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Judgment
K. Kannan, J.—All the three petitioners are medical practitioners against whom order of suspension of practice has been issued by the 3rd respondent, namely, the Punjab Medical Council on 15.10.2014, referring to the petitioners having been guilty of unethical practice. The impugned order refers to a notice having been issued on 5.8.2014 seeking for response from the petitioners why action shall not be taken for the unethical practice of issuing advertisement for the hospital, namely, Dr. Rama Sofat Hospital in electronic media. The order reads that the petitioners 1 to 3 in their letters have admitted to the act and apologized for the same. The order further recites that even after the response, the advertisement was being carried out in a clever way by an employee of the hospital giving a talk in a television show. The illusion is in the manner in which the advertisement has come about by a scroll running through the entire period of telecast of 10 minutes to a contact number ''Banjpan Clinic'' adjoining Dr. Rama Sofat Hospital with a full address of Dr. Rama Sofat Hospital and the contact number of the employee. The impugned order directs the suspension of licence for a period of three months. The writ petition is filed contending that there has been a flagrant violation of rules of natural justice in not affording to the petitioners any opportunity to show cause against any such action. It is the further contention that as per the relevant procedure prescribed under Part VI of the MCI regulations, an inquiry that is constituted shall give three weeks notice and the same was not done. The third contention is that there is no prohibition against advertisement by the hospital giving details of facilities available. Again the talk itself was merely information about issues of infertility and it does not attract the provision relating to advertisement. The counsel for the petitioners with 2nd petitioner himself supplementing the arguments in person would refer to Regulations 7.11 and 7.12, which read as under:--
"7.11 A physician should not contribute to the lay press articles and give interview regarding diseases and treatments which may have the effect of advertising himself or soliciting practices; but is open to write to the lay press under his own name on matters of public health, hygienic living or to deliver public lectures, give talks on the radio/TC/internet chat for the same purpose and send announcement of the same to lay press. 7.12 An institution run by a physician for a particular purpose such as a maternity home, nursing home, private hospital, rehabilitation centre or any type of training institution, etc. may be advertised in the lay press, but such advertisements should not contain anything more than the name of the institution, type of patients admitted, type of training and other facilities offered and the fees."
The attempt is to say that there was no advertisement by the hospital itself, but it was only a talk on public awareness regarding infertility and connected issues and, therefore, there was no breach of regulations. It is also contended that the advertisement which was complained of through the notice issued on 5th August, 2014 makes reference to the talk which was made on 1st week of October, 2014. They are two different occasions and could not had been juxtaposed to pass the order which cannot be done. According to the petitioners, the punishment accorded of suspension of practice is very severe and when criminal prosecution itself being launched, there was no warrant for imposing a punishment of suspension of practice. The last argument was truly a passionate plea by the 2nd petitioner doctor himself that interest of the patients will seriously suffer, if the practice is suspended.
The Medical Council is on caveat and to a plea by the petitioners that the notice was not issued as per the regulations, the counsel has made available to me a later copy of the notice which was issued on 22.8.2014 for which replies have been given by the petitioners admitting to the advertisement. The first argument which is made that the impugned order has been passed without following the rules of natural justice in not affording to the petitioners an opportunity to show cause against any punishment for alleged misconduct cannot be taken as correct. On the other hand, the replies given by the petitioners will themselves disclose that the misconduct attributed was clearly admitted by the petitioners No. 2 and 3. While the 1st petitioner would state that she had not in any way appeared in person in any TV Channel and the hospital bears a corporate name which was co-incidentally her name and she has not indulged in any way act of misconduct. There is truly an issue of whether she has any connection to the hospital or the advertisement.
The impugned order is on the face of it not correct to the extent that the 1st petitioner has not admitted to the alleged misconduct. The case of the 1st petitioner would require consideration and, therefore, I direct notice of the writ petition to the respondents and also stay the operation of the order as regards the 1st petitioner is concerned.
Notice of motion.
Mr. H.S. Dhindsa, Advocate, accepts notice on behalf of respondent No. 3 and seeks for time to file reply. Issue notice to other respondents for hearing date on 17.12.2014.
The manner in which the case has been dealt with for the 1st petitioner by directing issue of notice cannot also avail to the petitioners No. 2 and 3, for, their case stands on different footing. I have already observed that there was no violation of natural justice. The petitioners had been served with notices calling upon them to explain their misconduct. The 2nd petitioner has given a reply that reads as under:--
"To The Registrar, Punjab Medical Council SAS Nagar, Mohali.
Reg: T.V. Advertisement.
Sir,
Reference your letter No. PMC/2014/4966. Advertisement was a common practice by Punjab doctors and I too was forced to do that in order to survive. Since your goodself has objected to it now, I hereby state that I have withdrawn my TV programme henceforth.
With kind regards,
Yours sincerely,
4th September, 2014
Sd/- Dr. Amit Sofat M.B.B.S. MD (Ob/Gynae, PGI) Dr. Rama Sofat Hospital 435, College Road, Ludhiana."
The 3rd petitioner has responded to the notice issued by the respondents thus:--
"To The Registrar, Punjab Medical Council
SAS Nagar, Mohali.
Reg: Programme on T.V. Channel.
Sir,
Reference your letter No. PMC/2014/4964 dated 22.8.2014. As so many doctors of Punjab were putting advertisement, I too followed suit. Since you have objected now. I have withdrawn my programme from T.V. Channel henceforth.
With kind regards,
September 4, 2014
Yours sincerely, Sd/- Dr. Ruchika Sofat Dr. Rama Sofat Hospital 435, College Road, Ludhiana."
In both these responses there are clear admissions to the fact that they were carrying on advertisement for their practice. The 2nd petitioner would find himself professionally compelled to issue advertisement because it was allegedly a common practice by the Punjab doctors. If it were to be true that such a practice exists, it is dangerous and unethical and if it was not true he was trying to find a lame excuse. The 3rd petitioner would say that many doctors were putting up advertisements and she followed suit. This is again unfortunate that if other doctors would do, she would have no compunction against what was brazenly unethical. A doctor cannot follow a mob mentality and she requires to address herself to a query if what she was doing was correct or not. Her own justification was that she did what others did. The responses of both the petitioners betray the falsity of their own contentions that they were not indulging in any advertisement.
The regulations that stipulate constitution of an inquiry and notice to be issued providing for three weeks are applicable in situation where on the information received by the Registrar notice is sent and reply is given and if the Committee found that an inquiry is to be constituted then such an inquiry would require a notice to be issued providing for three weeks time. Part VI sets out through clauses 19 to 32 different formulations that apply and the procedure to be followed for conducting an inquiry. Clause 19 refers to an information received by the Registrar of a person in whose name registration is carried was guilty of misconduct which prima facie, constitute infamous conduct in a professional respect. Where a complaint has been lodged, the abstract of the complaint will be given and the President, if he thinks it fit, to instruct the Registrar to ask the practitioner for an explanation that he may have. After taking an explanation, the Committee shall report to the Council and the Council may consider the case and direct the steps for the institution of an inquiry and have the case heard and determined by the council. The institution of an inquiry under Clause 23 and further clauses arises in cases where further proceedings are necessary to elicit whether the misconduct was committed or not. A stage of inquiry arises, therefore, in all situations where the notice issued, upon information, elicits a response which would require to be adjudged. In a situation where person against whom notice is issued admits to guilt then there is not even a need for constitution of an inquiry with copies of complaint given to them. Indeed there was no more than a notice requiring why action shall not be taken that was issued on 12.8.2014 to which the responses have been as we seen above an admission about their own guilt. Therefore, there was no violation of any regulation, as canvassed by the petitioners.
The contention raised by the petitioners that the advertisement itself was not interdicted under Regulations of 2002 and 2004, as adopted by the Punjab Medical council, refers to the regulations 7.11 and 7.12 reproduced above. Regulation 6 in Chapter 6 refers to a physician who aided or abetted or committed any of the acts mentioned therein. The Regulation extracted above would clearly indicate that a person can give a talk or write in the press on matters relating to public health, hygienic living and deliver public lecture. The order passed suspending the practice ought not be taken as a resultant to a talk given by Dr. Meenu. It must be taken only as a circumstance where the petitioners have allowed a breach to continue in deceitful way inspite their undertaking given through their responses dated 8.9.2014, which we have extracted above. The petitioners have made available to the court the CD containing the talk given by Dr. Meenu in the month of the 1st week of October, 2014. Indeed there was no need even to refer to the talk given by Dr. Meenu, for, Clauses 7.11 and 7.12 allow for talks to be made which go to sensitize people to medical issues. It is not the content of talk that allows for medical information to be shared with the public that constitutes the unethical practice. I must observe even the order does not state that the talk itself was unethical.
I persuaded myself still to see the CD only to understand the petitioner''s case in its full dimension. The talk runs for 10 minutes and for the entire period of the talk, there is a scroll running in bold letters making a reference to one Banjpan Clinic and states the location as adjacent to the petitioner''s hospital with full address for the entire period of 10 minutes. It was stated at the time of arguments that Dr. Meenu was an employee. An advertisement could be made in different forms. If the scroll is a bullet point of what the person talked then I will understand that it will come within the protective umbrella of the regulations 7.11 and 7.12. If the scroll, on the other hand, is only a reference to one Banjpan Clinic as adjacent to the petitioners'' hospital, as the impugned order states, it is a clever method of pronouncing the presence of the petitioners'' hospital to catch the public eye. The advertisement is a manner of helping a consumer to obtain memory retention. It could be visual, it could be audio-visual and it could be in any other manner that could be perceived by any of the senses. If an audio contained reference with the medical issues, the visual was not merely of the person who talked but visual was also with reference to the hospital scrolling for the entire length of 10 minutes. The punishment that is accorded finding the petitioner guilty, I cannot understand as resultant to talk. I would understand the punishment as flowing from the very admission made by petitioners No. 2 and 3. The reference to the subsequent talk with a scroll for the hospital is only stated as an aggression of the wrong which the petitioners have chosen to perpetuate by another employee to give a talk and use the occasion to share information about the hospital and the contact number of the hospital. The order that was passed, therefore, conforms to law and it suffers from no bias.
If the punishment accorded is excessive, the degree of interference which a court would make would only be to see whether the punishment is so capricious and oppressive that judicial intervention would become appropriate, I cannot find such excessive situation in this case. The persons who are medical practitioners trained in the art of healing the sick and the needy ought to know how any wound hurts. They have hurt their own community. The punishment accorded, therefore, must commensurate with the degree of knowledge which the petitioners possess and the gravity of the indiscretion which they have allowed their practice to obtain.
It is a modern aberration that we have allowed for advertisements in every field. There are even justifications galore that in foreign countries like in USA, where advertisement is possible both for doctors and legal practitioners. If we still retain a modicum of nobility, in our profession, it is that we do not solicit work, through powerful campaign. It is not without reason that advertisement is prohibited. India has a large community of illiterate people. As a fly is attracted to a luminescent object, even though it might ultimately cause its death, illiterate folk might feel tempted to be attracted not by the quality of the profession who solicit works but by sheer enticement that blunts objectivity. This is how quacks thrive. No professional carries on his practice merely for charity. Remuneration for the services is surely necessary for a doctor that deliver a prodigious service to the society by deploying skills that he acquires by hard earned degree and by his lucubration. If in this case, petitioners No. 2 and 3 have adopted a practice of what they have confessed to and if they thought of persisting it in a clever way they were punished in the manner which they deserved. However unfortunate it might be seen and whatever extent the local people are deprived of their services, this would probably be the occasion to the doctors to atone for what they have done; to ruminate how they shall fashion their own duct in future that they do not allow such a recurrence to happen; and they will probably make a sure lesson for other that even a minor indiscretion could land them in serious embarrassment and public disapprobation.
The petitioners were even indiscreet in rushing to the court when there was a provision for appeal against the decision. If they thought that it was so patently wrong that they could test their luck before a court, they were probably wrongly advised. They have invited upon themselves an accelerated process of justice by shifting one higher forum against the impugned order.
There is a plea of malafides against the 2nd respondent. I am not examining it because the order is sustained on how the misconduct was admitted by their own replies and not on an inferences which were required to be made on any other evidence. Finding no merit, the writ petition is dismissed qua petitioners No. 2 and 3.