Indian Medical Association ... vs Indian Medical Association
2011 Latest Caselaw 5661 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 17.11.2011
                      Judgment Pronounced on: 23.11.2011

+ CS(OS) No.2355/2010

Indian Medical Association Calcutta Branch    ..... Plaintiff
               Through: Mr. (Dr.) Amitabha Sen, Advocate

                             versus


Indian Medical Association                ..... Defendant
                    Through: Mr. Anil Sharma, Advocate
                    with Mr. Abhishek Misra, Advocate

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported No in Digest?

V.K. JAIN, J

1. This is a suit for mandatory injunction. The

plaintiff is the Calcutta Branch of defendant - Indian

Medical Association, which is a Society, registered under the

Societies Registration Act of 1860 and has been established

with a view to promote and advance medical and allied

sciences and promote cooperation amongst its members.

The constitution of the defendant envisages a three tier

system comprising of an apex association i.e. Indian Medical

Association, State Councils and Local Branches.

Rule 15-B of Bengal State Branch of IMA, as

amended in the year 2007 provides that local branches will

elect their representatives to the Bengal State Council on

the following scale:

            5 - 15 Members   -        1 Representative

            16 - 25 Members -         2 Representatives

            26 - 50 Members -         3 Representatives

            51 - 100 Members-         4 Representatives

Above 100 Members, one representative for every

100 members or part thereof is to be elected.

The aforesaid Rule is alleged to be favourable to

the smaller branches and unfavourable to the larger

branches like Calcutta Branch which is the plaintiff in this

suit. As a result, 28 big branches with total membership of

6696 have voting strength of 167 whereas 79 small

branches with a combined membership of 3657 have voting

strength of 244. The aforesaid rule is stated to be contrary

to Rule 19-B (ii) of the constitution of the defendant

Association which provides that branch representatives

from local branches and from direct members shall be on

the following scale:

            20 - 100 Members -         1 Representative

            After 100 Members-         One additional
                                       representative for every
                                       100 members or part
                                       thereof.

The plaintiff has sought a decree for mandatory

injunction directing the defendant to enforce and implement

Rule 19-B (ii) in all its supporting bodies including Bengal

State Branch. The plaintiff also wants a mandatory

injunction directing the defendant to immediately suspend

the Bengal State Branch for violating its constitution.

2. Since the defendant failed to file Written Statement

despite service, its right to file Written Statement was closed

vide order 2nd May, 2011. The plaintiff, however, was

directed to file affidavit by way of evidence in support of the

case set up by it. The plaintiff has accordingly file affidavit

of its Vice President Dr. Pradeep Kumar by way of evidence.

In his affidavit by way of evidence Dr. Pradeep Kumar

supported on oath the case set out in the plaint.

3. Exh. PW-1/2 is the Memorandum of Rules and

Bye-laws of the defendant Association. Rule 6 of the

aforesaid Rules provides that there shall be a

State/Territorial Branch of the Association for each

State/Union Territory in India, which shall have jurisdiction

over all Local branches of the Association within its area.

Rule 4 provides that the Members of the Association have to

group themselves into separate local bodies styled as Local

Branches. Rule 5 provides that each Local Branch shall

have a local area for its jurisdiction and operations which is

to be finally approved by the Working Committee of the

Association on the recommendation of the concerned

State/Territorial Branch of that area. Rule 7 provides

wherever there is no State/Territorial Branch, a branch

below 100 members will be considered as a direct Local

Branch and will be attached to the Headquarters office.

Rule 7-A provides that all branches of the Association viz.

State/Territorial, Local, Direct Branches and Overseas

Branches shall be under the overall control of the

Headquarters and governed by Rules and Bye-laws of Indian

Medical Association Headquarters as amended from time to

time. Those of the Branches which are individually

registered under the Societies Registration Act or under Any

Act, come under the overall discipline and control of the

Headquarters and require to abide by its Rules and Bye-

laws.

4. Rule 8 (i) provides that a Local and State Branch

shall be free to govern itself in such a manner as it thinks fit

and for that purpose to make from time to time Rules and

Bye-laws as it may think fit, provided they are in general

conformity with the Rules and Bye-laws of the defendant

Association and have been approved by the Honorary

Secretary General subject to subsequent ratification by the

Working Committee. Rule 8 (iv) provides that the Rules and

Bye-laws of Indian Medical Association shall apply in any

matter if not covered by Rules, Bye-laws of the

State/Territorial or Local Branch already ratified by the

Working Committee of the Association. Rule 13-C provides

for enrolment of Direct Members. The persons who are

eligible for membership and reside or practise or are

employed in place where no Local Branch exists, are called

Direct Members. If there is a State or Territorial Branch in

the State or Territory such Direct Members are to be

attached to the State or Territorial Branch concerned.

Direct Members not residing or practicing within the

jurisdiction of any State of Territorial Branch are to be

attached to the Headquarters. The Bye-laws also provide for

Life Members, Special Members, Associate Members,

Attached Members, Affiliated Members, Intern Members and

Overseas Members.

5. Sub Rule (A) of Rule 19 deals with the composition

of the Central Council. The persons specified in Clause (A)

of Rule 19 are Ex-Officio Members of the Central Council.

Sub Rule (B) of Rule 19 on which reliance has been placed

by the plaintiff reads as under:

(B) Representative of Local Branches:

i. The total number of members of the Local Branches on whose behalf HFC has been received in full by 31st March shall form the basis of determining the representation of Local Branches on the Central Council. ii. Branch representatives from the Local Branches and from Direct Members shall be in the following scales: 20-100 Members One representative. After 100 Members-one additional representative for every 100 members or part thereof.

iii. The representative of the local branches to the Central Council should be Life Member(s) and to be elected for two years. iv. In determining the representation of Local Branches on the Central Council, the strength of a Local Branch shall be determined each year on the number of its members on the Register of Membership of that Branch at the Headquarters on behalf of whom HFC has been received in full at

the Headquarters by 31st March. Complete list of Membership as on 31st March shall be sent by each Local Branch so as to reach the Headquarters through the State or Territorial Branch concerned by the 30 th April.

v. Since the representation of the local branch in the central Council depends on the strength of the local branch, which is to be determined each year, if the said strength undergoes a change before expiry of term of two years affecting the representation in the Central Council in that event, the local branch will be bound to take appropriate action.

vi. The Local Branches shall also elect an equal number of alternate representatives who shall be entitled to be sent as substitute in place of a regular representative, as and when occasion arise at the discretion of the President of the Local Branch in which case the President of the Local Branch shall intimate the Headquarter office in advance the name of the alternate member at least two weeks before the meeting and the agenda of the meeting received by the regular representative shall be passed on to such alternate representative.

The impugned Rule of Bengal State Branch reads as under:

15. Management

1. Bengal State Council - The general management of the Association shall be vested in the Bengal State Council.

              A.      Composition   of   Bengal    State
                      Council

              (a)     Ex-Officio Member (Elected under
                      Rule 17C):


               (i)      The President of the Association for
                       the year.
              (ii)     All the past Presidents
              (iii)    The five Vice-Presidents for the
                       year
              (iv)     The Hon. State Secretary
              (v)      The Three Hony. Joint Secretaries
              (vi)     The Hony. Treasurer
              (vii)    The      Two     Hony.      Assistant
                       Secretaries.

(viii) The Immediate Past Hony. State Secretary for the year.

(ix) Director of Studies, Bengal State Faculty, I.M.A. College of G.P.

              (x)      Chairman, Bengal State Chapter,
                       I.M.A.    Academy       of   Medical
                       Specialties
              (xi)     Hony. Executive Secretary or Hony.
                       Jt. Secretary, Social Security
                       Scheme,     I.M.A.   Bengal     State
                       Branch
              (xii)    Hon. Secretary or Hon. Jt.
                       Secretary, Bengal State Faculty,
                       I.M.A.     College    of     General
                       Practitioners.
              (xiii)   Hony.      Secretary or Hony. Jt.
                       Secretary, Bengal State Chapter,
                       I.M.A.    Academy       of   Medical
                       Specialties
              (xiv)    All Regular and Alternate Members
                       of the Central Working Committee.

              (b)      Elected Members:

                       Representatives    from   the   Local
                       Branches.

              B.       Election of elected Members of the
                       Bengal State Council:

                       Election of the Representatives
                       from the Branches:


                         Local Branches shall elect their

representatives to the Bengal State Council on the following scale:

                        5 to 15 Members     -1 Representative
                        16 to 25 Members    -2 Representatives

26 to 50 Members -3 Representatives 51 to 100 Members - 4 Representatives

Above 100 members 1 additional representative for every 100 or part thereof.

6. A bare perusal of Sub-Clause (ii) of Rule 19-B

would show that it refers to 'representation of Local

Branches in the Central Council' of the defendant

Association and does not deal with representation of the

Local Branches in the State/Territorial Branch. Rule 15-B

of Rules of Bengal State Branch on the other hand deals

with 'representation of the Local Branches to the State

Council'. The two Rules therefore deal with and operate in

different fields, one referring to representation to the Central

Council of the apex body and the other dealing with

representation of the Local Branches to the State Unit. The

fact that Rule 19-B (i) of the Rules and Bye-laws of the

defendant Association pertains only to representation to its

Central Council is evident also from the other clauses of this

Rule. Clause (iii) of Rule 19-B for instance provides that the

'representatives of the Local Branches to the Central

Council' should be Life Members and to be elected for two

years. In determining the 'representation of the Local

Branches on the Central Council' the strength of a Local

Branch shall be determined each year on the basis of its

members on the Register of Membership of that Branch at

the Headquarters. Clause (v) provides that since the

'representation of the Local Branch in the Central Council'

depends upon the strength of the Local Branch, which is to

be determined each year, if the said strength undergoes a

change before expiry of term of two years 'affecting the

representation in the Central Council', in that event the

Local Branch will be bound to take appropriate action.

Thus, it can be safely said that Rule 19-B (ii) of the

Memorandum of Rules and Bye-laws of defendant

Association pertains only to the representation of the Local

Branches and Direct Members to the Central Council of the

defendant Association and does not deal with the

representation of the Local Branches to the State Branch.

Hence, in view of the provisions contained in Rule 8 (i), the

State Branch is free to make its own Rules and Bye-laws

with respect to representation of the local Branches to the

State Branch and such rules are binding on the Members

constituting the Branch in which they are made - provided

they have been approved by the Honorary Secretary General

subject to subsequent ratification by the Working

Committee. This is not the case of the plaintiff that the

amendment made by the Bengal State Branch was not

approved by the Honorary Secretary General of the

defendant and was not ratified by its Working Committee.

The only plea taken by the plaintiff is that the Rule framed

by Bengal State Branch is not in conformity with Rule 19-B

(ii) of the Apex Association, and I find no merit in the plea

taken by the plaintiff in this regard. Though Rule 8(i)

provides for a model set of Rules and Bye-laws to act as

guidelines for Local and State Branches such model Rules

and Bye-laws are not binding on the State Branch so long

as its own Rules and Bye-laws are in general conformity

with the Rules and Bye-laws of the Apex Association and are

approved by its Honorary Secretary General and ratified by

its Working Committee. In any case, since Rule 19(B) (ii) of

the Rules & Bye-laws of the defendant association, does not

pertain to representation of the Local Branches to the State

Branches, it cannot be said that Rule 15(B) of the Rules of

Bengal State Unit is in conflict with the Rules of the apex

body, i.e., the defendant association. Consequently, the

Rule framed by Bengal State Unit for representation of the

Local Branches to the State Unit remain valid and binding

on the members of all the Local Branches, coming under the

control of Bengal State Unit.

For the reasons given in the preceding paragraphs,

no decree for mandatory injunction, as sought by the

plaintiff, can be granted. The suit is devoid of any merit and

is dismissed without any orders as to costs. Decree sheet

be drawn accordingly.

(V.K. JAIN) JUDGE NOVEMBER 23, 2011 VN