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TMI Blog2014 (5) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) TMI 559 - CALCUTTA HIGH COURT ] itself lays down that stay of an operation of an order means that the order would not be operative. List the matter in the category of 'Regular Matters' according to its seniority. The impugned order passed by the Ethics Committee of MCI dated 27th October, 2012 and the decision of the erstwhile Board of Governors of MCI dated 10th December, 2012 are stayed till disposal of the petition - Application disposed off. - Manmohan, J. For the Appellant : Mr. Anil Goel, Mr. Ashwani Goel, Advocates and Party-in-Person For the Respondent : Mr. Maninder Singh, Senior Advocate, Mr. T. Singhdev, Advocate, Mr. Mohammad Ali Choudhary, Advocate for R-1, Mr. Rabin Majumdar, Advocate, Mr. D.K. Pradhan, Advocate for R-2, Mr. Karan Bharihoke, Advocate and Mr. Eklavya Bahl, Advocate for Dr. Pooja Bhatia JUDGMENT Manmohan, J. 1. Present writ petition has been filed seeking quashing of the order passed by the Ethics Committee of respondent-Medical Council of India (for short 'MCI') dated 27th October, 2012 and the decision of the erstwhile Board of Governors of MCI dated 10th December, 2012 whereby, the name of the petitioner has been directed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 17th February, 2010 had held that in the light of the provisions of Section 24(2) of the Act, 1956, Clause 8.8 of Regulations, 2002 is unconstitutional. 7. Clause 8.8 of Regulations, 2002 is reproduced hereinbelow:- 8.8. Any person aggrieved by the decision of the State Council on any complaint against a delinquent physician, shall have the right to file an appeal to MCI within a period of sixty days from the date of receipt of the order passed by the said Medical Council: Provided that MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days allow it to be presented within a further period of 60 days. 8. The relevant portion of learned Single Judge's judgment in Dr. (Mrs.) Rupa Basu (Banerjee) is reproduced hereinbelow:- 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 pract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not under Rule 8.8 of the Regulation of 2002 which is unconstitutional. I also conclude that there is no illegality, violation of the principles of natural justice and want of jurisdiction in the impugned order of the Principal Secretary to the Government of West Bengal, Health and Family Welfare Department which should be interfered with by the Writ Court to prevent any miscarriage of justice and abuse of the process of law. 9 . Mr. Maninder Singh further stated that upon an appeal being filed, the Division Bench of Calcutta High Court vide judgment dated 29th September, 2011 in Medical Council of India Vs. State of West Bengal Ors, (2012) 1 CALLT 100 (HC) has held as under:- 35. We supplement expressing our views to what Parliament has not done the same cannot be done by the Council which is the creature of the Act, even with the approval of the Government. It appears that the said Regulation has been accepted by the Supreme Court in the case of Moloy Ganguly v. Medical Council of India and Ors. in W.P.C. No. 317 of 2000. We think the Hon'ble Apex Court has merely approved incorporation of regulation but it has not expressed any opinion of its overriding applicability. We quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding imposed punishment which does not appear to be shockingly disproportionate. We, therefore, uphold this decision. Thus both the appeals are disposed of. Stay of operation of this judgment is prayed for, such prayer for stay is granted till 6th November, 2011. 10. Mr. Maninder Singh pointed out that though the matter is pending adjudication before the Supreme Court in SLP (C) No. 33306-33308/2011-Rupa Basu (Banerjee) Vs. State of West Bengal Ors., yet the Apex Court vide order dated 12th December, 2011 has stayed the operation of the judgment passed by the Division Bench of Calcutta High Court in Medical Council of India Vs. State of West Bengal Ors (supra) and also the order of State Government of West Bengal dated 11th May, 2009. The relevant portion of the aforesaid order dated 12th December, 2011 is reproduced hereinbelow:- In the meanwhile, operation of the impugned judgment shall remain stayed along with order dated 11.6.2009 passed by the Government of West Bengal, Department of Health and Family Welfare shall remain stayed. It shall be the petitioner's duty to serve the respondents before the next date of hearing failing which the interim order passed today shall st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court was not bound by the decision of Calcutta High Court. He also submitted that neither learned Single Judge's judgment nor Supreme Court's order could be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution. According to him, the said decision and order were neither express nor founded on reasons or proceed on consideration of the issue. 18 . Mr. Rabin Majumder relied upon another judgment of Calcutta High Court in Pijush Kanti Chowdhury Vs. State of West Bengal HC and Ors., (2007) 2 CALLT wherein it has been held as under:- 10................. Such interim order is binding upon the parties to the proceedings but the law is equally settled that by mere passing of an interim order staying the operation of a judgment with certain further conditions, the existence of the said judgment is not wiped out and at the same time, for such interim orders inter parties, the authority of a decision as a precedent is never undermined. Unless a decision is set aside by the Superior Court, the said decision remains binding as a precedent though may not be binding upon the parties to the proceedings where the Superior Court has gra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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