Quashed

D.D. Medical College and v. Secretary to Government

Madras HC8 Aug 2011WP/13052/2011

Case brief

AI extract

What is this about?

Petitioner challenged an MCI order refusing renewal of permission for MBBS admissions due to alleged coercion of assessors during inspection. The Court held the order violated natural justice as the petitioner was not heard regarding these serious allegations before the detrimental decision was made.

What did the court decide?

The impugned order dated 19.05.2011 is quashed and the matter is remanded to the second respondent to consider the allegations afresh after hearing the petitioner.

D.D. Medical College and Vs Secretary to… — Pension and Retirement Benefits | Madras HC (2011)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 08.08.2011

¶3

CORAM:

¶4

THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

¶5

W.P.NO.13052 OF 2011 AND M.P.NOS.1 AND 2 OF 2011

¶6

D.D. Medical College and D.D. Hospital No.61, D.D. Nagar Bus Stop, Kunnavalam Post, Tiruvallur District. Chennai – 631 210.

¶7

Rep. by its Chairman Dr. T.D.Naidu ... Petitioner Versus 1.Secretary to Government of India Ministry of Health and Family Welfare (Department of Health and Family Welfare) Nirman Bhavan, New Delhi – 110 011. 2.The Medical Council of India Pocket 14, Sector – 8, Dwaraka, Phase – I, New Delhi – 110 077. ... Respondents

¶8

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records relating to the impugned proceedings of the 2^nd respondent herein issued in No. MCI-34(41)/2011-Med/111419; dated 19.05.2011 and to quash the same as illegal and consequently direct the respondents herein to grant the renewal of permission of the petitioner college for the second batch of MBBS Course for the academic year 201112 and for granting "Letter of Permission" for the additional intake of 250 students (including original intake) for the academic year 2011-12.

¶9

For Petitioner : Mr.R.Thiagarajan Senior Counsel for Mr.G.Sankaran For Respondent-1 : Mr.Velayudham Pitchaiya (SPC)

¶10

https://hcservices.ecourts.gov.in/hcservices/

¶11

For Respondent-2 : Mr.V.P.Raman

¶12

O R D E R

¶13

This writ petition has been filed by the petitioner seeking to quash the order dated 19.05.2011 of the second respondent and for a consequential direction to the respondents to grant renewal of permission of the petitioner college for the second batch of MBBS Course for the academic year 2011-12 and to grant "Letter of Permission" for the additional intake of 250 students (including original intake) for the academic year 2011-12.

¶14

2.The facts leading to the filing of the present writ petition are as follows:

¶15

(a)The Board of Governors, Medical Council of India issued a proceedings dated 12.07.2010 under Section 10(A) of the India Medical Council Act, 1956, granting permission to the petitioner for establishment of a new Medical College called D.D. Medical College and Hospital, Chennai, with an annual intake of 150 students from the academic year 2010-2011. The permission granted by the Medical Council of India for establishment of new Medical College and admission of students was for a period of one year, which is liable to be renewed on yearly basis. The renewal is based on the inspection to be conducted by the Assessors, deputed by the Medical Council of India.

¶16

(b)Pursuant to the permission granted by the Board of Governors to the petitioner for establishment of a new Medical College, the petitioner College commenced the Medical Course with 150 students from the academic year 2010-2011. The petitioner College has also been issued with provisional affiliation by the Tamil Nadu Dr.M.G.R. Medical University as per the proceedings of the University dated 25.08.2010.

¶17

(c)According to the petitioner, the petitioner has established the Medical College and Hospital as a Multi, Super, Higher Specialty, Private, Corporate Hospital designed for complete Health Care and Education with most modern equipments and renowned professionals in multiple disciplines. It is the first time in the history of India and Asia in the Health Care that the petitioner Hospital has 3500 bedded facilities with 141 Departments covering all medical areas ranging from First Aid to Transplant Surgery, besides Research and Innovative Programmes.

¶18

(d)The Medical Council of India, issued a letter dated 14.03.2011 nominating the following 3 Members as Assessors for assessment of physical and other teaching facilities available in the

¶19

https://hcservices.ecourts.gov.in/hcservices/

¶20

petitioner college for renewal of permission for the second batch of MBBS Course for the academic year 2011-12

¶21

(i) Col.S. Kapoor (Co-ordinator) Professor, Department of Surgery – Clinical Command Hospital, Lucknow.

¶22

(ii) Dr.S.C. Mahapatra

¶23

Professor of Physiology, Pre All India Institute of Medical Sciences Ansari Nagar, New Delhi.

¶24

(iii) Dr.B.L.Sherwal

¶25

Professor of Microbiology – Para Lady Hardinge Medical College New Delhi.

¶26

(e)The aforesaid Assessors inspected the petitioner college on 15.03.2011 and 16.03.2011. According to the petitioner, the Chairman of the petitioner college was not able to be present at the time of inspection and the team of Assessors completed the inspection and found that the petitioner college fulfilled all the norms and requirements with reference to teaching faculty as well as infrastructure facilities. According to the petitioner, the team of Assessors prepared the assessment report stating that the petitioner college fulfilled the MCI norms in all respects.

¶27

(f)The petitioner college, while seeking renewal of yearly permission for the academic year 2011-2012, also sought permission for an additional intake of 250 students (including the original intake) as the petitioner has the required teaching faculties as well as infrastructure facilities for additional intake also.

¶28

(g)In these circumstances, the petitioner college received a show cause notice on 10.05.2011 issued by the second respondent stating that some of the Doctors produced before the Assessment team as Full Time Professors in the petitioner college are working in other medical colleges. The petitioner college submitted its reply on 16.05.2011 denying the allegations by stating that the Doctors, referred to in the show cause notice, are actually appointed and working only in the petitioner college. The petitioner college also has furnished the details relating to the orders of appointment, joining reports as well as relieving orders issued by the previous colleges, where they worked earlier.

¶29

(h)While so, another show cause notice dated 18.05.2011 was issued with regard to some other Doctors working in the petitioner

¶30

https://hcservices.ecourts.gov.in/hcservices/

¶31

college and the same was received by the petitioner college on 21.05.2011. The petitioner college also submitted their reply to the said show cause notice.

¶32

(i)In the said circumstances, the second respondent issued the impugned proceedings dated 19.05.2011 refusing to renew permission for admission of second batch of MBBS students for the academic year 2011-2012, on the ground that during the inspection conducted on 15.02.2011 and 16.02.2011, the Assessors were forced and threatened by the college authorities and two of the Assessors submitted their complaints regarding the coercion and threat meted out to them.

¶33

Challenging the aforesaid order dated 19.05.2011 of the second respondent, the petitioner has filed the present writ petition.

¶34

3.According to the petitioner, the impugned order was passed in blatant violation of principles of natural justice. It is averred by the petitioner in the affidavit that while issuing the show cause notices on 10.05.2011 and 18.05.2011, the second respondent, nowhere mentioned about the alleged threat and coercion on the Assessors, by the college authorities, during the inspection conducted. It is further averred that the impugned order was passed without application of mind, since the inspection took place only on 15.03.2011 and 16.03.2011 and not on 15.02.2011 and 16.02.2011 as alleged in the impugned order. It was also impugned on the ground that the order is exfacie illegal and arbitrary.

¶35

4.The second respondent has filed a counter affidavit dated 28.06.2011 refuting the allegations made by the petitioner. In reply to the same, the petitioner has filed a reply affidavit dated 07.07.2011. The first respondent also has filed a counter affidavit dated 14.07.2011. The second respondent has filed an additional affidavit dated 14.07.2011 and the petitioner has filed a further affidavit dated 21.07.2011. In reply to the same, the second respondent has filed another reply affidavit dated 25.07.2011.

¶36

5.In the counter affidavit dated 28.06.2011 filed by the second respondent, it is stated that the Medical Council of India, vide its letter dated 20.10.2010 informed the petitioner college that the assessment of renewal of permission for admission of fresh batch of students for the academic year 2011-2012 would be undertaken between 1^st November 2010 and 28^th February 2011. But the Dean of the petitioner college sent a letter dated 15.11.2010 requesting the second respondent to arrange inspection for assessment of faculty/facilities only in the month of March 2011. Hence, the second respondent, vide its letter dated 14.03.2011 nominated three Professors referred to above as Assessors to assess the physical and other facilities available in the

¶37

https://hcservices.ecourts.gov.in/hcservices/

¶38

petitioner college. The team of Assessors assessed the petitioner college on 15.03.2011 and 16.03.2011 and the assessment report was received under sealed envelope from the Co-ordinator namely Col.S. Kapoor on 17.03.2011. It is also averred that subsequent to the assessment report, two of the Assessors namely Dr.S.C.Mahapatra and Dr.B.L.Sherwal came to the office of the Medical Council of India and narrated to the Board of Governors, namely Prof. Ranjit Roy Choudhary and Dr.Sita Naik, to the Consultant, namely, Dr.M.C.Kapilashrami and to the legal retainer of Medical Council of India, namely Mr.Amit Kumar about the details of coercion and threat meted out to them by Mr.T.D.Naidu, Chairman of the petitioner college. Those Assessors also stated that Mr.T.D.Naidu forced them to right their assessment report in his presence and therefore, no confidentiality would be attached to the report of the assessment. The Assessors also stated that they recorded the voice of Mr.T.D.Naidu in their cell phones and that would prove the manner and mode, in which coercion was applied on them. They further stated that they were not permitted to verify the number of patient in the hospital and teaching faculty on the first day of inspection. It is also averred that those Assessors were advised to put a complaint in writing to the Medical Council of India for initiating appropriate action against the petitioner college.

¶39

6.While so, one of the Assessors namely Dr.S.C.Mahapatra, sent an e-mail to one of the Members of the Board of Governors of the Medical Council of India stating that after he met Members of the Board of Governors, he was receiving phone calls regarding his meeting with them. The said Assessor also suspected that somebody from Medical Council of India had provided the information about his meeting. The said Assessor also stated that he was willing to discuss more and provide more evidences, provided he was assured of his personal safety and that of his family. It is further averred that the Board of Governors, based on the available materials, decided not to grant permission to the petitioner's college to admit second batch of MBBS students and the same was communicated to the petitioner college through the impugned order. The second respondent also stated in the counter affidavit that they received complaints from the parents of the students studying in the petitioner college and the same were forwarded to the second respondent by the Central Bureau of Investigation. It was also stated that large number of complaints were received in respect of working of the petitioner college. The second respondent further averred that show cause notice was issued to the petitioner college based on the verification of declaration form submitted by the petitioner college and opportunity of hearing was also given to them in respect of faculty provided by them.

¶40

7.On the other hand, in the counter affidavit dated

¶41

https://hcservices.ecourts.gov.in/hcservices/

¶42

14.07.2011 filed by the first respondent, it is stated that it is for the second respondent to decide about the renewal of permission for admission of second batch of students in MBBS Course for the petitioner college.

¶43

8.Heard Mr.R.Thiagarajan, learned senior counsel appearing on behalf of Mr.G.Sankaran, learned counsel for the petitioner; Mr.Velayudham Pitchaiya, learned counsel for the first respondent and Mr.V.P.Raman, learned counsel for the second respondent. The petitioner as well as the second respondent also filed their written arguments.

¶44

9.The learned Senior Counsel for the petitioner submits that the impugned order was passed unilaterally, in violation of principles of natural justice, without providing opportunity to the petitioner, as the petitioner was not issued with any notice calling for explanation. It was further contended that the petitioner college was not furnished with any documents or complaints with reference to the impugned order. In this regard, the learned Senior Counsel for the petitioner relies on the following judgments of the Honourable Supreme Court:

¶45

(i)MANAGING DIRECTOR, ECIL, HYDERABAD AND OTHERS VS. B.KARUNAKAR AND OTHERS [1993 (4) SCC 727]

¶46

(iii)INDU BHUSHAN VS. STATE OF JHARKHAND AND ANOTHER [2010 (11) SCC 278]

¶47

10.The learned Senior Counsel for the petitioner further submits that the alleged e-mail dated 15.04.2011 of Prof.S.C.Mahapatra could not be taken as a complaint, as nothing was specifically stated against the petitioner college. The learned Senior Counsel further submits that no such allegation of coercion and threat was made in the show cause notices dated 10.05.2011 and 18.05.2011 relating to faculty members and had it been true, those allegations could have found place in the said show cause notices.

¶48

11.The learned Senior Counsel for the petitioner submits that the impugned order could not be sustained, by adducing fresh reasons, by way of affidavit or otherwise, and the impugned order has to be tested based on the reasoning given therein. In this regard, the learned Senior Counsel relies on the following judgments of the Honourable Supreme Court:

¶49

(i)MOHINDER SINGH GILL AND ANOTHER VS. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS [1978 (1) SCC 405]

¶50

https://hcservices.ecourts.gov.in/hcservices/

¶51

(ii)CHANDRA SINGH AND OTHERS VS. STATE OF RAJASTHAN AND ANOTHER [2003 (6) SCC 545].

¶52

12.On the other hand, the learned counsel for the second respondent submits that the second respondent acted based on the oral complaint made by the two Assessors to the Board of Governors, legal retainer and to the consultant of Medical Council of India that during inspection, there was coercion and threat from the Chairman of the petitioner college and from others and that there was no confidentiality in the preparation of the assessment report. Hence, there is no illegality in the action of the second respondent.

¶53

13.The learned counsel for the second respondent also fairly admits that prior to passing of the impugned order dated 19.05.2011, the petitioner was not heard. But the learned counsel sought to sustain the impugned order by stating that the show cause notices dated 10.05.2011 and 18.05.2011, 31.05.2011 and 01.06.2011 were issued relating to fake faculty members and replies were received and therefore, opportunity of hearing was given to the petitioner college. That is, the learned counsel for the second respondent sought to sustain the impugned order not on the grounds as stated in the impugned order, but on the ground that fake faculty members were produced by the petitioner college at the time of inspection by the Assessors. In support of his contention, the learned counsel relies on Clause 8(3)(1) (d) of Establishment of Medical College Regulations, 1990, as amended on 16.04.2010, which reads as follows:

¶54

"8(3)(1)(d) Colleges which are found to have employed teachers with faked / forged documents:

¶55

If it is observed that any institute is found to have employed a teacher with faked / forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission / recognition for award of M.B.B.S. Degree / processing the applications for postgraduate courses for two Academic Years – i.e, that Academic Year and the next Academic Year also."

¶56

However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 years after important religious and festival holidays declared by the Central / State Govt."

¶57

14.The learned counsel for the second respondent relies on a judgment of the Honourable Supreme Court in CHAIRMAN, ALL INDIA RAILWAY

¶58

https://hcservices.ecourts.gov.in/hcservices/

¶59

RECRUITMENT BOARD AND ANOTHER VS. K.SHYAM KUMAR AND OTHERS reported in 2010 (6) SCC 614, wherein the judgment of Mohinder Singh Gill's case (cited supra) has been considered and the Supreme Court upheld the impugned order not on the reasoning adduced in the impugned order, but on other materials.

¶60

15.The learned counsel for the second respondent strenuously contended that the e-mail dated 15.04.2011 of Prof. S.C.Mahapatra refers only to the petitioner college and thus, the petitioner is not correct in stating that there was no specific allegation against them. He explained that the Assessors viz., Prof.S.C.Mahapatra and Dr.B.L.Sherwal did not jointly inspect other colleges except the petitioner college and therefore, the e-mail was taken as a complaint against the petitioner college by the Assessors. He further explained that the e-mail followed the oral complaint and the e-mail should be read along with the oral complaint made to them directly by the Board of Governors and others.

¶61

16.The learned counsel for the first respondent made submissions based on the counter affidavit filed by the first respondent.

¶62

17.I have considered the submissions made on either side and perused the materials available on record.

¶63

18.The second respondent passed the impugned order dated 19.05.2011 refusing to renew permission for admission of second batch of MBBS students for the academic year 2011-2012 at the petitioner college. Serious allegations were made in the impugned order that when the team of Assessors went for inspection, the Chairman of the petitioner college threatened and coerced them to prefer the assessment report at his will. For the sake of this case, the impugned order is reproduced hereunder:

¶64

"MEDICAL COUNCIL OF INDIA

¶65

No.MCI-34(41)/2011-Med./111419 Date: 19/05/2011 The Dean / Principal D.D.Medical College & Hospital No.61, D.D. Nagar Bus Stop (Chennai to Tirupathi National Highways) Kunnavalam Post, Tiruvallur TK. & Dt. Chennai – 631 210. Ph.: 044-267677700-7799; Fax: 044-26162888 E-mail: [email protected]; [email protected]

¶66

https://hcservices.ecourts.gov.in/hcservices/

¶67

Sub: D.D.Medical College & Hospital, Chennai– Renewal of permission for admission of 2^nd batch of MBBS students for the academic session 2011-2012. Sir,

¶68

I am directed to inform you that the assessment of the physical and other teaching facilities available for renewal of permission for admission of 2^nd batch of MBBS students for the academic session 2011-2012 at D.D.Medical College & Hospital, Chennai was carried out by the Council's Assessors on 15^th & 16^th February 2011.

¶69

The Board of Governors examined the assessment report and also examined the complaint submitted by two of the Assessors regarding coercion and threat given to the Assessors during the assessment of the college on the said dates.

¶70

Two of the Assessors stated to the Board of the Governors that they were not allowed to count the faculty and patient present in the college on 15^th February 2011. Two of the Assessors also stated that they were forced to speak to influential people over phone. Two of the Assessors also stated that in order to create fear in them, Dr.T.D.Naidu, Chairman of the college thrashed one class four employee in front of them. Two of the Assessors have also stated that they were not allowed to maintain confidentiality of the assessment report and the report was written in the presence of Dr.T.D.Naidu. Two of the Assessors also said that they were openly threatened by Dr.T.D.Naidu, Chairman of the college. The said act of threatening and violating the law of the land have been viewed seriously and sanctity of the inspection process cannot be permitted to be violated with impunity. The system of assessment is dependent upon co-operation of the colleges and use of force on Assessors directly or indirectly is required to be dealt seriously. Thus the assessment report has not sanctity in law and as the same has been prepared under coercion and threat.

¶71

The Board of Governors after having considered complaints and other relevant materials decided not to renew the permission for admission of 2^nd batch of MBBS students for the academic session 2011-12 at D.D. Medical College & Hospital, Chennai."

¶72

https://hcservices.ecourts.gov.in/hcservices/

¶73

19.The petitioner has sought to assail the impugned order on the ground that the same was passed without application of mind, as the impugned order states as if the inspection took place on 15.02.2011 and 16.02.2011, while no such inspection took place on those dates. But the second respondent explained that it was a mistake and the same was corrected by way of a corrigendum dated 01.06.2011 and the said corrigendum is produced before this Court.

¶74

20.Though the petitioner states that the said corrigendum was not received by them, I am not inclined to agree with the submissions made by the learned Senior Counsel for the petitioner in this regard for more than one reason. The corrigendum was sent to various authorities namely, the first respondent, the Tamil Nadu Dr.M.G.R. Medical University and the Government of Tamil Nadu. Furthermore, the letter dated 20.10.2010 of the second respondent informed the petitioner college that the assessment of renewal of permission for admission of fresh batch of students for the academic year 2011-2012 will be undertaken between 1^st November 2010 and 28^th February 2011 without any further information. But the petitioner sent a reply dated 15.11.2010 requesting the second respondent to have inspection for assessment of faculty/facilities in the month of March 2011 and more preferably in the second week of March 2011. Hence, the dates of inspection mentioned in the impugned order as 15.02.2011 and 16.02.2011 is only a mistake. Hence, the submission made by the learned Senior Counsel in this regard is rejected.

¶75

21.As rightly contended by the learned counsel for the second respondent, the allegations are very serious in nature warranting not only refusal to renew permission for admission of fresh batch of students, but also criminal action against the petitioner college. In this regard, paras 17 to 21 of the counter affidavit filed by the second respondent are extracted hereunder:

¶76

"17.That it is respectfully submitted that two of the Assessors namely Dr.S.C.Mahapatra, Professor of Physiology, All India Institute of Medical Sciences, New Delhi and Dr.B.L.Sherwal, Professor of Microbiology, Lady Harding Medical College, New Delhi came to the office of Medical Council of India and narrated details of coercion applied by T.D.Naidu, Chairman of D.D.Medical College and Hospital to the Board of Governors, legal retainer of Medical Council of India and concerned official of Medical Council of India. The above said Assessors said that Dr.T.D.Naidu threatened them. It was stated by them that no confidentiality to the report of the assessment is attached as Dr.T.D. Naidu forced them to write the

¶77

https://hcservices.ecourts.gov.in/hcservices/

¶78

report in his presence. They also said that they have recorded the voice of Dr.T.D.Naidu in cell phone which would prove that manner and mode in which coercion was applied on them. It was also said by them that they were not permitted to check the number of patient in hospital and teaching faculty on the first day of inspection.

¶79

18.That it is submitted that it was advised to them to put the complaint in writing to Medical Council of India for initiating appropriate action against the college.

¶80

19.That it is submitted that on 15.04.2011, one of the assessor namely Professor S.C.Mohapatra sent one e- mail to one of the member of the Board of Governors stating that he after meeting two of the members of the Board of Governors of Medical Council of India getting phone calls regarding their meeting with Board of Governors. The above assessor also suspected that somebody from Medical Council of India had provided the information. The above assessor also said that he is willing to discuss more and provide more evidences provided he is assured about safety of him and his family.

¶81

20.That it is submitted that the Board referred the matter for opinion of legal retainer and legal retainer in his opinion clearly stated that use of force in any form does not angur well for the system. It was also advised that sanctity of the system is dependent on objectivity and fairness of Assessors and the same is dependent upon free and fair assessment uninfluenced by any external factors like threat, coercion or any form of influence.

¶82

21.That is is submitted that based on the available material the Board of Governors decided not to grant permission to the college to admit second batch of MBBS students. The decision of Board of Governors was communicated vide letter dated 19.05.2011. It is also relevant to state here that inadvertently in the said letter date of inspection of the college was mentioned as 15.02.2011. A corrigendum was issued on 1.6.2011 rectifying the date mentioned in the order dated 19.05.2011."

¶83

https://hcservices.ecourts.gov.in/hcservices/

¶84

22.But in the affidavit filed by the petitioner in support of the writ petition it is stated that the Chairman of the petitioner college was not available on the dates of inspection. Furthermore, when the second respondent decided to act on the oral complaint and also on the e-mail, before passing the impugned order, they ought to have heard the petitioner, since the impugned order resulted in serious civil consequences and also cast stigma on the petitioner.

¶85

23.Therefore, I am of the considered view that the learned Senior Counsel for the petitioner is correct in his submission that the impugned order was passed in blatant violation of principles of natural justice, since the petitioner was not heard before passing the impugned order and neither the document nor the complaint was given to the petitioner. The judgments referred to above, relied on by the learned Senior Counsel for the petitioner apply to the facts of the case that concerned person should be heard before passing adverse order against him. The relevant passages from those judgments are extracted hereunder:

¶86

(i)MANAGING DIRECTOR, ECIL, HYDERABAD AND OTHERS VS. B.KARUNAKAR AND OTHERS [1993 (4) SCC 727]

¶87

"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

¶88

https://hcservices.ecourts.gov.in/hcservices/

¶89

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.

¶90

The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that “where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”, it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the

¶91

https://hcservices.ecourts.gov.in/hcservices/

¶92

enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.

¶93

Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

¶94

It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that

¶95

https://hcservices.ecourts.gov.in/hcservices/

¶96

the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both."

¶97

(iii)PRAKASH RATAN SINHA VS. STATE OF BIHAR AND OTHERS [2009 (14) SCC 690]

¶98

"13. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and that the rule of natural justice operates in areas not covered by any law validly made.

¶99

Corollary principles emanating from these cases are as to what particular rule of natural justice

¶100

https://hcservices.ecourts.gov.in/hcservices/

¶101

should apply to a given case must depend to an extent on the facts and circumstances of that case and that it is only where there is nothing in the statute to actually prohibit the giving of an opportunity of being heard and on the other hand, the nature of the statutory duty imposed on the decision maker itself implies an obligation to hear before deciding. These cases have also observed, whenever an action of public body results in civil consequences for the person against whom the action is directed, the duty to act fairly can be presumed and in such a case, the administrative authority must give a proper opportunity of hearing to the affected person."

¶102

(Emphasis supplied)

¶103

(iv)INDU BHUSHAN DWIVEDI VS. STATE OF JHARKHAND AND ANOTHER [2010 (11) SCC 278]

¶104

"21. This Court approved the view taken by the High Court and observed: (Manche Gowda case, AIR pp. 509-10, para 7)

¶105

“7. Under Article 311(2) of the Constitution, as interpreted by this Court, a government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in State of Assam v. Bimal Kumar Pandit. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the

¶106

https://hcservices.ecourts.gov.in/hcservices/

¶107

knowledge of the government servant. It would be no answer to suggest that every government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of ‘presumptive knowledge’ or that of ‘purposeless enquiry’, as their acceptance will be subversive of the principle of ‘reasonable opportunity’. We, therefore, hold that it is incumbent upon the authority to give the government

¶108

https://hcservices.ecourts.gov.in/hcservices/

¶109

servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.”

¶110

(emphasis supplied)

¶111

The proposition laid down in the abovenoted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause.

¶112

As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty-bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the person concerned must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of not overlooking the cause which may be shown by the other side before coming to its decision.

¶113

When it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also to disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a

¶114

https://hcservices.ecourts.gov.in/hcservices/

¶115

delinquent employee, the employer is duty-bound to act in consonance with the rules of natural justice—U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee."

¶116

24.In view of my conclusion that the impugned order was passed in violation of principles of natural justice, the same is liable to be set aside.

¶117

25.Since I have come to the said conclusion, I have not gone into the other disputed issues, particularly with reference to the e- mail. According to the petitioner, the e-mail dated 15.04.2011 sent by Dr.S.C.Mahapatra to one of the Board of Governors does not contain any specific complaint against the petitioner. On the other hand, according to the second respondent, the college that is referred to in the e-mail is the petitioner college as Dr.S.C.Mahapatra went for inspection along with Dr.B.L.Sherwal only to this college and not to any other college. The petitioner could urge all grounds including the veracity of the e- mail dated 15.04.2011, when the petitioner is heard on the allegations referred to above and the second respondent could consider the same and decide the issue.

¶118

26.I am not inclined to agree with the submissions made by the learned counsel for the second respondent that the petitioner was given hearing relating to the show cause notices dated 10.05.2011, 18.05.2011, 31.05.2011 and 01.06.2011 and based on those materials, the impugned order could be sustained, since two notices were issued subsequent to the impugned order dated 19.05.2011. Furthermore, it is admitted by the second respondent in their letter dated 15.06.2011 addressed to the first respondent that replies to the show cause notices received from the faculty and the college were under consideration. In the written arguments also, the second respondent stated that the show cause notices relating to fake faculty members is still under consideration of the second respondent. If the second respondent stated in their letter dated 15.06.2011 that no decision was arrived at based on the show cause notices, referred to above, the second respondent could not now advance arguments before this Court that the impugned order could be sustained based on the show cause notices and the replies received thereon. Further, the petitioner alleged that the statements obtained from the concerned Doctors and the Colleges wherein they are said to have been employed, are not furnished to the petitioner. In the said circumstances, the show cause notices did not reach its finality. The judgments relied on by the learned Senior Counsel for the petitioner in Mohinder Singh Gill's case (cited supra) and Chandra Singh's case (cited supra) applies to the facts of this case, that the impugned order could not be sustained by adducing fresh evidence and the judgment in Chairman, All India Railway Recruitment Board and Another Vs. K.Shyam Kumar and others reported in

¶119

https://hcservices.ecourts.gov.in/hcservices/

¶120

2010 (6) SCC 614 relied on by the learned counsel for the second respondent is not applicable to the facts of this case.

¶121

27.This Court could not be converted to exercise the functions of the second respondent relating to the decision on the show cause notices and also on other complaints. It is for the second respondent to take appropriate decision on the show cause notices and other allegations.

¶122

28.In these circumstance, the impugned order is quashed. While quashing the impugned order, I am not inclined to issue directions to the respondents, which the petitioner has sought for. Since I have set aside the impugned order on the ground that the same was passed in violation of principles of natural justice, the matter is remanded back to the second respondent to consider and pass orders afresh, after affording opportunity to the petitioner. The second respondent is directed to hear the petitioner on the allegations relating to the inspection conducted on 15.03.2011 and 16.03.2011 and also on the fake faculty and also on other allegations, within a period of eight weeks from the date of receipt of a copy of this order.

¶123

29.The writ petition is disposed of in the above terms. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar TK To 1.Secretary to Government of India Ministry of Health and Family Welfare (Department of Health and Family Welfare) Nirman Bhavan, New Delhi – 110 011.

¶124

2.The Medical Council of India Pocket 14, Sector – 8, Dwaraka, Phase – I, New Delhi – 110 077. +1cc to Mr.G.Sankaran, Advocate Sr 48901 RJ(CO) km/9.8. W.P.NO.13052 OF 2011

¶125

https://hcservices.ecourts.gov.in/hcservices/

D.D. Medical College and v. Secretary to Government

Case brief

What is this about?

What did the court decide?

D.D. Medical College and v. Secretary to Government

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.Kandasamy Vs the Secretary to Government

D.Neelakandan Vs the Govt. of Tamilnadu

A.Esakkimuthu Vs State of Tamil Nadu

V.Kaliyamurthy,Lecturer Vs the Govt.of Tamilnadu

T.R.Murugan Vs the Special Officer

M.S.Muhammad Yahya Vs the Chairman