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TMI Blog2010 (2) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... nd post graduate degree in the same field. Smt. Madhumita Baral, the respondent no. 6, is the wife of respondent no. 5, a railway employee. The respondent no. 6 conceived for the third time at the age of 34 years and instead of availing the railway medical facilities to which she is entitled as wife of a railway employee she had chosen admission in New Life Maternity Nursing Home, Chanditala, Hooghly under the petitioner and was admitted to the said nursing home on 14.08.1999 for Lower Uterine Caesarian Section and bilateral tubectomy operation. Before that she was treated elsewhere and attended the OPD of Eastern Railways Hospital at Liluah on 23.07.1999 and was referred to Gynaecological department of B. R. Singh Hospital, Caluctta. On the morning of 15.08.1999 the patient underwent LUCS and bilateral tubectomy under the petitioner and gave birth to a female baby. Nine days thereafter, the said patient and her female baby were discharged from the nursing home on 24.08.1999. On 27.08.1999 on call the petitioner attended the respondent no. 6 for dressing the caesarian section scar. On 30.08.1999 the patient had a complaint of bleeding from the caesarian section scar and gave a call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egnancy was a post-Caesar you did not care to take proper precaution during the operation and had taken an unqualified person to assist you during the operation. c) That you did not care to take one Paediatrician in the operation theatre during the operation and thereafter for proper care of the baby. d) That you have performed Tubectomy at the time of L.U.C.S. though the same was not indicated. 6. On 11.09.2008 the petitioner was informed by the Registrar, West Bengal Medical Council that after due enquiry the first three charges framed against her as mentioned in the notice of enquiry had been substantiated and the West Bengal Medical Council had decided to 'warn' the petitioner for professional misconduct. (Annexure P/18 to the Writ Petition). 7. On 18.03.2009 the petitioner received a communication from the department of Health and Family Welfare, Government of West Bengal with direction to appear before the Principal Secretary of the said Department for personal hearing in the matter of an appeal under Section 26 of the Bengal Medical Act, 1914 preferred by the complainant, i.e., respondent no. 5, Sushanta Kumar Baral challenging the decision of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Court on the instant petition. 11. Learned lawyer for the petitioner has further contended that in the instant case the treatment was made by the petitioner on or about 15.08.1999 and the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 came into force with effect from 11th March, 2002. The Code of Medical Ethics of the West Bengal Medical Council was adopted and approved in 2003 on the basis of Medical Council of India circular dated 18.04.2003. Thereafter, the complaint of alleged medical negligence was made on 29.06.2004 by respondent no. 5 relating to the events of treatment of respondent no. 6 and her baby by the petitioner between 14.08.1999 and 24.08.1999. Under the new regulation of 2002 the appellate authority has been prescribed as The Medical Council of India and as such since the complaint was lodged after implementation of the regulation in 2002, the present case will be governed under the new regulation and the appeal shall lie before the Medical Council of India which has, however, been contradicted by the respondent nos. 1 and 2. 12. From the argument advanced by learned lawyers for both respondents it emerges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Council.- (1) An appeal shall lie to the State Government from every decision of the Council under section 17 or section 25. (2) Every appeal under sub-section (1) shall be preferred within three months from the date of such decision. 14. From a plain reading of the aforesaid provisions of Section 26 of the Bengal Medical Act, 1914 it appears that there is no indication of professional qualification of the appellate authority to be appointed under this provision. It has been contended by the learned lawyer for the petitioner that the Principal Secretary in the instant case is a member of the Indian Administrative Service having no experience in the medical profession and he cannot and should not sit in appeal to decide the propriety of the finding of the West Bengal Medical Council based on the report of the Ethical Committee consisting of highly skilled professionals who are the competent authority to decide and judge the real nature of infamous conduct in any professional respect committed by a doctor. Since Section 26 or any other provision of the Act does not prescribe the professional qualification of the Appellate Authority required for deciding an appeal against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal practitioners for the time being in force in any State, the Council shall direct the removal of the name of such person from the Indian Medical Register. (2) Where the name of any person has been removed from a State Medical Register on the ground of professional misconduct or any other ground except that he is not possessed of the requisite medical qualification or where any application made by the said person for restoration of his name to the State Medical Register has been rejected, he may appeal in the prescribed manner and subject to such conditions including conditions as to the payment of a fee as may be laid down in rules made by the Central Government in this behalf, to the Central Government, whose decision, which shall be given after consulting the Council, shall be binding on the State Government and on the authorities concerned with the preparation of the State Medical Register. 18. From such provisions the following propositions can easily be inferred:- a) There shall be two Registers of medical practitioners one to be maintained by the State Medical Councils and the other by the Medical Council of India. b) When the name of a person enrolled on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils have to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils. Rule 8.2 It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Medical Council which may be extended for a further period of 60 days for sufficient cause to the satisfaction of the Medical Council of India. So by necessary implication the maximum period of limitation will be 120 days from the date of receipt of the order passed by the State Medical Council. In the instant case, admittedly the petitioner received order of the West Bengal Medical Council on 11.09.2008 but she preferred the appeal on 07.06.2009 long after expiry of the maximum period of limitation. Therefore, such appeal is barred by limitation and cannot be entertained by the Medical Council of India. In paragraph 14 of their reply affidavit, Medical Council of India, respondent no. 4, has also averred that such appeal is neither in proper format nor required fee has been deposited by the petitioner as per their prescribed procedure. 22. Learned lawyer for the petitioner has contended that the regulation of 2002 was made by the Medical Council of India in exercise of the powers conferred under the Indian Medical Council Act, 1956. Once there has been made provision for preferring appeal against findings of the State Medical Council under the regulation of 2002 made with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of West Bengal: 1) (2008) 4 SCC 720 2) (2006) 4 SCC 327 For the State Medical Council: 1) (2006) 8 SCC 279 2) (2007) 4 SCC 312 3) (1990) 2 SCC 288 4) AIR 2008 SC weekly 844 5) AIR 1984 SC 981 6) (2006) 4 SCC 327 7) (2005) 3 SCC 601 8) (2001) 5 SC 268 25. While defending the act of the appellate authority learned lawyer for the State respondent has contended that Section 26 of the Bengal Medical Act is the outcome of a statute made by the state legislature under Concurrent List and any regulation framed by the Medical Council of India cannot override the statutory provision of Section 26 of the Act. He has further contended that under the Indian Medical Council Act, there is no provision for appeal by a third party (other than the delinquent physician) to be preferred before the Medical Council of India and Section 26 of the Bengal Medical Act has not been repealed by the Act of 1956. In fact it is a patent lacunae of the Act of 1956 which cannot be cured by the Medical Council of India by creating any appellate authority in exercise of its power conferred under Section 33(m) of the Act of 1956. In fact Section 20A and Section 33(m) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. In AIR 1967 SC 344 it has been further observed by the Hon'ble Apex Court that the decision in Hossein Kasam Deda's case proceeded on the grounds that when a lis commence, all rights get crystallised and no clog upon a likely appeal can be put, unless, the law was made retrospective, expressly or by clear implication. Therefore, unless it can be proved conclusively that the lis had commenced before the amendment of the law, the rule in Hossein Kasam Deda's case cannot apply. 28. Relying upon the above principles, I hold that the right of appeal claimed by the petitioner in the instant case is a substantive right and it is to be looked into if such substantive right can be taken away or amended by any creature of a statute by virtue of any delegated legislation as contemplated in Section 33(m) of the Indian Medical Council Act, 1956. 29. I have already referred to sub-Section 2 of Section 24 of the Indian Medical Council Act, 1956 (paragraph 17 above) which deals with removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. 32. In Section 26 of the Bengal Medical Act it has been specifically mentioned that appeal shall lie against any decision of the State Medical Council before the State Government from every decision of the council under Section 17 or Section 25 which is open to every aggrieved person. In sub- Section (2) of Section 24 of the Indian Medical Council Act, 1956 it has been prescribed that appeal by delinquent practitioner shall lie against removal of name from State Medical Register to the Central Government who will decide the matter after consulting the Medical Council of India and such decision shall be binding upon the State Council and on the authorities concerned with the preparation of the State Medical Register. Thus the Central Government and the State Government have been made two Appellate Authorities for deciding the same issue giving liberty to the aggrieved person to chose either of the forum. 33. If this sub-Section (2) of Section 24 is considered as a provision for preferring Appeal against removal of name from a State Medical Register it is to be presumed that such forum has been created by Central legislature without abolishing or extinguishing existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created by the Parliament in 1956 Medical Council of India cannot by Regulation exclude the jurisdiction of the appellate authority created under Section 24(2) of the Indian Medical Council Act, 1956 or under Section 26 of the Bengal Medical Act, 1914. 34. Therefore, instead of repealing or abolishing the appellate authority prescribed under Section 26 of the Bengal Medical Act, passed by the State Legislature the Central Government in the instant case has created and identified itself as another forum under Section 24 of the Act of 1956 for such appeal in respect of a subject under the Concurrent List of the Seventh Schedule to the Constitution only for the limited purpose of preferring appeal by the aggrieved physician. 35. On the contrary in exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956, Medical Council of India with the previous approval of the Central Government has framed The Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. For the purpose of discussion both the provisions of Section 20A and 33(m) of the Act are quoted below:- Section 20A. Professional conduct.-(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Authority. 36. Similarly in exercise of the powers conferred in clause (m) of Section 33 of the Act the Medical Council of India is empowered, subject to previous sanction of the Central Government, to make regulation to carry out the purposes of the Act so far as it relates to the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners . So by virtue of such limited power conferred under clause 'm', Medical Council of India cannot create any Appellate Authority or penal provision like removal of name from the Register maintained by itself or by the State Council. In fact Rules and Regulations are wheels of an enactment to give effect to the purposes and objects of an Act and cannot travel beyond the track laid down in the Act. Therefore, provisions of Rule 8.8 of the Regulation of 2002 made by the Medical Council of India in exercise of its powers conferred under Section 33(m) of the Act of 1956 are equally beyond its jurisdiction and as such unconstitutional because it has been set at rest in 2006(4) SCC 327 (paragraphs 4,15,16 and 17) and 2005 (3) SCC 601 that as per general principle of cognate rules any provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above principles so laid down by the Hon'ble Apex Court I hold that sub-Section (2) of Section 24 and rules framed under such Act are all prospective in nature and at the same time by virtue of this enactment the provision laid down in Section 26 the Bengal Medical Act has neither been repealed nor has become non-est. 39. Now the relevant question for us is to decide whether the conduct of the petitioner will be governed under the Indian Medical Council Act, 1956 and regulation framed thereunder in 2002 which are prospective. It has already been pointed out that the imputation of professional misconduct relates to the period from 14.08.1999 to 24.08.1999 and the complaint was lodged for the first time on 29.06.2004 before the West Bengal Medical Council while the regulation of 2002 or the provision of Section 24(2) as the case may be are in operation. 40. So far as the regulation of 2002 is concerned, I have already pointed out that it has also not expressly made any provision for dealing with cases pending on the date of coming into force of the regulation with effect from 6th April, 2002. The right, liabilities and obligation arises as soon as the disputed act or commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the State Medical Council Acts prevailing at the time of enactment of the Indian Medical Council Act, 1956 were allowed by the Parliament to be continued and those are not affected in any way following enactment of the Indian Medical Council Act, 1956. Therefore, the State Act has overriding effect upon the Regulation framed by the Medical Council of India and its appellate provision contained in Section 26 are valid and operative in West Bengal. Whereas similar provisions contained in Section 24(2) of the Act of 1956 does not create any vested right to prefer appeal by third party against any penal proceedings of the State Medical Council and where as it has been inoperative inasmuch as the Central Government has divested itself of its appellate power by delegating the same in favour of the Medical Council of India while gave concurrence to the framing of Regulation of 2002 under Section 33(m) of the Act, the only course left open for the complainant being a third party to prefer such appeal under Section 26 of the Bengal Medical Act, 1914 before the State Government and his action cannot be treated as without lawful authority. 44. Now, therefore, the necessary constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 288 (paragraphs 21 and 22), A 2008 SCW 844 (paragraph 27) and A 1984 SC 981 to substantiate his claim that when two statutes may confer jurisdiction on two different for a for adjudication and if there is any apparent conflicts, the Court should interpret the competing provisions of the said statutes for giving effect to the harmonious construction of both of them. I hold that said principles are applicable in the present case while interpreting Section 24(2) of the Act of 1956 and Section 26 of the Act of 1914 so far as appellate forum is concerned and so far as the class or classes of persons who can come under the purview of these two appellate fora. 45. In the instant case admittedly the writ petitioner appeared before the appellate forum constituted under Section 26 of the Bengal Medical Act and after passing of the order she has challenged its propriety which is not permissible because constitution of the forum under Section 26 of the Bengal Medical Act for a third party is not violative of and contradictory to the provisions of sub-Section 2 of Article 254 of the Constitution. He who claims equity must come with clean hands. But in the instant case the writ petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 26 of the Bengal Medical Act and they have subjected themselves to the jurisdiction of the appellate authority till its findings without challenging its propriety and thereby exhausted its right of appeal before a forum which is created by a statute and which has exercised its power lawfully within the ambit. At the same time in view of what has been stated in paragraph 42 above I further hold that the provisions of Section 24(2) of the Act of 1956 have become inoperative on account of delegation of such power, though impermissible, by the Central Government in favour of the Medical Council of India. 47. Learned lawyer for the petitioner has further contended that the Principal Secretary, Health and Family Welfare Department, Government of West Bengal is a member of the Indian Administrative Service having no special knowledge in the field of medical profession. So the petitioner has not received adequate justice before such appellate authority who sat in appeal against an order of the State Medical Council based on the report of their ethical committee consisting of medical experts. It has already been pointed out that in the case of Central Government in sub-Section 2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt cannot interfere in its findings. 48. Section 27 of the Bengal Medical Act is also a bar to suits and other legal proceedings in like cases. It has been stated therein that no suit or other legal proceeding shall lie in respect of any act done in exercise of any power conferred by this Act on the State Government or the Council or any committee of council or the Registrar. Since the appellate authority has exercised the power conferred in it by Section 26 of the Act in exercise of its bona fide official power no legal proceeding shall lie against his order issued in exercise of the power conferred under specific provision of Section 26 of the Act by virtue of which he has assumed the power also conferred under Section 25 of the Act. Moreover, I agree with the views of the learned lawyer for the State who has contended that alternative remedy in Writ jurisdiction is not maintainable in view of availability of alternative remedy of statutory appeal under Section 26 of the Act of 1914 or for that matter of fact under Section 24(2) of the Act of 1956 which has been fully utilised by the present writ petitioner. From this point of view, I hold that the instant writ petition is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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