A newly qualified Company Secretary has just started practice. The first assignment he received was certification of Annual Return of an existing listed company. He wants to know from you whether communicating with the e

According to Clause 8 of Part I of Schedule I of the Company Secretaries Act, 1980, a company secretary in practice shall be deemed to be guilty of professional misconduct if he accepts the position of company secretary in practice (PCS) which was previously held by another PCS without first communicating with the previous practicing company secretary in writing. Communication with the previous PCS to be effective shall be in writing and shall fulfill the requirements of Section 114 of Indian Evidence Act, 1872. This is to ensure the proof of delivery to the previous PCS. Oral communication is no communication. Hence, informing the previous PCS over telephone is not permitted under Clause 8 of Part I of First Schedule of CS Act and the current PCS shall be guilty of professional misconduct under Clause 8 of Part I of First Schedule of CS Act, 1980. However, use of tools of modern technology like WhatsApp is permitted subject to the condition that the current PCS taking up the assignment is able to establish that the message was delivered to the previous PCS indicating the details of assignment being taken over by him. In a decided case I.S. Bhatti v. Council of ICAI, the Rajasthan High Court ruled that sending a letter to the previous incumbent by certificate of posting does not fulfill the requirements of Clause 8 of Part I of Schedule I as the positive proof of delivery of the letter to the addressee as required u/s 114 of Indian Evidence Act, 1872 are not fulfilled. The communication was by SMS or by certificate of posting. However, sending a letter to the previous PCS by registered post acknowledgement due (RPAD) is permitted.