Calcutta High Court
People For Better Treatment (Pbt) vs West Bengal Medical Council (Wbmc) And ... on 5 July, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
GA 1321 of 2019
WP 246 of 2019
PEOPLE FOR BETTER TREATMENT (PBT)
Versus
WEST BENGAL MEDICAL COUNCIL (WBMC) AND ORS.
BEFORE:
The Hon'ble CHIEF JUSTICE THOTTATHIL B. RADHAKRISHNAN
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 5th July, 2019.
Dr. Kunal Saha, in person
..for Petitioner
Mr. Kishore Dutta, Advocate General
..for State
Mr.Saibalendu Bhowmick, Advocate
Mr. Biplab Guha, Advocate
..for Respondent no.1
The Court : Let the name "Dr. Kunal Sarkar", recorded in the order dated 14th June, 2019 appearing in the appearance portion of the cause title, be corrected as "Dr. Kunal Saha".
2
This writ petition was filed as a public interest litigation in the wake of the doctors' strike which essentially paralysed the medical service in the State of West Bengal. An order was minuted on 14th June, 2019 after hearing the petitioner in person. That order reads as follows:
"We have heard Dr. Kunal Saha, President of the petitioner appearing in person. We have heard the Learned Advocate General and the learned Counsel for the Medical Council of State of West Bengal.
At the outset, let us record that we do not propose to proceed with the matter as an adversarial litigation. However, we need to provide appropriate push with requisite grease to ensure that the on going strike by a section of doctors comes to an end through governmental intervention by way of persuasion or otherwise, in accordance with law. We do so because, within the parameters of Article 21 of the Constitution of India, 'human rights' as understood in the civilised societies and recognised in the international domain through terms of international conventions, which bind different nations, it is the fundamental requirement that the right to health is given top priority and any need for medical help is immediately extended to any human being even if he is not a citizen. Therefore, we take this opportunity to state that resolution of disputes which would have arisen as a consequence of certain unfortunate events even in the hospital is not to be countered by action of eminent and well informed people like doctors by keeping away from their primary and fundamental duty to serve the people. Be that as it may, the State Government has also to ensure that the grievance of the doctors, particularly in relation to certain incidents which are alleged to have occurred, are addressed in accordance with law without any delay. We record the submission made by the Learned Advocate General that First Information Report has been lodged and arrests have been made insofar as the alleged incidents in which the doctors are stated to be victims. This means that the State Government has taken efforts to push the machinery in that regard. As a necessary follows and consequence, it is definitely for the doctors to now turn themselves to the reconciliatory mode in the larger interest of the suffering people and answer their oath which they have taken while they became doctors. The great advise given through the Hippocratic Oath ought to lead them to better ways of dealing with the problems which they are faced with. The State Government shall also ensure that adequate protection is 3 provided to the hospitals and place of work of all doctors and also such places where doctors may feel insecure in any circumstances.
Following this order, we hope things will take a better shape so that the Learned Advocate General would be able to place a comprehensive response as to what would happen following this order by the next date of hearing.
Post the matter on 21st June, 2019."
As noted in the aforesaid order, this litigation was considered not as an adversarial litigation particularly because what was attempted to be looked into was ways and means to solve the bottleneck created by the then situation surrounded with emotions with doctors having been subjected to certain attacks and the doctors going on strike and consequently, the patients suffering because of dearth of doctors and medical services. With the passage of time, the learned Advocate General is justified in pointing out that this writ petition has merely become an academic one since the doctors' strike has been withdrawn and as of now, no issue is continuing to exist.
We may note that the petitioner has sought for very wide reliefs including for initiating disciplinary proceedings, taking action against the doctors and also for having a system in place. Matters, which should be attempted by appropriate and competent legislature, are the subjects on which the judiciary would not step into to speak. How the situation of doctors, who faced conditions of mob violence, has to be addressed, is a matter to be left to the wisdom of the government and the legislative bodies. Equally so as regards the liability of doctors in connection with negligence when such situations are shown to exist. Tortious liability, contractual liability, quasi-tortious liability, quasi- contractual liability and now the growing concept of constitutional liability of public servants and in the service sector are not matters which can be deliberated on a particular platform but have to be estimated based upon the facts and circumstances of each case. Therefore, it would be unsafe for us in terms of jurisprudence now to make 4 any observation about the eligibility for compensation or liability to be prosecuted or to be compelled to face disciplinary proceeding. All these matters would fall for consideration at the appropriate level of government. Any order passed in this jurisdiction will adversely affect the due process in all such matters.
In the aforesaid factual format, reiterating what has been stated by the Division Bench through the order dated 14th June, 2019, which is quoted above, we decline any further relief leaving open all issues. Accordingly, the writ petition and the application being GA 1321 of 2019 are disposed of.
(THOTTATHIL B. RADHAKRISHNAN, CJ.) (ARIJIT BANERJEE, J.) sm