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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S.Chandurkar, M.S.Jawalkar, JJ.
Ashok Shrawan Bawaskar – Appellant
Versus
National Medical Commission, New Delhi – Respondent
Writ Petition No. 589 /2021
Decided On : 06-04-2022
Ethics and Medical Registration Board - Power to Stay Disciplinary Action - Sec. 30(3) of the National Medical Commission Act, 2019 - Chapter VIII of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Summary of Acts and Sections: The court discussed the power of the Ethics and Medical Registration Board to stay disciplinary action taken by the State Medical Council against a registered medical practitioner for professional misconduct while considering an appeal under Sec. 30(3) of the National Medical Commission Act, 2019. The court referred to Sec. 30(3) of the Act of 2019 and Regulation 8.8 of the Regulations of 2002, highlighting the absence of provisions for granting interim relief and the implied power of the Ethics and Medical Registration Board to stay the disciplinary action.
Fact of the Case:
The petitioner, a registered medical practitioner, filed a writ petition challenging the Ethics and Medical Registration Board's refusal to consider his application for stay of disciplinary action taken by the Maharashtra Medical Council. The petitioner had filed an appeal under Sec. 30(3) of the Act of 2019 against the Council's decision to remove his name from the register.
Finding of the Court:
The court held that the Ethics and Medical Registration Board has an implied power to stay the disciplinary action taken against a registered medical practitioner during the pendency of an appeal under Sec. 30(3) of the Act of 2019. It also quashed the communication stating the absence of provision for granting interim relief.
Issues: The main issue was whether the Ethics and Medical Registration Board had the power to grant interim relief to the petitioner during the pendency of his appeal under Sec. 30(3) of the Act of 2019.
Ratio Decidendi: The court relied on legal principles from previous cases to establish the implied power of the Ethics and Medical Registration Board to grant stay to the disciplinary action, emphasizing the need to preserve the status quo and ensure the effectiveness of the appellate remedy.
Final Decision: The court made the rule absolute, holding that the Ethics and Medical Registration Board possesses incidental powers to grant stay to the disciplinary action and directed the stay of the order passed by the Maharashtra Medical Council. The communication stating the absence of provision for granting interim relief was quashed and set aside.
JUDGMENT
A.S.CHANDURKAR, J. - RULE. Rule made returnable forthwith and heard the learned counsel for the parties.
2. This writ petition filed under Articles 226 and 227 of the Constitution of India raises a question as regards the power of the Ethics and Medical Registration Board to stay the disciplinary action taken by the State Medical Council against a registered medical practitioner for professional misconduct while considering an appeal preferred to it against such action under Sec. 30(3) of the National Medical Commission Act, 2019 (for short, 'the Act of 2019). According to the Ethics and Medical Registration Board there is no power conferred on it to stay an order passed by the State Medical Council taking disciplinary action against a registered medical practitioner or a professional while considering such appeal.
3. The petitioner is a registered medical practitioner and his name is registered with the Maharashtra Medical Council. A complaint was filed against the petitioner on 17/5/2018 by the fourth respondent with the Maharashtra Medical Council. The petitioner was called upon to submit his explanation which he did on 27/6/2018. The petitioner was then served with a notice of charges on 10/10/2019. It was stated that the petitioner had violated Articles 1.1.1, 1.1.2, 1.4.1 and 1.9 of Chapter-I of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (for short, 'the Regulations of 2002'). The petitioner submitted his reply to the aforesaid statement on 24/10/2019. Thereafter on 2/12/2020, an order was passed by the Maharashtra Medical Council holding that the petitioner was found negligent and involved in gross professional misconduct. On that count, the Maharashtra Medical Council directed removal of the petitioner's name from the register of the Council for a period of two months. The said punishment was to be implemented on expiry of the appeal period. The petitioner was informed that he could prefer an appeal against that order to the Ethics and Medical Registration Board as provided under Sec. 30(3) of the Act of 2019. On 8/12/2020, the petitioner filed a review application before the Maharashtra Medical Council which on 17/12/2020 informed the petitioner that there was no provision for reviewing its decision. Thereafter the petitioner on 22/12/2020 filed an appeal under Sec. 30(3) of the Act of 2019 challenging the order dtd. 2/12/2020. Alongwith that appeal, the petitioner also filed an application for grant of stay to the order dtd. 2/12/2020 during the pendency of the appeal. Since the petitioner did not receive any notice of hearing from the National Medical Commission he on 8/1/2021 issued a communication requesting that his matter be placed before the Ethics and Medical Registration Board. The petitioner was informed by the Ethics and Medical Registration Board that there were some deficiencies in his appeal which were required to be removed. The petitioner took steps to remove those deficiencies by his communication dtd. 11/1/2021. The petitioner on 19/1/2021 addressed a mail to the Ethics and Medical Registration Board praying that his stay application be considered. Since no cognizance of this as well as the subsequent communication dtd. 24/1/2021 in that regard was taken, the petitioner approached this Court by filing the present writ petition on 29/1/2021 seeking a direction to be issued to the Ethics and Medical Registration Board to decide his application for stay and/or the appeal preferred by him under Sec. 30(3) of the Act of 2019. After the filing of the writ petition, the petitioner was informed by the Ethics and Medical Registration Board on 12/2/2021 that since there was no provision in the Act of 2019 to grant interim relief the request made by the petitioner in that regard could not be considered. By amending the writ petition, the petitioner has also challenged the communication dtd. 12/2/2021 issued by the Ethics and Medical Registration Board.
The main legal point established in the judgment is the recognition of the Ethics and Medical Registration Board's implied power to grant stay to disciplinary action during the pendency of an appeal ....
An appeal from the Ethics and Medical Registration Board's decision is restricted to medical practitioners only under the National Medical Commission Act, 2019, not available to complainants.
The Medical Council of India lacked jurisdiction to entertain an appeal filed prior to the enactment of amended regulations, which clarified the appeal process.
A complainant lacks standing to appeal against a disciplinary decision of the Council unless an order has been made against them, as defined by the Medical Act 1971.
Regulation 7.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, allows for the removal of a doctor's name from the register for professional misconduct, b....
The Bar Council lacks the authority to impose interim suspension on an Advocate pending disciplinary proceedings, as per the Advocates Act, 1961, which mandates adherence to due process and principle....
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