AND M.P.NOS.1 AND 2 OF 2011 D.D. Medical College and D.D. HospitalNo.61 v. Secretary to Government of India Ministry of Health and Family Welfare (Department

For Respondent-2:Mr.V.P.Raman O R D E RThis writ petition has been filed by the petitioner seekingto quash the order dated 19.05.2011 of the second respondent and for aconsequential direction to the respondents to grant renewal ofpermission of the petitioner college for the second batch of MBBSCourse for the academic year 2011-12 and to grant "Letter ofPermission" for the additional intake of 250 students (includingoriginal intake) for the academic year 2011-12. 2.The facts leading to the filing of the present writpetition are as follows:(a)The Board of Governors, Medical Council of India issued aproceedings dated 12.07.2010 under Section 10(A) of the India MedicalCouncil Act, 1956, granting permission to the petitioner forestablishment of a new Medical College called D.D. Medical College andHospital, Chennai, with an annual intake of 150 students from theacademic year 2010-2011. The permission granted by the Medical Councilof India for establishment of new Medical College and admission ofstudents was for a period of one year, which is liable to be renewed onyearly basis. The renewal is based on the inspection to be conducted bythe Assessors, deputed by the Medical Council of India. (b)Pursuant to the permission granted by the Board ofGovernors to the petitioner for establishment of a new Medical College,the petitioner College commenced the Medical Course with 150 studentsfrom the academic year 2010-2011. The petitioner College has also beenissued with provisional affiliation by the Tamil Nadu Dr.M.G.R. MedicalUniversity as per the proceedings of the University dated 25.08.2010. (c)According to the petitioner, the petitioner hasestablished the Medical College and Hospital as a Multi, Super, HigherSpecialty, Private, Corporate Hospital designed for complete HealthCare and Education with most modern equipments and renownedprofessionals in multiple disciplines. It is the first time in thehistory of India and Asia in the Health Care that the petitionerHospital has 3500 bedded facilities with 141 Departments covering allmedical areas ranging from First Aid to Transplant Surgery, besidesResearch and Innovative Programmes. (d)The Medical Council of India, issued a letter dated14.03.2011 nominating the following 3 Members as Assessors forassessment of physical and other teaching facilities available in the https://hcservices.ecourts.gov.in/hcservices/ petitioner college for renewal of permission for the second batch ofMBBS Course for the academic year 2011-12(i)Col.S. Kapoor (Co-ordinator)Professor, Department of Surgery – Clinical Command Hospital, Lucknow.(ii)Dr.S.C. Mahapatra Professor of Physiology, PreAll India Institute of Medical Sciences Ansari Nagar, New Delhi. (iii)Dr.B.L.SherwalProfessor of Microbiology – ParaLady Hardinge Medical CollegeNew Delhi. (e)The aforesaid Assessors inspected the petitioner collegeon 15.03.2011 and 16.03.2011. According to the petitioner, the Chairmanof the petitioner college was not able to be present at the time ofinspection and the team of Assessors completed the inspection and foundthat the petitioner college fulfilled all the norms and requirementswith reference to teaching faculty as well as infrastructurefacilities. According to the petitioner, the team of Assessors preparedthe assessment report stating that the petitioner college fulfilled theMCI norms in all respects. (f)The petitioner college, while seeking renewal of yearlypermission for the academic year 2011-2012, also sought permission foran additional intake of 250 students (including the original intake) asthe petitioner has the required teaching faculties as well asinfrastructure facilities for additional intake also. (g)In these circumstances, the petitioner college received ashow cause notice on 10.05.2011 issued by the second respondent statingthat some of the Doctors produced before the Assessment team as FullTime Professors in the petitioner college are working in other medicalcolleges. The petitioner college submitted its reply on 16.05.2011denying the allegations by stating that the Doctors, referred to in theshow cause notice, are actually appointed and working only in thepetitioner college. The petitioner college also has furnished thedetails relating to the orders of appointment, joining reports as wellas relieving orders issued by the previous colleges, where they workedearlier. (h)While so, another show cause notice dated 18.05.2011 wasissued with regard to some other Doctors working in the petitioner https://hcservices.ecourts.gov.in/hcservices/ college and the same was received by the petitioner college on21.05.2011. The petitioner college also submitted their reply to thesaid show cause notice. (i)In the said circumstances, the second respondent issuedthe impugned proceedings dated 19.05.2011 refusing to renew permissionfor admission of second batch of MBBS students for the academic year2011-2012, on the ground that during the inspection conducted on15.02.2011 and 16.02.2011, the Assessors were forced and threatened bythe college authorities and two of the Assessors submitted theircomplaints regarding the coercion and threat meted out to them. Challenging the aforesaid order dated 19.05.2011 of thesecond respondent, the petitioner has filed the present writ petition. 3.According to the petitioner, the impugned order was passedin blatant violation of principles of natural justice. It is averred bythe petitioner in the affidavit that while issuing the show causenotices on 10.05.2011 and 18.05.2011, the second respondent, nowherementioned about the alleged threat and coercion on the Assessors, bythe college authorities, during the inspection conducted. It is furtheraverred that the impugned order was passed without application of mind,since the inspection took place only on 15.03.2011 and 16.03.2011 andnot on 15.02.2011 and 16.02.2011 as alleged in the impugned order. Itwas also impugned on the ground that the order is exfacie illegal andarbitrary. 4.The second respondent has filed a counter affidavit dated28.06.2011 refuting the allegations made by the petitioner. In reply tothe same, the petitioner has filed a reply affidavit dated 07.07.2011.The first respondent also has filed a counter affidavit dated14.07.2011. The second respondent has filed an additional affidavitdated 14.07.2011 and the petitioner has filed a further affidavit dated21.07.2011. In reply to the same, the second respondent has filedanother reply affidavit dated 25.07.2011. 5.In the counter affidavit dated 28.06.2011 filed by thesecond respondent, it is stated that the Medical Council of India, videits letter dated 20.10.2010 informed the petitioner college that theassessment of renewal of permission for admission of fresh batch ofstudents for the academic year 2011-2012 would be undertaken between1st November 2010 and 28th February 2011. But the Dean of the petitionercollege sent a letter dated 15.11.2010 requesting the second respondentto arrange inspection for assessment of faculty/facilities only in themonth of March 2011. Hence, the second respondent, vide its letterdated 14.03.2011 nominated three Professors referred to above asAssessors to assess the physical and other facilities available in the https://hcservices.ecourts.gov.in/hcservices/ petitioner college. The team of Assessors assessed the petitionercollege on 15.03.2011 and 16.03.2011 and the assessment report wasreceived under sealed envelope from the Co-ordinator namely Col.S.Kapoor on 17.03.2011. It is also averred that subsequent to theassessment report, two of the Assessors namely Dr.S.C.Mahapatra andDr.B.L.Sherwal came to the office of the Medical Council of India andnarrated to the Board of Governors, namely Prof. Ranjit Roy Choudharyand Dr.Sita Naik, to the Consultant, namely, Dr.M.C.Kapilashrami andto the legal retainer of Medical Council of India, namely Mr.AmitKumar about the details of coercion and threat meted out to them byMr.T.D.Naidu, Chairman of the petitioner college. Those Assessors alsostated that Mr.T.D.Naidu forced them to right their assessment reportin his presence and therefore, no confidentiality would be attached tothe report of the assessment. The Assessors also stated that theyrecorded the voice of Mr.T.D.Naidu in their cell phones and that wouldprove the manner and mode, in which coercion was applied on them. Theyfurther stated that they were not permitted to verify the number ofpatient in the hospital and teaching faculty on the first day ofinspection. It is also averred that those Assessors were advised to puta complaint in writing to the Medical Council of India for initiatingappropriate action against the petitioner college. 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 theMedical Council of India stating that after he met Members of the Boardof Governors, he was receiving phone calls regarding his meeting withthem. The said Assessor also suspected that somebody from MedicalCouncil of India had provided the information about his meeting. Thesaid Assessor also stated that he was willing to discuss more andprovide more evidences, provided he was assured of his personal safetyand that of his family. It is further averred that the Board ofGovernors, based on the available materials, decided not to grantpermission to the petitioner's college to admit second batch of MBBSstudents and the same was communicated to the petitioner collegethrough the impugned order. The second respondent also stated in thecounter affidavit that they received complaints from the parents of thestudents studying in the petitioner college and the same were forwardedto the second respondent by the Central Bureau of Investigation. It wasalso stated that large number of complaints were received in respect ofworking of the petitioner college. The second respondent furtheraverred that show cause notice was issued to the petitioner collegebased on the verification of declaration form submitted by thepetitioner college and opportunity of hearing was also given to them inrespect of faculty provided by them. 7.On the other hand, in the counter affidavit dated https://hcservices.ecourts.gov.in/hcservices/

14.07.2011 filed by the first respondent, it is stated that it is forthe second respondent to decide about the renewal of permission foradmission of second batch of students in MBBS Course for the petitionercollege. 8.Heard Mr.R.Thiagarajan, learned senior counsel appearing onbehalf of Mr.G.Sankaran, learned counsel for the petitioner;Mr.Velayudham Pitchaiya, learned counsel for the first respondent andMr.V.P.Raman, learned counsel for the second respondent. The petitioneras well as the second respondent also filed their written arguments. 9.The learned Senior Counsel for the petitioner submits thatthe impugned order was passed unilaterally, in violation of principlesof natural justice, without providing opportunity to the petitioner, asthe petitioner was not issued with any notice calling for explanation.It was further contended that the petitioner college was not furnishedwith any documents or complaints with reference to the impugned order.In this regard, the learned Senior Counsel for the petitioner relies onthe following judgments of the Honourable Supreme Court: (i)MANAGING DIRECTOR, ECIL, HYDERABAD AND OTHERS VS.B.KARUNAKAR AND OTHERS [1993 (4) SCC 727](ii)PRAKASH RATAN SINHA VS. STATE OF BIHAR AND OTHERS [2009(14) SCC 690](iii)INDU BHUSHAN VS. STATE OF JHARKHAND AND ANOTHER [2010(11) SCC 278]10.The learned Senior Counsel for the petitioner furthersubmits that the alleged e-mail dated 15.04.2011 of Prof.S.C.Mahapatracould not be taken as a complaint, as nothing was specifically statedagainst the petitioner college. The learned Senior Counsel furthersubmits that no such allegation of coercion and threat was made in theshow cause notices dated 10.05.2011 and 18.05.2011 relating to facultymembers and had it been true, those allegations could have found placein the said show cause notices. 11.The learned Senior Counsel for the petitioner submits thatthe impugned order could not be sustained, by adducing fresh reasons,by way of affidavit or otherwise, and the impugned order has to betested based on the reasoning given therein. In this regard, thelearned Senior Counsel relies on the following judgments of theHonourable Supreme Court:(i)MOHINDER SINGH GILL AND ANOTHER VS. THE CHIEF ELECTIONCOMMISSIONER, NEW DELHI AND OTHERS [1978 (1) SCC 405] https://hcservices.ecourts.gov.in/hcservices/ (ii)CHANDRA SINGH AND OTHERS VS. STATE OF RAJASTHAN ANDANOTHER [2003 (6) SCC 545]. 12.On the other hand, the learned counsel for the secondrespondent submits that the second respondent acted based on the oralcomplaint made by the two Assessors to the Board of Governors, legalretainer and to the consultant of Medical Council of India that duringinspection, there was coercion and threat from the Chairman of thepetitioner college and from others and that there was noconfidentiality in the preparation of the assessment report. Hence,there is no illegality in the action of the second respondent.13.The learned counsel for the second respondent also fairlyadmits that prior to passing of the impugned order dated 19.05.2011,the petitioner was not heard. But the learned counsel sought to sustainthe impugned order by stating that the show cause notices dated10.05.2011 and 18.05.2011, 31.05.2011 and 01.06.2011 were issuedrelating to fake faculty members and replies were received andtherefore, opportunity of hearing was given to the petitioner college.That is, the learned counsel for the second respondent sought tosustain the impugned order not on the grounds as stated in the impugnedorder, but on the ground that fake faculty members were produced by thepetitioner college at the time of inspection by the Assessors. Insupport of his contention, the learned counsel relies on Clause 8(3)(1)(d) of Establishment of Medical College Regulations, 1990, as amendedon 16.04.2010, which reads as follows:"8(3)(1)(d) Colleges which are found to have employedteachers with faked / forged documents:If it is observed that any institute is found tohave employed a teacher with faked / forged documentsand have submitted the Declaration Form of such ateacher, such an institute will not be considered forrenewal of permission / recognition for award ofM.B.B.S. Degree / processing the applications forpostgraduate courses for two Academic Years – i.e, thatAcademic Year and the next Academic Year also."However, the office of the Council shall ensurethat such inspections are not carried out at least 3days before upto 3 years after important religious andfestival holidays declared by the Central / StateGovt."14.The learned counsel for the second respondent relies on ajudgment of the Honourable Supreme Court in CHAIRMAN, ALL INDIA RAILWAY https://hcservices.ecourts.gov.in/hcservices/ RECRUITMENT BOARD AND ANOTHER VS. K.SHYAM KUMAR AND OTHERS reported in2010 (6) SCC 614, wherein the judgment of Mohinder Singh Gill's case(cited supra) has been considered and the Supreme Court upheld theimpugned order not on the reasoning adduced in the impugned order, buton other materials. 15.The learned counsel for the second respondent strenuouslycontended that the e-mail dated 15.04.2011 of Prof. S.C.Mahapatrarefers only to the petitioner college and thus, the petitioner is notcorrect in stating that there was no specific allegation against them.He explained that the Assessors viz., Prof.S.C.Mahapatra andDr.B.L.Sherwal did not jointly inspect other colleges except thepetitioner college and therefore, the e-mail was taken as a complaintagainst the petitioner college by the Assessors. He further explainedthat the e-mail followed the oral complaint and the e-mail should beread along with the oral complaint made to them directly by the Boardof Governors and others. 16.The learned counsel for the first respondent madesubmissions based on the counter affidavit filed by the firstrespondent. 17.I have considered the submissions made on either side andperused the materials available on record. 18.The second respondent passed the impugned order dated19.05.2011 refusing to renew permission for admission of second batchof MBBS students for the academic year 2011-2012 at the petitionercollege. Serious allegations were made in the impugned order that whenthe team of Assessors went for inspection, the Chairman of thepetitioner college threatened and coerced them to prefer the assessmentreport at his will. For the sake of this case, the impugned order isreproduced hereunder:"MEDICAL COUNCIL OF INDIANo.MCI-34(41)/2011-Med./111419 Date: 19/05/2011The Dean / PrincipalD.D.Medical College & HospitalNo.61, D.D. Nagar Bus Stop(Chennai to Tirupathi National Highways)Kunnavalam Post, Tiruvallur TK. & Dt.Chennai – 631 210.Ph.: 044-267677700-7799; Fax: 044-26162888E-mail: info@ddhospitals.org; ddhospitals@yahoo.com https://hcservices.ecourts.gov.in/hcservices/ Sub: D.D.Medical College & Hospital, Chennai–Renewal of permission for admission of 2nd batch ofMBBS students for the academic session 2011-2012.Sir,I am directed to inform you that the assessment ofthe physical and other teaching facilities availablefor renewal of permission for admission of 2nd batch ofMBBS students for the academic session 2011-2012 atD.D.Medical College & Hospital, Chennai was carriedout by the Council's Assessors on 15th & 16th February2011. The Board of Governors examined the assessmentreport and also examined the complaint submitted bytwo of the Assessors regarding coercion and threatgiven to the Assessors during the assessment of thecollege on the said dates. Two of the Assessors stated to the Board of theGovernors that they were not allowed to count thefaculty and patient present in the college on 15thFebruary 2011. Two of the Assessors also stated thatthey were forced to speak to influential people overphone. Two of the Assessors also stated that in orderto create fear in them, Dr.T.D.Naidu, Chairman of thecollege thrashed one class four employee in front ofthem. Two of the Assessors have also stated that theywere not allowed to maintain confidentiality of theassessment report and the report was written in thepresence of Dr.T.D.Naidu. Two of the Assessors alsosaid that they were openly threatened by Dr.T.D.Naidu,Chairman of the college. The said act of threateningand violating the law of the land have been viewedseriously and sanctity of the inspection processcannot be permitted to be violated with impunity. Thesystem of assessment is dependent upon co-operation ofthe colleges and use of force on Assessors directly orindirectly is required to be dealt seriously. Thus theassessment report has not sanctity in law and as thesame has been prepared under coercion and threat. The Board of Governors after having consideredcomplaints and other relevant materials decided not torenew the permission for admission of 2nd batch of MBBSstudents for the academic session 2011-12 at D.D.Medical College & Hospital, Chennai." https://hcservices.ecourts.gov.in/hcservices/

19.The petitioner has sought to assail the impugned order onthe ground that the same was passed without application of mind, as theimpugned order states as if the inspection took place on 15.02.2011 and16.02.2011, while no such inspection took place on those dates. But thesecond respondent explained that it was a mistake and the same wascorrected by way of a corrigendum dated 01.06.2011 and the saidcorrigendum is produced before this Court. 20.Though the petitioner states that the said corrigendum wasnot received by them, I am not inclined to agree with the submissionsmade by the learned Senior Counsel for the petitioner in this regardfor more than one reason. The corrigendum was sent to variousauthorities namely, the first respondent, the Tamil Nadu Dr.M.G.R.Medical University and the Government of Tamil Nadu. Furthermore, theletter dated 20.10.2010 of the second respondent informed thepetitioner college that the assessment of renewal of permission foradmission of fresh batch of students for the academic year 2011-2012will be undertaken between 1st November 2010 and 28th February 2011without any further information. But the petitioner sent a reply dated15.11.2010 requesting the second respondent to have inspection forassessment of faculty/facilities in the month of March 2011 and morepreferably in the second week of March 2011. Hence, the dates ofinspection mentioned in the impugned order as 15.02.2011 and 16.02.2011is only a mistake. Hence, the submission made by the learned SeniorCounsel in this regard is rejected.21.As rightly contended by the learned counsel for the secondrespondent, the allegations are very serious in nature warranting notonly refusal to renew permission for admission of fresh batch ofstudents, but also criminal action against the petitioner college. Inthis regard, paras 17 to 21 of the counter affidavit filed by thesecond respondent are extracted hereunder:"17.That it is respectfully submitted that two ofthe Assessors namely Dr.S.C.Mahapatra, Professor ofPhysiology, All India Institute of Medical Sciences,New Delhi and Dr.B.L.Sherwal, Professor ofMicrobiology, Lady Harding Medical College, New Delhicame to the office of Medical Council of India andnarrated details of coercion applied by T.D.Naidu,Chairman of D.D.Medical College and Hospital to theBoard of Governors, legal retainer of Medical Councilof India and concerned official of Medical Council ofIndia. The above said Assessors said that Dr.T.D.Naiduthreatened them. It was stated by them that noconfidentiality to the report of the assessment isattached as Dr.T.D. Naidu forced them to write the https://hcservices.ecourts.gov.in/hcservices/ report in his presence. They also said that they haverecorded the voice of Dr.T.D.Naidu in cell phone whichwould prove that manner and mode in which coercion wasapplied on them. It was also said by them that theywere not permitted to check the number of patient inhospital and teaching faculty on the first day ofinspection. 18.That it is submitted that it was advised tothem to put the complaint in writing to Medical Councilof India for initiating appropriate action against thecollege. 19.That it is submitted that on 15.04.2011, one ofthe assessor namely Professor S.C.Mohapatra sent one e-mail to one of the member of the Board of Governorsstating that he after meeting two of the members of theBoard of Governors of Medical Council of India gettingphone calls regarding their meeting with Board ofGovernors. The above assessor also suspected thatsomebody from Medical Council of India had provided theinformation. The above assessor also said that he iswilling to discuss more and provide more evidencesprovided he is assured about safety of him and hisfamily. 20.That it is submitted that the Board referredthe matter for opinion of legal retainer and legalretainer in his opinion clearly stated that use offorce in any form does not angur well for the system.It was also advised that sanctity of the system isdependent on objectivity and fairness of Assessors andthe same is dependent upon free and fair assessmentuninfluenced by any external factors like threat,coercion or any form of influence.21.That is is submitted that based on theavailable material the Board of Governors decided notto grant permission to the college to admit secondbatch of MBBS students. The decision of Board ofGovernors was communicated vide letter dated19.05.2011. It is also relevant to state here thatinadvertently in the said letter date of inspection ofthe college was mentioned as 15.02.2011. A corrigendumwas issued on 1.6.2011 rectifying the date mentioned inthe order dated 19.05.2011." https://hcservices.ecourts.gov.in/hcservices/

22.But in the affidavit filed by the petitioner in support ofthe writ petition it is stated that the Chairman of the petitionercollege was not available on the dates of inspection. Furthermore, whenthe second respondent decided to act on the oral complaint and also onthe e-mail, before passing the impugned order, they ought to have heardthe petitioner, since the impugned order resulted in serious civilconsequences and also cast stigma on the petitioner. 23.Therefore, I am of the considered view that the learnedSenior Counsel for the petitioner is correct in his submission that theimpugned order was passed in blatant violation of principles of naturaljustice, since the petitioner was not heard before passing the impugnedorder and neither the document nor the complaint was given to thepetitioner. The judgments referred to above, relied on by the learnedSenior Counsel for the petitioner apply to the facts of the case thatconcerned person should be heard before passing adverse order againsthim. The relevant passages from those judgments are extractedhereunder:(i)MANAGING DIRECTOR, ECIL, HYDERABAD AND OTHERS VS. B.KARUNAKAR AND OTHERS [1993 (4) SCC 727]"26. The reason why the right to receive thereport of the enquiry officer is considered anessential part of the reasonable opportunity at thefirst stage and also a principle of natural justice isthat the findings recorded by the enquiry officer forman important material before the disciplinary authoritywhich along with the evidence is taken intoconsideration by it to come to its conclusions. It isdifficult to say in advance, to what extent the saidfindings including the punishment, if any, recommendedin the report would influence the disciplinaryauthority while drawing its conclusions. The findingsfurther might have been recorded without consideringthe relevant evidence on record, or by misconstruing itor unsupported by it. If such a finding is to be one ofthe documents to be considered by the disciplinaryauthority, the principles of natural justice requirethat the employee should have a fair opportunity tomeet, explain and controvert it before he is condemned.It is negation of the tenets of justice and a denial offair opportunity to the employee to consider thefindings recorded by a third party like the enquiryofficer without giving the employee an opportunity toreply to it. Although it is true that the disciplinaryauthority is supposed to arrive at its own findings on https://hcservices.ecourts.gov.in/hcservices/ the basis of the evidence recorded in the inquiry, itis also equally true that the disciplinary authoritytakes into consideration the findings recorded by theenquiry officer along with the evidence on record. Inthe circumstances, the findings of the enquiry officerdo constitute an important material before thedisciplinary authority which is likely to influence itsconclusions. If the enquiry officer were only to recordthe evidence and forward the same to the disciplinaryauthority, that would not constitute any additionalmaterial before the disciplinary authority of which thedelinquent employee has no knowledge. However, when theenquiry officer goes further and records his findings,as stated above, which may or may not be based on theevidence on record or are contrary to the same or inignorance of it, such findings are an additionalmaterial unknown to the employee but are taken intoconsideration by the disciplinary authority whilearriving at its conclusions. Both the dictates of thereasonable opportunity as well as the principles ofnatural justice, therefore, require that before thedisciplinary authority comes to its own conclusions,the delinquent employee should have an opportunity toreply to the enquiry officer's findings. Thedisciplinary authority is then required to consider theevidence, the report of the enquiry officer and therepresentation of the employee against it.28. The position in law can also be looked at froma slightly different angle. Article 311(2) says thatthe employee shall be given a “reasonable opportunityof being heard in respect of the charges against him”.The findings on the charges given by a third personlike the enquiry officer, particularly when they arenot borne out by the evidence or are arrived at byoverlooking the evidence or misconstruing it, couldthemselves constitute new unwarranted imputations. Whatis further, when the proviso to the said Article statesthat “where it is proposed after such inquiry, toimpose upon him any such penalty, such penalty may beimposed on the basis of the evidence adduced duringsuch inquiry and it shall not be necessary to give suchperson any opportunity of making representation on thepenalty proposed”, it in effect accepts two successivestages of differing scope. Since the penalty is to beproposed after the inquiry, which inquiry in effect isto be carried out by the disciplinary authority (the https://hcservices.ecourts.gov.in/hcservices/ enquiry officer being only his delegate appointed tohold the inquiry and to assist him), the employee'sreply to the enquiry officer's report and considerationof such reply by the disciplinary authority alsoconstitute an integral part of such inquiry. The secondstage follows the inquiry so carried out and itconsists of the issuance of the notice to show causeagainst the proposed penalty and of considering thereply to the notice and deciding upon the penalty. Whatis dispensed with is the opportunity of makingrepresentation on the penalty proposed and not ofopportunity of making representation on the report ofthe enquiry officer. The latter right was always there.But before the Forty-second Amendment of theConstitution, the point of time at which it was to beexercised had stood deferred till the second stageviz., the stage of considering the penalty. Till thattime, the conclusions that the disciplinary authoritymight have arrived at both with regard to the guilt ofthe employee and the penalty to be imposed were onlytentative. All that has happened after the Forty-secondAmendment of the Constitution is to advance the pointof time at which the representation of the employeeagainst the enquiry officer's report would beconsidered. Now, the disciplinary authority has toconsider the representation of the employee against thereport before it arrives at its conclusion with regardto his guilt or innocence of the charges.29. Hence it has to be held that when the enquiryofficer is not the disciplinary authority, thedelinquent employee has a right to receive a copy ofthe enquiry officer's report before the disciplinaryauthority arrives at its conclusions with regard to theguilt or innocence of the employee with regard to thecharges levelled against him. That right is a part ofthe employee's right to defend himself against thecharges levelled against him. A denial of the enquiryofficer's report before the disciplinary authoritytakes its decision on the charges, is a denial ofreasonable opportunity to the employee to prove hisinnocence and is a breach of the principles of naturaljustice.61. It is now settled law that the proceedingsmust be just, fair and reasonable and negation thereofoffends Articles 14 and 21. It is well-settled law that https://hcservices.ecourts.gov.in/hcservices/ the principles of natural justice are integral part ofArticle 14. No decision prejudicial to a party shouldbe taken without affording an opportunity or supplyingthe material which is the basis for the decision. Theenquiry report constitutes fresh material which hasgreat persuasive force or effect on the mind of thedisciplinary authority. The supply of the report alongwith the final order is like a post-mortem certificatewith putrefying odour. The failure to supply copythereof to the delinquent would be unfair procedureoffending not only Articles 14, 21 and 311(2) of theConstitution, but also, the principles of naturaljustice. The contention on behalf of theGovernment/management that the report is not evidenceadduced during such inquiry envisaged under proviso toArticle 311(2) is also devoid of substance. It issettled law that the Evidence Act has no application tothe inquiry conducted during the disciplinaryproceedings. The evidence adduced is not in strictconformity with the Indian Evidence Act, though theessential principles of fair play envisaged in theEvidence Act are applicable. What was meant by‘evidence’ in the proviso to Article 311(2) is thetotality of the material collected during the inquiryincluding the report of the enquiry officer formingpart of that material. Therefore, when reliance issought to be placed by the disciplinary authority, onthe report of the enquiry officer for proof of thecharge or for imposition of the penalty, then it isincumbent that the copy thereof should be suppliedbefore reaching any conclusion either on proof of thecharge or the nature of the penalty to be imposed onthe proved charge or on both."(iii)PRAKASH RATAN SINHA VS. STATE OF BIHAR AND OTHERS [2009(14) SCC 690]"13. The law in this regard has been settled byseveral decisions of this Court. The principle thatemerge from the decisions of this Court is that, ifthere is a power to decide and decide detrimentally tothe prejudice of a person, duty to act judicially isimplicit in exercise of such a power and that the ruleof natural justice operates in areas not covered by anylaw validly made.14. Corollary principles emanating from thesecases are as to what particular rule of natural justice https://hcservices.ecourts.gov.in/hcservices/ should apply to a given case must depend to an extenton the facts and circumstances of that case and that itis only where there is nothing in the statute toactually prohibit the giving of an opportunity of beingheard and on the other hand, the nature of thestatutory duty imposed on the decision maker itselfimplies an obligation to hear before deciding. Thesecases have also observed, whenever an action of publicbody results in civil consequences for the personagainst whom the action is directed, the duty to actfairly can be presumed and in such a case, theadministrative authority must give a proper opportunityof hearing to the affected person." (Emphasis supplied)(iv)INDU BHUSHAN DWIVEDI VS. STATE OF JHARKHAND AND ANOTHER[2010 (11) SCC 278]"21. This Court approved the view taken by theHigh Court and observed: (Manche Gowda case, AIR pp.509-10, para 7)“7. Under Article 311(2) of theConstitution, as interpreted by this Court,a government servant must have a reasonableopportunity not only to prove that he isnot guilty of the charges levelled againsthim, but also to establish that thepunishment proposed to be imposed is eithernot called for or excessive. The saidopportunity is to be a reasonableopportunity and, therefore, it is necessarythat the government servant must be told ofthe grounds on which it is proposed to takesuch action: see the decision of this Courtin State of Assam v. Bimal Kumar Pandit. Ifthe grounds are not given in the notice, itwould be well nigh impossible for him topredicate what is operating on the mind ofthe authority concerned in proposing aparticular punishment: he would not be in aposition to explain why he does not deserveany punishment at all or that thepunishment proposed is excessive. If theproposed punishment was mainly based uponthe previous record of a government servantand that was not disclosed in the notice,it would mean that the main reason for theproposed punishment was withheld from the https://hcservices.ecourts.gov.in/hcservices/ knowledge of the government servant. Itwould be no answer to suggest that everygovernment servant must have had knowledgeof the fact that his past record wouldnecessarily be taken into consideration bythe Government in inflicting punishment onhim; nor would it be an adequate answer tosay that he knew as a matter of fact thatthe earlier punishments were imposed on himor that he knew of his past record. Thiscontention misses the real point, namely,that what the government servant isentitled to is not the knowledge of certainfacts but the fact that those facts will betaken into consideration by the Governmentin inflicting punishment on him. It is notpossible for him to know what period of hispast record or what acts or omissions ofhis in a particular period would beconsidered. If that fact was brought to hisnotice, he might explain that he had noknowledge of the remarks of his superiorofficers, that he had adequate explanationto offer for the alleged remarks or thathis conduct subsequent to the remarks hadbeen exemplary or at any rate approved bythe superior officers. Even if theauthority concerned took into considerationonly the facts for which he was punished,it would be open to him to put forwardbefore the said authority many mitigatingcircumstances or some other explanation whythose punishments were given to him or thatsubsequent to the punishments he had servedto the satisfaction of the authoritiesconcerned till the time of the presentenquiry. He may have many otherexplanations. The point is not whether hisexplanation would be acceptable, butwhether he has been given an opportunity togive his explanation. We cannot accept thedoctrine of ‘presumptive knowledge’ or thatof ‘purposeless enquiry’, as theiracceptance will be subversive of theprinciple of ‘reasonable opportunity’. We,therefore, hold that it is incumbent uponthe authority to give the government https://hcservices.ecourts.gov.in/hcservices/ servant at the second stage reasonableopportunity to show cause against theproposed punishment and if the proposedpunishment is also based on his previouspunishments or his previous bad record,this should be included in the secondnotice so that he may be able to give anexplanation.”(emphasis supplied)The proposition laid down in the abovenoted judgmentrepresents one of the basic canons of justice that noone can be condemned unheard and no order prejudiciallyaffecting any person can be passed by a publicauthority without affording him reasonable opportunityto defend himself or represent his cause.22. As a general rule, an authority entrusted withthe task of deciding lis between the parties orempowered to make an order which prejudicially affectsthe rights of any individual or visits him with civilconsequences is duty-bound to act in consonance withthe basic rules of natural justice including the onethat material sought to be used against the personconcerned must be disclosed to him and he should begiven an opportunity to explain his position. Thisunwritten right of hearing is fundamental to a justdecision, which forms an integral part of the conceptof rule of law. This right has its roots in the notionof fair procedure. It draws the attention of theauthority concerned to the imperative necessity of notoverlooking the cause which may be shown by the otherside before coming to its decision.23. When it comes to taking of disciplinary actionagainst a delinquent employee, the employer is not onlyrequired to make the employee aware of the specificimputations of misconduct but also to disclose thematerial sought to be used against him and give him areasonable opportunity of explaining his position ordefending himself. If the employer uses some materialadverse to the employee about which the latter is notgiven notice, the final decision gets vitiated on theground of the violation of the rule of audi alterampartem. Even if there are no statutory rules whichregulate holding of disciplinary enquiry against a https://hcservices.ecourts.gov.in/hcservices/ delinquent employee, the employer is duty-bound to actin consonance with the rules of natural justice—U.P.Warehousing Corpn. v. Vijay Narayan Vajpayee."24.In view of my conclusion that the impugned order waspassed in violation of principles of natural justice, the same isliable to be set aside. 25.Since I have come to the said conclusion, I have not goneinto the other disputed issues, particularly with reference to the e-mail. According to the petitioner, the e-mail dated 15.04.2011 sent byDr.S.C.Mahapatra to one of the Board of Governors does not contain anyspecific complaint against the petitioner. On the other hand, accordingto the second respondent, the college that is referred to in the e-mailis the petitioner college as Dr.S.C.Mahapatra went for inspection alongwith 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 allegationsreferred to above and the second respondent could consider the same anddecide the issue. 26.I am not inclined to agree with the submissions made bythe learned counsel for the second respondent that the petitioner wasgiven 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, theimpugned order could be sustained, since two notices were issuedsubsequent to the impugned order dated 19.05.2011. Furthermore, it isadmitted by the second respondent in their letter dated 15.06.2011addressed to the first respondent that replies to the show causenotices received from the faculty and the college were underconsideration. In the written arguments also, the second respondentstated that the show cause notices relating to fake faculty members isstill under consideration of the second respondent. If the secondrespondent stated in their letter dated 15.06.2011 that no decision wasarrived at based on the show cause notices, referred to above, thesecond respondent could not now advance arguments before this Courtthat the impugned order could be sustained based on the show causenotices and the replies received thereon. Further, the petitioneralleged that the statements obtained from the concerned Doctors and theColleges wherein they are said to have been employed, are not furnishedto the petitioner. In the said circumstances, the show cause noticesdid not reach its finality. The judgments relied on by the learnedSenior Counsel for the petitioner in Mohinder Singh Gill's case (citedsupra) and Chandra Singh's case (cited supra) applies to the facts ofthis case, that the impugned order could not be sustained by adducingfresh evidence and the judgment in Chairman, All India RailwayRecruitment Board and Another Vs. K.Shyam Kumar and others reported in https://hcservices.ecourts.gov.in/hcservices/ 2010 (6) SCC 614 relied on by the learned counsel for the secondrespondent is not applicable to the facts of this case.27.This Court could not be converted to exercise thefunctions of the second respondent relating to the decision on the showcause notices and also on other complaints. It is for the secondrespondent to take appropriate decision on the show cause notices andother allegations.28.In these circumstance, the impugned order is quashed.While quashing the impugned order, I am not inclined to issuedirections to the respondents, which the petitioner has sought for.Since I have set aside the impugned order on the ground that the samewas passed in violation of principles of natural justice, the matter isremanded back to the second respondent to consider and pass ordersafresh, after affording opportunity to the petitioner. The secondrespondent is directed to hear the petitioner on the allegationsrelating to the inspection conducted on 15.03.2011 and 16.03.2011 andalso on the fake faculty and also on other allegations, within a periodof eight weeks from the date of receipt of a copy of this order. 29.The writ petition is disposed of in the above terms. Nocosts. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarTKTo1.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. +1cc to Mr.G.Sankaran, Advocate Sr 48901RJ(CO)km/9.8.W.P.NO.13052 OF 2011