Madras High Court
Dr.Jogesh Chandra Choudhury vs The Chairman on 18 April, 2023
W.P.No.34169 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.04.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.34169 of 2012
and
M.P.Nos.1 & 2 of 2012
Dr.Jogesh Chandra Choudhury ...Petitioner
-Vs-
1.The Chairman,
Ethics Committee,
Medical Council of India,
Sector – VIII, Pocket 14,
Dwaraka, New Delhi.
2.Board of Governors,
In Supersession of the Medical Council of India,
Rep.by its Secretary,
Sector – VIII, Pocket 14,
Dwaraka, New Delhi-110 007.
3.Melmaruvathur Adhiparasakthi Institute
of Medicine Science and Research,
Memmaruvathur – 603 319,
Tamil Nadu. ...Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorari, calling for the records of the
Respondents in connection with the minutes of the meeting held on
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W.P.No.34169 of 2012
21.08.2012 by the 1st respondent in proceedings No.MCI-211(2)/2012
Ethics, which was confirmed on 22.09.2012 and the consequential order of
approval by the 2nd respondent in respect of point no.10 of the minutes of
the meeting dated 27.09.2012, as set out in the communication issued by
the 2nd respondent on 22.10.2012, and quash the same insofar as the
petitioner is concerned.
For Petitioner : Ms.Aishwarya S.Nathan for
Mr.T.K.Bhaskar
For Respondents :
(for R1 & R2) : Ms.Shubharanjani Ananth
(for R3) : Mr.A.S.Balaji for
Mr.A.Manoj Kumar
ORDER
The punishment imposed on the petitioner, awarding removal of his
name from the State Medical Register for four years with effect from the
date of passing of the impugned order dated 22.10.2012, is under challenge
in the present writ petition.
2.The writ petitioner completed his M.B.B.S. Course in the year
1970 from S.C.B. Medical College, Cuttak, State of Orissa, and he enrolled
his name with the Orissa State Medical Counsel with a registration
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W.P.No.34169 of 2012
No.3960, dated 06.04.1971. The petitioner passed Anaesthesiology from
S.C.B. Medical College, Cuttak. Orissa, in 1977. He joined the department
of Anaesthesiology in S.C.B. Medical College, Cuttak, Orissa and he took
voluntary retirement in September 1993 and carried on his private practice.
3.The petitioner joined Melmaruvathur Adhiparasakthi Institute of
Medical Sciences and Research, Melmaruvathur, on 09.02.2010. He joined
as an Associate Professor in Anaesthesiology and during the relevant point
of time when the petitioner was serving in the said institute of medical
sciences at Melmaruvathur, the officials of the Central Bureau of
Investigation conducted a surprise inspections and culled out certain
irregularities.
4.A criminal case was registered. The CBI found certain fake
certificates and declaration forms and based on that the prosecution was
initiated. Simultaneously, disciplinary proceedings were initiated by the
medical Counsel of India and accordingly, a Show-cause Notice was
issued to the writ petitioner in a proceeding dated 13.07.2012. The Show-
cause Notice itself reveals that the letter sent by the CBI was relied upon
for the purpose of seeking explanation from the writ petitioner.
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W.P.No.34169 of 2012
5.The allegation was providing forged and fake certification/ false
information in the declaration forms submitted to the M.C.I. during the
assessment of Melmaruvathur Adhiparasakthi Institute of Medical
Sciences, made on 29.03.2010. With reference to the state allegation and
the investigation conducted by the CBI, the Show-cause Notice was issued.
The petitioner submitted his detailed explanation pleading innocence of the
allegations and the Medical Council of India finally passed an order
awarding punishment of removal of the name of the petitioner from the
State Medical Register for 4 years. Pertinently, the punishment was
imposed in respect of 32 doctors as per the proceedings of the Medical
Counsel of India dated 22.10.2012. All those 32 doctors, belonging to
various other states, filed writ proceedings before various High Courts and
the Hon'ble Division Bench of the Bombay High elaborately considered
the issues with reference to the Show-cause Notice and the punishment
awarded to these doctors.
6.The Bombay High Court in W.P.No.11429 of 2012 (A.S.) rejected
the writ proceedings filed by these doctors with the following
observations:
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W.P.No.34169 of 2012
“37. We are in complete agreement, therefore, with
Mr.Gole that the Council has original and appellate power
as well in terms of the IMC Regulations. Once these
Regulations and all the chapters thereof are read together
and harmoniously, it is evident that nothing which is a
misconduct or an infamous conduct, can go without a
disciplinary enquiry and unpunished. If the larger public
interest is to be served and bearing in mind the role of
medical practitioners and physicians, then such
comprehensive regulations and measures have to be
enacted. Having enacted them, a meaning will have to be
placed on its clauses enabling the Councils to deal with the
misconduct and/or infamous acts. That would be advancing
the remedy. A narrow or restricted interpretation is likely
to frustrate and defeat the IMC Act itself. Therefore, we are
not in agreement with the learned counsel for the
Petitioners insofar as the jurisdiction, power and authority
of Council are concerned.
...
39. Mr.Chavan's contentions essentially are based on
the understanding of the provisions of IMC Act and the
MMC Act. How that understanding is not accurate but
erroneous, is demonstrated by us hereinabove. Merely
because a misconduct is committed outside the State of
Maharashtra but the enrolment of the doctor or medical
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W.P.No.34169 of 2012
practitioner is in the State of Maharashtra, would not mean
that it is the State Council which alone possess the power
to take action and the MCI will not be able to exercise any
control or regulate the conduct of the doctor concerned.
This would be a wholly incorrect, inaccurate and improper
reading of the provisions of IMC Act and Regulations
framed thereunder. We cannot attribute to the Legislature
absurdity or patent incongruity or inconsistency. An
enactment must be read as a whole. Each provision, each
section, each sub-section and paragraphs of each section
and sub-sections have to be read together and
harmoniously, so as to make a consistent whole of the
enactment. We have done precisely that and we do not find
any such legal requirement as has been read by
Mr.Chavan. Mr.Chavan referred to Maharashtra Medical
Council Act, 1965 but his arguments overlook the fact that
it is enacted to regulate the registration of the persons
practicing modern scientific medicine in the State of
Maharashtra. Chapter-1 of the Act and the sections
appearing, particularly definitions, and the provisions of
Chapter-2, would not enable us to conclude that
preparation and maintenance of register vide Chapter-3
being an obligation of the State Medical Council, it is the
sole repository of the disciplinary and regulatory powers. If
that had been the position earlier, we do not see how after
Section 20A being introduced and brought in the IMC Act,
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W.P.No.34169 of 2012
1956, can it be urged by the learned counsel for the
Petitioners that power of State Medical Council to take
action, particularly disciplinary, is exclusive. It is to deal
with cases of breach of professional code of conduct,
etiquette and code of ethics for which regulations have
been made and once MCI has been conferred the requisite
powers in pursuance of which it has taken action, then the
State Medical Council may or may not take follow up
action. But by that, we cannot see how we can accept the
contentions of Mr.Chavan. That would mean that the very
object of introduction of Section 20A in the IMC Act, 1956
is defeated. The regulations have been, prescribed and they
have come into force from 2002. They equally empower the
State Medical Council to act and thus both the Councils
retain their powers and authority. We do not see any
inconsistency and conflict. Once the parent body is
empowered by the substantive provisions of Section 20A to
prescribe standards of professional conduct, etiquette and
a code of ethics for medical practitioners, then, it is futile
to urge that the Regulations made by it and to enforce such
standards do not enable it to take disciplinary action.
Merely because the doctor is registered as such by a State
Council, does not mean the MCI does not have power to
deal with and proceed against him. Such a stand would
render Regulations 8.1 and 8.2 of the IMC Regulations
nugatory and meaningless. Thus, the MCI has power to
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W.P.No.34169 of 2012
order the removal of the Petitioners' name from the register
altogether or for a specified period.
40. Now, the only contention which remains to be
dealt with, is about non-compliance with the principles of
natural justice. From the affidavit-in-reply which has been
filed by MCI in case of both Dr.Patel and other petitioners,
and to which there is absolutely no rejoinder, it is apparent
to us that at the said college, there was a gross and
flagrant breach of standards of professional conduct,
etiquette and code of ethics. That CBI had to intervene is a
shame. That the inspection by the MCI revealed as to how a
college styled as a medical college, is running and
imparting so called medical education without qualified
and competent staff and trained personnel. Persons under
bogus appointment letters and orders were brought in and
portrayed as professors and teachers. It is hardly open to
the petitioners to complain because the affidavit-in-reply
demonstrates as to how 32 doctors along with the Dean
had to be proceeded against. The facts as narrated reveal a
very sorry state of affairs. The affidavit-in-reply indicates
as to how elaborate statements of all concerned including
the Petitioners were recorded by CBI and which were
specifically brought to the notice of the Petitioners. No
other material was necessary to be relied upon nor has
been relied. It is clear that each of these Petitioners were
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W.P.No.34169 of 2012
called upon to appear before the Ethics Committee. We
have already rejected the arguments of these Petitioners on
the point of lack of power in the Ethics Committee. We find
that it is completely empowered. CBI wrote a letter to the
Secretary of the MCI bringing to his notice the professional
misconduct of 32 faculty members of the said college in
having falsely signed the declaration forms and appeared
before the MCI team allegedly as full time faculty members
on the date of MCI inspection. The note forwarded by CBI
and the inspection report which came to be equally
received by MCI from the inspection team, revealed that
there was a shortage of eligible faculty members. A case
was registered against Dr.Ketan Desai and whatever may
be the outcome of the criminal prosecution against him and
others, it is accepted before us that independent thereof
and in terms of the settled legal principles, a departmental
or disciplinary action can proceed and its outcome is not
influenced by that of the criminal prosecution. The
standards of proof are different and distinct in both. In the
present case, it was revealed that the faculty members and
posing as such, were not only not employed in the said
college on regular basis as declared in the declaration
forms but they were also working in other hospitals. The
declaration forms of all these 32 faculty members
contained misleading information in the form of an
undertaking to the effect that these were full time teachers
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W.P.No.34169 of 2012
of the said college but actually they were not working as
such. The 32 faculty members who attended the MCI
inspection on 29 January 2010, were not required to sign
any attendance register or to attend the college regularly
by the college authorities. They were paid salaries in cash
either lumpsum or on case to case basis and not as per
UGC Rules for which their acknowledgement of payment
was taken on vouchers issued even after the date of
inspection on 29 January 2010. The acknowledgements
were obtained in some cases even after registration of an
offence by CBI. The names of these faculty members were
not provided to the Chartered Accountant of the trust
managing and administering the said medical college, nor
were their details compiled for Income Tax purposes,
Professional Tax, nor is there any reference to their names
in the Bank Accounts. It is revealed that these persons were
brought in for inspection purpose and in most of the cases,
what has been discovered is that their self declaratory form
or self declaration is signed by Dr.Patel. The appointment
order also does not refer to any proceedings much less of a
selection process undertaken by a duly constituted selection
committee, which has interviewed the candidates. It is no
doubt true that Dr.Patel did not sign the appointment
orders but having counter-signed the declaration forms, his
complicity in the act is proved. There is no reason for these
persons to then complain of any breach of principles of
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W.P.No.34169 of 2012
natural justice. None of them made any grievance of this
nature before the Ethics Committee. None of them have
objected to the Ethics Committee accepting the report of
CBI and the Inspection Team of MCI and in any event, the
whole case was based on the statements made by the
Petitioners to CBI. That some of the Petitioners were not
aware of the fact that these statements may be used against
them or that all were not cited as accused but some were
referred as witnesses, is a plain after thought. This is not a
criminal prosecution. It is not a case where statements to
the Police are being relied upon and to the prejudice and
detriment of the Petitioner. It is an over all assessment and
view taken of the materials collected by the inspection team
and compiled in its report. That those coupled with the
statements made by the Petitioners to the CBI reveal that
there is no dispute nor there is any debatable issue on
facts. Everything including the declaration forms, the cash
vouchers, the appointment orders were shown to these
persons and they have very clearly stated in their
statements that they have not paid the income tax on the
salary received nor they received any TDS certificate. If
they were indeed regularly appointed candidates, they
would have clearly stated as to how many classes they have
conducted, the attendance slips would have been produced,
the number of lecturers and the dates and the details
thereof would also have been produced. Nothing of this
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W.P.No.34169 of 2012
nature has been found in the record. Payment of the
amount stated to be salary is made in installments and in
cash. This was an arrangement facilitating the said college
and in collusion and in connivance with all including the
Dean.
...
45. In the backdrop of the peculiar facts and the
rules and regulations requiring two opportunities, that the
Supreme Court emphasized the need for a dual hearing.
This dual hearing and compliance with the principles of
natural justice at the stage of enquiry and at the stage of
infliction of punishment by the disciplinary authority, was
necessitated because of such requirement. We have not
been shown any legal requirement of such a nature but
everything is being read into the rules, regulations by
implication. We are unable to uphold such a contention and
apart therefrom having found no prejudice caused to the
Petitioners nor any miscarriage of justice, we cannot agree
with the learned counsel and their reliance on these
judgments of Supreme Court is, therefore, misplaced.
46.The Hon'ble Supreme Court had an occasion to
consider the grievance of parties like the Petitioners of
breach of principles of natural justice. In the case of Nirma
Industries Limited Vs. SEBI, the Hon'ble Supreme Court
held as under:
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"25. In B.Karunakar & others (supra), having defined
the meaning of "civil consequences", this Court
reiterated the principle that the Court/Tribunal should
not mechanically set aside the order of punishment on
the ground that the report was not furnished to the
employee. It is only if the Court or Tribunal finds that
the furnishing of the report would have made a
difference to the result in the case that it should set
aside the order of punishment. In other words, the Court
reiterated that the person challenging the order on the
basis that it is causing civil consequences would have to
prove the prejudice that has been caused by the non-
grant of opportunity of hearing. In the present case, we
must hasten to add that, in the letter dated 4th May,
2006, the appellants have not made a request for being
granted an opportunity of personal hearing. Therefore,
the ground with regard to the breach of rules of natural
justice clearly seems to be an after-thought."
Earlier, in the case of Kesar Enterprises Limited Vs.
State of Uttar Pradesh and others, the Hon'ble Supreme
Court held that these principles guard against arbitrary
exercise of power by the State and its functionaries and aim
at preventing miscarriage of justice (See para 17 at page
2714). Mr.Chavan sought to rely on the common order
passed by the Nagpur Bench of this Court in Writ Petition
Nos.4905 of 2014 and 4922 of 2014 dated 21 July 2015
(Coram: Smt.Vasanti A. Naik and A.M.Badar, JJ.) and
which we find to be equally misplaced. There, the
Petitioners challenged the orders of Maharashtra Medical
Council suspending the registrations for a period of six
months and prohibiting them from working as
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W.P.No.34169 of 2012
teachers/lecturers in any institution imparting medical
education. Though the orders refer to the CBI inspection at
a college at Chennai, what we find is that an independent
disciplinary action was initiated against those Petitioners
by MMC. That was found to be vitiated because a notice to
show cause did not contain specific allegations. The
allegations were found to be vague. There was thus a
peculiar breach of the relevant disciplinary rules that
enabled the Petitioners to argue that there is a violation of
principles of natural justice.
47.Apart from the fact that the above order of
Nagpur Bench is distinguishable as a different issue and
controversy was raised, additionally we find that the matter
was never argued in the manner brought before us and by
highlighting the role of MCI. Therefore, the order of
Nagpur Bench is of no assistance to the Petitioners.
48.Before parting, we would like to remind all
concerned, what the Hon'ble Supreme Court had to say
about Doctors and specifically as Teachers. In the case of
Sukumar Mukherjee Vs State of West Bengal and others,
the Hon'ble Court observed as under:
"Every teacher-doctor must endeavour to make his institution a
brighter institution - a fragment of Heaven on earth, an El
Dorado of peace, joy and wisdom. After all, an institution is
what its teachers and Professors make it even as a nation is
what is patriots make it, a religion is what its prophets make it
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W.P.No.34169 of 2012
and a home is what its women make it. Without a band of
devoted men of medicine who are inspired by a holy zeal, an
institution with the paraphernalia of modern conveniences will
be like without the spark of life; without soul. When there are all
the advantages, it is no virtue if tolerable work alone is turned
out. But it is only when there are handicaps, mocking at
enterprise should the human spirit triumph and establish that
the Will is an all-conquering force. The greatest men of
medicine of the past and the present who have profoundly
influenced men's minds have been indomitable spirits who have
struggled against tremendous odds.
Inner strength which is not cowed down by adversities is
what is required. If that noble quality is to be nurtured one must
have tremendous faith in one's mission. To practise medicine is
not a craft but a calling; not a profession but a vocation.
Sincerity of purpose and earnestness of endeavour are
the two wings that will bear one aloft to the tower of success.
Given these virtues, other qualifications will follow of their own
accord.
It is a cold and irresistible fact of logic that doctors exist
for the institution and that the institution does not exist for their
convenience and profit. It sustains and nourishes them, and it is
up to them to cling to it with steadfast loyalty and to toil to
promote its highest interests.
"From good to better, daily self-surpassed", has to be
our moto. The nature of the profession is such that it definitely
demands a spirit of service and sacrifice. After all what lends
dignity to any person is his attitude to work and not the
emoluments of his office.
"Honour and shame from no condition rise act well thy
part: there all the honour lies." The duty of a true teacher-
doctor is to instruct, inspire and illumine."
49.As a result of the above discussion and for the
reasons recorded above, each of these petitions fail. The
Rule is discharged in each of the petitions, but without any
order as to costs.”
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W.P.No.34169 of 2012
7.The judgment of the Hon'ble Division Bench of the Bombay High
Court was taken by way of an appeal before the Hon'ble Supreme Court of
India in SLP (C) No.32464 of 2015 and the Apex Court dismissed the SLP
on 30.11.2015, confirming the judgment of the Bombay High Court. Since
the issues raised in the present writ petition is no more res integra and are
confirmed by the Apex Court of India, no further adjudication needs to be
undertaken with reference to the other grounds raised by the petitioner.
8. Accordingly, the writ petition stands dismissed. However, there
shall be no order as to costs. Consequently, connected miscellaneous
petitions are closed.
(sha) 18.04.2023
Index : Yes
Speaking Order
Neutral Citation : Yes
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W.P.No.34169 of 2012
To
1.The Chairman,
Ethics Committee,
Medical Council of India,
Sector – VIII, Pocket 14,
Dwaraka, New Delhi.
2.Board of Governors,
In Supersession of the Medical Council of India,
Rep.by its Secretary,
Sector – VIII, Pocket 14,
Dwaraka, New Delhi-110 007.
3.Melmaruvathur Adhiparasakthi Institute
of Medicine Science and Research,
Memmaruvathur – 603 319,
Tamil Nadu.
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W.P.No.34169 of 2012
S.M.SUBRAMANIAM. J.,
(sha)
W.P.No.34169 of 2012
18.04.2023
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