2010 Supreme(Cal) 148

High Court of Calcutta
Syamal Kanti Chakrabarti, J.
Rupa Basu (Banerjee) – Appellant
Versus
State of West Bengal – Respondent
W.P. 9740(W) of 2009
Decided On: Feb 17, 2010

The Bengal Medical Act, 1914, and the Indian Medical Council Act, 1956, co-exist harmoniously, and the appellate authority under Section 26 of the Bengal Medical Act, 1914, is the appropriate forum to challenge the findings of the West Bengal Medical Council, even if the alleged medical negligence occurred before the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, came into force.

Headnote:

MEDICAL NEGLIGENCE - APPEAL - AUTHORITY - PROFESSIONAL MISCONDUCT - BENGAL MEDICAL ACT, 1914 - INDIAN MEDICAL COUNCIL ACT, 1956 - REGULATIONS 2002 - APPLICABILITY - LIMITATION - ESTOPPEL - RIGHT TO APPEAL - VESTED RIGHT - REPEAL - RETROSPECTIVE OPERATION - APPELLATE JURISDICTION - DELEGATED LEGISLATION - REPUGNANCY - WAIVER - JURISDICTION OF APPELLATE AUTHORITY - EXPERT OPINION - ENHANCEMENT OF PUNISHMENT - BAR TO SUITS AND OTHER LEGAL PROCEEDINGS - WRIT JURISDICTION - ALTERNATIVE REMEDY.

Fact of the Case:

The petitioner, a qualified doctor with a registration certificate issued by the West Bengal Medical Council, faced disciplinary proceedings for alleged medical negligence and violation of professional ethics. The West Bengal Medical Council found her guilty of infamous conduct in professional respect and warned her. The petitioner challenged this decision before the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, under Section 26 of the Bengal Medical Act, 1914. The Principal Secretary enhanced the punishment to removal of the petitioner's name from the register for six months.

Finding of the Court:

The Court held that: - The Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, was the appropriate appellate authority under Section 26 of the Bengal Medical Act, 1914, and his order was not subject to challenge in a writ petition. - The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, framed under the Indian Medical Council Act, 1956, were not applicable to the present case as the alleged medical negligence occurred in 1999, before the regulations came into force. - The petitioner's appeal to the Medical Council of India under Rule 8.8 of the regulations was barred by limitation and could not be entertained. - The provisions of Section 24(2) of the Indian Medical Council Act, 1956, which provided for an appeal to the Central Government against removal of a name from a State Medical Register, were inoperative as the Central Government had delegated its power to the Medical Council of India. - The Bengal Medical Act, 1914, was not repealed by the Indian Medical Council Act, 1956, and the two Acts could co-exist harmoniously. - The petitioner, having appeared before the appellate authority and participated in the proceedings, was estopped from challenging its jurisdiction. - The right to appeal was a vested right that could not be taken away except by express enactment or necessary intendment. - The Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, had the power to enhance the punishment imposed by the West Bengal Medical Council. - The petitioner's conduct in 1999, though complained of in 2004, came under the purview of the Bengal Medical Act, 1914, and not the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. - The impugned order of the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, was not illegal, violative of the principles of natural justice, or without jurisdiction, and did not warrant interference by the Writ Court.

Issues: 1. Whether the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, was the appropriate appellate authority under Section 26 of the Bengal Medical Act, 1914? 2. Whether the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, were applicable to the present case? 3. Whether the petitioner's appeal to the Medical Council of India under Rule 8.8 of the regulations was barred by limitation? 4. Whether the provisions of Section 24(2) of the Indian Medical Council Act, 1956, were inoperative? 5. Whether the Bengal Medical Act, 1914, was repealed by the Indian Medical Council Act, 1956? 6. Whether the petitioner was estopped from challenging the jurisdiction of the appellate authority? 7. Whether the right to appeal was a vested right that could not be taken away except by express enactment or necessary intendment? 8. Whether the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, had the power to enhance the punishment imposed by the West Bengal Medical Council? 9. Whether the petitioner's conduct in 1999, though complained of in 2004, came under the purview of the Bengal Medical Act, 1914, and not the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002? 10. Whether the impugned order of the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, was illegal, violative of the principles of natural justice, or without jurisdiction?

Ratio Decidendi: 1. The Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, was the appropriate appellate authority under Section 26 of the Bengal Medical Act, 1914, and his order was not subject to challenge in a writ petition. 2. The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, framed under the Indian Medical Council Act, 1956, were not applicable to the present case as the alleged medical negligence occurred in 1999, before the regulations came into force. 3. The petitioner's appeal to the Medical Council of India under Rule 8.8 of the regulations was barred by limitation and could not be entertained. 4. The provisions of Section 24(2) of the Indian Medical Council Act, 1956, which provided for an appeal to the Central Government against removal of a name from a State Medical Register, were inoperative as the Central Government had delegated its power to the Medical Council of India. 5. The Bengal Medical Act, 1914, was not repealed by the Indian Medical Council Act, 1956, and the two Acts could co-exist harmoniously. 6. The petitioner, having appeared before the appellate authority and participated in the proceedings, was estopped from challenging its jurisdiction. 7. The right to appeal was a vested right that could not be taken away except by express enactment or necessary intendment. 8. The Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, had the power to enhance the punishment imposed by the West Bengal Medical Council. 9. The petitioner's conduct in 1999, though complained of in 2004, came under the purview of the Bengal Medical Act, 1914, and not the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. 10. The impugned order of the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal, was not illegal, violative of the principles of natural justice, or without jurisdiction, and did not warrant interference by the Writ Court.

Final Decision: The writ petition was dismissed.