Madras High Court
D.D.Medical College And D.D.Hospital vs Secretary To Government Of India on 26 September, 2011
Author: T.S.Sivagnanam
Bench: M.Y.Eqbal, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26..09..2011
CORAM
THE HONBLE Mr.M.Y.EQBAL, CHIEF JUSTICE
and
THE HONBLE Mr.JUSTICE T.S.SIVAGNANAM
W.A.Nos.1500 & 1664 of 2011
and
M.P.Nos.1 + 1 of 2011
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W.A.No.1500 of 2011
D.D.Medical College and D.D.Hospital,
rep. by its Chairman Dr.T.D.Naidu,
No.61, D.D.Nagar Bus Stop,
Kunnavalam Post,
Tiruvallur District,
Chennai 631 210. ..Appellant.
Vs.
1. Secretary to Government of India,
Ministry of Health and Family Welfare,
(Department of Health and Family Welfare),
Nirman Bhawan,
New Delhi 110 011.
2. The Medical Council of India,
Pocket 14, Sector 8,
Dwarka, Phase I,
New Delhi 110 077. . Respondents.
W.A.No.1664 of 2011
Board of Governors,
In supersession of
The Medical Council of India,
rep. by the Law Officer,
Pocket 14, Sector 8,
Dwarka, Phase I,
New Delhi 110 077. ..Appellant.
Vs.
1. D.D.Medical College and D.D.Hospital,
rep. by its Chairman Dr.T.D.Naidu,
No.61, D.D.Nagar Bus Stop,
Kunnavalam Post,
Tiruvallur District,
Chennai 631 210.
2. Secretary to Government of India,
Ministry of Health and Family Welfare,
(Department of Health and Family Welfare),
Nirman Bhawan,
New Delhi 110 011. ..Respondents.
PRAYER: Both the appeals have been filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 08.08.2011 passed in W.P.No.13052 of 2011.
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Mr.Altaf Ahmed, Senior Counsel :: For Appellant in W.A.No.1500/2011
for Mr.G.Sankaran & Mr.K.K.Mani & 1st respondent in W.A.No.1664/2011
Mr.P.S.Raman, Senior Counsel :: For Appellant in W.A.No.1664/2011
and Mr.Amit Kumar Assisted by 2nd respondent W.A.No.1500/2011
Mr.V.P.Raman & Ms.Jannavi Raghuraman
Mr.Velayutham Pichaya :: For 1st Respondent in W.A.1500/2011
& For 2nd Respondent in W.A.1664/2011
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C O M M O N J U D G M E N T
The Honble The Chief Justice & T.S.Sivagnanam, J.
Both the appeals have been filed against the order of the learned single Judge dated 08.08.2011 passed in W.P.No.13052 of 2011, whereby the learned single Judge set aside the impugned order passed by the Medical Council of India dated 19.05.2011 refusing renewal of permission, on the ground of violation of the principles of natural justice, and remanded the matter back to the Medical Council of India to consider and pass orders afresh on the grant of renewal for the appellant - Medical College for admitting second batch of students to the MBBS Course for the academic year 2011-2012. Writ Appeal No.1500 of 2011 has been filed by the Medical College concerned and Writ Appeal No.1664 of 2011 has been filed by the Medical Council of India.
2. The brief facts, which are necessary for the disposal of these appeals, are stated hereinbelow :-
After considering the application made by the appellant Medical College, the Board of Governors of the Medical Council of India issued a proceedings dated 12.07.2010 under Section 10(A) of the Indian Medical Council Act, 1956, permitting them to establish a new Medical College viz., D.D.Medical College and Hospital at Chennai, with an annual intake of 150 students from the academic year 2010-2011. The said permission was for the period of one year and liable to be renewed on yearly basis based on the inspection to be conducted by the Assessors deputed by the Medical Council of India. Pursuant to such permission, the college started Medical Course with 150 students from the academic year 2010-2011. The College has also been issued with provisional affiliation by the Tamil Nadu Dr.M.G.R.Medical University as per its proceedings dated 25.08.2010. Thereafter, on 14.03.2011 the Medical Council of India issued a letter nominating three Assessors for assessment of physical and other teaching facilities available in the College for renewal of its permission for the second batch of MBBS Course for the academic year 2011-2012. They inspected the College on 15.03.2011 and 16.03.2011, and found that the College has fulfilled all the norms and requirements with reference to teaching faculty as well as infrastructural facilities, and prepared its report accordingly. The College, while seeking its yearly renewal for the academic year 2011-2012, also sought permission for an additional intake of 250 students, as it has the required teaching as well as the infrastructural facilities for the additional intake also. But, the College was issued with a show cause notice dated 10.05.2011 stating that some of the Doctors produced before the Assessment team as Full Time Professors in the College are working in other medical colleges. A reply was sent on 16.05.2011 denying the allegations in the show cause notice and stating that the Doctors referred to in the show cause notice are actually appointed and working only in the appellant College. The college has also furnished the details relating to their orders of appointment, joining reports as well as the relieving orders issued by the colleges where they had been working earlier. A second show cause notice was also issued on 18.05.2011, raising the same allegation, but this time with regard to some other doctors. For this also a reply on the same lines was submitted by the College.
3. On the very next day viz., 19.05.2011 the Medical Council of India issued the impugned proceedings refusing to renew permission for admission of second batch of MBBS students for the academic year 2011-2012 on the ground that the Assessors were forced and threatened by the college authorities during their inspection on 15.02.2011 and 16.02.2011, and two of them submitted their complaints regarding the coercion and threat meted out to them. The appellant college challenged the same by filing the aforesaid writ petition.
4. In the writ petition it was pleaded that the impugned order was passed in blatant violation of the principles of natural justice, and it is ex facie illegal and arbitrary. Further, it was contended that the impugned order was passed without application of mind, since the inspection took place only on 15.03.2011 and 16.03.2011 and not on 15.02.2011 and 16.02.2011 as alleged in the impugned order. It was further pleaded that if the threat and coercion as alleged in the impugned order is true, the earlier show cause notices dated 10.05.2011 and 18.05.2011 should have mentioned this incident, but they did not mention anything about such incident. Therefore, it is an afterthought on the part of the MCI authorities.
5. In the counter affidavit filed by the Medical Council of India, it was stated that MCI vide its letter dated 20.10.2010 informed the College that the inspection would be undertaken between 01.11.2010 and 28.02.2011. But the Dean of the College sent a letter dated 15.11.2010 requesting to arrange for inspection only during the month of March, 2011. Hence, the assessment was conducted on 15.03.2011 and 16.03.2011 and the assessment report was received under sealed cover on 17.03.2011. Subsequent to the assessment report, two of the Assessors came to the office of the Medical Council of India and narrated the details of coercion and threat meted out to them by the Chairman of the 1st respondent Medical College. They also stated that the Chairman of the College forced them to write their report in his presence, and therefore, no confidentiality would be attached to the report of assessment. The Assessors also stated that they recorded the voice of the Chairman in their cell phones and that would prove the manner and mode, in which coercion was applied to them. It was further stated in the counter that the Assessors were not permitted to verify the number of patients in the hospital and teaching facility on the first day of inspection.
6. After hearing the learned counsel on either side and after perusing the material on record, the learned single Judge passed the impugned order setting aside the proceedings of the Medical Council of India dated 19.05.2011, and remanded the matter back to the authorities concerned. The concluding paragraph of the impugned order passed by the learned single Judge is quoted hereinbelow :-
25. Since I have come to the said conclusion, I have not gone into the other disputed issues, particularly with reference to the e-mail. According to the petitioner, the e-mail dated 15.04.2011 sent by Dr.S.C.Mahapatra to one of the Board of Governors does not contain any specific complaint against the petitioner. On the other hand, according to the second respondent, the college that is referred to in the e-mail is the petitioner college as Dr.S.C.Mahapatra went for inspection along with Dr.B.L.Sherwal only to this college and not to any other college. The petitioner could urge all grounds including the veracity of the e-mail dated 15.04.2011, when the petitioner is heard on the allegations referred to above and the second respondent could consider the same and decide the issue.
26. I am not inclined to agree with the submissions made by the learned counsel for the second respondent that the petitioner was given hearing relating to the show cause notices dated 10.05.2011, 18.05.2011, 31.05.2011 and 01.06.2011 and based on those materials, the impugned order could be sustained, since two notices were issued subsequent to the impugned order dated 19.05.2011. Furthermore, it is admitted by the second respondent in their letter dated 15.06.2011 addressed to the first respondent that replies to the show cause notices received from the faculty and the college were under consideration. In the written arguments also, the second respondent stated that the show cause notices relating to fake faculty members is still under consideration of the second respondent. If the second respondent stated in their letter dated 15.06.2011 that no decision was arrived at based on the show cause notices, referred to above, the second respondent could not now advance arguments before this Court that the impugned order could be sustained based on the show cause notices and the replies received thereon. Further, the petitioner alleged that the statements obtained from the concerned Doctors and the Colleges wherein they are said to have been employed, are not furnished to the petitioner. In the said circumstances, the show cause notices did not reach its finality. The judgments relied on by the learned Senior Counsel for the petitioner in Mohinder Singh Gill's case (cited supra) and Chandra Singh's case (cited supra) applies to the facts of this case, that the impugned order could not be sustained by adducing fresh evidence and the judgment in Chairman, All India Railway Recruitment Board and Another Vs. K.Shyam Kumar and others reported in 2010 (6) SCC 614 relied on by the learned counsel for the second respondent is not applicable to the facts of this case.
7. Mr. Altaf Ahmed, learned senior counsel appearing for the D.D.Medical College and Hospital assailed the impugned order passed by the learned single Judge mainly on the ground that when the learned Judge came to the conclusion that the impugned order as contained in the letter dated 19.05.2011 refusing renewal for the Medical College was in utter violation of the principles of natural justice and the same was set aside, then the matter should not be remanded back to the MCI to reconsider and pass fresh orders, instead the learned Judge ought to have allowed the writ petition and issued direction for the renewal or permission to the College for admitting the second batch of MBBS students for the academic year 2011-2012.
8. Learned senior counsel firstly drew our attention to the different documents available in the typed set. He submitted that admittedly the College was inspected on 15.03.2011 and 16.03.2011 by a team of Assessors who completed the inspection and found that the College fulfilled all the norms and requirements with reference to teaching faculty as well as infrastructure facilities. The said report was submitted by the Assessors in a sealed cover. Learned Senior Counsel further submitted that from the information received under the Right to Information Act, it is evidently clear that the Inspection Report by the Assessors in sealed cover was placed before the Board of Governors of the MCI on 29.03.2011 and the Board of Governors took a decision 03.04.2011 that renewal of permission for admission of second batch of students for the academic year 2011-2012 may be granted. However, the Under Graduate Section of the Board of Governors made a note that the decision granting renewal of permission was not communicated due to the reason that some of the teaching faculty which they had shown at the time of assessment has been traced out in two medical colleges.
9. Learned senior counsel further submitted that in the impugned letter dated 19.05.2011 the appellant was communicated that the Board of Governors decided not to renew the permission for admission of second batch of students after considering the complaints made by the two Assessors regarding coercion and threat meted out to them during the assessment. Learned Counsel submitted that no complaint in writing was made by the two Assessors save and except one e-mail sent by one of the Assessors to Dr.Sita Naik, a Member of the Board of Governors. Learned Senior Counsel drawn our attention to the e-mail and submitted that in the e-mail no specific complaint has been made by the Assessors against the D.D.Medical College, but only general complaint has been made against many colleges without disclosing the names of those colleges. Further, this complaint was made by way of e-mail on 15th April, 2011 i.e., one month after the inspection was carried out and the Assessment Report was submitted. According to the learned Senior Counsel the Medical Council of India changed their stand in their counter affidavit by saying that oral complaints have been made by the Assessors on the basis of which the Board of Governors took a decision not to grant permission. The said decision taken by the Board of Governors has not been brought on record by the Medical Council of India.
10. Learned senior counsel lastly submitted that the only ground for the denial of permission as appeared in the impugned letter is on the basis of the complaint made by the Assessors regarding use of threat and coercion and not on the ground of deficiency in infrastructure. Hence, after the decision taken by the Board of Governors on 03.04.2011 granting permission to the College i.e., the decision was taken on the basis of the Assessment Report. The other grounds subsequently made by the Medical Council of India for refusing renewal are afterthought and are without any basis.
11. Per contra, Mr. P.S. Raman, learned senior counsel appearing for the Medical Council of India firstly contended that in the facts and circumstances of the case, the principles of natural justice is not attracted and the learned single Judge has misdirected himself in law holding that there is a violation of principles of natural justice in refusing to renew the permission to the College. Learned senior counsel drew our attention to the Medical Council of India Regulations and the Scheme and submitted that under Regulation 8(3) the permission is to be granted for one year subject to renewal of permission and not otherwise. Learned Senior Counsel further submitted that it is totally incorrect to say that renewal was granted by the Board of Governors on 03.04.2011. Learned senior counsel also refuted the allegation made by the College that the Chief Vigilance Officer of the MCI was instrumental in the matter of grant of renewal for the medical college. He submitted that, as a matter of fact, the renewal of permission has not been dealt at all by the Chief Vigilance Officer of the Medical Council of India. It has been signed by Dr.M.C.Kapilashrami, Consultant and Dr.Sita Naik, the then Member of the Board of Governors. He further submitted that the noting of Dr.Davinder Kumar, Joint Secretary dated 29.03.2011 on the file will reveal that the Assessment Report was in sealed cover on the said date also and Dr.Sita Naik, erstwhile Member of the Board of Governors directed that the said Report be placed before the Undergraduate Committee, and thereafter, on 3rd April, 2011, Dr.Sita Naik, one of the Member of the Board of Governors recommended for the grant of renewal of permission for the second batch. Immediately, thereafter two of the Assessors lodged complaint with the MCI about the coercion and threat made by the Chairman of the College at the time of inspection. The MCI immediately obtained legal opinion, and thereafter, the Board of Governors including the Chairman held a meeting and decided to reject the application of the college for renewal of permission.
12. In the course of argument, we directed the learned senior counsel for the Medical Council of India to produce before us the noting files in order to substantiate his arguments. In compliance of the said direction he has produced the same before us and we perused the file and the notings made thereon. We also perused the notings contained in the documents procured by the College under the Right to Information Act. The relevant portions of the notings are extracted hereinbelow:-
It may be stated that section has received a sealed envelope from Col.S.Kapoor (Diary dated 17/03/2011) with regard to Assessment report of D.D.Medical College & Hospital, Tamil Nadu.
The said envelope is submitted for consideration & directions, please.
- sd-
21/3/11 The above Assessment report may be placed before Board of Governors for consideration & further direction in the matter, if agreed to please.
- sd -
29/3/11 In view of the above, the sealed Assessment report may be placed before Board of Governors for consideration & further direction in the matter, if agreed to please.
-sd-
29/3/11 In view of above, the sealed Assessment report is submitted for consideration and evaluation, please.
-sd-
(Dr.Davinder Kumar) Joint Secretary Place before UG Committee
- sd -
Renewal of permission for admission of 2nd batch in 2011-12 may be granted.
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OPINION The matter relating to the inspection of D.D.Medical College and D.D.Hospital for academic year 2011-12 has been placed for my opinion.
Brief factual background required to be stated herein for giving the opinion on the issue arising out of the above said college is stated herein under:
The Board of Governors deputed team of Assessors consisting of Col.S.Kapoor, Professor, Department of Surgery-Clinical, Command Hospital, (Coordinator), Dr.S.C.Mahapatra, Professor of Physiology, AIIMS, Dr.B.L.Sherwal, Professor of Microbiology, Lady Hardinge Medical College.
Team of Assessors assessed the medical college on 15.03.2010 and 16.03.2011. The report was received under sealed envelope from Col.S.Kapoor on 17.03.2011. As per the report submitted by them, the Medical College met all the requisite norms laid down in the Regulation of Medical Council.
However, after submitting the report Dr.S.C.Mahapatra, Professor of Physiology and Dr.B.L.Sherwal, visited the office of MCI at Dwarka. They met the Board of Governors. In the meeting, they disclosed that the coercion has been applied on them and the report of inspection of the medical college has been submitted under coercion. It was also said by them that the Co-ordinator was lured by the Management an offer of appointment to the post of Dean of said college was made to him after his retirement next year.
I was also called by the Board and in my presence and in the presence of Professor Kapilashrami who has been looking after the work of inspection of Medical Colleges, they narrated the whole incident as to how, Dr.T.D.Naidu thrashed one class-four employee of the college in front of them on the very first day. It was said by them that it was done deliberately to cause fear in them. They also stated that they were forced to speak by Dr.T.D.Naidu to large number of influential persons over phone. They also stated that Dr. T.D.Naidu of the Medical College openly threatened them. It was stated by them that no confidentiality to the report of the assessment is attached as Dr.T.D.Naidu forced them to write the report in his presence. They also said that they have recorded the voice of the Dr.T.D.Naidu in cell phone which would prove that manner and mode of coercion was applied on them. It was also said by them that they were not permitted to check the number of patient in hospital and teaching faculty on the first day of inspection.
I advised them to place the above said incidents in writing to Medical Council of India. They promised that they will do so and would bring the incident in writing next day. However, they did not come next day. An email was sent on 15.04.2011 by Dr.S.C.Mahapatra to one of the Board of Governor expressing fear for life. In email, it was stated that he will do so only when, the assurance is given to him about his safety and safety of his family members. It was also stated that he is ready to give some more evidence, if his personal and safety of his family members are assured. Dr.S.C.Mahapatra in his email dated 15.04.2011 also disclosed that after coming out of the MCI, Dr.Sherwal received calls regarding the meeting.
Now, the issue which has been placed before me for my consideration is as to whether on the complaints of two Assessors which have been made orally and by e-mail, the Board of Governors in supersession of MCI can take appropriate action on them.
In my opinion, it is a very serious violation of the authority of the Medical Council of India. The wrongful attempt has been made by the medical college. It must not be tolerated. It is fit case of rejection of report and denial of permission for renewal. The Medical College cannot be permitted to use force either directly or indirectly on the Assessors as they are eyes and ears of the MCI. The sanctity of the system is depended on objectivity and fairness in which Assessors are required to assess the college. Thus, the attempt by the college authority to influence and obtain favourable report goes against the vey idea and principle that the college must not do anything which is contrary to law. I have no doubt in mind that the College authorities have acted illegally and it calls for strict action in the form of denial of permission for renewal for this year.
There is no legal bar in acting on such complaints. Both the Assessors have made allegations orally. The complaint has come in the form of e-mail also. Thus, e-mail of one of the Assessor coupled with the allegations narrated orally by two Assessors are sufficient for taking action against the college. Moreover, it has also come to the notice that Dr.T.D.Naidu of the Medical College has written in favour of one of the official of the MCI also. Therefore, the nexus of Dr.T.D.Naidu with the MCI official cannot be completely ruled out.
In my considered opinion, the complaint of the Assessors have to be taken seriously and the brazen and illegal attempt made by the College requires stern punishment and, therefore, it would be advisable to reject the application for renewal of permission.
[AMIT KUMAR] Retained Advocate 12.05.2011.
Chairman, Secy. For Comments
-sd-
13.05.2011 The Legal Retainer in his opinion has referred to the nexus of the MCI official with Dr.T.D.Naidu.
On examination of connected file, it is observed that Dr.T.D.Naidu, who is the Chairman of DD Medical College and DD Hospital, Chennai and, is also the Chairman of All India Medical Association, has, vide letters dated 10/11/2010, 27/11/2010 and 14/12/2010, has written to the Ministry of Health & Family Welfare, directing that Board of Governors to promote Dr.Devender Kumar to the post of Additional Secretary.
It may be noted that renewal of permission for admission of 2nd batch for the academic year 2011-2012 was approved by the Member, BOG. However, on April 9, 2011 the complaint had been received which was referred to Legal Retainer for opinion. In this regard e-mail from one of the Assessor had been received on April 15, 2011 by Dr.Sita Naik, Member of BOG. The opinion of legal retainer extensively deals with the issue.
It appears that the apprehension of Assessor that somebody from MCI has leaked the information about their meeting with BOG is correct. The coercion applied by Dr.T.D.Naidu on Assessors is against the law and requires punishment and the application of the college for renewal of permission may be rejected.
-sd-
(Dr.Sangeeta Sharma) Secretary BOG
-sd-
-sd-
13/5-sd-
13/5/2011 Chairman
-sd-
13/5/11.
13. Mr.P.S.Raman, learned Senior Advocate, continuing his arguments on behalf of the Medical Council of India, submitted that the principles of natural justice under certain circumstances can be given a goby and the Court will examine as to whether the facts of the case warrants dispensing with the principles of natural justice such as an opportunity to show cause and an opportunity of personal hearing. It is further submitted that the report of the inspection conducted on 15.03.2011, and 16.03.2011 will be communicated to the college either with the order of approval or the rejection order and until then the report is confidential. It is further submitted that the writ petitioner accepted that they were communicated with the inspection report for the first time on 18.07.2011, in response to their application under the RTI Act. However, the writ petitioner produced a copy of a unsigned inspection report in the typed set of papers filed alongwith the writ petition and this fact was specifically pointed out in the counter affidavit filed by the MCI and there is no denial of the statement and it has not been explained as to how the writ petitioner got the unsigned report. With reference to the E-mail dated 15.04.2011, it is submitted that the first three paragraphs were relateable only to the writ petitioner and the two assessors whose names are mentioned in the E-mail and who had given complaints to the MCI did not jointly inspect any other college except the writ petitioner college. Therefore, action was initiated based on such report E-mail, and legal opinion from the retained Advocate was obtained and thereafter, the Secretary considered the same and with her recommendations placed it before the Board and the Board including the Chairman of MCI decided not to renew the permission to the writ petitioner college which was communicated by order dated 19.05.2011. It is further stated that after the writ petitioner obtained an interim order from the learned Single Judge for a limited period, issued an advertisement in the Tamil Daily on 20.06.2011 calling for applications from candidates for admission to the first year MBBS course 2011-12 and the same was illegal, in view of the specific bar contained in the letter permission dated 12.07.2010 and even if, there was an interim order for limited period, there is no permission to the writ petitioner to admit the students. It is further contended that complaint was received in this regard that the writ petitioner has called for applications for the current session without permission. Thus, the learned Judge was justified in declining to issue the writ of Mandamus as sought for by the petitioner.
14. The learned Senior counsel further submitted that there are several other serious allegation against the writ petitioner with regard to infrastructure facilities and producing a list of fake faculty members and show cause notices have been issued to the said Professors, who have filed affidavit stating that they never worked in the writ petitioner institution nor they were present at the time of inspection on 15.03.2011 and 16.03.2011. By relying upon the amended regulations of the MCI which came into force with effect from 16.04.2004, in case of fake certificates or such other matters, the approval is liable to be refused for two years and in this regard show cause notices have been issued to the writ petitioner and by then as the order dated 19.05.2011 (impugned order in writ petition) was passed, further proceedings were not taken on such show cause notices for which, the writ petitioner had also submitted his reply. The learned Senior counsel further submits that even if the order dated 19.05.2011, is to be set aside, it cannot automatically result in issuance of a direction to enable the writ petitioner to admit students for the current academic session. It is further reiterated the staffing is a farce and therefore, the conduct of the writ petitioner is for from satisfactory and the MCI was fully justified in passing the order dated 19.05.2011, and the question of issuing show cause notice is not mandatory more particularly in the facts and circumstances of the case when the two assessors complained about their threat to life. In this regard reliance was placed on the decisions of the Hon'ble Supreme Court in (1973) 1 SCC 805 [Hira Nath Mishra v. Principal, Rajendra Medical College], (2003) 9 SCC 75 [ Sahadeo Singh v. Union of India] and AIR 1985 SC 1416 [Union of India vs. Tulsiram Patel]. It is further submitted that though there may have been a file noting by one of the member (Dr.Sita Naik) stating that approval may be considered, it is not the final word and the decision has to be taken by the Board of Governors in its meeting and communicated to the writ petitioner. The learned Senior counsel further submitted that the file notings are of little avail and the same cannot be relied upon and it is only the final decision in the matter which is communicated to the writ petitioner affecting his rights will be the order and reliance cannot be placed on the file notings or the individual opinion of any of the members. In this regard, the learned Senior counsel placed reliance on 2009 1 SCC 180 [Sethi Auto Service Station v. Delhi Development Authority]. Finally the learned counsel concluded by submitting that the inspection conducted on 15.03.2011 and 16.03.2011 is vitiated and no reliance can be placed on the alleged report which was recorded on account of the threat and cohersion meted out on the assessors.
15. In reply Mr.Altaf Ahmed, learned Senior counsel appearing for the writ petitioner submitted that even as per the legal opinion of the retained counsel of MCI, the assessors did not give any written complaint and the only basis is the E-mail in which there is no allegation against the writ petitioner and the E-mail does not specify any college and it is a hearsay which cannot be relied upon. Further it is contended that the file noting by the Secretary on 13.05.2011, and allegation against the Chairman of the college are actuated by malice and such allegations are irrelevant. Further, it is contended that an administrative decision would be vitiated if it is based on irrelevant consideration. That there is no direct knowledge about the said incidents and a decision cannot be taken based on hearsay. The learned senior counsel placed reliance on (2009) 15 SCC 221 [Madhya Pradesh State Cooperative Dairy Federation Limited v. Rajnesh Kumar Jamindar ] on the power of judicial review and (2010) 9 SCC 437 [Kalabharati Advertising v. Hemant Vimalnath Narichania] for the proposition as to what is malice in law. The learned Senior counsel further submitted that the allegation regarding deficiency of faculty is another cause of action and the same was not the basis for issuance of the impugned order and the same cannot be placed before this Court in order to create prejudice. Further it is contended by the learned Senior counsel that there is nothing wrong for the writ petitioner to possess a unsigned inspection report and it is not the case of the respondents that possession of such document is prohibited under the Official Secrets Act. Though reference has been made about the voice recording in a cell phone the same was not produced and therefore, the entire factual matrix as projected by MCI is a thick mist of prejudice. The learned Senior counsel further submitted that though an advertisement was issued on 20.06.2011, no students were admitted by the writ petitioner. Lastly it is submitted by the learned counsel that the writ petitioner institution satisfies all the criteria stipulated for grant of extension of approval and they are open for inspection at all times.
16. Having given our anxious consideration to the elaborate submissions made on either side, it would be relevant to note that the inspection of the writ petitioner institution was carried out on 15.03.2011 and 16.03.2011 by a team of three assessors nominated by the MCI. The report of such inspection was signed by the three assessors and sent in a sealed envelope by one of the assessor Col.S.Kapoor to the MCI on 17.03.2011. The file notings reveal that the sealed envelope was submitted for consideration and directions on 28.03.2011. Further, a note has been made on 29.03.2011, stating that the assessment report may be placed before the Board of Governors for consideration and further direction. This note has been further endorsed by another official on the same date. The Joint Secretary of MCI has then placed the assessment report for consideration and evaluation on 29.03.2011. There is a further endorsement, without date, to place the report before the UG Committee. Subsequently, there is another endorsement stated to have been made by one of the Board member Dr.Sita Naik on 03.04.2011, stating renewal of permission for admission of second batch in 2011-12 may be granted. This endorsement/file noting is the sheet anchor of the writ petitioners case. Thereafter, there is nothing on record to show about the further proceedings which took place before the Board and on 15.04.2011, an E-mail has been addressed to Dr.Sita Naik by one of the assessor Dr.C.Mahapatra.. This according to the MCI was a starting point which ultimately let to the decision not to grant renewal of permission for the second batch -2011-12. Therefore, for the first time the assessors appear to have made a complaint, though no such written complaint or statement finds placed in the record, alleging that the Chairman of the institution cohersed the assessors to make a favourable report. It remains unexplained as to what happened for nearly one month after the completion of the inspection and we fail to understand as to why the assessors, who are stated to hold a distinction in their respective field, did not made any written complaint either to the MCI or to any other agency about the events which is stated to have taken place during inspection. The explanation now given by the learned Senior counsel for the MCI is that they were apprehensive to lodge a complaint that too in writing and there was fear of their life to be in danger.
17. It may be observed that if the allegations made by the assessors are established in a manner know to law, it is a very serious matter which cannot be ignored. The next event which appears to have taken place after the assessors complaint before the MCI is obtaining a legal opinion from their retained Advocate. This opinion dated 12.05.2011 was directed to be placed before the Secretary for comments by a note made by the Chairman on 13.05.2011. The Secretary has put up a note proposing rejection of renewal of permission. This proposal has been accepted by the Chairman and other Board of Governors, which was communicated to the writ petitioner on 19.05.2011. It is true that the Secretary in her note has referred to certain letters alleged to have been written by the Chairman of the institution to promote one Dr.Devender Kumar to the post of Additional Secretary which may not be relevant for the question of consideration of renewal of permission. In the third paragraph of the note put by the Secretary she had dealt with the opinion of the retained Advocate of MCI and appears to have concurred with his opinion. Thus there appears to have been some allegation against the institution and its Chairman in the manner in which he had acted when the inspecting team visited the college on those two dates. Yet, no concrete proof emerges from the files. However, ultimately the Board of Governors took a decision to refuse permission. As rightly pointed out by the learned counsel appearing for the MCI that the note made by Dr.Sita Naik on 03.04.2011 cannot be construed as permission granted by the Board and at best could be taken to be her individual opinion/recommendation. However, it would be relevant to point out that the E-mail sent by one of the assessor was addressed to Dr.Sita Naik and this E-mail is stated to be the starting point. Therefore, much credence cannot be attached to the recommendation made by Dr.Sita Naik on 03.04.2011 as ultimately, the said member also concurred with the other Board of Governors in rejecting the permission.
18. In Sethi Auto Service, referred supra, before the Honble Supreme Court, two petroleum outlets were the appellants and were aggrieved by their eviction on account of construction of eight line express highway between Delhi to Gurgaon and their request for resitement was negivated. The appellants contended that their representation was considered by the Delhi Development Authority (DDA) in terms of its policy and its technical committee headed by the Vice Chairman himself found, the appellants to be eligible and recommended resitement of the two outlets and therefore, it was not open to DDA to do a volt-face and reject the representation of the appellants. On these facts the Honble Supreme Court considered the question as to whether the recommendations of the technical committee for resitement of the appellants petrol pumps constitutes an order/decision binding on DDA. The Honble Supreme Court while answering the question held as follows:-
14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.
19. In the light of the above decision, unless the file notings culminate in an executable order which would affect the rights of parties and communicated to the party concerned, it cannot be stated to be a final decision and a noting by one of the officer/member does not make the said recommendation a final decision. That apart in terms of the amended Section 3A of the Indian Medical Council Act, in terms of sub-section 7 of Section 3A, 2/3rd of the members of the Board of Governors shall constitute the corum for its meeting. Therefore, even if one of the members had made a recommendation to consider the case of the petitioner for extension of approval, the petitioner cannot place any reliance on the same as it is not the final decision of the competent authority, namely the Board of Governors as constituted by virtue of the Indian Medical Council (Amendment Act) 2010.
20. Therefore, the contention of the learned senior counsel for the writ petitioner that pursuant to the recommendation of Dr.Sita Naik on 03.04.2011, it should be naturally followed with an order of approval is not tenable and we are unable to persuade ourselves to accept such contention. Thus the whole issue boils down to the authenticity and the admissibility of the report of the assessors pursuant to the inspection on 15.03.2011 and 16.03.2011. It is an admitted fact that an unsigned inspection report was filed by the writ petitioner in the typed set of papers. The MCI in their additional counter affidavit filed on 14.07.2011 pointed out that the assessment report filed by the writ petitioner in the typed set of document is an unsigned report clearly shows that the assessment report which was a confidential document was prepared by the writ petitioner and the Assessors were compelled to sign the same and that the very availability of unsigned report with the petitioner leave no scope of doubt that the assessment report as stated by Dr.S.C.Mahapatra has been prepared under cohersion. Admittedly, the writ petitioner has not controverted these averments. On the contrary, the writ petitioner would contend by asking the question as to what is wrong in possessing such an unsigned report and it is not an official secret. We would have accepted this contention of the learned Senior counsel for the writ petitioner, had the report being the copy of signed report of the assessors and if the petitioner was in possession of the same then when the source of the document is questioned a plea could be raised that there is no express prohibition for possessing such a document, but in the instant case the disturbing feature is that an unsigned report was available in the hands of the writ petitioner and exhibited before the writ Court. The writ petitioner also agrees that the assessment report was put in a sealed cover and one of the assessors forwarded the same to the MCI on 17.03.2011. Thus, there is confidentiality attached to such report atleast till the stage of the decision making by the competent authority. Hence, the conduct of the writ petitioner in producing a copy of the unsigned report casts serious aspersions on the conduct of the writ petitioner and this itself could be a sufficient reason to eschew the report. The learned Senior counsel for the writ petitioner pointed out that even in the file noting of the UG Section, the petitioner institution were found to have complied with all the requirements. As discussed above, the file noting in the UG Section does not constitute a final decision in the matter and even as per the file note of UG Section, it has been only stated that the petitioner institution were assessed on 15.03.2011 and 16.03.2011, but decision has not been communicated and the files are with the Secretary. Therefore, the said contention also does not merit acceptance.
21. The learned Senior counsel for the writ petitioner would contend that the entire case is shrouded in a thick mist of prejudice and that the entire action has been taken based on hearsay. For the said proposition, the learned senior counsel relied on the decision of the Honble Supreme in (2011) 2 SCC 532 [Kalyan Kumar Gogoi vs. Ashutosh Agnihotri] wherein the Honble Supreme Court while considering an appeal filed under Section 116A of the Representation of People Act, 1951, against a judgment of the Gauhati High Court, declaring the election of a returned candidate to be void and ordered for repoll and the Honble Supreme Court explained term hearsay and held as follows:-
35. The term hearsay is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word hearsay is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of the third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears.
22. It is no doubt true that there was no written complaint by the Assessors, but the MCI would assert that the Assessors met the Board members in person and explained the circumstances and the unpleasant events which took place at a time of inspection and in the E-mail sent by the one of the Assessors to Dr.Sita Naik stated that after they came out of the MCI office, they started receiving threatening calls and they feared their lives. The further allegation is that some insider from MCI must have provided the information. In any event, the proceedings which were initiated by the MCI cannot be compared to a judicial proceeding in which strict rules of evidence plays a very vital role and therefore, on facts the decision of the Honble Supreme Court in Kalyan Kumar Gogoi (supra), cannot be applied to the case on hand. The other contention raised by the learned senior counsel is that the MCI acted with malice and irrelevant materials appears to have formed the basis for refusing permission. In this regard, the learned counsel placed reliance on the decision of the Honble Supreme Court in (2010) 9 SCC 437 [Kalabharati Advertising v. Hemant Vimalnath Narichania] wherein the Honble Supreme Court explained as what is legal malice:-
25. The State is under obligation to act fairly without ill will or malice in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla,[ (1976) 2 SCC 521] S.R. Venkataraman v. Union of India[(1979) 2 SCC 491], State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739], BPL Ltd. v. S.P. Gururaja[(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568].)
26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of India v. V. Ramakrishnan[(2005) 8 SCC 394].)
23. In the earlier paragraphs of this judgment, we have elaborately dealt with the factual matrix and it cannot be stated that the action of refusing renewal was wilfully done without a reasonable or probable cause. Though the Secretary has made a note regarding the letter written by the Chairman of the college to promote another officer as an additional secretary, that alone was not the basis of the decision and in any event, it is the opinion of the Secretary and the ultimate decision of the Board was primary coupled with the oral complaint stated to have been given by the assessors followed by the E-mail. Therefore, we see no malice in the decision taken by the MCI.
24. In the light of the allegations and counter allegations in our view the inspection report deserves to be scrapped. Admittedly, the petitioner institution is governed by the Regulations of MCI and they are open to inspection by MCI so as to ensure due compliance of the conditions laid down in the letter of permission. Therefore, we are required to take a decision as to what directions need be issued in the light of the above conclusion. However, before doing so we may observe as follows.
25. From the entire facts of the case and the sequence of events after the submission of the report by the Assessors, the following facts emerge :-
(1) Nothing adverse has been reported by the Assessors in their inspection report after making the inspection on 15.3.2011 and 16.3.2011.
(2) When the report was under consideration by the Board of Governors and the file was being processed, one of the Members of the Board recommended for granting permission to the College for the Academic Year 2011-2012. However, after about a month from the date of submission of the report, certain complaint alleged to have been lodged and an e-mail sent by the Assessors regarding use of force or threat by the Chairman of the College.
(3) In the mean time, show cause notices were also sent to the College making various allegations, and the decision on that show cause notice was pending.
(4) On the basis of the complaint/e-mail sent by the Assessors, a legal opinion was sought by the Medical Council of India and on the basis of the legal opinion, a decision was taken to refuse renewal of permission to the College.
(5) Admittedly, therefore, before issuing the impugned order dated 19.5.2011 refusing to renew the permission, the College was not given any opportunity whatsoever to meet the allegations made by the Assessors subsequent to the submission of a favourable assessment report.
26. On these admitted facts, in our considered opinion, the learned single Judge rightly held that the impugned order dated 19.5.2011 refusing renewal of permission is utterly in gross violation of the principles of natural justice.
27. Now, the question arises as to whether the consequential direction issued by the learned single Judge needs to be modified, considering the facts and circumstances of the case. Learned single Judge directed the respondent Medical Council of India to pass orders afresh after giving an opportunity of hearing to the appellant College.
28. On the one hand, the case of the appellant College is that after the inspection made by the Assessors, they filed their Report and clearance was given by the Chief Vigilance Officer of the Medical Council of India on 28.03.2011, and subsequently, the U.G. Committee of the Medical Council of India has also given its clearance for renewal of permission, and thereafter, the Authorised Secretary of the Board of Governors passed the order granting renewal of permission for admission of the second batch of MBBS students for the academic year 2011-2012. Further, the e-mail letter dated 15.04.2011 sent by one of the Assessors does not speak anything against the appellant-College, and there is no reference about the appellant-college, and it is the letter general in nature. The contention of the appellant College is that the Chief Vigilance Officer of the Medical Council of India gave his clearance on 28.03.2011 after having detailed discussion with the team of Assessors who have conducted the inspection, and the show-cause notices dated 10.05.2011 and 18.05.2011 had not disclosed or referred to anything about the threat or coercion as alleged by the Medical Council of India. It is the further case of the college that the Doctors referred to in the show-cause notices are actually appointed and working in the appellant College and the details relating to their appointment orders, joining reports as well as the relieving orders issued by the colleges where they had been working earlier were furnished by the appellant College. Hence, the show-cause notices issued by the Medical Council of India and the grounds stated for the rejection of the grant of renewal permission in the impugned letter dated 19.05.2011 are wholly unwarranted, arbitrary and vindictive.
29. On the other hand, the Medical Council of India assailed the impugned order passed by the learned single Judge on the ground that the question of violation of the principles of natural justice in passing the order refusing grant of renewal does not arise at all. The Medical Council of India totally denied and disputed the submissions made by the appellant College that the Chief Vigilance Officer of the Medical Council of India has recommended for the grant of renewal. According to the learned senior counsel for the Medical Council of India, the Chief Vigilance Officer of the Medical Council of India has no role to play in the matter of grant of renewal. The specific case of the Medical Council of India is that the Assessors have lodged a serious complaint about the coercion and threat made by the Chairman of the appellant College at the time of inspection. According to the Assessors, they were in fact not allowed to made inspection of the various departments of the appellant College and also the extent of facilities available in the college. According to Medical Council of India, the renewal has been rightly refused on the basis of the e-mail of one of the Assessors coupled with the allegations orally narrated by the two Assessors.
30. In the light of the rival claims made by the appellant College on the one hand and the Medical Council of India on the other, in our considered opinion, no useful purpose would be served in giving direction to the Medical Council of India to pass orders afresh after giving an opportunity of hearing to the appellant College. Again the parties will come to the same position, because of the fact that two show cause notices issued by the Medical Council of India are still pending for consideration. Hence, in order to resolve all the disputes and differences between the parties, we modify the consequential order passed by the learned single judge by issuing the following directions:-
(1)The Medical Council of India is directed to conduct a fresh inspection of the College by sending three independent Assessors who have previous experience in conducting such type of inspection of the Medical Colleges.
(2)The Assessors so deputed for the inspection shall complete the inspection preferably in one day and submit their report of inspection.
(3)The entire inspection shall be videographed by the Medical Council of India and the video recording shall form part of the report of the Assessors.
(4)The assessment report shall be strictly confidential and shall be directly delivered to the official of the Medical Council of India.
(5)As undertaken by the writ petitioner college they shall extend full and effective cooperation to the inspecting team to enable them to carry out the inspection smoothly and expeditiously and render all assistance to the Assessors and clarify all queries/questions/ clarifications as sought for by the Assessors.
(6)Though the allegations made in the show cause notices issued to the college regarding fake faculty members was not the subject matter of adjudication in these appeals, yet it is needless to observe that the Assessors are entitled to satisfy themselves as regards the staffing of the writ petitioner college, since in terms of the 1999 Regulations as amended in 2010, the procedure for renewal of recognition shall be the same as applicable for award of recognition and there would be no bar for the Assessors to verify the list of staff members both teaching and non teaching and submit report in this regard.
(7)As undertaken by the writ petitioner college they shall not admit any student without the final approval from the MCI after the inspection is conducted as directed above.
(8)On receipt of such Inspection Report, the Board of Governors or the Authority in Power shall hold a meeting immediately and take a decision on the basis of the Inspection Report as expeditiously as possible, latest by 29th September, 2011.
31. With the aforesaid directions these appeals are disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
(M.Y.E., C.J.) (T.S.S., J.)
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Index: Yes Internet: Yes sm/ab/pbn Office to note : Issue a copy of this order by 11.30 a.m. today.
The Honble The Chief Justice & T.S.Sivagnanam, J.
sm/ab/pbn To
1. The Secretary to Government of India, Ministry of Health and Family Welfare, (Department of Health and Family Welfare), Nirman Bhawan, New Delhi 110 011.
2. The Medical Council of India, Pocket 14, Sector 8, Dwarka, Phase I, New Delhi 110 077.
Pre Delivery Judgment in W.A.Nos.1500 & 1664 of 2011 Delivered on
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