2018 Supreme(Cal) 732

IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Tapan Mukherjee - Appellant
Vs.
Medical Council of India - Respondent
Writ Petition No. 4202, 4205, 4204 of 2015, C A N No. 8971, 7107, 7108 of 2015, 8972, 7106, 8969 of 2015
Decided On : 30-11-2018

Regulations 8.7 and 8.8 of the 2002 Regulations are ultra vires and therefore all actions taken under those Regulations are bad in law.

Headnote:

MEDICAL COUNCIL OF INDIA - Disciplinary proceedings - Regulations 8.7 and 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (2002 Regulations) - Vires - Whether the Medical Council of India (MCI) has the power to withdraw a complaint from the State Medical Council and decide the same itself in the event the State Medical Council fails to adhere to the time schedule of six months - Whether the MCI has the original jurisdiction to decide a complaint against a medical practitioner - Whether the MCI has the appellate jurisdiction in respect of an order passed by the State Medical Council - Whether the MCI could have framed Regulations 8.7 and 8.8 without the Parliament amending the Indian Medical Council Act, 1956 (IMC Act) appropriately - Whether the MCI being a creature of statute, it has to act within the four corners of the parent statute - Whether the Act of a statutory authority done in exercise of a power not given by the parent statute shall render the Act void and invalid as the same would be without jurisdiction - Whether the MCI only has the power under Section 24 (1) of the IMC Act to take the consequential step of removal of the name of a doctor from the Indian Medical Register when the State Medical Council has removed the name of such person from the State Medical Register - Whether the MCI does not have either the original or appellate power to entertain a complaint lodged against a medical practitioner - Whether the MCI could withdraw the complaint from the State Medical Council if it had reason to believe that there was no justified reason for the State Medical Council not deciding the complaint within six months - Whether the purported exercise of power by MCI under Regulation 8.7 is violative of statutory provisions and, hence, bad in law vitiating the impugned order - Whether the want of jurisdiction cannot be cured by consent or acquiescence - Whether the parties cannot by consent confer jurisdiction on a forum which otherwise lacks jurisdiction - Whether the vires of Regulations 8.7 and 8.8 have been challenged in these writ petitions - Whether the said Regulations were incorporated pursuant to suggestion made by the Apex Court - Whether it would be improper for the Court to strike down the said Regulations - Whether the vires of the said Regulations may be considered by the Apex Court in an appropriate case.

Fact of the Case:

The writ petitions were filed challenging an order dated 1 October, 2014 passed by the Executive Committee of the Medical Council of India approving the recommendation of the Ethics Committee taken in its meetings dated 17 and 18 July, 2014. The recommendation of the Ethics Committee was to remove the name of Dr. Tapan Mukherjee (writ petitioner in WP 4202 (W) of 2015) for three years from the Indian Medical Register; to remove the name of Dr. Joydip Basu (writ petitioner in WP 4204 (W) of 2015) for a period of two years from the Indian Medical Register; and to remove the name of Dr. Kamal Kumar Das (writ petitioner in WP 4205 (W) of 2015) for a period of five years from the Indian Medical Register. Similar questions of fact and law were involved in all the three writ petitions and accordingly the three writ petitions were taken up together for hearing and disposal.

Finding of the Court:

The Court held that Regulations 8.7 and 8.8 of the 2002 Regulations are ultra vires and therefore all actions taken under those Regulations are bad in law. The Court further held that even assuming that the Regulations are intra vires, in that event, the correct procedure for invoking those provisions were not followed and as a result the decision making process is vitiated and the impugned decision is bad in law. The Court also held that the MCI being a creature of statute, it has to act within the four corners of the parent statute any Act of a statutory authority done in exercise of a power not given by the parent statute shall render the Act void and invalid as the same would be without jurisdiction. The Court further held that the MCI does not have either the original or appellate power to entertain a complaint lodged against a medical practitioner. The Court also held that the MCI only has the power under Section 24 (1) of the IMC Act to take the consequential step of removal of the name of a doctor from the Indian Medical Register when the State Medical Council has removed the name of such person from the State Medical Register. The Court also held that the purported exercise of power by MCI under Regulation 8.7 is violative of statutory provisions and, hence, bad in law vitiating the impugned order. The Court also held that the want of jurisdiction cannot be cured by consent or acquiescence. The Court also held that the vires of Regulations 8.7 and 8.8 have been challenged in these writ petitions. However, since the said Regulations were incorporated pursuant to suggestion made by the Apex Court, it would be improper for the Court to strike down the said Regulations. The Court also held that the vires of the said Regulations may be considered by the Apex Court in an appropriate case.

Issues: Whether Regulations 8.7 and 8.8 of the 2002 Regulations are ultra vires and therefore all actions taken under those Regulations are bad in law. Whether the correct procedure for invoking those provisions were not followed and as a result the decision making process is vitiated and the impugned decision is bad in law. Whether the MCI being a creature of statute, it has to act within the four corners of the parent statute any Act of a statutory authority done in exercise of a power not given by the parent statute shall render the Act void and invalid as the same would be without jurisdiction. Whether the MCI does not have either the original or appellate power to entertain a complaint lodged against a medical practitioner. Whether the MCI only has the power under Section 24 (1) of the IMC Act to take the consequential step of removal of the name of a doctor from the Indian Medical Register when the State Medical Council has removed the name of such person from the State Medical Register. Whether the purported exercise of power by MCI under Regulation 8.7 is violative of statutory provisions and, hence, bad in law vitiating the impugned order. Whether the want of jurisdiction cannot be cured by consent or acquiescence. Whether the vires of Regulations 8.7 and 8.8 have been challenged in these writ petitions. Whether the said Regulations were incorporated pursuant to suggestion made by the Apex Court. Whether it would be improper for the Court to strike down the said Regulations. Whether the vires of the said Regulations may be considered by the Apex Court in an appropriate case.

Ratio Decidendi: The Court held that Regulations 8.7 and 8.8 of the 2002 Regulations are ultra vires and therefore all actions taken under those Regulations are bad in law. The Court further held that even assuming that the Regulations are intra vires, in that event, the correct procedure for invoking those provisions were not followed and as a result the decision making process is vitiated and the impugned decision is bad in law. The Court also held that the MCI being a creature of statute, it has to act within the four corners of the parent statute any Act of a statutory authority done in exercise of a power not given by the parent statute shall render the Act void and invalid as the same would be without jurisdiction. The Court further held that the MCI does not have either the original or appellate power to entertain a complaint lodged against a medical practitioner. The Court also held that the MCI only has the power under Section 24 (1) of the IMC Act to take the consequential step of removal of the name of a doctor from the Indian Medical Register when the State Medical Council has removed the name of such person from the State Medical Register. The Court also held that the purported exercise of power by MCI under Regulation 8.7 is violative of statutory provisions and, hence, bad in law vitiating the impugned order. The Court also held that the want of jurisdiction cannot be cured by consent or acquiescence. The Court also held that the vires of Regulations 8.7 and 8.8 have been challenged in these writ petitions. However, since the said Regulations were incorporated pursuant to suggestion made by the Apex Court, it would be improper for the Court to strike down the said Regulations. The Court also held that the vires of the said Regulations may be considered by the Apex Court in an appropriate case.

Final Decision: The Court set aside the order of the Ethical Committee/MCI which was under challenge in these writ petitions. The Court also directed the West Bengal Medical Council to be at liberty to deal with the complaint in question in accordance with law and to complete the proceeding as expeditiously as possible and in any event within six months from date.