IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26..09..2011 CORAM THE HON’BLE Mr.M.Y.EQBAL, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE T.S.SIVAGNANAM W.A.Nos.1500 & 1664 of 2011 and M.P.Nos.1 + 1 of 2011 ------------ W.A.No.1500 of 2011 D.D.Medical College and D.D.Hospital, rep. by its Chairman Dr.T.D.Naidu, No.61, D.D.Nagar Bus Stop, Kunnavalam Post, Tiruvallur District, Chennai – 631 210. ..Appellant/Petitioner Vs. 1. Secretary to Government of India, Ministry of Health and Family Welfare, (Department of Health and Family Welfare), Nirman Bhawan, New Delhi – 110 011. 2. The Medical Council of India, Pocket 14, Sector – 8, Dwarka, Phase – I, New Delhi – 110 077. ..Respondents./Respondents W.A.No.1664 of 2011 Board of Governors, In supersession of The Medical Council of India, rep. by the Law Officer, Pocket 14, Sector – 8, Dwarka, Phase – I, New Delhi – 110 077. ..Appellant/2nd Respondent Vs. 1. D.D.Medical College and D.D.Hospital, rep. by its Chairman Dr.T.D.Naidu, No.61, D.D.Nagar Bus Stop, Kunnavalam Post, Tiruvallur District, Chennai – 631 210. https://hcservices.ecourts.gov.in/hcservices/ 2. Secretary to Government of India, Ministry of Health and Family Welfare, (Department of Health and Family Welfare), Nirman Bhawan, New Delhi – 110 011. ..Respondents./Petitioner and 1st Respondent PRAYER: Both the appeals have been filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 08.08.2011 passed in W.P.No.13052 of 2011. Writ Petition filed under Article 226 of the constitution of India praying for the issuance of certiorarified mandamus to call for the records relating to the impugned proceedings of the 2nd respondent herein issued in No. MCI- 34(41)/2011-Med/111419 dated 19.05.2011 and to quash the same as illegal and consequently to 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 2011-12 and for granting Letter of Permission for the additional intake of 250 students (including original intake) for the academic year 2011-12 Mr.Altaf Ahmed, Senior Counsel :: For Appellant in W.A.No.1500/2011 for Mr.G.Sankaran & Mr.K.K.Mani & 1st respondent in W.A.No.1664/2011 Mr.P.S.Raman, Senior Counsel :: For Appellant in W.A.No.1664/2011 and Mr.Amit Kumar Assisted by 2nd respondent W.A.No.1500/2011 Mr.V.P.Raman & Ms.Jannavi Raghuraman Mr.Velayutham Pichaya :: For 1st Respondent in W.A.1500/2011 & For 2nd Respondent in W.A.1664/2011 --------------- C O M M O N J U D G M E N T The Hon’ble The Chief Justice & T.S.Sivagnanam, J. Both the appeals have been filed against the order of the learned single Judge dated 08.08.2011 passed in W.P.No.13052 of 2011, whereby the learned single Judge set aside the impugned order passed by the Medical Council of India dated 19.05.2011 refusing renewal of permission, on the ground of violation of the principles of natural justice, and remanded the matter back to the Medical Council of India to consider and pass orders afresh on the grant of renewal for the appellant - Medical College for admitting second batch of students to the MBBS Course for the academic year 2011-2012. Writ Appeal No.1500 of 2011 has been filed by the Medical College concerned and Writ Appeal No.1664 of 2011 has been filed by the Medical Council of India. 2. The brief facts, which are necessary for the disposal of these appeals, are stated hereinbelow :- After considering the application made by the appellant – Medical College, the Board of Governors of the Medical Council of India https://hcservices.ecourts.gov.in/hcservices/ issued a proceedings dated 12.07.2010 under Section 10(A) of the Indian Medical Council Act, 1956, permitting them to establish a new Medical College viz., D.D.Medical College and Hospital at Chennai, with an annual intake of 150 students from the academic year 2010- 2011. The said permission was for the period of one year and liable to be renewed on yearly basis based on the inspection to be conducted by the Assessors deputed by the Medical Council of India. Pursuant to such permission, the college started Medical Course with 150 students from the academic year 2010-2011. The College has also been issued with provisional affiliation by the Tamil Nadu Dr.M.G.R.Medical University as per its proceedings dated 25.08.2010. Thereafter, on 14.03.2011 the Medical Council of India issued a letter nominating three Assessors for assessment of physical and other teaching facilities available in the College for renewal of its permission for the second batch of MBBS Course for the academic year 2011-2012. They inspected the College on 15.03.2011 and 16.03.2011, and found that the College has fulfilled all the norms and requirements with reference to teaching faculty as well as infrastructural facilities, and prepared its report accordingly. The College, while seeking its yearly renewal for the academic year 2011-2012, also sought permission for an additional intake of 250 students, as it has the required teaching as well as the infrastructural facilities for the additional intake also. But, the College was issued with a show cause notice dated 10.05.2011 stating that some of the Doctors produced before the Assessment team as Full Time Professors in the College are working in other medical colleges. A reply was sent on 16.05.2011 denying the allegations in the show cause notice and stating that the Doctors referred to in the show cause notice are actually appointed and working only in the appellant – College. The college has also furnished the details relating to their orders of appointment, joining reports as well as the relieving orders issued by the colleges where they had been working earlier. A second show cause notice was also issued on 18.05.2011, raising the same allegation, but this time with regard to some other doctors. For this also a reply on the same lines was submitted by the College. 3. On the very next day viz., 19.05.2011 the Medical Council of India issued the impugned proceedings refusing to renew permission for admission of second batch of MBBS students for the academic year 2011-2012 on the ground that the Assessors were forced and threatened by the college authorities during their inspection on 15.02.2011 and 16.02.2011, and two of them submitted their complaints regarding the coercion and threat meted out to them. The appellant – college challenged the same by filing the aforesaid writ petition. 4. In the writ petition it was pleaded that the impugned order was passed in blatant violation of the principles of natural justice, and it is ex facie illegal and arbitrary. Further, it was contended 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 further pleaded that if the threat and coercion as alleged in the impugned order is true, the earlier show cause notices dated 10.05.2011 and 18.05.2011 should have mentioned this incident, but they did not mention anything about such incident. Therefore, it is an afterthought on the part of the MCI authorities. https://hcservices.ecourts.gov.in/hcservices/ 5. In the counter affidavit filed by the Medical Council of India, it was stated that MCI vide its letter dated 20.10.2010 informed the College that the inspection would be undertaken between 01.11.2010 and 28.02.2011. But the Dean of the College sent a letter dated 15.11.2010 requesting to arrange for inspection only during the month of March, 2011. Hence, the assessment was conducted on 15.03.2011 and 16.03.2011 and the assessment report was received under sealed cover on 17.03.2011. Subsequent to the assessment report, two of the Assessors came to the office of the Medical Council of India and narrated the details of coercion and threat meted out to them by the Chairman of the 1st respondent – Medical College. They also stated that the Chairman of the College forced them to write their report in his presence, and therefore, no confidentiality would be attached to the report of assessment. The Assessors also stated that they recorded the voice of the Chairman in their cell phones and that would prove the manner and mode, in which coercion was applied to them. It was further stated in the counter that the Assessors were not permitted to verify the number of patients in the hospital and teaching facility on the first day of inspection. 6. After hearing the learned counsel on either side and after perusing the material on record, the learned single Judge passed the impugned order setting aside the proceedings of the Medical Council of India dated 19.05.2011, and remanded the matter back to the authorities concerned. The concluding paragraph of the impugned order passed by the learned single Judge is quoted hereinbelow :- “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. 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, https://hcservices.ecourts.gov.in/hcservices/ 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 2010 (6) SCC 614 relied on by the learned counsel for the second respondent is not applicable to the facts of this case. “ 7. Mr. Altaf Ahmed, learned senior counsel appearing for the D.D.Medical College and Hospital assailed the impugned order passed by the learned single Judge mainly on the ground that when the learned Judge came to the conclusion that the impugned order as contained in the letter dated 19.05.2011 refusing renewal for the Medical College was in utter violation of the principles of natural justice and the same was set aside, then the matter should not be remanded back to the MCI to reconsider and pass fresh orders, instead the learned Judge ought to have allowed the writ petition and issued direction for the renewal or permission to the College for admitting the second batch of MBBS students for the academic year 2011-2012. 8. Learned senior counsel firstly drew our attention to the different documents available in the typed set. He submitted that admittedly the College was inspected on 15.03.2011 and 16.03.2011 by a team of Assessors who completed the inspection and found that the College fulfilled all the norms and requirements with reference to teaching faculty as well as infrastructure facilities. The said report was submitted by the Assessors in a sealed cover. Learned Senior Counsel further submitted that from the information received under the Right to Information Act, it is evidently clear that the Inspection Report by the Assessors in sealed cover was placed before the Board of Governors of the MCI on 29.03.2011 and the Board of Governors took a decision 03.04.2011 that renewal of permission for admission of second batch of students for the academic year 2011-2012 may be granted. However, the Under Graduate Section of the Board of Governors made a note that the decision granting renewal of permission was not communicated due to the reason that some of the teaching faculty which they had shown at the time of assessment has been traced out in two medical colleges. 9. Learned senior counsel further submitted that in the impugned letter dated 19.05.2011 the appellant was communicated that the Board of Governors decided not to renew the permission for admission of second batch of students after considering the complaints made by the two Assessors regarding coercion and threat meted out to them during the assessment. Learned Counsel submitted that no complaint in writing was made by the two Assessors save and except one e-mail sent by one of the Assessors to Dr.Sita Naik, a Member of the Board of Governors. Learned Senior Counsel drawn our attention to the e-mail https://hcservices.ecourts.gov.in/hcservices/ and submitted that in the e-mail no specific complaint has been made by the Assessors against the D.D.Medical College, but only general complaint has been made against many colleges without disclosing the names of those colleges. Further, this complaint was made by way of e-mail on 15th April, 2011 i.e., one month after the inspection was carried out and the Assessment Report was submitted. According to the learned Senior Counsel the Medical Council of India changed their stand in their counter affidavit by saying that oral complaints have been made by the Assessors on the basis of which the Board of Governors took a decision not to grant permission. The said decision taken by the Board of Governors has not been brought on record by the Medical Council of India. 10. Learned senior counsel lastly submitted that the only ground for the denial of permission as appeared in the impugned letter is on the basis of the complaint made by the Assessors regarding use of threat and coercion and not on the ground of deficiency in infrastructure. Hence, after the decision taken by the Board of Governors on 03.04.2011 granting permission to the College i.e., the decision was taken on the basis of the Assessment Report. The other grounds subsequently made by the Medical Council of India for refusing renewal are afterthought and are without any basis. 11. Per contra, Mr. P.S. Raman, learned senior counsel appearing for the Medical Council of India firstly contended that in the facts and circumstances of the case, the principles of natural justice is not attracted and the learned single Judge has misdirected himself in law holding that there is a violation of principles of natural justice in refusing to renew the permission to the College. Learned senior counsel drew our attention to the Medical Council of India Regulations and the Scheme and submitted that under Regulation 8(3) the permission is to be granted for one year subject to renewal of permission and not otherwise. Learned Senior Counsel further submitted that it is totally incorrect to say that renewal was granted by the Board of Governors on 03.04.2011. Learned senior counsel also refuted the allegation made by the College that the Chief Vigilance Officer of the MCI was instrumental in the matter of grant of renewal for the medical college. He submitted that, as a matter of fact, the renewal of permission has not been dealt at all by the Chief Vigilance Officer of the Medical Council of India. It has been signed by Dr.M.C.Kapilashrami, Consultant and Dr.Sita Naik, the then Member of the Board of Governors. He further submitted that the noting of Dr.Davinder Kumar, Joint Secretary dated 29.03.2011 on the file will reveal that the Assessment Report was in sealed cover on the said date also and Dr.Sita Naik, erstwhile Member of the Board of Governors directed that the said Report be placed before the Undergraduate Committee, and thereafter, on 3rd April, 2011, Dr.Sita Naik, one of the Member of the Board of Governors recommended for the grant of renewal of permission for the second batch. Immediately, thereafter two of the Assessors lodged complaint with the MCI about the coercion and threat made by the Chairman of the College at the time of inspection. The MCI immediately obtained legal opinion, and thereafter, the Board of Governors including the Chairman held a meeting and decided to reject the application of the college for renewal of permission. 12. In the course of argument, we directed the learned senior counsel for the Medical Council of India to produce before us the https://hcservices.ecourts.gov.in/hcservices/ noting files in order to substantiate his arguments. In compliance of the said direction he has produced the same before us and we perused the file and the notings made thereon. We also perused the notings contained in the documents procured by the College under the Right to Information Act. The relevant portions of the notings are extracted hereinbelow:- “It may be stated that section has received a sealed envelope from Col.S.Kapoor (Diary dated 17/03/2011) with regard to Assessment report of D.D.Medical College & Hospital, Tamil Nadu. The said envelope is submitted for consideration & directions, please. - sd- 21/3/11 The above Assessment report may be placed before Board of Governors for consideration & further direction in the matter, if agreed to please. - sd - 29/3/11 In view of the above, the sealed Assessment report may be placed before Board of Governors for consideration & further direction in the matter, if agreed to please. -sd- 29/3/11 In view of above, the sealed Assessment report is submitted for consideratio and evaluation, please. -sd- (Dr.Davinder Kumar) Joint Secretary Place before UG Committee - sd - Renewal of permission for admission of 2nd batch in 2011-12 may be granted. - sd- 3/4 OPINION The matter relating to the inspection of D.D.Medical College and D.D.Hospital for academic year 2011-12 has been placed for my opinion. Brief factual background required to be stated herein for giving the opinion on the issue arising out of the above said college is stated herein under: The Board of Governors deputed team of Assessors consisting of Col.S.Kapoor, Professor, Department of Surgery-Clinical, Command Hospital, (Coordinator), Dr.S.C.Mahapatra, Professor of Physiology, AIIMS, Dr.B.L.Sherwal, Professor of Microbiology, Lady Hardinge Medical College. Team of Assessors assessed the medical college on 15.03.2010 and 16.03.2011. The report was received under sealed envelope from Col.S.Kapoor on 17.03.2011. As per the report submitted by them, the Medical College met all https://hcservices.ecourts.gov.in/hcservices/ the requisite norms laid down in the Regulation of Medical Council. However, after submitting the report Dr.S.C.Mahapatra, Professor of Physiology and Dr.B.L.Sherwal, visited the office of MCI at Dwarka. They met the Board of Governors. In the meeting, they disclosed that the coercion has been applied on them and the report of inspection of the medical college has been submitted under coercion. It was also said by them that the Co-ordinator was lured by the Management an offer of appointment to the post of Dean of said college was made to him after his retirement next year. I was also called by the Board and in my presence and in the presence of Professor Kapilashrami who has been looking after the work of inspection of Medical Colleges, they narrated the whole incident as to how, Dr.T.D.Naidu thrashed one class-four employee of the college in front of them on the very first day. It was said by them that it was done deliberately to cause fear in them. They also stated that they were forced to speak by Dr.T.D.Naidu to large number of influential persons over phone. They also stated that Dr. T.D.Naidu of the Medical College openly 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 report in his presence. They also said that they have recorded the voice of the Dr.T.D.Naidu in cell phone which would prove that manner and mode of 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. I advised them to place the above said incidents in writing to Medical Council of India. They promised that they will do so and would bring the incident in writing next day. However, they did not come next day. An email was sent on 15.04.2011 by Dr.S.C.Mahapatra to one of the Board of Governor expressing fear for life. In email, it was stated that he will do so only when, the assurance is given to him about his safety and safety of his family members. It was also stated that he is ready to give some more evidence, if his personal and safety of his family members are assured. Dr.S.C.Mahapatra in his email dated 15.04.2011 also disclosed that after coming out of the MCI, Dr.Sherwal received calls regarding the meeting. Now, the issue which has been placed before me for my consideration is as to whether on the complaints of two Assessors which have been made orally and by e-mail, the Board of Governors in supersession of MCI can take appropriate action on them. In my opinion, it is a very serious violation of the authority of the Medical Council of India. The wrongful attempt has been made by the medical college. It must not be tolerated. It is fit case of rejection of report and denial of permission for renewal. The Medical College cannot be permitted to use force either directly or indirectly on the Assessors as they are eyes and ears of the MCI. The sanctity of the system is depended on objectivity and fairness in which Assessors are required https://hcservices.ecourts.gov.in/hcservices/ to assess the college. Thus, the attempt by the college authority to influence and obtain favourable report goes against the vey idea and principle that the college must not do anything which is contrary to law. I have no doubt in mind that the College authorities have acted illegally and it calls for strict action in the form of denial of permission for renewal for this year. There is no legal bar in acting on such complaints. Both the Assessors have made allegations orally. The complaint has come in the form of e-mail also. Thus, e- mail of one of the Assessor coupled with the allegations narrated orally by two Assessors are sufficient for taking action against the college. Moreover, it has also come to the notice that Dr.T.D.Naidu of the Medical College has written in favour of one of the official of the MCI also. Therefore, the nexus of Dr.T.D.Naidu with the MCI official cannot be completely ruled out. In my considered opinion, the complaint of the Assessors have to be taken seriously and the brazen and illegal attempt made by the College requires stern punishment and, therefore, it would be advisable to reject the application for renewal of permission. [AMIT KUMAR] Retained Advocate 12.05.2011. Chairman, Secy. For Comments -sd- 13.05.2011 The Legal Retainer in his opinion has referred to the nexus of the MCI official with Dr.T.D.Naidu. On examination of connected file, it is observed that Dr.T.D.Naidu, who is the Chairman of DD Medical College and DD Hospital, Chennai and, is also the Chairman of All India Medical Association, has, vide letters dated 10/11/2010, 27/11/2010 and 14/12/2010, has written to the Ministry of Health & Family Welfare, directing that Board of