S.C. Dharmadhikari, J.
1. By a brief order dated 29th April, 2016, we directed as under:-
"For the reasons separately recorded, we reduce the period of suspension from 13th April, 2016 till 30th April, 2016, both days inclusive. The petitioners can commence their practice from 1st May, 2016."
2. Here are our brief reasons.
3. By this petition under Article 226 of the Constitution of India, the petitioners challenge an order of the Maharashtra Medical Council dated 13th April, 2016. By this order, the said council has directed removal of the names of the petitioners for a period of three months from the date of the order. Thus, their names stand removed from the Medical Register, which the Council maintains in terms of section 20 of the Maharashtra Medical Council Act, 1965 (for short "the MMC Act").
4. The petitioners are doctors and residing at the addresses mentioned hereinabove. The first respondent is the State of Maharashtra. The second respondent and the third respondent govern and regulate the registration of persons practicing modern scientific medicine in the State of Maharashtra. The second respondent is an authority governed by the MMC Act and the third respondent is the Medical Council of India, which is governed by the Indian Medical Council Act, 1956. The fourth respondent is Executive Committee of the Maharashtra Medical Council (for short "the MMC"). The fifth respondent is President of respondent No.4 and respondent Nos.6 to 12 are the Vice President and Executive Committee Members of the MMC. Respondent Nos.13 and 14 are also Executive Committee Members, but by virtue of their office.
5. The facts in brief are as under:-
6. The petitioners have studied medicine at Seth G. S. Medical College and KEM Hospital, Mumbai. The petitioners got their certificate of MBBS and MD, a postgraduate degree in Obstetrics and Gynecology from Mumbai University. The petitioners have always been meritorious students. The petitioners has also studied at various universities abroad and have gained immense knowledge in the field of medicine. The petitioners are registered with respondent No.2 and have received licence to practice medicine. The petitioners have been running one of India's leading In Vitro Fertilization (IVF) clinic called the Malpani Infertility Clinic in Mumbai. The petitioners, with the help of modern technology, have assisted numerous infertile couples to become parents. The petitioners started India's first sperm bank and have also pioneered a number of advanced IVF treatments in India, including Testicular Sperm Extraction with Intracytoplasmis Sperm Injection (TESE-ICSI), which is a breakthrough for treating infertile men. The petitioners have also achieved the first pregnancy with Preimplantation Genetic Diagnosis (PGD) which uses technology to prevent the transmission of genetic defects from a parent to their child. With the use of the aforesaid technology and as a result of the petitioners' treatment, over 10,000 babies have been born all over the world. The petitioners, because of their hard work and dedication, have garnered enormous reputation and success in the field of medicine.
7. The petitioners, in 2001 founded the Health Education Library for People (HELP) which is India's first consumer health education resource library. HELP has over 10000 books, all written for patients. These books can be borrowed for reading at home by anyone including patients. This is a free public library which is established to empower people by providing them with the information they need to promote their health and prevent and treat medical problems in the family in partnership with their doctor. HELP is a registered charitable trust and a non-profit organisation. HELP also hosts free talks by leading doctors, which are broadcast on You Tube and which help generate awareness among patients on various topics. The purpose of this library is to educate patients and improve doctor-patient relationships. In addition to the aforesaid, the petitioners have also authored many books to empower and impart knowledge and information to the patients so that they can get the best medical care in partnership with their doctor.
8. On 20th May, 1996, a letter was addressed by an anonymous person to respondent No.2. The letter sought to lodge a complaint against the petitioners that they were advertising their services in contravention of medical ethics, because articles in newspapers were being written about them.
9. Pursuant to the said complaint, an inquiry was conducted by respondent No.2 against the petitioners. In particular, it was the petitioners' case before respondent No.2 that merely being written about in newspapers did not constitute advertising.
10. Thereafter, on 27th June, 2012, pursuant to an inquiry held by respondent No.2 against the petitioners on the same date, respondent No.2 passed a resolution that a warning be issued to the petitioners.
11. On 3rd November, 2012, a letter of warning was issued by Registrar of respondent No.2 to the petitioners.
12. On 29th October, 2012, the petitioners filed an appeal against the said letter with respondent No.4. The said appeal is still pending. The said appeal was filed without the aid of a lawyer and under the bonafide belief that respondent No.4 has jurisdiction to hear the said appeal.
13. On 7th November, 2014, the Advertising Standards Council of India addressed a letter to the petitioners' clinic. The said letter informed the petitioners that a complaint has been received by the said council against the petitioners' clinic regarding some website/internet advertisement.
14. On 8th November, 2014, the petitioner addressed a letter to the Advertising Standards Council of India responding to their aforesaid letter.
15. Thereafter, on 2nd December, 2014, the Advertising Standards Council of India addressed an email to the petitioners. In the said email, the petitioners were informed that the Consumer Complaints Council of the Advertising Standards Council of India had upheld the aforesaid complaint against the petitioners. The petitioners were requested to withdraw the offending advertisement.
16. The petitioners, without prejudice to their rights and contentions, removed the alleged objectionable page from their clinic's website on 4th December, 2014. The petitioners informed the Advertising Standards Council of India about this in their email dated 6th December, 2014. The Advertising Standards Council of India sent an email to the petitioners on 8th December, 2014 acknowledging and thanking the petitioners for doing so.
17. Thereafter, on 30th January, 2015, the Advertising Standards Council of India addressed a letter to respondent No.4. The said letter requested respondent No.2 to take action against some doctors, including the petitioners for allegedly advertising their services in contravention of medical ethics. The said letter was written despite the fact that the petitioners had complied with the Advertising Standards Council of India's directions and the same was acknowledged by it.
18. On 11th February, 2015, respondent No.2 addressed a letter to the petitioners' clinic. The said letter was issued pursuant to the Advertising Standards Council of India's letter to respondent No.2 dated 30th January, 2015. The petitioner was informed that an inquiry would be held by respondent No.2 on 21st February, 2015. The petitioners were asked to submit a reply to the complaint. Oddly, the inquiry was held suo moto despite the fact that it was held pursuant to the letter issued by the Advertising Standards Council of India.
19. On 16th February, 2015, the petitioner submitted a reply to respondent No.2. In the said reply, it was stated that no false claim had been made because the guarantee was essentially a refund if the patient failed to get pregnant. It was also stated that the concerned page had also been removed by the petitioners from the website.
20. The Ethics Committee of respondent No.2, thereafter, held a hearing on 21st February, 2015, which, the petitioners attended. After the hearing, the petitioners once again addressed a letter dated 2nd March, 2015 to respondent No.4 reiterating their contentions.
21. On 16th September, 2015, the Registrar of respondent No.2 addressed a letter to the petitioners' clinic inviting them to a further inquiry to be held on 29th September, 2015 under section 6(1) of MMC Act. Surprisingly, section 6(1) deals with resignation of President and Vice President of the MMC. Therefore, without any application of mind, the said letter was addressed.
22. On 23rd September, 2015, the petitioner responded to the said letter requesting some information.
23. On 10th December, 2015, the Registrar of respondent No.2 issued a letter to the petitioners bearing the subject "Notice of Charges". In the said letter, the petitioners were informed that they were being charged not with making false claims on their website (as the Advertising Standards Council of India had alleged) but with advertising. The petitioners were called upon to file their written statements within a period of 7 days.
24. On 12th December, 2015, the petitioners addressed a letter to respondent No.2.
25. On 1st March, 2016, respondent No.2 addressed a letter to the petitioners informing them that an inquiry under section 22 of the MMC Act was going to be held against them on 19th March, 2016 pursuant to a complaint received by respondent No.2 relating to press cuttings. Importantly, no copy of any such complaint or press cuttings was annexed by respondent No.2 to the said letter.
26. On 21st March, 2016, the petitioners addressed a letter to respondent No.2. In the said letter, the petitioners stated that they did not intend to violate any guidelines.
27. On 27th March, 2016, an article was published in the Mumbai Mirror newspaper bearing the title "Colaba doctor couple guarantees IVF success, loses license". In the said article, it was stated that the petitioners had been suspended from practicing for a period of three months. No copy of the resolution/order of respondent No.2 has been given till date or communicated by respondent No.2 to the petitioners and the same could never have been given because respondent No.2 has not yet provided any personal hearing to the petitioners nor have the rules and procedure prescribed under the MMC Act been followed. Importantly, the said article contained a quote from respondent No.5.
28. Immediately, after reading the said article in Mumbai Mirror on 27th March, 2016, the petitioners, through their advocate on 30th March, 2016, addressed a letter to respondent No.2 calling upon respondent Nos.2, 5 and 7 to furnish a copy of the alleged impugned resolution/order to the petitioners. Several other newspapers have thereafter carried similar stories about the petitioners. Importantly, two members of respondent No.2 being respondent Nos.4 and 5 are quoted in some or all of the said articles.
29. As a result of the aforesaid stories/articles, many patients, who have booked appointments with the petitioners, have cancelled their appointments and refrained from attending the petitioners' clinic.
30. On 2nd April, 2016, advocates of the petitioners addressed a letter to the Editors of Mumbai Mirror and Free Press Journal respectively requesting for a copy of the alleged suspension order passed by respondent No.2 against the petitioners and to confirm if the statements quoted in their newspapers were indeed made by respondent Nos.4 and 5. On 6th April, 2016, the advocates of the petitioner addressed a letter to respondent No.2 and its members, placing on record the fact that respondent Nos.5 and 7 both members of respondent No.2 had breached their duties and acted with bias against the petitioners.
31. On 7th April, 2016, the Executive Director of Indian national Press (Bombay) Pvt. Ltd., which runs the Free Press Journal Newspaper, addressed a letter to the petitioners confirming that the aforesaid article published in their newspaper was published after an interaction with respondent No.5.
32. The petitioners state that on 11th April, 2016, the petitioners' advocates received a reply from the advocate for respondent No.2 (through their President respondent No.5) denying all the allegations made against them by the petitioners. Apart from mere denials, the respondent No.2's advocates have made certain statements in the said letter, which prima facie show the respondent Nos.4 to 14 complete disregard of the rules and regulations of the MMC, with principles of natural justice being given a go by and a blatantly false denial of a statement made by respondent No.5 to the Press. Respondent Nos.4 to 14 admit that the decision of suspension for three months against the petitioners was given by respondent Nos.4 to 14, which itself is bad and impermissible in law as per MMC Rules and the Act. To make matters worse, respondent Nos.4 to 14 further state that the impugned resolution/order suspending the petitioners was orally communicated to the petitioners and that an official communication in this respect will be given to the petitioners. Further more, despite of one of the newspapers confirming the statements made by respondent No.5 against the petitioners to the Press, the letter of respondents' advocate blatantly denies the same. The said letter was received on 11th April, 2016.
33. The petitioners state that after filing of the abovementioned writ petition and after receiving notice in the said matter, respondent No.2 has received a copy of an alleged order dated 13th April, 2016, purportedly passed by respondent No.2 against the petitioners. The said order on the face of it is perverse and bad in law. The purported order of the Council has been passed as an afterthought and in great haste only to adopt arm twisting methods against the petitioners.
34. The petitioners state that a perusal of the said order dated 13th April, 2016 would exhibit the personal vendetta and bias that respondent No.2 has against the petitioners. The said order is completely mischievous and contradictory to respondent No.2's advocates letter dated 5th April, 2016. Respondent No.2's advocate states that the hearing on 19th March, 2016 was before respondent No.4 and that respondent No.4 passed an oral order of suspension against the petitioner. The said letter further records that the official communication in this respect will be communicated to the petitioner. Whilst on the other hand, the purported order dated 13th April, 2016 states that the hearing on 19th March, 2016 was before respondent No.2. The impact of this contradictory statement is evident when read in juxtaposition of the MMC Act and Rules.
35. These allegations are made in both the petitions and are common to the petitioners. That is how both petitions were heard together.
36. Initially, when the petitions were placed before a Division Bench on 15th April, 2016, the Bench adjourned the hearing to 29th April, 2016, but directed production of original record in relation to the disciplinary inquiry against the petitioners by the MMC.
37. In assailing the impugned order, Dr. Saraf divided his oral contentions broadly on jurisdiction, procedural impropriety, malafides and eventually taking everything against the petitioners the harshness of the penalty.
38. Mr. Saraf would submit that the MMC lacked jurisdiction to entertain and try the complaint. It is a complaint alleging breach of medical ethics and such allegations pertain to non observance of Indian Medial Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. If any breach or non observance of such regulations is alleged and if that is required to be inquired into, then, it is only the Medical Council of India which can initiate the necessary action. The MMC, in terms of its powers under the MMC Act cannot initiate and conduct any inquiry.
39. Alternatively and without prejudice to the contentions on jurisdiction, Mr. Saraf submits that the inquiry in the present case is vitiated by procedural impropriety. Mr. Saraf would submit that there is a non compliance with the Act and the Rules. Even on the aspect of jurisdiction and assuming that the MMC can inquire into the breach of the above regulations, such inquiry must be by the Council and not by any committee much less the Executive Committee. In the instant case, it is not the action of the Council, but that of this committee. If it is the action of the Executive Committee and which is not empowered to initiate and conclude it in law, then, there is total non adherence to the MMC Act and the Rules framed thereunder. As far as procedural impropriety is concerned, there is gross violation of the fundamental principles of rule of law and natural justice. The entire action is premeditated. There was no proper notice of inquiry. There is a specific form prescribed under the Rules, but notice in terms of this form was never issued. There was no necessity of causing embarrassment or undue harassment to the petitioners by suspending them pending inquiry.
40. It is common ground that the complaint against them was of placing an advertisement. The complaint was that contrary to the professional ethics, etiquette and conduct regulations, the petitioners advertised their professional activities. They advertised that there is a programme which they have initiated, by which, certain couples are invited to participate therein. These couples not being blessed with children in a natural manner, undergo several processes. They have to observe the medical procedure prescribed to them and if required and advised consume and take some medicines. This joint programme results in the couple being blessed with a child. This phase wise programme for couples was allegedly advertised as guaranteed pregnancy. If that is how an advertisement appeared and the only breach alleged is of insertion of such advertisement, then, there was no necessity of suspending the petitioners from medical practice pending inquiry. This is not a case where the petitioners were alleged to be negligent in discharging their duties and obligations towards patients. This is not a case where there are serious allegations of rashness on their part or acting in a manner contrary to settled practices resulting in either death or serious injuries or permanent damage to the patients' health. There was no material to come to a conclusion that the petitioners have repeated their acts and they need to be prevented from, therefore, continuing their medical practice pending inquiry. Mr. Saraf states that not only such suspension was effected but it was advertised by the council itself. The order in that behalf was never communicated to the Petitioners. There cannot be a oral suspension at all.
41. Then, Mr. Saraf invited our attention to the fact that the petitioners, on their own, removed the objectionable advertisement from their website. The Advertising Standards Council of India has acknowledged this removal. Dr. Saraf submits that it was erroneous to assume that there was any guarantee and what the petitioners placed before the MMC was a fact that the alleged objectionable advertisement was nothing but a mode of informing the patients. The complaint from the Advertising Standards Council of India dated 30th January, 2015 makes allegations against not only the petitioners but several others. There is no allegation that there was a guarantee. Mr. Saraf submits that at pages 57-58, when there was a notice from the council dated 11th February, 2015 not to the petitioners but to the Clinic, yet, the petitioners responded and pointed out that as a matter of prudence, they have promptly removed the page from website on 4th December, 2014 and informed the same to the Advertising Standards Council of India. Thus, there was neither any guarantee of pregnancy nor was the alleged act unethical. All that the petitioners informed the patients was that if after undergoing the programme the wife does not conceive, the couple can claim the expenses incurred till that date back from the petitioners. It is in these circumstances that Dr. Saraf would fault the charge-sheet issued to the petitioners.
42. Inviting our attention to the notice of charges at page 67 of the paper book, it is submitted that there is no reference therein to clause 6.4 of the Regulations. There is only reference to clause 6.1 (advertisement) and clause 6.1.2. The order, therefore, does not restrict itself only to the charges/memo of the same but travels much beyond it. Apart from the complaint from the Advertising Council, the Notice of charges refers to some other material but which was never disclosed to the Petitioners and not made available otherwise. The impugned order, therefore, deserves to be set aside on this ground alone. It is stated that there is a gross violation of the principles of natural justice and procedural rules under the MMC Act, as the notice only gives seven days to put in a written statement of defence by the petitioners. This time was wholly inadequate and insufficient. In these circumstances, the impugned orders deserve to be set aside.
43. Our attention is then invited to the fact that no materials were supplied which would enable the petitioners to defend themselves effectively and properly in the proceedings. Once there is no reference in the memo of the charges to the material leading to the inquiry, then, it is apparent that the Council has reopened a closed case. In that regard, our attention is invited by Mr. Saraf to Suo Moto Complaint No.DC/11/1996, which was a disciplinary inquiry ending with a warning to the petitioners by the Council. Once that very allegation and complaint which is covered by the earlier proceedings is the basis on which the fresh round is commenced, then, it is apparent that the Council has failed to apply its mind. Its order is, therefore, vitiated on both counts, namely, non application of mind and by errors of law apparent on the face of the record.
44. Mr. Saraf has then criticized the approach of the Council during the inquiry. Mr. Saraf would submit that the petitioners' letter dated 21st March, 2016 addressed to the President of MMC at page 72 of the paper book is by no stretch of imagination an admission of the guilt or of any wrongful and unethical act. That communication only sets out the facts. That is too general statement and has no reference to any act, as alleged in the notice of charges. Hence, this letter cannot be construed as an admission of any guilt on the part of the petitioners. Mr. Saraf then submits that merely on the strength of this letter, it cannot be said that the petitioners deserve a penalty of removal of their names for three months from the Medical Register. That also was never known to the petitioners. It is shocking and surprising that a statutory body exercising quasi judicial powers, while taking disciplinary action against its members should rush to the news papers and media and announce its order to them. A Quasi Judicial order can be said to be validly and legally passed only when it is duly signed and communicated to the affected party before making it public. Before all this is done, the Council rushes to the newspaper and media and publishes its act. It is, therefore, unbecoming of a professional Council and its Executive Body has not acted responsibly and reasonably. A true professional goes by the rules, is competent and mature enough to understand that if any action has to be taken against his peers, he should not hesitate and while dealing with them, he should act fairly and in a just manner. This hope and trust is belied by the Council.
Lastly, Dr. Saraf would submit that the penalty that is imposed is too harsh and excessive. There was a warning issued earlier on the same allegations. No harsh punishment was imposed. Just because and without admitting that the same act is repeated despite the warning, that by itself and without anything more does not justify removal of the petitioners' names from the register for three months. The order, therefore, also deserves to be set aside on this count. In addition, by removal of the names of such professionals and the petitioners for three months, they have been treated unjustly in the matter of imposition of penalty. Hence, the mandate of Articles 14 and 19(1)(g) of the Constitution of India so also Article 21 thereof is violated grossly. The order be, therefore, set aside. Mr. Saraf has taken us through the impugned order extensively. Mr. Saraf has criticized the order because it is based on internal discussions and deliberations, for the ultimate decision. The proceedings, thus, were not transparent and fair. In that regard, our attention is invited to running page 100F of the paper book.
45. Mr. Saraf, therefore, submits that the petitions be allowed. Mr. Saraf has relied upon an order passed by a Division Bench of this court in the case of Dr. (Ms.) Anuja D/o. Awadh Pandey vs. the Maharashtra Medical Council and Anr. in Writ Petition No.4905 of 2014 and a connected matter, decided on 21st July, 2015.
46. On the other hand, the Council has filed an affidavit in reply denying each and every allegation. In the affidavit, the Council has, through Registrar, pointed out that there is no substance in the writ petitions at all. The petitioners have not disputed the fact that the advertisement continued to appear on their website. Though they were warned by the letter dated 3rd November, 2012 not to indulge in such act, yet, they published a advertisement on website of the clinic about guaranteed pregnancy programme and/or money back guarantee programme. That is how the Advertising Standards Council of India and being agitated by such advertisement by professionals and appearing for a long time till December, 2014, complained to the Council. Once the petitioners had admitted that the advertisement appeared and that it was not a correct and proper on their part but a wholly unethical act, then, what the Council is supposed to inquire as regards a admitted serious lapse and in what details has not been clarified by the petitioners at all. There is no loss of livelihood inasmuch as the removal is only for three months. The penalty is also justified because the act was repeated despite the earlier letter of warning.
47. It is then pointed out on affidavit that the Executive Committee derives its jurisdiction, inasmuch as the resolution of the MMC dated 7th September, 2013 specifically empowers its Executive Committee to conduct the proceedings under section 22 of the MMC Act read with relevant rules. Hence, the committee had power to hold a inquiry and possesses jurisdiction to issue the notice of charges to the petitioners herein. It is also pointed out that the breach of the code of ethics can also be inquired into by the MMC and in that regard, reference is made to the Act, Rules and particularly to the 2002 Rules. It has been pointed out that the petitioners were issued notice on 11th February, 2015 to appear before the Ethics Committee on 21st February, 2015. The petitioners received this notice and replied to the same. They were heard by the Ethics Committee on 21st February, 2015. Thereafter, the petitioners were issued a notice to appear at an inquiry by the Executive Committee. That notice dated 16th September, 2015 was also replied and the petitioners were heard on 29th September, 2015. Thereafter, the notice of charges was dispatched and a reply was given to the same. Not being satisfied with this, an inquiry was held on 19th March, 2016 and as the petitioners have acknowledged, they were given a patient hearing. All the documents filed by them were looked into together with their written statement. It is only at the conclusion of the hearing that the deliberations took place between the committee members. That is not illegal much less unethical. It is open to the Executive Members holding the inquiry to deliberate and discuss the issue amongst themselves. The petitioners have no reason to complain. Thus, there is adherence to the principles of natural justice. There are no malafides nor any personal vengeance or vendetta. Even on the point of penalty, the affidavit, on inviting attention of the court to the Indian Medial Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, submits that the penalty has rightly been imposed. It is not excessive, arbitrary or high handed at all. Resultantly, the petitions must be dismissed.
48. We have heard Mr. Saraf appearing for the petitioners and Mr. Nerlekar appearing for the respondent Council. Mr. Nerlekar produced before us the original record. We have carefully perused the petitions and all annexures thereto. We have also perused the affidavit in reply. We have also perused the original record in the presence of the counsel appearing for the parties. With their assistance, we have also perused the MMC Act, the Rules framed thereunder and the 2002 Regulations.
49. Once the petitioners do not dispute the fact that for similar act of an insertion of advertisement and in relation to a programme enabling married childless couples to have children, they were summoned by the Council and duly warned.
50. The Council had before it a letter dated 30th January, 2015 from the Advertising Standards Council of India. This letter was received by the Council on 4th February, 2015. That is a continuation of a letter dated 28th November, 2014 intimating the MMC about printing advertisement by its members, making misleading and false claims potentially violating the medical ethics and regulations for the period from April to June, 2014. The Advertising Standards Council of India records in its letter that the MMC took appropriate action against some of the advertisers.
51. However, there were some more developments and noted by this Advertising Council between July to December, 2014. The advertisement by Doctors and Medical Practitioners is not permitted by code of ethics and the MMC / IMC Act and Rules thereunder. Amongst several advertisements and claiming to be false, misleading and offending sentiments of patients and public was the insertion in the website of Malpani Infertility Clinic. We do not think that the petitioners were taken by surprise for Malpani Infertility Clinic is entirely administered and managed by the petitioners/ medical professionals before us. It is they who set up this establishment and at which clinical tests and programmes are conducted. It is their claim that the programme enables the wife to conceive and deliver a child. However, a couple has to undergo a joint treatment and in a timely manner. The offending part of all this was above specific insertion and an advertisement on the website containing a assurance of pregnancy. Once the Advertising Standards Council of India is maintaining certain standards regarding Advertisement by Doctors / Medical Practitioners, brings such an act of the medical professionals and members to the notice of MMC, then, it is but a public duty of the MMC to take cognizance thereof. Acting on this complaint of the Advertising Standards Council of India, the MMC called upon the petitioners to respond.
The petitioners, in their initial response in writing dated 16th April, 2015, informed the Council that they are aware of the complaint of the Advertising Standards Council of India. That Advertising Council had approached the petitioners and the petitioner and their clinic provided them with the supporting data. It was explained to the Advertising Council that there is no guarantee or assurance of pregnancy, but if such pregnancy does not occur, then, there is guarantee to repay the fees charged in money. Thus, on failure to conceive or pregnancy, it is the petitioners who will return the amount paid by the couples. Apart therefrom, the petitioners assert that there is nothing unethical when they proclaim as above. Yet, the petitioners informed the Registrar of the MMC that they have promptly removed the concerned page from their website on 4th December, 2014. It is, therefore, their request to the MMC to close the matter. Thereafter, what we find is that the MMC obtained necessary records. They once again informed the petitioners that the act of issuance of such advertisement on their part was unethical. There was a hearing before the Ethics Committee and the petitioners do not dispute the letter that they have addressed on 23rd September, 2015 to the Registrar of the MMC. That is in response to the letter dated 16th September, 2015 of the Council regarding inquiry under the MMC Act in relation to suo moto complaint about the advertisement. A notice of inquiry was signed on 16th September, 2015, which was responded to by the above letter. The Council having not been satisfied with the petitioners' replies and responses, proceeded to issue the notice of charges and for a regular inquiry.
52. In that regard, what we find from a reading of the Act is that by Chapter VI vide section 62, the Council is empowered to hold inquiry either suo moto or on any complaint made to it as regards the misconduct of any registered practitioner. That is for taking an action in terms of section 22. section 22 of the MMC Act states that after due inquiry held by the Council or by the Executive Committee if the registered practitioner is found guilty by the Council, it may inflict any of the penalties, including removal of the name from the Register for such period as may be specified in the direction or permanently. Thus, the power to hold the inquiry into alleged misconduct is admitted. That includes the power to impose penalties. The code of ethics is violated by the Petitioners, which in the given facts and circumstances treated as a misconduct serious enough to be inquired into. In the present case, we do not deem it necessary to deal with any larger question or controversy. It is not necessary to enumerate the powers vesting in the Council and what could be the limits or restrictions placed upon it regarding a delegation of any power under the MMC Act. The provisions or sections of the Act need not be referred to in full details and Chapter wise. Once the petitioners do not dispute the power of the Council to inquire into such allegations and the subject complaint could be brought within the purview of the powers referred above, then, We do not think that Mr. Saraf's arguments should detain us.
Mr. Saraf has invited our attention to the definition of the term "Council" as appearing in section 2(b) of the MMC Act and the definition of the term "Executive Committee" as defined in section 2(c). The Council is empowered to constitute an Executive Committee and what the Executive Committee can do is enumerated by sub-section (3) of section 11. Section 10 enumerates the powers vesting in and delegated to the Council. We do not find that the petitioners can raise any grievance with regard to lack of power and authority in the Council to direct any inquiry by its executive committee into the complaint against the petitioners. The petitioners have voluntarily and without any demur or protest appeared before the various authorities at all stages. They have subjected themselves to the power and authority of the Executive Committee as also the Council. They were aware of the complaint against them which is of breach of professional ethics. They were aware of the proceedings initiated pursuant to the complaint of the Advertising Standards Council of India. They were aware of the contents of the complaint made by that Advertising Council and never disputed the same. They being fully aware of the allegations and the nature of the complaint so also the breach, we do not think that it is now open to the petitioners to raise any technical pleas. Thus, the inquiry could not be said to be vitiated by lack of jurisdiction or power in the Council or the Executive Committee. In the facts and circumstances of this case, we need not consider the ambit and scope of the provisions of the MMC Act to which our attention has been invited by Mr. Saraf. In an appropriate case, we can deal with these issues at length.
53. We do not find that the Council acted arbitrarily or improperly or in breach of principles of natural justice. The committee invited the attention of the petitioners to the complaint against them and the contents thereof. None of this has been ever disputed. Each of the letters addressed by the Council have been promptly replied. The petitioners were aware of the breach attributed to them and by a specific letter, which they duly signed and on their own volition, they wrote to the Council on 21st March, 2016 as under:-
"MALPANI INFERTILITY CLINIC PVT. LTD.
IVF, ICSI, EMBRYO BIOPSY, SPERM BANKING
JAMUNA SAGAR, SHAHID BHAGAT SINGH ROAD,
COLABA BUS DEPOT, COLABA, MUMBAI - 400 005
TEL.: (022) 2215 1065/2215 1066, 2218 3270, 6552 7073
e-mail: [email protected] * Website: www.drmalpani.com
DR ANIRUDDHA MALPANI, MD DR. ANJALI MALPANI, MD
ember, European Society for Human Reproduction Member, American Fertility Society
21st March, 2016
President
Maharashtra Medical Council
189-A. Anand Complex, 2nd floor,
Sane Guruji Marg, Arthur Road Naka,
Mumbai - 400 011.
Dear Sir,
Thanking You for giving us a patient hearing on 19th March, 2016.
We are sorry and did not intend to break any guidelines.
We are happy to honour the guidelines laid down by the MMC and have no intention of breaking any MMC guidelines.
We have already removed the objectionable pages on our website.
Dr. Aniruddha Malpani Dr. Anjali Malpani
CC: Registrar"
54. Once such is the response of the petitioners, then, we do not see any prejudice to them at all. Even if the Council has not made reference to the regulations in its notice of charges but set out the same and relied on them in the impugned order, yet, the essential controversy or issue was known to the petitioners. They were aware of what the advertisement inserted on the website contains and what is the objectionable act on their part. That the petitioners and others are not supposed to advertise their profession or their achievements and invite patients to their clinics them. The petitioners indulged in such an act. The petitioners' advertisement or insertion may contain several details including a assurance to return the money if the programme does not succeed, but they were throughout aware that the very factum of advertisement goes against them. They could not have and to steal a march over others inserted such a advertisement. They admit their mistake. They did not contest the charge, but apologized and removed the objectionable page from the website. The petitioners are not disputing that they indulged in an unethical act not once but twice. If in this admitted factual scenario by alleging a breach of professional ethics and misconduct the MMC proceeds against them, then, there are no legal or personal malafides or a predetermined action vitiated by vengeance or vendetta against the petitioners. It is the MMC which passed the impugned order. It is the MMC which inflicted the penalty. The inquiry may be held by the delegate but the application of mind to the act of the delegate is by the principal body or the entire council. In these circumstances, we do not think that the allegations of malafides hold any water.
55. However, what we have found during the course of these proceedings and which was also put to Mr. Nerlekar, is the Council's act of hastily rushing to the press and media for informing the public about how it proceeds against unethical acts of the member doctors. If the MMC Act and the Indian Medical Council Act, 1956, equally the Rules and Regulations, including the Code of Ethics and Etiquettes were carefully perused by members of the Executive Committee and Council, they would have realized that it is their bounden duty to proceed and take disciplinary action against erring peers or professional colleagues. They have to perform a statutory and public duty. They should not shirk or avoid it at any cost. They are not obliging anybody by taking cognizance of complaints against doctors and fellow members and therefore, there is no need to be over enthusiastic and publicise the disciplinary action. The MMC should not advertise its orders and passed in exercise of quasi judicial powers. The power to inflict penalty in terms of section 22 carries with it a public duty and responsibility to the society at large. Such actions are very serious and have enormous legal consequences. The rights and equities have to be balanced by a impartial and unbiased adjudication. The quasi judicial powers are conferred in order to subserve larger public interest of maintaining the standards, dignity, status and reputation of the medical profession. The public must not loose faith and trust in doctors and medical professionals for that is the foundation on which the doctors and medical professionals earn name and fame. They would be true professionals only if they are ethical. Therefore, when other doctors / practitioners preside over disciplinary committees, they have to act in a judicious and judicial manner.
No statutory authorities or public bodies, while discharging public functions and performing such duties, rush to the press and praise themselves for having punished their peers. Rather they are humbled and ought to put their heads down, if not in anything, but in shame and disgust on noticing increasing indiscipline and gross violation of professional ethics, etiquettes and conduct. Something other than punishing the guilty also needs to be done by the seniors and experienced professionals. Equally, Judges and presiding officers of courts and tribunals and those on quasi judicial bodies do not announce to the world their orders and how they pass them. All proceedings of this nature have to be conducted in a smooth, fair and transparent manner. We, therefore, impressed upon Mr. Nerlekar the urgent need to inform the MMC, particularly its President, Secretary and other Executive Committee Members not to be ecstatic and in a mood of celebration so as to advertise their own orders and furnish details of disciplinary proceedings by holding press conferences in the Council's office. It is only when the orders are signed, duly communicated and received by the parties that their contents should be divulged, but not in the manner in which it has been done in the present case. We do not think that the sanctity and purity of disciplinary proceedings is preserved by such injudicious and irresponsible act on the part of the Council. The conduct of the members of the disciplinary committees and the Council as a whole in such proceedings should reflect sobriety, restraint and reserve so very necessary for maintaining the dignity of Medical profession. They should emphasis the need for introspection to control the falling standards of medical profession. The undisputed newspaper reports reflect everything but the above. We strongly disapprove and deprecate the same.
56. Equally, we do not find that the inquiry in this case was held by complete adherence to the procedural requirements. We find that the hearing was held on 19th March, 2016. Thereafter, the Council passed the impugned order. In the impugned order as well, we find that there are several typographical errors and factual inaccuracies. None has bothered to correct them. We have also found that the Council misunderstood the real issue and its order falls much short of the required standards. The reasoning in para 8 of the order and which are the only reasons assigned do not disclose proper application of mind to the issue at hand. However, when the charge was clear, there was no prejudice to the petitioners nor were they handicapped in any manner for the allegations were simple and uncomplicated, the response thereto was also not of total denial, in these circumstances we do not think that at the instance of the petitioners the impugned order or the inquiry as well needs to be interfered with. The writ jurisdiction under Article 226 of the Constitution of India is extraordinary, equitable and discretionary. It has to be exercised to promote and uphold honesty, truth and justice. Once we find that there is no prejudice caused and the petitioners are themselves to blame for they have repeated an unethical act and committed a second breach of the professional code of ethics and regulations, our writ jurisdiction should not enable them to overcome their lapses and deficiencies. Once their conduct is wrongful and unethical, then, we say nothing more, but clarify that we refuse to interfere with the disciplinary inquiry and the proceedings before the MMC at their instance. We clarify that we do not condone any defects in the inquiry and the approach of the MMC either.
57. We have heard the counsel on the point of penalty. We find that initially, the Council suspended the petitioners' registration and their licence to practice on 19th March, 2016, but no copy of the resolution/order in that behalf has been furnished to the petitioners. Thereafter, the impugned order has been passed and that directs removal of the petitioners' name for three months from the date of the order, namely, 13th April, 2016.
58. Thus, we have found that the petitioners rushed to this court firstly to question the alleged suspension and secondly because of this penalty of removal. In the facts peculiar to this case and bearing in mind that the petitioners apologized for their act in the first instance and removed the objectionable advertisement from the website as confirmed before us by Dr. Saraf that we are of the opinion that interest of justice would be served if the penalty of removal of the petitioners' names from the Register for three months is reduced to 18 days from 13th April, 2016 to 30th April, 2016 (both days inclusive). To that extent alone, the impugned order stands set aside and substituted with the above. The writ petition fails and is dismissed but without any order as to costs.
59. When we dictated our operative order on 29th April, 2016, in it there is an obvious typographical error. Instead of the words "reduce the period of suspension" appearing in the operative order dated 29th April, 2016, the same should read as "reduce the period of removal". That order also should stand corrected accordingly.
60. Original record be returned to Shri Nerlekar after certified true copy thereof is placed on the file of this Petition. A copy of this order be also forwarded to the President of MMC and Respondent Nos.13 and 14 for their information and necessary action.