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Dr. V. Ramakamath and ors. Vs. the Surgeon General with the Government of Madras - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 9975 of 1949
Judge
Reported inAIR1951Mad227; (1950)IIMLJ322
ActsMadras Medical Registration Act, 1914 - Sections 22 and 24(1); Madras Medical Registration Rules - Rule 19
AppellantDr. V. Ramakamath and ors.
RespondentThe Surgeon General with the Government of Madras
Appellant AdvocateV. Ramaswami Aiyar and ;M. Natesan, Advs.
Respondent AdvocateAdv. General for ;Government Solicitor
DispositionPetition dismissed
Cases ReferredLocal Government Board v. Arlidge
Excerpt:
.....candidates to the registrar, medical council, to circulate to the members of the madras medical council a memorandum of objections in respect of the said election and to summon an extraordinary meeting of the council to decide the validity of the election. ' on 15th april 1947 one of the defeated candidates addressed a letter to the registrar, madras medical council, requesting that the matter may be again placed before the council, the members whose election was in question notparticipating. the government asked the registrar, medical council to report about the decision of the council on the memorandum of the defeated candidates and a report was sent. the registrar on 5th may 1947 replied to the defeated candidates who had complained about the disposal of the objection petition..........candidates to the registrar, medical council, to circulate to the members of the madras medical council a memorandum of objections in respect of the said election and to summon an extraordinary meeting of the council to decide the validity of the election. it is not necessary to set out tho allegations contained in this memorandum, the council met on 26th november 1946 and after taking into account a report from the returning officer and the allegations made in the memorandum of objections, and after examining him, the council passed a resolution as follows: 'this council after going through the memorandum and explanation of the returning officer mr. b. kut-tappa and after examining him is of opinion that there are no grounds for allegations of corrupt practice or any other sufficient.....
Judgment:
ORDER

1. This is an application for the issue of a writ of certiorari to call for the papery and quash the proceedings of the Surgeon General with the Government of Madras passed in P. No. 281, Misc dated 28th November 1949 declaring the election of the petitioners and three other persons as members of the Madras Medical Council void and claiming upon the electorate to make a fresh election. The events which led up to this order which is sought to be quashed are as follows : Under section 5, Sub-section (1), Madras Medical Registration Act, a Medical Council shall be established for the Province of Madras consisting of 15 members. Of these 7 members have to be elected by the Registered Practitioners from amongst themselves. In the elections held for electing 7 such members in October 1946, the petitioners and three others were declared duly elected on 27th October 1946. Of these the first petitioner was unanimously elected as the President of the Council under Section 5 (a) of the Act, on 23rd November 1946. On 6th November 1946, a letter was addressed by six of the defeated candidates to the Registrar, Medical Council, to circulate to the members of the Madras Medical Council a memorandum of objections in respect of the said election and to summon an extraordinary meeting of the Council to decide the validity of the election. It is not necessary to set out tho allegations contained in this memorandum, The Council met on 26th November 1946 and after taking into account a report from the Returning Officer and the allegations made in the memorandum of objections, and after examining him, the Council passed a resolution as follows:

'This Council after going through the Memorandum and explanation of the Returning Officer Mr. B. Kut-tappa and after examining him is of opinion that there are no grounds for allegations of corrupt practice or any other sufficient cause to set aside the elections.'

On 15th April 1947 one of the defeated candidates addressed a letter to the Registrar, Madras Medical Council, requesting that the matter may be again placed before the Council, the members whose election was in question notparticipating. In this letter three grounds were mentioned for a re-enquiry, nameiy, (l) that the matter was decided ex parte ; (2) that no opportunity was given to the complainants to explain their case and to adduce proofs in support of their contentions; and (3) that the persons whose elections were being challenged themselves sat in the Council and decided the matter. It appears that the objectors also addressed the Government in regard to their complaint. The Government asked the Registrar, Medical Council to report about the decision of the Council on the memorandum of the defeated candidates and a report was sent. The Registrar on 5th May 1947 replied to the defeated candidates who had complained about the disposal of the objection petition denying the allegations made by him. Sometime thereafter on 4th July 1947 the Government passed an order G. O. Misc. no. 2313, P. H. directing the Surgeon General to conduct a thorough investigation in the matter of the elections to the Madras Medical Council and to submit a report to enable the Government to decide whether any action under Section 22 of the Act was necessary. The President of the Council was requested to provide the required facilities to the Surgeon General to enable him to make the investigation. On 2nd March 1948 the Government passed another order (No. 640 P.H.) which runs as follows :

'Whereas Dr. D. V. Venkappa and five other persons presented a memorandum dated 6th November 1946, to the members of the Madras Medical Council through the Registrar of the said Council alleging cer-tain corrupt practices and material irregularities in the conduct of elections of members to the said Council held during October 1946;

2. And whereas the Madras Medical Council disposed of the said memorandum improperly in that it failed to give the said Dr. D. V. Venkappa and five others, who were complainants before it, an opportunity to substantiate and prove the allegations made in the said memorandum and further allowed the President of the Council againat whom certain allegations were made in the said memorandum to be present at the time and to participate in the decision of the Council in respect of the said memorandum ;

3. And whereas it appears to the Government of Madras that in disposing of the memorandum in the manner aforesaid, the Madras Medical Council neglected to exercise and abused the power conferred, and neglected to perform the duties imposed upon it by the Madras Medical Registration Act, 1914, and the Rules made thereunder and in particular Rule 19 of the rules published with Public Department Notification No. 673, dated 15th November 1914, at pages 1719 to 1725 of Part I of the Fort St. George Gazette dated 22nd December 191.4, as subsequently amended;

4. Now, therefore, in exercise of the powers conferred by Section 22 of the said Act His Excellency The Governor of Madras hereby notifies to the Madras Medical Council the aforesaid neglect to exercise and abuse of the power conferred upon it and neglect to perform the duties imposed upon it, and fixes 28th March 1948 as the date before which the council shall remedy the said neglect and abuse;

5. The orders passed in G. O. Ms. No. 2313 P. H.dated 4th July 1947 are hereby cancelled.'

2. This order of the Government was considered by the Council at a meeting held on 22nd March 1948 and a letter was addressed by the President to the Joint Secretary to Government on the same Hay protesting against the action of the Government and intimating that the Government had no power to reopen the proceedings passed by the Council on the memorandum of the objectors and regretting the inability of the Council to comply with the requisition of the Government. On 20th April 1949 nearly a year after their previous order, the Government passed another order (NO. 1448 P. H.) purporting to be in exercise of the powers conferred upon them by Section 22 of the Act appointing a Special Officer of the status of a District and Sessions Judge for period of one month to enquire into the representations made by Dr. D. V. Venkappa and others in a memorandum dated 6th November 1946 to the Madras Medical Council and to report his findings to the Government. On 23rd May 1949, the Council passed a resolution to the effect thai; the action taken by the Government in appointing a Special Officer to hold an enquiry was wholly ultra vires of the Government and not justified in the circumstances. The Council also decided to ignore the so-called enquiry to be conducted by the Special Officer. A retired Judge was appointed Special Officer and ho called upon the President of the Council to appear before him in connection with the enquiry, but the President refused to ba a party to what he considered to be a wholly illegal and unconstitutional enquiry. On 8th September 1949 after perusing the report from the Special Officer who had evidently forwarded his report, the Government passed an order (No. 3192 P. H.) appointing the Surgeon General with the Government of Madras to exercise for a period of four months the powers of the council under Rule 19 of the Rules for the conduct of subsequent elections to the Council. This order purported to be in the exercise of the powers conferred by Section 22 of the Act. The grounds on which the order was passed were set out at some length. It was pointed out that as the Council had failed to observe the principles of natural justice in disposing of the memorandum of objections filed by the defeated candidates and thus neglected to exercise and abused the powers conferred and neglected to perform the duties imposed upon it by the Act and the rules made thereunder, and in particular, Rule 19 of the Rules for subsequent elections, the Government had notified to the council the particulars of the neglect and abuse and had fixed 28th March 1948 as the date before which the councilshould remedy the neglect and abuse but the Council had failed to do so. In a long letter addressed to the Additional Secretary to Government, Education and Public Health, the President of the Council protested against the order and intimated that the action of the Government was clearly without jurisdiction and reiterated his previous contention that the decision of the council on the objection petition had become final and could not be reopened. In pursuance of the order dated 20th April 1949, the Surgeon General notified to the President of the Council a list of the alleged irregularities and illegalities in the conduct of toe elections and informed him that he may make any represen-tation aa regards them so as to reach the office on or before 15th October 1949. If, however, no representation was received before that date, it would be presumed that there was no explanation or remarks to offer. The President replied refusing to take any part in the enquiry, as, according to him, the proceedings were all ultra vires and without jurisdiction. Eventually on 28th November 1949 the Surgeon General passed the following order:

'I find that all the allegations notified have been proved. In exercise of the powers conferred on me by G. O. 3192 Public Health dated 8th September 1949, I hereby declare the elections of the seven members noted in para. 1 of these proceedings to be void and call upon the electorate to make fresh elections.'

It is this order that the petitioners seek to quash.

3. The only material statutory provisions which have a bearing on the contentions raised at the hearing are Rule 19 of the rules for subsequent elections made under Section 24 Sub-section (1) of the Act and Section 22 of the Act. Rule 19 is as follows :

'The council may, of its own motion, or on objection made, declare any election that has been held to be void on account of corrupt practice or any other sufficient cause and may call on the electorate to make a fresh election. The decision of the Council under this rule shall be final.'

Section 23 runs thus :

'If at any time it shall appear to tho Governor in Council that the Council has neglected to exercise or has exceeded or abused any power conferred upon it under this Act or has neglected to perform any duty imposed upon it by this Act, the Governor in Council may notify the particulars of such neglect, excess or abuse to the Council ; and, if the council fails to remedy such neglect, excess or abuse within such time as may be fixed by the Governor in Council in this behalf, the Governor in Council may for the purpose of remedying such neglect, excess or abuse, cause any of the powers and duties of the Council to be exercised and performed by such agency and for such period as the Governor in Council may think fit.'

Mr. V. Ramaswami Aiyar who argued on behalf of the applicants with great ability first conten-ded that the decision of tho Council under Rule 19 was final and tha Government had no power to interfere with its finality. Though he faintlysuggested that Section 22 of the Act does not apply to elections and to proceedings of the Council as regards them, the learned advocate was compel-led to admit that tho language of Section 221 would certainly cover any action or omission of the council relating to any matter provided in the Act. His contention was that even if there was neglect in performance of duty or excess or abuse on the part of the Council, once the Council had made its decision it was final. This contention is obviously unsound. The learned counsel conceded that in spite of the provision of Rule 19 that the decision of the Council shall be final, it would be open to this Court to quash such a decision by a writ of certiorari if there was any excess of jurisdiction or other ground justifying the issue of a writ. In the same way, the statute confers on the Governor in Council power to take up appropriate action in circumstances which would justify the issue of a writ to quash the decision of the Council. It therefore follows that there is no substance in Mr. Ramaswami Aiyar's further development of his argu-ment that even assuming the Surgeon General had been appointed validly under 8. 92, he cannot reopen the prior decision of the Council. The real question is whether the action of the Governor in Council purported to have been taken under Section 22 of the Act was intra vires.

4. The section provides that the authority to decide whether there has been a neglect to exercise or an excess or abuse of the powers conferred on the Council or a neglect in the performance of duties imposed upon it is the Governor in Council and not the Court. The language is 'If at any time it shall appear to the Governor in Council.' It would however be open to the Court to ascertain if there has been a bona fide exercise of tho power conferred on the Governor in council by the section. In the facts and circumstances as regards which there is practically no dispute, it appears to be abun-dantly demonstrated that there has been an abuse of the power in one respect at least, namely, in the participation by the persons whose elections were being challenged in the meeting of the Council which dismissed of the memorandum of objections by the defeated candidates. It was admitted by Mr. Ramaswami Aiyar that all the seven persons whose elections were being challenged did attend the meeting at which this resolution was passed embodying the decision of the Council under Rule 19.

5. It is an elementary principle of natural justice that no man can be a Judge in his own cause. Therefore, where persons who have a direct interest in the subject-matter of an enquiry before an inferior Court, take part inadjudicating upon it, the Court is improperly constituted and ia without jurisdiction (Vide Halsbury's Laws of England, 2nd Edn., Vol. 9 Section 1487 and Vol. 26, Section 606). Mr. Rama-swami Aiyar relied on the fact that there is no evidence that such members took an active part. This however, does not make any difference. In the Queen v. London County Council, (1892) 1 Q. B. 190 the facts were these. The London County Council delegated to a Committee of their body the hearing of applications for music and dance licences, The committee by a majority recommended that a licence which had been applied for should not be granted. The applicant thereupon applied to the County Council for a licence. At the hearing before the County Council certain members of that body who were also members of the Committee and had voted in the majority against granting a licence at the hearing before the committee, instructed counsel to represent them before the county council and oppose the application for a licence. The Councillors so instructing counsel were present at the hearing, but did not vote. The Council by a majority refused the application for a licence. It was hold that the presence at the hearing of those members of the County Council who had instructed counsel to oppose the application vitiated the proceedings. It was argued that they had taken no part in the deliberations of the Council. A. L. Smith J. repelled the argument and said :

'This, however, will not avail, if it were the fact; for Lord Denman in the case above cited Reg. v. Justice of Hertfordshire, (1845) 6 Q. B. 753 14 L.J.M.C. 73 held that a decision was vitiated by any one interested person taking part it being enough for the purpose that one single interested parson has formed part of the Court, and Patterson J. who followed Lord Denman said 'the question is, has an interested person taken any part at all ?'

'The case of Reg. v. Meyar, (1876) 1 Q. B. D. 173 : 34 L. T. 247 is also an authority as to this ; Blackburn J. in delivering judgment said 'we cannot go into the question whether the interested Justice took no part in the matter (i.e., in the discussion of the case). The question is, was he ao interested in the matter as that he ought not to have sat In this we agree.'

The extreme limits of the application of this great and salutary principle can be found in The Queen v. Justices of Great Yarmouth, (1882) 8 Q. B. D. 525 : 51 L. J. M. C. 39 and Cooper v. Wilson, 1937-2 ALL E.R. 726 : 1937-2 K. B. 309. In the latter cade the chief constable and his assistant were allowed to sit in Court in a position which gave them the appearance at least of being members of the Court which had to try the accused. They sat next and nest but one to the Chairman. They continued to remain when the committee was considering its decision. It was held that theproceedings were vitiated by their presence. Scott L. J. observed :

'It makes no difference whether he then discussed the case with them or not ; the risk that a respondent may influence the Court is so abhorrent to English notiona of Justice that the possibility of it, or even the appearance of such & possibility is sufficient to deprive the decision of all judicial force and to render it a nullity.'

6. We do not think that a different rule applies in India. Mr. Ramaswami Aiyar who could not seriously contest the legal position attempted to escape its consequences by relying on an exception to the general rule, for which he cited the following passage from Halsbury (2nd Edn.) Vol. 9, at p. 884 :

'Any pecuniary interest, however small, in the matter in dispute, disqualifies a person from acting as Judge, unless the disability is removed by statute.'

He argued that as Rule 19 did not exclude from participation the members whose election waa challenged it must be implied that their disability was removed. But a reference to the authorities cited in the note in Halsbury makes it clear that what is contemplated is an express removal by statute of a disability which ia recognised aa such. Both in the Queen v. Bolingbroke 1893-2 Q. B. 347: 62 L. J. M. C. 180 and in Ex parte Workington Overseers, (1894) 1 Q. B. 416 : 70 L. T. 143 the material enactment was Section l of 16 Geo. II Ch. 18 which ran thus:

'It shall be lawful for every Justice of the Peace for any county, riding, city, liberty franchise, borough, or town corporate to do within his jurisdiction any act appertaining to his office as Justice of the Peace so far as the same relates to the laws concerning parochial taxes, levies, or rates, notwithstanding such Justice of the Peace is rated to or chargeable with the taxes, levies, or rates within any parish, township or place affected by any such act.'

In the absence of any such express removal of disqualification in Rule 19 we cannot accept the contention of Mr. Ramaswami Aiyar. The Governor in Council was therefore perfectly justified in considering that the Council had abused the power conferred upon it by the Act. It was competent for the Governor in Council to notify to the Council the particulars of the abuse and to give an opportunity to the Council to remedy such abuse. In this case the Council took up a very strong attitude that the Government had no right to take any action under Section 22 of the Act and therefore would not remedy the abuse. The Council could have disposed of the memorandum of objections after excluding from it the members whose election was being challenged, bat they did not do so. There was nothing left for the Governor in Council except to appoint someone to exercise and perform the powers and duties of the Council in this matter.

7. The next contention of Mr. Ramaswami Aiyar was that the order of the Surgeon Generalsetting aside the elections of the petitioners and others was contrary to the natural justice. This contention was founded on the allegation that the order was based almost entirely on the material placed bofore the retired District Judge who had bean directed at an earlier stage to conduct an enquiry. It was urged that this was not evidence placed before the Surgeon General and besides, this report which was confidential wag not made available to the petitioners. On a perusal of the order, it does not appear that the Surgeon General merely acted on the findings arrived at by the Special Officer who had conducted a prior enquiry. What he did was to carefully consider the records of the enquiry. He relied upon the oral evidence tendered before the Special Officer and also on documentary evidence available to him. Now, it must be conceded that according to the procedure preva-lent in Civil and Criminal Courts of the land, the Surgeon General was not entitled to rely upon the evidence which was given before the Special Officer. But it is now well establishedthat the strict rules of procedure applicable to Courts of law need nob be followed by domestic and quasi judicial tribunals. All that such a tribunal should do ia to give an opportunity to the parties to state their case and to Act judicially and not arbitrarily. In the leading case on this branch of law, Local Government Board v. Arlidge, 1915 A. C. 120: 84 L. J. K. B. 72 Lord Shaw made the following trenchant observations:

''The words 'natural justice' occur in arguments and somotimes in judicial pronouncements in such cases. My Lords, when a Central administrative board deals with an appeal from a local authority, it must do its beat to act justly and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance, it must still act honestly, and by honest means. In regard to thesecertain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the Judiciary should presume to impose its own methods on administrative or executive officers is an usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded.'

(Vide also Errington v. Minister of Health, 1935-1 K. B. 249 : 104 L. J. K. B. 49. It cannot be denied that the petitioner were given ample opportunities by the Surgeon General to place their case before him, but they would not take part in the enquiry, because in their view, the enquiry was without jurisdiction. The objectors stated that they had nothing more to add to the materials already available which had been placed before the Special Judge appointed by the Government. In these circumstances, we do not see how the Surgeon General failed to observe any rale of natural justice in disposingof the enquiry. No doubt the report of the Special Judge waa confidential bub it is clear that the order of the Surgeon General was not based on that report, but only on the material placed bofore the Judge. Apart from this circumstance, it is clear from Local Government Board v. Arlidge, 1915 A. C. 120: 84 L. J. K. B. 72 that the non-disclosure of the report which had been referred to by the tribunal would not render the decision of the tribunal void and liable to be quashed by certiorari. It ia common ground that there is nothing in the statute or the rules prescribing the procedure. In the case of an enquiry under Section 18, the Council or any Com-mittee thereof shall be deemed to be a Court within the moaning of the Indian Evidence Act, but there ia no such provision regarding elections. The utmost that could be aaid for the petitioners is that the respondent acted on evidence which would be inadmissible in a Court of law, but surely that is not a ground on which the order could be quashed. Having taken up an attitude of non-co-operation and non-participation in tho proceedings, it would not be open to the petitioners to now turn round and accuse the respondent of not giving them an opportunity to meat the charges against them.

8. The petition fails and is dismissed, but wo make no order as to costs. It is most regrettable that elections held in October 1946 have been bold to be void in November 1919. Section 22 of the Act contemplates immediate action on the part of the Government but this case reveals long delay. The Government in their Order of March 2, 1948, gave the Council time till March 28 to remedy their neglect and abuse of power but the Council refused to do so. Nevertheless, it is only on April 20, 1949 a year later that the Government take the next step, a step not strictly failing within Section 22. We may also point out that Rule 19 needs to be amended, as the learned Advocate-General himself conceded.


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