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Gulshan Prakash v. State of Haryana (2010) 1 SCC477

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Gulshan Prakash v. State of Haryana (2010) 1 SCC 477||Case Summary  Introduction  In this appeal, the Court has interpreted Article 15(4) of the Fundamental Right. It has been added by the 1st Amendment Act, of 1951. Facts The State of Haryana instructed Maharshi Dayanand University (MDU), Rohtak to conduct entrance examination for MD/MS/PG courses for the Session 2008-2009. The appellant made a representation to the Health Secretary for providing reservation for SC and ST in the Post Graduate courses, Since there was no response from the Health Secretary the Appellant filed a petition in the High Court.  The High Court dismissed the petition of the appellant therefore the appellant approached the Supreme Court by Special Leave Petition under Article 136. Appellant Contentions  MDU, Rohtak has provided 20% reservation for the graduate level courses or undergraduate courses therefore the said University should also provide reservation in for the PG courses.  The Government o
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Kanwarjit Singh Kakkar v. State Of Punjab (2011) 13 SCC 158

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 Kanwarjit Singh Kakkar v. State Of Punjab (2011)

In this case, the Court tries to find whether the private practice by a government doctor is within the ambit of  PCA. 


Facts

This appeal is filed under Article 136 of the Constitution, against the order of the HC that refused to quash the FIR registered under the Prevention of Corruption Act and IPC by the Vigilance Bureau. The FIR was registered under S.13(1)(d) read with S.13(2), on the statement of informant/Raman Kumar who alleged that the appellant-doctor was doing private practice and charged Rs 100 as a prescription fee, which was restricted by the government. Given the allegation, a trap was laid by the officials in connivance with the informant and a raid was conducted, and the appellant got caught red-handed. 

Petition before HC

The appellant filed a petition before the HC of Punjab and Haryana to quash the FIR.

Contentions of the appellant before HC
  1. He made the prescription on plain paper, which was not even signed by him, just on humanitarian grounds.
  2. No law prohibits government doctors from doing any act on humanitarian grounds. 
  3. The private practice by a government doctor breaches State Government rules and not the PCA or IPC, hence it would initiate only departmental proceedings under Punjab Civil Services (Punishment and Appeals) Rules. 
The HC rejected the petition on grounds of Rule 15 of the Punjab Civil Medical (State Service Class I) Rules, 1972, in which it is mentioned that only after the permission of the State Government, a government doctor can practice privately also on terms and conditions set by the Government.

SLP in Supreme Court

Issue

Whether the private practice by a government doctor is an offence under PCA and under IPC, or under Punjab Civil Medical (State Service Class I) Rules, 1972.

Contentions

  1. S.7 of the PCA doesn't consider the demand or acceptance of a fee during private practice as illegal gratification, it only considers demand or acceptance for doing any official act.
  2. S.13(1)(d) doesn't apply.
  3. Since departmental rules bar private practice, action should be taken under it.

Ratio Decidendi

  1. Corruption is defined in PCA as the demand or acceptance of illegal gratification for doing an official act.
  2. Demand/receipt of fee while doing private practice can not be held to be an illegal gratification. Professional remuneration does not come within the ambit of corruption.
  3. In the case of R.R.S. Seth v. State of Jharkhand & Anr [2008], this Court upheld the conviction of a doctor who demanded Rs 500 from the complainant for giving proper medical treatment to his father. The burden to prove that the alleged amount was not obtained by way of illegal gratification lies on the public servant.
  4. If it was alleged that the doctor while doing private practice indulged in malpractice for instance charging money to provide beds in a government hospital would amount to illegal gratification.
  5. The amount demanded by the appellant was not by way of gratification for doing any favor but by way of a professional fee for the treatment of the patient. It can not be presumed that the fee was accepted as a motive or reward for doing or forbearing any official act.
  6. If an act barred by an official circular or instructions of the government, has been done it would lead to initiate the departmental proceedings.

Decision

  1. Allowed appeal.
  2. The alleged act would not constitute a criminal offence under PCA or IPC.
  3. Set aside the impugned order of HC.
  4. Quashed the FIR.

Also Read:- Kalicharan Mahapatra case

Also Read:- K. Santhamma v. State of Telangana




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