Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
08. 03.2013 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.29090 , 29091, 29888 and 29894 of 2012 and 3593 of 2013 and M.P.Nos.1,2,1,2,1,2,1 and 2 of 2012, 1,1,1,1 and 1 of 2013 Dr.K.Nedumaran .. Petitioner in W.P.No.29090 of 2012 Dr.R.Mahadevan .. Petitioner in W.P.No.29091 of 2012 Dr.K.Padmanabhan .. Petitioner in W.P.No.29888 of 2012 Dr.K.Mylsami .. Petitioner in W.P.No.29894 of 2012 Dr.T.Ramesh .. Petitioner in W.P.No.3593 of 2013 Vs. 1.The Chairman, Ethics Committee, Medical Council of India, Sector-VIII, Pocket 14, Dwaraka, New Delhi. 2.Board of Governors in Super-session of the Medical Council of India, rep by its Secretary, Sector VIII, Pocket 14, Dwaraka, New Delhi-110 077. .. Respondents 1 and 2 in all writ petitions 3.Melmaruvathur Adhi Parasakthi Institute of Medical Science and Research, rep by its Dean, Melmaruvathur, Kancheepuram District, Tamilnadu-603 319. (R-3 impleaded as per order dated 26.11.2012 and 22.11.2012 in M.P.Nos.3,3,3 and 3 of 2012) .. Respondent No.3 in W.P.Nos.29090, 29091, 29888 and 29894 of 2012 The Registrar, Tamilnadu Medical Council, D-Block, 1st floor, T.N.H.B. Complex, Jawaharlal Nehru Salai, Vadapalani, Chennai-600 026. .. Respondent No.3 in W.P.No.3593 of 2013 W.P.Nos.29090, 29091, 29888 and 29894 of 2012 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the respondent in connection with the minutes of the meeting held on 21.08.2012 by the first respondent in Proceedings not 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 and quash the same insofar as petitioners are concerned. W.P.No.3593 of 2013 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in MCI-211(2)(CBI)/2012-Ethics/155562 dated 21.01.2013 issued by the second respondent and quash the same. For Petitioners : Mr.K.Venkataramani, SC for Mr.A.S.Baalaji in W.P.Nos.29090, 29091 and 29894 of 2012 and W.P.No.3593 of 2013 Mr.AR.L.Sundaresan, SC for Mr.A.S.Baalaji in W.P.No.29888 of 2012 For Respondents : Mr.V.P.Raman for RR1 and 2 in W.P.Nos.29090, 29091,29888 and 29894 of 2012 and for respondents in W.P.No.3593 of 2013 Mr.A.Manojkumar for R-3 in W.P.Nos.29090, 29091,29888,29894 of 2012 - - - - COMMON ORDER Prologue : "The medical profession is one of the oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity. Medical ethics underpin the values at the heart of the practitioner-client relationship. In recent times, professionals are developing a tendency to forget that the self-regulation which is at the heart of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that a doctor's is a noble profession and the aim must be to serve humanity, otherwise this dignified profession will lose its true worth." [State of Punjab v. Shiv Ram reported in (2005) 7 SCC 1.para 34] This judgment of the Supreme Court will set a tone for the case on hand. 2.These five writ petitions came to be posted on being specially ordered by the Hon'ble Acting Chief Justice, vide order dated 1.3.2013. Out of five writ petitioners, four writ petitioners have challenged the order dated 21.08.2012 issued by the Chairman of the Ethics committee of the Medical Council of India, New Delhi and the consequential order of the second respondent, i.e., the Board of Governors of the MCI functioning in the place of elected medical council, dated 27.09.2012 and seeks to set aside the same. By the aforesaid order, the petitioners' names were directed to be removed from the State Medical Register for a period ranging from 3 to 5 years. 3.In W.P.No.29888 of 2012, when the matter came up on 22.11.2012, status quo as on date was directed to be maintained. Subsequently, it was clarified that in the interim order all the four writ petitions (W.P.Nos.29090, 29091, 29888 and 29894 of 2012) were mentioned, it was stated that it will maintain only in respect of W.P.No.29888 of 2012. Thereafter, orders were passed on 30.11.2012, 17.12.2012, 08.01.2013, 31.01.2013 and 12.02.2013. It was generally stated that the earlier order granted was extended from time to time and finally by an order dated 12.02.2013, it was extended until further orders. Aggrieved by the grant of the interim order, vacate order applications were filed in M.P.Nos.1 of 2013 seeking to vacate the interim order. In all 4 writ petitions, the College in which the petitioners were allegedly employed as faculty members, i.e., Melmaruvathur Adhi Parasakthi Institute of Medical Science and Research (for short MAPIMS) was also impleaded vide order dated 22.11.2012 and 26.11.2012. 4.When these four writ petitions were pending consideration, the 5th writ petition came to be filed in W.P.No.3593 of 2013 by one Dr.T.Ramesh. He has come forward to challenge the order, dated 21.01.2013 passed by the MCI, wherein and by which his name was directed to be removed from the State Medical Register for a period of 5 years with an immediate effect. He is not only a faculty member in the said college, but also the Managing Director of the MAPIMS. In view of the pendency of other cases, they were all grouped together and heard. 5.The circumstances which led to take disciplinary action against the said five doctors can be briefly stated as follows : Dr.Ketan Desai, who was the then President of the MCI was arrested by the CBI and a criminal case was registered against him punishable under Section 120B and 420 IPC read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. The charge against him was that as the Chairman of the Executive Committee of the MCI, he had recommended renewal of permission for admission of third batch of students run by the MAPIMS for the academic year 2010-2011. He had granted renewal even though MAPIMS did not possess requisite infrastructure facility as required under the norms of the MCI and the Central Government. Initially, for the year 2010-11 when the second renewal of permission for admission of third batch of students of MBBS came, the MAPIMS had applied for renewal of permission. The MCI had carried out inspections on 16.02.2010 and 17.02.2010 by a team of inspectors of MCI. The team had noted several deficiencies including shortage of faculties to an extent of 42.17% and shortage of residents of 63.39%. The executive committee, upon considering the inspection report, had noted these deficiencies and decided to recommend to the Central Government not to grant permission for admission of the third batch students for the academic year 2010-2011. Thereafter, it was stated by the MAPIMS that the have complied with the deficiencies found. An another inspection was carried out by the MCI on 29.03.2010 by a team of Inspectors of the MCI. In the meeting held on 05.04.2010, the members of the executive committee had decided to recommend to the Central Government to renew permission for admission of the third batch of 150 students in the MAPIMS for the academic year 2010-2011. It was on the basis of the recommendation of the MCI, the Central Government had granted approval for renewal of permission for admission. It was intimated by the Ministry of Health and Family Welfare on 23.04.2010 to the Managing Trustee of the college. 6.The investigation by the CBI revealed that the MCI requirement requiring 262 faculty members in the college was not fulfilled and there was a shortage of eligible faculty members. The MAPIMS claimed that they have recruited faculty members over a period from 2009-2010. Several faculty members were not permanent including 32 doctors and some of them were working for one day or a few days in the college only for the purpose of presenting themselves before the inspection team of MCI on 29.03.2010 to make it appear as if they are regular faculty members. But, they were actually faculty members who were not employed in the college on regular basis contrary to the declaration form. In essence, they were working in other hospitals. While working at other hospitals, they cannot be the faculty members of the MAPIMS as required under the regulations of the MCI. The declaration forms of all these faculty members including the four writ petitioners, who were not employed in the college, contained false and misleading information in the form of an undertaking to the effect that these faculty members were full time teachers of MAPIMS and that they were not working in any other medical college or institution nor attended any inspection of the MCI from 01.08.2009 onwards till the date of signing the declaration form and that they were not practicing anywhere or carrying out any other activity. These 32 faculty members who had attended the MCI inspection on 29.03.2010, were not required to sign any attendance register or to attend the college regularly by the college authorities. They were paid salary in cash either in lumpsum or on case to case basis and not on the basis of the UGC rules, for which acknowledgment of payment of salary by cash was taken in vouchers even after the date of compliance inspection on 29.01.2010. In some cases, even after the registration of the case by the CBI, they were not shown as faculty members in the list provided to the Chartered Accountant of the trust, which is running the college for the purpose of income tax computation while filing the income tax returns. Their names also did not appear in the list provided to the panchayat for payment of professional tax and in the bank, i.e., Central Bank of India and State Bank of India, wherein salaries of faculty members were paid directly. Therefore, the CBI had opined that these 32 doctors, including 4 writ petitioners have violated the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which calls for punishment and disciplinary action. By their act, they have contributed to the strength of faculty members of the MAPIMS when the MCI had conducted inspection on 29.03.2010 and made the MCI to believe that the strength of the faculty members of the college was sufficient as per the MCI Regulations and also made the MCI to grant permission for admission of third batch of students. Therefore, the CBI had recommended to the MCI to take action in terms of the Ethics Regulations. 7.It was also stated that they were given appointment orders by one Dr.T.Ramesh, petitioner in W.P.No.3593 of 2013, who is also the Managing Director of the institution. The MCI upon receipt of the report had informed all petitioners separately by communication, dated 13.7.2012 that it was decided to take appropriate steps and necessary action in accordance with law. Therefore, they were asked to show cause as to why disciplinary action should not be taken against them in accordance with the regulations, 2002. They were also asked to appear before the Ethics Committee of the MCI on 21.08.2012 along with any statement of defence and or documentary evidence in their support. In the same show cause notices, they were informed about the CBI report and necessary documents including declaration forms were enclosed for their perusal. On receipt of the said notice, the four petitioners have appeared before the committee and gave statements. They were also given a question and answer to be filled up by them, which was also duly filled up by them. 8.The nature of allegations made against them, statements given by the petitioners and the observation of the Ethics Committee including their recommendation in respect of four writ petitions are set out hereunder : Dr.K.Nedumaran (W.P.No.29090 of 2012): Statement submitted by CBI "Statement of Dr.K.Nedumaran, S/o Shri V.Kaliaperumal, earlier working as Assistant Professor, Anesthesiology, in Melmaruvathur Adiparasakthi Institute of Medical Science and Research, Melmaruvathur, Age:
37. yrs., presently working as Consultant in (Chennai Cardiac Centre), Billroth Hospital, R.A.Puram, Chennai-28, Res : No.72-A, L-Block, 23rd Street, Anna Nagar East, Chennai-102, Penn, Address: No.16, V.K.P.House, Mayilapalayam, Pattukottai, Thanjavur District, Mobile # 9840599833. On being asked I state that I did my MBBS in the year 1998 from Rajah Muthiah Medical College, Annamalai University vide Registration No.60908 dated 12.02.1998 from Tamilnadu Medical Council. After completion of MBBS, for few years, I worked as Jr. Resident in the Apollo Hospital, Greams Road, Chennai. Thereafter, in 2001, I joined Kasturba Medical College for PG in Anesthesia. I completed MD (Anaesthesia) in 2004. I had worked as above in the Melmaruvathur Hospital from 01.11.2007 and left the same on 30.06.2010. Before this, I was working in Meenakshi Medical College, Kancheepuram during March 2006 to October 2007. I had resigned from Meenakshi Medical College since there was a shortage of Anaesthetists in the Melmaruvathur Adhiparasakthi Hospital, Melmaruvathur and Dr.Ramesh who personally knew me requested me to come over and join this Hospital. Since, there was adequate Anesthesists in Meenakshi Medical College, I joined Melmaruvathur Hospital. When I joined the said Hospital, the Medical College had not started functioning. After joining Melmaruvathur Adhiparasakthi Hospital, I was freelancing also, since I used to visit Melmaruvathur Adhiparasakthi Hospital on a case to case basis and not on daily basis, as my services was not required on a daily basis. I have taken classes Undergraduates, depending on requirements. There was no hard and fast timings or days set for these. For the said reasons, I was not signing any attendance register and was only reporting to the HOD. I was offered a consolidated salary of Rs.35,000/- at the time of joining which was paid through cash only. In March, 2010 my salary was Rs.35,000/-. I am shown the cash voucher dated 07.04.2010 for Rs.35,000/-, in which I identify my signature. After joining, I was told that the mode of payment of salary will be through cash. During February/March, 2010 I was working in the Melmaruvathur Adhiparasakthi Hospital. However, I was not present during the inspection by MCI held in February, 2010, because of the reasons stated above. I was present during the inspection held in Marcy, 2010. I am shown my Declaration form given to the MCI dated 16.2.2010. This as been signed by me and I confirm that the contents of the same are correct. However, the entries in the form are not in my hand writing. Even though the date of Declaration Form was 16.2.2010, I was not present at the time of inspection on that day, hence my presence is not marked by the MCI in the relevant column. Though in the Declaration form, I have stated to have been working full time, as agreed up on with the college officials I was not required to do so and hence I was not working full time. I am shown the Appointment order, Joining report and Quarters allotment orders all dated 01.11.2007. I confirm that these papers are related to my employment. The Joining Report has been signed by me, but does not bear my and writing. I have also produced an experience certificate from Meenakshi Medical College, Chennai dated 27.02.2008, certifying that I had worked in Meenakshi Medical College, Hospital and Research Institute during 01.03.2006 to 31.10.2007. On being asked I hereby state that I have filed my income Tax Returns for the financial year 2010-11 including those amounts which have been paid to me during the year. I am yet to be paid certain dues, which will be included in the IT returns, which will be filed in the next AY. Regarding Professional Tax, it is to state that I have paid Rs.1,500/- to the authorities, which is reflected in the IT returns." Statement submitted to Medical Council of India by the doctor Dr.K.Nedumaran stated that he joined MAPIMS as Assistant Professor of Anesthesia on 01.11.2007 and relieved on 30.06.2010. He was regular in his duties. He stated that before the medical college was started he has joined Melmaruvathur Hospital as there were inadequate anaesthesists. He stated that he took 1-2 classes in a month. He was in the college on 22/23.03.2010 and also 28/29.03.2010. He stated that he has received Rs.1,17,000/- and Rs.1,05,000/- for the year 2008-09 and 2009-10 respectively after TDS and submitted Form-16. He stated that there was no attendance register and declaration form was filled by some one else but signed by him. He further stated that he received salary Rs.30,000/- pm in cash in simultaneously he was rendering services at Billroth Hospital, Chennai and earning roughly Rs.1,00,000/- in March, 2010. The Ethics committee observed as under : Dr.Nedumaran has admitted that he attended the college for only 2 days a week and was also working at Billroth hospital, Chennai at the same time. The Ethics Committee after detailed deliberation and perusal of all the relevant documents as well as the oral and written statement submitted by Dr.K.Nedumaran, have come to the unanimous decision that Dr.K.Nedumaran has violated the Professional Conduct, Etiquette and Ethics Regulations, 2002 so ar as the following provisions of the regulations are concerned:- Section 1.1.1. A Physician shall uphold the dignity and honour of his profession. Section 1.1.2. The prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. Who-so-ever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals. A physician should be an upright man, instructed in the art of healings. He shall keep himself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life. Section 8.1 PUNISHMENT AND DISCIPLINARY ACTION "It must be clearly understood that the instances of offences and of Professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils has to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils." The Ethics Committee is of the opinion that the Act of Commission in the part of Dr.K.Nedumaran constitutes PROFESSIONAL MISCONDUCT, which renders him liable for disciplinary action. Under the above mentioned circumstances, the Ethics Committee unanimously recommended that a punishment of removal of his name from the concerned State Medical Council's register as well as the Medical Council of India register for a period of five (05) years. Dr.R.Mahadevan (W.P.No.29091 of 2012) : Statement submitted by CBI : "Statement of Dr.R.Mahadevan, S/o Shri V.Ramasamy, earlier working as Assistant Professor, Anesthesiology, in Melmaruvathur Adiparasakthi Institute of Medical Science and Research, Melmaruvathur, Age:
40. yrs., presently working as Consultant in (Chennai Cardiac Centre), Billroth Hospital, R.A.Puram, Chennai-28, Res : No.2786, 12th Main Road, 6th Street, Anna Nagar, Chennai-40, Perm. Address : Nagapalayam, Pilikkalpalayam Post, Paramathivelur-637213, Mobile # 9840095186. I did my MBBS during the year 1987 to 1993 from Rajah Muthiah Medical College, Annamalai university vide Registration No.53106 dtd. 08.07.1993 from Tamilnadu Medical Council. After completion of MBBS, for few years, I worked as Jr.Resident in K.G.Hospital, Coimbatore. Thereafter, in 1999, I joined Adhichunchungiri Institute of Medical Sciences, Mandya, Karnataka for PG in Anesthesia. I completed MD (Anesthesia) in 2002. I was doing freelancing for Chennai Cardiac Centre. I had worked as above in the Melmaruvathur Hospital from 27.03.2008 and left the same on 30.06.2010. Before this, I was working in Meenakshi Medical College, Kancheepuram from 02.06.2007 to 08.08.2007. I had resigned from Meenakshi Medical College since Dr.Ramesh, who is known to me since a long time, offered me a post in Melmaruvathur Adiparasakthi Hospital, Melmaruvathur with a payment better than what Meenakshi Medical College offered. When I joined the said Hospital, the Medical College had not started functioning. I was offered a consolidated salary of Rs.35,000/- at the time of joining which was paid through cash only. In March, 2010 my salary was Rs.35,000/-. After joining Melmaruvathur Adiparasakthi Hospital, I continued freelancing for Chennai Cardiac Center, since I used to visit Melmaruvathur Adiparasakthi Hospital on a case to case basis, two days a week and not on daily basis, as my services was not required on a daily basis. I also taken classes for Undergraduates, depending on requirements. There was no hard and fast timings or days set for these. For the said reasons, I was not signing any attendance register and was only reporting to the HOD, who used to call us as and when required. I am shown the cash voucher dated 07.04.2010 for Rs.35,000/-, in which I identify my signature. After joining, I was told that the mode of payment of salary will be through cash. I was not interested in opening a bank account since I was already having an account in Dena bank in Aminjikarai, Chennai. During February/March, 2010 I was working in the Melmaruvathur Adhiparasakthi Hospital. Only one of us i.e. myself and Dr.Nedumaran, who was earlier in Melmaruvathur Adiparasakthi Hospital, used to attend the said Hospital. In the absence of one of us in Billroth hospital the other used to take care of matters related to Anesthesian Melmaruvathur Adhi Parashakthi Institute of Medical Sciences and Research, Melmaruvathur. However, I was not present during the inspection by MCI held in February, 2010, because of the reasons stated above. I was present during the inspection held in March, 2010. I am shown my Declaration form given to the MCI dated 16.2.2010. This has been signed by me and I confirm that the contents of the same are correct. However, the entries in the form are not in my hand writing. Even though the date of Declaration Form was 16.2.2010. I was not present at the time of inspection on that day, hence my presence is not marked by the MCI in the relevant column. I am shown the Appointment order, Joining report and Quarters allotment orders all dated 27.03.2008. I confirm that these papers are related to my employment. The Joining Report has been signed by me, but does not bear my hand writing. I have also produced an experience certificate from Meenakshi Medical College dated 02.04.2008, certifying that I had worked in Meenakshi Medical College, Hospital and Research Institute that I was being relieved on 08.08.2007. On being asked I hereby state that I have filed my income Tax Returns for the financial year 2010-11 including those amounts which have been paid to me during the year. I am yet to be paid certain dues, which will be included in the IT returns, which will be filed in the next AY. I use to get only Rs.1,000/- per visit to the Hospital as I opted for the same, since I wanted to collect the remaining amount due to me, lumpsum, as I was planning the purchase of house. Thus, an amount of more than Rs.4.5 lakhs is due to me. I have not taken this amount, hoping that I would be able to take an Interest free loan from him, when the time comes." Statement submitted to Medical Council of India by the doctor Dr.R.Mahadevan stated that he joined MAPIMS as Assistant Professor of Anesthesia in 27.03.2008 and relieved on 30.06.2010. He was regular and not working in any other college on a faculty. He stated that he has been attached to the hospital (Melmaruvathur Adiparasakthi) before the college was started. He stated that he has taken on an average 30 classes per week for paramedical staff and physiotherapy students for undergraduate students on request only given demonstration about ACLS. He was not sure whether he attended the college during 22/23.03.2010. He appeared before the MCI team on 29.03.2010. His work at MAPIMS was purely for non-monetary. He stated that at the time of inspection in March he was simultaneously working at two places MAPIMS and Billroth Hospital, Chennai and both the places he was paid on a case to case basis. He stated that he has received Rs.35,000/- for his anaesthesia services only. He stated that there was no attendance register and declaration form was blank when he signed. The Ethics Committee observed as under : Dr.R.Mahadevan has admitted that he attended the college for only 2 days a week and was also working at Billroth hospital, Chennai at the same time. The Ethics Committee after detailed deliberation and perusal of all the relevant documents as well as the oral and written statement submitted by Dr.R.Mahadeven, have come to the unanimous decision that Dr.R.Mahadevan has violated the Professional Conduct, Etiquette and Ethics Regulations, 2002 so far as the following provisions of the regulations are concerned :- Extract of Regulations 1.1.1, 1.1.2 and 8.1 reproduced were omitted. The Ethics Committee is of the opinion that the Act of Commission in the part of Dr.R.Mahadevan constitutes PROFESSIONAL MISCONDUCT, which renders him liable for disciplinary action. Under the above mentioned circumstances, the Ethics Committee unanimously recommended that a punishment of removal of his name from the concerned State Medical Council's register as well as the Medical Council of India register for a period of five (05) years. Dr.K.Padmanabhan, (W.P.No.29888 of 2012) : Statement submitted by CBI "Statement of Dr.K.Padmanabhan, S/o Shri Subramaniam Kumar, Age :
38. years, presently working as ENT Consultant in Payyannur, ENT Surgeon, Cooperative Hospital, South Bazaar, Payyannur, Kerala. Perm Add: c/o Amrita Offset Printers, New Theatre Building, Thampanoor, Trivandrm, Kerala. I am as above. I am attached to the above hospital since 2005. I completed MBBS from the Trivandrum Medical College in the year Feb. 1997. After that I joined Kasturba Medical college in the year 1998 and completed my PG in the year 2001. I was working in the Yenapoya medical college from September, 2001 to September, 2003. Thereafter I worked in the Amrita Institute of Medical Sciences during the period November, 2003 to February, 2005. I was working as a Consultant since then. On being asked I state that I was contacted by Shri Ramabhadran, Administrative Officer of Melmaruvathur Adiparasakthi Institute of Medical Science and Research, Melmaruvathur in September, 2009 and offered the post of Asst. Professor in the College. I had not offered myself for the post. It is possible that he might have contacted me after getting my personal details from any other faculty member who knew me. I joined Melmaruvathur Adiparasakthi Hospital on 02.10.2010, on being asked, I state that as per the verbally agreed upon terms of the management of the college, I was to attend 2-3 days in a month in the Hospital attached to the college. I had also taken classes for the students. I could not attend to the Hospital work on a regular basis. For this reason, I was not signing the attendance Register also. I was offered a consolidated salary of Rs.30,000/- approximately at the time of joining the hospital which was paid through cash. Towards the end of my tenure, I was getting Rs.35,000/-. I left the service in the Hospital in June 2010, since I was asked to be full time which I could not. I had a talk with the management. I gave a resignation letter some time in June, 2010. I am shown the cash voucher dated 07.04.2010 for Rs.35,000/- in which I identify my signature. During February/March, 2010, I was working in the Melmaruvathur Adhiparasakthi Hospital. However, I was not present during the inspection by MCI held in February, 2010. I was present in the inspection held in March, 2010 as I was specifically called upon to do so. I am shown my Declaration form given to the MCI dated 16.02.2010. This as been signed by me and I confirm that the contents of the same are correct. However, the entries in the said form are not in my handwriting. This appears to have been filled up by the Office Staff. Though I was not a regular faculty member, I have declared that it was so, as the college did not itself require me full time. Regarding the payment of Income Tax I am yet to pay my Returns for the period I was working there since I was not issued the Form-16 by the Melmaruvathur authorities. I am shown the Appointment Order, Joining report and Quarters allotment orders all dated 02.01.2010. I confirm that these are papers related to my employment." Statement submitted to Medical Council of India by the doctor Dr.K.Padmanabhan stated that he joined MAPIMS as Assistant Professor of ENT on 02.01.2010 and relieved on 30.06.2010. He was full time regular to the college and was stayed in college campus. Not working in any other college. He took 2-3 clinical classes and demonstration per week. He was in the college on 22/23.03.2010 and also 28/29.03.2010. He stated that he has received Rs.65,000/- during the said period though cash although he has requested to pay by cheque. He did not submit Form-16. Declaration was not filled by him but signed by him. At the time of inspection he was there and later he took leave and had private practice in a co-operative hospital in Kerala. On an average he earning about 10-20 thousand per month by private practice. The Ethics committee observed as under : Dr.K.Padmanabhan, joined as full time Asst. Prof.ENT and MAPIMS Jan 2010. In the statement given to CBI officer Addl. Supdt. Of Police,Chennai, he mentioned that he attended MAPIMS 2 3 days in a month. He did not attend the hospital on regular basis. While declaration form given to MCI inspector dated 16.02.2010 shows the nature of job was full time teacher. He admits that the contents of the form dated 16.02.2010 are right. While the form filled at MCI on 21 August 2012, he again gave false information that he was attending MAPIMS regularly. He has violated MCI norms and given contradictory statements. The Ethics Committee after detailed deliberation and perusal of all the relevant documents as well as the oral and written statement submitted by Dr.K.Padmanabhan, have come to the unanimous decision that Dr.K.Padmanabhan has violated the Professional Conduct, Etiquette and Ethics Regulations, 2002 so far as the following provisions of the regulations are concerned :- Extract of Regulations 1.1.1, 1.1.2 and 8.1 reproduced were omitted. The Ethics Committee is of the opinion that the Act of Commission in the part of Dr.K.Padmanabhan constitutes PROFESSIONAL MISCONDUCT, which renders him liable for disciplinary action. Under the above mentioned circumstances, the Ethics Committee unanimously recommended that a punishment of removal of his name from the concerned State Medical Council's register as well as the Medical Council of India register for a period of three (03) years. Dr.Mylsamy, (W.P.No.29894 of 2012) : Statement submitted by CBI "Statement of Dr.Mylsamy, S/o Shri Kandasamy, earlier working as Associate Professor, General Surgery, in Melmaruvathur Adhiparasakthi Institute of Medical Science and Research, Melmaruvathur, Age :
62. yrs., presently working as Professor, Mahatma Gandhi Medical College, Pondicherry, presently residing at No.104, PG Quarters, Mahatma Gandhi Medical College, Pondicherry, Permanent residing of No.2-13, Sitaram Apartment, Malaviya Street, Ram Nagar, Coimbatore-641 009, Telephone # 0422-2236373 ., Mobile # 9488750332, 9842250330. I completed my MBBS from Coimbatore Medical College in 1972 and was registered vide No.24706 dated 17.01.1975. After completion of MBBS, I joined the Tamilnadu Govt. Service in Aliyar Govt. Dispensary in 1978. Over the years, I served in different hospitals in different places in the state and retired in May 2007. During the course of my tenure, I passed my PG in General Surgery in 1981. After retirement, I was practicing in Coimbatore privately. While practicing privately, some time in the last week of January 2009, I was contacted by a Doctor from Chennai asking me to contact officials in Melmaruvathur Adhi Parashakthi Institute of Medical Sciences and Research, Melmaruvathur as there was a vacancy for the post of Associate Professor in the college. Accordingly, I went to college on 01.02.2009 along with my papers and proceeded to meet the concerned officials of the college including the Dean and Shri Ramabadhran who is the Administrative Officer of the College. I was given the appointment order on the same date. In 2009, there was an MCI inspection, a few days before which they called me and asked me to come telling that there would be an inspection. Once, the inspection was over, they paid me Rs.80,000/-. After that, I was called to work for two to three days every month. But no payment was made by way of salary. Subsequently, in March 2010, I was called again for attending the inspection. After the inspection was over, I was paid Rs.2,00,000/- the next day. After the inspection also, I was called to the college on a few days. I stopped attending the college after April 2010, since they were not paying regylarly except for those employed on a regular basis and also because, I got better offer subsequently in November 2010 from Mahatma Gandhi Medical College where I am now working. I am shown the declaration from dt.02.03.2010. This has been signed by me and I confirm that the contents of the same are correct as regards my personal details. The entries in respect of the salary paid is not correct. The entries in the form are not in my handwriting. The declaration in this form in respect of my undertaking that I was working as a full time faculty member etc. and that I was not practicing anywhere else etc. was not noticed by me, since these were filled-up routinely by the office staff and not by me. I am shown the cash voucher dtd.07.04.2010 showing that I have been paid Rs.45,000/-, I confirm having signed this, however, this amount has not been received by me. The voucher in respect of the payments of Rs.80,000/- and Rs.2,00,000/- have been separately. I am shown the Appointment order, Joining report and Quarters allotment orders all dated 01.02.2009. I confirm that these papers are related to my employment. The Joining Report has been signed by me and bears my hand writing. On being asked I hereby state that I have filed my Income Tax Returns for the financial year 2010-11 does not include any payment made by the college, since I have not been given any payment." Statement submitted to Medical Council of India by the doctor Dr.K.Mylsami stated that he joined MAPIMS as Associate Professor of Surgery in 01.02.2009 and relived on 31.07.2010 and he was staying in quarters of the campus. He was regular and worked all working days. He was present during the MCI Inspection on 28/29.03.2010. He did not take any classes as there was no clinical posting for students. He stated that he has received Rs.80,000/- in cash after first few months and then Rs.2,00,000/- in cash. He stated he never took classes as there was no clinical students posted in surgery. He did not receive and hence did not submit Form-16 but regularly submitting income tax. He said that the declaration form has not seen filled by him in his own handwriting. The Ethics committee observed as under : Doctor K.Mylsami: Age 60 years. He has been shown as associate professor in general surgery and is date of joining has been shown as 01.02.2009. From his statements given to investigating agency and before the ethics committee of MCI, provides convincing evidences to prove that Dr.K.Mylsami was not working as the full time faculty in the department of surgery of the medical college. Hence he has violated the professional conduct, Etiquette and ethics regulations 2002. The Ethics Committee after detailed deliberation and perusal of all the relevant documents as well as the oral and written statement submitted by Dr.K.Mylsami, have come to the unanimous decision that Dr.K.Mylsami has violated the Professional Conduct, Etiquette and Ethics Regulations, 2002 so far as the following provisions of the regulations are concerned :- Extract of Regulations 1.1.1, 1.1.2 and 8.1 reproduced were omitted. The Ethics Committee is of the opinion that the Act of Commission in the part of Dr.K.Mylsami constitutes PROFESSIONAL MISCONDUCT, which renders him liable for disciplinary action. Under the above mentioned circumstances, the Ethics Committee unanimously recommended that a punishment of removal of his name from the concerned State Medical Council's register as well as the Medical Council of India register for a period of three (03) years. Dr.T.Ramesh (W.P.No.3593 of 2013) :
9. Likewise, the statement in respect of the petitioner in W.P.No.3593 of 2013 (T.Ramesh) is set out hereunder : " Submission of CBI : The Anti-Corruption branch of CBI, Chennai has registered a case vide CBI Case in RC25(A)/2010 of ACB; Chennai. The Investigation of said case revealed that, as per MCI requirements, there should be a total of 262 Faculty members in the college and that shortage of eligible faculty members would prompt action against the college and the MCI would not even recommend renewal of permission for admission of 3rd batch of students for MBBS Degree course of Melmaruvathur Adhi Parasakthi Institute of Medical Sciences and Research. Hence, the Institute recruited over the period 2009-10, several faculty members who were not permanent, including 32 members some of whom worked only for one day or a few days in the college only for the purpose of presenting themselves before the compliance inspection team of MCI on 29.03.2010 as regular faculty members. They were actually Faculty members who were not only not employed in the college on a regular basis as declared by them in the Declaration Form, whereas, they were, in fact, working at other hospitals which they were not supposed to, being the Faculty members of the Melmaruvathur Adhi Parashakthi Institute of Medical Sciences and Research, as required by the Regulations of the MCI. The Declaration Forms of all these 32 faculty members who were not employed in the college contained false and misleading information in the form of an undertaking to the effect that these faculty members were full time teachers of MAPIMS, that they were not working at any other Medical College/Institution nor attended any inspection of the MCI from 1st August, 2009 onwards till the date of signing the declaration form and that they were not practicing anywhere or carrying out any other activity etc. The 32 faculty members who had attended MCI inspection on 29th March 2010 were not required to sign any Attendance Register or to attend the college regularly by the college authorities. They were paid salary in cash either lump-sum or on case to case basis and not as per the UGC Rules for which their acknowledgment of payment of salary by cash was taken in vouchers even after the date of compliance inspection on 29.01.2010 and in some cases even after the registration of the instant case by CBI. They were not shown as faculty members in the lists provided to the Chartered Accountant of the ACMEC Trust for the purpose of income tax computation while filing the Income Tax Returns, nor do their names appear in the lists provided to the Melmaruvathur Panchayat for payment of Professional Tax and in the banks, viz., Central Bank of India and State Bank of India, Melmaruvathur, through which regular faculty members were paid their salary. The appointment order for 32 doctors were issued by Dr.T.Ramesh, Managing Director, Melmaruvathur Adhi Parashakthi Institute of Medical Sciences and Research, Chennai except in case of Dr.K.Nedumaran & Dr.R.Mahadevan. In case of Dr.K.Nedumaran the order was said to be issued by Sh.Ramabadharan on behalf of Dr.T.Ramesh. In case of Dr.R.Mahadevan the order was issued on behalf of Dr.T.Ramesh by Dr.Kalaiselvi, who in her letter received in the council on 23.08.2012 said that, she was relieved from the post of Dean on 02.07.2009 and was not called by the CBI for inquiry on the above subject. The table showing the appointment order issued by Dr.T.Ramesh is as under : Table containing the details of 32 doctors omitted. Statement submitted to Medical Council of India on 22.09.2012 : "I. Dr.T.Ramesh, Managing Director of Adhiparasakthi Medical College, Melmaruvathur did my MBBS from Coimbatore Medical College in the year 1996 and did my MD from Madras Medical College in the year 1999. I am registered with Tamilnadu Medical Council bearing registration number 56353. We paid salary for 32 faculty members under scrutiny by way of cash. Because of payment by cash we were not able to issue Form-16 for the above mentioned 32 faculty members. The responsibility of maintaining the attendance register was by the Administrative Office and I am not very sure about the proper maintenance of the attendance register." The Ethics Committee observed as under : The Ethics committee after detailed deliberation and perusal of all the relevant documents as well as the oral and written statement submitted by Dr.T.Ramesh, have come to the unanimous decision that Dr.T.Ramesh has violated the Professional Conduct, Etiquette and Ethics Regulations, 2002 in terms of providing false information regarding appointment of above mentioned faculty members. He has violated the following provisions of the regulations :- Extract of Regulations 1.1.1, 1.1.2 and 8.1 reproduced were omitted. The Ethics Committee is of the opinion that the Act of Commission in the part of Dr.T.Ramesh constitutes PROFESSIONAL MISCONDUCT, which renders him liable for disciplinary action. Under the above mentioned circumstances, the Ethics Committee unanimously recommended that a punishment of removal of his name from the concerned State Medical Council's register as well as the Medical Council of India register for a period of five (05) years. 10.The report of the Ethics Committee was placed before the Board of Governors of the MCI in their meeting held on 27.09.2012. Addition Agenda 10 related to the MAPIMS and was considered and resolved as follows : "10.Minutes of the meeting of the Ethics Committee held on 21.08.2012 were perused by the Board of Governors and the Board of Governors after detailed discussion approved the minutes with following observation : (a)Each page of the minutes may be signed by all the members of the Ethics Committee who were present on the day of the meeting of the Ethics Committee. (b)The doctors who were called for statement from Melmaruvathur Adiparasakthi Institute of Medical Sciences, Melmaruvathur, Tamil Nadu on 21.08.2012 and did not attend the hearing may be called again as per procedure. (c)Publicity may be given to the action taken by the Medical council against the doctors whose name to be removed from the Indian Medical Registrar (IMR) for specific period." 11.Accordingly, public notice was also issued as per the decision of the Board of Governors. Even before the State Medical council remove the names of the petitioners, they have come to this court and obtained a status quo order, though only in one case, later on it was urged that it related to all cases. 12.Aggrieved by the grant of the interim order, the MCI had filed M.P.No.1 of 2013 seeking to vacate the interim order. They have also filed counter affidavits in each of the writ petitions on behalf of the first and second respondents, dated 07.11.2012. The petitioners at this stage filed additional affidavits setting up new facts which were not pleaded either at the time of giving their statements nor at the time of filling up their declaration forms. In W.P.No.29090 of 2012, Dr.K.Nedumaran claimed that he is an independent consultant along with one Dr.R.Mahadevan and they are running a company by name and style "Chennai Cardiac Centre Pvt. Ltd.". They were attending Billroth Hospitals after 8.00 a.m to 4.00 p.m. It was not necessary for them to attend the hospital every day. The MCI inspection team did not enquire regarding their private practice. Dr.K.Padmanabhan in W.P.No.29888 of 2012 had stated that he used to work from 8.00 a.m. To 9.00 a.m. His presence was monitored by the Medical superintendent. He attended the MCI inspection on 29.03.2010. There is no prohibition for doing private practice after college hours and during leave period. 13.The contentions raised by the petitioners are more or less uniform. The first contention was that their names were found in the State Medical register. As per the provisions of the Indian Medical Council Act, disciplinary action can be initiated only by the State Medical council and not by the MCI. Without prejudice to the said legal stand, it was stated that in passing orders, the MCI did not give proper opportunity and the order passed is opposed to the principles of natural justice. 14.Per contra, in the counter affidavit filed by the respondent MCI, it was contended that the MCI is the appropriate authority for initiating an action against the petitioners. Under Section 21 of the Indian Medical Council Act, the MCI has to maintain the entire medical register containing names of all persons, who are enrolled on the State medical register and who possess recognised degree. This section causes continuous obligation on the part of the MCI for updating and revising the register from time to time. Under Section 24, the State Medical council is empowered to remove the names of persons from the State medical register in accordance with the powers conferred on them. Since number of States were not having State medical register, it is incumbent upon the MCI to carry out and permit to the citizens of this country holding recognised medical qualifications, registration in the Indian Medical register. With regard to the complaints regarding the alleged medical negligence, some of the issues pertaining to registration of medical practitioners and action on complaints of medical negligence has been engaging the attention of the Supreme Court and regulations relating to the professional conduct, etiquette were prepared and notification on 11.3.2002 was published in the gazette. 15.Further, it is necessary to extract sections 20-A and 24 of the Indian Medical Council Act, 1956 , which reads as follows : [20-A.Professional conduct.- (1)The Council may prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners. (2)Regulations made by the Council under sub-section (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct, and such provisions shall have effect notwithstanding anything contained in any law for the time being in force.] "24.Removal of names from the Indian Medical Register.- (1)If the name of any person enrolled on a State Medical Register is removed there from in pursuance of any power conferred by or under any law relating to medical practitioners for the time being in force in any State, the Council shall direct the removal of the name of such person from the India Medical Register. (2)Where the name of any person has been removed from a State Medical Register [on the ground of professional misconduct or any other ground except that he is not possessed of the requisite medical qualifications] or where any application made by the said person for restoration of his name to the State Medical Register has been rejected, he may appeal in the prescribed manner and subject to such conditions including conditions as to the payment of a fee as may be laid down in rules made by the Central Government in this behalf, to the Central Government, whose decision, which shall be given after consulting the Council, shall be binding on the State Government and on the authorities concerned with the preparation of the State Medical Register." 16.Regulations 8.1, 8.2 and 8.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 reads as follows :
8. PUNISHMENT AND DISCIPLINARY ACTION 8 1. It must be clearly understood that the instances of offences and of professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and / or State Medical Councils have to consider and decide upon the facts brought before the Medical Council of India and / or State Medical Councils. 8.2.It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations / Societies/Bodies. 8.7.Where either on a request or otherwise the Medical Council of India is informed that any complaint against a delinquent physician has not been decided by a State Medical Council within a period of six months from the date of receipt of complaint by it and further the MCI has reason to believe that there is no justified reason for not deciding the complaint within the said prescribed period, the Medical Council of India may-- (i)Impress upon the concerned State Medical Council to conclude and decide the complaint within a time bound schedule; (ii)May decide to withdraw the said complaint pending with the concerned State Medical Council straightaway or after the expiry of the period which had been stipulated by the MCI in accordance with para. (i) above, to itself and refer the same to the Ethical Committee of the Council for its expeditious disposal in a period of not more than six months from the receipt of the complaint in the office of the Medical Council of India." (Emphasis added) 17.The very same legal question was raised before the division bench of the Andhra Pradesh High Court in W.A.No.2107 of 2004 and batch cases in Dr.D.Peraiah Chetty Vs. Medical Council of India and others, dated 05.04.2005. The division bench headed by J.Chelameswar, J., (as he then was) had rejected the arguments relating to exclusive power vested on the appropriate State Council to take an action and held that the power is also available to the Medical Council of India in relation to the conduct for which the Code of Conduct has been prescribed by them. It is necessary to refer to the following passages found in the said judgment which reads as follows : "So long as there is no conflict between two such laws described above, both the laws would operate in their respective sphere, which they seek to govern with respect to the same subject matter indicated in the concurrent list. Examined from this point of view, the law made by the State of Andhra Pradesh necessarily has the limited territorial operation extending over those territories to which the legislative power of the State of Andhra Pradesh extends. Apart from that, the State law does not expressly create any privileges on the registered medical practitioners on the lines of the privileges created under Section 27 of the Central Act. May be such privilege, in our view, is a fundamental right under Article 19(G) of the Constitution of India of every person who is qualified in accordance with the laws dealing with the qualification of a medical practitioner. If a person is qualified to practice medical profession in accordance with any one of the laws made by a State Legislature, nothing prevents another State in the Union of India to prescribe the standards which are different from those prescribed by the State of which the above mentioned person belongs to or acquire qualifications, thereby depriving such a person of an opportunity of practicing in the other parts of the Union of India. Therefore, to bring about some kind of uniformity in the matter of prescription of the standards of medical education and the standards that are required to be followed in the matter of Professional Conduct, Etiquette and code of Ethics, parliament made law, which is applicable to the whole territory of India. The Central Act of 1956 provides under Section 24 for an automatic enrollment of names of any one of the medical practitioners, whose name had already been registered in accordance with the local laws of any State in the State Medical Register. The parliament was conscious of the fact that by virtue of the other provisions of the said Act, the academic standards prescribed for the award of a medical degree in this country are uniform and therefore if the name of a medical practitioner is already enrolled on a Register maintained by the State Medical Council (if there is one), he is automatically entitled for enrollment on the national register without any further enquiry as to the credentials of the person. Such a provision does not necessarily mean the parliament denied any further regulatory power to the Indian Medical Council. On the other hand, the language of Sections 10-A and 33 of the Central Act # ( ) makes it abundantly clear that the Parliament entrusted the responsibility of regulating the standards of the medical education as well professional conduct of the medical practitioners by appropriate regulations of the Medical Council of India. It follows from the above structural arrangement of the two laws (of the State Legislature and the law made by the Parliament), either of such laws or both of them can define a certain professional conduct as impermissible conduct. Such prescriptions of law may not be co-terminus insofar as the areas of professional conduct sought to be covered by each of them respectively are laws may deal with the areas which are larger than areas dealt with by the other law. A particular conduct depending on the definitions created by the legislatures referred to above may be misconduct under one law and perhaps can still be a conduct which is not a misconduct or the prohibited conduct under the other law subject of course to the test of a direct conflict between the obligations created by such laws. In such case, it is for the bodies created under the respective laws to deal with those cases depending whether the conduct alleged is In the present case, the Medical Council of India, as already mentioned, has clearly defined the standards of Professional Conduct, Etiquette and the code of Ethics required to be followed by the medical professionals. Therefore, we do not see any impediment in the Medical Council of India in implementing the standards which it has set up under the above regulations, more particularly, when regulation 8(2) authorizes the appropriate Medical Council to deal with the cases of professional misconduct. The employment of the expression of appropriate Medical Council occurring under para-8.1 or 8.2 of the Regulations of the Medical Council of India (which are extracted earlier) is only indicate the fact that the Medical Council of India is conscious of the composition that at least in some States in this country, the conduct of the medical professionals is amenable to the jurisdiction of more than one Medical Council i.e., the Medical Council of India and the local Medical Council, in which case, it is open for the other all bodies to deal with the cases of the violation of the law relating to the professional misconduct The appropriateness of the Medical Council in this context in our view depends upon the nature of the allegation of misconduct if the allegation is one of violation of the prescriptions contained under the central law including any subordinate legislation thereunder, the appropriate Medical Council would be the Medical Council of India. If the allegation is regarding the breach of code of conduct prescribed under the local law, then the appropriate Medical Council would be the concerned Medical Council created under the local law. If that is the correct legal position in the back ground of the abovementioned two enactments and the regulations prescribed above, the Medical Council of India is not without jurisdiction as contended by the learned counsel for the petitioners when it sought to deal with the cases of the various writ petitioners herein on the ground that they violated the code of conduct as prescribed under the Regulations of 2002." (Emphasis added) 18.Though Mr.AR.L.Sundaresan, learned senior counsel attempted to argue that the judgment of the division bench of the Andhra Pradesh High court was not legally correct and the court did not consider the regulations in proper spirit and that wherever there is State medical register maintained pursuant to the State legislation, it is only that State council in which the name of the medical practitioner finds place along is competent to take disciplinary action. In respect of Kerala, the Travancore-Cochin Medical Practitioners Act and in respect of Tamil Nadu, the Tamil Nadu Medical Registration Act are the local legislations. The word "appropriate council" has to be understood in the context in which the term is used in the Act. It is only in case where there is no State council, the Indian medical register maintained by the MCI, names are registered by them. In those cases alone, the MCI can take disciplinary action. He also stated that Regulations 7.23 and 7.24 were omitted by the notification dated 22.02.2003. If those regulations existed now, then there may be scope available to the Indian Medical Council to take action. In the absence of any specific power, the question of the MCI taking action does not arise. He further added that this point was not noted by the division bench of the Andhra Pradesh High Court. 19.However, this court is not inclined to accept the said submission. The decision of the Andhra Pradesh division bench is completely legal and convinced. This court is not inclined to take any contrary view. It is especially in the context of Section 10-A of the IMC Act, wherein permission to start a medical college is solely vest with the Central Government. The Doctors apart from their professional practice, are also playing a key role in the medical education. Therefore, when the MCI team had visited for studying the infrastructure facilities of the college and if a person gives a false declaration, that will certainly obstruct the functions of the MCI. Therefore, they have full authority to take action. 20.The term "misconduct" has to be construed in wider import. In interpreting the term "misconduct" under the Advocates Act, 1961, the Supreme Court in N.G.Dastane Vs. Shrikant S.Shivde and another reported in (2001) 6 SCC 13.in paragraphs 16 to 19, had observed as follows : "16.The collocation of the words "guilty of professional or other misconduct" has been used for the purpose of conferring power on the Disciplinary Committee of the State Bar Council. It is for equipping the Bar Council with the binocular as well as whip to be on the qui vive for tracing out delinquent advocates who transgress the norms or standards expected of them in the discharge of their professional duties. The central function of the legal profession is to help promotion of administration of justice. Any misdemeanor or misdeed or misbehaviour can become an act of delinquency, if it infringes such norms or standards and it can be regarded as misconduct. 17.In Black's Law Dictionary "misconduct" is defined as : "A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour; its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness". 18.The expression "professional misconduct" was attempted to be defined by Darling, J., in A Solicitor, ex p, Law Society, in re [1912 (1) KB
302) in the following terms: "If it is shown that an advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct." 19.In RD Saxena vs. Balram Prasad Sharma [2000 (7) SCC 264.this Court has quoted the above definition rendered by Darling J., which was subsequently approved by the Privy Council in George Frier Grahame vs. Attorney General (AIR 193.PC
224) and then observed thus: "19.Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression 'misconduct, professional or otherwise'. The word 'misconduct' is a relative term. It has to be considered with reference to the subject-matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct." Therefore, the attempt to contend that there is no specific misconduct and it would only be an offence under the IPC and the Prevention of Corruption Act does not stand to reason. The MCI has got full power to take action for the misconduct committed by the petitioners. 21.In fact, the provisions of the Indian Medical Council Act are not in paramateria with the Advocates Act, 1961, wherein there is a clear distinction between the State Bar council and the All India Bar Council. There is no specific provision for the Bar Council of India to initiate an action. The distinction between the two enactments came to be considered by the Supreme Court in Malay Ganguly v. Medical Council of India reported in (2002) 10 SCC 93.The Supreme Court had recommended for an amendment to the IMC Act and issued notice to the Central Government. In paragraphs 1 and 2, the Supreme Court had observed as follows : "1.Mr Maninder Singh, counsel for Respondent 1 has drawn our attention to some of the salient provisions of the Indian Medical Council Act, 1956 and contended that this is not in pari materia with the Advocates Act, 1961. The Indian Medical Council Act, 1956 does not contain any provision regarding the constitution of the State Medical Councils under this Act and the State Medical Councils are required to be constituted under the State Acts. He further submits that some of the States have not enacted any provisions with regard to the constitution of the State Medical Council and the maintenance of State Medical Registers. 2.It may be desirable that there should be, like the Advocates Act, a comprehensive provision made in the Medical Council Act relating not only to the Medical Council of India but also to the State Medical Councils. As this would involve Central legislation, we think it appropriate to implead the Union of India as one of the respondents in this case and we direct notice to be issued to the Union of India returnable after four weeks. Dasti service in addition is permitted. On the next date of hearing, counsel representing the different Medical Councils should place on record the respective State Acts. List after four weeks." (Emphasis added) But so far no such amendment has been made. This court will have to construe the provisions of the IMC Act in its own peculiar background and division of power between the two councils. Hence the objection raised by the learned senior counsel Mr.AR.L.Sundaresan will have to be rejected. 22.Mr.K.Venkataramani, learned Senior counsel thereafter stated that enquiry conducted against them was opposed to the principles of natural justice. He placed reliance upon a judgment of the Supreme court in State of Uttaranchal v. Kharak Singh reported in (2008) 8 SCC 23.for contending that the enquiry officer cannot act as an investigator, prosecutor and judge. Such a procedure is opposed to the principles of natural justice. He also stated that the enquiry committee cannot recommend any punishment. He placed reliance upon the following passages found in paragraphs 17,18 and 19 of the said judgment, which reads as follows : "17.On the other hand, one Mr P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an enquiry officer after putting certain questions and securing answers submitted a report on 16-11-1985. No witnesses were examined. Apparently there was not even a presenting officer. A perusal of the report shows that the enquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the enquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court.
18. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16-11-1985 reads as under: During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect. (emphasis supplied) Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect. 19.As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing/disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court. 23.He further referred to a judgment of the Supreme Court in Union of India v. Gyan Chand Chattar reported in (2009) 12 SCC 7.for contending that when a charge of corruption is levelled, it has both civil and criminal consequences and such a grave charge of quasi criminal nature should be proved beyond any shadow of doubt and to the hilt. A reference was made to the following passage found in paragraph 21, which reads as follows : "21.Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities." 24.He also submitted that since the Ethics committee conducted the enquiry and submitted the report to the Board of Governors of the Medical Council, the Medical Council cannot simply affix its affirmation without hearing the affected parties like petitioners. It is a well known proposition of law that when an enquiring authority is different from the punishing authority/ competent authority, then necessarily an opportunity of hearing should be given to the chargesheeted officer and thereafter only considered the enquiry report. In this context, he referred to the judgment of the Supreme Court in ECIL v. B. Karunakar reported in (1993) 4 SCC 72.and placed reliance upon the following passage found in paragraph 26, which reads as follows : "26.The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it." 25.Mr.AR.L.Sundaresan, learned Senior counsel apart from adopting the arguments of Mr.K.Venkataramani, learned Senior counsel regarding the procedural enquiry, also further submitted that unless rules of natural justice are excluded either specifically or by necessary implications, they must generally be read into the statutes especially when the order can cause an adverse civil consequence. He placed reliance upon the judgment of the Supreme Court in Automotive Tyre Manufacturers Association v. Designated Authority reported in (2011) 2 SCC 25.and in paragraphs 80 and 81, it was observed as follows : "80.It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application. 81.Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be properly determined. (See Union of India v. Col. J.N. Sinha67.)" 26.However, it must be noted that there is no violation of principles of natural justice. The petitioners were initially furnished with show cause notice and documents relating to their declaration. They have not sought for further documents. Though some attempts were made that they were denied the assistance of a counsel, no such request of counsel was sought for. Even otherwise, it is not a complicated case where the petitioners require an assistance of a counsel. The issues involved was whether the petitioners gave false declaration and whether they have present before the inspection team of the MCI and whether they have actually employed by the college. All these issues are within the knowledge of the petitioners. They themselves had no difficulty of giving statements and filling up the questionnaire forms. In fact as to when the counsel's assistance granted also came to be considered by the Supreme Court in CIPLA Ltd. and others Vs. Ripu Daman Bhanot and another reported in (1999) 4 SCC 18.and that assistance of the counsel will be granted only when there is complicated questions involved. In the absence of any request, there is no scope for granting the assistance of a counsel. 27.As per their own admissions, they were only working in some other place, yet they were shown as faculty members of the college. Certainly, they have violated the professional ethics. They have not shown themselves to be the members of the noble profession. A feeble attempt was made to state that while imposing penalty, a different yardstick was followed. While one person was given 3 years, other were given 5 years debar. It is not open to this court to go into the question of proportionality of punishment. When the competent Ethics committee had recommended penalty which was accepted by the Board of Governors, there is no scope for this court to interfere with the said penalty. 28.Yet another submission made was that the report of the Ethics Committee was accepted by the Board of Governors and that the law laid in Karunakar's case (cited supra) should have been applied. However, this court is not inclined to accept the same. The concept relating to service law cannot be pressed into service in a matter of this nature. The petitioners did not ask for any further opportunities before the Board of Governors after the proceedings of the Ethics committee were completed. Even the decision cited was concerned, it arose under the service law. It cannot automatically be applied, incorporating the principles underlying service law into an area where it was not required. Therefore, the first four writ petitions will have to be rejected. 29.In the last writ petition, i.e., W.P.No.3593 of 2013 (Dr.T.Ramesh) is concerned, he cannot compare himself with the other doctors as he was the signatory to the appointment orders given to several doctors. For creating such fictitious documents, he has to bear the brunt of the action initiated by the MCI. In his case, he was imposed with the punishment of five years of removal of his name from the register, which does not call for any interference. 30.In the light of the above, all writ petitions will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed. 08.03.2013 Index : Yes Internet : Yes vvk To 1.The Chairman, Ethics Committee, Medical Council of India, Sector-VIII, Pocket 14, Dwaraka, New Delhi. 2.Board of Governors in Super-session of the Medical Council of India, rep by its Secretary, Sector VIII, Pocket 14, Dwaraka, New Delhi-110 077. 3.The Registrar, Tamilnadu Medical Council, D-Block, 1st floor, T.N.H.B. Complex, Jawaharlal Nehru Salai, Vadapalani, Chennai-600 026. K.CHANDRU, J.
vvk W.P.Nos.29090 , 29091, 29888 and 29894 of 2012 and 3593 o”
08. 03.2013