Allowed

Dr. Akshay Patil v. Karnataka Medical Council

Karnataka HC15 Mar 2023WP/49582/2018

Case brief

AI extract

What is this about?

The High Court held that vague, omnibus show cause notices during the enquiry process against a doctor violate Article 14. It quashed the notices without examining merits, reserving liberty to issue specific notices later.

What did the court decide?

The impugned show cause notices were quashed, and liberty was reserved to the respondent to issue fresh notices specifically stating violated provisions and imputations.

Dr. Akshay Patil Vs Karnataka… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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1 - WP No. 49582 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF MARCH, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO. 49582 OF 2018 (GM-RES)

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BETWEEN:

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DR. AKSHAY PATIL S/O. BHOOMSHETTY PATIL, AGED ABOUT 31 YEARS, R/AT NO. 241, 7TH "A" CROSS, 8TH MAIN, M.E.I. LAYOUT, BAGALAKUNTE, NAGASANDRA POST, BENGALURU-560 073.

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…PETITIONER

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[BY SRI. M NARAYANA BHAT, ADVOCATE (PH)]

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AND:

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KARNATAKA MEDICAL COUNCIL, REP. BY ITS REGISTRAR, NO.16/6, II FLOOR, MILLER TANK BED AREA, VASANTHNAGAR, BENGALURU-560 052.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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ARMED FORCES MEDICAL SERVICES REP. BY THE LOCAL OFFICER, DEPUTY DEAN, AIR FORCE COMMAND HOSPITAL, AGRAM POST, BENGALURU-560 007.

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…RESPONDENTS

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[BY SRI. B.PRAMOD, CGC., FOR R2 (PH); NOTICE SERVED AND UNREPRESENTED TO R1]

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS PERTAINING TO THE CASE OF THE PETITIONER; QUASH THE SHOW CAUSE NOTICE DATED 14.8.2018 AT ANNEX-E ISSUED BY R-1 SHOWCASE NOTICE DATED 18.9.2018 VIDE ANNEX-F ISSUED BY R1 AND ANOTHER SHOW CAUSE NOTICE DATED 15.10.2018 AT ANNEX-F1 ISSUED BY R-1 AS THE SAME ARE ULTRAVIRUS AND OPPOSED TO THE PROVISIONS OF THE

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WP No. 49582 of 2018

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KARNATAKA MEDICAL REGISTRATION ACT 1961 AND ALSO VIOLATIVE OF ARTICLES, 14, 19(1)(g) AND 21 OF THE CONSTITUTION OF INDIA

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING B- GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Challenging impugned show-cause notices bearing no.

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KMC/49EXP/DOCT/2018 dated 14.08.2018 and 18.09.2018 and show cause notice bearing No.KMC/ENQ/35/2018 dated 15.01.2018 at Annexures - E, F and F1 issued by respondent no.1 respectively, this writ petition is filed.

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Sri. M. Narayana Bhat, learned counsel for petitioner submitted that petitioner joined Post Graduate Course in Medicine as Priority - V candidate (Civilian) after executing surety bond for serving in Armed Forces Medical Services ('AFMS' for short), as Short Service Commissioned Officer for a period of five years, after completion of Course and found to be medically fit as required.

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Learned counsel further submitted that bond contained

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condition for payment of Rs.25,00,000/-, in case petitioner refused to join services after completing P.G Course and was found medically fit. It was submitted that petitioner appeared in AIPGMEE - 2014 as a AFMS (civilian) sponsored candidate under Priority - V, obtained admission for Post Graduate Course in M.S.(OBG) in Command Hospital, Bengaluru

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WP No. 49582 of 2018

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and completed said Course during 2017. He was issued with Master of Surgery degree certificate by Rajiv Gandhi University of Health Sciences, Bengaluru. Thereafter he worked as Registrar in Department of Obstetrics and Gynecology in Rangadore Memorial Hospital, Bengaluru for some time, when he received notice dated 14.08.2018 (Annexure-E) issued by respondent no.1 calling upon petitioner to offer explanation to complaint given by respondent no.2 against him alleging violation of bond condition. Notice of proposed action for de-registration of petitioner's post graduate qualification and was accompanied with copy of complaint by respondent no.2.

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Immediately thereafter petitioner filed his response stating that he had not received joining letter or notices issued by respondent no.2, bond did not provide for consequence of cancellation of registration certificate and place of posting was against policy of Government of India etc. It was further stated that there was misrepresentation of facts insofar as petitioner being exempted from Karnataka Compulsory Service Training Act, 2012 on account of his bond opting for compulsory military service for a period of five years.

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Without considering his reply, respondent no.1 issued show-

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cause notice dated 18.09.2018 (Annexure-F), followed by another show-cause notice dated 15.10.2018(Annexure-F1) directing petitioner

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WP No. 49582 of 2018

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to appear for enquiry scheduled on 10.11.2018, by framing charge of violation of Code of Medical Ethics and proposing action under Section 15 of the Karnataka Medical Registration Act, 1961 (' KMR Act' for short).

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It was submitted that show-cause notices were totally bland of any particulars of violation which would justify action under Section 15 of KMR Act or Indian Medical Council (Code of Professional Conduct, Etiquette & Ethics) Regulations, 2002. It was submitted that showcause notices were therefore vague, arbitrary and illegal and sought for quashing same.

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It was also submitted that petitioner has always been ready and willing to undertake service, however respondents were not accepting his offer and were unnecessarily pursuing action against petitioner.

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On other hand, Sri. B. Pramod, learned Central Government Standing Counsel, appearing for respondent no.2, at outset submitted that writ petition against mere show-cause notices were not maintainable. Relying upon decision of Hon'ble Supreme Court in Union of India & Anr. Vs. Vicco Laboratories¹ , it was submitted that

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1 (2007) 13 SCC 270)

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WP No. 49582 of 2018

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impugned show-cause notices could not be assailed in writ petition, as petitioner had opportunity of urging all contentions before concerned authority, which would be competent to consider same and pass appropriate orders thereon. It was further submitted that petitioner had filed W.P.no.648/2019 before this Court questioning action by respondent no.2, but same was dismissed as withdrawn with liberty to urge all contentions in pending civil suit filed by respondent no.2 for recovery of bond amount. It was therefore, submitted that petitioner could not agitate his grievances against respondent no.2 for not considering his offer to accept Short Service Commission. On above grounds, learned counsel for dismissal of writ petition.

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Respondent no.1- Medical Council is served, unrepresented.

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Heard learned counsel.

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From above submission, respondent no.2 sponsoring

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petitioners candidature for admission to P.G. Course in Medicine, petitioner availing same subject to terms and conditions by executing surety bond for a sum of Rs.25,00,000/- for failure to accept Short Service Commission in AMFS for five years after completion of Course and being found medically fit are not in dispute.

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WP No. 49582 of 2018

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While petitioner contends that he had not received notices issued by respondent no.2, and had not willfully defaulted and also that violation alleged would not fall within scope of action contemplated; respondent contend that there was undisputed violation of solemn undertaking to serve defense forces and therefore action against petitioner was justified.

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Since, main issue in writ petition is validity of show-cause notices, I have carefully analyzed contents of impugned show-cause notices at Annexures- E, F and F1. On perusal of Annexure-E, it is seen that said notice calls for explanation against complaint of respondent no.2 by appending copy thereof.

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Though, petitioner submitted detailed reply urging various contentions, subsequent notice at Annexure-F was issued. Said notice is merely intimation about date of hearing of enquiry. Annexure- F1 is show-cause notice against charge framed, which reads as follows:

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"Reg. violation of Code of Medical Ethics".

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It proposes disciplinary action under Section 15 of KMR Act.

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Though, there is framing of charge, it is not accompanied with statement of imputation. It also does not refer to any specific provisions or regulations alleged to be violated.

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WP No. 49582 of 2018

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It is basic tenet of law that a show-cause notice is required

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to be precise while calling upon recipient to offer explanation. Especially as action proposed is for de-registration which would have severe penal consequences, it would require to be accompanied with statement of imputation based on which charge framed is sought to be substantiated. It would also suffice if contents of show-cause notice itself would reveal specific act/acts which would establish charges. In case on hand, none of show-cause notices specifically state action of petitioner which would be in violation of particular provision or regulation.

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Issuance of general, vague and omnibus show-cause notice would be anathema to procedure established by law and therefore, violate Art. 14 of Constitution of India. Hon'ble Supreme Court in case of Gorkha Security Services Vs. Government (NCT of Delhi) & Ors.² has observed that show-cause notice is intended to provide adequate and meaningful opportunity, which in instant case is lacking. On this short ground, impugned show-cause notices would call for interference.

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When impugned show-cause notices suffer from above mentioned fundamental defect, alternative remedy of appearing before

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2 2014 (9) SCC 105 ,

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WP No. 49582 of 2018

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authority and urging all contentions would not be efficacious. At this stage, respondents have failed to establish even prima facie violation of any specific provision or Regulation which would justify action under Section 15 of KMR Act.

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Therefore, without expressing any opinion on merits, Writ petition is allowed. Impugned show-cause notices bearing no. KMC/49EXP/DOCT/2018 dated 14.08.2018 and 18.09.2018 and showcause notice bearing No.KMC/ENQ/35/2018 dated 15.01.2018 at Annexures - E, F and F1 respectively issued by respondent no.1 are quashed, reserving liberty to respondent no.1 to issue fresh show-cause notice specifically stating provisions or regulations, which are alleged to have been violated along with statement of imputation based on which said violation is alleged and thereafter proceed to take action in accordance with law.

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Sd/JUDGE

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Psg*

Dr. Akshay Patil v. Karnataka Medical Council

Case brief

What is this about?

What did the court decide?

Dr. Akshay Patil v. Karnataka Medical Council

Case brief

What is this about?

What did the court decide?

What the court decided

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