousand rupees.

Comments

No company, whether incorporated in India or elsewhere, can practice as Company Secretaries. Contravention shall be punishable on first conviction with fine upto one thousand rupees, and on any subsequent conviction with fine upto five thousand rupees.

27. UNQUALIFIED PERSONS NOT TO SIGN DOCUMENTS

(1) No person other than a member of the Institute shall sign any document on behalf of a Company Secretary in practice or a firm of such Company Secretaries in his or its professional capacity.

1(2) Any person contravening the provisions of sub-section (1) shall, without prejudice, to any other proceedings which may be taken against him, be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

—————

1. Subs. by Act 8 of 2006, sec. 24, for sub-section (2) (w.e.f. 8-8-2006). Sub-section (2), before substitution, stood as under:

“(2) Any person contravening the provisions of sub-section (1) shall, without prejudice to any other proceedings which may be taken against him, be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both.”

28. OFFENCES BY COMPANIES

(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation : For the purposes of this section, –

(a) “Company” means any body corporate and includes a firm or other association of individuals; and

(b) “Director”, in relation to a firm, means a partner in the firm.

29. SANCTION TO PROSECUTE

No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government.

29A. Establishment of Quality Review Board.

1[29A. Establishment of Quality Review Board.—The Central Government shall, by notification, constitute a Quality Review Board consisting of a Chairperson and four other members.

(2) The Chairperson and members of the Board shall be appointed from amongst the persons of eminence having experience in the field of law, economics, business, finance or accountancy.

(3) Two members of the Board shall be nominated by the Council and other two members shall be nominated by the Central Government.]

Comments

The Central Government has been empowered to constitute a Quality Review Board consisting of a Chairman and four other members. The Chairman and members of the Board shall be appointed from amongst the persons of eminence having experience in the field of law, economics, business, finance or accountancy. Two members of the Board shall be nominated by the Council and other two members shall be nominated by the Central Government.

—————

1. Section 29A ins. by Act 8 of 2006, sec. 25 (w.e.f. 17-11-2006).

29B. Functions of Board.

1[29B. Functions of Board.—The Board shall perform the following functions, namely:—

(a) to make recommendations to the Council with regard to the quality of services provided by the members of the Institute;

(b) to review the quality of services provided by the members of the Institute including secretarial services; and

(c) to guide the members of the Institute to improve the quality of services and adherence to the various statutory and other regulatory requirements.]

Comments

The Quality Review Board has (i) to make recommendations to the Council with regard to the quality of services provided by the members of the Institute; (ii) to review the quality of services provided by the members of the Institute including secretarial services; and (iii) to guide the members of the Institute to improve the quality of services and adherence to the various statutory and other regulatory requirements.

—————

1. Section 29B ins. by Act 8 of 2006, sec. 25 (w.e.f. 17-11-2006).

29C. Procedure of Board.

1[29C. Procedure of Board.—The Board shall meet at such time and place and follow in its meetings such procedure as may be specified.]

—————

1. Section 29C ins. by Act 8 of 2006, sec. 25 (w.e.f. 17-11-2006).

[29D. Terms and conditions of service of Chairperson and members of Board and its expenditure.

1[29D. Terms and conditions of service of Chairperson and members of Board and its expenditure.—(1) The terms and conditions of service of the Chairperson and the members of the Board, and their allowances shall be such as may be specified.

(2) The expenditure of the Board shall be borne by the Council.]

—————

1. Section 29D ins. by Act 8 of 2006, sec. 25 (w.e.f. 17-11-2006).

30. APPEAL

1[30. Appeal.—[Rep. by the Company Secretaries (Amendment) Act, 2006 (8 of 2006), sec. 26 (w.e.f. 17-11-2006).]]

—————

1. Section 30, before repeal, stood as under:

‘30. Appeal.—(1) Any member of the Institute aggrieved by any order of the Council imposing on him any of the penalties referred to in clause (a) or clause (b) of sub-section (4) of section 21, may, within thirty days of the date on which the order is communicated to him, prefer an appeal to the High Court:

Provided that the High Court may entertain any such appeal after the expiry of the said period of thirty days, if it is satisfied that the member was prevented by sufficient cause from filing the appeal in time.

(2) The High Court may, on its own motion or otherwise, after calling for the records of any case, revise any order made by the Council under sub-section (2) or sub-section (4) of section 21 and may—

(a) confirm, modify or set aside the order;

(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;

(c) remit the case to the Council for such further enquiry as the High Court considers proper in the circumstances of the case;

(d) pass such other order as the High Court thinks fit:

Provided that no order of the Council shall be modified or set aside unless the Council has been given an opportunity of being heard and no order imposing or enhancing a penalty shall be passed unless the person concerned has been given an opportunity of being heard.

Explanation.—In this section, “High Court” and “member of the Institute” have the same meanings as in section 21.’

31. DISSOLUTION OF THE INSTITUTE OF COMPANY SECRETARIES OF INDIA REGISTERED UNDER THE COMPANIES ACT

On the commencement of this Act –

(a) The company known as the Institute of Company Secretaries of India registered under the Companies Act shall stand dissolved and thereafter no person shall make, assert or take any claims or demands or proceedings against the dissolved company or against any officer thereof in his capacity as such officer except in so far as may be necessary, for enforcing the provisions of this Act;

(b) The right of every member to, or in respect of, the dissolved company shall be extinguished, and thereafter no member of that company shall make, assert or take any claims or demands or proceedings in respect of that company except as provided in this Act.

32. TRANSFER OF ASSETS AND LIABILITIES OF THE DISSOLVED COMPANY TO THE INSTITUTE

(1) On the commencement of this Act, there shall be transferred to and vested in the Institute all the assets and liabilities of the dissolved company.

(2) The assets of the dissolved company shall be deemed to include all rights and powers, and all property, whether movable or immovable, of that company, including in particular, cash balances, reserve funds, investments, deposits and all other interests and rights in or arising out of such property as may be in the possession of the dissolved company and all books of accounts, papers or documents of the dissolved company; and the liabilities shall be deemed to include all debts, liabilities and obligations of whatever kind then existing of that company.

(3) All contracts, debts, bonds, agreements and other instruments of whatever nature to which the dissolved company is a party, subsisting or having effect immediately before the commencement of this Act, shall be of as full force and effect against or in favour of the Institute, as the case may be, and may be enforced as fully and effectively as if instead of the dissolved company, the Institute had been a party thereto.

(4) If, on the commencement of this Act, any suit, appeal or other legal proceeding of whatever nature by or against the dissolved company is pending, the same shall not abate, be discontinued or be in any way prejudicially affected by reason of the transfer to the Institute of the assets and liabilities of the dissolved company or of anything contained in this Act, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or against the Institute, in the same manner and to the same extent as it would or may be continued, prosecuted and enforced by or against the dissolved company if this Act had not been passed.

33. PROVISIONS RESPECTING EMPLOYEES OF THE DISSOLVED COMPANY

(1) Every person employed in the dissolved company and continuing in its employment immediately before the commencement of this Act shall, as from such commencement, become an employee of the Institute, shall hold his office or service therein by the same tenure and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity as he would have held the same under the dissolved company if this Act had not been passed, and shall continue to do so unless and until his employment in the Institute is terminated or until his remuneration, terms and conditions of employment are duly altered by the Institute.

(2) Notwithstanding anything contained in the Industrial Disputes Act, 1947, (14 of 1947), or in any other law for the time being in force, the transfer of the services of any employee of the dissolved company to the Institute shall not entitle any such employee to any compensation under that Act or other law, and no such claim shall be entertained by any court, tribunal or other authority.

34. ALTERATION IN THE REGISTER AND CANCELLATION OF CERTIFICATE

(1) Where an order is made under this Act reprimanding a member, record of the punishment shall be entered against his name in the Register.

(2) Where the name of any member is removed, the certificate of practice granted to him under this Act shall be recalled and cancelled.

35. DIRECTIONS OF THE CENTRAL GOVERNMENT

(1) The Central Government may, from time to time, issue such directions to the Council as in the opinion of the Central Government are conducive to the fulfillment of the objects of this Act and in the discharge of its functions, the Council shall be bound to carry out any such directions.

(2) Directions issued under sub-section (1) may include directions to the Council to make any regulations or to amend or revoke any regulations already made.

(3) If, in the opinion of the Central Government, the Council has persistently committed default in giving effect to the directions issued under this section, the Central Government may, after giving an opportunity to the Council to state its case, by order, dissolve the Council, where after a new Council shall be constituted in accordance with the provisions of this Act with effect from such date as may be specified by the Central Government.

(4) Where the Central Government passes an order under sub-section (3) dissolving the Council, it may, pending the constitution of a new Council in accordance with the provisions of this Act, authorise any person or body of persons to take over the management of the affairs of the Institute and to exercise such functions as may be specified in this behalf by the Central Government.

36. PROTECTION OF ACTION TAKEN IN GOOD FAITH

No suit, prosecution or other legal proceeding shall lie against the Central Government or the Council in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any regulations or orders made there under.

—————

1. Subs. by Act 8 of 2006, sec. 27, for section 36 (w.e.f. 17-11-2006). Section 36, before substitution, stood as under:

“36. Protection of action taken in good faith.—No suit, prosecution or other legal proceeding shall lie against the Central Government or the Council in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any regulations or orders made thereunder.”

36A. Members, etc. to be public servants.—

1[36A. Members, etc. to be public servants.—The Chairperson, Presiding Officer, members and other officers and employees of the Authority, Disciplinary Committee, Tribunal, Board, Board of Discipline or the Disciplinary Directorate shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).]

—————

1. Ins. by Act 8 of 2006, sec. 28 (w.e.f. 17-11-2006).

37. MAINTENANCE OF BRANCH OFFICES

(1) Where a Company Secretary in practice or a firm of such Company Secretaries has more than one office in India, each one of such offices shall be in the separate charge of a member of the Institute :

Provided that the Council may in suitable cases exempt any Company Secretary in practice or firm of such Company Secretaries from the operation of this sub-section.

(2) Every Company Secretary in practice or firm of such Company Secretaries maintaining more than one office shall send to the Council a list of offices and the persons in charge thereof and shall keep the Council informed of any changes in relation thereto.

38. RECIPROCITY

(1) Where any country, notified by the Central Government in this behalf in the Official Gazette, prevents persons of Indian domicile from becoming members of any institution similar to the Institute established under this Act or from practicing the profession of Company Secretary ship or subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to become a member of the Institute or practice the profession of Company Secretaries in India.

(2) Subject to the provisions of sub-section (1), the Council may prescribe the conditions, if any, subject to which foreign qualifications relating to Company Secretary ship shall be recognised for the purposes of entry in the Register.

39. POWER TO MAKE REGULATIONS

(1) The Council may, by notification in the Gazette of India, make regulations for the purpose of carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:—

(a) the professions that may be recognised under sub-section (2) of section 2 and 1[items (2)] and (4) of Part I of the First Schedule;

(b) the examinations and training for the purposes of clauses (c), (d) and (e) of sub-section (1) of section 4;

(c) the manner of making an application and granting thereof under sub-section (3) of section 4 or sub-section (3) of section 5;

(d) the fees payable under sub-section (3) of section 4, sub-section (3) of section 5, sub-section (2) of section 6, 2[***] sub-section (3) of section 15, sub-section (4) of section 19 and clause (c) of sub-section (1) of section 20;

(e) the qualifications and practical experience for the purposes of sub-section (3) of section 5;

(f) the form in which an application may be made under sub-section (2) of section 6;

3[***]

(h) the transaction of business by the Council for the discharge of its functions under section 15 and other provisions of this Act, the place at which and the intervals at which the Council shall hold its meetings for the transaction of such business, the procedure to be followed at such meetings and all other matters connected therewith;

(i) the regulation and maintenance of the status and standards of professional qualifications of members of the Institute, as required by 4[clause (g)] of sub-section (2) of section 15;

(j) the carrying out of research in matters of interest to Company Secretaries as required by 5[clause (h)] of sub-section (2) of section 15;

(k) the maintenance of libraries and publication of books and periodicals relating to management of companies and allied subjects, as required by 6[clause (f) of section 15A];

7[***]

(m) the transaction of business by the Standing Committees and other Committees referred to in section 17, the places at which and the intervals at which such Committees shall hold their meetings for the transaction of such business, the procedure to be followed at such meetings and all other matters connected therewith;

(n) the manner in which the Register may be maintained under sub-section (1) of section 19;

(o) the other particulars to be included in the Register, as required by clause (e) of sub-section (2) of section 19;

(p) the manner in which the annual list of members of the Institute may be published under sub-section (3) of section 19;

8[***]

(r) the manner in which Regional Council may be constituted under sub-section (2) of section 23 and the functions thereof;

(s) the conditions subject to which foreign qualifications may be recognised under sub-section (2) of section 38;

(t) any other matter which is required to be, or may be, prescribed under this Act.

(3) All regulations made by the Council under this Act shall be subject to the conditions of previous publication and to the approval of the Central Government.

9[***]

—————

1. Subs. by Act 8 of 2006, sec. 30, for “items (1), (3)” (w.e.f. 8-8-2006).

2. The words “clause (a) of” Omitted by Act 8 of 2006, sec. 30 (w.e.f. 8-8-2006).

3. Clause (g) omitted by Act 8 of 2006, sec. 30 (w.e.f. 8-8-2006). Clause (g), before omission, stood as under:

“(g) the manner in which an election to the Council may be conducted under section 10”.

4. Subs. by Act 8 of 2006, sec. 30, for “clause (i)” (w.e.f. 8-8-2006).

5. Subs. by Act 8 of 2006, sec. 30, for “clause (j)” (w.e.f. 8-8-2006).

6. Subs. by Act 8 of 2006, sec. 30, for “clause (k) of sub-section (2) of section 15” (w.e.f. 8-8-2006).

7. Clause (l) omitted by Act 8 of 2006, sec. 30 (w.e.f. 8-8-2006). Clause (l), before omission, stood as under:

“(l) the exercise of disciplinary powers, as required by clause (m) of sub-section (2) of section 15”.

8. Clause (q) omitted by Act 8 of 2006, sec. 30 (w.e.f. 8-8-2006). Clause (q), before omission, stood as under:

“(q) the inquiries to be held under sub-section (1) of section 21”.

9. Sub-section (4) omitted by Act 8 of 2006, sec. 30 (w.e.f. 8-8-2006). Sub-section (4), before omission, stood as under:

 “(4) Every regulation shall, as soon as may be after it is made by the Council, be forwarded to the Central Government and that Government shall cause a copy of the same to be laid before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.”.

40. Rules, regulations and notifications to be laid before Parliament.

1[40. Rules, regulations and notifications to be laid before Parliament.—Every rule and every regulation made and every notification issued under this Act shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule, regulation or notification, or both Houses agree that the rule, regulation or notification should not be made, or issued, the rule, regulation or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, regulation or notification.]

—————

1. Ins. by Act 8 of 2006, sec. 31 (w.e.f. 8-8-2006).

SCHEDULE I

41. THE FIRST SCHEDULE

1[THE FIRST SCHEDULE

[See Sections 21(3), 21-A(3) and 22]

Part I

Professional misconduct in relation to Company Secretaries in practice

A Company Secretary in practice shall be deemed to be guilty of professional misconduct, if he-

(1) allows any person to practice in his name as a Company Secretary unless such person is also a Company Secretary in practice and is in partnership with or employed by him;

(2) pays or allows or agrees to pay or allow, directly or indirectly, any share, commission or brokerage in the fees or profits of his professional business, to any person other than a member of the Institute or a partner or a retired partner or the legal representative of a deceased partner, or a member of any other professional body or with such other person having such qualifications as may be prescribed, for the purpose of rendering such professional services from time to time in or outside India.

Explanation.-In this item, “partner” includes a person residing outside India with whom a Company Secretary in practice has entered into partnership which is not in contravention of Item (4) of this Part;

(3) accepts or agrees to accept any part of the profits of the professional work of a person who is not a member of the Institute:

Provided that nothing herein contained shall be construed as prohibiting a member from entering into profit sharing or other similar arrangements, including receiving any share commission or brokerage in the fees, with a member of such professional body or other person having qualifications, as is referred to in Item (2) of this part;

(4) enters into partnership, in or outside India, with any person other than a Company Secretary in practice or such other person who is a member of any other professional body having such qualifications as may be prescribed, including a resident who but for his residence abroad would be entitled to be registered as a member under clause (e) of sub-section (1) of Section 4 or whose qualifications are recognised by the Central Government or the Council for the purpose of permitting such partnerships;

(5) secures, either through the services of a person who is not an employee of such Company Secretary or who is not his partner or by means which are not open to a Company Secretary, any professional business:

Provided that nothing herein contained shall be construed as prohibiting any arrangement permitted in terms of Items (2), (3) and (4) of this Part;

(6) solicits clients or professional work, either directly or indirectly, by circular, advertisement, personal communication or interview or by any other means:

Provided that nothing herein contained shall be construed as preventing or prohibiting-

(i) any Company Secretary from applying or requesting for or inviting or securing professional work from another Company Secretary in practice; or

(ii) a member from responding to tenders or enquiries issued by various users of professional services or organisations from time to time and securing professional work as a consequence;

(7) advertises his professional attainments or services, or uses any designation or expressions other than Company Secretary on professional documents, visiting cards, letterheads or sign boards, unless it be a degree of a University established by law in India or recognised by the Central Government or a title indicating membership of the Institute of Company Secretaries of India or of any other institution that has been recognised by the Central Government or may be recognised by the Council:

Provided that a member in practice may advertise through a write up setting out the services provided by him or his firm and particulars of his firm subject to such guidelines as may be issued by the Council;

(8) accepts a position as a Company Secretary in practice previously held by another Company Secretary in practice without first communicating with him in writing;

(9) charges or offers to charge, accepts or offers to accept, in respect of any professional employment, fees which are based on a percentage of profits or which are contingent upon the findings, or results of such employment, except as permitted under any regulation made under this Act;

(10) engages in any business or occupation other than the profession of Company Secretary unless permitted by the Council so to engage:

Provided that nothing contained herein shall disentitle a Company Secretary from being a director of a company except as provided in the Companies Act, 1956 (1 of 1956);

(11) allows a person not being a member of the Institute in practice, or a member not being his partner to sign on his behalf or on behalf of his firm, anything which he is required to certify as a Company Secretary, or any other statements relating thereto.

Part II

Professional misconduct in relation to members of the Institute in service A member of the Institute (other than a member in practice) shall be deemed to be guilty of professional misconduct, if he, being an employee of any company, firm or person-

(1) pays or allows or agrees to pay, directly or indirectly, to any person any share in the emoluments of the employment undertaken by him;

(2) accepts or agrees to accept any part of fees, profits or gains from a lawyer, a Company Secretary or broker engaged by such company, firm or person or agent or customer of such company, firm or person by way of commission or gratification.

Part III

Professional misconduct in relation to members of the Institute generally A member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he-

(1) not being a Fellow of the Institute, acts as a Fellow of the Institute;

(2) does not supply the information called for, or does not comply with the requirements asked for, by the Institute, Council or any of its Committees, Director (Discipline), Board of Discipline, Disciplinary Committee, Quality Review Board or the Appellate Authority;

(3) while inviting professional work from another Company Secretary or while responding to tenders or enquiries or while advertising through a write up, or anything as provided for in items (6) and (7) of Part I of this Schedule, gives information knowing it to be false.

Part IV

Other misconduct in relation to members of the Institute generally

A member of the Institute, whether in practice or not, shall be deemed to be guilty of other misconduct, if-

(1) he is held guilty by any civil or criminal court for an offence which is punishable with imprisonment for a term not exceeding six months;

(2) in the opinion of the Council, he brings disrepute to the profession or the Institute as result of his action whether or not related to his professional work.]

1. First Schedule Subs. by Act No. 8 of 2006 w.e.f. 17-3-2006.

Schedule II

42. THE SECOND SCHEDULE

1[THE SECOND SCHEDULE

[See Sections 21(3), 21-B(3) and 22]

Part I

Professional misconduct in relation to Company Secretaries in practice

A Company Secretary in practice shall be deemed to be guilty of professional misconduct, if he-

(1) discloses information acquired in the course of his professional engagement to any person other than his client so engaging him, without the consent of his client, or otherwise than as required by any law for the time being in force;

(2) certifies or submits in his name, or in the name of his firm, a report of an examination of the matters relating to company secretarial practice and related statements unless the examination of such statements has been made by him or by a partner or an employee in his firm or by another Company Secretary in practice;

(3) permits his name or the name of his firm to be used in connection with any report or statement contingent upon future transactions in a manner which may lead to the belief that he vouches for the accuracy of the forecast;

(4) expresses his opinion on any report or statement given to any business or enterprise in which he, his firm, or a partner in his firm has a substantial interest;

(5) fails to disclose a material fact known to him in his report or statement but the disclosure of which is necessary in making such report or statement, where he is concerned with such report or statement in a professional capacity;

(6) fails to report a material misstatement known to him and with which he is concerned in a professional capacity;

(7) does not exercise due diligence, or is grossly negligent in the conduct of his professional duties;

(8) fails to obtain sufficient information which is necessary for expression of an opinion or its exceptions are sufficiently material to negate the expression of an opinion;

(9) fails to invite attention to any material departure from the generally accepted procedure relating to the secretarial practice;

(10) fails to keep moneys of his client other than fees or remuneration or money meant to be expended in a separate banking account or to use such moneys for purposes for which they are intended within a reasonable time.

Part II

Professional misconduct in relation to members of the Institute generally A member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct, if he-

(1) contravenes any of the provisions of this Act or the regulations made thereunder or any guidelines issued by the Council;

(2) being an employee of any company, firm or person, discloses confidential information acquired in the course of his employment, except as and when required by any law for the time being in force or except as permitted by the employer;

(3) includes in any information, statement, return or form to be submitted to the Institute, Council or any of its Committees, Director (Discipline), Board of Discipline, Disciplinary Committee, Quality Review Board or the Appellate Authority any particulars knowing them to be false;

(4) defalcates or embezzles moneys received in his professional capacity.

Part III

Other misconduct in relation to members of the Institute generally

A member of the Institute, whether in practice or not, shall be deemed to be guilty of other misconduct, if he is held guilty by any civil or criminal court for an offence which is punishable with imprisonment for a term exceeding six months.]

1. Second Schedule Subs. by Act No. 8 of 2006 w.e.f. 17-3-2006.