Andhra Pradesh High Court - Amravati
Vijaya Bhaskar Reddy Annapareddy vs The Andhra Pradesh Pharmacy Council ... on 26 November, 2019
Author: M.Ganga Rao
Bench: M. Ganga Rao
THE HON'BLE SRI JUSTICE M. GANGA RAO
WRIT PETITION No.42339 of 2018
ORDER:
The petitioner after obtaining Diploma in Pharmacy in the year 1987 got registered his name with the Andhra Pradesh Pharmacy Council on 07.06.1989 and worked as a Pharmacist.
2. His grievance is that his name is removed from the register of Andhra Pradesh Pharmacy Council by way of impugned proceedings dated 03.02.2014 passed by the 1st respondent's Council, contrary to the provisions of Section 36 of Pharmacy Act, 1948.
3. For better understanding of the lis before this court, it would be appropriate to know about the functioning of the Andhra Pradesh Pharmacy Council.
4. The Andhra Pradesh Pharmacy Council was established in the year 1955. It consists of 15 members, which include 6 elected Pharmacists, 5 persons nominated by the Government, 4 Ex-officio members i.e. Director General of Drugs Control Authority, Medical Council Member, Director of Medical Education and one Government Analyst. The President of the council would be elected from among the 15 members. The elections would be conducted to Pharmacy Council for every five years. The Council would discharge its 2 MGR, J W.P.No.42339 of 2018 functions generally through its President elected, in his absence the Vice President should exercise the powers and perform the duties of the President. The Executive Committee should consists of the President and the Vice President three other members elected by ballot at the first meeting of the Council. Out of three members so elected, there should be at least two registered Pharmacists. The Executive Committee so elected should hold office till the election of the new Executive Committee. The Executive Committee should meet on such date as may be fixed by the President. For meeting of the Executive Committee, the quorum should be the President, Vice President and one Member.
5. A Form-K notice dated 27.11.2013 under Rule 93 of the A.P. Pharmacy Council Rules, 1955 (for brevity hereinafter called as "the Rules, 1955") was sent to the petitioner by the 1st respondent to attend proceedings for removal of his name from the Pharmacist register under the provisions of Section 36 of the Pharmacy Act, 1948. When the petitioner failed to receive the notice, the same was served by way of affixture on his house door on 27-12-2013 in the presence of the Village Revenue Officer. For Form-K notice, he send a letter dated 23.01.2014, seeking clarification about the locus standi of the in-charge person in got issuing the Form-K notice, by the 1st respondent instead of clarifying its competency in issuing the notice, passed the impugned order dated 03.02.2014 3 MGR, J W.P.No.42339 of 2018 removing the petitioner's name from the Register of Andhra Pradesh Pharmacy Council as per provisions of Section 36 of the Pharmacy Act and the Rules 103 and 104 of the Rules, 1955 with effect from 03.02.2014 and the same was published in the Telangana Gazette publication on 27.07.2014.
6. The Form-K notice was issued to the writ petitioner with the following six allegations.
i) You have forged good standing certificates, signature, stamps of the Council issued on 18.05.2002 by the then Registrar B.Yethirajam, A.P. Pharmacy Council and you submitted them to NABP of US authority. Said Registrar replied to NABP, USA as fake certificate and were not attested by A.P.Pharmacy Council.
ii) You have also confessed said forgery by you before Central Crime Police, Hyderabad and they recorded your confession under Panchanama.
iii) Inspite of STAY ORDER issued by Hon'ble High Court of A.P. in WPMP No.2116 of 2011 in W.P.No.1726 of 2011 and also stay order issued by Government A.P. in Memo No.18816/L2/20110 both dated 31.01.2011, you in connivance with Sri MVV Satyanarayana, the then Registrar, A.P.Pharmacy Council conducted elections and declared yourself elected as president on 31.03.2011. But the Hon'ble High Court of A.P. dismissed your W.P.No.27438 of 2011 on 06.03.2012 declaring the elections to President of A.P.Pharmacy Council were not legally and validly conducted.
iv) During this invalid period as President, you had misused cheques of A.P.Pharmacy Council towards advocate charges, functions, Car travels etc., without any authorization.
v) You had also collected huge amounts in the name of Registration around Rs.5,000/- per person and Renewal penalty upto Rs.30,000/- without any permissions and also signed receipts as you are Registrar.
vi) Illegally held original Certificates etc., in Council rooms which were locked and held under your control even after dismissal by Hon'ble High Court on 06.03.2012. These rooms were later opened by the police on 06.10.2012 and recovered various certificates, documents etc., under Panchanama.
7. The case of the petitioner is that the above allegations do not constitute "In famous conduct in a professional 4 MGR, J W.P.No.42339 of 2018 respect" as required under the provisions of Section 36 of the Pharmacy Act, which deals with the removal of name of the Pharmacist from the Register. As per the provision of Section 36 (1) (ii) of the Act, the procedure contemplated thus; the Executive Committee is competent to remove the name of the Pharmacist from the register, which shall be subject to confirmation by the State Council. As per Rule 104 (2) of the Rules, 1955, the name so removed shall be published in the Andhra Pradesh Gazette, without following such procedure, the impugned order is passed removing the petitioner name from the register of the Pharmacy Council is illegal and arbitrary.
8. The 1st respondent Andhra Pradesh Pharmacy Council filed counter on its behalf and on behalf of 2nd respondent In- charge stating that the elections were conducted to elect members to the Andhra Pradesh Pharmacy Council as per Section 19 (a) of the Act, on 31.03.2011. The petitioner/ Annapareddy Vijaya Bhaskara Reddy declared himself as President. Sri M. Venkat Reddy, who is the President during that period, filed Writ Petition No.17226, challenging the Special Meeting which was held on 28.01.2011 to conduct the election of President and Vice President on 31.01.2011 at 2.00 p.m. In the said Writ Petition, the High Court granted stay of election on 31.01.2011. The Government of Andhra Pradesh also stayed the election of President and Vice-
5 MGR, J W.P.No.42339 of 2018 president on 31.01.2011. In spite of stay orders granted by this Court and Government of Andhra Pradesh, the petitioner declared himself as President illegally on 31.03.2011. Due to ongoing dispute, the Government of Andhra Pradesh had taken the initiative to resolve the issue by appointing Sri C.Parthasarathy, I.A.S., Project Director, A.P. State Aids Control Society, Hyderabad as in-charge to the Andhra Pradesh Pharmacy Council duly giving cheque power i.e. (Countersigning) along with the Registrar. The petitioner filed Writ Petition No.27438 of 2011, challenging the appointment of in-charge to Andhra Pradesh Pharmacy Council. This Court after careful consideration dismissed both the Writ Petition Nos.17226 of 2011 and 27438 of 2011 on 06.03.2012. The Government of Andhra Pradesh appointed Sri R. P. Thakur, I.P.S., as an Enquiry Officer to submit the report to the Government after conducting enquiry into irregularities committed by the petitioner. Mr. R. P. Thakur, I.P.S., Director General, Drugs Control Administration and Enquiry Officer submitted report to the Government of Andhra Pradesh on 18.09.2012. The Government of Andhra Pradesh issued orders vide G.O.Rt.No.819, dated 06.07.2013 by entrusting the case to the Commissioner of Police, Hyderabad, through CCS of Hyderabad City Police, for appropriate investigation. Then the CCS Police of Hyderabad, registered an FIR vide Crime No.99/2013, dated 12.07.2013 for the offences punishable under Sections 406, 409, 468 of 6 MGR, J W.P.No.42339 of 2018 IPC. Subsequently, the petitioner was arrested by the CCS Police of Hyderabad and sent him to Judicial Custody on 02.09.2013. In view of the above, the Government of Andhra Pradesh vide memo 1534/L2/2013 dated 21.11.2013, approved the proposal of the Andhra Pradesh Pharmacy Council for the deletion of the name of the petitioner from the register of Andhra Pradesh Pharmacy Council with immediate effect and permitted the in-charge person, Andhra Pradesh Pharmacy Council to remove the name of the petitioner from the Register of Andhra Pradesh Pharmacy Council with immediate effect. The Registrar of Andhra Pradesh Pharmacy Council sent a Form-K notice to the petitioner on 27.11.2013 to attend before the Andhra Pradesh Pharmacy Council on 03.01.2014 at 11 'O' clock to present his explanation about his irregularities committed as mentioned in the Form-K notice. The Council, again sent Form-K notice to the petitioner to attend the meeting on 17.01.2014 at 11.00 a.m. and the same was returned unserved with endorsement on the envelop "Intimation Served" and thereafter, got Served the Form-K notice on 27.12.2013 by the Village Revenue Officer by affixing the notice on the door of the petitioner' house by conducting panchanama. The petitioner had not attended before the council to answer the allegations made against him in Form-K notice, instead he sent a registered letter, which was received by APPC on 27.01.2014, stating that he will not appear before the 2nd respondent, who has no locus standi to 7 MGR, J W.P.No.42339 of 2018 issue Form-K notice. The petitioner had sent the letter, with an intention to avoid his appearance before the APPC to give his reply to the allegations made against him and petitioner was very much aware about his illegal activities done under the guise of a President of the Council by misusing his power. The Registrar of APPC Hyderabad sent a letter to Director General and commissioner of printing and stationery, Hyderabad dated 03.02.2014 to publish the removal of the petitioner's name from the Register of Andhra Pradesh Pharmacy Council in the A.P. Gazette. Informed about the removal of the petitioner's name from the Register of Andhra Pradesh Pharmacy Council to the Dean/Secretary/Principal S.C.S. College of Pharmacy, Karnataka, Karnataka State Pharmacy Council and the same was intimated to the petitioner through letter dated 03.02.2014. During the State Re-Organisation that took place on 02.06.2014, due to which, even though the letter was sent by Andhra Pradesh Pharmacy Council for publication in official Gazette to the Government of Andhra Pradesh prior to bifurcation, the publication of Gazette was taken place after bifurcation i.e. on 27.07.2014 in the Gazette Notification of Government of Telangana. During that time petitioner's residential address was at Hyderabad, Telangana State and the same was revealed in his letter dated 23.01.2014 addressed to Andhra Pradesh Pharmacy Council. Further the Government of Andhra Pradesh directed the Director General of Drugs and 8 MGR, J W.P.No.42339 of 2018 Administration, In-charge of Andhra Pradesh Pharmacy Council, to take appropriate action against the petitioner regarding misappropriation of funds of the Council amounting to Rs.9,61,884/- and also Andhra Pradesh Pharmacy Council sent a letter to District Collector, Hyderabad vide D.O. letter No.3021/APPC/2013 dated 09.05.2014 requesting to take immediate action for recovery of misused amount of Rs.9,61,844/- from the petitioner and Sri M. V. V. Satyanarayana, who was the then Registrar on priority and subsequently sent a letter to District Collector to recover the misused amount from the petitioner dated 01.01.2015 and 24.08.2017, Guntur District, Collector. An FIR No.195/2012, dated 04.09.2012 was lodged against Sri M. V. V. Satyanarayana, the then Registrar, Andhra Pradesh Pharmacy Council.
9. The counter furthers states that the petitioner's name was removed by impugned order dated 03-02-2014 from the Register of Andhra Pradesh Pharmacy Council and the petitioner was given an opportunity as required under Section 36 (4) of Pharmacy Act, 1948, against which, appeal lies to Government of Andhra Pradesh within 30 days and the petitioner has not availed the appeal remedy and this writ petition is filed with false and frivolous allegations after lapse of four years.
9 MGR, J W.P.No.42339 of 2018
10. Sri P. Nagendra Reddy, learned counsel appearing for the petitioner submits that the petitioner name was removed from the register of Andhra Pradesh Pharmacy Council vide impugned order dated 03.02.2014 of the 1st respondent without giving any notice and preceded by any enquiry and contrary to the procedure contemplated under the provisions of Section 36 of the Pharmacy Act, 1948 and same was not published as required as per Rule 104 (2) of Pharmacy Act. Hence, the impugned order is liable to be set aside. The impugned order is not served on the petitioner and he only came to know about it though the proceedings dated 19.05.2019 when he was asked through letter dated 18.05.2017 for not inviting him to the meetings. Immediately, after coming to know about the impugned order, he filed the present writ petition, hence there is no delay for approaching this Court and the impugned order is passed at the instance of the 3rd respondent Government and thereby the petitioner was deprived of the remedy of appeal to the 3rd respondent Government. Informing the petitioner through the impugned order to avail the appeal remedy is not proper when the impugned order is passed at the instance of the 3rd respondent Government. Without accepting, even if there is some delay occurred in approaching this Court, no prejudice could be caused to the respondents or as no third party rights are accrued during the operation of the impugned order and filing of writ petition, whereas the petitioner right to prefer 10 MGR, J W.P.No.42339 of 2018 appeal is taken away, as the impugned order passed at the instance of the Government. The petitioner's right to work as pharmacist to eke out his livelihood is taken away by the impugned order, contrary to the provisions of Pharmacy Act.
11. Sri M. Ravindranath Reddy, learned counsel appearing for the respondents would contend that the writ petition is liable to be dismissed on the ground of latches as the petitioner filed this writ petition against the order dated 03.02.2014 after five years and also the petitioner approached this Court with unclean hands by suppressing filing of earlier writ petition in W.P.No.27438 of 2011 challenging the appointment of the in-charge person to the Council by replacing him and the same was dismissed on 06.03.2012 and also other writ petitions filed, challenging the election of the president, was dismissed and the writ appeal was also dismissed and the petitioner having came to know about the Form-K notice as he had sent letter questioning the authority of the in-charge of the Council. Hence, it could not be said that Form-K notice is not served on him is utter falsehood and the petitioner is liable to be prosecuted for perjury. The impugned order of removing the petitioner's name from the register of the Andhra Pradesh Pharmacy Council was passed on 03.02.2014 and sent to his address and also published in newspaper and in Gazette. However, in Telangana Gazette as the same was published after bifurcation as required under 11 MGR, J W.P.No.42339 of 2018 Rule 104 of the Rules. But the petitioner filed this writ petition in the year 2018 there is enormous delay of five years in approaching this Court and the petitioner failed to explain the delay. The contra contention of the petitioner that the petitioner came to know only in the year 2018 and immediately filed this writ petition is untenable. There are no procedural irregularities in passing the impugned order. The counsel has followed the procedure contemplated under the provisions of Section 36(2) of the Act. He further states that as per Rule 89 whenever information reaches the office of the council that a Pharmacist has been convicted of a cognizable offence or has been under the censure of any Judicial or other competent authority in relation to his professional character or has been guilt of conduct in a professional respect, the Registrar shall make a abstract of information and shall submit the same to the President. The Registrar submitted the information to the in-charge person and Government, as the petitioner committed misdeeds, as shown in Form-K notice and misappropriation of funds and cases registered against him by the police in FIR No.99/2013 and he was remanded in jail. A detailed report was sent to the Government based on report, the then in-charge of A.P. Pharmacy Council was asked to conduct the enquiry on happenings in the Pharmacy Council and misdeed of the petitioner. Mr. R. P. Thakur submitted his enquiry report to Government, vide G.O.Rt.No.819 dated 06.07.2013 the 12 MGR, J W.P.No.42339 of 2018 Government transferred the petitioner's case to Central Crime Station (CCS) Police, Nampally, Hyderabad for effective investigation and accordingly the Government ordered A. P. Pharmacy Council to remove the name of the petitioner from the Register as pharmacist. As per Rule 93, on the direction of the Government, the In-Charge person of Andhra Pradesh Pharmacy Council appointed by Government, the Registrar issued notice of removal on behalf of the Council, which is superior to Executive Committee and addressed to the petitioner. The notice in Form-K giving particulars of the charges informed to the petitioner on the day on which the In- Charge of Andhra Pradesh Pharmacy Council intends to deal with the case and requested him to answer the charges in writing and to attend the enquiry of the person-in-charge of 1st respondent Council. The notice was served to the petitioner and he was given reasonable opportunity of being heard and he was asked to appear before enquiry as per Rule 36 (1) of the Rules. Instead of appearing before the Council the petitioner addressed a letter dated 23.01.2014 to the Registrar, Andhra Pradesh Pharmacy Council stating that person in-charge has no authority and locus standi, to ask the Registrar to issue Form-K notice and he did not appear before the in-charge of Andhra Pradesh Pharmacy Council. He also stated that the form-K notice has to be issued by the Registrar at the instance of the Executive Committee. All these details were informed to the in-charge person Dr. B. L. 13 MGR, J W.P.No.42339 of 2018 Meena, I.P.S., in-charge of the Andhra Pradesh Pharmacy Council and to the Principal Secretary for Government Health, Medical and Family Welfare Department from time to time. Because, the council and the Executive Committee was not constituted, the Andhra Pradesh Pharmacy Council is functioning under the control of the in-charge person appointed by the Government from 17.02.2011. The Government has got the controlling powers as per Rule 140 and the decision of the Government is final. As per Rule 140 and Section 24 of the Act, the Government has stayed the process of election of President and Vice-President of Pharmacy Council until further orders vide Memo.No.17716/ 2010, dated 31.01.2011. Without election of President and Vice-President Executive committee could not be formed. Just because there is no executive committee, the pharmacists who were committed misconduct and professional mistakes, misappropriation of funds could not be allowed to continue their misdeeds endangering the public health. Here, in this case, the petitioner was a President declared, by himself was committed several misdeeds as stated in the Form-K Notice. Hence, the Government has taken the decision under Rule 140 to remove the name of the petitioner from the Register of Andhra Pradesh Pharmacy Council. The petitioner is a registered Pharmacist with Registration No.16553/A2 valid up to 2013. As per Rule 78 (2), any person desiring to continue his registration shall 14 MGR, J W.P.No.42339 of 2018 submit to the register an application before the 1st day of April of the year to which it relates and shall forward with such application fee prescribed in that behalf in Rule 87. When a renewal fees is not paid before the due date, the Registrar shall remove the name of the Pharmacist from the register as per the Rule 78 (4). So the Registrar has removed the name of petitioner from the Register of A.P. Pharmacy Council on 03-02-2014.
12. Learned counsel for the respondents would further contend that the Government appointed C. Parthasarathy as in-charge to the A.P. Pharmacy Council vide letter dated 26- 09-2011 to look after the affairs of the Council thereby the In- charge person replaced the Council, which was constituted vide G.O.Ms.No.8, dated 10-01-2011, thereby the Council and Executive Committee replaced by the In-charge person. Challenging the appointment of the In-charge person, W.P.No.27438 of 2011 was filed and the same was dismissed. He further contended that the impugned proceedings dated 03.02.2014 are deemed in law to have been passed by the Council itself and the Council is the ultimate and higher authority than that of Executive Committee, the confirmation of the same by the Council under Section 36 (3) of the Act does not arise.
13. The learned counsel for the respondents further states that even if the petitioner has made out a case on merits of 15 MGR, J W.P.No.42339 of 2018 the case, still this Court could refuse the relief in exercise of the extraordinary discretionary power under Article 226 of the Constitution of India. When there is no Executive Committee since 26.09.2011 and only the council is functioning that too only through the said In-charge person and finally as submitted earlier, the appointment of the In-charge person in the place of the Council is upheld by this Court in W.P.No.27438 of 2011 dated 06.03.2012 and reiterated the dictionary meaning of 'infamous conduct' and the petitioner has committed misdeeds and misappropriation as shown in Form-K notice and the infamous conduct stands proved and consequently impugned order passed on 03.06.2014 as per law and he seeks dismissal of the writ petition.
14. Learned counsel for the petitioner, while reiterating the averments of the reply affidavit, states that the proceedings of Government dated 26.09.2011 through which In-charge person was appointed to discharge the duties of the President, the appointment of the In-charge person could not be construed as in replacement of the State Council. The fact remains that the in-charge person is discharging his duties as President along with other members of the State Council. The Government issued G.O.Ms.No.75, dated 12.08.2015 appointing nominated members to the State Council, which clearly shows that the existing State Council is never replaced by the in-charge person and person-in-charge is conducting 16 MGR, J W.P.No.42339 of 2018 the meetings of the State Council and passing necessary resolutions. Hence, it is false to state that the Council has taken a decision under Rule 104 of the Rules, 1955 to remove the name of the petitioner from the register as Pharmacist. The contra contention of the counsel for the respondents and his written submission based on various citations with regard to laches merit no consideration.
15. In the facts and circumstances of the case and submissions of the learned counsel and on perusal of the record, this Court found that the petitioner, after obtaining diploma in Pharmacy in the year 1987, got registered his name as a Pharmacist on 07.06.1989 with the 1st respondent Council. His troubles were started after being elected as a President of the Council in the elections held in the year 2011 and his election was the subject matter of the Writ Petition No.17226 of 2011 and the appointment of In-charge person was the subject matter of W.P.No.27438 of 2011 and both the writ petitions were dismissed on 06-03-2012. Thereafter, Form-K Notice dated 28.07.2013 was issued enumerating six instances of misconduct to the petitioner. Ultimately, the same was affixed on the door of the petitioner's house at Hyderabad in the presence of Village Revenue Officer by conducting panchanama. Form-K was issued alleging misconduct and to appear before the Council, for which he replied that he would not appear before the 2nd respondent, 17 MGR, J W.P.No.42339 of 2018 questioning his authority and locus standi to issue Form-K notice. Thereafter, the 1st respondent Council removed the name of the petitioner from the register of Andhra Pradesh Pharmacy Council and the material on record shows that the Government approved the proposal of the 1st respondent Council vide Memo dated 21-11-2013 to remove the name of the petitioner from register, but the 1st respondent has not followed the procedure contemplated under the provisions of Section 36 of the Pharmacy Act, 1948 before passing the impugned order removing the petitioner's name from the register of the Andhra Pradesh Pharmacy Council.
16. The provisions of Section 36 read thus:
(1) Subject to the provisions of this section, the Executive Committee may order that the name of a registered pharmacist shall be removed from the register, where it is satisfied, after giving him a reasonable opportunity of being heard and after such further inquiry, if any, as it may think fit to make,--
(i) that his name has been entered into the register by error or on account of misrepresentation or suppression of a material fact, or
(ii) that he has been convicted of any offence or has been guilty of any infamous conduct in any professional respect which in the opinion of the Executive Committee, renders him unfit to be kept in the register, or
(iii) that a person employed by him for the purposes of his business of pharmacy [or employed to work under him in connection with any business of pharmacy] has been convicted of any such offence or has been guilty of any such infamous conduct as would, if such person were a registered pharmacist, render him liable to have his name removed from the register under clause (ii):
Provided that no such order shall be made under clause
(iii) unless the Executive Committee is satisfied--
(a) that the offence or infamous conduct was instigated or connived at by the registered pharmacist, or
(b) that the registered pharmacist has at any time during the period of twelve months immediately preceding the 18 MGR, J W.P.No.42339 of 2018 date on which the offence or infamous conduct took place committed a similar offence or been guilty of similar infamous conduct, or
(c) that any person employed by the registered pharmacist for the purposes of his business of pharmacy[or employed to work under him in connection with any business of pharmacy] has at any time during the period of twelve months immediately preceding the date on which the offence or infamous conduct took place, committed a similar offence or been guilty of similar infamous conduct, and that the registered pharmacist had, or reasonably ought to have had, knowledge of such previous offence or infamous conduct, or
(d) that where the offence or infamous conduct continued over a period, the registered pharmacist had, or reasonably ought to have had, knowledge of the continuing offence or infamous conduct, or
(e) that where the offence is an offence under the [Drugs and Cosmetics Act, 1940 (23 of 1940)], the registered pharmacist has not used due diligence in enforcing compliance with the provisions of that Act in his place of business and by persons employed by him [or by persons under his control].
(2) An order under sub-section (1) may direct that the person whose name is ordered to be removed from the register shall be ineligible for registration in the State under this Act either permanently or for such period as may be specified.
(3) An order under sub-section (1) shall be subject to confirmation by the State Council and shall not take effect until the expiry of three months from the date of such confirmation.
(4) A person aggrieved by an order under sub-section (1) which has been confirmed by the State Council may, within thirty days from the communication to him of such confirmation, appeal to the State Government, and the order of the State Government upon such appeal shall be final.
(5) A person whose name has been removed from the register under this section or under sub-section (2) of section 34 shall forthwith surrender his certificate or registration to the Registrar, and the name so removed shall be published in the Official Gazette.
17. When such is the procedure to be followed, there is no whisper in the impugned order whether any enquiry is conducted giving opportunity to the petitioner and such enquiry report is placed before the Executive Committee and 19 MGR, J W.P.No.42339 of 2018 for the acceptance of the Council. Even in the absence of Executive Committee, the Andhra Pradesh Pharmacy Council In-charge person has statutory obligation to serve a notice on the petitioner before acceptance the same, but no enquiry report, no acceptance obtained. He simply states that Government accepted the report and asked the council to remove the petitioner and he was removed, thereby the impugned order is passed contrary to the provisions of Section 36 of the Act. This Court came to the conclusion that the six instances mentioned in the Form-K notice are not proved against the petitioner, even if proved, could not amount to infamous conduct in any professional respect of the petitioner as specified under Section 36 of the Act. Hence, the impugned order could not be said to be preceded by enquiry and opportunity to the petitioner and the same was not communicated to the petitioner and published in the Gazette as required under Rule 104 of the Rules, 1955. However, a mere publication in the newspaper is not enough and the same could not be said to be in compliance of Rule 104 of the Rules. The contention of the learned counsel for the respondents that the petitioner has approached this Court with enormous delay could not be countenanced in the absence of sufficient service of order impugned on the petitioner. However, the writ petition could not be dismissed on the ground of laches as no prejudice would be caused to the respondents or no third party rights are accrued in the 20 MGR, J W.P.No.42339 of 2018 process of delay in approaching this court as held by the Supreme Court. Hence, contentions of latches and delay, and decisions cited in support of it merit no consideration. A perusal of the impugned order and contentions of the counsel, on perusal of the record, this Court came to the conclusion that the respondents have not followed the procedure contemplated under the provisions of Section 36(2) of the Pharmacy Act and Rules made thereunder in passing the impugned order. In view of above discussion, this court unhesitatingly came to the conclusion that the petitioner's fundamental right guaranteed under Article 19(1)(g) of the Constitution of India to carry on occupation of Pharmacist is taken away without following due procedure established by law. Hence, the impugned order is liable to be set aside.
18. There is no clarity whether the petitioner's name was removed for non-renewal of his registration of his membership as Pharmacist as per Rule 78 (4) of the Rules, 1955 or as per the provisions of Section 36 (2) of the Act, at the instance of the Government for unproved allegations made in the Form-K Notice. This Court could easily came to the conclusion that the impugned order is passed by the 1st respondent Council, without application of mind and bypassing the Executive Committee which is in existence. The petitioner could not be driven to the Appellate Authority, Government of Andhra Pradesh, as the impugned order is 21 MGR, J W.P.No.42339 of 2018 passed with due approval of Government, thereby the petitioner was denied right of appeal remedy also. There is no bar to entertain the writ petition against the impugned order passed in utter violation of the principles of natural justice. The petitioner has not suppressed any relevant material facts, mere non-disclosure of filing of writ petition which are subject matter of election of the President and appointment of In- charge person are not germane to decide the lis in this present writ petition. Hence, contra contentions of the counsel for the respondents are untenable.
19. Accordingly, the writ petition is allowed setting aside the impugned order dated 03.02.2014 passed by the 1st respondent. There shall be no order as to costs. However, the 1st respondent is at liberty to take appropriate action against the petitioner as per law.
Consequently, Miscellaneous Petitions, if any, pending shall stand closed.
___________________ M.GANGA RAO, J Date: 26.11.2019.
Sdp/ksn 22 MGR, J W.P.No.42339 of 2018 THE HON'BLE SRI JUSTICE M. GANGA RAO Writ Petition No.42339 of 2018 26.11.2019 Sdp/ksn