D.N. Ramachandra v. Indian Medical Association, Local Branch Thodupuzha, and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 RSA.No. 100 of 2010() --------------------AS.66/2007 of DISTRICT COURT,THODUPUZHA OS.251/2005 of MUNISIFF.COURT,THODUPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- DR.D.N.RAMACHANDRA, AGED 78 YEARS, S/O.LATE NARAYANAPPA,MEMBER OF I.M.A, THEJASWINI HOUSE,MANAKKADU ROAD, THODUPUZHA VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENTD/ RESPONDENTS/DEFENDANTS ------------------------------------- 1. INDIAN MEDICAL ASSOCIATION, LOCAL BRANCH THODUPUZHA, REPRESENTED BY ITS BRANCH PRESIDENT DR.C.S.STEPHEN CHAZHIKKATTU,I.M.A.HOUSE, I.M.A.ROAD, THODUPUZHA P.O, IDUKKI DISTRICT, PIN-685 585. 2. DR.K.P.RAMAN,PRESIDENT OF I.M.A., THODUPUZHA LOCAL BRANCH, WORKING AT IDUKKI DISTRICT CO-OPERATIVE HOSPITAL, THODUPUZHA-685584. 3. DR.REJI JOSE,SECRETARY OF I.M.A., THODUPUZHA LOLCAL BRANCH, WORKING AT TALUK HOSPITAL,THODUPUZHA-685 584. 4. DR.K.M.EMMANUEL,PAST PRESIDENT OF I.M.A, THODUPUZHA LOCAL BRANCH,WORKING AT IDUKKI DISTRICT CO-OPERATIVE HOSPITAL,THODUPUZHA-685 584. ADV. SRI.T.J.MICHAEL FOR R1 & 3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P JOSEPH, J.** ## **----------------------------------------** ## **R.S.A.No.100 of 2010** ## **---------------------------------------** ## **Dated this 18[th] 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 0606-2005 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 31[st] 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. 4 R.S.A.No.100 of 2010 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 Cooperative 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 1[st] 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/