Calcutta High Court
Dr. Vijay Pahwa vs West Bengal Medical Council & Ors on 5 March, 2009
Equivalent citations: AIR 2009 CALCUTTA 209, 2009 (6) ALL LJ NOC 1025, 2009 (6) AIR KAR R 956, 2009 A I H C (NOC) 816 (CAL), (2009) 80 ALLINDCAS 868 (CAL), (2009) 2 CAL HN 477, (2009) 1 CAL LJ 880
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar
1
GA No. 352 of 2009
APO No. 25 of 2009
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
DR. VIJAY PAHWA Appellant
Versus
WEST BENGAL MEDICAL COUNCIL & ORS. Respondents
For Appellant : Mr. Ajoy Chatterjee, Sr. Advocate, Mr. A. Mitra, Advocate For Respondent Nos.1 & 2 : Mr. Saibalendu Bhowmik, Mr. Manish Bhowmik, Advocates BEFORE:
The Hon'ble CHIEF JUSTICE SURINDER SINGH NIJJAR The Hon'ble JUSTICE BISWANATH SOMADDER Date : 5th March, 2009.
The Court : We have heard learned Counsel for the parties. It is not disputed before us that the appellant has already filed a writ petition being W.P. No.841 of 2007 challenging the proceedings initiated against him by the West Bengal Medical Council. This writ petition is admittedly pending for final disposal. Thereafter, the petitioner filed W.P. No.1275 of 2008, which was also dismissed by this Court with the following observations :
"5.1 Having considered the submission of the parties the Notice dated 3rd July, 2008 cannot be set aside for the following reasons :2
5.2 Rule 8(1) postulates an enquiry and investigation by the Penal Committee. The said Committee is a fact finding body and for the purpose of furnishing its report is entitled to take further evidence either documentary or by deposition. This fact finding body is neither quasi judicial or judicial in nature. Its decision is also not a judicial decision. In fact, it makes an investigation and submits a report. Therefore the element of cross examination cannot be in-built. This is clear from Rules 11 and 15 which satisfies the principles of Natural Justice by giving the parties an opportunity. Rule 11 permits furnishing of copies to the medical practitioner while Rule 15(5) gives an opportunity to examine and cross-examine witnesses.
5.3 If the intention of the Rule making authority was to allow cross-examination at the investigation stage, the same would have been incorporated in Rule 8(1). Not having done so cross-examination was not intended at the Rule 8(1) stage.
5.4 The Rules have also not been challenged by the petitioner as ultra vires the Constitution of India.
5.5. For all the said reasons no order can be passed on this application and the application is dismissed."
The aforesaid order has also been confirmed by the Court of Appeal.
The petitioner again filed the writ petition in which prayer has been made that further proceedings before the 3 Medical Council be stayed as the same allegations are subject matter of the criminal trial against the appellant on the basis of criminal case being G.R. No.1998 of 2005 (arising out of Shakespeare Sarani P.S/D.D. Case No.263 dated 29.8.2005). This case is pending before the Metropolitan Magistrate, 12th Court, Kolkata. The writ petition has been dismissed by the Trial Court with the following observations :
"In the considered view of this Court, initiation of criminal proceedings against the petitioner is a subsequent event and such subsequent event can be brought to the notice of the Court by taking appropriate step in connection with the pending writ petition. A separate writ petition for this purpose would not be maintainable. The writ petition accordingly fails and is dismissed."
This order is challenged before us in this Letters Patent Appeal. We have heard the counsel for the parties and perused the paper book. We find no reason to interfere with the order of the Trial Court in which it has been clearly observed that the criminal proceedings against the petitioner have been initiated subsequent to the filing of the writ petition. Therefore, the writ petitioner would be entitled to bring on record the subsequent events and also to seek stay of the proceedings before the Medical Council on the ground that two parallel proceedings ought not be 4 permitted to be continued. Learned Counsel for the appellant, however, expressed an apprehension that in case an amendment is sought, an objection may be raised that the writ petitioner is seeking to change the nature of the cause of action. This apart, counsel submits that the writ petitioner has the right to move this Court by way of a fresh writ petition without having to amend the earlier writ petition.
We are not at all impressed by the submissions made by the learned counsel. It is a settled position of law that provisions of Code of Civil Procedure are not applicable to writ proceedings under Article 226 of the Constitution of India in the literal sense. Only principles of Code of Civil Procedure are applicable. In the present case, the cause of action before the Medical Council as also in the Criminal Court is the alleged negligent treatment by the appellant of the deceased patient. Therefore, an appropriate remedy is available to the writ petitioner to seek amendment of the W.P. No. 841 of 2007. Therefore, there is no justification in the submissions made by the learned counsel that the appellant is entitled to file a series of writ petitions by segregating the relief into compartments which can otherwise be conveniently claimed in 5 a single proceeding. This writ petition, in our opinion, is an abuse of the process of Court.
We, therefore, see no reason to interfere with the order passed by the learned Single Judge. Both the appeal and application are, thus, dismissed.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SURINDER SINGH NIJJAR, CJ.) (BISWANATH SOMADDER, J.) SN.
Asst. Registrar(CR)