Vaidya Jagjit Singh vs Union Of India And Ors
2011 Latest Caselaw 5070 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 14th October, 2011
+                                  W.P.(C) 7485/2011

         VAIDYA JAGJIT SINGH                                ..... Petitioner
                      Through:            Ms. Kamini Jaiswal with Mr.
                                          Divyish Pratap Singh & Ms.
                                          Suchitra Pandey, Advs.

                                     Versus

         UNION OF INDIA AND ORS                   ..... Respondents
                      Through: Mr. Sumeet Pushkarna & Mr.
                               Jitendra Kumar, Advs. for R-1.
                               Mr. Rakesh Upadhyay & Mr. T.K.
                               Joseph, Advs. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    Yes.

2.       To be referred to the reporter or not?             Yes.

3.       Whether the judgment should be reported            Yes.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner claims to have been elected as the member, from the

State of Punjab, of the Central Council of Indian Medicine (CCIM)

constituted under Section 3 of the Indian Medicine Central Council Act,

1970, in the elections held in the year 2010-11 pursuant to the directions of

the Supreme Court. This petition has been filed with the grievance that

though a meeting of the CCIM is scheduled from 17 th to 19th October, 2011

and invitation thereof has been issued to all the other members so elected,

no invitation has been extended to the petitioner. A writ restraining the

respondents from preventing the petitioner from participating in the

meeting / activities of the CCIM is sought.

2. The counsel for the respondent No.2 CCIM, appearing on advance

notice, has handed over in the Court an affidavit of objections along with

Annexures which is taken on record.

3. The counsel for the respondent No.2 CCIM does not controvert that

the petitioner has been so elected in the elections held in 2010-11. He

however invites attention to page 96 of the paper book, being the copy of a

letter dated 05.01.2006 (stated to be infact of 05.01.2009) of the

respondent No.2 CCIM addressed to the petitioner. It is contended that the

petitioner was a member of the Central Council in existence prior to the

elections in 2010-11 also and had so remained a member for 17 years; that

during the said earlier tenure, after appropriate inquiry, he was found guilty

of having misappropriated a sum of `4,24,885/-; that vide the said letter

dated 05.01.2009 he was asked to pay the said amount together with

interest, amounting to `7,14,835 as on 05.01.2009 and was informed that

unless he paid the same, he would not be allowed to participate in the

activities of the CCIM.

4. The counsel for the respondent No.2 CCIM contends that the

petitioner has not paid the said amount till now and is hence not entitled to

participate in the meetings and activities of the respondent No.2 CCIM.

5. It has been enquired from the counsel for the respondent No.2 CCIM

as to under which provision of the Act or law has the respondent No.2

CCIM exercised the power to so prohibit / prevent an elected member, as

the petitioner is, from participation in the affairs of respondent No.2

CCIM.

6. The counsel for the respondent No.2 CCIM has fairly stated that

there is no such provision. He however invites attention to Section 10

which empowers the respondent No.2 CCIM to constitute from amongst its

members "such other committees for general or special purposes, as the

Central Council deems necessary to carry out the purposes of this Act".

He contends, that a Committee to look into the charges of misappropriation

against the petitioner was constituted under the said provision and has

rendered a finding against the petitioner; the petitioner has not challenged

the said finding; and thus the petitioner without paying the amounts found

to be so due from him is not entitled to participate in the meeting of the

respondent No.2 CCIM. It is contended that the petitioner, instead of

challenging the substantial order (of being guilty of misappropriation) is

challenging the order in implementation thereof and which is not

permissible. It is further contended that the said monies are public monies

and a person who has misappropriated public monies ought not to be

entitled to participate in the meetings of the respondent No.2 CCIM or to

any relief in this writ petition.

7. Needless to state that the counsel for the petitioner controverts that

the petitioner has indulged in any such misappropriation or that any monies

are due from him. She further points out that an FIR has been lodged by

the respondent No.2 CCIM against the petitioner.

8. The question entailed in the petition being purely legal i.e. whether

in the absence of any provision permitting the respondent No.2 CCIM to

so debar an elected member, an elected member can be so debarred or not,

with the consent of the counsels for the parties, the matter has been finally

heard.

9. Section 7 of the Act deals with "Term of office of President, Vice-

President and members of Central Council". Sub-Section (2) thereof

provides that an elected or nominated member shall be deemed to have

vacated his seat if, i) he is absent without excuse, sufficient in the opinion

of the Central Council, from three consecutive ordinary meetings of the

Central Council; or, ii) in the case of a member elected under Section

3(1)(a), if he ceases to be enrolled on the concerned State Register of

Indian Medicine; or, iii) in the case of a member elected under Section

3(1)(b), if such member ceases to be a member of the faculty or

Department of the Indian Medicine of the University concerned.

10. The Legislature has thus provided only the aforesaid contingencies

in which a member of the respondent No.2 CCIM can be deemed to have

vacated his seat. The Act does not deem an elected member to have

vacated his seat, if found guilty of misappropriation of monies of

respondent No.2 CCIM. The Legislature in its wisdom having not opted to

provide for vacation of the seat upon the member being found guilty of

misappropriation, in my opinion, an elected member cannot be so barred

from participating in the meetings / functioning of the respondent No.2

CCIM.

11. Moreover, the elected member is supposed to represent the State

which has elected him, in the respondent No.2 CCIM. The effect of so

debarring the elected member, would be to deprive the State which he

represents from representation in the respondent No.2 CCIM; the same has

serious consequences and cannot be inferred without the legislature having

provided so. It cannot also be lost sight of that the petitioner was elected,

not "by the CCIM", for the respondent No.2 CCIM to exercise power of

his removal, but "into CCIM" by the electorate in his State. For this

reason also, any power in respondent No.2 CCIM to so debar the petitioner

from participation and which debarment would have the effect of removal

of petitioner from the respondent No.2 CCIM, cannot be inferred.

12. Faced with the aforesaid, the counsel for the respondent No.2 CCIM

has contended that no absolute bar to participation of petitioner in affairs

of respondent No.2 CCIM has been imposed and if the petitioner pays the

amount demanded, he can participate.

13. No merit is found in the said contention also. When the statute does

not impose any conditions on participation by elected members in affairs

of respondent No.2 CCIM, imposition of conditions particularly monetary

and which are disputed, amounts to debarment only of the petitioner.

14. I find this Court in Anil Agarwal Vs. The Institute of Chartered

Accountants 2000 IV AD (Delhi) 104, on a conspectus of the case law to

have held that, rarely elected representatives can be removed by using

implied and inherent powers which do not spell out from the statute or the

Rules framed thereunder. Reference may also be made to the judgment of

the Division Bench of Bombay High Court in Hindurao Balwant Patil Vs.

Krishnarao Parshuram Patil AIR 1982 Bom. 216 holding that a right to

contest the election and a right to recall the person already elected are not

common law rights and these rights must be conferred by the statute and

can be enforced only in accordance with and subject to the conditions laid

down by the statute concerned. Another Division Bench of the Bombay

High Court in Zambar Rajaram Patil Vs. State of Maharashtra

MANU/MH/0166/2000 also held that the elected members cannot be

prohibited from taking part in the business of the Society unless and until

their election is set aside. The Division Bench of the Rajasthan High Court

also as far back as in Kanta Devi Vs. State of Rajasthan AIR 1957

Rajasthan 134 extended the principle that in the absence of a power to stop

the elected members from functioning, they cannot be so stopped to

nominated members also. The Supreme Court however in Om Narain

Agarwal Vs. Nagar Palika, Shahjahanpur (1993) 2 SCC 242 carved out a

distinction between an elected and a nominated member and held the

tenure of the nominated members to be dependent on the pleasure doctrine.

15. There is another aspect of the matter. The finding / allegation of

misappropriation against the petitioner is with respect to his previous

tenure as a member of the respondent No.2 CCIM. Notwithstanding the

said allegation, when the petitioner was allowed to participate in the

election and has been so elected, without any express provision in this

regard, such elected member cannot be prevented from participating in the

functioning of the respondent No.2 CCIM.

16. Insofar as the argument of the counsel for the respondent No.2

CCIM of public monies being involved is concerned, all that can be done

is to grant liberty to the respondent No.2 CCIM to take such action as may

be permitted in law against the petitioner.

17. The petition therefore succeeds.

18. It is declared that the petitioner being the elected member of the

respondent No.2 CCIM is entitled to participate in the meetings /

functioning of the respondent No.2 CCIM and the respondent No.2 CCIM

is restrained from preventing the petitioner for the reasons aforesaid from

so participating in the meetings / functioning of the respondent No.2 CCIM

including in the meeting scheduled from 17th to 19th October, 2011.

Liberty is however granted to the respondent No.2 CCIM to take action in

accordance with law against the petitioner.

Dasti under signature of the Court Master.

CM Nos.16961-64/2011 (all for exemption)

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 14, 2011 „gsr‟