Madras High Court
P. Andree vs The Tamil Nadu Medical Council And Anr. on 22 June, 1992
Equivalent citations: (1993)1MLJ57
ORDER Govindasamy, J.
1. The petitioner was appointed as Registrar of the Tamil Nadu Medical Council with effect from 1.7.1988. It is stated that since the Medical Council of India did not recognise Sri Ramachandra Medical College, Porur, Tamil Nadu, the petitioner intimated the Dean of Ramachandra Medical College and Research Institute on 7.3.1990 that the Medical Council of India did not recognise the said Medical College. The 2nd respondent then informed the petitioner to ignore the letter dated 16.2.1990 of the Medical Council of India and wanted the petitioner to issue temporary medical registration Certificate to the students who had undergone the course in Sri Ramachandra Medical College. The petitioner in reply informed the 2nd respondent that it would not be in order to issue temporary medical registration certificate. However, the 2nd respondent insisted upon the petitioner to issue such a certificate to the students, presumably for the reason that the students of the said College resorted to strike because of non-issuance of temporary registration certificate to the students. However the petitioner informed the president of the second respondent about the factum of issuance of temporary registration certificate. At the instance of the second respondent, the petitioner issued the certificate on 13.3.1990. However, the petitioner was called upon to explain in writing as to why he has exhibited the communication from the Medical Council of India to the students of Sri Ramachandra Medical College which created serious reaction from the students of the said college. While so, the President of the second respondent by the impugned communication dated 19.3.1990 placed the petitioner under suspension. The impugned communication is as follows:
From :
THE PRESIDENT.
To :
Mr. P. ANDREE, REGISTRAR, THE TAMIL NADU MEDICAL COUNCIL, MADRAS.
Reg : Suspension - Executive Committee Meeting Resolution - Dated 19.3.1990.
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The Tamil Nadu Medical Council has placed you under suspension temporarily with immediate effect pending enquiries of serious nature. You are directed to hand over the keys and the records to Mr. S. Kandasamy. Sd/-
PRESIDENT Tamil Nadu Medical Council, Madras.
2. It is in these circumstances that the petitioner has filed the present writ petition to issue a writ of certiorari to quash the aforesaid communication. Mr. Vijayanarayanan, learned Counsel appearing on behalf of the petitioner represents that in the instant case the executive committee by its resolution dated 19.3.1990 resolved to place the petitioner under suspension with immediate effect and that order was communicated by the President by the impugned communication. Learned Counsel would say that the executive committee had no jurisdiction at all, or in other words, it has not been vested with any power to pass such an order of suspension and consequently the impugned order is liable to be quashed. In support of his contention learned Counsel refers to Section 10(1) of the Madras Medical Registration Act, hereinafter referred to as the Act. Section 10(1) of the Act provides that the council shall appoint a Registrar who shall act as Secretary of the council and who shall also act as Treasurer, unless the council shall appoint another person as Treasurer. It is also provided that every person appointed shall be removable at the pleasure of the Council. Sub-section (2) of Section 10 provides that the Council may also employ such other persons as it may deem necessary for the purposes of this Act. According to the learned Counsel Section 10 of the Act confers power on the council for appointment as well as removal of a Registrar at the pleasure of the Council. Learned Counsel refers to Section 9-A of the Act which provides that there shall be an Executive Committee of the Council, consisting of its President and Vice-President ex-officio and three other members of the Council who shall be elected every year in the prescribed manner by the Council at its first meeting held in that year. Clause (a) of Sub-section (2) of Section 9-A provides that every member of the Executive Committee so elected shall hold office as such until the next annual election; and if any casual vacancy occurs before such election, the Executive Committee shall fill that vacancy by electing a member of the Council. Sub-Section (3) of Section 9-A provides that the council may, with the previous sanction of the State Government delegate any of its powers and duties to the Executive Committee. It is in these circumstances the learned Counsel for the petitioner represented that there is no dispute that the council has not delegated any of its powers and duties to the Executive Committee. Learned Counsel for the respondents is not in a position to dispute the same. If that be so, the Executive Committee has no power to pass any order unless and until power is delegated as provided under Sub-section (3) of Section 9-A.
3. Learned Counsel also refers to By-law No. 69 which provides penalties that could be imposed on the members of the establishment of the employment under Section 10 of the Act. By-law No. 69 provides the following penalties.
(i) Censure;
(ii) Withholding of increments or promotion;
(iii) Reduction to a lower post or time-scale or to a lower stage in a time-scale;
(iv) Recovery from pay of the whole or part of the pecuniary loss caused to the Council by negligence or breach of orders;
(v) Suspension;
(vi) Removal from service which does not disqualify from future employment;
(vii) Dismissal from service, which disqualifies from future employment.
Learned Counsel for the Petitioner at this juncture represents that even though 'suspension' is one of the penalties specified under By-law 69, such penalty could be imposed only after following the procedure of holding an enquiry against a definite charge framed against the delinquent employee and that by-law does not provide for any interim suspension pending enquiry or pending contemplation of enquiry.
4. Learned Counsel then referred to By-law No. 50, which was also referred to by the Learned Counsel for the respondents in the counter affidavit. It provides as follows : "During Suspension, an employee shall be given subsistence allowance amounting to. one-half of the monthly salary for a period of three months. When an employee is under suspension, he shall leave his address with the President. He shall obey all orders to attend any enquiry into his conduct at his own cost. If he fails to do so, the enquiry shall be held in his absence." By-law 50 is in respect of an employee placed under suspension which may be by way of penalty and the employee is entitled to subsistence allowance. By-law 50 does not provide any power vested on any of the officers to place any of the employees of the establishment under suspension, pending enquiry or pending contemplation of enquiry. There is no provision at all either in the statute or in the By-law empowering the authorities to place any of the members of the establishment under suspension pending enquiry or pending contemplation of enquiry. In the instant case the petitioner was placed under suspension by the decision taken by the Executive Committee. Nowhere in the Act or in the By-law the Executive Committee is vested with any such power to place an employee under suspension. Hence, the impugned order is not sustainable.
5. However, the learned Counsel appearing on behalf of the respondents represented that Section 10(1) of the Act provides that the Council is entitled to remove any member of the establishment at the pleasure of the Council and that By-law 70 provides that subject to the provisions of Section 10(1) of the Act, the President or Vice-President when he acts as President, may impose any of the penalties specified in By-law 69 on any member of the establishment. Learned Counsel for the respondents from the above representation wants to infer that the President is empowered to pass an order of Penalty as provided under By-law 69 of the By-Laws. It may be that the President may be empowered by virtue of Bye-law 70 to impose any punishment on the members of establishment, but it does not mean that the President is empowered to place any member of the establishment under suspension pending enquiry or pending contemplation of enquiry. Suspension can be imposed by way of penalty, after following the procedure for holding an enquiry against any definite charge and after arriving at a specific finding with reference to the guilt of the delinquent employee.
6. Learned Counsel for the respondents referred to By-law 72 which provided for an appeal from clerks and menial staff to the Executive Committee aggrieved by the order of Penalty. But that is not relevant to the present writ petition. Learned Counsel for the respondents is not in a position to bring the notice of this Court that either the President or the Executive Committee is empowered to place any member of the establishment under suspension pending disciplinary proceedings or contemplation of disciplinary proceedings. In the absence of any specific power vested either with the President or the Executive Committee to place any member of establishment, the petitioner in the instant case, the impugned order is not sustainable and consequently is liable to be quashed.
7. In the result, the writ petition is allowed and the impugned order is quashed. There will be no order as to costs.