Allahabad High Court
Dr. Neetu Rastogi vs Union Of India And 4 Others on 31 January, 2017
Equivalent citations: AIR 2017 ALLAHABAD 140, (2017) 122 ALL LR 117, (2017) 3 ADJ 271 (ALL), (2017) 2 ALL WC 1922, (2017) 3 KER LT 37.1
Bench: Amreshwar Pratap Sahi, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 32 Case :- WRIT - C No. - 4369 of 2017 Petitioner :- Dr. Neetu Rastogi Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Sushil Shukla Counsel for Respondent :- C.S.C.,A.S.G.I.,Avanish Mishra Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Prabhat Chandra Tripathi,J.
Heard Sri Sushil Shukla, learned counsel for the petitioner, Sri Avanish Mishra, learned counsel for the Medical Council of India and learned Standing Counsel for the respondent nos. 1 and 2.
The petitioner is a Medical practitioner and has filed this writ petition challenging the order dated 16.01.2017 passed by the Medical Council of India holding the petitioner to be guilty of professional misconduct, and her name has been directed to be removed from the State Medical register and Indian Medical register for a period of one year.
The contention of Sri Shukla are threefold. Firstly, that the specialised qualification possessed by the petitioner has been incorrectly construed not to be based on a valid certificate, and which certificate has been erroneously described as not being recognized and registerable in the State. He submits that there is no such requirement of additional registration inasmuch as the certificate obtained by the petitioner is already mentioned as a recognized certificate in the First Schedule of the Medical Council of India Regulations that has been filed at page 37 of the paper book. He has invited the attention of the Court to Serial No. 3 of the said list which mentions the Diploma as described in the certificate of the petitioner to urge that the said Diploma having been obtained in the year 2007 is admissible. The impugned order, therefore, suffers from non-consideration of such relevant material and is contrary to the aforesaid facts, hence deserves to be set aside.
He then submits that there is no requirement of any additional registration of such degree as a recognized and registerable degree and, therefore, the finding recorded is wrong. In the absence of any such requirement, no provision of the Indian Medical Council Act, 1956 has been violated nor any other provision of the State Law or Regulations framed has been violated.
He has then cited a decision of the Apex Court in case of Dr. B.L. Asawa Vs. State of Rajasthan and others, (1982) 2 Supreme Court Cases 55 to substantiate the aforesaid submissions contending that the Diploma possessed by the petitioner is a valid Diploma.
The second argument of Sri Shukla is that on facts the finding is perverse in relation to the consent taken by the petitioner before performing any surgery on the wife of the respondent no.3 and he urges that it was during the process of laparoscopy that it was found necessary to remove the uterus for which the consent of the husband had been obtained. Thus, it was a valid consent and the finding recorded being perverse, the petitioner cannot be held guilty on this count.
His third submission is that the appeal itself filed by the respondent no.5 before the Medical Council of India was not maintainable and even if it was entertainable, it had to be placed before the U.P. Medical Council in terms of the United Medical Council Act, 1917 and Regulations framed therein.
Consequently, the Medical Council of India has recorded reasons that are not confrontry with law and, therefore, the impugned order deserves to be set aside.
Replying to the aforesaid submissions, Sri Avanish Mishra, learned counsel for the respondents submits that firstly no consent had been taken from the wife and any consent obtained from the husband was contrary to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. He has invited the attention of the Court to the Regulation 7.16 to urge that the consent from both wife and husband was necessary. It may at this juncture be noted that the learned counsel for the petitioner has contradicted this argument by urging that since the patient was under general anesthesia, there was no occasion to take consent of the wife at that point of time when the surgery was done and which was necessary as it was a question of threat to life.
Sri Avanish Mishra, then urged that the petitioner was not holding any specialisation or registration of the additional qualification of Diploma as claimed, which is required as per Section 26 of the Indian Medical Council Act, 1956. The petitioner got her registration in relation to the said certificate admitted much later as is evident from a perusal of page 39 of the paper book i.e. dated 14.03.2016. He, therefore, submits that as on the date of the incident, which obviously happened in the year 2012, the petitioner was not holding any specialisation qualification as per 2002 Regulations and she was not entitled to claim to be a specialist as per Regulation 7.20.
Sri Mishra then contends that even on facts it is evident that the petitioner hastily without following the due procedure has violated the Regulations and there is a provision of an appeal as per Regulation 8.8 of the 2002 Regulations, hence the entire arguments advanced on behalf of the petitioner do not hold water.
We have gone through the pleadings in the writ petition and records, and the fact remains that an Expert Team was appointed to investigate the claim of the petitioner after the U.P. State Medical Council had declined to entertain the claim and the matter was pending before the Medical Council of India. The opinion of the Expert Team has been extensively quoted in the appellate order dated 16.01.2017 and the Ethics Committee of the Council also recorded the statements of the petitioner, the complainant, affected party as well as of the three Members of the Expert Team. The findings of the Medical Council of India are as follows:-
"Whereas, the Ethics Committee of the Council investigated the matter and recorded the statements of Dr. Neetu Rastogi, Md. Jeeshan, MS. Mehreen and the expert opinion of Dr. Gita Radhakrishnan, Dr. Pratima Mittal & Dr. Reva Tripathi.
The above matter was considered by the Ethics Committee at its meeting held on 30th June, 2016/29-30, November, 2016. The operative part of proceedings of the said meeting is reproduced as under:
"..........
The Ethics Committee also noted that Dr. Neetu Rastogi is MD from Ukrain i.e. equivalent to MBBS. She did her DGO from College of Physician and Surgeon, Mumbai which is not a recognized and registerable degree in the State of U.P. Thus, she is simply MBBS and not the specialist as she claimed. Hence, she is guilty u/s 7.20 of the Indian Medical Council (Professional Conduct, Ethiquette and Ethics) Regulations, 2002, "A Physician shall not claim to be specialist unless he has a special qualification in that branch"
Further she has obtained consent neither for laproscopy nor for bilateral Oophorectpomies which is a major procedure which rendered the patient Smt. Mehreen stertile of her whole life and this causes marital dispute between patient and her husband. Thus, this is a violation of Section 7.16 and 7.20 and serious medical misconduct under Ethics Regulations.
After considering the exprt opinion of Dr. Gita Radhakrishnan, UCMS and other available documents, the Ethics Committee is of unanimous opinion that Dr. Neetu Rastogi is guilty of Severe professional misconduct. Therefore, the Ethics Committee recommends to remove the name of Dr. Neetu Rastogi from the Indian Medical Registration for a period of three years.
.........."
The above recommendations of the Ethics Committee were placed before the Executive Committee at its meeting held on 23.08.2016 wherein the direction was:
"Approved with the modification that the period of removal of name from IMR would be 01 year as originally decided by Ethics Committee on earlier two occasions."
The stand taken by the learned counsel for the petitioner about no consent having been taken from the wife is concerned, it is also evident that had any proper investigation during surgery stage been carried out, the aforesaid contingency could have been met before the surgery. It is here also that the petitioner did not proceed ethically and after putting the patient under general anesthesia has taken a plea that since the patient was under the influence of anesthesia, therefore, the consent could not be taken. We cannot accept this plea now being taken in the background of the findings recorded based on the strength of the Expert Committee opinion and the recommendations of the Ethics Committee. Thus, consequently there was no consent of the wife as per Regulation 7.16 of the 2002 Regulations.
The claim of the petitioner being an Specialist on the strength of the Diploma certificate also cannot be sustained on the ground that the said Diploma stands derecognised w.e.f. 2.12.2009. It is correct that the certificate of the petitioner is prior to that but at the same time, the petitioner did not get this additional qualification registered when this surgery was performed in the year 2012. The registration is stated to have been obtained much later on as is evident from page 39 of the paper book. Thus, the petitioner did not have any such authority to claim the specilisation and this defect therefore negatives the argument on behalf of the petitioner.
The judgment that has been relied upon by the learned counsel for the petitioner in the case of Dr. B.L. Asawa (supra) is in relation to recruitment to the post of lecturer in an University as per the terms and conditions of the Act and Ordinances as was involved therein. Learned counsel for the petitioner has stressed on the words used in paragraph 11 of the judgment to urge that it has to be ipso facto regarded as a valid diploma once it is contained in the Schedule of the Medical Council of India. This argument cannot be accepted inasmuch as the aforesaid judgment is not in relation to the registration of the additional qualification as per Section 26 of the Medical Council Act and as such, the said judgment does not come to the aid of the petitioner.
The last submission of the learned counsel for the petitioner is with regard to the maintainability of the appeal before the Medical Council of India.
This argument need not detain us inasmuch as the 2002 Regulations are applicable and there is no challenge raised to the virus of Regulation 8.8 thereof so as to entertain any such of the argument on behalf of the petitioner. So long as the Regulations are intact then the same having been framed under Section 20-A read with Section 33(m) of the Medical Council Act, 1956, would prevail and the appeal would be very much maintainable as it is statutorily available and is a substantive right of the aggrieved person. The argument that there is an appeal before the State authorities which would preclude proceedings of appeal before the Medical Council of India cannot be accepted as the said Regulations are not contrary to it but in addition to any other provision.
Thus, on all counts, we find that the Medical Council of India has taken a lenient view in the matter by only imposing the punishment of removal of the name from the Medical Register for one year even though the Ethics Committee had made recommendations for three years.
We do not find any error in the impugned decision of the Medical Council of India. There is no merit in the writ petition which is hereby dismissed.
Order Date :- 31.1.2017 Rmk.