Madhya Pradesh High Court
Medical Council Of India vs Dr Rajiv Jain on 2 November, 2017
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
19 (W.A. No.319/2016)
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(D. B.: Hon'ble Mr. P.K. Jaiswal & Hon'ble Mr. Virender Singh J.J.)
W.A. No.319/2016
Medical Council of India
V/s
Dr. Manoj Kela & Ors.
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Shri S.S. Chouhan, learned counsel for the appellant.
Shri A.K. Sethi, learned Senior Counsel with Shri Nikhil Pande,
learned counsel for the respondent No.1.
Shri Deepak Rawal, learned counsel for the respondent No.2 /
Union of India.
Smt. Meena Chaphekar, learned counsel for the respondent
No.3/College.
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ORDER
( Passed on this 2nd day of November, 2017) Per P.K. Jaiswal, J.
This order shall also govern the disposal of W.A. No.320/2016, 321/2016, 322/2016, 323/2016 and 324/2016. Regard being had to the similar controversy involved in the above writ appeals they have been heard analogously together with the consent of the parties and a common order is being passed in the matter.
2. For the sake of convenience the facts are being taken fgrom W.A. No.319/2016.
3. The facts of W.A. No.319/2016 reads as under :-
The respondent No.1 holds Bachelor of Medicine and Bachelor of Surgery and Master of Surgery from MGMC, Indore and is duly registered as a medical practitioner. He was appointed at Sri Aurobindo Institute of Medical Sciences, Indore as a Sr. Resident, Department of Surgery on 24/05/2007 and was promoted to the post of Asst. Professor (Department of Surgery ) on 31/05/2008 and thereafter, promoted to the post of Associate Professor ( Department of Surgery ) on 05/12/2014.19 (W.A. No.319/2016)
4. A complaint by some activist has been filed against the respondent No.1 alleging that the respondent No.1 is doing private practice while serving as a teacher in the medical College. The respondent No.1 has submitted a declaration form i.e. Annexure-P/4 wherein he has categorically mentioned that he is having private practice after the college hours i.e. 5 pm to 8.30 pm. The college has also certified the same. The college has categorically certified that he is not carrying any kind of private practice during 9 am to 4 pm. On 29/01/2015, the Medical Council of India had directed the respondent No.1 to appear before the Ethics Committee at its meeting scheduled on 06/02/2015 at 10.30 am in the office of Medical Council of India. The respondent No.1 appeared before the Ethics Committee on 06/02/2015 along with the written submissions.
5. According to the respondent No.1 no copy of the complaint, on the basis of which, the action was initiated against respondent No.1, was furnished to him and he was shown a black & white photocopy of the photograph of the signboard of the respondent No.1 clinic. In the sign board, timings of the clinic was mentioned as 9.30 am to 1.30 pm. He has submitted an affidavit stating categorically therein that he is not practicing during the working hours of the college. On 9/02/2015, Dean of the respondent No.3/Medical College was called, who gave his appearance before the Ethics Committee on 19/02/2015 and pointed out that frivolous allegations were made whereas the respondent No.1 is not carrying private practice during the working hours of the College. The working hours of the college are from 9.30 am to 4.00 pm and he is entitled to do private practice from 5 .00 pm to 8.30 pm. The Ethics Committee in its meeting after considering the explanation /reply filed by the college as well as by the respondent No.1 recorded the finding that no misconduct was found and referred the matter to the 19 (W.A. No.319/2016) Executive Committee of Medial Council of India.
6. On 21/09/2015, The Executive Committee has deferred with the aforesaid report of Ethics Committee and again referred the matter to the Ethics Committee but no adverse report was given by the Ethics Committee. Thereafter, immediately on 24/10/2015, the order has been passed by Medical Council of India debarring the respondent No.1 from holding the teaching post at Aurobindo Institute of Medical Science College for a period of 3 years.
7. The respondent No.1 challenged the said order by filing W.P. No.7688/2015 on the ground that some activist has submitted complaint making frivolous allegations and the Medical Council of India, without conducting any inquiry whatsoever, deferred the report of Ethic Committee and, thereafter, without granting any opportunity of hearing, as required under the Regulations 8.1 and 8.2 framed under the Indian Medical Council(Professional Conduct, Etiquette and Ethics) Regulations, 2002. On the basis of Regulations No.7.23 and 7.24 which have been deleted on 22/02/2003 passed the order dated 24/10/2015 and prayed for quashment of the same.
8. The appellant/Medical Council of India has filed a detailed exhaustive reply wherein it has been stated that inspection was carried out on 29/30.12.2014 and placed assessors report dated 29/30.12.2014 before the Executive Committee meeting held on 27/01/2015 wherein the Executive Committee and later on, it was placed before the Ethics Committee and thereafter impugned order has been passed. It has been further stated that based upon the photographs of the signboard of the respondent's No.1 clinic, as the time was mentioned from 7 am to 8.30 am and 5 pm to 9 pm, the action has been initiated against the respondent No.1. The respondent No.1 has also stated that he in his declaration form has admitted that he is doing private practice only from 5 pm to 8.30 pm 19 (W.A. No.319/2016) and therefore, in light of the declaration form submitted by the respondent No.1, the action has been initiated and the impugned order has been passed after hearing the respondent No.1.
9. The learned writ court after appreciating the aforesaid material came to the conclusion that the action taken by the Medical Council of India is against the principle of natural justice and as there is no evidence to establish that respondent No.1 was carrying out any private practice during the College hours as also taking into account the Regulation 7.4 of regulations framed under the Indian Medical Council (Professional Conduct, Etiquette and Ethics ) Regulations, 2002 (for short ... Regulations of 2002), which provides that the teacher can be punished for his misconduct if he is carrying on private practice during the working hours, the impugned order passed by the Medical Council of India have to pave the path of extinction. There was a categoric denial of allegations duly supported with documentary evidence and the Medical Council of India, without conducting any inquiry, without proving the allegations, have punished the respondent No.1 and, therefore, quashed the impugned order by allowing all the writ petitions. Para 11 to 18 of the W.P. No.7688/2015 & other connected matters are relevant which reads as under :-
11. In the present case, it is an undisputed fact that the petitioner is working as an Associate Professor in the Medical College. The declaration form submitted and signed by the petitioner Annexure-P/4 is on record, which reflects that the petitioner has categorically stated that he is doing private practice from 5 pm to 8.30 pm and there is an endorsement signed by the Head of the Department as well as the Director of the College and the same reflects that the petitioner is not doing private practice during the college hours i.e. 9 am to 4 pm. He is not carrying out any other private practice during the college hours. The petitioner has been held guilty based upon the photographs of the signboard, which was affixed at his clinic and the visiting card. No independent inquiry, whatsoever kind, took place, nor the petitioner was found 19 (W.A. No.319/2016) at any point of time doing private practice during the college hours in any private college, in his private clinic or any other private hospital.
12. It is not the case of the Medical Council of India that the the petitioner was working in private clinic/ doing private practice, during 9 am to 4 pm. A categoric question was asked to learned counsel for the Medical Council of India to inform this Court, which statutory provision of law debars the teachers working at the medical college from doing private practice after the college hours. Learned counsel has not been able to show any statutory provisions of law which debars the doctor from doing private practice, however, the only requirement which is understood from the notification is that he should not engage himself in practicing or carrying out any other activity during the college working hours. In the present case, the working hours of the college are 9 am to 4 pm. Not only this, a notification has been issued on 21/03/2009 by the State of Madhya Pradesh, which permits all the government doctors to carry on private practice and to work in private hospital, however, the private practice is permissible after the working hours. 13 In the considered opinion of this Court, in absence of any statutory provision of law which dis-entitles the teachers from doing private practice, and in absence of any material to establish that the petitioner is practicing from 9 am to 4 pm and as no independent inquiry of any kind has taken place in the matter, action against the petitioner is bad in law. The assessing committee did not find the present petitioner working during the college hours in any hospital or his clinic and based upon the visiting card and based upon the signboard of the petitioner clinic, he has been punished by the Medical Council of India. The petitioner has also submitted an original photograph of the signboard which is Annexure-
P/7 and timings mentioned therein are from 7 am to 8.30 am in the morning and 5 pm to 9 pm in the evening, meaning thereby, from 9 am to 4 pm, the petitioner is not available at his private clinic. The benefit of the aforesaid has not been given to the petitioner for the reasons best known to the Ethics Committee. It was also stated by the petitioner that the petitioner is not at all doing private practice during the college working hours. Material was brought to the notice of the Committee, however, it has safely been ignored. No independent inquiry with the participation of the petitioner has been taken place in the present case. In the most mechanical manner, without following due process of law, the petitioner has been debarred for a period of three years from working on the teaching post in the medical college. In the considered opinion of this Court, the action taken by the Medical Council of India is against the principles of natural justice.
19 (W.A. No.319/2016)14 . This Court has carefully gone through the judgment delivered in the case of Sri Kanchi Kamakoti Peetam Charitable Trust ( supra ) relied upon by the learned counsel for the respondent / Medical Council of India, wherein action was initiated against college for engaging part-time teachers. The present case is not a case where part-time teachers have been employed by the Institution. The matter placed on record also does not establish the same and therefore, in light of the undertaking given by the petitioner before the Medical Council of India and as there is no evidence to establish that the petitioner was carrying on private practice during the college working hours as also taking into account the regulation 7.24 of Indian Medical Council (Professional Conduct, Etiquette and Ethics ) Regulations, 2002 which provides that the teacher can be punished for his misconduct if he is carrying on private practice during the working hours, the impugned order passed by the Medical Council of India have to pave the path of extinction.
15 In the present case, the respondents have violated the principle of natural justice and fair play. In India there is no statute which prescribes the minimum procedure which administrative agencies or quasi judicial bodies must follow while taking decisions which affect the rights of the individuals. Nonetheless, they are bound by the principles of natural justice. The principles of natural justice signify the basic minimum fair procedure which must be followed while exercising decision making powers. Natural justice forms the very backbone of a civilized society. The wheels regarding the application of principles of natural justice to administrative and quasi- judicial proceedings started turning from 1963 when the House of Lords in the United Kingdom delivered the landmark and oft-quoted judgment of Ridge v. Baldwin [1963] UKHL 2. An order for dismissal of a Constable was quashed because he was not provided any opportunity to defend his actions. Presently, in our country, the principles of natural justice are applicable in totality to administrative and quasi-judicial proceedings. This is consistent and in line with the rapidly increasing role, functions and jurisdiction of such bodies in a welfare state like ours. The below-mentioned passages by the Honâ ble Supreme Court in the case of Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 exhaustively explain natural justice and deserve to be quoted in full in the context of the current dispute:
6. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is 19 (W.A. No.319/2016) to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammaticalniceties. It is the substance of justice which has to determine its form.
7. The expressions natural justice and legal justice do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant defence.
8. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule.
It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play.
10. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
12. Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, L.C. observed as follows:
Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.
13. Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view. To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works (1985 (10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor observed as follows: No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated.
19 (W.A. No.319/2016)He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.
14. Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase justice should not only be done, but should be seen to be done.
15. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute.
What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression â civil consequences âencompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
16. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8,Lord Cranworth defined it as universal justice . In James Dunber Smith v. Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase the requirements of substantial justice , while in Arthur John Specman v. Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl of Selbourne, S.C. preferred the phrase the substantial requirement of justiceâ . In Vionet v. Barrett(1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as the natural sense of what is right and wrong. While, however, deciding Hookings v. Smethwick Local Board of Health (1890 (24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionetâ s case (supra) chose todefine natural justice as â fundamental justice . In Ridge v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with â fair- play in action aphrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967 (2) B 617,
530), Lord Parker, CJ, preferred to describe natural justice as â a duty to act fairlyâ . In Fairmount Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as fair crack of the whipâwhile Geoffrey Lane, LJ.In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase â common fairness.
17. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is nemo judex in causa suaâor nemo debet esse judex in 19 (W.A. No.319/2016) propria causa suaâas stated in (1605) 12 Co.Rep.114 that is, man shall be a judge in his own causeâ . Coke used the form aliquis non debet esse judex in propria causa quia non potest esse judex at parsâ(Co.Litt. 1418), that is, no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party. The form nemo potest esse simul actor et judex, that is, â no one can be at once suitor and judge is also at times used. The second rule is â audi alteram partemâ , that is, â hear the other side. At times and particularly in continental countries, the form audietur at altera pars is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit that is, he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right (See Bosewells case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, justice should not only be done but should manifestly be seen to be doneâ .What is known as useless formality theory has received consideration of this Court in M.C.Mehta v. Union of India (1999(6) SCC 237). It was observed as under: Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of â real substanceâor that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See Malloch v. Aberdeen Corpn: (1971)2 All ER 1278, HL) (per Lord Reid and Lord Wilberforce), Glynn v. Keele University: (1971) 2 All ER 89; Cinnamond v. British Airports Authority: (1980) 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R v. Ealing MagistratesâCourt, exp. Fannaran (1996 (8) Admn. LR 351, 358) (See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be â demonstrable beyond doubtâ that the result would have been different. Lord Woolf in Lloyd v. McMohan (1987 (1) All ER 1118, CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant (1959 NZLR 1014) however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is real likelihood-not certainty- of prejudice. On the other hand, Garner Administrative Law (8th Edn. 1996. pp.271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin (1964 AC 40: (1963) 2 All ER 66, HL), Megarry, J. in John v. Rees (1969 (2) All ER 274) stating that there are always â open and shut cases and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J has said that the â useless formality theory is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that convenience and justice are often not on speaking term. More recently, Lord Bingham has deprecated the useless formality theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton (1990 IRLR 344) by giving six reasons (see also his article Should Public Law Remedies be Discretionary?â 1991 PL. p.64). A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th 19 (W.A. No.319/2016) Edn.1994, pp.526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a â real likelihood of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their â discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma (1996 (3) SCC 364), Rajendra Singh v. State of M.P. (1996 (5) SCC 460) that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. We do not propose to express any opinion on the correctness or otherwise of the useless formality theory and leave the matter for decision in an appropriate case, inasmuch as the case before us, â admitted and indisputable facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J.
16 . Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. With regard to the disputed nature of the useless formality test as discussed in the M.C. Mehta case (see supra), it is important to note that in the instant petition, the petitioner and other similarly placed petitioners, were punished by a common order.
17 The principles of natural justice are firmly grounded in Article 14 and Article 21 of the Constitution of India. Article 14 of the Constitution guarantees equality before law and equal protection of law. Through the process of interpretation, procedural safeguards have been read into Article 14 by the Courts. In Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991 SC 101, the Honâ ble Supreme Court has held that the audi alteram partem rule, in essence, enforce the equality clause in Art 14 and it is applicable not only to quasi-judicial bodies but also to administrative order adversely affecting the party in question unless the rule has been excluded by the Act or Regulation or Rule. Not giving any hearing results in decisions which are arbitrary in nature. Arbitrariness and equality are antithesis of each other. Similarly under Article 21 of the Constitution, no person can be deprived of his life or liberty except according to the procedure established by law. Audi alteram partem forms a part of the procedural due process under the Indian Constitution. Procedure established by law must be just, fair and reasonable and 19 (W.A. No.319/2016) not oppressive, unreasonable or arbitrary. In the present case, allegations were levelled against the petitioner and other identically placed persons. There was a categoric denial of allegations duly supported with documentary evidence and the respondent / Medical Council of India, without conducting any inquiry, without proving the allegations, have punished the petitioner and therefore, the impugned order is bad in law.
18 Resultantly, present writ petition stands allowed alongwith other connected petitions which are arising out of the same dispute and the impugned order dated 24/10/2015 issued by respondent no. 2 / the Medical Council of India is hereby set aside.
C c as per rules.
10. Learned counsel for the appellant has drawn our attention to the declaration form dated 8/12/2014 which is at page - 95 and explanation of the College and has also drawn our attention to the assessors report dated 29/30.12.2014 and submitted that the aforesaid report was placed before the Executive Committee of the Medical Council of India. He submitted that the assessors report dated 29/30.12.2014 was placed before the Executive Committee on 27/1/2015. A letter was issued to appear before the Ethics Committee. He personally appeared before the Court and filed his own affidavit along with detailed reply/explanations, thereafter, the Dean of respondent No.3 / Medical College gave his appearance on 19/02/2015. The matter was referred to the Executive Committee on 4/06/2015 and, thereafter, on 24/10/2015 and 29/10/2015 final order was passed. He submitted that the learned writ court has failed to consider that respondent No.1 had tried to mislead the Ethics Committee. The declaration forms of faculty members contain an endorsement to the effect that the Principal/ Dean and the head of the Department of the Medical College had satisfied themselves with the correctness and veracity of the contents of the Declaration Form including the fact that the medical teachers were working as full time faculty members in the medical college. He lastly submitted 19 (W.A. No.319/2016) that the impugned order passed by the learned writ court has resulted into miscarriage of justice and deserves to be set aside and all the aforesaid writ appeals be allowed.
11. Per Contra, Shri A.K. Sethi, learned Senior Counsel with Shri Shri Nikhil Pandey, learned counsel for the private doctor has drawn our attention to the Regulations 8.1 and 8.2 of the Regulations of 2002 and submitted that before taking action by the Medical Council of India, opportunity of hearing is must. Their contention is that after receipt of complaint or with regard to professional misconduct, the same can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of any professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. to be heard in person or by pleader.
12. They have also pointed out that the regulations 7.23 and 7.24 of Regulations of 2002 have been deleted much prior to the date of complaint i.e. on 22/02/203 and, therefore, no reliance can be placed on the aforesaid regulations nor the same can be taken note of on the aforesaid deleted regulations. They have further drawn our attention to the rejoinder filed by the writ petitioners and minutes of meeting of Ethics Committee dated 16/17.6.2015 and submitted that immediately after receipt of complaint inquiry was conducted by the Ethics Committee. In the said inquiry, respondent No.1 and Dean of the Medical College was called. After considering their 19 (W.A. No.319/2016) explanation, a finding / observation has been made by Ethics Committee which is evident in the minutes of meeting that no misconduct has been found. This finding / observation has not been accepted by the Executive Committee of the Medical Council of India and again the matter was referred to the Ethics Committee but no adverse report was submitted by the Ethics Committee and it was referred to the Medical Council of India. The Medical Council of India without giving any opportunity of hearing to the respondent No.1 as per regulations 8.1 and 8.2 of Regulations 2002 and without considering the fact that the report of Ethics Committee is in favour of respondent No.1 and no misconduct was proved, passed the order dated 24/10/2015 and 29/10/2015 in violation of Regulations 8.1 and 8.2 of Regulations 2002. The learned writ court has rightly gave a finding that the Medical Council of India without giving any opportunity of hearing to them passed the order in violation to principle of natural justice and submitted that the order of learned writ court is just and and proper and prayed for dismissal of all the aforesaid writ appeals.
13. It has also brought to our notice that on 21/03/2009 a notification has been issued by the State Government of Madhya Pradesh which permits all the government doctors to carry on private practice and to work in private hospital, however, the private practice is permissible after the working hours.
14. Regulations 8.1 and 8.2 of regulations 2002 reads as under :-
8 Punishment and Disciplinary Action 8.1 It must be clearly understood that the instances of offences and of Professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of 19 (W.A. No.319/2016) professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils have to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils.
8.2 It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of any professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/Societies/Bodies.
15. In the present case, the respondent No.3 /College very categorically submitted the explanation of the college and stated that the respondent No.1 /Doctor is full time doctor in the Medical College and the working hours of the college are from 9.00 am to 4.00 pm. It is not a case of the appellant that during the work hours of the college, he was found doing private practice nor it was a case of the college that the respondent No.1 is doing private practice during college working hours. All the aforesaid materials were brought to the notice of the Ethics Committee, however, the committee has satisfied the aforesaid and gave finding that no misconduct was found. Thereafter, no further inquiry was conducted by the Medical Council Of India and on the basis of the same finding which was disapproved by the Ethic Committee, the order dated 24/10/2015 was passed in violation of natural justice 19 (W.A. No.319/2016) and without granting any opportunity of hearing to the respondent No.1.
16. The rules of natural justice are not rigid norms of unchanging contents. The application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of doctrine depends upon the nature of the jurisdiction conferred on the administrative authority upon the character of the rights of the person affected, the scheme, and other relevant circumstances disclosed in the particular case. In other words, this would mean that what procedures in a particular case would satisfy the condition of natural justice would vary according to the circumstances of a particular case. In the case in hand, as per minutes of meeting, the report of Ethic Committee was in favour of respondent No.1. No misconduct was found by the said Committee and they referred the matter to Executive Committee, who did not satisfy with that and again matter was referred to the Ethic Committee, but they did not change their view/opinion. Therefore, the Executive Committee and the Medical Council of India without giving any opportunity of hearing and contrary to the report of Ethic Committee, passed the order debarring them for 3 years. Thus, in the facts and circumstances of the case, we are of the view that the procedure in this case would not satisfy the principle of natural justice and order of the appellant was also in violation of Clause 8.1 and 8.2 of 2002 Regulations. Relevant part of Minutes of the meeting of Ethics Committee held on 16th & 20th February, 2015 reads as under :-
The Ethics Committee after perusing the statements of the alleged medical teachers/faculty and affidavit and all relevant documents in respect of all alleged teaching faculty submitted by the Dean of the College, observed that the doctors mentioning in the statement that the Sign Boards of the Clinics were old enough, before they have joined the medical college.
In view of the above, the Ethics Committee 19 (W.A. No.319/2016) discussed the matter in detailed and noted that prima - facie no case of professional misconduct appear against the alleged teaching faculty as well as Dean of Sri Aurobindo Medical College & Postgraduate Institute, Indore.
In view of the affidavit submitted by Dean and other evidences given by doctors, the Committee decided not to take any action against the alleged teaching faculty and Dean of the Medical College.
Accordingly, the matter is disposed of.
The Ethics Committee further considered the matter and noted that the Executive Committee, while considering the Minutes of the Ethics Committee dated 19th & 20th February, 2015, at its meeting held on 04.06.2015, observed as under in the said matter :-
"The Executive Committee of the Council perused the minutes and decided to refer back the following items to the Ethics Committee for reasons as mentioned as under :-
Contention of teachers that the photograph of the signboard is false & tempered cannot be accepted straightaway. The photograph now attached and claimed as "actual" might have been taken at a later date. The statements of the teachers should be compared with the report of assessors and the statements made by the faculty before the assessors of any. Till then, the matter cannot be disposed of."
17. For these reasons, we are of the view that order dated 24/29.10.2015 was passed in violation of natural justice. The learned writ court rightly allowed the writ petitions of the respondent No.1 . W.A. No.319/2016 as well as all connected appeals bearing W.A. No.320/2016, 321/2016, 322/2016, 323/2016 and 324/2016 sands dismissed. No costs.
18. A copy of the order be placed in the record of W.A. No.320/2016, 321/2016, 322/2016, 323/2016 and 324/2016.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
pn/
Preetha Nair
2017.11.08
13:37:39 +05'30'