Calcutta High Court (Appellete Side)
Dr.Baidyanath Haldar vs Medical Council Of India & Ors on 5 July, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Constitutional Writ Jurisdiction
05-07-2011 Appellate Side
sb-9
W.P.No.9757(W) of 2011
.
Dr.Baidyanath Haldar
-vs-
Medical Council of India & Ors.
Mr. Balai Roy
Mr. Gautam Mitra
Mr. Debajyoti Datta
Ms. Veenita Meharia
Mr. Makhan Roy ...for the petitioner
Mr. Jaharlal De
Ms. Anjusri Mukherjee ...for the State
Mr. Farook M. Razzak
Mr. Subir Pal
Ms. Priyanka Bhutoria ...for the Union of India
Mr. Saibalendu Bhowmik
Ms. Manisha Bhaumik
Ms. Anandamayee Ghosh
Mr. Debasish Ghosh ...for W.B. Medical Council
The petitioner in this art.226 petition dated June 20, 2011 is questioning an order of Medical Council of India dated May 23, 2011 (at p.291) ordering removal of his name from the register of the State Medical Council for a period of three months.
The fourth respondent initiated proceedings before West Bengal Medical Council alleging that the petitioner was guilty of professional misconduct. The Council did not find any merit in the allegation. Against its decision dated June 18, 2002 the fourth respondent lodged an appeal with Medical Council of India in May 2009. Allowing the appeal Medical Council of India has given the impugned decision.
2Mr Roy appearing for the petitioner has submitted that Medical Council of India had no jurisdiction to entertain the fourth respondent's appeal, for in terms of provisions of the Bengal Medical Act, 1914 the fourth respondent's remedy, if any, was an appeal to the State Government under s.26 of the Act.
Mr Razzak, Additional Solicitor-General of India, has submitted that insofar as the question of vires of reg.8.8 of the regulations is concerned he is yet to receive instructions. He has agreed that questions raised by the petitioner concerning the merit of the case are sufficient to admit the petition. He has found little to oppose the prayer for interim relief.
Mr Bhowmik appearing for West Bengal Medical Council has submitted that the decision of Medical Council of India is vitiated by a patent jurisdictional error in that against the decision of West Bengal Medical Council the fourth respondent could not lodge an appeal with Medical Council of India.
Affidavit of service has been filed stating that notice has been duly received by the fourth respondent. However, he has chosen not to appear and contest the case at this stage.
I am of the opinion that the petitioner has made out a strong prima facie case for admission and an interim relief. The fourth respondent's complaint to West Bengal Medical Council was dismissed evidently in terms of provisions of the 3 Bengal Medical Act, 1914 that provided for an appeal against the decision to the State Government under s.26 thereof.
The question whether against the decision the fourth respondent could lodge an appeal with Medical Council of India in May 2009 requires close examination. My tentative opinion is that Medical Council of India did not have any jurisdiction to entertain the appeal. The question of vires of the regulation also requires examination.
In the facts and circumstances of the case, I am of the opinion that the petition should be admitted and operation of the impugned decision should be stayed.
The balance of convenience and inconvenience is entirely in favour of passing a restraining order, for absence thereof shall cause a greater loss and injury to the petitioner than the loss and injury, if any, the respondents may suffer for it. If name of the petitioner is removed from the register in compliance with the decision, virtually, the petitioner, even if he succeeds, will not get any relief.
For these reasons, I admit the petition and stay the operation of the impugned decision dated May 23, 2011.
The respondents shall file opposition within eight weeks; reply, if any, shall be filed by four weeks thereafter.
This order shall be communicated to the non- appearing respondents within a week and affidavit of service showing compliance shall be filed at the time of final hearing. Liberty to mention for final hearing. Certified 4 xerox.
(Jayanta Kumar Biswas, J.)