DIRECTOR GENERAL OF INVESTIGATION And REGISTRATION vs MEDICAL COLLEGE OF ALTERNATIVE MEDICINES, CALCUTTA

THIS order shall dispose of an enquiry instituted under Sections 36A, 36B(c) and 36D of the Monopolies & Restrictive Trade Practices Act, 1969 (hereinafter referred to as Act) and Regulation 58 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1974 (Old) (hereinafter referred to as Regulation) against M/s. Medical College of Alternative Medicines, (hereinafter referred to as respondent). THIS enquiry is based on a statutory application made by the Director General of Investigation & Registration (hereinafter referred to as DG) under Section 36B(c) of the Act. Finding a prima facie case on the basis of the said application, the Commission vide its Order dated 9th May, 1988 directed the issuance of Notice of Enquiry. Pursuance to the aforesaid Order, the Notice of Enquiry dated 6.6.88 was issued to the respondent which, inter- alia, reads as under: "The above-mentioned applicant has submitted an application under Section 36B(c) of the MRTP Act against the respondent which has given it self a high-sounding name of "Medical College of Alternative Medicines" and claims to have been registered under Societies Registration Act, XXVI of 1961 of Government of West Bengal. Ostensibly it is engaged in providing educational facilities in the field of so-called alternative system of medicines. A copy of the application dated 2nd May, 88 is enclosed. The application states that the respondent released an advertisement in "The Times of India" dated 25th February, 88 inviting "non-registered doctors" to avail of its services. The following advertisement in- ter-alia was as under: 1. As per registered by-laws by the Government of West Bengal (Rule 12(a) of the Council) Registration Certificates (RMP) are being issued to all Physicians in the field of Alternative System of Treatment by registering their names on the basis of experience.

REGISTERED (RMP) Physicians will be empowered with the following: (i) To practice all over India in his own field. (ii) To issue Medical Sick Certificates as per Rules 13(a) and 13(b) of the Council. Registration (RMP) Certificates are being issued on priority basis. The DG alleges that the respondent is engaged in the illegal activities of issuing fake certificates under the title "Registration (RMP) Certificate" holding out the false promise that the certificate entitled them "to practice all over India in his own field." According to the Medical Council of India the respondent is a fake organisation and its action is illegal and unlawful. The false and misleading claims about the quality, standard, utility and uses of the certificates issued by the respondent thus prima-facie constitute unfair trade practices within the meaning of Section 36A (1) (ii), (iv) and (vi) of the MRTP Act. These activities are causing loss or injury not only to the "non-registered doctors" who would only get a fake certificate but also to patients who have the misfortune of being treated by such certificate holders."

The Commission on the application of the D.G. under Section 12A of the Act, vide Order dated 13th May, 1988 issued an ex-parte ad in-terim injunction restraining the respondent from indulging into the restrictive trade practices of making false and misleading claims about the quality and standard of its services, in media or any other publicity material as referred to in the order. The said ex-parte interim order was made absolute till the disposal of the enquiry after hearing the respondent vide Commission''s order dated 2.8.88.

The respondent filed the reply to the Notice of Enquiry in the shape of written statement only the respondent has, inter-alia, stated that the respondent is affiliated to the Council of Alternative Medicines, 378 Gangoli Bagan, East Road, Calcutta-700084 (hereinafter referred to as Council) to which no notice has been issued and as such the activities of the Council are not therefore within the purview of the present proceedings; that the Council is registered under the Societies Act, 1860 and is entitled to carry all its legitimate activities in accordance with the aims and objects; that an institution affiliated to the said Council the respondent College can legally carry on its activity in the filed of education and research in alternative medicines; that conferment of decree and diploma is a necessary concomitant of the activities of an institution in the field of education and research; that the conferment of decree / diploma in the field of alternative medicines by a society like the Council is not prohibited by or under any other law; that the Indian Medical Council has no jurisdiction to recognize or not to recognize the activity of the council and Indian Medical Council is only empowered to regulate education and conferment of decree and practice of Allopathic medicine referred to as modem scientific medicine in the Indian Medical Council Act; that just as Homeopathy and Ayurveda or Unani Systems of medicine were never within the jurisdiction of the Indian Medical Council, the institution imparting education in alternative medicine are not within its jurisdiction; that alternative medicine is now regarded as useful compliment to Allopathic Medicine and Surgery and the ancient and traditional systems prevalent in various countries as well as some newly developed systems are comprised in the alternative medicine; that there is nothing in law preventing education and research in alternative medicine; that the respondent college as qualified staff to teach various kinds of Alternative Medicine and literature in the field is available in its library; that there is nothing unfair in the advertisement put in by the respondent and as such there is no unfair trade practice to which the power of the MRTP are altercation: that Indian Medical Council was not entitled to call the respondent college ''fake'' institution and the college only promotes education and research in alternative medicine over the education and practice of which the Indian Medical Council has no jurisdiction; that the Indian Medical Council has only made the complaint because of professional jealously and in the protection of vested interest of all the practitioners of Allopathy; that the practice of alternative medicine is recognised in the advanced western countries and vast literature exists and is developing in the field of alternative medicine; that the respondent has challenged the proceedings before the Commission in the Calcutta High Court and the interim order of the High Court directs that no final order be passed; that recently the respondent college has detained affiliation by the International Council of Alternative Medicine, i.e. MEDICINA ALTERNATIVA.

The D.G. has filed rejoinder to the written statement submitted by the respondent and contradicted the statement of the respondent and reiterated the averments made in the Notice of Enquiry as well as in his application under Section 36B(c). Besides, the D.G. has also moved an application for discovery and production of documents on oath by the respondent. These documents are as follows: (i) Annual accounts and balance sheets of the respondent for the years 1986, 1987 & 1988. (ii) Advertisements released by the respondent for the price and other journals during 1986,1987 and 1988.

WITH regard to the first point the respondent has filed an affidavit stating that the documents cannot be produced or discovered because the record of the respondent have been taken by the police in connection with jadhavpur Police Station Case No. 26 dated 17.12.87 and no copy of seizure list was given to the respondent. WITH regard to the second document the respondent in para 9 of the Affidavit dated 27.7.90 stated as under: "As regards advertisements the respondent submits that the advertisement for 1988 is already before the Commission, and the present complaint is based on it. The advertisements for 1986 and 1987 have not been found in the office of the respondent despite diligent search and the deponent verily believes that they have been lost during the shifting of the office from Gangoli Bagan, Ashok Road, Calcutta, 84 to Mandevelle Garden in February, 1988 or otherwise."

It is seen that the Director General has moved an application for discovery of documents on 14th March, 1989 and the respondent has filed the aforesaid affidavit after taking a lot of adjournments and even the Commission has taken a note that the respondent is not coming forward with the affidavit and only on 6th August, 1990, i.e., after a lapse of about 15 months and that too without giving any particulars or documents as required for. After the pleadings were complete, the following issues were framed on 13th August, 1990: 1. Whether the respondent is or has been indulging in the unfair trade practice as stated in the application of the DG and Notice of Enquiry. 2. If reply to issue No. 1 is in affirmative, whether such practice is prejudicial to the interest of the consumer/or consumers generally. 3. Relief.

ON 8th April, 1991 when the matter was fixed for the evidence of the Director General on behalf of the D.G. a copy of letter of Under Secretary to the Government of India, Ministry of Health & Family Welfare addressed to the Secretary, Government of West Bengal, Health & Family Welfare Department was produced, which was collectively marked as Ex. Al. However, the respondent has admitted only one of the annexures of the said letter, i.e., copy of advertisement issued by the respondent in "The Times of India", New Delhi dated 25.2.88. With this Director General closed his evidence and the matter was fixed for the evidence of the respondent. The respondent in rebuttal filed an affidavit dated 3.5.91 of Dr. P.K. Viswas and three documents were annexed alongwith that affidavit as under: 1. Document of Calcutta High Court in the matter of No. 546 of 1988. 2. Certificate of Registration of the Council of Alternative System of Medicine alongwith certain Annexures. 3. A copy of letter from Permanent Representative of the United Nations Peace University to E.E.C.

The first 2 documents were taken on record and marked as Exs. R 1 and R 2. However, document 3 was not accepted and the respondent closed its evidence. Thereafter the arguments were heard and parties were given liberty to file their written synopsis and in fact parties have also filed their written synopsis.

BEFORE we may proceed to decide the issues it is relevant to mention here that the respondent has taken in its written statement an objection that the proceeding before this Commission has been challenged by the respondent in the Calcutta High Court and the interim order of the High Court directs that no final order be passed. We are quite upset while going through the record of the proceedings and even the written synopsis furnished by both the parties and there is no averment in this regard in the record before us. It was the duty of both the parties to inform the Commission in this regard as to what was the outcome of the proceedings filed before the Calcutta High Court with regard to the proceedings pending before us. The matter was enquired from the Counsel for the respondent, who has stated that the proceedings filed by them before the Calcutta High Court challenging the proceedings before the Commission has been dismissed and there is no stay in passing the final order by this Commission.

IN order to see whether the respondent has indulged in unfair trade practices, as alleged in the Notice of Enquiry, the only basis before us is an admitted document, which is advertisement published in " The Times of INdia", New Delhi Edition dated 25.2.88, the extract of which have been quoted in the Notice of Enquiry. However, for the true interpretation it is necessary to look into the whole advertisement which is as under: "REGISTRATION NOTICE OF NON-REGISTERED DOCTORS IN the field of Alternative System of Medicine. Council of Alternative System of Medicines (Regd. under the Act XXVI of 1961 of Government of West Bengal, applicable of INstruction and Promotion of Alternative Medical Science at the Several States of INdia.) As per registered by-laws by the Government of West Bengal (Rule 12(a) of the Council) Registration Certificate (R.M.P.) are being issued to all Physicians in the field of Alternative System of Treatment by register their names on the basis of Experience. Registered (R.M.P.) Physicians will be empowered with the following: 1. To practice all over INdia in his own field. 2. To issue Medical-Sick-Certificate (As per Rules 13(a) and 13(b) of the Council. Registration (R.M.P.) Certificates are being issued on priority basis. Application form and Prospectus available on all working days except Sundays and Government holidays from 10 a.m. to 5 p.m. on payment of Rs. 10/- or by post Rs. 12/-. THE MEDICAL COLLEGE OF ALTERNATIVE MEDICINES 2, Mandeville Gardens, Joy-Jayanti Building (Basement) Gariahat Road, Calcutta-700019 We have no branch."

The Medical Council of India has taken a note of this advertisement and forwarded the same through their letter dated 3.3.88 to the Secretary to the Government of India, Ministry of Health and Family Welfare (Deptt. of Health), Nirman Bhawan, New Delhi, who in turn vide letter dated 29th March, 1988 forwarded to the Secretary, Government of West Bengal, Health & Family Welfare Department, Calcutta with a copy of the D.G. and D.G. acted upon the same without any further investigation filed an application under Section 36B(c), which is a basis of the enquiry before the Commission. The Director General accepts the three documents, out of which the advertisement has been admitted by the respondent has not even made any efforts to produce any evidence independently. On the contrary, the respondent has produced before us on affidavit the documents Exs. R 1 and R 2. Ex. R 1 is a judgment of Calcutta High Court in a writ petition filed by the respondent against the State of West Bengal, more particularly for quashing the F.I.R. lodged against it and it is the case of the respondent also that the charges in the police case/ Notification of the West Bengal were similar to those in the present proceedings before the Commission. The respondent relied upon the following observations of the Calcutta High Court in the said judgment, which are reproduced as under: (Page 13 of Ex. R 1) "It may be mentioned that the Alternative System of Medicine is a system devoid of medicine made by chemicals. It is a system to get cure by controlling diet, sense, breathing. If any disease is cured by the practice of Yoga it cannot be said that such a system contravened any of the provisions of law, and it is an offence to get training in Yoga. Yoga is not a recognised system of treatment by the Legislature and/or the Parliament but is practiced and prorogated through TV by the Government."

(Para 14) "Provisions of laws referred to by the Assistant Secretary to the Government of West Bengal and the police authorities did not construe any offence of the petitioner confer any distinction or diploma. The degree / diploma is not recognized by the Government but that does not mean that the learning and research must come to an end unless permitted by the Government by law."

(Para 15) "When Hanniman invented the Homeopathy system of medicine nobody knew that all over the world the same should be accepted to be a good system of medicine and practically the poor people will be benefited. Even then very recently the Homeopathy system of medicine has been recognised by the Legislature but this system of medicine was there from time immemorial and there (were) colleges for imparting such education. The Homeopathic doctors could practice without the legislative recognition."

(Page 17) "The petitioner is the Society registered under the Societies Registration Act and it is carrying on its activities on the basis of the aims and objects of the said Association. The aims and objects are legal and cannot be said to be (against) public policy." "There is no bar for opening any school or college and imparting any education on any system. But the degrees and diplomas cannot be recognised unless there is a law recognizing the same but that does not mean that nobody can read and get himself trained in any system of education not recognised by law. The activities of the said Council cannot be illegal or wrongful activities. When the eminent doctors of the United Kingdom are supporting this system, it is very unfortunate that the State Government will be acting in this manner."

Ex. R 2 is a copy of Registration Certificate and By- Laws of Council of Alternative Medicines. During the course of argument, the respondent has submitted that the Medical Council of India has jurisdiction only in regard to the education and practice in Allopathic medicines and in this regard relied upon the definition of medicine given in Section 2(f) of the Indian Medical Council Act, 1956, which reads as under: "''Medicine'' means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery."

THE Counsel for the respondent also relied upon in this regard on the judgment of the Hon''ble Supreme Court in N.K. Sabhapathy v. State of Kerala, 1992 Suppl. (3) S.C. Cases 147 wherein it has been held as under: "THE High Court, in our opinion, has rightly held that the expression ''modern scientific medicine'' in Section 2(f) of the Central Act refers to the Allopathic system of medicine and the provisions of the Central Act have been made in relation to medical practitioners practising that system."

The respondent also relied upon the Medical Degree Act and the objects and reasons of which state as under: "That present Bill is intended to remove the public inconvenience and injury arising out of the present state-of-affairs. It prohibits all persons same certain specified authorities from issuing or alleging that they are entitled to issue any degree or diploma in western medicine and surgery." "The Bill does not affect the right of any person to exercise the profession of medicine or to practice as physician or surgeon, provided he does not pretend to possess qualifications which he has not got and its operation is rightly restricted to the western methods of Allopathic medicine and surgery. Homeopathic, Aayurvedic and Unani practitioners being excluded from the provisions of the Bill."

IT is the case of the respondent that just as Aayurvedic, Unani and Homeopathic practitioners were excluded from the operation of the Bill, the practitioner / teacher of Alternative Medicines are also excluded. However, we do not find any force in this argument and according to us unless it is specified it cannot be presumed otherwise. May be System of Alternative Medicine promoted by the respondent is of ancient wisdom, is relatively inexpensive and therefore within easy reach of all the people and have no side effects. Further this system may be practiced today all over the world and there may be a large number of institutions, which may regularly carry on research and development programme in the field of such system. However, we are not here to examine the merits and demerits of system of modern medicines on the one hand and system of alternative medicines on the other hand. We have to look at the advertisement and to examine whether there is any falsity in it or not, which can put loss or injury to the public. In the advertisement what is troubling us are two things namely, (i) who are the non-registered doctors, and (ii) from where the respondent has taken the words "R.M.P.". The respondent in its whole case nowhere has defined who are the non-registered doctors, particularly when there is an observation by this Commission while confirming the order of injunction of 2.8.88, which is reproduced as under: "Let us again have a look at the advertisement. The advertisement is vaguely described as "Registration Notice of Non Registered Doctors" in the field of Alternative Systems of Medicine. One is left guessing as to who are Non-Registered Doctors". If the Non-Registered Doctors are dropout or failure, in regard to the system of modern western medicine then this misleading notice is highly dangerous, and merely conforms the impression that the respondent college will turn out only quacks. The advertisement is silent as to which particular system or systems of Alternative Medicine it is specializing. The later parts of the advertisement is couched in words which leave the misleading impression that it has the approval of the Government of West Bengal for issue of what it calls Registration Certificates (R.M.P.)". These comments apply to the following portion of the advertisements:

"As per registered by-laws by the Government of West Bengal (under Rule 12-A of the Council) Registration Certificate (RMP) are being issued to all Physicians in the field of Alternative System of Treatment by registering their names on the basis of experience."

The aforementioned portion of the advertisement also gives the impression that it is not by teaching and training by the respondent college, but on the basis of experience, that certificates will be issued to all Physicians. Further we do not know the basis on which the respondent has made following statement in the impugned advertisement: "Registered (RMP) Physicians will be empowered with the following: 1. To practice all over India in his own field. 2. To issue Medical-Sick-Certificates (As per Rules 13(a) and 13(b) of the Council. Surely neither the Council of Alternative System of Medicine nor the respondent college have any power derived from any statute as to confer such right to "Non Registered Doctors" who would register their names with the respondent as to practice all over the country and to issue Sickness Certificates. The abbreviation "RMP" would leave an impression on the patients that they are under the hands of the Registered Medical Practitioner."

In view of the aforesaid discussion, we are of the firm view that the respondent by incorporating the words "Non-Registered Doctors" and "RMP" in the impugned advertisement has indulged in unfair trade practices within the meaning of Section 36A(1) of the Act. Since the respondent has failed to explain who are the non-registered doctors and what are their qualifications and how the word "RMP" has been inserted in the advertisement, we hold that the aforesaid act and deeds of the respondent are prejudicial to the public interest or to the interest of any consumer or consumers generally. We, therefore, direct the respondent not to repeat the words "Non-Registered Doctors and RMP" in future advertisements (since the respondent has already ceased in view of the injunction granted by the Commission) in terms of Section 36D(1)(a). In the facts and circumstances of the case, the parties are left to bear their own costs. Enquiry disposed of.