Delhi High Court - Orders
Surender Kumar Dabas & Anr vs National Medical Commission Of India & ... on 22 September, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~409
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13757/2022 & CM APPL. 41998/2022(Stay)
SURENDER KUMAR DABAS & ANR. ..... Petitioners
Through: Mr. K. G. Sharma, Adv.
versus
NATIONAL MEDICAL COMMISSION OF INDIA & ORS.
..... Respondents
Through: Mr. T. Singhdev, Ramanpreet Kaur,
Mr. Abhijit Chakravarty, Mr.
Michelle B. Das and Mr. Bhanu
Gulati, Advs. for R-1.
Mr. Praveen Khattar, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 22.09.2022 CM APPL. 41999/2022 (for exemption) Allowed, subject to all just exceptions.
The application shall stand disposed of.
W.P.(C) 13757/2022 & CM APPL. 41998/2022(Stay)
1. The instant writ petition has been preferred challenging the order of 26 May 2022 passed by the Ethics and Medical Registration Board [―EMRB‖] of the National Medical Commission refusing to entertain the appeal which had been preferred by the petitioner against an order of 05 January 2022 passed by the Delhi Medical Council [―DMC‖].
2. The Court notes that the issue of whether a complainant would have the right to prefer and institute an appeal before the EMRB had fallen for Signature Not Verified Digitally Signed By:NEHA Signing Date:23.09.2022 18:50:35 consideration before the Court in Amit Kumar Agarwal & Ors. vs. Union of India & Ors [W.P.(C) 7566/2022]. Dealing with the aforesaid question, this Court had observed thus: -
―The Court notes that the powers and functions of the Ethics and Medical Registration Board stand specified in Section 27. That provision reads thus:-
―27. Powers and functions of Ethics and Medical Registration Board.--(1) The Ethics and Medical Registration Board shall perform the following functions, namely:--
(a) maintain National Registers of all licensed medical practitioners in accordance with the provisions of section 31;
(b) regulate professional conduct and promote medical ethics in accordance with the regulations made under this Act:
Provided that the Ethics and Medical Registration Board shall ensure compliance of the code of professional and ethical conduct through the State Medical Council in a case where such State Medical Council has been conferred power to take disciplinary actions in respect of professional or ethical misconduct by medical practitioners under respective State Acts;
(c) develop mechanisms to have continuous interaction with State Medical Councils to effectively promote and regulate the conduct of medical practitioners and professionals;
(d) exercise appellate jurisdiction with respect to the actions taken by a State Medical Council under section 30.
(2) The Ethics and Medical Registration Board may, in the discharge of its duties, make such recommendations to, and seek such directions from, the Commission, as it deems necessary.‖ However and insofar as the subject of professional or ethical misconduct is concerned, that appears to be regulated exclusively by section 30. The said provision is extracted hereinbelow:-
―30. State Medical Councils.-(1) The State Government shall, within three years of the commencement of this Act, take necessary steps to establish a State Medical Council if no such Council exists in that State.
(2) Where a State Act confers power upon the State Medical Council to take disciplinary actions in respect of any professional or ethical misconduct by a registered medical practitioner or professional, the Signature Not Verified Digitally Signed By:NEHA Signing Date:23.09.2022 18:50:35 State Medical Council shall act in accordance with the regulations made, and the guidelines framed, under this Act:
Provided that till such time as a State Medical Council is established in a State, the Ethics and Medical Registration Board shall receive the complaints and grievances relating to any professional or ethical misconduct against a registered medical practitioner or professional in that State in accordance with such procedure as may be specified by the regulations:
Provided further that the Ethics and Medical Registration Board or, as the case may be, the State Medical Council shall give an opportunity of hearing to the medical practitioner or professional concerned before taking any action, including imposition of any monetary penalty against such person.
(3) 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, and the decision, if any, of the Ethics and Medical Registration Board thereupon shall be binding on the State Medical Council, unless a second appeal is preferred under sub section (4).
(4) A medical practitioner or professional who is aggrieved by the decision of the Ethics and Medical Registration Board may prefer an appeal to the Commission within sixty days of communication of such decision.
Explanation. - For the purposes of this Act,
(a) "State" includes Union territory and the expressions "State Government" and "State Medical Council", in relation to a Union territory, shall respectively mean the "Central Government" and "Union territory Medical Council";
(b) the expression "professional or ethical misconduct" includes any act of commission or omission as may be specified by the regulations.‖ The said provision confers powers on a State Medical Council to examine complaints which may allege professional or ethical misconduct against a medical practitioner and further provides for an appeal to be taken against the decision of the said Council to the Ethics and Medical Registration Board.
Section 30(4) of the Act restricts the right of a further appeal being taken to the Commission to those which may be preferred either by a medical practitioner or professional. Section 30(4) makes no provision for a complainant preferring a further appeal before the Commission against an order that may be passed by the Ethics and Medical Registration Board.
Signature Not Verified Digitally Signed By:NEHA Signing Date:23.09.2022 18:50:35Bearing in mind the fact that the trial of complaints and the adjudicatory process in respect thereof stands governed by Section 30 exclusively, the Court finds itself unable to recognise the provisions of Sections 9(6) or 22(3) as conferring a right on a complainant to prefer a further appeal against a decision taken by the Ethics and Medical Registration Board in respect of matters relating to professional or ethical misconduct. It becomes pertinent to note that the exclusion of complainants from Section 30(4) is not assailed or challenged in the present writ petition. The Court must therefore proceed on the basis of Section 30(4) as it stands.
In view of the aforesaid, this Court is of the considered opinion that the appeal as preferred would not lie. Accordingly while the Court refuses to grant the writs as prayed for, it leaves it open to the petitioner to pursue such other remedies as may be permissible in law.‖
3. In view of the aforesaid findings as returned by the Court upon a due consideration of the relevant statutory provisions, it is manifest that the order of the EMRB merits no interference.
4. Learned counsel for the petitioners, in view of the above, prays for liberty being reserved to challenge the order passed by the DMC dated 05 January 2022 in appropriate and independent proceedings.
5. Accordingly, and in view of the decision rendered Amit Kumar Agarwal the challenge to the order of 26 May 2022 is negatived. The Court, however, grants liberty to the petitioners to initiate appropriate proceedings, if so chosen and advised, to assail the order of 05 January 2022 passed by the DMC.
6. The writ petition shall stand disposed of on the above terms.
YASHWANT VARMA, J.
SEPTEMBER 22, 2022/bh Signature Not Verified Digitally Signed By:NEHA Signing Date:23.09.2022 18:50:35