H.R. Khanna, J.
(1) Dr. B. N. Sinha has challenged by means of this petition under Article 226 of the Constitution of India the election of Dr. Shanti Lal C. Sheth (respondent No. 5) as President of the Medical Council of India (hereinafter referred to as the Council). The other respondents in the petition are the Medical Council of India (respondent No. 1), the Union of India (respondent No. 2), Dr. Tuisi Das (respondent No. 3), Dr. P. K. Duraiswami Director General of Health Sr V. Patel (respondent No. 6) and Dr. R. M. Kasliwal (respondent No. 7).
(2) The Council is a statutory body having been constituted under Section 3 of the Indian Medical Council Act, 1956 (102 of 1956) (hereinafter referred to as the Act). The Act replaced the Indian Medical Council Act of 1933. According to sub-section (1) of section 3 of Act 102 of 1956, the Central Government shall cause to be constituted a Council consisting of one member from each State and one member from each University. Provision is also made for the election of the members and their nomination by the Central Government. According to sub-section (2) of Section 3, the President and Vice President of the Council shall be elected by the members of the Council from amongst themselves. Sub-section (1) of Section 7 prescribes that the President and Vice-President of the Council shall hold office for a term nto exceeding beyond the expiry of his term as a member of the Council. According to subsection (2) of Section 7, subject to the provisions of the section, a member shall hold the office for a period of five years from the date of his nomination or election or until his successor shall have been duly nominated or elected, whichever was longer. Section 8 makes provision for the etings of the Council while Section 9 deals with the officers, committees and servants of the Council. Provision for the Executive Committee, consisting of the President, Vice-President and other members to be elected by the Council, is made in Section 10. It is also provided that the President and Vice-President shall be the President and Vice-President respectively of that committee. Section 33 of the Act empowers the Council to make regulations with the previous sanction of the Central Government to carry out the purposes of the Act. According to clauses (b) and (d) of that Section the regulations may inter alias provide for the summoning and holding of meetings of the Council, the conduct of business there at, and the powers and duties of the President and Vice-President.
(3) Dr. C. S. Patel. who had been elected President of the Council, died in August, 1968. On his death a vacancy in the office of the President occurred for the remaining term up to February, 1970. A meeting of the Council was called on March 14. 1969. Items I and 2 on the agenda for that meeting related to the notifications of the new members and confirmation of the previous minutes of the Council's meeting. The Council thereafter expressed condolence on the demise of Dr Patel. Dr. Tuisi Das respondent who was the Vice-President of the Council, presided over the meeting when the above mentioned items were dealt with. After those items had been disposed of, the Council took up the item related to the election of the President. The minutes of the meeting in this respect read as under :-
'NOMCI-11(3)/68-Med./114. Medical Council Of INDIA
Minutes of the Meeting held at New Delhi, the 14th March, 1969. The Council met in the Council office, Temple Lane, Kotia Road, New Delhi at 10.30 A.M. on Friday, the 14th March, 1969, with Dr. Tuisi Das; Acting President, Medical Council of India, in the Chair.
6. PRESIDENT-ELECTION OF:
Since Dr. Tusli Das, Acting President, 'v/as a candidate for the Presidential Election, he proposed from the Chair, Dr. P. K. Duraiswami, Director General of Health Se vices, to act as Chairman to conduct the election. There being no other proposal, Dr. Duraiswamy was requested to take the Chair. Dr. P. K. Duraiswami took the Chair. He announced the procedure of election that would be followed and quoted on enquiry from a member that according to the regulations of the Council, Part Ii, Rule 11 (5), in the event of equality of votes, the President shall have a second or casting vote. The Chairman, Dr. P. K. Duraiswami, invited nominations for the post of President.
The following names were duly proposed and secondded :
Dr. Shantilal C. Sheth Prposed by Dr. C. N. Chandrachud and seconded by Dr.K. N. Singaravelu. Dr. B. N. Sinha Proposed by Dr. P. Mukhopadhayay and seconded by Dr.M. M. S. Siddhu. Dr. R. M. Kasliwal Proposed by Dr. M. L. Gupta and seconded by Dr. S. N. Sen. Dr. T. V. Patel Proposed by Dr. T. B. Patel and seconded by Dr. S. N. Sen. Dr. Tuisi Das Proposed by Dr. S. S. Anand and seconded by Dr. Ramji Das.
On vote by secret ballot, Dr. Shantilal C. Sheth was declared elected as President. Lt. Genl. B. Bhattachariya and Dr. T. V. Sevanandam acted as Scrutineers.
(DR.Shantilal C. Sheth took the Chair).'
(4) The procedure adopted for the election was that the names of the candidates were written on a blackboard and a screen was put in the corner of the hall where the ballot-boxes were placed. The members went behind the screen and cast their votes by writing the name of the candidate concerned on a blank paper initialled by Dr. Duraiswami and by putting the same in the ballot-box. Two members, namely, Lt. Genl. B. Bhattachariya, Director General of Armed Forces Medical Services and Dr. T. V. Sevanandan acted as scrutineers. The number of votes secured by each candidate were given as under :-
'Name of the Candidates Votes (a) Dr. Shanti Lal C. Sheth (respondent No. 5) 22 (b) Dr. B. N. Sinha (Petitioner) 21 (c) Dr. R. M. Kasliwal (respondent No. 7) 5 (d) Dr. Thakor V. Patel, (respondent No. 6) 3 (e) Dr. Tuisi Das (respondent No. 3) 12
One ballto paper was declared to be invalid on the ground that the name of the candidate in whose favor the voter purported to have cast his vote was mentioned to be 'Dr. B. N. Singh' and nto 'Dr. B. N. Sinha.' After the declaration of the result, Dr. Sheth respondent No. 5, stood up and thanked the members present. Dr. Duraiswami then requested Dr. Sheth to occupy the chair as the President. Dr. Sheth thereupon occupied the chair and the members present including the petitioner, congratulated him.
(5) Objection in the meeting was taken against the declaration of one of the votes as invalid but the objection was disallowed. Demand for the re-counting of the votes was turned down on the ground that all the votes had been thoroughly checked and counted, and as such there was no necessity for re-checking or recounting of the votes.
(6) The petitioner claims that the election of Dr. Sheth as President of the Council is invalid because Dr. Duraiswami was nto competent to preside over the meeting in the presence of the Acting President and Vice-President Dr. Tuisi Das. The election is also stated to be invalid because of other grounds which shall be dealt with subsequently. The petitioner made a representation to the Union of India against the impugned proceedings and the declaration of Dr. Sheth as President, but the Government as per letter dated May 16/17, 1969, expressed its incompetence to interferere in the matter. The petitioner thereafter filed the present petition on June 10, 1969, praying for quashing of the election of respondent No. 5 as President of the Council and other incidental reliefs.
(7) The petition has been resisted on behalf of respondents 1.3, 4 and 5 and the affidavits of Dr. U. B. Krishnan, Secretary of the Council, Dr. Duraiswami and Dr. Sheth have been filed in opposition to the petition.
(8) We have heard Mr. Dikshit on behalf of the petitioner and Messers Malhotra and Bhandare on behalf of the contesting respondents, and are of the view that there is no merit in the petition. The first contention, which has been raised on behalf of the petitioner, is that the proceedings of the meeting of the Council held on March 14, 1969 relating to the election of the President are illegal, because the meeting at that time was nto presided over by Dr. Tuisi Das, who was the Vice-President of the Council hut by Dr. Duraiswami. Reference in this context is made to Regulation No. 9 which reads as under :-
'(1) Every meeting of the Council shall be presided over by the President, or if he is absent, by the Vice-President or, if both the President and the Vice-President are absent, by a Chairman to be elected by the members present, from among themselves.
(2) All references in this Part to the President shall be read as referring to the person for the time being presiding over a meeting.'
So far as the above contention is concerned, we find that Dr. Tuisi Das, who was the Vice-President of the Council, was one of the candidates seeking election to the office of the President. It would appear that Dr. Tuisi Das did nto consider it proper to preside over an election meeting in which he was himself a candidate. He, accordingly, proposed from the Chair that Dr. Duraiswami should act as Chairman to conduct the election. There being no other proposal. Dr. Duraiswami then took the chair at the request of Dr. Tuisi Das. We find nothing improper in Dr. Duraiswami presiding over the meeting in the above circumstances. As Dr. Tuisi Das was one of the candidates for the election, it would have been highly undesirable on his part to preside over the election meeting. The rules of natural justice and propriety demanded that someone other than a candidate should have presided over the meeting. The Chairman at an election meeting wields certain powers which can on occasions materially affect the result of the election. If a candidate were to act as a Chairman, there is bound to arise a conflict between the demands of duty and his personal interests. He becomes in a way a judge in his own cause. It may be that in such a situation he may act impartially and in an unbiased manner. The material question, however is whether there is reasonable ground for believing that he was likely to he biased. It would, in our opinion, be contrary to all canone of fair play and rules of natrual justice that a person should preside over an election meeting in which he himself is a candidate. We may in this context refer to the observations on page 28 of the Law and Procedure at Meetings by P. Joske, Third Edition:
'FOR the purpose of holding the election it is wise to appoint a temporary chairman who should nto be one of the candidates since a man may nto be judge in his own cause or preside at his own election.'
(9) The above observations are based inter alias upon the case of R v. Owens (i) and R v. White. In the case of Owens, election was held to fill four vacancies of the councillors including that of the Mayor. The Mayor, who was one of the candidates, acted as the Returning Officer. The election was declared to be void on that ground. Lord Campbell, C.J., observed :
'THE question is, whether this was a valid election, the mayor presiding as returning officer, and returning himself. Upon the maxim that no man shall be judge in his own cause, I am of opinion that a returning officer cannto be allowed, in the election at which he presides, to return himself. This is nto a mere peculiarity of election law, according to which the sheriff of the county cannto return himself member of parliamnent for his own county. It is said that the duty of the mayor is ministerial. But he has to determine questions arising on the voting papers, and whether those who voted have given their votes in due form, according to the requirements of the statute; and he had to decide difficult and perplexing questions, which are sometimes brought before us. He has the opportunity of acting partially, and of preventing the rights of others. thereforee the maxim applies to the mayor.'
CROMPTONJ. dealt with the question in the following words:-
'I am also of opinion that the election is void. The application of the principle, that a man is nto to be judge in his own cause, to election has this peculiar effect, that the returning officer cannto be returned, and it prevents his being effectually a candidate for the office, and filling it; whereas usually the right remains, and the principle only transfers the suit to another tribunal. In this case the person is altogether disqualified.'
Similar views were expressed by Wightman and Erle, JJ. In the case of White, it was held that mayor was nto disqualified to seek election as a town councillor but he could nto act as a returning officer. Blackburn, J. referred to Section 36 of the Municipal Corporation Act according to which if the mayor of any borough shall, at the time when it shall be necessary to execute the powers and duties with respect to elections, be dead, absent or otherwise incapable of acting, the council of such borough shall forthwith elect one of the aldermen to execute all such powers and duties in place of the mayor. The learned Judge observed :
'THE mayor is nto disqualified from being elected councillor, but he is disqualified from performing that part of the duty of returning officer which consists in returning himself, he being interested in the election.'
It was further observed :
'THE next question is, what is the construction of the words of Section 36, 'incapable of acting' think those words would include the case where the mayor, being ex officio returning officer, was a candidate, and so incapable of performing the functions of returning officer at that election. As soon as he had been nominated a candidate, which must now be two clear days before he is to act as returning officer he becomes 'incapable of acting' at that particular election, and consequently if the words of the section had been simply that the council were to appoint a person when the mayor was incapable of acting, this case would have been clearly within the words of the act. The objection that the deputy cannto act where his principal is disqualified would be good, if the section required that the mayor should appoint 'a deputy, but the mayor is nto to appoint a deputy, nor does the section require that the town council shall appoint a deputy, What is required is, that in cases where the mayor is incapable of acting the council shall appoint another person to act in his place, nto as his agent, nor as his deputy, but as his substitute. I think, thereforee, where the mayor is personally disqualified, the right course is for the council to appoint a substitute as they have done here.'
(10) In a recent case. A. K. Kraipak and others, v. Union of India and others, (3) Naqishbund, who was the Acting Inspector General of Forest of Jainniu & Kashmir State, was a candidate for selection to the Indian Forest Service. Naquishbund was a member of the Selection Board constituted for preparing a list of officers of the State-Forest Service. He, however, did nto sit in the Selection Board when his name was considered by the Selection Board. The selection was made on the basis of the records of officers. Some of the conservators of forests, who were superseded in promotion by Naqishbund, were nto selected by the Board and he was placed at the top of the list of selected officers. The selection so made was accepted by the Union Public Service Commission. In accordance with the recommendations of the Commission, the impugned list was published. The petitioners filed petitions for quashing the notification on the ground that the selections notified were vitiated by the contravention of the principles of natural justice. The petitions were allowed by their Lordships of the Supreme Court. Hegde, J., speaking for the Court, observed
'IT is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naqishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all cannone of justice to make a man judge in his own cause. It is true that he did nto participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under these circumstances it is difficult to believe that he could have been impartial. The real question is nto whether he was biased. It is difficult to prove the state of mind of a person. thereforee what we have to see is whether there is reasonable ground for believing that he was likely to have been biased,'
(11) After observing that the horizon of natural justice is constantly expanding, his Lordship observed :
'THE concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely; (1) no one shall be a judge in his own case (Nemo debet esse judex propria cause) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alferam partem). Very soon thereafter a third rule was evisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and nto arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries.'
(12) Although the above case related to a candidate being the member of the Selection Board, the principle underlying that case can be extended to the case of a person presiding over a meeting for holding election in which he himself is a candidate.
(13) So far as the direction contained in regulation 9 is concerned that the President or in his absence the Vice-President should preside over the meeting, we are of the view that it relates to an ordinary meeting and nto to a meeting for electing the President wherein the person mentioned in the regulation is himself a candidate. There is nothing in the above regulation which, in our opinion, prevents a President or Vice President from declining to preside over a meeting for holding an election wherein he himself is a candidate.
(14) Apart from the above, we find that the material on the record indicates that the petitioner and others present acquiesced in the act of Dr. Duraiswami presiding over the meeting. The affidavits of Dr. Krishnan, Dr. Duraiswami and Dr. Sheth show that no objection was taken by any one when Dr. Duraiswami acted as Chairman of the meeting in pursuance of the proposal of Dr. Tuisi Das. The Minutes of the meeting also do nto indicate that any such objection was raised. As aganist the above, the petitioner has stated in the petition that objection was taken in the meeting to Dr. Duraiswami acting as Chairman. A copy of the registered letter of Dr. Mukhopadhaya, who had proposed the name of the petitioner, has also been filed in this connection. The said letter is dated April 19, 1969. The petitioner, however, in his own objection to the correctness of the minutes of the meeting, which were sent by him on April 8, 1969, nowhere mentioned that an objection had been taken in the meeting to Dr. Duraiswami acting as Chairman. In view of the above, we find it difficult to reject the version contained in the affidavit of Dr. Duraiswami, Dr. Krishnan and Dr. Sheth that no objection was taken to Dr. Duraiswami presiding over the meeting. Be that as it may, all that can be said is that the petitioner has raised a disputed question of fact. It is nto possible in these proceedings under Article 226 of the Constitution to hold that the version of the contesting respondents on the above question of fact is nto correct. The posidon, which thus emerges and on the basis of which we have to proceed, is that no objection was taken to Dr. Duraiswarni presiding over the meeting. The effect of that is that even if there was any irregularity in Dr. Duraiswami presiding over the meeting the same should be held to be cured and condoned because those present acquiesced in his presiding over the meeting and waived their objection on that score. The petitioner further waived his objection by contesting the election in the meeting presided over by Dr. Duraiswami. The petitioner took his chance and had the result of the election been in his favor, he would have obviously been content with the proceedings of the meeting. It is now after the result of the election has gone against him that. the petitioner takes excepttion to Dr. Duraiswami presiding over the meeting. In view of all the above circumstances, it is, in our opinion, nto now open to the petitioner to question the act of Dr. Duraiswami in presiding over the meeting. As observed on page 28 of the Law and Procedure at Meetings by Joske :
'OBJECTIONS to the appointment of a chairman should be made forthwith as acquiescence may cure any informality or irregularity.'
(15) In the case of Manak Lal v. Dr. Prem Chand Singhvi, (4) the appellant, who was a practicing advocate, was proceeded against for professional misconduct. A Tribunal was appointed by the Bar Council to enquire into the allegations against the appellant. The Tribunal was presided over by Shri Chhangani who was found to be nto free from bias against the appellant. The appellant, however, took no objection to Shri Chhangani presiding over the Tribunal even though the material facts were within the knowledge of the appellant. It was held that it was nto open to the appellant to take that objection for the first time in the High Court. Gajendragadkar, J., as he then was, speaking for the Court, observed :
'SINCE we have no doubt that the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him. It seems clear that the appellant wanted to take a chance to secure a favorable report from the tribunal which was constituted and when he found that he was confronted with an unfavorable report, he adopted the device of raising the present technical point.'
In our opinion, the principle laid down in the above authority applies to the present case and the petitioner who contested the election in the meeting, presided over by Dr. Duraiswami, cannto now be heard to state that the election proceedings are void because of the election meeting having been presided over by Dr. Duraiswami
(16) Contention has then been arised on behalf of the pititioner that no one formally seconded the proposal of Dr. Tusli Das that Dr. Duraiswami should preside over the meeting. This was a move from the Chair and according to the affidavits of Dr. Sheth and Dr. Duraiswami the proposal was unanimously accepted as indeed it would have been. Be that as it may as stated earlier, the petitioner should be held to have waived his right to take objection to Dr. Duraiswami's acting as Chairman of the meeting.
(17) The petitioner in the course of his petition has made a bald statement that Dr. Duraiswami was prejudiced against him. No particulars of the alleged bias or prejudice of Dr. Duraiswami were given by the petitioner and his allegation in this respect has remained unsubstantiated. Dr. Duraiswami in the course of his affidavit has denied the above allegation. We, thereforee, are of the view that there is nothing to show that Dr. Duraiswami was in any way biased or prejudiced against the petitioner.
(18) Argument has then been advanced on behalf of the petitioner that the ballot-paper containing the name 'Dr. B. N. Singh' was wrongly rejected. It is urged that the intention of the voter was to cast the vote in favor of the petitioner and if that ballot-paper had nto been declared invalid, there would have been a tie between the petitioner and respondent No. 5. In this respect we find that the affidavits filed on behalf of the respondents show that the ballot-paper in question was declared to be invalid by Lt. Genl. Bhattacharrya, Director General of Armed Forces Medical Services and Dr. T. V. Sevanandan, former Member of Legislative Council, Madras, both of whom had been appointed as scrutineers. Dr. Duraiswami agreed with the two scrutineers and held the ballot-paper in question to be invalid. We find no illegality in the course adopted by Dr. Duraiswami. The name of the petitioner is 'Dr. B. N. Sinha', while the ballot-paper in question contained the name 'Dr. B. N. Singh' As the name on the ballot-paper in question was different from that of the petitioner, Dr. Duraiswami in concurrence with the two scrutineers held the ballot-paper to be invalid. There was material on the basis of which Dr. Duraiswami could have arrived at that conclusion, and, in our opinion, his decision in this respect cannto be assailed in the present writ petition. According to clause (4) of regulation 11 the result of the vote shall be announced by the President and shall nto be challenged. According to regulation 27, the President shall decide all points of order which may arise, and his decision shall be final. It is further provided that if any question rises with reference to procedure in respect of a matter for which the regulations make no provision, the President shall decide the same and his decision shall be final.
(19) The learned consel for the petitioner has also argued that there were spelling mistakes in the name of respondent No. 5 in some of the ballot-papers which were cast in his favor. It is urged that those ballot-papers should have also been rejected if the ballot-paper containing the name 'Dr. B. N. Singh' was rejected. There is no force in this contention. No objection appears to have been taken to the acceptance of any of the ballot-papers in favor of Dr. Sheth. In any case, the wrong spelling of the name cannto be equated to the writing of a wrong name. It is nto disputed on behalf of the petitioner that the wrong spelling of the name by itself is no ground for the rejection of a ballot-paper.
(20) It is next urged on behalf of the petitioner that the method adopted for holding the election in the present case offended the principle of secrecy of the ballot-paper. In this respect we find that the affidavit of Dr. Krishnan shows that there is no prescribed procedure for the conduct of the election to the office of President. The usual practice has been to give blank slips initialled by the Chairman of the meeting to the members with the request that they should write the name of the candidate for whom they wanted to vote and deposit the paper in the ballot-box. The same procedure was adopted at the time of the impugned election. The affidavit further shows that this procedure as a matter of convention is being followed by the Council for the last thirty years and has become customary. The procedure it is further stated, does nto infringe the principle of secrecy of the ballot, as each voter has to write the name of the candidate only and deposit the same in the ballot-box personally. Dr. Sinha was himself elected to the Executive Committee by the method now objected to by him. In view of the above, we are satisfied that there was no illegality or impropriety in the procedure adopted for the holding of the election. The contention advanced on behalf of the petitioner on this score is repelled.
(21) The learned counsel for the petitioner has made reference to some judgments containing general observations on principles of natural justice. None of those judgments relates to an election meeting and it is, in our opinion, nto necessary to refer to them. Likewise, it is nto necessary to refer to cases dealing with particular provisions of the Representation of the People Act, and other statutory election laws which admittedly do nto govern the election of the President of the Medical Council of India. The petitioner can also derive no assistance from the Indian Medical Council Rules relating to the election to the Council, because those Rules do nto deal with the election of the President of the Council.
(22) We, thereforee, are of the view that no case has been made for quashing the election of respondent No. 5 as the President of the Council. The petition consequently fails and is dismissed, but in the circumstances without costs.