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2013 DIGILAW 591 (CAL)

Ramesh Hari v. State of West Bengal

2013-08-16

SANJIB BANERJEE

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JUDGMENT 1. The high order that the petitioner seeks to have a show-cause notice quashed cannot be acceded to. 2. The notice has been issued by the Council of Homoeopathic Medicine, West Bengal on April 23, 2013, citing Rule 15 (7) of the relevant Rules and Section 24 (2) (b) of the West Bengal Homoeopathic System of Medicine Act, 1963. 3. The petitioner accepts that for a show cause notice to be successfully challenged, it has to be established that the notice has been issued without jurisdiction; or, that even if all the statements in the show cause notice are accepted to be correct, the noticee cannot be proceeded against. According to the petitioner, Section 24 (2) (b) pertains only to the “infamous conduct in professional capacity” of a practitioner registered under the said Act of 1963; and, the cancellation of a scheduled caste certificate previously issued in favour of a practitioner would not amount to any professional misconduct, far less any infamous conduct in professional capacity. 4. The petitioner says that by virtue of the petitioner’s surname, the petitioner is entitled to be regarded as a member of a scheduled caste as per the notification issued by the State government pertaining to scheduled castes and scheduled tribes. The petitioner asserts that the objection to the petitioner’s scheduled caste certificate was on extraneous considerations and the petitioner has challenged the cancellation of the certificate. The petitioner contends that in such circumstances, the enquiry proposed to be conducted by the Council by virtue of the show-cause notice should be arrested. 5. The notice of April 23, 2013, in its first paragraph, accuses the petitioner of submitting a fraudulent scheduled caste certificate and thereby getting a preference, via reservation, in the admission to the BHMS course. 6. The petitioner says that Section 20 of the said Act of 1963 mandates that the name of every qualified homoeopathic practitioner will be entered in the register. Section 21 defines qualification to be such as is recognised in the schedule to the Act. It is the petitioner’s contention that till such time that the certificate issued to the petitioner by the relevant academy is not annulled, the petitioner’s name has to continue on the register by virtue of Section 20 of the Act. The petitioner says that there will be a serious anomaly if the name of a qualified person is removed from the register. The petitioner says that there will be a serious anomaly if the name of a qualified person is removed from the register. 7. There does not appear to be any contradiction between Section 20 and Section 24 of the Act and the decision of the Council to issue a show-cause notice cannot be said to be in derogation of Section 20 of the Act. The entitlement or benefit under Section 20 of the Act is subject to the refusal to register or the power to remove the name from the register as recognised in Section 24 of the Act. It cannot be accepted that merely because a person is qualified and such person’s name is entitled to be included in the register, steps cannot be taken against the relevant person under Section 24 of the Act. 8. The present endeavour of the petitioner is premature. It would be presumptuous to prejudge the matters that may be taken into account by the Council in course of the enquiry where the petitioner will, doubtless, get due opportunity to be heard. It is open to the petitioner to raise the same principal contention as raised now: that the cancellation of the scheduled caste certificate would not amount to any professional misconduct within the meaning of Section 24 (2) (b) of the said Act. However, once the Council has regarded the matter as covered under Section 24 (2) (b) of the Act by virtue of the petitioner having attained his professional qualifications on the basis of what the Council perceives to be a fraudulent certificate, it cannot be said that there is no basis to the prima facie opinion of the council as evident from the show cause notice. No case of mala fides or lack of jurisdiction is made out. It is arguable as to whether the misconduct in obtaining the professional qualifications may be regarded as professional misconduct within the meaning of the relevant provision. If it is not an open and shut case, every benefit of doubt has to be given to the show-cause notice. 9. W.P. No.24529 (W) of 2013 is dismissed, but the petitioner is left free to urge whatever grounds may be available to the petitioner in response to the show cause notice. 10. There will be no order as to costs. 11. 9. W.P. No.24529 (W) of 2013 is dismissed, but the petitioner is left free to urge whatever grounds may be available to the petitioner in response to the show cause notice. 10. There will be no order as to costs. 11. Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.