Orissa High Court
Dr. Kamala Kanta Kar vs Orissa State Board Of Homeopathic ... on 21 August, 1987
Equivalent citations: AIR1988ORI82, AIR 1988 ORISSA 82
JUDGMENT L. Rath, J.
1. The challenge in this writ application is to an order passed by the Orissa State Boardof Homeopathic Medicine, Opposite Party No. 1, cancelling the registration of the petitioner as a homeopathic practitioner and removing his name from the State register of homeopathic practitioners.
2. The petitioner is a registered homeopathic practitioner so registered under the provisions of the Orissa Homeopathic Act, 1956 and is presently the Principal-cum-Superintendent of Dr. Abhin Chandra Homeopathic Medical College and Hospital, a Government Homeopathic Medical College. The petitioner became a listed homeopathic practitioner in 1964 and was registered on 3-5-1969. The order of removal of the name from the register is dated 12-6-1986.
3. Opposite Party No. 1 is a statutory body created and functioning under the Orissa Homeopathic Act, 1956 (for brevity 'the State Act'). The law relating to homeopathic practitioner of t he State is as contained in the State Act as also in the Central Act known as the Homeopathy Central Council Act, 1973 (Act 59 of 1973) (for brevity 'the Central Act'). A homeopathic practitioner is listed under the State Act as a listed homeopathic practitioner or as a registered homeopathic practitioner and by virtue of his name being entered in the State register he is also enrolled in the Central register. Section. 25(1) of the Central Act provides that if the name of any person enrolled on the State register of homeopathy is removed therefrom, the Central Council shall also direct the removal of such person from their register. The consequence of cancellation of registration and removal of the name from the registers of homeopathic practitioners is a bar stipulated under Section 50 of the State Act against practising as a homeopathic doctor with a penalty provided under Section 51 for contravention of the same and under Section 43 no person other than a registered homeopathic practitioner qualified from an institution recognised by the Board is competent to hold an appointment as medical officer of health, physician or other medical officer in a homeopathic hospital maintained or aided by the State Government or any local authority. Loss of registration also visits a practitioner with the consequence of not being able to sign or authenticate birth or death certificates, sign or authenticate medical or physical fitness certificates or give evidence at any inquest or in any Court of law as an expert relating to the homeopathic system of medicine which privileges he otherwise enjoys in accordance with the provisions of Section 29.
4. The action taken against the petitioner by opposite party No. 1 is as a consequence of a disciplinary proceeding initiated against him on the allegation of his having been guilty of professional misconduct and infamous conduct. The substance of die charges which were eight in number was as follows :
(i) The petitioner bearing registration No. C/21 of the Board had married one Smt. Sarat Kumari Kar in 1954 and had a female child through her. During the subsistence of that marriage he again married one Smt. Bijayalaxmi Pani in 1963 and had also sworn an affidavit of having effected plural marriages, a conduct which is in contravention of the Hindu Marriage Act and is punishable under the Indian Penal Code. Such infamous conduct is violative of the provisions of Section 25 of the State Act.
(ii) Having two legally married wives, before, after and at the time of issue of registration No. C/21 amounts to infamous conduct and had it come to the notice of the Board before issue of the registration licence, the registration would not have been allowed and the licence in question would not have been issued in his favour.
(iii) The petitioner on the strength of being a registered homeopathic practitioner and possessing licence as such became eligible for appointment as a Lecturer in the Government Homeopathic Medical College (renamed as Dr. Abhim Chandra Homeopathic Medical College) and is at present holding the post of the Principal-cum-Superintendent, which post he could not have held in the absence of the said licence in view of the bar contained in Section 43 of the State Act.
(iv) As the Principal of the Govt, Homeopathic medical College he is to attend the meetings of the Medical Faculty of Homeopathy, Utkal, as an ex officio member till he continues as such. He was deliberately and wilfully not attending the meetings and refused the attend the same which is against the interest of the Board and against the development of homeopathy and this amounts to professional misconduct and infamous conduct within the meaning of Section 25 of the Orissa Homeopathic Act, 1956.
(v) While prosecuting his studies in D. N. De Homeopathic Medical College and Hospital, Calcutta, the petitioner had in his possession the certificate of being a homeopathic practitioner by virtue of which he was competent to practise homeopathic system of medicine. While prosecuting his studies at Calcutta he had not surrendered his certificate and hence in the eye of law while he was studying in the college he was a practitioner of homeopathy. The listed homeopathic certificate he did not surrender till 1969 when he applied for becoming a registered homeopath. This constitutes a professional misconduct and infamous conduct. Had it been brought to the notice of the authorities he would not have been allowed to undergo the said course of training with the consequence that he might not have been eligible to be registered under Section 21(2)(c) of the Orissa Homeopathic Act, 1956. This he has done by fraudulent means.
(vi) The petitioner though was a Government servant in the year 1964 he was also then prosecuting homeopathy studies in D. N. De Homeopathic Medical College and Hospital, Calcutta which was not practically and physically possible and not permissible under the governing rules. The Commission of such an act was only possible through fraudulent means and hence the diploma obtained by him had been obtained through fraudulent means.
(vii) He was also attending the classes in the Biraja Homeopathic Medical College, Jaipur and obtained the diploma of M.D.M.S. after successful completion of the said course during the year 1960 while in Government service. The two were not simultaneously permissible under the provisions of the governing rules and hence the qualification acquired by him had been done so through fraudulent means.
(viii) He was conferred with the diploma of D.M.S. by the Council of Homeopathic Medicine, West Bengal, on 5-4-1969 after successful completion of the course, but he was working as a House Physician in the D. N. De Homeopathic Medical College and Hospital from 16-9-1968103-6-1969, i.e. even after being competent to practise homeopathic medicine, surgery and midwifery from 5-4-1969. Continuance of house physican training till 3-6-1969 after obtaining the diploma on 5-4-1969 was not permissible under any circumstances since conferment of a diploma succeeds the training whether, the training is mandatory or not. Hence, such training the petitioner had undergone through fraudulent means.
On such charges he was called upon to show cause as to why action under Section 22(3) and Section 25(1)(b) of the Act as deemed fit and proper shall not be taken against him.
5. The petitioner submitted explanation to the charges in Annexure B and also submitted an affidavit by way of explanation in Annexure D. Besides, he also submitted a written argument before the Board which has been annexed to the counter-affidavit as Annexure C. A counter-affidavit has been filed by opposite parties 1 and 2 and a separate counter-affidavit has also been filed by an intervener, Dr. P. K. Mohapatra, whose intervention has been allowed by order dated 28-10-1986. The intervention petition was on the ground that the intervener has filed O. J.C. No. 2485/85 (since transferred to State Administrative Tribunal on 17-7-1986) challenging the eligibility of the petitioner on the ground of plurality of marriage and that the intervener is vitially interested in the result of the present application. The petitioner has filed a rejoinder to the counter-affidavit filed by opposite parties 1 and 2.
6. Mr. B. M. Patnaik, learned counsel appearing for the petitioner, has urged that the order passed by opposite party No. 1 is beyond their competence as being not contemplated under the State Act; the findings reached by the Board could not have been reached by a reasonable man; and that the punishment imposed against the petitioner was never through a bona fide process. According to him, the charges levelled against the petitioner for professional misconduct and infamous conduct are misconceived since the allegations apart from being not substantiated are also such which are neither professional misconduct nor infamous conduct.
7. The proceeding against the petitioner was purportedly initiated both under the provisions of Section 22(3) as well as Section 25(1)(b) of the State Act. At this stage, it is necessary that the respective provisions are referred to.
"22(3). The Board may, on its own motion, or on application by any person, after due and proper inquiries and after giving an opportunity to the person concerned of being heard, cancelor alter any entry in the register, if, in the opinion of the Board such entry was fraudulently or incorrectly made."
"25. Prohibition of the entry in or removal from the register : --
(1) The Board may prohibit the entry in, or order the removal from the register, the name of any homeopathic practitioner-
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(b) whom the Board after inquiry has found guilty of professional misconduct or other infamous conduct by a majority of at least two-thirds of the members present and voting in the meeting specially convened for the purpose.
XX XX"
While no procedure has been laid down in the Act for the purpose of holding the enquiry under Section 22(3), Section 26 enjoins that in an enquiry under Section 25( l)(b) the Board shall exercise the powers of the Commissioner under the Public Servants (Inquiries) Act (Act 37 of 1850) and that provisions of Sections 5, 8 to 10, 14 to 16, 19 and 20 of the said Act shall, as far as may be, apply to any such enquiry.
8. Both the sections contemplate different situations for their applicability. Section 22(3) authorises the Board, either of its own motion or on the application of any person, after due and proper enquiry and after giving opportunity to the person concerned of being heard, to cancel or alter any entry in the register, if, in its opinion the entry has been incorrectly or fraudulently made. Thus, in essential, the entry in the register can either be cancelled or altered if :
(i) The Board is of the opinion that the entry was fraudulently or incorrectly made;
(ii) Such opinion is reached by the Board after due and proper enquiry; and
(iii) An opportunity is given to the person of being heard.
The section does not enjoin any particular procedure to be followed in making the enquiry, but however, directs a mandate that due and proper enquiry be made and the person concerned be heard. It is now well settled that an enquiry for the purpose of imposition of penalty is a quasi-judicial proceeding and has to be conducted in accordance with the well-recognised concepts of natural justice, the minimum of which postulates, as was held by the Supreme Court in AIR 1969 SC 198, (Suresh Koshy George v. University of Kerala), that the person proceeded against should know the nature of the accusation made, he should be given an opportunity to state his case and that the Tribunal must act in good faith. Expounding the same principle, the procedure to be followed in such enquiry has been set out in greater detail in a Full Bench decision of this Court in (1972) 38 Cut LT 349 : (AIR 1972 Orissa 224), (Pramila Dei v. Secretary, Board of Secondary Education, Orissa, Cuttack).
9. Section 25( 1 )(b) on the other hand lays down the power of the Board to either prohibit an entry being made in the register or direct the removal of the name of a homeopathic practitioner therefrom, if after enquiry by the Boardthe practitioner concerned is found guilty of professional misconduct or other infamous conduct. Thus while under Section 22(3), apart from an entry incorrectly made, which is not relevant for this case, practice of fraud is the determining factor to enable the Board to cancel or alter any entry in the register, cases of professional misconduct or other infamous conduct are covered under Section 25(1)(b) to enable the Board for taking action either to prohibit the entry being made or if already made, to remove it. It has however to be borne in mind that for taking an action under Section 22(3), the alleged fraud must have been practised upon the Board and misled it to make the entry having been duped by the fraud. It is needless to say that under Section 25(1)(b), so far as prohibition of an entry being made is concerned, the professional misconduct or infamous conduct must, in point of time, have happened prior to the entry being made, but however it would not be correct view to hold that for the purpose of removal of the entry, the offensive conduct must have taken place only after the entry has been made, i.e. if such conduct had taken place prior to the entry, such conduct cannot form the basis of a proceeding for removal of the name. The provision of Section 25(1)(b) does not stipulate any such limitation in its applicability nor such a conclusion necessarily follows. Such an argument might have been available if the Board could be said to have been vested with the knowledge of such conduct on the part of the practitioner prior to the entry of his name in the register. But from the scheme of the Act, such an inference is not spelt out A homeopathic practitioner becomes entitled to be registered, on making an application in the prescribed form, either as a registered homeopathic practitioner or a listed homeopathic practitioner if he satisfies the eligibility conditions as set out in Sections 21(2) and 21(3) of the Act respectively and also deposits the prescribed fees. The prescribed form 'G' with the instructions for filling it up of course does not provide for voluntary supply of any information of any professional misconduct or infamous conduct on the part of the applicant. Section 21 contemplates an obligation on the part of the Registrar to enter the name in the register only if he is satisfied that the person concerned is qualified, has made the application in the prescribed from and has paid the required fees. The Board as such cannot be imputed with the knowledge of any conduct on the part of the petitioner which might lead to his being stripped of the privilege of a registered or listed homeopath.
10. The relative spheres of Sections 22(3) and 25(1)(b) being as discussed above, it is to be seen as to which of the provisions the respective charges relate. A reference to the charges does not yield any result, except in cases of a few, as to under which of the provisions they come. The fundamental of any proceeding seeking to impose a penalty is that the charge must be specific and this is more particularly true so far as this case is concerned since the scope of the allegations under the two charging sections is widely different and the procedure of enquiry in respect of each section is also different. If the charges are not specific, it causes real prejudice to the delinquent as effectively jeopardising his defence to be taken. So far as charges Nos. (i) and (iv) are concerned, they specifically refer to Section 25 of the Act. Charge No. (ii) is to the effect that the conduct under charge No. (i) being an infamous one, had it been known to the Board earlier, the petitioner would not have been able to get his name registered There is no allegation therein that any fraud had been practised upon the Board and hence the charge, if at all, would be covered under Section 25. Charge No. (v) alleges the conduct of the petitioner as that of being fraudulent and that if the conduct of the petitioner had been brought to the knowledge of the competent authorities, he might not have been allowed to undergo the course of training in Calcutta and might not have been eligible to be registered under Section 21(2)(c) of the State Act and that hence the has done so through fraudulent means. This charge thus can be said to have been made under Section 22(3). So far as charges (iii), (vi), (vii) are concerned, the latter/three charges speak of fraud on the part of the petitioner, whereas charge No. (iii) though does not speak of fraud in so many words, yet is of similar type as the other ones. These charges, if at all, can only relate to Section 22(3).
11. So far as the charges purported to be covered under Section 22(3) are concerned, as has been seen, they can only be said to be established against the petitioner on the finding of the fraud to have been practised upon the registering authority itself in making the entry in the register. In the context of the charges, a fraudulent conduct on the part of the petitioner would mean of his having deliberately concealed some information relating to his conduct which he was otherwise under an obligation to disclose to the registering authority but had not done the same, or had made some false representation regarding such conduct which led the registering authority to be duped by it and being victim of such a fraud had unwittingly allowed the petitioner to be registered as a homeopathic practitioner.
So far as charges (iii), (vi), (vii) and (viii) are concerned, it does not appear from the very allegations therein of the Board being in any way concerned with the same even if the facts would have been true since they do not allege any fraud practised against the Registrar or the Board. So far as charge No. (iii) is concerned, it only says that had the conduct of the petitioner been known, he would not have been issued a licence and in the absence of such licence he would not have become eligible for appointment as a lecturer in the Government Homeopathic Medical College in view of the bar contained in Section 43 of the State Act. The charge proceeds only on the basis of assumptions and hypotheses. As long as the petitioner holds the registration, he is entitled to be appointed in the Government College and the Board is no authority to take exception to it. What consequence would follow, even if the petitioner's registration is cancelled on the ground of fraud, so far as his employment under the Government is concerned, is a matter for them to decide, but is clearly outside the authority of the Board for any exercise on it.
The allegation in charge No. (v) also does not speak of any fraud having been practised upon either the Registrar or the Board. The gist of the charge is that the petitioner pursued the homeopathic course in D. N. De Homeopathic Medical College and Hospital, Calcutta without surrendering his certificate of being a homeopathic practitioner and thus in effect continued to be capable of practising homeopathy even while he was continuing as a student in the college, a fact if it would have been brought to the knowledge of the college authorities would have made him unable to pursue the course and he might not have been eligible to be registered under Section 21 (2)(c) of the State Act. The petitioner possessed a valid diploma from the college and on the basis of such diploma was statutorily entitled to be a registered practitioner under Section 21(2)(c) of the Act. There is no option in the Registrar not to register a person who holds a diploma Whether the petitioner obtained the diploma by practising fraud on the college authorities or upon the West Bengal Council is not a matter of concern of the opposite party No. 1. As long as the petitioner validly possesses the diploma and it has not been withdrawn, if at all, by the body which has issued it, the opposite party No. 1 would have no authority to go behind the same, question the validity of the diploma and then come to the conclusion that the petitioner might not have been registered, if such fact was known to the Board. Mr. Mohanty, appearing for opposite party No. 1 has also not been able to cite any provision under which the certificate is to be surrendered while taking training in the College. No such charge could be levelled against the petitioner and was entirely a misconceived one.
Similarly, the allegation under charge No. (vi) was never one for the opposite party No. 1 to investigate. If the petitioner was guilty of obtaining a diploma fraudulently from the West Bengal Council, it was for that body to take action and opposite party No. 1 would have certainly no business to initiate action upon the same. The petitioner has throughout denied the allegations as has been levelled against him and has contended that throughout the peirod he was pursuing the studies at Calcutta, he was not physically continuing as a Government servant. If the petitioner was actually continuing as a Government servant and yet had pursued an academic career at Calcutta, then he might have made himself accountable for any illegality committed by him either to the West Bengal Council or to the State Government, but certainly the opposite party No. 1 cannot automatically hold that the diploma obtained by the petitioner was through fraudulent means. For the same reasons, charge No. (vii) is also to fail. Whether the petitioner was attending the classes in the Biraja Homeopathic Medical College at Jajpur and obtained a diploma while being in Government service is not a matter for the Board to concern itself with it and declare that the diploma had been obtained through fraudulent means. It is not said that the petitioner did not pursue the course in the homeopathic college at Jajpur and rather it is the very case that he obtained the diploma after successful completion of the course. If in doing so the petitioner had violated any conditions of service, then it is for the Government to take action. It is always possible for a Government employee to pursue a course of study with the permission of Government. The charge states that simultaneous continuance in Government service and in college was not permissible under the governing rules. No such governing rules could be cited though Mr. Mohanty was asked for the same. In view of that, it could not be said that the diploma was obtained by the petitioner through fraudulent means and at any rate it could not be said to be a fraud practised by the petitioner upon the registering authority so as to get his name registered. The diploma would continue to be a valid one until in a separate proceeding, if at all, it is withdrawn but before that there is nothing to show that in getting himself listed or registered, any fraud was practised upon the Board in that regard. Charge No. (viii) is in similar vein. The assertion that training was not possible to have been undergone after conferment of the diploma by the West Bengal Council as not being permissible under any provision of law has not been substantiated before us. Besides, if such training, after obtaining the diploma, had been undergone through fraudulent means, it is again not a fraud, if at all, practised upon the registering authority or the Board in obtaining the registration under Section 21 (2)(c) of the Act.
Thus, all the charges which could relate to Section 22(3) of the Act properly do not fall under that provision and no proceeding could be taken against the petitioner on such account. The charges must accordingly fail.
12. Section 25(1)(b) enables the Board to take action only if a homeopathic practitioner has been guilty of professional misconduct or other infamous conduct. Neither 'professional misconduct' nor 'other infamous conduct' has been defined in the State Act. There is absolutely nothing in the State Act to indicate what would constitute professional misconduct or other infamous conduct. Section 24 of the Central Act makes provision for prescribing the standards of professional conduct, etiquette and code of ethics for homeopathic practitioners as also for framing of regulations by the Central Council for the purpose. The section is as follows : --
"24.(1) The Central Council may prescribe standards of professional conduct and etiquette and a code of ethics for practititioners of Homeopathy.
(2) Regulations made by the Central Council under Sub-section (i) may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct, and such, provision shall have effect notwithstanding anything contained in any law for the time being in force."
13. The power of the Central Council to frame regulations under Sub-section (2) is for the purpose of Sub-section (1) and while laying down the standard of professional conduct, etiquette and code of ethics, the regulations may also specify as to which violations thereof would constitute infamous conduct in any professional respect, that is to say professional misconduct. A reading of the provision thus shows that under the Central Act, professional misconduct is in-famous conduct in any professional respect and that the regulations are to specify when can a conduct be said to be infamous in professional respect so as to constitute a professional misconduct. In other words, after prescribing the professional conduct, etiquette and the code of ethics for homeopathic practitioners, the regulations are to categorise when a particular conduct practised in violation of the standard of professional conduct, etiquette and the code of ethics would be infamous conduct in the profession and hence would constitute a professional misconduct. Thus, so far as the provision of Section 24 goes, infamous conduct is contemplated only with relation to the profession and is not different from professional misconduct. Requirement of Section 25(1)(b) of the State Act however is different which speaks of professional misconduct and also of other infamous conduct pointing to the fact that 'other infamous conduct' is different from 'professional misconduct'.
14. So far as Section 24 of the Central Act is concerned Regulations have been framed by the Central Council with the previous sanction of the Government, as required under Section 33 of the Central Act, known as Homeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982. In the Regulations, Chap. VII containing Regulation No. 38 deals with professional misconduct. Regulation 38 declares that "The following actions shall constitute professional misconduct". Clauses (1) to (13) of Regn. 38 enumerate different types of professional . misconduct, but however none of them include or relate to any conduct as has been levelled against the petitioner, i.e. the conduct alleged against the petitioner are not shown there to be professional misconducts.
15. The Central Act is of the year 1973 whereas the State Act is of the year 1956. The Central Act in its objects and reasons purports to relationalise the different Acts in different States and to evolve a common code of professional conduct, etiquette and a code of ethics. Both the Central Act and the State Act relate to entry 26 of the Third List of the VII Schedule to the Constitution of India and hence the provisions of the Central Act, so far they apply, override the provisions of the State Act, in accordance with Article 254 of the Constitution of India. Thus, where the State Act refers to professional misconduct and the Central Act makes provisions for the same, the provisions of the Central Act would ipso facto apply and would constitute professional misconduct for the purpose of Section 25(1)(b) of the State Act. But however the fact remains that the Central Act does not enumerateany "infamousconduct" different from professional misconduct. The result therefore is that while none of the conduct alleged against the petitioner is a professional misconduct as specified in the regulations framed under the Central Act, there is nothing in the legislations, either of the State or of the Union, so as to bring the alleged conducts within the ambit of "other infamous conduct."
16. In the absence of categorisation with legislative sanction as to what would constitute the "other infamous conducts", a homeopathic practitioner cannot be held to be guilty of such conduct. A professional misconduct or an infamous conduct so as to form the basis for imposition of penalty has to be specific and uniform and cannot be left to individual definitions and vagaries of different charging authorities. The concept of professional misconduct or infamous conduct may vary from person to person and to leave the determination of the question to uncertainties on each occasion by different authorities at different times would lead to an impossible and chaotic situation leaving the Board wide open to a charge of discrimination and arbitrariness. The question came up for decision before the Supreme Court in AIR 1984 SC 1361, (A. L. Kalra v. Project and Equipment Corpn. of India Ltd.) where dealing with a problem it was observed :
"Rule 4 bears the heading 'General'. Rule 5 bears the heading 'misconduct'. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A General expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut, (1984) 1 SCC 1 : AIR 1984 SC 505, where this Court held that 'everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty'. Rule 4 styled as "General" specifies a norm of behaviour but does not specify that its violation will constitute, misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-clauses of Rule 5 which specifies misconduct. It would, therefore, appear that even if the facts alleged in the two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that Rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct."
In a casebefore thisCourt, i.e. (1985) 2 Orissa LR 494, (Dr. (Smt.) Sushila Mishra v. Union of India) a departmental proceeding was quashed since Rule 3 of the Central Civil Services (Classification, Control and Appeal) Rules, 1969 did not specify the acts alleged against the petitioner in that case, i.e. the taking away of several items of medicine for the petitioner herself and the members of her family, as a misconduct. In that view of the matter, it cannot be said that any of the acts alleged against the petitioner in charges (i), (ii) and (iv) either constitute professional misconduct or other infamous conduct so as to enable the Board to take action under Section 25(1)(b) of the State Act.
17. In view of the foregoing discussions, the conclusion is inevitable that the charges levelled against the petitioner either under Section 22(3) or under S, 25(1)(b) of the State Act could not form the subject-matter of a disciplinary proceeding against him and as such since the very charges were not contemplated under the two sections, the power sought to be exercised by the Board was not only illegal but was without jurisdiction as well since even though the Board has the jurisdiction to initiate actions under either of the provisions or under both, yet an attempt to exercise such jurisdiction on the basis of some factual averments which in themselves do not satisfy the ingredients of the provisions would in itself be without jurisdiction. Such an action would be even without any initial competence for initiation making itself liable for being struck down.
18. Though it is not necessary, having reached such conclusion, to discuss whether the findings reached against the petitioner on his alleged misconducts were legally reached, yet the error committed by opposite party No. 1 in reaching the findings is so apparent oh the face of it that it will be worthwhile to notice some of it. The first charge against the petitioner in substance is of having two legally married wives though it is obvious that a second marriage cannot be termed as legal. As the very order imposing the punishment shows, the charge was found to be established on two documents, i.e. a petition filed by Dr. P.K. Mohapatra, the intervener, before the Board, and a copy of the relevant portion of the affidavit filed by the petitioner before the Administrative Tribunal, Orissa, enclosed to the very petition of the intervener, as also the statement of the intervener examined before the Board The finding of the Board is shown to be based on the fact that neither in his preliminary reply to the notice to show cause, nor in the final reply which he filed by way of an affidavit, the petitioner has denied that he had two married wives living and hence it was concluded that the charge of plural marriage against the petitioner had been established. The petitioner throughout took the stand that he is a Government servant and that this very charge had been enquired into by the Administrative Tribunal of the Government and that the Government had exonerated him of the charge and thus it could no longer be enquired into by the Board Whether or not the stand of the petitioner was correct, he certainly never admitted the charge and hence it was incumbent on the part of the opposite party No. 1 to have established the same on proper evidence and could never hold the charge to have been established merely on a non-denial since in view of the stand taken by the petitioner, it could not be said that the allegation against him stood proved on the principles of non-traverse. He traversed the charge in his written statement and in a subsequent affidavit, but questioned the competence of the enquiry into that charge. The charge was a serious one and itself recited that practice of bigamy was in contravention of the Hindu Marriage Act and was also punishable under the Indian Penal Code. Short of positive admission, it could never be said that the charge was admitted. The file relating to the disciplinary proceeding was produced before us by Mr. Mohanty, learned counsel for opposite party No. 1, containing the statement of the intervener before the Board. It is surprising to see that in his statement the intervener stated as having no personal knowledge of the petitioner's marriage for the second time during the lifetime of the first wife and said that his entire knowledge of the fact was derived from the affidavit filed by the petitioner before the Administrative Tribunal. The affidavit itself was never called for by the Board A private copy of some extracts of the affidavit which was even not attested as 'true copy' by the intervener, but filed by him along with his petition was relied upon. Apart from the question whether such a copy could have been acted upon by the Board which, we are sure, was not available to be utilised for any purpose, a perusal of the same also nowhere shows of an admission of marriage by the petitioner for a second time during the subsistence of his marriage with the first wife. All that it shows is that the petitioner having stated of leading his own family life with one Smt. Bijayalaxmi Pani since the wife Smt. Sarat Kurnari Devi had severed all relationship with him and his family by deserting him and his family since long. This by itself does not establish a marriage of the petitioner with Bijayalakshmi Pani. It thus can be said that it was a case of absolutely no evidence on which the finding is based.
19. Similarly, another allegation held to have been found against the petitioner is that he had been granted a certificate by the Biraja Homeopathic Medical College, Jajpur of his having undergone a full-time course in the college and having appeared in the examination in the month of June, 1960 and obtaining the certificate on 2nd July, 1960 but as per his own statement in his application dated 19-6-64 ('G' form) for being enlisted as a listed homeopathic practitioner, he stated that he was in Government service since 1957. It was purported to be found that the petitioner had not denied such allegation and that the certificate so obtained from the Biraja Homeopathic Medical College was produced before the Board to obtain the listed licence No. 844/A through fraudulent means. No such charge had ever been made against the petitioner. The only charge relating to the facts is charge No. (vii) to the effect that the qualification of diploma of M.D.M.S. (H) had been obtained by the petitioner through fraudulent means since he could not be simultaneously a Government servant and also a student of the College. But even otherwise the charge could never be said to be established since the very 'G' form, i.e. the petitioner's application for being enlisted as a listed homeopathic practitioner was produced before us which shows that he was in regular and continuous homeopathic practic since 1954 apart from having obtained the M.D.M.S. (H) qualification and was thus eligible to be entered in the register as a listed homeopathic practitioner under the provisions of Section 21 (3) (a) as being a person who had been practising homeopathic system of medicine for at least three years at the time when the first Board was constituted. There is nothing to show that he was enlisted as a listed practitioner on the basis of his diploma qualification from the Biraja Homeopathic Medical College and even if the petitioner would have been taken not to have obtained that diploma, yet he was entitled to be listed on the basis of his continuous practice since 1954. Even another charge against the petitioner, i.e. charge No. (iv) was regarding his non-attendance of the faculty meetings. This by itself, by no stretch of imagination, could be termed as a professional misconduct or infamous conduct. It had been pointed out by the petitioner tc the Board that he was an ex officio membei and that the only penalty for non-attendance of the meetings was that he shall cease to be a member. We have no hesitation to hold that a member of the faculty would have the freedom to either attend the meetings or not and could not be placed under a proceeding by the Board only for that.
20. Two submissions made by Mr. Mohanty urging the rejection of the case need to be noticed. The first one needs mention only for outright rejection, i.e. that in a proceeding for issue of a writ of certiorari, this Court is not to act as an appellate authority and re-assess the evidence. The proposition is too well settled to be in any way questioned, but however it has no application in the case before us since the action of opposite party No. 1 has been found to be without authority not on any re-appraisal of the evidence, but because of the fact that the charges themselves were misconceived in law. The other contention raised is that the petitioner having not exhausted the alternative remedy of appeal available to him under Section 25(2) of the Central Act, he should not be entitled to any relief by invoking the extraordinary jurisdiction of this Court. The submission is legally unsound. It has been authoritatively held in a series of decisions of the Supreme Court as well as of this Court that the prohibition to grant relief under Article 226 of the Constitution of India when an alternative remedy has not been resorted to is only a self-imposed limitation adopted more for the necessity of propriety than as a mandatory requirement of law and that such a policy has no application where the act complained of is that of violation of the principles of natural justice, or one of lack of jurisdiction. Even apart from it, nothing prevents the prerogative of the High Court to issue a writ of certiorari in a fit case where recourse to the alternative remedy would be unnecessary, lengthy and circuitous and the question involved for interpretation would be more appropriately decided by the High Court, such as cases involving purely questions regarding interpretation of law. Since we have come to the conclusion that opposite party No. 1 was acting without jurisdiction, the question of non-exhaustion of the statutory remedies has no relevance and recedes to the background.
21. In the result, the petition is allowed with costs and the orders passed cancelling the registration of the petitioner and the order for removal of his name from the Register of Homeopathic Practitioners as also the publication of the order in the Orissa Gazette are quashed and he shall be deemed to have always continued as a Registered Homeopathic Practitioner validly. Hearing fee is assessed at Rs, 300/-.
B.K. Behara, J.
22. I agree.