MUSHIR ALAM, C.J. --- Petitioner has impugned show-cause notice dated 14.3.2009 issued on the ground, inter alia:-- You being member of council got matric arts students enrolled for DHMS course from NCH on the basis of forged matriculation certificate (copy of forged certificates attached).
2. The petitioner was directed to reply to show- cause as to why he may not be disqualified from the membership of the National Council for Homeopathy under the provision of Section 13(2) of Unani, Ayurvedic and Homeopathic Practitioners Act, 1965. It appears that pursuant to such show-cause notice he was found guilty of the charge and was disqualified from the membership under Section 13(2) of Act, 1965 with immediate effect vide notification dated 29.10.2009 impugned through.
3. Grievance of the petitioner is that he was condemned unheard and the impugned order dated 29.10.2010 is without due process of law.
4. Today Mr. Warsi appeared and contended the it is the Council, which is competent to take action in the subject controversy under Section 28 of the UAH Act and Federal Government has no role to play. According to Mr. Warsi, inquiry in the allegation was conducted by the Council and he was exonerated and show-cause notice dated 14.3.2009 as well as notification dated 29.10.2009 was withdrawn his membership resorted, it was therefore urged that he has since been exonerated, the petition may be disposed of as such.
5. Mr. Nazar Akber, learned DAG refuted the contentions, according to him the petitioner was preceded under Section 13(2) of the Act, 1965. Council had no authority or jurisdiction to give its finding what to speak of exoneration as regard Member of the Council is concerned. It was urged that notification or disqualification of a Member of a Council could only be examined by the Federal Government through Ministry of Health and not by the Council and the Council could only embark on the misconduct or the charge against Homeopathic Practitioners only and not against the Member of the Council and in the instant case the petitioner is being proceeded as Member of the Council and not as Homeopath practitioner.
6. Rival contention on the issue could be evaluated once both the provisions as relied upon by the learned counsel for the petitioner and the learned DAG are examined, Section 13(2) of the Act reads as follow:--
13. Disqualification of members. - (1) No person shall be a member of the Council:
(a) he is an undischarged insolvent.
(b) He has been adjudicated by a competent Court to be of unsound mind;
(c) He has at any time been convicted of an offence which is in the opinion of the Federal Government involves moral turpitude; or
(d) His name has been removed from the register.
(2) If at any time it appears to the Federal Government that any member of the Council has failed to exercise or has exceeded or abused any power conferred upon him as a member of the Council, any Committee or Examining Body appointed under sub-section (3) of Section 22, may, if satisfied that such failure, excess or abuse has adversely affected the efficient conduct of such member in achieving the objectives of this Act and after giving him an opportunity of showing cause against the action proposed to be taken, by notification in the official Gazette, disqualify him from the membership of the Council or, as the case may be, Committee or Examining Body.
Section 28 of the Act reads as follow:--
28. Removal from register, etc. - The Council may direct that the name of any practitioner who has been convicted of a cognizable offence or who after due enquiry has been found guilty of misconduct shall .Be removed from the register or the list if the offence or misconduct in the opinion of the Council discloses moral turpitude such as to render him unfit to practice his profession: Provided, however, that no action shall be taken by the Council under this section unless the person convicted offence or found guilty of misconduct has been given a reasonable opportunity to show cause against the punishment proposed to be inflicted on him.
7. On bare perusal of the, above provisions it is abundantly clear that Section 13 ibid empowers the Federal Government to take action against a Member of the Council. And Section 28 ibid; confers jurisdiction on the Council to take action against the Homeopath Practitioner. Under Section 13 of the UAH Act, 1965 at any time it appears to the Federal Government that a member of the Council has failed to exercise or has exceeded or abused any power conferred. Upon him as a member of a Council, the Federal Government after due notice and on being satisfied that such failure, excess or abuse has adversely affected the efficient conduct of such member in achieving the objectives of this Act, may disqualify such delinquent from membership of the Council or the Committee or Examining Body as the 'case may be. Whereas, under Section 28 ibid; as reproduced above, it is the prerogative and domain of the `Council' to direct removal of the name of the Homeopathic Practitioner from the Register or list of the Homeopath Practitioner who is (i) either convicted of a cognizable offence or (ii) who after due inquiry, if necessary,. Has been found guilty of misconduct or in the opinion of the Council offence or misconduct discloses moral turpitude such as to render him unfit for the practice of his profession.
8. In the instant case, as noted above, the charge was against the petitioner being Member of the National Council for Homeopathy, who enrolled matriculation arts students in OHMS course from NCH on the basis of forged matriculation certificates, which allegations are 'still to be examined by the Federal Government. In exercise of powers under Section 13(2) of the UAH Act, 1965 as reproduced above, inquiry committee within contemplation of Section 13 has already been constituted and today Mr. Nazar Akbar learned DAG has placed on record a notice issued to the petitioner requiring him to appear before inquiry committee on 1.3.2011 at 11.00 a.m.
9. In view of the foregoing, it may be observed that any exoneration of the petitioner by the Council as claimed by Mr. Warsi, learned counsel for the petitioner is of no avail and of no consequence, the Council does not possess any authority or jurisdiction in the matter.
10. As stated by Mr. Nazar Akbar learned DAG, since petitioner is now required to appear before the Inquiry Committee, which he is avoiding, he may be directed to appear before the committee, so that the Federal Government may pass orders, based on inquiry report in accordance with law. We would therefore, disposed of this petition in the following terms:-
(i) Impugned Notification dated 29.10.2010 is hereby set aside.
(ii) Petitioner who is present in Court today is handed over letter of inquiry dated 24.2.2010 directing him to appear before the committee 1st March, 2011 at 11.00 a.m., so constituted by the Federal Government under Section 13(2) ibid. (i.e) Competent Authority under Section 13 after receiving inquiry report and after providing an opportunity of showing cause against the action proposed to be taken and hearing the petitioner, pass such order as may deem expedient under the given and proven facts and circumstances of the case strictly in accordance with law.
Copy of this order may be forwarded to learned D.A.G. For compliance by the Competent Authority. .