Delhi High Court Calls 2020 Elections Of Indian Orthopaedic Association A Mockery, Appoints Former HC Judge To Conduct Affairs For Interim

Taking a view that there had been serious and material irregularities in the conduct of 2020 elections of the Indian Orthopaedic Association (IOA), the Delhi High Court yesterday appointed Mr. Justice (Retd.) J.R. Midha (former Delhi High Court judge) as Administrator to inter-alia conduct IOA’s affairs till the Executive Committee was re-constituted pursuant to elections in November, 2023.

The judgement came to be passed in a suit filed by plaintiffs, aggrieved by the manner in which IOA’s 2020 elections were conducted to elect office bearers as well as a venue for hosting IOACON 2023 (an annual conference of members/orthopaedic doctors).

The plaintiffs alleged that in said elections, the voter list was tainted and bogus votes were cast. They further challenged defendant No.1/Nityam’s selection for conducting the elections.

Earlier, in 2021, the court had taken a prima facie view that there was no irregularity in the engagement of Nityam as the agency for conducting IOA’s 2020 elections and that the elections could not be held vitiated.

However, at that stage, the court did not have an occasion to consider any specific instance of irregularity/malpractice.

During the pendency of the suit, an FIR came to be registered and chargesheet filed with respect to the irregularities in IOA’s 2020 elections.

Noting that “…the principle of res judicata does not apply to the findings on which interlocutory orders like orders of injunction are based”, Justice Sachin Datta held that the court was not precluded from granting reliefs sought by the plaintiffs on account of earlier prima facie findings.

The plaintiffs explained before Justice Datta that the irregularities were noticed when a vote was found to have been cast in the name of Dr. A.K. Gupta, an illustrious member of IOA, who had expired in 2007.

Trying but failing to counter this argument, Nityam revealed that the vote on account of deceased Dr. A.K. Gupta had in fact been cast in favour of one of the plaintiffs and not defendant(s).

Surprised by the revelation, the Court was quick to note that Nityam “had unbridled knowledge as to the manner in which the voters had cast their votes”, even though the elections were supposed to take place through “secret ballot”.

It said: “The very premise of elections by “secret ballot” is that there should be no possibility of the voting pattern of any voter/s being disclosed, whether during or after the electoral process. This has been found to be completely lacking in the present case.”

The Court observed that since there was scope for Nityam to make “selective disclosure” regarding voting pattern, as asserted by it in its affidavit, IOA’s 2020 election process was vitiated.

In its defence, IOA averred that removal of dead person from the voting list was a “chronic problem”. It also contended that the plaintiffs were trying to conflate the criminal proceedings by way of the suit.

The Court, however, found merit in the plaintiffs’ contention that the example of vote cast on behalf of deceased Dr. Gupta was a pointer towards much deeper rot.

Taking into account IOA’s intolerance in the past for any discrepancy in the voters’ list, Justice Datta said: “…the attempt on the part of the defendant No.7/IOA to trivialise the aspect of inclusion of dead persons in the voting list for the impugned elections, by characterising the same as a “chronic problem”, is most reprehensible and unfortunate.”

In closing, it was held: “…all the above aspects viz. inclusion of dead person/s in the voting list; votes having been cast by such dead person/s; bogus votes having been cast on behalf of certain persons as noticed in the chargesheet; the voting pattern of the individual voters being subject to “selective disclosure” by the defendant No.1 in these proceedings and/or during the process of investigation in the FIR and/ or proceedings before the trial Court, have reduced the impugned election/s conducted in November, 2020, to a complete mockery.”

Notably, the court expressed anguish at the state-of-affairs of IOA, which comprises of some highly accomplished medical professionals of the country.

“It is unfortunate that an association having such salutary objectives, constituted to serve the public good, and comprising of some of the most renowned medical professionals in the country, has been reduced to its present state of affairs”, it said.

No directions were passed to interdict the conduct of IOACON 2023 at Lucknow, keeping in view that the other candidate for hosting the event (IOACON Patna) had withdrawn from the suit, and that preparations for the event had reached an advance stage.

Mr. Manish Kumar, Mr. Gaurav Duggal, Mr. Amit Kumar, Mr. Piyush Kaushik, Mr. Brian H. Moses, Ms. Aparajita Jha and Ms. Sanskriti, Advocates appeared for plaintiffs

Mr. Raman Kapur, Senior Advocate alongwith Mr. Varun Kapoor, Advocate appeared for applicant in IA No. 13441/2023

Mr. Aishvary Vikram and Mr. Siddharth Relan, Advocates appeared for defendant Nos.1 and 2 (Nityam)

Ms. Malvika Trivedi, Senior Advocate alongwith Mr. Ashish Choudhary, Mr. Shailendra Slaria and Mr. Sujal Gupta, Advocates appeared for defendant No.3 (Vice-President and election officer during IOA’s 2020 elections)

Ms. Sangeeta Bharti, Ms. P. Geetanjali and Mr. Ujjwal Bhardwaj, Advocates appeared for defendant No.4 (elected President in IOA’s 2020 elections)

Mr. Praveen Swarup and Ms. Archana Pathak Dave, Advocates appeared for defendant No.5 (elected Secretary in IOA’s 2020 elections)

Mr. Sandeep Sethi, Senior Advocate alongwith Mr. Attul Bhuchar, Mr. Rajesh Chug, Ms. Riya and Ms. Tanisha Bhuchar, Advocates appeared for defendant No.6 (IOACON Lucknow)

Mr. Virag Gupta, Mr. Vishal Arun Mishra and Mr. Nikhil Khandelwal, Advocates appeared for defendant No.7 (IOA)

Mr. Arvind Nigam, Senior Advocate alongwith Mr. Akshay Pratap Singh and Mr. Siddhant Nath, Advocates appeared for defendant No.8 (Chairman, Legal and Grievance Committee during IOA’s 2020 elections)

Case Title: Dr. P. V. Vijayaraghavan & Ors v. Nityam Software Solution Pvt. Ltd. & Ors

Citation: 2023 LiveLaw (Del) 1013

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