High Court Kerala High Court

Dr.D.N.Ramachandra vs Indian Medical Association on 18 February, 2010

Kerala High Court
Dr.D.N.Ramachandra vs Indian Medical Association on 18 February, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 100 of 2010()


1. DR.D.N.RAMACHANDRA, AGED 78 YEARS,
                      ...  Petitioner

                        Vs



1. INDIAN MEDICAL ASSOCIATION, LOCAL BRANCH
                       ...       Respondent

2. DR.K.P.RAMAN,PRESIDENT OF I.M.A.,

3. DR.REJI JOSE,SECRETARY OF I.M.A.,

4. DR.K.M.EMMANUEL,PAST PRESIDENT OF I.M.A,

                For Petitioner  :SRI.M.R.VENUGOPAL

                For Respondent  :SRI.T.J.MICHAEL

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :18/02/2010

 O R D E R
                        THOMAS P JOSEPH, J.

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                        R.S.A.No.100 of 2010

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               Dated this 18th day of February, 2010

                               JUDGMENT

Respondents are served but there is no response.

Appellant is a medical practitioner and had been a member of

the Indian Medical Association, Thodupuzha branch (respondent No.1).

Respondent Nos.2 and 3 are the President and Secretary respectively,

of respondent No.1. Respondent Nos. 4 and 5 are its former office

bearers. According to the appellant, he had renewed his membership

with respondent No.1 till 31-09-2002 and for renewal of membership

for the subsequent year (2002-2003) he issued a cheque for Rs.750/-

in favour of respondent No.1 on 04-04-2002. Respondent No.5, the

then office bearer of respondent No.1 returned the cheque with a

covering letter dated 07-05-2002 stating that renewal of membership

can be done only after getting direction from the President of State

Committee of respondent No.1. According to the appellant, the State

President had asked respondent No.1 to receive membership fee from

appellant vide letter dated 09-05-2002. Again respondent No.5

returned the cheque with a covering letter dated 18-06-2002 stating

that appellant sought re-admission. Appellant informed respondent

No.5 that it was not re-admission as his membership was not

terminated till then. As per letter dated 02-04-2003 respondent No.5

R.S.A.No.100 of 2010 2

informed appellant that he does not continue as a member and hence

his request for renewal of membership cannot be entertained. On 06-

06-2005 appellant tendered renewal fee for 2002-2003 to 2005-2006.

That also was not accepted by the respondents. Hence the suit

seeking a declaration that appellant is a member of respondent No.1

and for a mandatory injunction directing respondent No.1 to receive

the fee and renew membership for 2002-2003 onwards. Respondent

Nos.1 to 3 contended that membership of respondent No.1 is year

wise. Membership has to be renewed annually on payment of annual

renewal fee sufficiently early so that amount reached the head office

at Delhi atleast by March 31st of every year. It is not true that

appellant renewed membership till 30-01-2006. As per the amended

bye-law of respondent No.1 the IMA year commenced from 01-04-2002

and ended on 31-03-2003. It is incorrect to say that appellant had

given cheque on 04-04-2002. At any rate payment was belated as it

was after 31-03-2002. It is also the contention of respondent Nos.1 to

3 that appellant, his wife and another person were convicted for

offence punishable under section 314 r/w section 34 of the Penal Code

for causing the death of a woman by miscarriage and appellant was

sentenced to undergo simple imprisonment for seven years and

payment of fine of Rs.10,000/-. In appeal conviction of the appellant

was confirmed though sentence was modified (I am told by learned

R.S.A.No.100 of 2010 3

counsel that wife of the appellant was acquitted by the appellate

court). Though appellant has filed a revision petition in this court, only

his sentence was suspended but the conviction remains alive. Hence

also membership of appellant could not be renewed in accordance with

the provisions of the bye-law of respondent No.1. Courts below took

the view that since appellant convicted for an offence involving moral

turpitude no declaration or injunction could be granted and accordingly

appellant was non suited. Hence the second appeal urging by way of

substantial question of law whether it was proper to dismiss the suit on

the ground of rigour under Rule 20(b) of Part III of Bye-law of

respondent No.1 without reaching a finding that plaintiff has been

convicted for an offence involving moral turpitude?. It is contended by

learned counsel for appellant placing reliance on the decisions in Joy

Vs. State of Kerala (1991(1) KLT 153) and Saseendran Nair Vs.

General Manager (1996(2) KLT 482) that question whether an

offence involved moral turpitude has to be considered on the facts and

circumstance of the case involved and that mere fact that appellant is

convicted for offence punishable under section 314 of the Penal Code

does not ipso facto mean that it involved moral turpitude. According to

the learned counsel, respondent Nos.1 to 3 had not applied its mind to

the relevant rule and the requirement of law before holding that the

offence for which appellant stands convicted involved moral turpitude.

R.S.A.No.100 of 2010 4

3. Rule 20 of the rules and bye-laws of respondent No.1 deals

with removal of name of a member by termination. As per sub clause

(b) such termination can be by removal on the ground of conviction in

a court of justice ipso facto and sub clause (i) states “upon sentence

after conviction in a court of justice for any crime entailing moral

turpitude”. It is not disputed before me that appellant stands

convicted for offence punishable under section 314 r/w section 34 of

the Penal Code, his conviction was sustained by the first appellate

court though sentence was modified and this court while entertaining

the revision petition filed by appellant has suspended sentence.

2. In Joy Vs. State of Kerala (supra) this court was

considering effect of expression “moral delinquency” used in Co-

operative Societies Rules, 1969 (Kerala) and it was held that,

“a conviction by criminal court is not sufficient to

invite consequence of rendering a member disqualified

unless he has been sentenced for an offence involving

“moral delinquency”. It was also observed that it cannot

be said that the rule making authority would have intended

that the expression ‘moral delinquency’ should be treated

differently from ‘moral turpitude’ since both expressions

carry the same meaning”.

That was a case where petitioners were convicted and sentenced for

offences punishable under section 7 and 8 of the Gaming Act,

R.S.A.No.100 of 2010 5

petitioners pleaded guilty and they were convicted and sentenced to

payment of fine. This court after referring to the decision in

Balashwar Singh vs. District Magistrate (AIR 1959 Allahabad

71) observed that moral turpitude means anything done contrary to

justice, honesty, modesty or good morals. The test laid down by

learned Judge was quoted:

“If the individual who is charged with certain

conduct, owes a duty, either to another individual or to the

society in general, to act in a specific manner or not to so

act and he still acts contrary to it and does so knowingly,

his conduct must be held to be due to vileness and

depravity”.

After referring to the above decisions, this court considered whether

the offence punishable under sections 7 and 8 of Gaming Act ipso facto

involved moral turpitude. It was held,

“the court cannot overlook the fact that game of

cards, in different forms, is played in clubs or other public

places of amusement without performing the thin

membrane which distinguishes it from being an offence.

Here the charge is that the game of cards was played with

money in the residence of the 1st petitioner and since the

game was not one for mere skill the players were charge

sheeted. If the game played involved more skill than

R.S.A.No.100 of 2010 6

chance the game would not have crossed into prohibited

region. The very idea of prohibiting such games in

common gaming houses is to prevent perpetration of

serious crimes. So the measure is more in the nature of

preventive step. The game of cards, even if played with

money and in whatever form, does not normally involve

and transgression of code of justice or morality to a degree

which could be characterised as wickedness of character.

On the facts of this case one cannot take the view that the

offences for which the petitioners were convicted involved

moral delinquency or moral turpitude.”

In Saseendran Nair Vs. General Manager the Division Bench was

considering whether the offence under section 138 of the Negotiable

Instruments Act involved moral turpitude. It was held that normally

that offence would not involve moral turpitude.

3. These decisions cannot be applied to any and every

offences. The question whether offence in question involved moral

turpitude has to be with reference to the nature of the offence. In this

case, it has come in evidence that appellant is not a gynecologist.

Nor had he a license to perform NTP. Ext.B5 is the copy of judgment in

SC.No.121 of 1999 of the court of learned District Sessions Judge,

Thodupuzha whereunder appellants and others were convicted and

sentenced for the offence stated supra. The courts below have

R.S.A.No.100 of 2010 7

referred to Ext.B5 and found circumstance in which the offence was

allegedly committed by the appellant. Courts below have also stated

that in the nature of the offences committed by the appellant it

involved moral turpitude. Therefore courts below are justified in

refusing to grant relief to the appellant in view of Rule 20(b) of part III

of the Rules and Bye-laws of respondent No.1. I must also bear in mind

that the matter involved internal administration of an Association

where the civil court cannot interfere unless there is violation of the

provisions of the relevant law or rules as the case may be or,

infringement of fundamental principles of natural justice. Having gone

through judgment under challenge and hearing learned counsel, I am

persuaded to think that no substantial question of law is involved in the

second appeal requiring decision.

4. Learned counsel for appellant submitted that

membership/renewal was denied to the appellant only for the reason of

his conviction for the offence. Learned counsel submits that there is a

fair chance of revision petition being allowed by this court and the

appellant being acquitted of the charge against him and in that event

his right to move respondent No.1 for membership/renewal may be

protected. Learned District Judge has made an observation in that

matter in para 8 of the judgment. I make it clear that in case

conviction of appellant is set aside, it will be open to him to approach

R.S.A.No.100 of 2010 8

respondent No.1 with a request for membership/renewal as the case

may be in which case, such request shall be considered by respondent

No.1 in accordance with the bye-laws/rules regulating the matter.

With the above observations the second appeal is dismissed in

limine.

THOMAS P JOSEPH,
JUDGE

Sbna/