Telangana High Court
K. Hari Prasad vs The State Of Telangana And 3 Others on 28 May, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 3047 OF 2023
O R D E R:
This Writ Petition was filed being aggrieved by the proceedings dated 23.03.2022 of the 2nd respondent in returning the Appeal dated 18-03-2021 filed by petitioner under Regulation 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The petitioner contended that rejection of Appeal as 'not maintainable' is illegal, arbitrary, and contrary to law.
2. Petitioner contends that the 4th respondent is running a hospital by name Taraporewalla Nursing Home located at East Maredpally, Secunderabad. He stated that his deceased wife was under the medical care of the 4th respondent from the second month of her pregnancy. Estimated date of delivery, as given by the 4th respondent was 25.08.2013. On 10-08-2013, petitioner's wife visited the 4th respondent nursing home for a general check-up along with test reports as advised earlier. After examining the reports, the 4th respondent diagnosed the petitioner's wife with Cholestatic Jaundice and directed her to get admitted to the nursing home, which she did on 10-08-2013 at 8:00 PM.
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Despite knowledge of the possibility of Post-Partum Hemorrhage (PPH), a severe complication involving uncontrollable bleeding post childbirth, the 4th respondent conducted surgery, without taking precautions, due to the said medical negligence, petitioner's wife died on 11-08-2013 at 11:45 AM, although the baby survived. Following the incident, petitioner lodged a police complaint on 04-09-2013 at Tukaramgate Police Station, which led to registration of FIR No. 117 of 2013 under Section 304-A IPC against the 4th respondent. A charge sheet was filed and the case was registered as C.C. No. 2407 of 2019 on the file of the Hon'ble XXII Chief Metropolitan Magistrate at Secunderabad.
Subsequently, petitioner filed a complaint with the Medical Council of India on 29-08-2013 requesting disciplinary action against the 4th respondent which referred the complaint to the 3rd respondent, i.e. the State Medical Council (Telangana State Medical Council), which, in turn, forwarded the case to the Ethics Committee. The Ethics Committee, after inquiry, observed that the allegations of negligence and deficiency in service made by the petitioner were not unreasonable and recommended a warning to the 4th respondent to be more cautious in observing medical procedures and protocols. Based 3 on the said findings, the 3rd respondent - State Medical Council passed order dated 03-02-2021 approving the recommendations through the Executive Committee, thereby issuing a warning to the 4th respondent.
Petitioner, aggrieved by the said order dated 03-02-2021, preferred Appeal on 18-03-2021 to the 2nd respondent - National Medical Commission which returned the appeal via Proceedings dated 23-03-2022, citing that the Appeal was not maintainable under Section 30(3) of the National Medical Commission Act, 2019 (for short, 'the 2019 Act'). Despite this, petitioner re-submitted the Appeal on 16-08-2022, requesting reconsideration. The Appeal was again returned through Proceedings dated 03-10-2022, stating that reconsideration could not be acceded to. According to petitioner, the ground for rejection that a non-medical practitioner cannot file an appeal under Section 30(3) is misconceived. He contends that Section 30(3) says that 'A Medical practitioner or professional who is aggrieved by any action taken by a State Medical Council under sub-section (2) may prefer an appeal to the Ethics and Medical Registration Board against such action'. Petitioner argued that this provision does not bar Appeals by non-medical persons and is, in fact, applicable only to medical 4 practitioners. Thus, applying Section 30(3) to his case is erroneous.
It is stated, petitioner is entitled to file an Appeal under Regulation 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The said Regulation states: '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'. Though the Indian Medical Council Act, 1956 was repealed by the National Medical Commission Act, 2019 (Act 30 of 2019), all Regulations framed under the former Act are saved under Section 60 of the new Act. Therefore, Regulation 8.8 of the 2002 Regulations continues to be valid and enforceable. It is stated that the 2nd respondent erroneously returned his Appeal by wrongly invoking Section 30(3) of the NMC Act, 2019, despite the appeal being maintainable under Regulation 8.8 of the 2002 Regulations.
3. The Deputy Secretary, National Medical Commission (NMC) stated in the counter that under the 2019 Act, the Ethics and Medical Registration Board (EMRB) of the NMC is empowered to decide Appeals filed only by registered 5 medical practitioners. Section 27(1)(d) read with Sections 30(3) and 30(4) provides for such Appeals exclusively by registered medical professionals. Hence, private parties or complainants, such as the petitioner, do not have the statutory right to file appeals before the NMC against decisions of State Medical Councils.
The question of whether the EMRB can entertain Appeals filed by non-medical practitioners has been conclusively settled by various judgments. The Delhi High Court has consistently held in cases including Ritu Verma v. National Medical Commission (WP(C) No. 13163/2021), Amit Kumar Agarwal & Ors. v. Union of India (WP(C) No. 7566/2022), Surender Kumar Dabas & Anr. v. NMC (WP(C) No. 13757/2022), Amit Kumar Agarwal & Ors. v. Union of India (LPA No. 687/2022), and Sunil Dhull v. NMC (WP(C) No. 4067/2023), that only registered medical practitioners may appeal before the EMRB. These judgments reiterate the NMC's position that it lacks jurisdiction to entertain Appeals by private complainants.
While Regulation 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 earlier allowed both private complainants and medical professionals to file Appeals, this provision has been eclipsed by 6 the provisions of the NMC Act, 2019. The NMC Act, being a parliamentary statute, supersedes the earlier regulations made under the Indian Medical Council Act, 1956. Therefore, after the enforcement of the NMC Act on 25.09.2020, only registered medical professionals are statutorily allowed to file such appeals, and Regulation 8.8 is rendered inoperative. It is pertinent to state that by virtue of Section 61 ofi theNMC Act, t2002 Regulations are still invogue tillfresh regulations are notified by the NMC.
Section 61(2) clarifies that, despite the repeal of the Indian Medical Council Act, 1956, the standards, requirements, and other provisions of that Act, and the Rules and Regulations made thereunder, shall continue to remain in force until replaced or superseded under the National Medical Commission Act, 2019. The proviso to Section 61(2) provides that any actions taken under the repealed enactment shall be deemed to have been taken under the corresponding provisions of the new Act and shall remain in force unless and until specifically replaced.
The respondent submits that the National Medical Commission promotes medical ethics and maintains a National Register for licensed medical practitioners as well as a separate National Register for Community Health Providers. Section 10 of 7 the 2019 Act outlines the powers and functions of the Commission. Additionally, Section 27 provides powers and functions of the Ethics and Medical Registration Board. Section 30 pertains to State Medical Councils. The proviso to Section 30(2) clarifies that until a State Medical Council is established in a particular State, the Ethics and Medical Registration Board is authorized to receive complaints regarding professional or ethical misconduct against registered medical practitioners in that State. Section 30(3) states that a medical practitioner aggrieved by an order of a State Medical Council may file an appeal before the Ethics and Medical Registration Board. Further, Section 30(4) provides that a second appeal against a decision of the Ethics and Medical Registration Board may be made to the Commission within 60 days. Section 31 provides for maintaining the National and State Registers, while Section 33 outlines the rights and obligations of those licensed to practice and registered on these registers. Section 34 lays down the restrictions on practicing medicine. Section 57 allows the Commission to make regulations, following prior publication, to carry out the provisions of the Act.
It is stated, as per Section 27(1)(d) read with Section 30(3) the Ethics and Medical Registration Board adjudicates 8 only those appeals that are filed by medical practitioners who are aggrieved by decisions of State Medical Councils. Section 30(4) provides for a second appeal to the Commission if the practitioner is dissatisfied with the decision of the Ethics and Medical Registration Board. The relevant provision of Section 30 is reproduced to clarify that only medical practitioners or professionals can appeal, and that the Ethics and Medical Registration Board or State Medical Council must provide a hearing before any action is taken, including the imposition of a monetary penalty.
It is stated that petitioner has alleged that his wife passed away due to the alleged medical negligence of the 4th respondent. In support of this allegation, the petitioner states that he submitted a complaint dated 29.08.2013 to the erstwhile Medical Council of India. This complaint was subsequently forwarded to the Telangana State Medical Council, which is respondent no. 3 in this case. The Telangana State Medical Council issued an order dated 03.02.2021 whereby it issued a warning to Dr. Shirin N. Taraporewalla, advising her to be more careful in observing procedures and protocols in the future. Aggrieved by the order dated 03.02.2021 petitioner filed Appeal dated 18.03.2021 before the Ethics and Medical 9 Registration Board of the National Medical Commission. In view of the legal position under Section 27(d) read with Section 30(3) of the National Medical Commission Act, 2019, and based on the decision taken by the Board in its meeting held on 06.10.2021, the Appeal was returned as the Board is not empowered to entertain appeals by private parties or complainants. The decision was communicated to petitioner by way of letter dated 23.03.2022. Petitioner once again requested respondent to consider his Appeal as a special case, through his letter dated 16.08.2022. The respondent, via reply dated 03.10.2022 reiterated that it was unable to entertain the Appeal due to the constraints imposed by the provisions of the 2019 Act. It is submitted that the Ethics and Medical Registration Board (EMRB) of the National Medical Commission (NMC), under the provisions of the 2019 Act is empowered only to entertain and decide Appeals filed by registered medical practitioners. Section 27(1)(d) read with Section 30(3) and 30(4) of the NMC Act, 2019, provides a right of appeal against the decision of the concerned State Medical Council before the EMRB and a further appeal to the National Medical Commission; however, such a right is expressly available only to registered medical professionals.
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It is further stated that the issue raised in the present petition--whether the EMRB is empowered to hear Appeals preferred by private parties or complainants (non- medical practitioners such as petitioner) against orders passed by State Medical Councils--stands conclusively settled. It has been held that the answering respondent is not competent to adjudicate Appeals preferred by private parties or complainants and can only entertain those filed by registered medical practitioners. Accoerding to this respondent, the present Writ Petition is squarely covered by the judgment dated 29.03.2023 passed by the Hon'ble Delhi High Court in Sunil Dhull vs. National Medical Commission, wherein it was again held that an appeal under Section 30(3) of the NMC Act, 2019, is not maintainable by a private party/complainant.
It is further stated that petitioner's reliance on Regulation 8.8 of the 2022 Regulations is misconceived. While Regulation 8.8 did provide for a right of appeal to both complainants and registered practitioners under the erstwhile IMC regime, the enactment of the NMC Act, 2019, has superseded this position. Section 27(1)(d) read with Section 30(3) and 30(4) now restricts appellate jurisdiction to registered practitioners alone. In the hierarchy of laws, the provisions of a 11 central statute override subordinate legislation such as regulations. Therefore, after the enforcement of the NMC Act on 25.09.2020, Regulation 8.8 stands eclipsed and is inoperative to the extent it contradicts the parent Act.
4. Respondent No. 4 filed counter stating that Petitioner has not made out any valid, legal or factual ground to invoke the extraordinary jurisdiction of this Court. It is clarified that based on Section 33-C of the Act, since Petitioner does not fall within the category of a "medical practitioner or professional," the Appeal was not maintainable in law and was thus rightly returned by Respondent No. 2. He is deliberately refraining from responding to the various allegations raised in paragraphs 3 and 4 of the Affidavit filed by Petitioner, as those issues are subjudice and are pending adjudication in CC No. 2407 of 2019 on the file of the XXII Chief Metropolitan Magistrate at Secunderabad and in C.C. No. 248 of 2013 on the file of the State Consumer Redressal Commission at Hyderabad, instituted under the provisions of the Consumer Protection Act.
Respondent No. 4 further stated that the legislative intent behind Section 30(3) of the NMC Act, 2019 is to permit only medical practitioners or professionals to file Appeals before the Ethics and Medical Registration Board. He contends that 12 the law does not permit third parties, such as Petitioner, who is not a medical practitioner, to invoke the appellate jurisdiction under the said provision. Consequently, it is argued that a writ of mandamus directing the Respondent No. 2 to entertain the said Appeal cannot be issued in law and any such direction would be in violation of the express provision of the statute.
5. Heard Ms. Bonthu Rajani, counsel appearing on behalf of Sri Ch.B.R.P. Sekhar, learned counsel for petitioner, Ms. Swapna Madhuri, Assistant Government Pleader, Ms. Gorantla Sri Ranga Pujitha, Standing Counsel for the 2nd respdnent and Sri Setty Ravi Teja, learned Counsel on behalf of the 4th respondent.
6. The principal issue is whether a non-medical person can invoke the appellate jurisdiction of the Ethics and Medical Registration Board under Section 30(3) of the National Medical Commission Act, 2019. The statute is clear in its terms. It limits the appellate remedy to "a medical practitioner or professional" aggrieved by an action of the State Medical Council. The petitioner is not a person registered as a medical practitioner, nor is he covered under the scope of a "medical professional" as defined under the Act. The appeal dated 18-03-2021 filed by petitioner under Regulation 8.8 of the 13 Regulations, 2002, is not maintainable in view of the statutory embargo under Section 30(3) of the NMC Act, 2019.
7. The Delhi High Court in Amit Kumar Agarwal's case (supra), held in categorical terms that 'if the argument of the learned Senior Counsel for the Appellant is accepted and is held that any person aggrieved by an order of the Ethics and Medical Registration Board can file an appeal to the Medical Council then Section 30(4) of the Act becomes otiose. It is a well-settled principle of law that each section is enacted / legislated for a specific purpose and the Courts cannot interpret a provision to make it nugatory. It is further settled law that effort should be made to ensure that each provision has its play and is harmoniously construed to iron out any repugnancy or inconsistency that exists between two provisions in the same enactment. In view of the above, Section 30 of the Act is a special provision dealing only with disciplinary actions taken against a medical practitioner or professional for ethical and professional misconduct and restricts the right to appeal from an order of the Ethics and Medical Registration Board only to medical practitioners or professional. Section 22(3) of the Act would not apply in case of professional misconduct.' 14
8. In the light of the above, the action of Respondent No. 2 in returning the Appeal was, therefore, not arbitrary or illegal but strictly in accordance with law. The judgments rendered by the Delhi High Court, cited supra by the respondent No.2 also support the said version. Petitioner has no legal right under the said statutory provision to file the Appeal and consequently, no mandamus can be issued. As held in Union of India v. S.B. Vohra 1, mandamus can be issued only when a public duty is owed to petitioner by the respondent and petitioner has a legal right. Neither condition is satisfied in the present case.
9. Further, petitioner is seeking to raise the same allegations that are already being adjudicated in C.C. No. 2407 of 2019 on the file of the XXII Chief Metropolitan Magistrate, Secunderabad and in C.C. No. 248 of 2013 on the file of the State Consumer Disputes Redressal Commission at Hyderabad. The attempt to simultaneously invoke writ jurisdiction in a matter pending before competent judicial and quasi-judicial forums is a clear abuse of process and cannot be entertained. Moreover, allowing such writ petitions would amount to judicially-enlarging the scope of a statutory right, which this 1 (2004) 2 SCC 150 15 Court is not inclined to do, especially in the presence of clear legislative intent that restricts appellate remedies to members of the medical fraternity alone. There is no infringement of any fundamental right nor breach of any statutory duty by Respondent No. 2. Therefore, this Court finds no merit in the contentions raised by the petitioner and holds that Writ Petition is liable to be dismissed.
10. The Writ Petition is accordingly, dismissed. No costs.
11. Consequently, Miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 28th May 2025 ksld