Calcutta High Court (Appellete Side)
(Biswajit Hazra vs Medical Council Of India & Ors.) on 23 July, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
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14
23.07. 2014
rrc
W. P. 18670 (W) of 2014
(Biswajit Hazra Vs. Medical Council of India & Ors.)
Mr. Susanta Pal
....For the petitioner
Mr. Saibalendu Bhowmik
.....For the respdt. no. 3
None appears for the respondent no. 4 and the Medical
Council of India (hereafter the 'M.C.I.') despite service of a copies of the writ petition on them on 3rd and 4th July, 2014 respectively. Affidavit-of-service filed in Court today shall be retained with the records.
This writ petition is directed against a decision of the Ethics Committee, M.C.I. taken at its meeting held on 26th-27th April, 2013, since approved by the Board of Governors in the meeting held on 5th June, 2013. Such decision has been communicated to the petitioner by the Additional Secretary, M.C.I. vide his memo dated 24th June, 2013. The decision that has been communicated reads as follows :-
"The Ethics Committee considered the appeal dated 08.10.2012 filed Sh. Biswajit Hazra against Order dated 30.04.2012 passed by West Bengal Medical Council and noted that West Bengal Medical Council vide its order dated 30.04.2012 held that 'there is no mismanagement on the part of Dr. Sanjay De Bakshi in treating the patient, Monika Hazra, wife of complainant and charges against the doctor doctor could not be substantiated. Hence, they were decided to close the complaint case'.
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After considering all the records, the Ethics Committee found no medical negligence on the part of the treating doctor i.e. Sanjay De Bakshi. Therefore, the Ethics Committee decided to uphold the decision of West Bengal Medical Council.
Accordingly, the appeal is disposed off."
Mr. Pal, learned advocate appearing for the petitioner contends that the appellate order is absolutely unreasoned and does not disclose any application of mind to the materials on record. Mr. Bhowmik, learned advocate appearing for the West Bengal Medical Council submits that the Indian Medical Council Act, 1956 or the Bengal Medical Act, 1914 does not provide any remedy of appeal against an order of the State Medical Council refusing to hold a delinquent doctor guilty of medical negligence and, therefore, the appeal itself was not maintainable.
The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 have been looked into. Regulation 8.8 thereof does provide a right to a person aggrieved by the decision of the State Medical Council refusing to take action on a complaint against a delinquent doctor to prefer an appeal to the M.C.I. The submission of Mr. Bhowmik that Regulation 8.8 is ultra vires the Medical Council of India Act is of no relevance here, since Regulation 8.8 is not under challenge.
The sole question that this Court is called upon to answer is, whether the appellate order satisfies the test of reasonableness and fairness or not.
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Bare perusal of the impugned appellate order would reveal that there is no reference to the circumstances under which the victim died and what exactly was alleged against the delinquent doctor. The said order records only the conclusion and not the reasons for such conclusion.
In 'Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney & Others' reported in (2009) 4 SCC 240, the Supreme Court had the occasion to rule as follows:-
"7. In the present case, since the appellate authority's order does not contain any reasons, it does not show any application of mind.
8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S. N. Mukherjee v. Union of India [(1990) 4 SCC 594], is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
9. No doubt, in S. N. Mukherjee case it has been observed that: (SCC p 613, para 36) '36. ... The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.' The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a
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contrary view would mean that appellate authorities can simply dismiss appeals by one-line orders stating that they agree with the view of the lower authority.
10. For the same reason, the decision of this Court in State of Madras v. A. R. Srinivasan (AIR 1966 SC 1827) has also to be understood as explained by us above."
The decision of the Ethics Committee, since approved by the Board of Governors of the Medical Council of India, impugned herein thus is clearly in the teeth of the dictum in Jagdish (supra). This Court is of the view that the M.C.I. or the respondent no. 4 cannot take any additional ground for supporting the impugned decision by filing an affidavit and, therefore, no direction to exchange affidavits is given.
The appellate decision, as communicated by the memo dated 24th June, 2013, stands set aside.
The writ petition stands disposed of with a direction upon the Ethics Committee to re-consider the appeal of the petitioner dated 8th October, 2012 in accordance with law as early as possible but not later than 12 weeks from the date of receipt of a copy of this order. Such disposal shall be preceded by an opportunity of hearing to the petitioner. If the petitioner's appeal is rejected, a reasoned order shall be passed. On the contrary, if the petitioner's appeal is accepted, follow up steps, in accordance with law, shall be taken without any delay.
There shall, however, be no order for costs.
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Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
( Dipankar Datta, J. )