76 NLR 241

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 76 NLR 241
• Date: 18 April 1973
• Case Number: NLR76V241
• Type of Document: Case report

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[IN THE COURT OF APPEAL OF SRI LANKA]

1973 Present : Fernando, P., Sirimane, J., and
Samerawickrame, J.

E. M. WIJERAMA and 9 others, Appellants, and A. T. S. PAUL,
Respondent

APPEAL NO. 11 OF 1972

S.C. 209/71-Application for a Writ of Certiorari

Medical practitioner-Charge of infamous conduct in a professional respect-Inquiry by Medical Council-Absence of one or more of the members on some days at the inquiry-Effect-Natural justice-Rule that those who adjudicate must hear-Extent of its applicability-Penal Cases Committee-Participation of its Members at the inquiry-Whether bias can be inferred- Certiorari-Scope of the remedy-Availability notwithstanding right of appeal to Minister whose decision shall be final-Meaning of expression " error of law on the face of the record "- Statutory tribunals-Desirability of their stating reasons for their decisions-Medical Ordinance (Cap. 105), ss. 15, 18 (1) (2), 20, 25, 33, 72-Medical Disciplinary (Procedure) Regulations, 1959, Regulations 4, 5 (2), 8, 9, 11, 14 (4), 17, 21 (4), 22 (2), 24- Courts Ordinance, ss, 42, 88-Criminal Procedure Code, s. 292- Court of Appeal Act, No. 44 of 1971, s. 8 (1) (b).

The respondent, a medical practitioner, was found guilty by the Medical Council consisting of ten medical practitioners (the appellants) upon a charge of infamous conduct in a professional respect in that, by writing a letter to the editor of a newspaper, he advertised for the purpose of obtaining patients or promoting his own professional advantage or was commending or drawing attention to his own professional skill. The charge was framed, and the inquiry was held, in terms of certain provisions of the Medical Ordinance of 1927 and the Medical Disciplinary (Procedure) Regulations of 1959. The Council commenced the inquiry in consequence of a complaint made by another medical practitioner and a report made thereupon by a Penal Cases Committee consisting of five persons all of whom were also members of the Council, but, in such a case, it is the Council and not the Penal Cases Committee thereof that determines whether an inquiry shall be held (Regulation 8 (1) and (2)). Although five members constituted the requisite quorum for a meeting of the Council, all ten members had decided to attend the meetings. All of them did not attend every meeting, but there were always no less than eight members present. At the conclusion of the evidence the Council found that the respondent was guilty and postponed for a future date its decision as to the erasure of the respondent's name from the register of medical practitioners. No reasons were given for the finding, and there is nothing in the Regulations to compel a setting down of reasons. The respondent did not appeal to the Minister in terms of section 18 (1) of the Medical Ordinance, but applied to the Supreme Court for a writ of certiorari. When the Supreme Court allowed his application, the Medical Council filed the present appeal in terms of section 8 (1) (b) of the Court of Appeal Act No. 44 of 1971.

During the inquiry by the Medical Council, a full note of the evidence in the form of question and answer was taken down each day by stenographers and reproduced in typed form by the next day of inquiry. Each member of the Council and the lawyers for the two sides had been supplied from day to day with a copy of the typed record of the whole proceedings.

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Held, (i) that, although one or more members of the Medical Council were absent on one or other of the ten days of inquiry, their absence did not in fact cause the respondent that kind of prejudice which constitutes a violation of the rule of natural justice that those who adjudicate must hear. "When the procedure followed, having regard to all the circumstances of tile particular case, has been substantially just and fair, the superior courts in their supervisory capacity should guard themselves against an impression that natural justice can best be served by these tribunals observing a strait-jacket procedure. "

(ii) that it could not be contended that the presence of the five members of the Penal Cases Committee at the meetings of the Medical Council when the inquiry was held and their participation in the finding against the respondent raised a likelihood of bias. In the scheme contemplated by the Medical Ordinance read with the Disciplinary (Procedure) Regulations the real complainant was neither the Penal Cases Committee nor the Medical Council but was the person referred to as the complainant in the Regulations. " While it may be desirable that members of a Penal Cases Committee do not themselves sit at meetings of the Council where the disciplinary inquiry takes place, we must recognize that it must be left to authorities other than the Courts to achieve such a desirable end."

(iii) that, notwithstanding that the decision of an inferior tribunal is by a statute made final in the manner of section 18 of the Medical Council Ordinance, certiorari can still issue for excess of jurisdiction or for error of law on the face of the record or on the ground of bias or violation of the principles of natural justice. In the present case, there was error of law on the face of the record. Although the Medical Council did not give reasons for its decision, it maintained a complete record of its proceedings and incorporated all the relevant evidence. There was no evidence in support of the charge that the letter written by the respondent to the editor of the newspaper amounted to an advertisement by the respondent of his professional skill. In the circumstances, the decision of the Medical Council should be quashed.

Obiter : Even in the absence of a legal requirement, it is desirable that any tribunal against whose decision an appeal is available should, as a general rule, state the reasons for its decision, a course of action which has the merit of being both fair to the petitioner and complainant concerned and helpful to the appellate authority.

APPEAL from a judgment of the Supreme Court reported in (1972) 75 N. L. R. 361.

N. Satyendra, with D. C. Amarasinghe and R. D. C. de SILVA, for the appellants.

H. W. Jayewardene, with G. Candappa, Mark Fernando, Miss U. J. Kurukulasuriya and Ranil Wickremasinghe, for the respondent.

Cur. adv. vult.

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April 18,1973. FERNANDO, P.-

This is an appeal, in terms of section 8(1) (b) of the Court of Appeal Act, No. 44 of 1971, by the members of the Ceylon Medical Council against a judgment of the Supreme Court (1972) 75 N. L. R. 361) granting a mandate in the nature of a writ of certiorari to quash a finding of the Council reached on February 15, 1971 that the respondent, Mr. A. T. S. Paul, a surgeon, was guilty of infamous conduct in a professional respect.

The Ceylon Medical Council has been established under the Medical Ordinance of 1927 (Cap. 105) and, on the dates relevant to this appeal, would appear to have consisted of ten members who are all appellants before us. That Ordinance (section 20) provides for the keeping of a register of medical practitioners qualified to practice medicine and surgery in Ceylon and confers (section 25) on the Medical Council a discretionary power to erase from that register on any ground authorised by the Ordinance the name of any person appearing thereon. One of the grounds (section 33) for such an erasure is that the Medical practitioner concerned has been guilty of infamous conduct in a professional respect. Section 72 enables the Minister (of Health) to make regulations for the purpose, inter alia, of giving effect to the principles and provisions of the Ordinance ; the regulations so made are to be tabled in the Legislature for approval and thereafter to be published in the Gazette. On such publication the regulations are declared to be " as valid and effectual as though herein enacted. "

Regulations as aforesaid, it is admitted, have been made and those relevant for the purpose of this appeal appear in a supplement to Gazette No. 11,980 of November 27, 1959 under the title of the Medical Disciplinary (Procedure) Regulations, 1959. These provide for the manner in which complaints or reports against a medical practitioner may be made and disposed of. Acting under regulation 4, the 1st appellant who is the president of the Ceylon Medical Council referred to the Penal Cases Committee of the Council a complaint against the respondent made by another surgeon. That Committee consisted (see First Schedule to the Regulations) of the president himself and four other members of the Council (4th, 6th, 8th, and 9th appellants) elected by ballot. While three members of the Committee constituted a quorum, it would appear that all five members, as indeed they were entitled to do, attended the meetings of the Committee that investigated the complaint against the respondent and made a report thereon to the Council. Regulation 8(1) requires the Council to consider this report and to determine whether or not an inquiry should be held into the facts or matters alleged in the complaint. What is

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important to remember is that it is the Council (reg. 8(1) and (2)) and not the Penal Cases Committee thereof that determines whether an inquiry shall be held.

As required by regulation 8 (3) the respondent was served with a notice of inquiry (P1) into three charges numbered 1, 2 (a) and 2(b), which are set out in the judgment of Alles J. in the Supreme Court. We reproduce below the text of charges 2 (a) and 2 (b) as that text is. relevant for the appreciation of the point upon which our decision of this appeal rests : -

2 (a)-You did advertise for the purpose of obtaining patients or promoting your own professional advantage by procuring or sanctioning or knowingly acquiescing in the publication in the issue of the " Ceylon Observer" dated 17th February 1970 of an article entitled " Not Me" with reference to an article entitled " Talking Point" published in the issue of the...