2010 (2) TMI 1286 - HC - Indian Laws

Summary

Issues Involved:
1. Legality and propriety of the Principal Secretary's order enhancing the penalty imposed by the West Bengal Medical Council.
2. Applicability of the Bengal Medical Act, 1914 versus the Indian Medical Council Act, 1956 and the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
3. Jurisdiction and authority of the appellate forum under Section 26 of the Bengal Medical Act, 1914.
4. Validity of the appeal filed by the petitioner under Rule 8.8 of the Indian Medical Council Regulations, 2002.
5. Estoppel and waiver concerning the petitioner's participation in the appellate proceedings.
6. Retrospective application of the Indian Medical Council Regulations, 2002.
7. Constitutional implications and repugnancy between the Bengal Medical Act, 1914, and the Indian Medical Council Act, 1956.

Detailed Analysis:

1. Legality and Propriety of the Principal Secretary's Order:
The petitioner challenged the legality of the order dated 07.05.2009 by the Principal Secretary, Department of Health and Family Welfare, which enhanced the penalty imposed by the West Bengal Medical Council. The Principal Secretary's decision was based on an appeal under Section 26 of the Bengal Medical Act, 1914, filed by the complainant. The court found that the Principal Secretary acted within the legal framework provided by the Bengal Medical Act, 1914, and there was no breach of existing law in enhancing the punishment from a 'warning' to removal of the petitioner's name from the register for six months.

2. Applicability of the Bengal Medical Act, 1914 versus the Indian Medical Council Act, 1956 and the Regulations, 2002:
The court analyzed the provisions of both the Bengal Medical Act, 1914, and the Indian Medical Council Act, 1956, along with the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. It was concluded that the Indian Medical Council Act, 1956, did not repeal the Bengal Medical Act, 1914, and both could coexist. The court held that the Bengal Medical Act, 1914, continued to be in force and applicable in the state of West Bengal.

3. Jurisdiction and Authority of the Appellate Forum:
Under Section 26 of the Bengal Medical Act, 1914, the State Government was designated as the appellate authority. The court found that the Principal Secretary, acting as the appellate authority, had the jurisdiction to hear the appeal and enhance the penalty. The court rejected the petitioner's argument that the Principal Secretary lacked the professional qualifications to decide the appeal, stating that the legislative wisdom did not prescribe such qualifications for the appellate authority.

4. Validity of the Appeal Filed by the Petitioner:
The petitioner filed an appeal under Rule 8.8 of the Indian Medical Council Regulations, 2002, challenging the order of the West Bengal Medical Council. The court noted that the appeal was filed long after the maximum period of limitation of 120 days and was therefore barred by limitation. Additionally, the appeal was not in the proper format, nor was the required fee paid.

5. Estoppel and Waiver:
The court held that the petitioner, having participated in the appellate proceedings before the Principal Secretary without initially challenging the forum's propriety, was estopped from questioning its authority after an adverse decision. The principle of estoppel by conduct was applicable, as the petitioner had waived her right to challenge the appellate authority by her actions.

6. Retrospective Application of the Regulations, 2002:
The court determined that the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, were prospective in nature and did not apply retrospectively to the petitioner's conduct in 1999. The complaint lodged in 2004 could not be considered under the 2002 Regulations, as there was no express provision for their retrospective application.

7. Constitutional Implications and Repugnancy:
The court addressed the constitutional implications of potential repugnancy between the Bengal Medical Act, 1914, and the Indian Medical Council Act, 1956. It was held that the Bengal Medical Act, 1914, was a valid state legislation under the Concurrent List and would prevail in the state of West Bengal as per Article 254(2) of the Constitution. The court found no repugnancy between the two Acts, as the Indian Medical Council Act, 1956, did not expressly repeal the Bengal Medical Act, 1914.

Conclusion:
The writ petition was dismissed, and the court upheld the order of the Principal Secretary, Health and Family Welfare Department, Government of West Bengal, enhancing the penalty imposed on the petitioner. The court found no merit in the petitioner's arguments and concluded that the Principal Secretary acted within the legal framework, and the petitioner's appeal under the Indian Medical Council Regulations, 2002, was barred by limitation and not maintainable.