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
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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
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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/