Madras High Court
Dr. Praveen B. Nilgar vs Tamil Nadu Medical Council on 26 October, 2021
WP No. 17136 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2021
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
Writ Petition No. 17136 of 2021
and
WMP. No. 18154 of 2021
Dr. Praveen B. Nilgar
No.43/12A, 4th Main Road
Kottur Garden
Kotturpuram
Chennai - 600 085 .. Petitioner
Versus
1. Tamil Nadu Medical Council
represented by its Registrar
New No.914, Old No.569
Poonamallee High Road
Arumbakkam, Chennai - 600 106
2. The Disciplinary Committee
Tamil Nadu Medical Council
New No.914, Old No.569
Poonamallee High Road
Arumbakkam, Chennai - 600 106 .. Respondents
Petition filed under Article 226 of The Constitution of India praying to
issue a Writ of Certiorari to call for the records of the first respondent
comprised in impugned order bearing Reference No.TNMC/DC/136/2018
dated 04.05.2021 and quash the same as being arbitrary and illegal and
contrary to the principles of natural justice and Indian Medical Council
Regulations (Professional Conduct, Etiquette and Ethics) 2002.
https://www.mhc.tn.gov.in/judis/
1/30
WP No. 17136 of 2021
For Petitioner : Mr. R. Parthasarathy
For Respondents : Mr. G. Sankaran
ORDER
The challenge made in this writ petition is to the order dated 04.05.2021
passed by the first respondent, imposing the punishment of removal of name of
the petitioner from the medical register maintained by the Karnataka State
Medical Council for a period of one year.
2. Briefly stated facts are that the petitioner completed his Master's
Degree in Hospital Administration from KLE University, Belgaum and has
more than 10 years of experience in hospital administration. Earlier, the
petitioner was employed as a Medical Administrator in Sagar Hospital,
Bangalore and subsequently, at Narayana Group of Hospitals. Thereafter, he
joined as Medical Superintendent at Fortis Malar Hospital in the cadre of
Deputy General Manager (Chief of Medical Services) where he worked from
17.05.2016 to 20.07.2018.
3. According to the petitioner, while he was working as Deputy
General Manager (Chief of Medical Services) in Fortis Malar Hospital, one Sri
Subhitha gave a complaint on 19.10.2018 to the Medical Council of India,
against one Dr.Radhakrishnan, which was forwarded to the respondents herein
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
to take appropriate action thereof. It was alleged in the complaint that the said
Dr.Radhakrishnan has issued a medical fitness certificate to one
N.Pitchaimani, father of the complainant, who was being treated at Fortis
Malar Hospital, Chennai, by a team of experts in various medical disciplines
and who was in ventilator support, without the knowledge of doctors and
based on such certificate, a requisition letter for home registration from the
complainant's father was prepared by Dr.Radhakrishnan team and the Sub
Registrar, Neelankarai created false records of having visited patient's place of
residence and completed registration of various properties worth about
Rs.50 crores through fraudulent settlement deed in the name of Sakthi Kumar
using the thump impression of the patient, which was taken, while he was
unconscious and on ventilator support. In this regard, a FIR in Crime No.374
of 2016 was registered and the investigation is going on.
4. The petitioner further stated that on the basis of such complaint
dated 19.10.2018, for conducting an enquiry, disciplinary committee was
constituted. The committee issued summons to the said Dr.Radhakrishnan.
Accordingly, he appeared on 26.08.2019 and gave statement that the patient
was conscious on 08.10.2015, on which date he issued the said medical
certificate. On the basis of such statement of Dr.Radhakrishnan, summons
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
was issued to the petitioner, former Medical Superintendent and
Dr.Anand Mohan Pai, present Medical Superintendent of Fortis Malar
Hospital, as witnesses to the incident. Pursuant to the same, the petitioner
appeared before the committee and deposed that both of them were not
employed at Fortis Marlar Hospital during the relevant point of time and all
the statements were made based on the available medical records as on
08.10.2015. Whereas, as on the said date, the patient was in the ICU and the
following was recorded in the medical records of the patient:
“Pt. Sensorial – altered, disoriented. GLS: E4 M6 V4 (As per Glasgow
Coma Scale) confused or disoriented.”
5. It is also stated by the petitioner that thereafter, the disciplinary
committee summoned Dr.P.Basumani, who was one of the primary consultants
among the team of specialist Doctors treating the patient during the relevant
period. Accordingly, he appeared before the committee on 22.04.2021 and
deposed that there were several complications faced by the patient and that,
the patient was shifted to the ICU on 07.10.2015 and put on ventilator support;
and that, the patient finally succumbed to a respiratory arrest on 11.10.2015.
The disciplinary committee further noted that the Inspector of Police (Central
Crime Branch), Vepery, Chennai, sent a letter dated 27.03.2017 to the
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
petitioner, enquiring about the health conditions of the patient. The petitioner
vide his reply dated 29.03.2017, stated that the patient was conscious as on
08.10.2015. Such reply was contrary to the actual health conditions of the
patient and Dr.P.Basumani, failed to ensure the correct reply indicating the
actual conditions of the patient, to the police authorities. Therefore, the
disciplinary committee recommended penalty for all the three delinquents viz.,
Dr.Radhakrishnan, petitioner and Dr.P.Basumani. As regards the petitioner,
the punishment of removal of his name from the medical register of the
Karnataka State Medical Council for a period of one year, was proposed to the
first respondent. Upon receipt of the decision of the second respondent /
disciplinary committee, the first respondent upheld the decision of the second
respondent and passed an order dated 04.05.2021, inflicting the said
punishment on the petitioner. Aggrieved by the same, the present writ petition
came to be filed by the petitioner.
6.1 Upon notice, the respondents filed a detailed counter affidavit,
wherein, it is inter alia stated that on receipt of the complaint from the
Medical Council of India, the case was referred to the disciplinary committee,
which issued summons to Dr.Radhakrishnan and accordingly, he appeared
before the committee and gave his deposition. During the course of personal
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
hearing, Dr.Radhakrishnan submitted a letter addressed to the police
authorities by Fortis Malar Hospital, stating that the patient was conscious on
08.10.2015, whereas the entries in the case records were contrary to the
condition of the patient stated in the said letter. Therefore, the disciplinary
committee called upon the petitioner, former Primary Consultant as well as the
present Medical Superintendent of the said Hospital. Though the petitioner
and Dr.Anand Mohan Pai, were unable to appear before the committee on
23.09.2019, but they appeared on 12.11.2019 and gave statement that at the
time of incident, they were not employed in the said hospital and all their
statements were made based on the available medical records. In such
circumstances, the disciplinary committee sent summons to Dr.P.Basumani,
who treated the patient at that time. On receipt of the summons, he appeared
before the committee on 22.04.2021 and gave his deposition.
6.2 The counter affidavit further proceeds to state that a letter dated
27.03.2017 was addressed to the Medical Superintendent, Fortis Malar
Hospital, by the Inspector of Police, Central Crime Branch, EDF II, Team IX-
A, Vepery, Chennai seeking answers to certain queries about the health
condition of the patient N.Pitchamani, in connection with the investigation in
CCB Crime No.374 of 2016 registered for the offences under sections 465,
467, 468, 474, 420 and 120(b) IPC, to which, reply was sent by the petitioner,
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
on 29.03.2017, after having discussion with the said Dr.P.Basumani, to the
effect that the patient was conscious on 08.10.2015, which is contrary to the
actual condition of the patient as revealed in the case sheets. On the other
hand, the said Dr.P.Basumani, during enquiry, has stated that the patient was
not conscious on 08.10.2015 and not oriented to understand the legal
documents and that, he discussed the status of the patient with the petitioner,
the former Medical Superintendent. Therefore, the disciplinary committee was
of the opinion that the petitioner's failure to furnish the correct status of the
patient has crippled the investigation and facilitated the accused to escape
from the clutches of law; and thereby, he fell short of the integrity and conduct
expected from the medical practitioner, besides violating the trust the public
placed in the medical profession. Based on the same, the first respondent
imposed the punishment of removal of the petitioner's name from the Medical
Register of the Karnataka State Medical Council for a period of one year, by
the order impugned herein. Stating so, the respondents sought to dismiss this
writ petition.
7. The learned counsel for the petitioner would vehemently contend
that there was no complaint given by the complainant against the petitioner
and no allegation was levelled against him, in the said complaint; and he was
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
called for enquiry citing him as a witness, in the case registered against the
said Dr.Radhakrishnan. The learned counsel further submitted that the
petitioner was not in employment at Fortis Malar Hospital, during the relevant
point of time (i.e.,) at the time of issuance of medical certificate dated
08.10.2015 by Dr.Radhakrishnan; he joined the services of Fortis Malar
Hospital as Medical Superintendent on 17.05.2016 and worked till 20.07.2018
and thereafter, he left the services of the said hospital; and hence, he sent reply
on 29.03.2017 to the letter dated 27.03.2017 to the police authorities, only on
the basis of the available medical records. Adding further, the learned counsel
submitted that though the petitioner pleaded ignorance and there was no nexus
about the so-called medical certificate issued by Dr.Radhakrishnan, the
disciplinary committee came to a finding that the petitioner failed to furnish
the correct information about the health conditions of the patient
N.Pitchaimani, to the letter dated 27.03.2017 sent by the police authorities and
thereby, he committed the professional misconduct and accordingly, proposed
the punishment of removal of his name from the medical register as per
Regulation 7.7 of the Regulations, 2003, which is arbitrary and illegal. It is
also submitted that before passing the order of removal of his name from the
Medical Register for a period of one year, by the respondent, the petitioner
was not issued with any show cause notice nor provided any opportunity of
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
cross examination as contemplated under Regulation 8.2 of the Regulations,
2003 and hence, the same is violative of the principles of natural justice.
8. On the contrary, the learned counsel for the respondents, by
placing reliance on the counter affidavit, submitted that the respondents
followed the Tamil Nadu Medical Council Code of Medical Ethics
(Professional Conduct, Etiquette and Ethics) Regulations, 2003, which
prescribes an inclusive definition of professional misconduct; the different acts
of misconduct given in the said Regulation are only extensive and not
exhaustive; and the violation of any provision of the Regulation is a ground
for action under professional misconduct, according to which, if a medical
practitioner is found guilty of professional misconduct, he may be awarded
punishment which includes removal of name from the register of medical
practitioner permanently or for a specified period. The learned counsel also
submitted that the petitioner furnished incorrect information through letter
dated 29.03.2017 to the police authorities on a crucial point of consciousness
of the patient, contrary to the actual condition of the patient and the said letter
was instrumental for the accused to escape from the clutches of law, who
clandestinely transferred the properties of the patient worth about Rs.50 crores
through home registration, when the patient was in the ICU of the hospital in a
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
disoriented stage. Therefore, the petitioner, being a medical superintendent,
ought to have stated the correct condition of the patient, whereas his reply to
the police authorities was incorrect as per the medical records of the patient
and thereby, he is vicariously responsible for the act done in the hospital and
this liability is based upon the maxims "qui facit per alium facit per se" which
means, he who acts through another does the act himself. It is also submitted
that during the personal hearing, the petitioner was given opportunity to
defend himself and hence, there is no violation of the principles of natural
justice, as alleged by the petitioner; and that the disciplinary committee being a
quasi judicial authority can examine the circumstances of the particular case
upon their own judicial prudence, even if there is no complaint against any
one, and take cognizance of the offence. Therefore, the learned counsel
submitted that the order passed by the respondent authorities, which is
impugned herein, is perfectly correct and the same does not call for any
interference by this court.
9. Heard the learned counsel for the petitioner as well as the learned
counsel for the respondents and perused the material records placed before this
Court.
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
10. Concededly, the petitioner joined the services of the Fortis Malar
Hospital as a Medical Superintendent on 17.05.2016 and worked till
20.07.2018. Whereas the father of the complainant N.Pitchaimani was
admitted in the said hospital on 27.09.2015, having the complications of
disorientation, generalized weakness, giddiness and turbid urine and died on
11.10.2015, despite best treatment given. Dr.P.Basumani was a primary
consultant of the said patient. As per the death summary, the immediate cause
of death is due to severe sepsis, septic shock and multi organ failure and the
antecedent cause is T-cell lymphoma, chronic liver disease, T2 DM, CKD
(chronic kidney disease), peripheral Arterial disease, urethral fistula and
gangrene in Rt. Toe. Thereafter, the daughter of the said N.Pitchaimani, viz.,
Sri Subhitha, gave a complaint to the Medical Council of India alleging that
Dr.Radhakrishnan of Coimbatore has issued a false medical certificate dated
08.10.2015 without the knowledge of the hospital doctors, based on which
home registration of various properties worth about Rs.50 crores had been
taken place in the name of Sakthi Kumar, who is son-in-law of the said
Dr.Radhakrishnan. In this regard, FIR in Cr.No.374 of 2016 was registered
and during the course of investigation, the Inspector of Police, Central Crime
Branch, EDF II, Team IX-A, Vepery, Chennai, sent a letter dated 27.03.2017
to the Medical Superintendent of the hospital, seeking answers to certain
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
queries, about the health condition of the patient N.Pitchaimani, to which, the
petitioner, based on the medical records, sent a reply dated 29.03.2017 to the
police authorities, stating that the patient was conscious on 08.10.2015, which
according to the respondents, is contrary to the actual conditions of the patient
as revealed from the case sheet / medical records. Further, Dr.P.Basumani,
during the course of enquiry, asserted that the patient was not conscious on
08.10.2015 and not oriented to understand the legal documents. Thus, the
disciplinary committee found the petitioner guilty of the professional
misconduct as contemplated under Regulation 7.7 of the Regulations, 2003, as
he failed to give correct reply to the police authorities and thereby, he is liable
to be punished under Regulation 8.2. Accordingly, the first respondent passed
an order dated 04.05.2021 imposing the punishment of removal of his name
from the medical register for a period of one year, which is impugned herein.
11. It is evident from the documents placed before this court that there
was no complaint against the petitioner for the alleged professional
misconduct and he was summoned to appear before the disciplinary committee
on 12.11.2019 only as a witness to the case registered against
Dr.Radhakrishnan of Coimbatore, based on the complaint lodged by the
complainant Sri Subhitha D/o.N.Pitchaimani. Further, he did not work in the
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
said hospital during the relevant point of time and he joined the services of the
hospital only on 17.05.2016, as such, he has no connection with the medical
certificate dated 08.10.2015 issued by Dr.Radhakrishnan. In fact, in the
complaint, there was no allegation against the petitioner and it was specifically
averred therein that the medical certificate dated 08.10.2015 was issued by
Dr.Radhakrishnan, without the knowledge of the doctors in Malar Hospital,
which was also categorically admitted by the respondent in paragraph 17 of
the order impugned herein. Hence, there is absolutely no ground for taking
disciplinary action against the petitioner.
12. The next aspect to be considered herein is the main delinquency
on which the petitioner was inflicted with the punishment of removal of his
name from the medical register for a period of one year, for the alleged
professional misconduct as laid down under Regulation 7.7 of the Regulations,
2003, that he failed to give a correct reply to the police authorities about the
physical conditions of the patient N.Pitchaimani. At this juncture, it is apropos
to refer to the said Regulation, which reads as follows:
“7.7 Signing professional certificates, reports and other
documents:
Registered medical practitioners are in certain cases
bound by law to give, or may from time to time be called upon
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
or requested to give certificates, notification, reports and other
documents of similar character signed by them in their
professional capacity for subsequent use in the courts or for
administrative purposes etc. Such documents, among others,
include the ones given at Appendix-4. Any registered
practitioner who is shown to have signed or given under his
name and authority any such certificate, notification, report or
document of a similar character which is untrue, misleading or
improper, is liable to have his name deleted from the Register.”
The aforesaid Regulation can be invoked, only if a medical practitioner has
signed or given under his name and authority any certificate, notification,
report or document of a similar character, which is untrue, misleading or
improper.
13. In this case, the letter dated 27.03.2017 sent by the police
authorities seeking answers for certain queries about the health conditions of
the patient N.Pitchaimani, was addressed to the Medical Superintendent of the
Fortis Malar Hospital, to which, the reply dated 29.03.2017 was sent by the
petitioner. For easy understanding, the relevant contents of both the letters are
reproduced hereinbelow:
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
Letter dated 27.03.2017 from the Inspector of Police, CCB, Vepery,Chennai to
the Medical Superintendent, Fortis Malar Hospital, Adyar, Chennai:
“One Pichaimani M/A 66, S/O.Narayasamy, Male,
I.P.No.15-7176 MHID-146832, who was admitted on
27.09.2015 and later died on 11.10.2015 some more particulars
is requested for our investigation purpose.
1) At the time of treatment if the above patient have the
following disease. On 08.10.15 the above patient was affected
by the following disease or not.
1.Decompensate liver disease due to lymphoma of liver.
2.Chronic renal failure
3.Diabetes and vascular gangrene of the right leg
4.Are he was emaciated.
5.Whether he was conscious or not on 08.10.15.
6.Whether he was fit for travel or not.
2) If one Dr.S.Radhakrishnan, MBBS, FRCS,
Reg.No.TN38590 visited the above patient during his treatment
at your hospital on 08.10.15.
3) On 08.10.2015 the above patient was conscious or not.
....”
Reply dated 29.03.2017 given by the petitioner, Medical Superintendent of the
Hospital to the Inspector of Police, CCB, EDF-II, Team -IX(A), Vepery,
Chennai-600 007.
“Please find the requested information as per the Patient
Case Records in Fortis Malar Hospital.
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
(i). Yes.
(ii). Yes.
(iii). Yes.
(iv). Yes.
(v). Yes, he was conscious on 08.10.2015
2. Yes, as per the primary consultant's information.
3. Yes, he was conscious on 08.10.2015.”
14. According to the petitioner, the aforesaid reply given by him to
the queries raised by the police authorities in respect of the physical
conditions of the patient N.Pitchaimani, was based on his understanding of the
medical records of the patient. The said statement was contrary to the case
sheet / medical records of the patient, according to the respondent and that, the
clinical findings pertaining to the patient are as follows:
“Pt. Sensorial – altered, disoriented. GLS: E4 M6 V4 (As per Glasgow
coma scale) confused or disoriented”
15. The learned counsel for the petitioner, during the course of
argument, filed a memo, stating explanation about the terms mentioned in the
medical reports, as per Glasgow Coma Scale. According to the same, the
explanation to 'E4' 'M6' 'V4' would run thus:
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
'E' represents Eye Response
Best eye response (E) has 4 grades with the higher
number representing the higher grade.
1.No eye opening
2.Opening to response to pain to limbs as above.
3.Eye opening in response any speech (or shout, not
necessarily request to open eyes)
4.Spontaneous eye opening.
The patient was recorded to have the highest grade in
Eye response i.e., E4.
'M' represents Motor Response
Best Motor response (M) has 6 grades with the higher
number representing the higher grade.
Apply varied painful stimulus: trapezius squeeze, earlobe
pinch, supraorbital pressure, sternal rub, nail-bed pressure, etc:
1.No response to pain
2.Extensor posturing to pain: the stimulus causes limb
extension (abduction, internal rotation of shoulder, pronation of
forearm, wrist extension) – decerebrate posture.
3.Abnormal flexor response to pain: stimulus causes
abnormal flexion of limbs (abduction of arm, internal rotation
of shoulder, pronation of forearm, wrist flexion – decorticate
posture).
4.Withdraws to pain: pulls limb away from painful
stimulus.
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
5.Localising response to pain: purposeful movements
towards changing painful stimuli is a localising response.
6.Obeying command: the patient does simple things
you ask (beware of accepting a grasp reflex in this category)
The patient was recorded to have the highest grade in
Motor response i.e. M6.
'V' represents Best verbal Response – It has 5 grades with the
higher number representing the higher grade.
Record best level of speech. If the patient is intubated, a
derived verbal score is calculated via a linear regression
prediction:
1.No verbal response
2.Incomprehensible speech: moaning but no words
3.Inappropriate speech: random or exclamatory
articulated speech but no conversational exchange.
4.Confused conversation: the patient responds to
questions in a conversational manner, but some
disorientation and confusion.
5.Orientated: the patient knows who he/she is, where
he/she is and why, the year, season and month.
The patient was recorded to have the 2nd highest grade in
verbal response i.e., V4.
In the light of the aforesaid explanation given in the Glasgow Coma Scale and
on the basis of the medical records of the patient, the petitioner has correctly
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
responded to the question, 'whether the patient was conscious or not' as 'the
patient was conscious' and he was not asked about the status or consciousness
level of the patient to be responding in detail. Further, it is to be noted that the
other responses to the queries on travel ability and presence of
Dr.Radhakrishnan were correctly given by the petitioner and there was no
dispute in this regard. More over, the police authorities have not sought for a
certificate, but they asked for particulars. Therefore, the reply submitted by the
petitioner, qua question no.1, cannot be said to be incorrect or misleading
statement to the police authorities, in the opinion of this court.
16. In respect of question no.2 that 'If one Dr.S.Radhakrishnan,
MBBS, FRCS No.TN38590 visited the above patient during his treatment at
your hospital on 08.10.2015', the petitioner gave his response that 'yes, as per
the primary consultant's information'. The said query is only with respect to
visitation of Dr.Radhakrishnan in the hospital and there is a reference about
his visitation and hence, the Primary consultant Dr.P.Basumani, said 'yes'. It is
also to be noted at this juncture that in the complaint filed by Sri Subhitha,
there is no dispute raised about the visitation of the said Dr.Radhakrishnan.
Thus, there is no material evidence made available even to allege that the
petitioner gave an incorrect / misleading information to the police authorities
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
contrary to the case sheet / medical records of the patient. In such event, the
petitioner cannot be liable to be punished for the alleged professional
misconduct, in terms of Regulation 7.7 of the Regulations, 2003 and the order
of punishment inflicted on him, hence, deserves to be set aside.
17. At this juncture, it is to be noted that in the larger interest of the
society, the highest degree of care, caution, propriety and rectitude be
expected from and followed by the medical practitioners, who discharge a
noble profession. On the other hand, in the same breadth, it is important to
acknowledge the services of medical practitioners. Regard must be had to the
fact that they work under tremendous pressure - physically, mentally, morally
and also professionally. They cannot be expected to perform their best, if the
swords of damocles are kept hanging on their head constantly. Enough
protection needs to be given to the medical practitioners in order that they may
not be penalised, targeted or punished, unjustly. This principle finds support
in the decision of the Apex Court in Jacob Mathew v. State of Punjab and
another [2005 (6) SCC 1] wherein it was observed as follows:-
"51. We may not be understood as holding that
doctors can never be prosecuted for an offence of which
rashness or negligence is an essential ingredient. All that
we are doing is to emphasise the need for care and caution
in the interest of society; for, the service which the
https://www.mhc.tn.gov.in/judis/
medical profession renders to human beings is probably
WP No. 17136 of 2021
the noblest of all, and hence, there is a need for protecting
doctors from frivolous or unjust prosecutions. Many a
complainant prefer recourse to criminal process as a tool
for pressurising the medical professional for extracting
uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.”
In A.S.V. Narayanan Rao v. Ratnamala and another [2013 (10) SCC 741]
the Supreme Court, reiterated with approval, the judgment in Jacob Mathew
referred to above and held that though the doctors are not immune from legal
clutches/proceedings in the event of their negligence in discharge of their
professional duties, however, it is necessary to protect them from frivolous and
unjust prosecution. The Supreme Court in Vinod Dua v. Union of India
[2021 SCC Online SC 414 decided on 03.06.2021] once again reiterated on
the above lines. Applying the said legal proposition to the facts of the present
case, this court is of the considered view that the order of punishment inflicted
on the petitioner, cannot be allowed to be sustained.
18. Yet another ground raised in this writ petition is that before
passing the order of punishment, the petitioner was not issued with any show
cause notice to put forth his defence nor provided any opportunity to cross
examine the witnesses to justify the reply sent by him and to prove his
innocence. Regulation 8.2 of the Regulations, 2003, explicitly provides that
any complaint with regard to professional misconduct can be brought before
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
the Tamil Nadu Medical Council for disciplinary action, the Tamil Nadu
Medical Council would hold an enquiry and give opportunity to the registered
medical practitioner to be heard in person or by pleader. On the contrary, the
petitioner was summoned only for giving evidence in the case registered
against Dr.Radhakrishnan on 12.11.2019 and accordingly, he appeared and
gave his statement before the disciplinary committee. Thereafter, he was
issued with the order of punishment of removal of his name from the medical
register for a period of one year, which would disclose that no opportunity was
provided to the petitioner to defend the allegation of professional misconduct
levelled against him and the same is totally in violation of the principles of
natural justice.
19. In this context, it is aptly quoted the observation of the supreme
court in Canara Bank v. V.K.Awasthy [(2005) 6 SCC 321 : 2005 SCC
(L&S) 833], which reads as follows:
“7. The crucial question that remains to be adjudicated is
whether principles of natural justice have been violated; and if
so, to what extent any prejudice has been caused. It may be noted
at this juncture that in some cases it has been observed that
where grant of opportunity in terms of principles of natural
justice do not improve the situation, ``useless formality theory''
can be pressed into service.
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
8. Natural justice is another name for common-sense
justice. Rules of natural justice are not codified canons. But they
are principles ingrained into the conscience of man. Natural
justice is the administration of justice in a common-sense liberal
way. Justice is based substantially on natural ideals and human
values. The administration of justice is to be freed from the
narrow and restricted considerations which are usually
associated with a formulated law involving linguistic
technicalities and grammatical niceties. It is the substance of
justice which has to determine its form.
9. The expressions ``natural justice'' and ``legal justice'' do
not present a water-tight classification. It is the substance of
justice which is to be secured by both, and whenever legal justice
fails to achieve this solemn purpose, natural justice is called in
aid of legal justice. Natural justice relieves legal justice from
unnecessary technicality, grammatical pedantry or logical
prevarication. It supplies the omissions of a formulated law. As
Lord Buckmaster said, no form or procedure should ever be
permitted to exclude the presentation of a litigant’s defence.
10. The adherence to principles of natural justice as
recognized by all civilized States is of supreme importance when
a quasi-judicial body embarks on determining disputes between
the parties, or any administrative action involving civil
consequences is in issue. These principles are well settled. The
first and foremost principle is what is commonly known as audi
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
alteram partem rule. It says that no one should be condemned
unheard. Notice is the first limb of this principle. It must be
precise and unambiguous. It should appraise the party
determinatively the case he has to meet. Time given for the
purpose should be adequate so as to enable him to make his
representation. In the absence of a notice of the kind and such
reasonable opportunity, the order passed becomes wholly
vitiated. Thus, it is but essential that a party should be put on
notice of the case before any adverse order is passed against
him. This is one of the most important principles of natural
justice. It is after all an approved rule of fair play. The concept
has gained significance and shades with time. When the historic
document was made at Runnymede in 1215, the first statutory
recognition of this principle found its way into the “Magna
Carta''. The classic exposition of Sir Edward Coke of natural
justice requires to ``vocate interrogate and adjudicate''. In the
celebrated case of Cooper v. Wandsworth Board of Works,
(1863) 143 ER 414, the principle was thus stated:
"Even God did not pass a sentence upon Adam,
before he was called upon to make his defence. 'Adam'
says God, 'where art thou? has thou not eaten of the
tree whereof I commanded thee that though should not
eat''.
Since then the principle has been chiselled, honed and refined,
enriching its content. Judicial treatment has added light and
luminosity to the concept, like polishing of a diamond.
11. Principles of natural justice are those rules which have
been laid down by the Courts as being the minimum protection of
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
the rights of the individual against the arbitrary procedure that
may be adopted by a judicial, quasi- judicial and administrative
authority while making an order affecting those rights. These
rules are intended to prevent such authority from doing injustice.
12. What is meant by the term `principles of natural
justice' is not easy to determine. Lord Summer (then Hamilton,
L.J.) in Ray v. Local Government Board, (1914) 1 KB 160: 83
LJKB 86) (KB at p. 199) described the phrase as sadly lacking in
precision. In General Council of Medical Education &
Registration of U.K. v. Spackman, (1943) AC 627: [1943] 2 All
ER 337, Lord Wright observed that it was not desirable to
attempt `to force it into any procrustean bed' and mentioned that
one essential requirement was that the Tribunal should be
impartial and have no personal interest in the controversy, and
further that it should give `a full and fair opportunity', to every
party of being heard.
13. Lord Wright referred to the leading cases on the
subject. The most important of them is the Board of Education v.
Rice, (1911) AC 179:80 LJKB 796), where Lord Loreburn, L.C.
observed as follows:
"Comparatively recent statutes have extended,
if they have originated, the practice of imposing upon
departments or offices of State the duty of deciding or
determining questions of various kinds. ... It will, I
suppose, usually be of an administrative kind; but
sometimes, it will involve matter of law as well as
matter of fact, or even depend upon matter of law
alone. In such cases, the Board of Education will
https://www.mhc.tn.gov.in/judis/
have to ascertain the law and also to ascertain the
WP No. 17136 of 2021
facts. I need not add that in doing either they must act
in good faith and listen fairly to both sides, for that is
a duty lying upon everyone who decides anything. But
I do not think that they are bound to treat such a
question as though it were a trial. .....'' The Board is
in the nature of the arbitral tribunal, and a Court of
law has no jurisdiction to hear appeals from the
determination, either upon law or upon fact. But if
the Court is satisfied either that the Board have not
acted judicially in the way which I have described, or
have not determined the question which they are
required by the Act to determine, then there is a
remedy by mandamus and certiorari".
Lord Wright also emphasized from the same decision the
observation of the Lord Chancellor that the Board can obtain
information in any way they think best, always giving a fair
opportunity to those who are parties to the controversy for
correcting or contradicting any relevant statement prejudicial to
their view''. To the same effect are the observations of Earl of
Selbourne, L.C in Arthur John Spackman v. Plumstead District
Board of Works, (1985) 10 AC 229:54 LJMC 81), where the
learned and noble Lord Chancellor observed as follows:
"No doubt, in the absence of special
provisions as to how the person who is to decide is
to proceed, law will imply no more than that the
substantial requirements of justice shall not be
violated. He is not a judge in the proper sense of the
word; but he must give the parties an opportunity of
being heard before him and stating their case and
their view. He must give notice when he will proceed
with the matter and he must act honestly and
impartially and not under the dictation of some other
person or persons to whom the authority is not given
by law. There must be no malversation of any kind.
https://www.mhc.tn.gov.in/judis/ There would be no decision within the meaning of
WP No. 17136 of 2021
the statute if there were anything of that sort done
contrary to the essence of justice".
Lord Selbourne also added that the essence of justice consisted in
requiring that all parties should have an opportunity of
submitting to the person by whose decision they are to be bound,
such considerations as in their judgment ought to be brought
before him. All these cases lay down the very important rule of
natural justice contained in the oft-quoted phrase `justice should
not only be done, but should be seen to be done'.
14. Concept of natural justice has undergone a great deal
of change in recent years. Rules of natural justice are not rules
embodied always expressly in a statute or in rules framed
thereunder. They may be implied from the nature of the duty to be
performed under a statute. What particular rule of natural justice
should be implied and what its context should be in a given case
must depend to a great extent on the fact and circumstances of
that case, the frame-work of the statute under which the enquiry
is held. The old distinction between a judicial act and an
administrative act has withered away. Even an administrative
order which involves civil consequences must be consistent with
the rules of natural justice. Expression `civil consequences'
encompasses infraction of not merely property or personal rights
but of civil liberties, material deprivations, and non-pecuniary
damages. In its wide umbrella comes everything that affects a
citizen in his civil life.”
From the above extract, it is lucid that the principles of natural justice is not an
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
empty formality. In the absence of observance to the said principle, the
element of ‘fairness’ in the action is removed and “arbitrariness” creeps in.
The principle derives its recognition in legal jurisprudence from the maxim
“Audi Alteram Partem” that means 'no man shall be condemned without being
heard'. The natural justice requires that any person, who is likely to be
punished for any act or omission, is entitled to know the charge against him
and sufficient and reasonable opportunity must be given to him to defend
himself. The principle of natural justice is encompassed in fundamental rights
guaranteed under Articles 14 and 21 of the Constitution of India. Any action
taken contrary to the same would have to be declared as arbitrary and in
violation of the fundamental rights.
20. In the case at hand, the petitioner has taken a clear stand that he
was caught unaware of the action taken against him behind his back. The copy
of the report was not furnished to him. As stated earlier, the enquiry was not
against the petitioner and he was summoned only to give evidence, citing him
as a witness. He was not afforded any opportunity to cross examine the
witness, whose statement or document was used against him and put forth his
defence before the committee. According to him, during the relevant point of
time, he was not in employment of the hospital and he joined the services of
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
the hospital only on 17.05.2016 and that, he gave such a reply to the police
authorities, based on his understanding of the medical records of the patient.
Thus, the violation of the principles of natural justice has caused serious
prejudice to him. Therefore, this court is of the opinion that without any
complaint, the act of the disciplinary committee being quasi judicial authority,
to recommend for imposition of punishment on the petitioner, that too, without
providing any opportunity to him, is wholly unjustified and the same is liable
to be set aside.
21. Thus, for the discussions held above, the order dated 04.05.2021
passed by the respondent is set aside insofar as the petitioner is concerned and
accordingly, the writ petition stands allowed. No costs. Consequently,
connected miscellaneous petition is closed.
26.10.2021
Index : Yes/No
Internet : Yes/No
rsh
https://www.mhc.tn.gov.in/judis/
WP No. 17136 of 2021
R. MAHADEVAN, J
rsh
To
1. The Registrar
Tamil Nadu Medical Council
New No.914, Old No.569
Poonamallee High Road
Arumbakkam, Chennai - 600 106
2. The Disciplinary Committee
Tamil Nadu Medical Council
New No.914, Old No.569
Poonamallee High Road
Arumbakkam, Chennai - 600 106
Pre-delivery Order in
WP No. 17136 of 2021
26.10.2021
https://www.mhc.tn.gov.in/judis/
