Calcutta High Court (Appellete Side)
Tapan Mukherjee vs Medical Council Of India on 30 November, 2018
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 4202 (W) of 2015
CAN 8971 of 2015
CAN 7107 OF 2015
Tapan Mukherjee
-Vs.-
Medical Council of India
WP 4205 (W) of 2015
CAN 7108 of 2015
CAN 8972 of 2015
Dr. Kamal Kumar Das
-Vs.-
Medical Council of India
WP 4204 (W) of 2015
CAN 7106 of 2015
CAN 8969 of 2015
Dr. Joydip Basu
-Vs.-
Medical Council of India
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Shakti Nath Mukherjee, Sr. Adv.
Mr. Debjyoti Datta, Adv.
Mr. A. Khan, Adv.
Mr. S. Sen, Adv.
For the Medical Council : Mr. Sougata Bhattacharya, Adv.
of India Mr. Sunit Kr. Roy, Adv.
For the respondent nos. : Mr. Saibalendu Bhowmik, Adv.
3 and 4 Ms. Manisha Bhaumik, Adv.
Mr. Biplab Guha, Adv.
For the respondent no. 6 : Mr. Indronil Roy, Adv.
Mr. Lalratan Mandal, Adv.
Heard On : 10.08.2015, 29.09.2015, 14.10.2015, 11.11.2016,
22.12.2016, 11.01.2017, 16.02.2017, 23.02.2017, 28.04.2017, 05.05.2017, 23.06.2017 CAV On : 03.05.2018 Judgment On : 30.11.2018 Arijit Banerjee, J.:-
(1) In each of the writ petitions the subject matter of challenge is 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 are involved in all the three writ petitions and accordingly the three writ petitions have been taken up together for hearing and disposal.
Arguments have been advanced with reference to the records of WP No. 4202 (W) of 2015 and I will proceed on that basis.
(2) The undisputed facts of the case are that Soma Saha Roy, since deceased, wife of the respondent no. 6 was admitted to Uma Medical Related Institute (P) Ltd., Teghoria, Calcutta (hereinafter referred to as the 'Nursing Home') on 14 October, 2012. On 15 October, 2012 Dr. Tapan Mukherjee performed laparoscopic cholecystectomy on her and Dr. Joydip Basu performed the gynaecological part of the surgery assisted by Dr. Kamal Kumar Das. On 17 October, 2012 the patient passed away in the Nursing Home.
(3) On 9 January, 2013 the respondent no. 6 (Biman Kumar Saha Roy) lodged a complaint with the Medical Council of India (in short MCI), New Delhi against the aforesaid three doctors alleging negligence on their part in performing surgery on his wife. On 30 January, 2013 MCI forwarded the complaint to the West Bengal Medical Council (in short 'WBMC') for investigation and taking necessary action in the matter within a period of six months as required under clause 8.4 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (in short the '2002 Regulations'). Under cover of a letter dated 12 February, 2013 WMBC forwarded copies of the complaint to the writ petitioners calling for an explanation from them within 15 days. Written statements were submitted by the writ petitioners to the WBMC on 27 February, 2013. (4) On 22 March, 2013 the respondent no. 6 lodged a supplementary complaint with WBMC. On 8 April, 2013 WBMC wrote letters to the petitioners calling for their explanation with regard to the supplementary complaint within 15 days. By a letter dated 22 April, 2013 the petitioners raised objection to WBMC entertaining the supplementary complaint. By a letter dated 2 May, 2013 the Registrar of WBMC took the stand that the supplementary complaint could be entertained by WBMC. (5) Under cover of a letter dated 25 July, 2013 WBMC forwarded to the petitioners a copy of the postmortem report in respect of the deceased wife of the respondent no. 6.
(6) On 6 August, 2013 the writ petitioners submitted their explanation in respect of the supplementary complaint.
(7) By a letter dated 25 October, 2013 WBMC informed MCI that because of elections held under the order of this Court, the complaints pending before it including the complaints against the present writ petitioners could not be decided within the prescribed time period. (8) On 30 December, 2013 the respondent no. 6 filed an 'appeal' before the MCI under Regulations 8.7 and 8.8 of the 2002 Regulations. By a letter dated 17 May, 2014, MCI informed the writ petitioners that hearing in connection with the appeal filed by the respondent no. 6 had been fixed before the Ethics Committee of the MCI on 22 May, 2014. The said letter was received by the petitioners on 22 May, 2014. By an e- mail of the same date the petitioners requested the MCI to re-fix the meeting on a later date. By a letter dated 9 July, 2014, the MCI fixed the hearing of the 'appeal' on 19 July, 2014 as the final opportunity. (9) The Ethics Committee considered the 'appeal' of the respondent no. 6 at its meeting held on 17 July, 2014 and 18 July, 2014. The petitioners deposed before the Ethics Committee on 19 July, 2014. The Ethics Committee found that the petitioners were negligent and the death of the wife of the respondent no. 6 could have been avoided had the petitioners been alert and diligent. Accordingly, the Ethics Committee recommended removal of the names of the petitioners from the Indian Medical Register for the periods of time indicated above. On 1 October, 2014 the Executive Committee of MCI approved the recommendation of the Ethics Committee. On 23 January, 2015, the MCI issued a letter communicating to WBMC the order of the Executive Council of the MCI.
Contention of the petitioners:-
(10) Appearing for the writ petitioners, Mr. Shakti Nath Mukherjee, learned Sr. Adv. submitted firstly, 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. Secondly, 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. He referred to paragraph 13 of the affidavit in opposition filed on behalf of the MCI wherein it is stated that the MCI accepted the suggestion of the learned Attorney General of India and the Central Government granted its approval to the proposed clauses leading to the issuance of the Notification introducing Regulations 8.7 and 8.8 in the 2002 Regulations.
The Apex Court suggested the incorporation of these two Regulations in the judgment in Moloy Ganguly's case reported in (2003) 8 SCC 490. Learned Counsel submitted that Regulations are second level of subordinate legislation and cannot be made unless the parent Act permits the making of such Regulations. He referred to Sec. 20A and 33(m) of the Indian Medical Council Act, 1956 (in short 'IMC Act') which read as follows:-
"20A. (1) The Council may prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners.
(2) Regulations made by the Council under sub-
Section 1 may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct, and such provision shall have effect notwithstanding anything contained in any law for the time being in force.
33. The Council may, with the previous sanction of the Central Government, make Regulations generally to carry out the purposes of this Act, and without prejudice to the generality of the power, such Regulations may provide for.........
(m) The standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners."
Mr. Mukherjee submitted that the above two provisions merely enable the MCI to make a code of conduct and ethics and cannot provide a foundation for any disciplinary jurisdiction. By way of example Mr. Mukherjee submitted that in service jurisprudence, almost invariably there are two sets of Rules, namely, Conduct Rules and Disciplinary and Appeal Rules. Thus, West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980 are Conduct Rules laying down the standards of conduct. The West Bengal Services (Classification, Control and Appeal) Rules, 1971 and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are Disciplinary Rules. (12) Mr. Mukherjee then referred to Sec. 24(2) of the IMC Act, the material portion whereof, reads as follows:-
"24(2). .........where the name of any person has been removed from the State Medical Register on the ground of professional misconduct or any other ground except that he is not possessed of the requisite medical qualification..... he may appeal in the prescribed manner and subject to such condition including conditions as to payment of a fee as may be laid down in the 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."
Even under the above provision only the medical practitioner aggrieved by the removal of his name from the State Medical Register can appeal and that too to the Central Government, submitted Mr. Mukherjee.
(13) Learned Sr. Counsel submitted that by adopting Regulations 8.7 and 8.8, the MCI was seeking to usurp a plenary power to initiate, conduct and conclude a disciplinary proceeding and impose punishment though the parent Act of 1956 does not provide for the same. MCI only has the power under Sec. 24(1) of the IMC Act to take the consequential step of removal of the name of a medical practitioner from the Indian Medical Register when the State Medical Council has removed the name of such practitioner from the State Medical Register, and nothing more. The MCI is a statutory body operating within the statutory scheme precisely defining the powers and functions of the MCI and it was not open to MCI to usurp other powers and functions.
(14) Mr. Mukherjee then referred to a decision of a Division Bench of this Court in the case of Dr. (Mrs.) Rupa Basu (Banerjee)-vs.-State of West Bengal & Ors. delivered on 29 September, 2011 in MAT 613 of 2010 in support of his submission that the MCI being a creature of IMC Act, it cannot do anything, even with the approval of the Government, which it is not empowered to do by the Act. Reference was also made to the Division Bench decision in the case of Asian Leather Ltd. (2007) 3 CHN 476, in support of the submission that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some Rule of Law but in case of a statutory corporation it is the other way round. A Corporation has no power to do anything unless such powers are conferred on it by the statute which creates it.
(15) Learned Sr. Counsel then submitted that incorporation of the Regulations in question requires the empowerment by the parent Act which is not there. Without amendment to Secs. 20A and 33(m) of the IMC Act, Regulations 8.7 and 8.8 could not be adopted. (16) Mr. Mukherjee then contended that it has been held in Rupa Basu's (supra) case that Regulations 8.7 and 8.8 cannot affect the operation of a pre-constitutional law made not by the legislature of a post-constitutional State but by the pre-constitutional Province. In such a case the provisions of Art. 254 of the Constitution cannot be applied as the said Article deals with the conflict between a Central Act and post- constitutional State Act. In the said case it was also held that Regulations 8.7 and 8.8 are not laws as contemplated by Art. 254. (17) Learned Sr. Counsel submitted that introduction of Regulations 8.7 and 8.8 has the effect of amending Sec. 26 of the Bengal Medical Act, 1914 (in short 'the BM Act') which provides for appeal to the State Government and also affects the scope of Sec. 24 of the IMC Act, 1956 by enlarging the power of MCI by making Regulations.
(18) It was next submitted that as medical practitioners the petitioners are entitled to the protection of Art. 19(1)(g) of the Constitution subject to reasonable restrictions imposed by law as contemplated by Art. 19(4) of the Constitution. Such reasonable restriction can be imposed only by law including intra vires subordinate legislation. Without legislative fulfillments, the executive cannot impose any restriction upon any of the fundamental rights guaranteed by Art. 19(1). In this connection reliance was place on D. Basu's Shorter Constitution, 13th Ed., page 170 and on the Apex Court decisions in the cases of Narendra Kumar-vs.-Union of India, AIR 1960 SC 430 and Captain Ganpati Singhji-vs.-State of Ajmer, AIR 1955 SC 188. Such law imposing reasonable restrictions on the exercise of the rights conferred by Art. 19 may contain substantive as well as procedural provisions. In this connection reliance was placed on the decisions of the Apex Court in the cases of N. B. Khare (Dr.)-vs.-State of Delhi, AIR 1950 SC 211 and Gurbachan Singh-vs.-State of Bombay, AIR 1952 SC 221.
(19) It was submitted that subordinate legislations like Regulations must be founded upon authority of law. Reliance was placed on Justice G. P. Singh's 'Principles of Statutory Interpretation', 13th Ed., page 1016, in support of the submission that the power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such power is conferred has to act within the limits of authority conferred by the Act.
(20) Mr. Mukherjee submitted that delegated legislation is open to the scrutiny of Courts and may be declared invalid on two grounds; (a) violation of the Constitution and (b) violation of the enabling Act. The second ground includes not only cases of violation of the substantive provisions of the enabling Act but also violation of the mandatory procedure prescribed. It may also be challenged on the ground that the delegated legislation is contrary to other statutory provisions or that it is so arbitrary that it cannot be said to be in conformity with the statute or the Articles of the Constitution.
(21) It was submitted that Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. In this connection reference was made to the Apex Court decisions in the cases of Hukum Chand Etc.-vs.-Union of India, (1972) 2 SCC 601 and Additional District Magistrate (Rev.), Delhi Admn.-vs.-Siri Ram, AIR 2000 SC 2143. (22) It was then submitted that the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of correctly enacting that policy into a binding rule of conduct. In respect of a subordinate legislation, it must be in accordance with the legislature made law or the Act. In this connection reference was made to the following decisions.
(i) Commissioner of Income Tax, U.P.-II, Lucknow-vs.-Bazpur Co- Operative Sugar Factory Ltd., Bazpur, Distt. Nainital, (1988) 3 SCC
553.
(ii) Delhi Development Authority-vs.-Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC 672.
(iii) Union of India-vs.-S. Srinivasan, (2012) 7 SCC 683. (23) Mr. Mukherjee then submitted that a Rule must not only conform to the parent statute but to the provisions of other statutes. Regulation 8.8 provides for appeal to the MCI from an order of the State Medical Council, but there is no provision in the IMC Act, 1956 for such an appeal to the MCI. This Regulation also militates against the provisions of Sec. 26 of the BM Act, 1914 which provides for appeal to the State Government from any order of the WBMC. Hence, Regulation 8.8 is bad in law and should be struck down. In this connection reference was made to the decision of the Hon'ble Apex Court in the case of Kerala Samsthana Chethu Thozhilali Union-vs.-State of Kerala, (2006) 4 SCC 327. (24) Mr. Mukherjee submitted that in Moloy Ganguly's (supra) case the Apex Court merely observed that the suggestion of the learned Attorney General in conformity with Regulations 8.7 and 8.8 should be incorporated. The Apex Court was not declaring any law nor was giving any direction. The suggestion of the Apex Court cannot be taken to mean that incorporation of Regulations 8.7 and 8.8 could be done without amendment to Secs. 20A and 33 of the IMC Act.
(25) Learned Sr. Counsel submitted that Courts are not empowered to legislate. Regulations 8.7 and 8.8 are bad in law not being enacted by a competent legislature. In this connection reliance was placed on the following decisions:
(i) Raghunath Rai Bareja-vs.-Punjab National Bank, (2007) 2 SCC
230.
(ii) State of Jharkhand-vs.-Govind Singh, (2005) 10 SCC 437.
(iii) Indian Drugs & Pharmaceuticals Ltd.-vs.-Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408.
(iv) S.R. Batra-vs.-Taruna Batra (Smt.), (2007) 3 SCC 169.
(v) Chairman, Rajasthan State Road Transport Corporation-vs.- Santosh, (2013) 7 SCC 94.
(iv) Swamy Shraddananda Alias Murali Manohar Mishra-vs.-State of Karnataka, (2007) 12 SCC 288.
(26) Mr. Mukherjee then submitted that even assuming for the sake of argument that Regulations 8.7 and 8.8 were validly incorporated, the procedure for invoking the same was not followed and hence, the action taken is bad in law. He submitted that the power under Regulation 8.7 has not been exercised by the MCI in the manner required by the Regulation. It has been exercised by the Ethics Committee of the MCI which could not be done. A delegated power cannot be further delegated.
(27) He next submitted that in order to exercise the power under Regulation 8.7 it is required that the MCI has reason to believe that there is no justified reason for the State Medical Council not deciding the complaint within the prescribed period. This decision is required to be taken by MCI itself. No reason has been recorded by MCI for withdrawing the complaint from the State Medical Council to itself. Hence, the purported order of MCI is violative of statutory provisions and is bad in law. If something is required to be done in a particular manner, it must be done in that manner only or not at all. For this proposition reliance was placed on Taylor-vs.-Taylor, (1875) 1 Ch. D 426, Nazir Ahmad-vs.-King Emperor, AIR 1936 PC 253 and Shiv Kumar Chadha-vs.- Bombay Municipality, (1993) 3 SCC 161. The decision in Kiran Singh- vs.-Chaman Paswan, AIR 1954 SC 340 was cited in support of the proposition that an order passed without jurisdiction is a nullity. The decision in Chairman-Cum-Managing Director, Coal India-vs.-Ananta Saha, (2011) 5 SCC 142 was cited in support of the proposition that if the foundation of an action is bad, then all subsequent proceedings are also bad.
(28) Mr. Mukherjee then submitted that after the respondent no. 6 filed the complaint with the MCI, the matter was referred to the WBMC by MCI by its letter dated 30 January, 2013. After referring the said matter to WBMC the MCI lost seisin of the same. The records continued to remain with WBMC and were not called for by the MCI. No request was ever made by MCI for sending the records to itself. No order was passed by WBMC and thus, there could not have been any appeal to MCI. The MCI or the Ethics Committee could not start a fresh proceeding on the basis of a so-called 'appeal' by the respondent no. 6 by letter dated 31 December, 2013. The right of appeal inheres in no one. An appeal for its maintainability must have the clear authority of law. In this connection reference was made to the Apex Court decision in the case of Smt. Ganga Bai-vs.-Vijay Kumar, AIR 1974 SC 1126.
(29) Mr. Mukherjee finally submitted that the purported ratification of the decision of the Ethics Committee dated 17 and 18 July, 2014 by the Executive Committee on 1 October, 2014 is of no consequence since lack of jurisdiction could not be cured by such ratification. Submission on behalf of the respondent nos. 3 and 4: (WBMC) (30) Appearing for the respondent nos. 3 and 4, Mr. Bhowmik, learned Counsel submitted that admittedly the respondent no 6 i.e. the complainant, preferred an appeal before the MCI by making payment of Rs. 500/- as fee instead of Rs. 200/- payable for lodging original complaint. However, there was no final order passed by the State Medical Council and hence, there could be no question of appeal. He further submitted that MCI does not have authority to entertain any statutory appeal under Regulation 8.8 of the 2002 Regulations against the decision of the State Medical Council since there is a provision of statutory first appeal under Sec. 26 of the BM Act, 1914 before the State Government and further scope for second appeal before the Central Government by the penalized medical practitioner under Sec. 24(2) of the IMC Act after exhaustion of all remedies under the State Act. According to Mr. Bhowmik, the State Medical Council has exclusive jurisdiction to entertain and decide the complaint against any medical practitioner who is registered with the State Council under Sec. 17 of the BM Act read with Secs. 15, 21 and 23 of the IMC Act and Clauses 62 and 64 of the Medical Council of India Regulations, 2000. Learned Counsel adopted the submissions made on behalf of the writ petitioners and urged the following additional points:-
(i) The State Government being the primary registering and licensing authority in respect of the writ petitioners, it has the exclusive power to take initial action against the writ petitioners on any complaint alleging infamous conduct on their part. MCI was conscious of the same and accordingly referred the complaint lodged with it by the respondent no. 6 to the State Council.
(ii) Under Sec. 26 of the BM Act, an appeal lies to the State Government against every decision of the State Council taken in its disciplinary jurisdiction under Sec. 17 or under Sec. 25 of the Act and the said Act being a pre-independence statute, remains valid till date as per the provisions of Art. 13 of the Constitution of India. Either of the parties can prefer such an appeal if aggrieved by the decision of the State Council. Even while promulgating the IMC Act, Parliament recognized the said statutory scheme of the State Act by providing an appeal before the Central Government at the instance of only the punished medical doctors under Sec. 24 of the IMC Act.
(iii) Sec. 32 of the IMC Act empowers the Central Government to make Rules by notification in the Official Gazette to carry out the purposes of the said Act. Sec. 33 of the IMC Act empowers the MCI to make Regulations with previous sanction of the Central Government for carrying out the purposes of the said Act. The Rules framed by the Central Government under Sec. 32 are required to be approved by both Houses of the Parliament and stand on a higher pedestal than Regulations framed by MCI.
(iv) On a proper reading of the provisions of the IMC Act read with the IMC Rules, 1957, it would follow that a punished medical practitioner can approach the last appellate authority i.e. the Central Government only after exhaustion of all remedies available under the BM Act. By giving such an interpretation, the repugnancy between the IMC Act and the BM Act can be avoided. On the contrary, if Regulations 8.7 and 8.8 of the 2002 Regulations framed by the MCI under Sec. 20A of the IMC Act read with Sec. 33(m) thereof are given effect to as a statutory scheme of disciplinary proceedings against the doctors registered under both the Acts, there would be a conflict between the Central Act and the State Act. It is established law that when one interpretation leads to a conflict between a Central and a State Act covering the same subject matter whereas a harmonious construction can avoid such conflict, the latter must be adopted. In this connection, learned Counsel relied on the decisions of the Apex Court in the case of Imagic Creative (P) Ltd.-vs.-
Commissioner of Commercial Taxes, (2008) 2 SCC 614 and Sri Jagannath Temple Managing Committee-vs.-Siddha Math, 2016 (1) Supreme 182.
(v) A subordinate legislation i.e. Rules/Regulations framed under the provisions of any statute will form part of the statute only when it satisfies two conditions, i.e. it must conform to the provisions of the parent statute and it must be in consonance with the scope and purview of the Rule making power of the statutory authority framing such Rules/Regulations. In this connection reliance was placed on the decisions in the cases of Bidi, Bidi Leaves and Tobacco Merchant's Association, Gondia-vs.-The State of Bombay, AIR 1962 SC 486, General Officer Commanding-in-Chief-vs.-Dr. Subhash Chandra Yadav, (1988) 2 SCC 351 and Pratap Chandra Mehta-vs.-State Bar Council of Madhya Pradesh, (2011) 9 SCC 573.
(vi) In interpreting a statute, efforts should be made to give effect to each and every word used by the legislature. In this connection reliance was placed on the decision in the case of Grasim Industries Ltd.-vs.- Collector of Customs, Bombay, (2002) 4 SCC 297.
(vii) No regulation can be framed by MCI under Sec. 33 of the IMC Act to bring into existence any substantive right or obligation or disability not contemplated by the other sections of the statute. Regulations 7 and 8 of the 2002 Regulations travel beyond the scope of the IMC Act and purport to create a right in favour of the MCI not contemplated by the parent statute. In this connection learned Counsel referred to the decisions in the cases of Kunj Behari Lal Butail-vs.-State of H.P., (2000) 3 SCC 40 and Global Energy Limited-vs.-Central Electricity Regulatory Commission, (2009) 15 SCC 570.
(viii) By framing Sec. 24 of the IMC Act, the legislature consciously gave the right of appeal only to the aggrieved medical practitioners. This necessarily means that no appeal would lie at the instance of any other party. The maxim unius est exclusion alterius which means that the mention of one thing in a provision of a statute implies the exclusion of another thing is squarely applicable in interpreting Sec. 24 of the IMC Act. Learned Counsel relied on the decisions in the cases of Sri Chandi Prasad Mandal-vs.-The State of West Bengal, (2005) 1 WBLR (Cal) 704, Grasim Industries Ltd.-vs.-Collector of Customs, Bombay (supra) and Union of India-vs.-Sahadeo Singh, CLT 1995 (2) HC 280.
(ix) While interpreting the rule making power under Sec. 20A of the IMC Act, one cannot read into the provision something what is not there. In this connection reliance was placed on the decisions in The Commissioner of Sales Tax, UP-vs.-M/s. Madan Lal Das & Sons, Bareilly, (1976) 4 SCC 464 and Jnan Ranjan Sen Gupta-vs.-Arun Kumar Bose, (1975) 2 SCC 526.
(x) Creation of an appellate forum is exclusively within the domain of the legislative authority which was done by the State legislature by introducing Sec. 26 in the BM Act and by the Parliament by introducing Sec. 24 in the IMC Act. In this connection, learned Counsel relied on the decision in the case of Dayaram-vs.-Sudhir Batham, (2012) 1 SCC 333.
(xi) In interpreting a statute efforts should be made to give effect to each and every word used by the legislature and no word used in a provision of a statute can be treated as redundant. In doing so, the court should not stretch the language of a statutory provision to bring it in accord with the supposed legislative intent underlying it. Court cannot re-write or re-cast legislation. In this connection reliance was placed on Grasim Industries Ltd.-vs.-Collector of Customs, Bombay (supra), Rohitash Kumar-vs.-Om Prakash Sharma, 2012 Supreme Appeal Reporter (Civil) 890, J. S. Yadav-vs.-State of UP, 2011 (4) Supreme 546, Nathi Devi-vs.-Radha Devi Gupta, (2005) 2 SCC 271, Nasiruddin- vs.-Sita Ram Agarwal, AIR 2003 SC 1543 and State of Orissa-vs.- Joginder Patjoshi, (2004) 9 SCC 278.
(xii) Sec. 24(2) of the IMC Act merely empowers the MCI to give advice to the appellate authority i.e., the Central Government for coming to a final decision which shall be binding on the State Government as well as on the registering authority, i.e. the State Medical Council. Such status of an advisor/consultant cannot be upgraded and/or uplifted to the position of an appellate adjudicating authority as has been sought to be done by framing Regulations 7 and 8. 'Consulting' does not mean concurrence. The Central Government is only required to consult the MCI before arriving at a decision and does not require the concurrence of the MCI. In this connection reliance was placed on L & T Mcneil Ltd.- vs.-Govt. of T.N, (2001) 3 SCC 170 and High Court of Judicature for Rajasthan-vs.-P. P. Singh, AIR 2003 SC 1029.
(xiii) Any subordinate legislation cannot be contrary to or in consistent with the provisions of the parent statute under which it is framed. A Rule/Regulation is not only required to be made in conformity with the provisions of the parent statute but the same must be in conformity with the provisions of any other Act and also the Constitution of India. A subordinate legislation cannot be violative of any plenary legislation made by the Parliament or the State legislature or the provisions of the Constitution of India. In support of this proposition, reliance was placed on the following decisions:-
(a)State of Kerala-vs.-Unni, (2007) 2 SCC 365.
(b) Kerala Samsthana Chethu Thozhilali Union-vs.-State of Kerala, (2006) 4 SCC 327.
(c) Raj Kumar Yadav-vs.-Samir Kumar Mahaseth, (2005) 3 SCC 601.
(d) Haryana State Cooperative Land Development Bank Ltd.-
vs.-Haryana State Cooperative Land Development Banks Employees Union, (2004) 1 SCC 574.
(e) St. Johnseachers
T Training Institute-vs.-Regional Director,
National Council For Teacher Education, (2003) 3 SCC 321.
(f) State of Bihar-vs.-Bal Mukund Sah, (2000) 4 SCC 640.
(g) Major Radha Krishan-vs.-Union of India, (1996) 3 SCC 507.
(h) Babaji dKo ajin Garad-vs.-Nasik Merchants Cooperative Bank Ltd., Nasik, (1984) 2 SCC 50.
(i) Maharashtra State Board of Secondary and Higher Secondary Education-vs.-Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543.
(j) S. Samuel, M.D. Harrisons Malayalam-vs.-Union of India, AIR 2004 SC 218.
(xiv) Making of Rules/Regulations and approval of the same are not the same. Approval of a Rule/Regulation by the concerned authority as per the statutory requirement does not validate such subordinate legislation if it is not framed within the statutory domain and limit. Although Regulations 8.7 and 8.8 of the 2002 Regulations were framed with the previous approval of the Central Government as per requirement of Sec. 33 of the IMC Act, such Regulations cannot be treated as valid since they travel beyond the statutory ambit. In this connection learned Counsel relied on the decision in the case of Bar Council of Delhi-vs.-Surjeet Singh, (1980) 4 SCC 211.
(xv) A Rule/Regulation being a subordinate legislation does not enjoy the same degree of immunity as a statute passed by a competent legislature. A subordinate legislation may be questioned on any of the grounds on which a plenary legislation may be questioned. In addition, it may be questioned if it is inconsistent with and/or contradictory to the provisions of the Act under which it is framed; if it is inconsistent with and/or contrary to some other statute concerning the same subject matter; if it is manifestly arbitrary and unjust; and if it violates Articles 14 and 19 of our Constitution. In this connection reliance was placed on J. K. Industries Limited-vs.-Union of India, (2007) 13 SCC 673 and Bidi, Bidi Leaves and Tobacco Merchant's Association, Gondia-vs.-The State of Bombay (supra).
(xvi) If a medical practitioner is aggrieved with the decision of the State Medical Council he can assail the same by filing appeal before the State Government under Sec. 26 of the BM Act, and thereafter to the Central Government under Sec. 24 of the IMC Act. However, if one prefers an appeal against the order of the State Council to the MCI under Regulation 8.8 of the 2002 Regulations, the decision of the MCI would become final and there would be no appeal therefrom. Similarly, if the MCI decides any complaint by withdrawing the same from any State Council as per Regulation 8.7, the aggrieved party would not get any scope of preferring statutory appeal to any other forum. The scheme introduced by the MCI by framing Regulations 8.7 and 8.8 is completely arbitrary and offends Articles 14 and 19 of our Constitution. The scheme introduced by making Regulations 8.7 and 8.8 has taken away the statutory right of appeal of the aggrieved party which cannot be permitted in law. In this connection reliance was placed on Jyotish Chandra Biswas-vs.-Life Insurance Corporation of India, 2000 (2) CLJ 393 and Surjit Ghosh-vs.-Chairman & Managing Director, United Commercial Bank, AIR 1995 SC 1053. (xvii) Under the IMC Act certain powers have been delegated to the MCI. Thus, the MCI is a delegatee. It cannot sub-delegate its power/authority without the sanction of the competent legislative body to a subordinate body i.e., the Ethics Committee. In this connection, reliance was placed on the decisions in Pramod K. Pankaj-vs.-State of Bihar, AIR 2004 SC 746, Sri Jagannath Temple Managing Committee-vs.-Siddha Math (supra) and Makhan Singh Tarsikka-vs.-State of Punjab, AIR 1964 SC
381. (xviii) The Ethics Committee is not synonymous with MCI even under the 2002 Regulations. The decision of the Ethics Committee has no binding force.
(xix) According to the general principle of hierarchy in the legal field as discussed by Kelsen, the 2002 Regulations would be in the lowest layer and cannot be operative due to conflict with the Constitution of India, the IMC Act, the BM Act and the 1957 Rules. In this connection reference was made to the decisions in Government of Andhra Pradesh- vs.-P. Laxmi Devi (Smt.), (2008) 4 SCC 720 and Medical Council of India-vs.-State of West Bengal, 2012 (1) CHN (Cal) 46. (xx) Assuming but not admitting that Regulation 8.7 of the 2002 Regulations is valid, even then the impugned actions of the MCI and the Ethics Committee are not sustainable in law because admittedly there was no official withdrawal of the complaint case from the State Medical Council. Further, the provision of disposal of a complaint case within six months cannot be treated as a mandatory one. When a statutory functionary is asked to perform a statutory duty within a prescribed period, the same would always be directory and not mandatory. In this connection reliance was placed on the decision in Nasiruddin-vs.-Sita Ram Agarwal (supra) and Ram Deen Maurya (Dr.)-vs.-State of Uttar Pradesh, (2009) 6 SCC 735.
(xxi) As regards the decision in Malay Ganguly's (supra) case, learned Counsel made the following submissions:-
(a)Even the Apex Court cannot confer jurisdiction on any person to discharge statutory appellate function when the same is not authorized by statute. In support of this reliance was placed on Uttar Pradesh State Road Transport Corporation-vs.-Assistant Commissioner of Police (Traffic), Delhi, (2009) 3 SCC 634 and Union of India-vs.-Association for Democratic Reforms, AIR 2002 SC 2112.
(b) The direction given in paragraph 23 of the decision i.e. 'for inclusion of the said or similar provisions the Medical Council would take appropriate steps under the Act', has not been carried out by the MCI while framing Regulations 8.7 and 8.8.
(c) Court cannot direct the legislative authorities to make out a particular legislation or to amend the law against the statute.
Reliance was placed on the decisions in the cases of Union of India- vs.-Deoki Nandan Aggarwal, AIR 1992 SC 96, State of Jammu & Kashmir-s.-A.R. Zakki, AIR 1992 SC 1546, Supreme Court Employees Welfare Association-vs.-Union of India, AIR 1990 SC 334 and Union of India-vs.-Prakash P. Hinduja, AIR 2003 SC 2612.
(d) Any conclusion urged by a court without reference to the relevant provisions of law is weaker than even making a casual observation and as such not a binding precedent being a per incuriam decision. Learned Counsel relied on the decisions in the cases of State of UP-vs.-Synthetics and Chemicals Ltd., (1991) 4 SCC 139 and Sri Jagannath Temple Managing Committee-vs.- Siddha Math (supra).
(e) A decision is not an authority on a point which was not even argued. Learned Counsel relied on the decision in the case of Mittal Engineering Works (P) Ltd.-vs.-Collector of Central Excise, Meerut, (1997) 1 SCC 203 and Jaya Sen-vs.-Sujit Kr. Sarkar, AIR 1998 Cal 288.
(xxii) Learned Counsel then submitted that the vires of a statute/subordinate law can be decided only by the High Court under Art. 226 and by the Apex Court under Art. 32 of the Constitution of India. In this connection he referred to the decisions in the cases of State (Union of India)-vs.-Ram Saran, (2003) 12 SCC 578 and West Bengal Electricity Regulatory Commission-vs.-CESC Ltd., (2002) 8 SCC 715. He submitted that vires of Regulations 8.7 and 8.8 of the 2002 Regulations has been challenged in the present proceeding and this Court should decide such question. Learned Counsel also referred to the decision in the case of RMD Chamarbaugwalla-vs.-Union of India, AIR 1957 SC 628 in support of his submission that applying the principles of severance, even part of a statute/subordinate legislation can be declared to be ultra vires. (31) Mr. Bhowmik finally submitted that the writ petitions should be allowed and the State Council should be allowed to proceed further against the writ petitioners in accordance with law on the basis of the complaint lodged by the respondent no. 6 and carry it to its logical conclusion.
Submissions on behalf of the MCI:-
(32) Appearing for MCI, Mr. Bhattacharya, learned Counsel referred to Secs. 20A and 33(m) of the IMC Act and submitted that the power to prescribe standards of professional conduct and etiquette carries with it the power to prescribe consequences of failure to comply with the prescribed standards of professional conduct and etiquette. (33) Learned Counsel submitted that in terms of Sec. 20A read with Sec.
33(m) of the IMC Act, the MCI, with the previous approval of the Central Government framed the 2002 Regulations which initially did not include Regulations 8.7 and 8.8. Subsequently, following the decision of the Hon'ble Apex Court in Moloy Galguly's (supra) case, Regulations 8.7 and 8.8 were incorporated in the 2002 Regulations in March, 2004. Regulations 8.7 and 8.8 were challenged by way of a writ petition being WP No. 9740(W) of 2009 [Dr. (Mrs.) Rupa Basu (Banerjee)-vs.-The State of West Bengal & Ors]. The Hon'ble Justice Shymal Kanti Chakrabarti (as His Lordship then was) by his judgment and order dated 17 February, 2010 declared the said Regulations to be ultra vires being contrary to Sec. 26 of the BM Act. An appeal was preferred against the said judgment by MCI which was disposed of by the Hon'ble Division Bench by a judgment and order dated 29 September, 2011 reported in (2012) 1 CHN (Cal) 46. The Division Bench set aside the declaration that Regulation 8.8 is ultra vires.
(34) Learned Counsel also relied on an unreported judgement dated 18 August, 2014 delivered by a Learned Single Judge of this Court in WP 9758 (W) of 2011 (Dr. Sukumar Mukherjee-vs.-Medical Council of India & Ors.) with WP No. 3993 (W) of 2013 (Dr. Kunal Saha-vs.-Medical Council of India & Ors.). Reliance was placed on the observation of the learned Judge at paragraph 27 of the judgment to the effect that Clause 8.8 cannot be held to be invalid on the ground of being beyond the Regulation framing power of the MCI and the nature of appeal contemplated in Sec. 26 of the BM Act can be preferred under Clause 8.8 as well. Reliance was also placed on paragraph 65 of the judgment wherein the learned Judge held that Clause 8.8 of the 2002 Regulations is valid. The WBMC was a party to the said case. No appeal was preferred against the aforesaid judgment which has thus become final. Hence, the writ petitioners' contention that MCI did not have the legislative competence to frame Regulations 8.7 and 8.8 does not have any merit. (35) Learned Counsel then submitted that in terms of the relevant provisions of the 2002 Regulations, the MCI could itself decide the issue of medical negligence brought before it. He submitted that under Regulation 8.1 the MCI has the inherent power to take the decision on the complaint being made by the aggrieved party. Secondly, under Regulation 8.7 MCI can withdraw the complaint pending before the State Medical Council straightaway and refer the same to the Ethics Committee of the MCI for its speedy disposal. Thirdly, MCI could decide an appeal filed against the decision of the State Medical Council on any complaint against a medical practitioner. In the present case, the patient party lodged a complaint of medical negligence against the three writ petitioners by a letter dated 9 January, 2013 which was received by the MCI on 21 January, 2013. On receipt of such complaint, the MCI forwarded a copy thereof to the State Medical Council for taking a decision on the same within six months in terms of Regulation 8.4 of the 2002 Regulations under cover of a letter dated 30 January, 2013. After about 8 months MCI wrote a letter dated 17 October 2013 to the State Medical Council seeking the status of the complaint. Thereafter, the patient party lodged a complaint under Regulation 8.7 before the MCI on 30 December, 2013 wherein it was stated inter alia that the complaint is pending before the State Medical Council for more than 8 months. In those circumstances, the MCI withdrew the complaint to itself. Subsequently, the Ethics Committee of the MCI heard the complaint in its meetings dated 24 and 25 April, 2014, 22 and 23 May, 2014 and finally on 19 July, 2014. On 19 July, 2014 the writ petitioners were present before the Ethics Committee and made detailed submission. They did not take the point of jurisdiction of the Ethics committee to hear out the complaint nor the point that the Ethics Committee could not hear the complaint because the records lying before the State Council were not transmitted to the MCI. Accordingly, the Ethics Committee decided the complaint holding the writ petitioners guilty of medical negligence. The Ethics Committee decided the complaint in terms of Regulation 8.7 and hence it was not necessary to formally transfer the records relating to the complaint lying before the State Council to the MCI. The complaint was never treated as appeal under Regulation 8.8. The point of non- transmission of records from the State Council to the MCI prior to adjudication of the complaint by the Ethics Committee is a hyper- technical one and is being urged only to frustrate the decision of MCI specially when the Ethics Committee heard out the complaint under Regulation 8.7 and not under Regulation 8.8 by treating the same as appeal. In this connection, learned Counsel referred to an unreported decision of the Delhi High Court dated 30 November, 2012 in WP (C) No. 5677 of 2012 & CM No. 11629 of 2012 (Dr. Alka Gupta-vs.-The Medical Council of India and Anr.) in support of his submission that nomenclature is irrelevant and substance of the complaint has to be considered by the MCI. MCI can take a decision on the complaint under Regulation 8.1 by exercising its original jurisdiction or under Regulation 8.7 upon withdrawal of the complaint from the State Medical Council or as an appellate authority in appeal from a decision of the State Council under Regulation 8.8.
(36) As regards the writ petitioners' point that even before hearing them the Ethics Committee took a decision on the complaint on 18 July, 2014, learned Counsel submitted that in MCI's letter dated 23 January, 2015 in the first paragraph, inadvertently '17th and 18th July, 2014' was typed instead of '18th and 19th July, 2014'. The writ petitioners appeared before the Ethics Committee on 19 July, 2014 in terms of the MCI's notice dated 9 July, 2014 and decision was taken after hearing them. Learned Counsel produced the minutes of the meetings held before the Ethics Committee on 18 and 19 July, 2014.
(37) As regards the point that the Ethics Committee did not have the jurisdiction to decide the complaint and it was the MCI which alone could take a decision, learned Counsel referred to Sec. 9(1) of the IMC Act which provides that the Council shall constitute from amongst its members an Executive Committee and such other Committees for general or special purposes as the Council deems necessary to carry out the purposes of the Act. In terms of Se. 9(1) of the IMC Act, the MCI constituted the Ethics Committee to achieve the objects of the Act. Further, Regulation 8.7 of the 2002 Regulations provides that after withdrawal of the complaint by the MCI from the concerned State Medical Council, such complaint shall be referred to the Ethics Committee of the Council for its expeditious disposal withing a period of not more than six months from the receipt of the complaint by the MCI. Hence, this point of the writ petitioners has no merit.
In this connection, learned Counsel referred to the decision of the Division Bench of the Bombay High Court delivered on 14 October, 2014 in WP No. 11429 of 2012 (A.S.) in the case of Dr. Shalik Bhaurao Ade-vs.- Medical Council of India and Anr.. Learned Counsel relied on paragraph 28 of the judgment wherein the Bombay High Court inter alia observed that there is no substance in the contention urged by the petitioners i.e. the power to take disciplinary proceedings or action has to be exercised by the Council itself and assumption of such power by the Ethics Committee or delegation of such power to the Ethics Committee is not permissible under the scheme of the IMC Act.
(38) Learned Counsel finally submitted that the facts of the case which were taken into consideration by the Ethics Committee and the MCI while adjudicating the complaint against the petitioners suggests that the writ petitioners, while holding surgery for removal of cyst in the left ovary, removed the right ovary and right fallopian tube as per the postmortem report. The writ petitioners clearly committed medical negligence and hence, were rightly punished by the Ethics Committee which was approved by the Executive Council of the MCI.
Submission on behalf of the respondent no. 6:-
(39) Mr. Roy, learned Counsel appearing for the respondent no. 6 (the complainant) adopted the submissions made on behalf of MCI. In addition, he made the following submissions:-
(i) MCI exercised power under Regulation 8.7 by withdrawing the complaint and deciding it. No formal withdrawal of the complaint was necessary and no such procedure for actual physical withdrawal of the complaint by MCI from the State Medical Council has been envisaged in the 2002 Regulations.
(ii) The final order of MCI dated 23 January, 2015 would demonstrate that in fact, the records of the case were available to the Ethics Committee and the decision was taken after considering the entire records. It would also appear from the letter dated 23 May, 2014 written by the respondent no. 6 to the Chairman of the Ethics Committee that the respondent no. 6 submitted the entire records of the case to the said Committee on 22 May, 2014.
(iii) The respondent no. 6 never preferred an appeal before the MCI but approached the MCI for deciding his complaint by exercising powers under Regulation 8.7. Page 147 of the writ petition would show that there is a common proforma for making applications under Regulations 8.7 and 8.8 as per Annexure-II. Since the respondent no. 6 had already made written complaint to MCI on 9 January, 2013 and the same had been forwarded to the State Council for decision, there was no occasion for the respondent no. 6 to fill up Annexure-I appearing at page 142 of the writ petition. It is pertinent to note that Annexure-I also does not refer to Regulation 8.7.
It would be evident from page 149 of the writ petition that under points 8 and 9 the respondent no. 6 had duly clarified that the reason for his approaching the MCI was due to the State Medical Council not taking any decision on his complaint for more than 8 months.
(iv) Just because the respondent no. 6 paid fees amounting to Rs. 500/- instead of 200/-, it cannot be said that he preferred an appeal before the MCI. The amount of fees deposited with an authority cannot determine the nature of application made to it. The respondent no. 6 is not a legally trained person. He filled up the proforma as per his understanding. What was decided by the MCI was the complaint of respondent no. 6 and not an appeal.
(v) The petitioners submitted to the jurisdiction of MCI without any protest. They duly appeared before the Ethics Committee, participated in the proceedings and were even represented by Counsel. None of the issues sought to be agitated in the present writ applications were raised before the Ethics Committee. It is only after the final decision of MCI imposing punishment on the petitioners that the petitioners have turned around and challenged the jurisdiction of MCI. This is nothing but an afterthought for which exemplary costs should be imposed on the petitioners.
(40) Learned Counsel also made submission on factual issues pertaining to the merits of the complaint lodged by the respondent no. 6. I have consciously refrained from recording such submission since the merits of the decision of the Ethics Committee as approved by the Executive Committee of MCI are not under challenge. Indeed, a Court of Law will be extremely slow to entertain a challenge to the correctness of a decision of an expert body like the Ethics Committee. The writ petitioners have challenged the impugned order of the Ethics Committee on legal points and hence, I have not recorded the submissions made on behalf of the respondent no. 6 pertaining to the merits of the complaint or the merits of the impugned decision of the Ethics Committee. Court s View:
(41) An order dated 1st October, 2014 passed by the Ethics Committee of the MCI is the subject matter of challenge in each of the three writ petitions. It has been urged on behalf of the writ petitioners that the Ethics Committee/MCI did not have the power/jurisdiction to pass the said order. Arguments have been advanced by the learned counsel for the writ petitioner only on the jurisdictional issue. The merits of the said order are not under challenge. Indeed, as I indicated above, I would be extremely reluctant to sit in appeal over the order in-question. (42) I have noted in details the arguments of learned counsel for the different parties. I have also noted the citations which they have relied on. Arguments were advanced at length and it would have been impolite and discourteous on my part not to record the arguments in details.
However, I am of the opinion that I need not refer to all the citations for the purpose of deciding the issue in hand.
(43) For deciding the issue involved in this writ application certain provisions of the B.M. Act, 2014, the I.M.C. Act, 1956 and the 2002 Regulations will have to be referred to.
(44) Section 17 of the B.M Act pertains to entitlement of persons possessing any of the qualifications referred to in the schedule to the Act to be registered. However, the West Bengal Medical Council has the power to refuse registration in certain circumstances. Section 25 empowers the Council to direct removal of names of medical practitioners from the Medical Register and re-entry of names therein. Section 25 (a) (ii) provides that the Council may direct that the name of any registered practitioner whom the Council after due enquiry have found guilty, by a majority of 2/3 of the members present and voting at the meeting, of infamous conduct in any professional respect be removed from the register of registered practitioners or that the practitioner be warned. Section 26 (1) of the Act provides for an appeal to the State Government from every decision of the Council under Section 17 or Section 25.
(45) Section 23 of the IMC Act provides that the Registrar of the MCI may, on receipt of the report of registration of a person in a State Medical Register or on application made in the prescribed manner by any such person enter his name in the Indian Medical Register: provided that the Registrar is satisfied that the person concerned possesses the requisite qualification.
(46) Section 24 of the IMC act provides as follows:
"(1) If the name of any person enrolled on a State Medical Register is removed therefrom in pursuance of any power conferred by or under any law relating to registration of medical 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 qualifications 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 condition 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."
(47) The 2002 regulations have been framed by the MCI with the previous approval of the Central Government in exercise of powers conferred under Section 20 (A) read with Section 33 (m) of the IMC Act. Section 20 (A) and Section 33 (m) have been extracted above while noting Mr. Mukherjee's arguments. Chapter 8 of the 2002 regulations is captioned "Punishment and Disciplinary Action". Regulations 8.2, 8.4, 8.7 and 8.8 are relevant for our purpose. The said regulations are reproduced hereinunder:
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 appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/Societies/Bodies.
8.4 Decision on complaint against delinquent physician shall be taken within a time limit of 6 months.
8.7 Where either on a request or otherwise the Medical Council of India is informed that any complaint against a delinquent physician has not been decided by a State Medical Council within a period of six months from the date of receipt of complaint by it and further the MCI has reason to believe that there is no justified reason for not deciding the complaint within the said prescribed period, the Medical Council of India may -
(i) Impress upon the concerned State Medical Council to conclude and decide the complaint within a time bound schedule;
(ii) May decide to withdraw the said complaint pending with the concerned State Medical Council straightaway or after the expiry of the period which had been stipulated by the MCI in accordance with para (i) above, to itself and refer the same to the Ethical Committee of the Council for its expeditious disposal in a period of not more than six months from the receipt of the complaint in the office of the Medical Council of India.
8.8 Any person aggrieved by the decision of the State Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council:
Provided that the 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.
(48) It would be seen from regulation 8.7 that the MCI has given itself the power to withdraw any complaint against a delinquent physician from the State Medical Council if the complaint has not been decided by the State Medical Council within six months from the date of receipt of the complaint and decide the complaint itself through its Ethical Committee.
Under Regulation 8.8 any person aggrieved by a decision of the State Medical Council shall be entitled to file an appeal to the MCI. (49) The question is, even assuming that Regulations 8.7 and 8.8 are valid subordinate legislations which I am of the opinion they are not for the reasons stated hereinafter, whether the impugned order dated 1 October, 2014 was passed by the Ethics Committee in exercise of power under Regulation 8.7 or the order was passed by the MCI in exercise of appellate power under Regulation 8.8? I am of the opinion that there was no scope for the MCI to exercise its appellate power since there was no order of the State Medical Council from which an appeal could be preferred under Regulation 8.8. Learned Counsel for the petitioners as well as the Bengal Medical Council argued that the private respondent paid court fees which are applicable for the purpose of preferring an appeal to the MCI. Further, all throughout the proceedings before the MCI was described as an appeal. In my opinion, payment of incorrect/inflated court fees or describing a legal proceeding wrongly does not change the nature of the proceeding. Nomenclature cannot decide whether a proceeding is an original proceeding or an appeal. In my view, Regulation 8.8 was not and could not have been invoked by the MCI simply because there was no order which could be appealed against. (50) The question then arises as to whether or not the MCI has original jurisdiction to decide a complaint against a medical practitioner? Prior to 4 March, 2004 the answer would have been plainly in the negative. This is because Regulation 8.7 was introduced in the 2002 Regulations by a notification dated 4 March, 2004 issued by the MCI. The scheme of the IMC Act as well as the BM Act leaves me in no doubt that under those statues as amended from time to time, it is only the appropriate State Medical Council which has power and jurisdiction to decide a complaint against a medical practitioner. Under the IMC Act, MCI does not have even an appellate jurisdiction in respect of an order passed by the State Medical Council. The appeal lies to the Central Government. Similarly, under the BM Act, under Sec. 26 an appeal shall lie to the State Government from the decision of the State Medical Council. (51) Learned Counsel for the MCI argued that by reason of Regulation 8.7 of the 2002 Regulations, the MCI has the original jurisdiction to withdraw a complaint to itself and decide the same in the event the State Medical Council fails to adhere to the time schedule of six months. However, if the parent statute i.e., IMC Act does not give such power to the MCI, could the MCI arrogate to itself such power by framing Regulations? The answer must be in the negative. It is trite law that Rules or Regulations framed by a statutory authority in exercise of power granted under the parent statute cannot travel beyond the provisions of the parent statute. By framing Rules/Regulations a statutory Authority cannot give to itself a power which it does not have under the provisions of the parent statute. This proposition is so well-established that no authority need be cited therefor. In my opinion, without the Parliament amending the IMC Act appropriately, the MCI could not have framed Regulations 8.7 and 8.8. (52) In the case of Malay Ganguly (supra), the Learned Attorney General suggested inclusion of Regulations 8.7 and 8.8 in the Code of Ethics prescribed by the MCI. The Apex Court observed: "for inclusion of the said or similar provisions, the Medical Council would take appropriate steps under the Act." The scope of the IMC Act was not placed before the Apex Court in that case. It is inconceivable that the Apex Court would permit the MCI to frame Regulations for assuming certain powers which the MCI does not have under the parent statute. Further, it is not that the Apex Court gave liberty to the MCI to incorporate the said two provisions in the 2002 Regulations merely by issuing notification without moving the Parliament to amend the IMC Act. As per the Apex Court's observation, appropriate steps were to be taken by the Medical Council for inclusion of such provisions in the Regulations. (53) In the case of Rupa Basu (supra), the vires of Regulations 8.7 and 8.8 was under challenge. The learned Single Judge struck down the said Regulations as ultra vires the IMC Act. The Hon'ble Division Bench while agreeing in principle with the learned Single Judge, set aside the portion of the order declaring Regulation 8.8 as ultra vires, observing as follows:-
"41. Here the regulation in our view belongs to the category of the lowest layer of the Central field of legislation. While respectfully following pronouncement of the Supreme Court (2006) 4 SCC 327, (2008) 4 SCC 720) we hold that jurisdiction of State Government, under Act of 1914 cannot be declared to have been overridden by above regulation, for the simple legal principle that delegated legislation cannot run counter to supreme legislation, hence plea of repugnancy under Article 254 of the Constitution of the India does not arise.
42. We have merely observed the legal position as to the status of the aforesaid legislation. However, we cannot accept the ruling of the learned Trial Judge as the same being ultra vires, we cannot do so bearing judicial discipline in mind, as we notice the Supreme Court in the aforesaid case has directed to incorporate the same. We think that the matter can be reconsidered by the Hon'ble Supreme Court only in this aspect when occasion will arise.
43. In view of the discussion as above we uphold the judgment and order of the learned Trial Judge dismissing the appeal preferred by Rupa, we, however, allow appeal of the Medical Council of India partly, and set aside declaration of ultra vires of clause 8.8 of the said Regulation made by the learned Trial Judge. This issue is left for future decision of the Hon'ble Supreme Court. We stay permanently the operpation of the aforesaid regulation (8.8) for this case only."
(54) Reliance was placed by learned Counsel for MCI on the unreported judgment dated 18 August, 2014 delivered by a learned Single Judge of this Court in the case of Dr. Sukumar Mukherjee-vs.-Medical Council of India & Ors. (supra). However, in my respectful opinion, the said decision is of no relevance since what was in issue in that case was the vires of Regulation 8.8 and not Regulation 8.7.
(55) I agree with the submission of Mr. Mukherjee that 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. In the instant case, the I.M.C Act does not confer any original or appellate jurisdiction on the MCI to hear and dispose of any medical complaint. Rules and regulations cannot be framed to supplant the provisions of the enabling Act but only to supplement it. A subordinate legislation must be made in accordance with the parent statute made by the Parliament and also in consonance with any other law made by the legislature. Hence, in my opinion, the order impugned in these writ petitions is without jurisdiction and accordingly null and void.
(56) I also find considerable force in the submission made by Mr. Bhowmick on behalf of the West Bengal Medical Council. I have noted his arguments at length and do not reiterate the same here. On a harmonious construction on the MCI Act and the BM Act, the MCI does not have either the original or appellate power to entertain a complaint lodged against a medical practitioner. 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.
(57) Even assuming Regulation 8.7 was validly incorporated in the 2002 Regulation, the same has not been invoked in the proper manner. In exercise of power under Regulation 8.7, 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. No such finding has been recorded by the MCI to the effect that the State Medical Council had no justifiable reason not to dispose of the complaint within six months. The exercise of the power to withdraw the complaint from the State Medical Council would be dependent upon such satisfaction of MCI. Therefore, 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. (58) It was argued on behalf of the contesting respondents that the writ petitioners having submitted to the jurisdiction of the MCI and having participated in the proceeding before the MCI, they are now not entitled to contend that the proceeding before MCI was without jurisdiction. The issue of jurisdiction was never raised before the MCI and the petitioners are precluded from doing so now. I find this argument to be completely fallacious. Want of jurisdiction cannot be cured by consent or acquiescence. It is trite law that parties cannot by consent confer jurisdiction on a forum which otherwise lacks jurisdiction. To put it differently, a party cannot by acquiescence submit to a jurisdiction of a forum which the forum does not have. This point raised on behalf of the contesting respondents is accordingly rejected.
(59) 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 me to strike down the said Regulations. The vires of the said Regulations may be considered by the Apex Court in an appropriate case. However, following the decision of the Hon'ble Division Bench of this Court in the case of Rupa Basu (supra), I permanently stay the operation of Regulations 8.7 and 8.8 of the 2002 Regulations only for the purpose of this case.
(60) For the reasons stated above, I am of the view that the order of the Ethical Committee/MCI which is under challenge in these writ petitions is without jurisdiction. Accordingly, the said order dated 1 October, 2014 is set aside. The West Bengal Medical Council shall be at liberty to deal with the complaint in question in accordance with law and shall complete the proceeding as expeditiously as possible and in any event within six months from date.
(61) Writ Petition Nos. 4202 (W) of 2015, 4205 (W) of 2015 and 4204 (W) of 2015 along with the connected applications are accordingly disposed of.
(62) There will be no order as to costs. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.) LATER PORTION After judgment is delivered Mr. Bhattarcharya, learned Counsel for the Medical Council of India and Mr. Roy for the private respondent pray for stay of operation of the judgment and order. Such prayer is considered and refused.
(Arijit Banerjee)