Bombay High Court
Dr. Parthsarthi S/O Mukund Shukla vs The Maharashtra Medical Council, ... on 22 January, 2020
Author: Ravindra V. Ghuge
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.999 OF 2018
(Dr. Parthsarthi s/o Mukund Shukla Vs. The Maharashtra Medical Council, Mumbai,
thr. its Registrar, Mumbai and another)
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Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
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Shri Firdos Mirza, Advocate for Petitioner.
Shri V.P. Panpalia, Advocate for Respondent No.1.
CORAM: RAVINDRA V. GHUGE, J.
DATE: 22nd JANUARY, 2020.
1] This matter was heard extensively on 15.01.2020 and I had passed the following order after recording the submissions of the learned Advocates:-
1. I have briefly heard the learned counsel for the petitioner and the learned counsel appearing on behalf of respondent No. 1 Maharashtra Medical Council, Mumbai.
None has caused an appearance on behalf of respondent No. 2, the original complainant, despite issuance of Court notice for final disposal on 27.3.2018, made returnable on 19.6.2019.
2. The impugned notice is under section 22 of the Maharashtra Medical Council Act, 1965 (MMC Act) by which respondent No.1 has disclosed to the petitioner that they have received a complaint from respondent No. 2 and the petitioner should explain his conduct with parawise remarks in two sets within seven days, failing which, action under section 22 of the MMC Act, 1965, would be initiated.
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3. I find from section 22 - 'REMOVAL OF NAME FROM REGISTER', that it contains the types of punishment which can be imposed if a registered practitioner has been, after due inquiry held by the Council or by the Executive Committee in the prescribed manner, found guilty of any misconduct. This is set out in section 22(1). This is an enabling provision which empowers the MMC to award a punishment to a delinquent registered practitioner as is prescribed under clauses a, b,(i) or (ii) under section 22(1). The three explanations there below define a misconduct.
4. The learned counsel for respondent No. 1 points out that the Maharashtra Medical Council Rules, 1967 are in place and under Chapter VI - Enquiries, the procedure is prescribed for conducting preliminary inquiries from Rule 62 onwards and for conducting a full fledged enquiry from Rule 71 onwards. I find that Rule 62 to 75 clearly lay down the entire procedure for conducting a full fledged enquiry against registered practitioners and if the charge levelled on such a practitioner is established by such an enquiry, the MMC can invoke its power under section 22 to award a type of punishment to a registered practitioner commensurate to the seriousness and the gravity of the misconduct proved against him.
5. In view of the above, I do not find that the notice dated 1.9.2012 is in tune with the Rules applicable to this case. The learned Advocate for respondent No. 1 MMC, Mumbai seeks time to take instructions as to whether the MMC desires to withdraw the said notice or submit otherwise.
6. The learned Advocate for the petitioner submits that this matter may be posted on 20.1.2020.
7. On the request of the learned ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 3 wp999.18.O.odt Advocates for the respective sides, this matter is treated as part heard.
2] Heard the learned Advocates for the respective parties.
3] It would be apposite to reproduce the text of the notice dated 01.09.2012, issued by the Maharashtra Medical Council ('M.M.C.') to the petitioner, as under:
Sub-Complaint filed against you by Smt. Laxmi Hatish Chutlani.
I forward herewith a copy of complaint filed against you by Smt. Laxmi Hatish Chutlani for your information and necessary comments.
You are directed to submit this office your detailed parawise remarks in two set, on the above mentioned complaint with period if any, with seven days from the date of receipt of this letter with copy thereof to this complaint, failing, an action as per section 22 of the M.M.C. 1965 will be initiated against you.
You are also directed to forward a Photostat copy of registration certificate and your present address for communication.
Sd/-
Registrar Maharashtra Medical Council 4] It is, therefore, apparent that the M.M.C., having received a complaint from an individual, directed the petitioner to submit detailed parawise remarks in two sets, in response to the complaint, within seven days from the receipt of the said letter, failing which, action under section ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 :::
4 wp999.18.O.odt 22 of the M.M.C. Act, 1965 was to be initiated against him. 5] Section 22 of the Maharashtra Medical Council Act, 1965 reads as under:
22. (1) If a registered practitioner has been, after the inquiry held by the Council (or by the Executive Committee) in the prescribed manner, found guilty of any misconduct by the Council, the Council may-
(a) issue a letter of warning to such practitioner, or
(b) direct the name of such practitioner
(i) to be removed from the register for such period as may be specified in the direction, or
(ii) to be removed from the register permanently.
Explanation;- For the purposes of this section, "misconduct" shall mean-
(i) the conviction of a registered practitioner by a criminal court for an offence which involves moral turpitude and which is cognizable within the meaning of the Code of Criminal Procedure, 1898 ; or
(ii) the conviction under the Army Act, 1950, of a registered practitioner subject to military law for an offence which is cognizable within the meaning of the10[Code of Criminal Procedure, 1973] ; or
(iii) any conduct which, in the opinion of the Council, is infamous in relation to the medical profession particularly under any Code of Ethics prescribed by the Council or by the Medical Council of India constituted under the Indian Medical Council Act, 1956, in this behalf.::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 :::
5 wp999.18.O.odt (2) If the name of any such practitioner is also entered in-
(a) the register or the list maintained under the Maharashtra Medical Practitioners Act, 1961, or
(b) the register or the list maintained under the Bombay Homoeopathic and Biochemic Practitioner's Act, 1959, it shall be the duty of the Registrar to give intimation of such removal to the authority entitled to maintain the said register or the said list.
(3) If the name of a registered practitioner is also entered in the register or the list, as the case may be, maintained under any of the laws referred to in sub-section(2) and it is removed from the said register or the said list, the Council shall if such removal comes or is brought to its notice, also remove the name of such registered practitioner from the register under this Act.
(4) The Council may, on sufficient cause being shown, direct at any subsequent date that the name of a practitioner removed under sub- section(l) or (3) shall be re-entered in the register on such conditions, and on payment of such fee, as may be prescribed.
(5) The council may, of its own motion, or on the application of any person after due and proper inquiry and after giving an opportunity to the person concerned of being heard, cancel or alter any entry in the register if, in the opinion of the Council, such entry was fraudulently or incorrectly made. (6) In holding any inquiry under this section, the Council or the Executive Committee, as the case may be, shall have the same powers as are vested in Civil Courts under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely :-
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(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of
documents ;
(c) issuing of commissions for the
examination of witnesses.
(7) All inquiries under this section shall be deemed to be-judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code.
(8) (a) For the purpose of advising the Council or the Executive Committee, as the case may be, on any question of law arising in any inquiry under this section, there may in all such inquiries be an assessor, who has been for not less than ten years -
(i) An advocate enrolled under the Advocates Act, 1961, or
(ii) an attorney of a High Court.
Explanation:- For the purposes of this clause, in computing the period during which a person has been enrolled as an Advocate, there shall be included any period during which he was enrolled as an Advocate under the Indian Bar Councils Act, 1926.
(b) Where an assessor advises the Council or the Executive Committees on any question of law as to evidence, procedure or any other matter, he shall do so in the presence of every party or person representing a party, to the inquiry who appears thereat or if the advice is tendered after the Council or the Executive Committee has begun to deliberate as to its findings, every such party or person as aforesaid shall be informed what advice the assessor has tendered. Such party or person shall also be informed if in any case the Council or the Executive Committee does not ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 7 wp999.18.O.odt accept the advice of the assessor on any such question as aforesaid.
(c) Any assessor under this section may be appointed either generally, or for any particular inquires or class of inquire, and shall be paid the prescribed remuneration.
6] The learned Division Bench of this Court, in the matter of Dr. Megha Mahendra Topale v. Navi Mumbai Municipal Corporation and others reported in 2014(5) Mh.L.J. 323, has dealt with a similar situation wherein a letter of warning was issued by the M.M.C. under Section 22 (1)(a) and the M.M.C. held that the medical practitioner was guilty of a misconduct after holding an enquiry. It was held by the learned Division Bench that the stage of issuing a letter of warning would come into play only if the practitioner is found guilty of any misconduct after holding an enquiry in the prescribed manner. It was specifically held in paragraphs 12, 13 and 14 as under:
12. In so far as issuance of letter of warning to a practitioner is concerned, the same is stipulated by Section 22 (1) (a) of the Act of 1965. Such letter of warning is to be issued to a practitioner after holding due inquiry and on finding him guilty of any misconduct. The expression "misconduct" has been explained in Section 22 (1) of the Act of 1965 to mean conviction of a registered practitioner by a criminal court for an offence which involves moral turpitude and which is cognizable within the meaning of the Code of Criminal Procedure, 1973. Under Rule 62 of Rules of 1967 the Council can hold an inquiry as regards the misconduct for the purposes of ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 8 wp999.18.O.odt Section 22 of the Act of 1965.
13. In the present case, admittedly, no inquiry has been held against the petitioner as contemplated by Chapter VI of the Rules of 1967. In fact, the petitioner has not yet been found guilty of any misconduct contemplated by the explanation to Section 22 (1) of the Act of 1965. Merely a charge has been framed in the criminal proceedings initiated under Section 23 (2) of the Act of 1994. The stage of issuing a letter of warning would come into play only if the petitioner is found guilty of any misconduct after holding an inquiry in the manner prescribed. The petitioner not having been convicted for an offence involving moral turpitude and there being no inquiry held as contemplated by Section 22 (1) of the Act of 1965 in the manner prescribed, it is clear that the first part of the impugned communication issuing warning to the petitioner is not in accordance with law.
14. Now, coming to the second part of the impugned communication whereby the petitioner has been refrained from undertaking ultra sound / sonography practice is concerned, it is clear that such direction has the effect of suspending the petitioner's registration indirectly without actually suspending such registration. In effect while the registration for the petitioner continues, the petitioner has been directed not to conduct any ultra sound / sonography practice.
This fact is further clear as in the subsequent paragraph of the impugned communication it has been stated that the Council would have liberty to pass an appropriate order of suspension or removal of the petitioner's name from the Register, if any, further irregularities and complaints were reported against her. Thus, without suspending the petitioner's registration she has been directed not to use ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 9 wp999.18.O.odt any ultra sound sonography machine or equipment.
7] The learned Advocate for the M.M.C. places reliance upon an earlier judgment delivered by the learned Division Bench in the matter of Saroj Iyer and another v. Maharashtra Medical of Indian Medicine, Bombay and another reported in 2002 (1) Mh.L.J. 737. It is canvassed that the M.M.C. had issued a notice under section 22 and had commenced an enquiry against a Doctor in view of the complaint received. It is further stated that this judgment, holding that section 22 is a comprehensive provision which provides for conducting an enquiry and awarding punishment, was not cited before the learned Division Bench in Dr. Megha Mahendra Topale case (supra). 8] I have gone through both the judgments cited and I find it appropriate to reproduce paragraphs 3, 4, 5, 6 and 7 of the Saroj Iyer judgment (supra) hereunder.
3. In response to the writ petition, the first respondent filed initially an affidavit opposing admission of the petition and thereafter filed affidavit in reply after rule was issued. The first respondent has set up the case that the right claimed by petitioners to attend the enquiry proceedings under Section 22 of the Act of 1965 cannot be an absolute right and petitioners cannot claim as a matter of right to attend the enquiry proceedings. The diverse reasons given therefor are that Maharashtra Medical Council is a professional tribunal and is entitled to regulate its own proceedings which would include holding of proceedings in camera; the reputation of a person against ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 10 wp999.18.O.odt whom complaint is lodged is sacrosanct and cannot be allowed to be damaged, tarnished or prejudiced if the complaint is frivolous or bogus and, therefore, publication of establishment of the truth in the enquiry proceedings in camera proceedings would be essential. In the affidavit in reply it is admitted that Maharashtra Medical Council is quasi- judicial body empowered to regulate professional conduct, discipline and ethics in Indian medicine and similar to Medical Council of India are bodies like institute of Chartered Accountants of India constituted under Chartered Accountants Act, 1949, the Bar Council constituted under the Advocates Act, 1961, the Press Council of India constituted under the Press Council Act, 1965, the Dental Council of India constituted under the Dentists Act, 1948 and before all these statutory bodies the disciplinary proceedings are held in camera and are not open to public at large.
4. Mr. Gonsalves, learned counsel appearing for petitioners relying upon the provisions of Maharashtra Medical Council Act, 1965 and the Maharashtra Medical Council Rules, 1967 submitted that the enquiry held by the Maharashtra Medical Council or the Executive Committee of the said Council in respect of misconduct of any registered practitioner under Section 22 of the Act of 1965 is in the nature of quasi-judicial proceedings and thus ordinarily cannot be held in-camera and therefore, there cannot be blanket ban for public from attending such proceedings. He submitted that neither the Act of 1965 nor the Rules framed thereunder provides that the enquiry proceedings under Section 22 shall be held in secrecy or that such enquiry proceedings shall be confidential. The contention of Mr. Gonsalves, learned counsel for petitioners is that fundamental ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 11 wp999.18.O.odt right of first petitioner under Article 19(1)(a),
(d) and (g) of Constitution of India has been infringed by respondent No. 1 viz. Maharashtra Medical Council by not permitting her to attend the enquiry proceedings under Section 22 of the Act of 1965.
5. On the other hand, Mr. Jamdar, learned counsel appearing for Maharashtra Medical Council strenuously urged that by virtue of Section 9(1) of the Act of 1965, the proceedings of the enquiry under Section 22 of the Act of 1965 are confidential and, therefore, general public cannot as a matter of right claim to attend such enquiry proceedings. He submitted that the patient and doctor has fiduciary relationship and in the very nature of such relationship the general public cannot be permitted to attend disciplinary enquiry proceedings against the registered doctor. He submitted that Section 9(1) is applicable to enquiry proceedings under Section 22 of the Act of 1965.
6. The Maharashtra Medical Council Act, 1965 was enacted to unify, consolidate and make better provision in the law regulating the registration of persons practising modern scientific medicine in the State of Maharashtra and to provide for matters connected therewith. Section 3 provides for constitution of the Council for the Maharashtra Medical Council and its composition. Section 8 provides that the meetings of the Council shall be convened, held and conducted in such manner as may be prescribed. It provides for the coram and the presiding authority at the meeting and that all questions at the meeting of the Council shall be decided by majority of votes. Section 9(1) makes a provision that the proceedings of the discussion of every meeting of the Council shall be treated as confidential and no person shall disclose any portion of ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 12 wp999.18.O.odt proceedings of the discussion without the previous resolution of the Council. However, it does not prohibit any person from disclosing or publishing the text of any resolution adopted by the Council unless the council directs that such resolution shall be treated as confidential. Section 10 deals with powers and functions of the Council which inter alia empowers the Maharashtra Medical Council to reprimand the medical practitioner or to suspend or remove him from the register or to take such other disciplinary action against him which may be deemed necessary. Section 11 provides for the Executive Committee. Section 22 enables the Maharashtra Medical Council or its Executive Committee to hold enquiry against the registered practitioner in respect of the alleged misconduct in the prescribed manner and if found guilty of any misconduct to pass an appropriate order contemplated therein including removal of his name from register for a particular period or permanently. In enquiry proceeding under Section 22, the Medical Council or the Executive Committee, as the case may be, has same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 when trying suit in respect of matters viz.
(i) enforcing the attendance of any person, and examining him on oath; (ii) compelling the production of documents; and (iii) issuance of commissions in examination of witnesses. For the purposes of Sections 193, 219 and 228 of the Indian Penal Code, the enquiries under Section 22 are deemed to be judicial proceedings. The State Government has been empowered to frame rules to carry out the purposes of this Act under Section 30 including for Section 8 in respect of manner of convening, holding and conducting meetings of the Council and Section 22 about the manner of holding enquiries. In exercise of its powers conferred by Sub-sections (1) and (2) of ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 13 wp999.18.O.odt Section 30 of the Act of 1965, the Government of Maharashtra has made the Rules titled Maharashtra Medical Council Rules, 1967 (for short 'Rules of 1967'). Chapter I of the rules is preliminary; Chapter II deals with election; Chapter III deals with conduct of business of the Council; Chapter IV makes rules in respect of Executive Committee; Chapters IV-A and V deals with President's powers and duties and registration respectively; Chapter VI deals with the enquiries under Section 22; Chapter VII provides for appeal by a person aggrieved for any decision of the Registrar; Chapter VIII is in respect of the conditions of service of Registrar and other staff and supervisory powers and duties of Registrar; and Chapter IX is miscellaneous.
7. There is no dispute before us that enquiries conducted by the Medical Council or Executive Committee under Section 22 are quasi-judicial proceedings. The question that arises for our consideration is, is it open to Maharashtra Medical Council or the Executive Committee in relation to the enquiries conducted under Section 22 of the Act of 1965 and the Rules framed thereunder to issue blanket ban prohibiting public to attend such enquiry proceedings.
9] I find that the language used in section 22(1) indicates the stage at which section 22 can be invoked by the M.M.C. It has to be preceeded by a due enquiry held by the council or by the Executive Committee in the prescribed manner and the concerned medical practitioner has to be found guilty of a misconduct by the council. The words, "if a registered practitioner HAS BEEN, AFTER DUE ENQUIRY HELD by the council in the prescribed manner , FOUND ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 14 wp999.18.O.odt GUILTY OF ANY MISCONDUCT by the council, the council may" award punishment from amongst the types of punishments prescribed at sub-clause (a) and (b). It can be easily noticed from the language that Section 22 (1) refers to an enquiry which is required to be conducted (past tense) and after the council finds a registered practitioner guilty of a misconduct pursuant to such an enquiry, it was capable of passing an order of punishment under Section 22. 10] The learned counsel for M.M.C. has drawn my attention to section 22 (6) to indicate that it provides for the powers of the council or the Executive Committee, as the case may be, while conducting an enquiry. He then points out sub-section (7) to contend that such enquiry under this section shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the IPC. It is, therefore, canvassed that section 22 would be the provision under which an enquiry is contemplated and is to be conducted. 11] I find it necessary to note that section 22 was introduced in the M.M.C. Act, 1965. At that time, the Maharashtra Medical Council Rules of 1967 were not formulated. Having formulated such rules in 1967, a specific 'Chapter VI - enquiry', was devoted to the procedure and manner of conducting a preliminary enquiry and a full-fledged enquiry. Chapter VI of the rules contains rules 62 to 75. It would be advantageous to reproduce rules 62 to 74 hereunder:
62. Complaints against registered practitioners.-(1) The Council may suo-motu ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 15 wp999.18.O.odt or on any complaint made to it in that behalf hold an inquiry as respects the misconduct of any registered practitioner for the purposes of section 22 of the Act.
(2) Any complaint or information received in the office of the Council about the misconduct of any registered practitioner shall be submitted by the Registrar to the president. (3) No complaint shall be entertained unless it is in writing addressed to the Council and signed by the person making it, and shall state the grounds of complaint, and shall be accompanied by declarations as to the facts of the case. All anonymous complaints may be disregarded.
(4) Every declaration shall state the description and true place of abode of the declarant, and where a fact stated in a declaration is not within his personal knowledge, the source of the information, and grounds for the belief of the declarant in its truth shall be accurately and fully stated. Any declaration or part thereof which is made in contravention of this rule shall not be accepted as evidence. (5) If the President has reason to believe that a complaint is pseudonymous, he may call upon the complainant to furnish further particulars, for ascertaining if the complaint is genuine.
63. Procedure for submission of complaint to Executive Committee.- (1) Subject to the provisions of rule 62, the President may, on going through the complaint and all papers submitted by the complainant, instruct the Registrar to ask the practitioner by means of a registered letter for any explanation he may have to offer.
(2) All the documents pertaining to the complaint including any explanation forwarded by the registered practitioner shall then be ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 16 wp999.18.O.odt referred to the Executive Committee along with the remarks of the president, if any.
64. Power of Executive Committee to refer complaint to Council.-(1) The Executive Committee shall consider the complaint, and may cause further investigation to be made and may take such legal advice by consulting any legal practitioner as it may deem fit. (2) The Committee shall, after consideration of the case, record its opinion and refer it to the council for decision.
65. Action to be taken by Council when case is referred to it.-When a case is referred to it under sub - rule (2) of rule 64, the Council may -
(a) direct the Registrar to call for such additional information as it may desire to have about the points arising in the case;
(b) direct the Registrar to file the papers if in its opinion no prima facie case is made out against the medical practitioner;
(c) exonerate the medical practitioner of the charges leveled against him if the explanation offered by him is considered satisfactory by the Council; or
(d) direct an inquiry to be held in accordance with rules 66 to 73.
66. Cases in which Council to hold inquiry, power of Council to appoint assessor.-(1) In all cases in which an inquiry for purposes of clause (b) of subsection (1) of section 22 is necessary an inquiry shall be held by the council in accordance with the procedure prescribed in rule 67 to 73; and for that purpose the Council may appoint an assessor to advise it as provided in sub-section (8) of section 22 of the Act:
Provided that, such inquiry shall not ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 17 wp999.18.O.odt be necessary in cases where a registered practitioner has been convicted for misconduct within the meaning of clauses (i) and (ii) of the Explanation to sub, - section (1) of section
22. In such cases, the president shall obtain and place before the Council a copy of the Court's Judgment and the Council shall thereupon decide upon the penalty to be imposed under rule 73 read with section 22 of the Act.
(2) An Assessor appointed shall be paid a remuneration of rupees three hundred per day for attendance at an inquiry.
67. Notice of charges on Registered Practitioner.-(1) The President shall cause to be served on the registered practitioner a notice in Form 18 subject to such variation as the circumstances of the case may require. Such notice shall specify the nature and particulars of the charge and shall inform him, of the day in which the Council intended to deal with the case, and shall call upon the practitioner to put in his written statement of his defense within a period of not less than fifteen days or such other period not exceeding sixty days as may be permitted by the Council, and to attend before the Council on such day. The notice shall be sent three weeks before the date of inquiry. Such charge shall be drawn clearly and precisely.
(2) The notice shall be accompanied by a statement of allegations on which each charge is based. The relevant allegations as to facts, the inferences which they lead to, and the circumstances supporting such inferences shall be clearly mentioned along with any other circumstances proposed to be considered while passing orders on the case.
(3) Copies of the relevant documents, if any (including any document given or sent to the ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 18 wp999.18.O.odt Council by or on behalf of the other party which such other party shall be entitled on proper proof to use at the hearing as evidence in support of or in answer to the charge specified in the notice of inquiry) shall also be supplied to the registered practitioner alongwith the notice and statement of allegations.
(4) Copies of any other documents or statements required by such practitioner to prepare his defence may also be supplied to him on request or he may be allowed to take copies.
68. Reply to notice.-The registered practitioner shall, within the time specified in the notice or such extended period as is permitted by the President, put in written statement of his defense, and state whether he desires to be heard in person by the Council.
69. Council and complainant if any, to be supplied with copies of all documents etc.-(1) Copies of all material documents including the written statement of defence, if any, which is placed before the Council as evidence in regard to the case shall be supplied to all members of the Council before the hearing of the case commences.
(2) The complainant may, on application in writing, obtain copies of any explanation, statement or other documents put forth in the defence by the registered practitioner.
70. Legal assistance at inquiry.-At the hearing of the case by the Council, the Council may be represented by any legal practitioner and the complainant, if any, and the practitioner may also be represented or assisted by their legal practitioner:
Provided that, where any advice is tendered to the Council by an assessor ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 19 wp999.18.O.odt appointed under section 22 on any question of law, as to evidence, procedure or any other matter such advice shall be subject to the provisions of section 22 Of the Act.
71. Procedure of inquiry.-(1) Where a complainant appears personally or by a legal practitioner, the following procedure shall be followed, namely-
(a) The Registrar will read to the Council the notice of enquiry addressed to the practitioner.
(b) The complainant will then be invited to state his case by himself or his legal practitioner and to produce his evidence in support of it. At the conclusion of the evidence of the complainant, his case will be closed.
(c) The practitioner will then be invited to state his case by himself or by his legal practitioner and to produce his evidence in support of it. He may address the Council either before or at the conclusion of his evidence, but only once.
(d) At the conclusion of the practitioner's case, the Council shall, if the practitioner has produced evidence, hear the complainant in reply on the case generally, but will hear no further evidence except in any special case in which the Council may think it right to receive such further evidence. If the practitioner produces no evidence, the complainant will not be heard in reply except by special leave of the Council.
(e) Where a witness is produced by any party before the Council will be first examined by the party producing him, and be cross examined by the adverse party, and then re-examined by the party producing him. The Council reserves to itself the right to decline to admit in evidence any declaration where the declarant is not present or declines to submit to cross ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 20 wp999.18.O.odt examination.
(f) The president and the assessor, if any, appointed under section 22 may put questions to the complainant and registered practitioner including any of their witnesses; and members of the Council, through the President, may likewise put questions to them.
(2) Where there is no complainant or no complainant appears, the following procedure shall be followed namely.
(a) The Registrar shall read to the Council the notice of inquiry addressed to the practitioner, and will state the facts of the case and produce before the Council the evidence by which it is supported.
(b) The practitioner shall then be invited to state his case by himself or by his legal practitioner and to produce his evidence in support of it. He may address the Council either before or at the conclusion of his evidence, but only once.
(c) The legal practitioners of the Council, if any, may be heard in reply if the Council so desires.
72. Record of proceedings at inquiries.-The President shall keep a record of proceedings at the inquiry held under rule 71 including the evidence of each witness.
73. Power of Council to give further opportunity to practitioner to make statement.- Notwithstanding anything contained in rule 71, after completion of the inquiry the registered practitioner shall be given a further opportunity of making any oral or written statement. Copies of such evidence as are required by the registered practitioner for making such statement shall be supplied to him.
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74. Decision of Council and Implementation.- As soon as the hearing of the case is over and the registered practitioner has made his oral or written statement, if any, the Council shall deliberate thereon in private and at the conclusion of the deliberation, the president shall pronounce its decision immediately thereafter or at any time thereafter in terms; of clause (a) or (b) of sub - section (1) of section 22; and thereupon the President shall direct the Registrar to inform the parties of the decision of the Council by a registered Cellar and to implement the decision.
[Emphasis supplied] 12] Turning to the phraseology of the various rules under Chapter VI, it is obvious rule 62 pertains to the complaints to be received and to be dealt with, as well as, the power of the council to act suo motu against a registered practitioner for any misdeed. Rule 63 defines the procedure for submission of a complaint to the executive committee and rule 64 provides for the power of the executive committee to refer a complaint to the council. Rule 65 provides for action to be taken by the council when a case is referred to it and clause (b) permits the council to direct an enquiry to be held in accordance with rules 66 to
73. Rule 65 was amended on 02.08.1975. 13] In the above backdrop, Rule 66 permits the council to hold an enquiry in all cases in which an enquiry for the purpose of clause (b) of sub-section (1) of section 22 is necessary. Section 22(1)(b) pertains to a punishment to be awarded to a practitioner in the form of removing his name from the register for a particular period or to remove his ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 22 wp999.18.O.odt name from the register permanently. Rule 66, in my view, therefore, is an eye opener as it mandates an enquiry to be conducted for the purpose of awarding punishment to a registered practitioner under Section 22(1)(b). 14] Rule 67 provides for a notice of charges to be served on a registered practitioner in form 18 and details about the circumstances and the complaint against a practitioner are to be set out so as to enable him to tender his written statement of defence within a period of not less than 15 days and not exceeding 60 days as may be permitted by the council. The notice has to be sent three weeks before the date of enquiry and the charge has to be drawn clearly and precisely. As such, Rule 67 provides for the manner of charging a registered practitioner and the material that is to be supplied to him in order to enable him to take a specific defence. Documents and material available are therefore, not to be suppressed from such a practitioner. Rules 68 and 69 are in continuation to Rule 67 as regards an opportunity of hearing. Rule 70 permits the engagement of a legal practitioner.
15] Rule 71 defines the procedure of conducting an enquiry. I find Rule 71 to be a self contained provision wherein an exhaustive procedure akin to a departmental enquiry being conducted under service Rules, has been enunciated. Rule 72 pertains to the power of the council to give further opportunity to the practitioner to make a statement. Rule 74 is significant as it empowers the council to arrive at a decision and implement its decision after ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 23 wp999.18.O.odt conducting an enquiry. The language indicates that as soon as the hearing of the case is over and the registered practitioner has made his oral or written statement, the council shall deliberate thereon in private and after the conclusion of the deliberation, the President shall pronounce its decision immediately thereafter or any time thereafter in terms of clause (a) or (b) of sub-section (1) of Section 22.
16] I find that the above provisions in such details were not brought to the notice of the learned Division Bench of this Court which decided the case of Saroj Iyer (supra). I further find that after the Rules of 1967 were formulated, with certain amendments that was introduced between 1975 and 1984, the Maharashtra Medical Council should have suitably amended Section 22. There can be no debate that the rules are "hand maid" to the provisions of the Act and the law of interpretation would require a harmonious co-existence of the rules and the provisions under the Act. The rules can never over ride and over bear the main provision.
17] I find from the judgments delivered in Saroj Iyer (supra) and Dr. Megha Mahendra Topale (supra) that the rules were not specifically debated and discussed and as such, both the learned Benches did not have the advantage of considering the rules of 1967 threadbare, by which the M.M.C. devised a specific scheme of conducting an enquiry against a registered practitioner. 18] In so far as, the observations of the learned ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 24 wp999.18.O.odt Division Bench in Saroj Iyer (supra) in paragraph 6 are concerned, the Court was called upon to interpret Section 22 as a stand alone section. Though the rules were cited in Saroj Iyer (supra) and Chapter VI was pointed out, the fact situation as emerging from the case in hand is not similar to the facts in the Saroj Iyer case. In the case in hand, it was specifically observed by the M.M.C. in the communication reproduced above that the registered practitioner should explain his conduct with evidence, failing which, action would be taken under section 22. No enquiry was contemplated.
19] The learned counsel for the M.M.C. submits on instructions that the M.M.C. desires to withdraw the communication dated 01.09.2012 by reserving a right to exercise its powers under Chapter VI of the 1967 rules. The learned Advocate for the petitioner submits that he would seek to question the powers of the council in exercising its jurisdiction under Chapter VI and all contentions of the petitioners may be kept open. 20] In view of the above, this petition is disposed off by permitting respondent no.1 M.M.C. to withdraw the communication dated 01.09.2012. If it desires to exercise its powers under Chapter VI of the 1967 Rules for the purpose of acting under section 22 of the M.M.C. Act, all contentions of the parties are kept open.
21] I, however, find that since there is a conflict of view in Saroj Iyer (supra) and Dr. Megha Mahendra Topale (supra), both delivered by two learned Division Benches of ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 ::: 25 wp999.18.O.odt this Court, I, direct the learned Registrar (Judicial) of this Court to place this matter before The Hon'ble The Chief Justice of the Bombay High Court under Chapter-I, Rule 8 of the Bombay High Court Appellate Side Rules, 1960 for considering a reference to a Full Bench of this Court.
(Ravindra V. Ghuge, J.) NSN ::: Uploaded on - 31/01/2020 ::: Downloaded on - 10/06/2020 22:17:22 :::