Calcutta High Court (Appellete Side)
Medical Council Of India vs State Of West Bengal & Ors on 29 September, 2011
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
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In The High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Kalyan Jyoti Sengupta
And
The Hon'ble Justice Asim Kumar Ray
M.A.T.613 of 2010
A.S.T.60 of 2010
A.S.T.53 of 2010
In connection with
W.P.9740 (W) of 2009
Medical Council of India
vs.
State of West Bengal & ors
And
Dr. (Mrs.) Rupa Basu (Banerjee)...appellant
Vs.
State of West Bengal & ors.
For the appellant in MAT 613/10
& for respondent No.4 in AST 60/10 : Mr. Saugata Bhattacharya
For the respondent No.7/writ petitioner In MAT 613/10 & for appellant in AST 60/10 : Mr. Surajit Samanta, Ms. Madhumita Roy, Mr. Biswajit Samanta, Mr. Debajit Samanta For the respondent No.3 in both the appeals : Mr. Saibalendu Bhowmick, Ms. Manisha Bhowmick For the State in AST 60/10 : Mr. Jaydeep Kar, Mr. Pratik Dhar, Mr. Siddhartha Ghosh For private respondent in AST 60 of 2010 : Mr. Subir Sanyal, Mr. Ratul Biswas.
Judgement on : 29.9.2011.
K. J. Sengupta, J:-
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Both the above appeals have been preferred against the common judgment and order of the learned Single Judge of this Court dated 17th February, 2010 in the aforesaid writ petition. By the impugned judgment and order the writ petition filed by the appellant in the second mentioned Appeal (A.S.T. 53 of 2010) Dr. Rupa Basu (Banerjee) (hereinafter referred to as "Rupa") was dismissed. First mentioned appeal (A.S.T. 60 of 2010) has been preferred by the appellant, Medical Council of India against the findings of the learned Trial Judge in the said writ petition that the Rule 8.8 of the Regulation of 2002 is unconstitutional.
The fact leading to preferring the aforesaid two appeals are summarized hereunder:-
Rupa is a qualified doctor having registration certificate issued by the West Bengal Medical Council. She holds diploma in Gynecology and Obstetrics from Calcutta University and also Post Graduation Degree in the same field. One Smt. Modhumita Boral the respondent No.6 was admitted to the Nursing Home owned and run by Rupa under the name and style of New Life Maternity, Chanditala Hooghly, for delivery of third child of the respondent No.6. Accordingly, Rupa being the attending Surgeon in the morning of 15th August, 1999, undertook lower uterine caesarian section and bilateral tubectomy operation of Respondent No.6 who gave birth to a female baby. Nine days thereafter the said patient and female baby were discharged from Nursing Home on 24th August, 1999. On 27th August, 1999, on call Rupa attended respondent No.6 for dressing the caesarian section scar and wound. On 30th August, 1999, the respondent No.6 attended the nursing home with complaint of bleeding from caesarian section scar. In view of 3 repeated complaint being made Dr. Biplab Banerjee, the husband of Rupa who is also a medical practitioner owing to his social connection attended the respondent No. 6 at her residence on 31st August, 1999 and dressed the scar and wound and also prescribed medicines. The husband of Rupa thereafter attended the respondent No.6 in the first week of September, 1999 at her residence absolutely gratuitously and not professionally. Thereafter it was discovered that after birth of the said female baby it became a victim of "Birth Asphysia" and underwent prolonged treatment but expired on 18th February 2002 on way to B.R. Singh Hospital being referred to by Chanditala Hospital.
It appears that the husband of the respondent No.6 made a complaint on 29th June, 2004 to the West Bengal Medical Council. Accordingly, Rupa was served with a memo bearing No.1492-C/75/2004 dated 22nd July, 2004 issued from the West Bengal Medical Council under relevant provision of the Bengal Medical Act, 19144. It was complained that on 14th August 1999 Rupa is alleged to have performed defective caesarian section operation on 15th August, 1999. It was also complained that operation was done with spinal anaesthesia though on record it was done as general anaesthesia in the discharge certificate. It was alleged that Rupa did not take care or proper care during operation and had taken an unqualified person to assist her during operation. No Paediatrician was taken to assist at the Operation Theater during the operation to ensure proper care of the newly born baby. It was not indicated in the record that tubectomy operation was performed at the time of lower uterine caesarian section. On 4 receipt of the said notice Rupa duly replied to the same and defended herself contending that she is innocence.
On 6th June, 2006, after detailed enquiry and taking evidence the West Bengal Medical Council found that three charges framed against Rupa had been substantiated and the West Bengal Medical Council had decided to warn Rupa for professional misconduct. Thereafter, an appeal was preferred by the said complainant Sri Susanta Kumar Boral to the Department of Health and Family Welfare, Government of West Bengal. The Principal Secretary of the said department took up hearing of the appeal and in the process gave personal hearing to both the parties under Section 26 of the Bengal Medical Act 1914 (hereinafter as "State Act"). After hearing, the Principal Secretary passed an order that the punishment of warning would require modification and imposed punishment of removal of the name of Rupa by the West Bengal Medical Council from the register of Registered Medical Practitioner for a period of six months with effect from date of receipt of the said order by the Council.
In the writ petition various grounds were taken both on merit as well as law. It was contended that in view of Central Act viz. Indian Medical Council Act, 1956 (hereinafter Central Act) and the Regulation of 2002 framed thereunder having come into force the appeal ought to have been preferred and decided under the said Regulation 2002. The State Act as above stood overridden in view of the commencement of the Central Act in the same field. Therefore, the Principal Secretary being the Appellate Authority (under State Act) has no jurisdiction to entertain the appeal or to pass any order.5
Mr. Biswajit Samanta, learned counsel appearing for Rupa in support of his client's appeal contends that the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal acting as an Appellate Authority under the provisions of Section 26 of the State Act has no jurisdiction to entertain, hear the appeal against the orders of the State Medical Council as the Central Act and regulations framed thereunder provides for mechanism for dealing with and disposal of the appeal against decision passed by the State Medical Council under the Regulation 8.8 of the Indian Medical Council (Professional conduct etiquette and ethics) (Amendment Regulation 2002) as it has been brought into effect on and from 4th March 2004. The learned Trial Judge, therefore, should have held the question of jurisdiction in favour of the writ petitioner.
He contends that State Act in the same field has now become repugnant to the Central Act as such by virtue of provision of Article 254(2) of the Constitution of India the State Act is repugnant to the extent of conflict to Central Act.
He further submits that legal concept of repealing when there is inconsistency on the same field of the two statutes has been decided by the Supreme Court in case of Karunanidhi v. Union of India reported in AIR 1979 SC
898. His further contention is that where it is evident that Parliament intended its legislation to be a complete and exhaustive code relating to any subject it shall be taken that the Union Law has replaced the State Law. In support of this legal cotention he has referred to a decision in case of State of Assam vs. Horizon Union reported in AIR 1967 SC 442.6
He submits with the support of two Supreme Court decisions reported in (1985) Supp. SCC 476 and 1995 SCC 257 that even when the Central Act is not exhaustive repugnancy may arise if it occupies the same field. When two Acts are clearly inconsistent the former is deemed to be impliedly repealed by laws of will of superior legislature that must prevail and this has been explained in the case of United Provinces vs. Atiqua Begum reported in AIR 1941 FC 16 at page 31.
He submits that concurrent jurisdiction of two authorities in case of quasi judicial authorities, are not possible idea unlike court. He also contends that provisions of the Medical Council of India is mandatory and it has overriding effect over the State legislation in view of the decision reported in (1998) 6 SCC 131, in case of MCI vs. State of Karnataka and also the decision of the Supreme Court in case of Dr. Preeti Srivastava vs. State of MP reported in (1999) 7 SCC
120. He also submits relying on the decision of Supreme Court rendered in case of PC Kesavan Kuttynayar vs. Harish Bhalla reported in (2003) 8 SCC 490 that MCI regulations 8.7 and 8.8 have been added to the Code of Ethics under orders of the Hon'ble Supreme Court on the submission of learned Attorney General. Hence this regulation is deemed to have been framed in pursuance of Section 20A of the statute read with been framed in pursuance of Section 20A read with Section 33 (m) and Section 20A(2) of the statute shall have effect notwithstanding anything contained in any law for the time being in force.
On merit though in the record it does not appear this point was argued before the learned Trial Judge, he submits that the Appellate Authority has no 7 jurisdiction to enhance the punishment (concurring with the findings) of the State Medical Council. When the State Medical Council has arrived at finding that birth asphysia was very unlikely and there was really certain inadvertent mistake and not a case of real medical negligence, the Appellate Authority ought not to have interfered with the discretion of the Medical Council as regard question of punishment which is an expert body. Therefore, the judgment ad order of the learned Trial Judge should be set aside and so also the order of the Appellate Authority.
Learned counsel for the West Bengal Medical Council while supporting the judgment and order of the learned Trial Judge submits placing various provisions of the State Act and also those of Central Act, that on conjoint reading of all the provisions of both Central Act and the Rules framed thereunder it will be palpably clear that under the State Act any decision of the State Medical Council taken under Sections 17 and/or 25 can be challenged by preferring appeal to the State Government under Section 26. On careful reading of Section 26 with reference to Sections 17 and 25 of the State Act any person including the practitioner, aggrieved can prefer appeal under this State Act. However under provision of Section 24(2) of Central Act read with Section 32 of the said Act read with Rules 27(1), (2) and (3) of the Indian Medical Rules 1957, no person other than the aggrieved medical practitioner can prefer appeal under the circumstances mentioned therein to the Central Government within thirty days from such order of removal only after exhausting all his remedies available under the State Act concerned.
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He further contends that there is no question of repugnancy between the aforesaid two provisions namely Section 26 of the State Act and 24 of Central Act read with Rule 27 of the Indian Medical Council Rule 1957. These two provisions can operate simultaneously and harmoniously as object of both the aforesaid provisions are same, to redress the grievance against the decision of the State Council. Both the Acts cover the subject-matter of the concurrent lists of seventh schedule of the Constitution and there is no inconsistency, hence there is no applicability of Article 254(1) of the Constitution of India. He referring to a decision of the Supreme Court reported I AIR 2008 SCW 844 contends that the Court while interpreting the apparent competing provisions of two enactments should try to give effect to both harmoiously. He referring to couple of Supreme Court decisions reported in 2005 (3) SCC 601 ad 2006 (4) SCC 327, contends that no provision of substantive law whether Central or State can be curtailed by subordinate or delegated legislation. Obviously, he contends, provision of Regulation 8.8 conferring the power upon Medical Council of India to hear the appeal cannot override Section 26 of the State Act, as such the provision of State Act has no inconsistency or repugnancy with the Central Act.
Learned Counsel for the Indian Medical Council submits that the declaration of the learned Trial Judge that Regulation 8.8 framed under Central Act is ultra vires, was without jurisdiction in view of the fact that subject matter in the writ petition was not the legality and validity of the aforesaid regulations. Thus the learned Trial Judge has overstepped the power while deciding non issue in the matter. It would appear from the statement and averment of the writ 9 petition as well as the prayer portion thereof the issue was whether the provisions of Section 26 of State Act is ultra vires the provision of Central Act and the Rules framed thereunder because of repugnancy and further whether order dated 7th May, 2009 passed by the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal is liable to be set aside or not.
Learned Counsel contends that no-one can question legislative competence of the Parliament to enact Central Act. Under the provision of this Act Regulation has been framed. Clauses 8.7 and 8.8 were also incorporated later on and the same were placed before the Hon'ble Supreme Court at the time of hearing of the Writ Petition No.317 of 2000 (Molay Ganguly vs. Medical Council of India and ors). The Hon'ble Supreme Court while accepting suggestion of learned Attorney General has been pleased to direct incorporation in the Code of Ethics prescribed by the Medical Council of India.
Thence, learned Counsel contends that when the Supreme Court has directed to accept the said regulation, it cannot be said to be ultra vires constitution by this Court. In view of the Supreme Court direction the presumption is always in favour of Constitutional validity and legality. It is for the Supreme Court to review the aforesaid point if warranted, not for this Court.
Thus he contends that there is no scope in this matter to declare the aforesaid two regulations being ultra vires and is not operative. He contends with the support of the judgment reported in (1998) 6 SCC 131 and (1999) 7 SCC 490 that there cannot be any repealing by necessary implication. 10
Mr. Joydeep Kar, learned counsel appearing for the State supports the contention of learned counsel for the State Medical Council and in addition thereto he has relied on the decisions of the Supreme Court reported in (2008) 4 SCC 720 and (2004) 1 SCC 574 on the point that no substantive legislation can be said to have been overridden by any subordinate legislation.
On considering the contention of all the learned counsels and while reading the writ petitions and other pleading from the records it appears to us points for consideration in this appeal are (i) whether the learned Trial Judge is justified in upholding the authority of the State Government under State Act in entertaining and deciding the appeal, (ii) Whether the aforesaid regulations 8.7 and 8.8 as incorporated in the existing regulation have been framed under Central Act can take away power of State Government under State Act?
While perusing statement and averment in the writ petition and also prayer thereof we find as rightly pointed out by learned counsel for the Indian Medical Council that issue which stood for decision of the learned Trial Judge was whether in view of the provisions of the Indian Medical Council Act and the regulation framed thereunder the provisions of State Act stand overridden or not. In our view the learned Trial Judge should have restricted his power to decide the issue whether by virtue of Article 254(1) of the Constitution of India, State Act is repugnant to any of the provisions of the Central Act and Rules framed thereunder or not. None can question nor it is in dispute that subject of the Medical Education and profession comes within concurrent list in the seventh schedule under entries 25 and 26 respectively (here entry 26). 11
The principal argument of Mr. Samanta appearing for the appellant Rupa, is provision of the State Act is unconstitutional for its inconsistency with Central Act in view of Article 254(1) of the Constitution of India. We therefore set out Article 254 of the Constitution:-
"Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has 12 been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
We are unable to accept the contention of Mr. Samanta that there could be any repugnancy as Article 254 has no manner of application for the same applies in case of legislations made by the Parliament and State respectively in the same field. In this case State Act (as described by us) was made by the Province before constitution came into force not by the State as defined in the Constitution.
On careful reading of the aforesaid Article it appears to us that Article 254 would be applicable only after commencement of the Constitution and not before that of course, the Provincial Act could be vulnerable to the extent as provided in Article 13 of the Constitution of India which reads as follows:-
"Article 13. Laws inconsistent with or in derogation of the fundamental rights.- (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."13
In the body of the Constitution there is no such corresponding provision like Article 13, of overriding effect by law made by Parliament over law made by the province. In case of Calpes India Limited vs. Director of West Bengal Fire Services reported in AIR 1960 Cal 219 learned Single Judge of this Court in paragraph 18 while interpreting Article 254 of the Constitution in the context of the statutes of the Petroleum Act 1934 vis-à-vis Fire Services Act, 1950. Act 1934 (pre-Constitution Act) held that the said Act is neither the Act passed by the Central Government nor by the Parliament as such there cannot be any question of its repugnancy with the Fire Service Act of 1950 either under Article 254(1) of the Constitution or Section 107(1) of the Government of India Act 1935. In this case State Act is an enactment of pre-constitution one not by the State after Constitution.
It is useful I this context to remind ourselves Article 372 of the Constitution of India which provides for amongst other continuance in force of existing laws. Clause (I) of this Article together with explanation (I) is apposite to be brought in this context:
372: (1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the 14 President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modifications shall not be questioned in any court of law.
(3) Nothing in clause (2) shall be deemed-
(a) to empower the President to make any adaptation or modification of any law after the expiration of [three years] from the commencement of this Constitution; or
(b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause.
Explanation I. The expression "law in force" in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, (emphasis supplied) notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.
In the Constitution except Article 13 as discussed hereinbefore there is no other provision to render any existing laws on the date of commencement of Constitution, invalid or inoperative. In order to render "State Act" being invalid, inoperative only route is to repeal or suitable amendment as permissible under above Article. Act of 1914 (though described here as State Act) was not made by 15 the State but by the then Bengal Province when Constitution was not even under contemplation. We respectfully accepting above legal pronouncement in holding that in this case Article 254(1) has no manner of application. Even reading the provisions of the two enactments as rightly contended by the learned counsel Mr. Bhoumik in this case question of repeal does not and cannot arise. Moreover, repealing can be done by the same legislature which has enacted earlier. Concept of repeal and repugnancy are two different connotations, though the effect is more of less the same. In case of former there must be overt act of the legislation to withdraw and/or revoke the earlier enactment whereas in case later law made by the superior legislature on its subject is contradicted by any legislation made by any inferior legislature on the same subject, question of repugnancy would arise.
While viewing differently, we are of the opinion that the principle of invalidity on the ground of repugnancy as urged by the learned counsel for the appellant will arise only if reading two competing provision of law on the same subject operate inconsistently and contradictorily to each other. Here we find that Act of 1914 has provided the provision of appeal under Section 26 to the State Government from decisions of the State Council under Section 17 or Section 25. It will be clear from above provision that any person may approach in appeal. Therefore, whole object of this provision is meant for ventilating grievance by the aggrieved party by way of appeal to the superior forum. It is settled law right of appeal is substantive one and is always statutorily expressed. This cannot be refused by the Appellate Authority as no discretion is left. We find that 16 the similar provision has been made in Act of 1956. Section 24 sub-section (2) of Act 1956 provides for preferring appeal not by any one and every one, only delinquent medical practitioner whose name has been removed from the State Medical Register is entitled to prefer appeal. We, therefore, for better understanding, quote sub-section 2 of Section 24 of the Central Act.
Section 24(2)- Where the name of any person has been removed from a State Medical Register on the ground of Professional misconduct or..........he may appeal in the prescribed manner and subject to such conditions including conditions as to the payment 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.
In exercise of power under Section 32 of the Central Act, the Central Government has framed Rule styled as Medical Council Rules 1957. Rule 27 of the said Rule provides to some extent the procedure for preferring appeal under Section 24 of Central Act. The said Rule 27 provides as follows:-
"Rule 27(1)- Where the name of any person has been removed from a State Medical Register on any ground other 17 than that he is not possessed of the requisite medical qualifications or where any application made by the said person for the restoration of his name to the State Medical Register has been rejected, the said person may appeal to the Central Government against the decision of the State Government or other authority ordering such removal or rejecting his application. Provided that such an appeal shall lie to the Central Government only after the party has exhausted all his remedies under the State enactment concerned."
It is appropriate to note that the said Rule has been ratified under sub- section (2) of Section 32 by the Parliament hence the said Rule has got a better statutory force than that of regulation which can be framed under Section 33 of Act of 1956 as the said regulation is framed by the Council and with the previous sanction of the Central Government not by Parliament. Section 24 of Central Act provides for preferring appeal, while Rule provides for forum to prefer appeal.
It is obvious that the provision of State Act is much wider which enable any person to prefer whereas the provision of appeal under the said Section 24 sub- section (2) read with Rule 27 is not amenable to any person except the aggrieved medical practitioner.
It is thus clear that the object of this Section is also to enable the aggrieved person to prefer an appeal against the decision of the State Council, and in the Rules it is specifically clear under what circumstances the appeal could be preferred.
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It appears that the appeal under Central Act cannot be preferred by the delinquent medical practitioner straightway and it can be done only when the appellant concerned has exhausted all his remedies under the State enactment concerned. We think that this provision of appeal under the Central Act can be made applicable only when delinquent doctor even after having preferred the appeal did not get any hearing nor decision has been obtained. On reading of the said provision of Section 24 sub-section (2) and the aforesaid rule harmoniously the aforesaid logical conclusion can be arrived at. If any interpretation other than as above is sought to be given then it will leave to absurdity. Object of both the enactments are the same and method is also the same. We, therefore, do not find any repugnancy in operation of both the statutes on the same field. One striking feature in this case is when it is found that the State Authority is not acting it provides additional remedy to the medical practitioners to approach the Appellate Authority under Central Act.
According to us object of providing this remedy is providing speedy disposal of the appeal preferred by practitioner carrying order of punishment. We accordingly unable to accept the contention of the learned Counsel Mr. Samanta appearing for the appellant, we rather accept the conclusion of the learned Trial Judge to this extent.
Next contention is whether the regulation framed with the approval of the Hon'ble Supreme Court empowering the Medical Council of India to entertain and decide the appeal is militating against or overrides appellate provision of the State Act. In other words whether provision of State Act can be said to be 19 repugnant to the provision of regulations 8.7 and 8.8 framed with the approval of the Hon'ble Supreme Court or not. It appears that the learned Trial Judge has gone to the extent of declaring that the said regulations are ultra vires as it takes away the provisions of the Act under which the regulation is framed. Learned Trial Judge has recorded the appeal under Central Act lay before the Central Government whereas the regulation has sought to confer power upon the Medical Council of India. Learned Trial Judge has accurately recorded the fact also correctly recorded that under the law the regulation being the second degree of subordinate legislation (here rule is the first subordinate legislation) cannot have any provision inconsistent with Act under which it is framed.
We supplement expressing our views to what Parliament has not done the same cannot be done by the Council which is the creature of the Act, even with the approval of the Government. It appears that the said Regulation has been accepted by the Supreme Court in the case of Moloy Ganguly v. Medical Council of India and ors. in W.P.C. No.317 of 2000. We think the Hon'ble Apex Court has merely approved incorporation of regulation but it has not expressed any opinion of its overriding applicability. We quote the relevant portion of the Supreme Court decision in case of P.C.Kesavan Kuttynayar vs. Harish Bhalla and others. Reported in (2003) 8 SCC at page 490-
22. As suggested by the learned Attorney General, the following provisions could be added in the Code of Ethics prescribed by the Medical Council of India:
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"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, MCI has reason to believe that there is no justifiable reason for not deciding the complaint within the said prescribed period, the Medical Council of India may -
(i) impress upon the State Medical Council concerned to conclude and decide the complaint within a time-bound schedule;
(ii) may decide to withdraw the said complaint pending with the State Medical Council concerned straight away or after the expiry of the period which had been stipulated by MCI in accordance with para (i) above to itself and refer the same to the Ethics 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 Council on any complaint against a delinquent physician, shall have the right to file an appeal to MCI 21 within a period of sixty days from the date of receipt of the order passed by the said Medical Council:
Provided that 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."
It thus appears clause 8.8 of the regulation makes a provision for appeal for any person aggrieved by the decision of the State Council on any complaint against delinquent physician, not by the aggrieved delinquent physician.
As far as Section 24 sub-section (2) of the said Act is concerned we have discussed that the same provides for preferring appeal by the Practitioner. We are of the view clause 8.8 of the regulation is delegated and/or subordinate legislation.
A large number of decisions of the Supreme Court have been cited by Mr. Bhowmik and Mr. Kar. In case of Kerala Samsthana Chethu Thozhilali Union vs. State of Kerala and ors. reported in (2006) 4 SCC 327, the Hon'ble Supreme Court in paragraph 17 of the said report explains position of the law in this regard.
"17. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation 22 cannot be violative or any plenary legislation made by Parliament or the State Legislature."
Later the Supreme Court in case of Government of Andhra Pradesh and ors. vs. P. Laxmi Devi (Smt) reported in (2008) 4 SCC 720 repeated and reiterated the above principle in more exhaustive manner. In paragraphs 33, 34 and 35 it rules as follows:-
" 33. According to Kelsen, in every country there is a hierarchy of legal norms, headed by what he calls as the "grundnorm" (the basic norm). If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail (see Kelsen's The General Theory of Law and State).
34. In India the grundnorm is the Indian Constitution, and the hierarchy is as follows:
(i) The Constitution of India;
(ii) Statutory law, which may be either law made by
Parliament or by the State Legislature;
(iii) Delegated legislation, which may be in the form of rules made under the statute, regulations made under the statute, etc.;
(iv) Purely executive orders not made under any
statute.
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35. If a law (norm) in a higher layer in the above
hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the directive principles which, by Article 37, have been expressly made non-enforceable)."
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.
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 24 same. We think that the matter can be reconsidered by the Hon'ble Supreme Court only in this aspect when occasion will arise.
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.
As far as enhance of punishment is concerned we do not wish to substitute our wisdom, as Appellate Authority under State Act with detailed reason and fact finding imposed punishment which does not appear to be shockingly disproportionate. We, therefore, uphold this decision.
Thus both the appeals are disposed of. Stay of operation of this judgment is prayed for, such prayer for stay is granted till 6th November, 2011.
(Kalyan Jyoti Sengupta, J.) I agree.
(Asim Kumar Ray, J.)