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IN THE HIGH COURT AT CALCUTTA
ANIRUDDHA BOSE J.
Dr. Sukumar Mukherjee
Vs.
Medical Council of India & Ors.
And
Dr. Kunal Saha
Vs.
Medical Council of India & Ors.
W.P. No. 9758 (W) of 2011
With
W.P. No. 3993 (W) of 2013
Decided On: 8th August, 2014
Whether the impugned Regulation 8.8 of the Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations, 2002 (2002 Regulations) is ultra vires the Indian Medical Council Act, 1956 (1956 Act) and Constitution of India, 1950; and whether the impugned order of the Medical Council of India (MCI) dated 23 May 2011, removing the name of the petitioner from the register of the State Medical Council for a period of three months on the ground of medical negligence, is valid.
Fact of the Case:
The petitioner, a medical practitioner, challenged the validity of a provision (Regulation 8.8) of the 2002 Regulations, which allowed the MCI to entertain appeals against decisions of State Medical Councils, and the impugned order of the MCI removing his name from the register of the State Medical Council for a period of three months on the ground of medical negligence. The petitioner contended that Regulation 8.8 was ultra vires the 1956 Act and the Constitution, and that the MCI had no jurisdiction to entertain his appeal since it was filed after the expiry of the limitation period prescribed under the Limitation Act, 1963 (1963 Act).
Finding of the Court:
The Court held that Regulation 8.8 was valid but quashed the MCI's decision on the ground that the MCI had no jurisdiction to entertain and decide the petitioner's appeal. The Court found that the 1956 Act empowered the MCI to prescribe standards of professional conduct and etiquette and enumerate the violations thereof which shall constitute infamous conduct in any professional respect, but it did not confer upon the MCI the power to deal with the question of punishment of a registered medical practitioner or with the question of an appeal against an order passed by the State Council on the complaint of a victim. The Court further held that the MCI could not invoke the provisions of Section 14 of the 1963 Act, which excludes the time during which a plaintiff has been prosecuting with due diligence another civil proceeding, to entertain the petitioner's appeal since the MCI was not a "Court" within the meaning of the 1963 Act.
Issues: 1. Whether Regulation 8.8 of the 2002 Regulations is ultra vires the 1956 Act and the Constitution. 2. Whether the MCI had jurisdiction to entertain the petitioner's appeal. 3. Whether the MCI could invoke the provisions of Section 14 of the 1963 Act to entertain the petitioner's appeal.
Ratio Decidendi: 1. The Court held that Regulation 8.8 was valid because the 1956 Act empowered the MCI to prescribe standards of professional conduct and etiquette and enumerate the violations thereof which shall constitute infamous conduct in any professional respect, and Regulation 8.8 was made in exercise of this power. 2. The Court held that the MCI had no jurisdiction to entertain the petitioner's appeal because the 1956 Act did not confer upon the MCI the power to deal with the question of punishment of a registered medical practitioner or with the question of an appeal against an order passed by the State Council on the complaint of a victim. 3. The Court held that the MCI could not invoke the provisions of Section 14 of the 1963 Act to entertain the petitioner's appeal because the MCI was not a "Court" within the meaning of the 1963 Act.
Final Decision: The Court quashed the MCI's decision removing the petitioner's name from the register of the State Medical Council for a period of three months on the ground of medical negligence.
ANIRUDDHA BOSE, J.:-
1. The petitioner in W.P. No. 9758 (W) of 2011 is Dr. Sukumar Mukherjee, a medical practitioner. He has challenged the validity of an order passed by the Medical Council of India (MCI) acting in the capacity of appellate authority over the West Bengal Medical Council (the State Council) in relation to a proceeding involving allegations of medical negligence. By this order issued on 23 May 2011, the MCI has directed removal of the writ petitioner’s name for a period of three months from the register of the State Council. The State Council had cleared the writ petitioner of the charge of negligence by its decision dated 18 June, 2002. The order of 23 May, 2011 was issued by the MCI in an appeal filed by Dr. Kunal Saha (the respondent no. 4 in W.P. No. 9758 (W) of 2011) under the provisions of Clause 8.8 of the Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations, 2002 (the 2002 Regulations), framed under the provisions of the Indian Medical Council Act, 1956 (the 1956 Act). Dr. Saha is also a medical practitioner involved, inter alia, in research work, based in the United States of America. He was the complainant before the State Council, alleging negligence on the part of Dr. Mukherjee and certain other medical practitioners in treating his wife, Anuradha, (since deceased). In this writ petition, i.e., W.P. No. 9758 (W) of 2011, the validity of the said provisions of the 2002 Regulations is also under challenge. Alternative submission of the writ petitioner in this proceeding is that the said provisions of the Regulations would not apply in his case, and the appeal of Dr. Saha before the MCI, in which the impugned order has been passed, was time barred.
2. The petitioner in W.P. No. 3993 (W) of 2013 is Dr. Kunal Saha, the appellant in the proceeding before the MCI. The initial complaint was made before the State Council against Dr. Mukherjee on 7 July, 1999. The medical practitioners against whom allegations were made included Dr. Baidyanath Halder and Dr. Abani Roy Chowdhary. Complaint against them was also filed before the State Council at a later date. Dr. Roy Chowdhary passed away during subsistence of that proceeding. A similar order was passed by the MCI against Dr. Halder also in Dr. Saha’s appeal. Dr. Halder had challenged the said order by filing an independent writ petition, which was registered as W.P. No. 9757 (W) of 2011. During pendency of that writ petition, Dr. Halder had passed away and there has been abatement of that writ petition. In his writ petition, being W.P. No. 3993 (W) of 2013, Dr. Saha has primarily prayed for enhancement of punishment of Dr. Mukherjee. I shall deal with both these petitions in this judgment, but I shall refer to and decide W.P. No. 9758 (W) of 2011 first. Thus, further reference to the petitioner in subsequent parts of this judgment would imply the petitioner in W.P. No. 9758(W) of 2011, and I shall discuss the factual and legal issues involved in that writ petition only. I shall deal with Dr. Saha’s writ petition, W.P. No. 3993(W) of 2013 thereafter in this judgment.
3. The controversy involved in both the proceedings originates from the death of Anuradha Saha, the deceased wife of Dr. Saha on 28 May, 1998 in Breach Candy Hospital at Mumbai. She was initially treated in Kolkata by Dr. Mukherjee (the petitioner) along with certain other medical practitioners and basic complaint of Dr. Saha all along has been negligence on the part of the medical practitioners treating her at Kolkata. One Malay Kumar Ganguly, a relative of Dr. Saha had filed a criminal complaint in the Court of the Chief Judicial Magistrate, 24 parganas at Alipore against the writ petitioner and two other medical practitioners. A separate complaint was also filed before the National Consumer Disputes Redressal Commission, New Delhi (the Commission) under the Consumer Protection Act, 1986 seeking compensation, on the allegation of deficiency in service, and the writ
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