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Dr. Pankaj Nivrutti Bhalerao And Anr vs National Medical Commission Of India ... on 13 July, 2022

Author: Yashwant Varma

Bench: Yashwant Varma

                          $~14
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    W.P.(C) 3893/2022, CM APPL. 11577/2022 (Stay), CM APPL.
                               21929/2022 (E.H.)

                                DR. PANKAJ NIVRUTTI BHALERAO AND ANR...... Petitioners
                                              Through: Mr. K.G. Sharma, Adv.

                                                    versus

                                NATIONAL MEDICAL COMMISSION OF INDIA AND ANR.
                                                                                       ..... Respondents
                                                    Through: Mr. T. Singhdev, Ms. Sumangala
                                                                Swami, Advs. for R-1.
                                                                Mr. Praveen Khattar, Adv. for R-2
                                CORAM:
                                HON'BLE MR. JUSTICE YASHWANT VARMA
                                                    ORDER

% 13.07.2022 This writ petition has been preferred by the petitioners constrained by the fact that the Board which had been moved in an appeal pursuant to adverse orders made by the Maharashtra Medical Council against them had not considered the prayer for placing the order impugned in that appeal in abeyance.

Mr. Singhdev, learned counsel appearing for the Commission has drawn the attention of the Court to the order passed by the Court in Dr. Sandeep Bhagat Vs. Delhi Medical Council & Anr. [W.P.(C)10212/2022] where upon noticing the judgement rendered by the Bombay High Court in Dr. Ashok Vs. National Medical Commission [Writ Petition No. 589/2021], the Court had proceeded to dispose of that writ petition in the following terms:-

"2. Mr. T. Singhdev, learned counsel appearing for the Commission, on the other hand, has drawn the attention of the Court to a recent decision rendered by the Bombay High Court in Dr. Ashok Vs. National Medical Commission [Writ Petition No. 589/2021] and submits that the said High Court has recognised an incidental power inhering in the Board to consider the grant of stay in appeals that may be preferred before it. The Court notes the following fundamental principles which were laid down in the aforesaid decision:-

"13 The facts of the present case are such that the State Medical Council has directed removal of the petitioner's name from the register of the Council for a period of two months from the date of the order. It is also directed that the punishment of removal from the register has to be implemented after the appeal period is over. The appeal preferred by the petitioner is still pending though period of more than two months has passed. But for the interim orders passed by this Court the punishment imposed would have been suffered by the petitioner even prior to adjudication of his appeal. The petitioner would be faced with fait accompli if after suffering the punishment, his appeal is allowed by the Ethics and Medical Registration Board. The Appellate Authority would not be in a position to then restore the name of the petitioner in the register for the period for which it was directed to be removed. The situation would become irreversible. It is in this context that recourse to incidental powers of the Appellate Authority is warranted.

14. In the light of aforesaid discussion, it is held that (A) The Ethics and Medical Registration Board while hearing an appeal under Section 30(3) of the Act of 2019 possesses incidental powers which power would include granting stay to an order of penalty imposed by the State Medical Council under Section 30(2) of the Act of 2019. The mode and manner in which such incidental power is to be exercised and the terms and conditions to be imposed while exercising such power would be a matter within the discretion of the Ethics and Medical Registration Board. (B) It is directed that till such time the petitioner's application for grant of stay Registration Board, Maharashtra Medical is considered by the Ethics and Medical the order dated 02.12.2020 passed by the Council, Mumbai shall remain stayed. (C) Consequently the communication dated 12.02.2021 issued by the Ethics and Medical Registration Board informing the petitioner that there was no provision for granting interim relief pending consideration of the appeal under Section 30(3) of the Act of 2019 is quashed and set aside."

3. Mr. Singhdev has submitted that in light of the aforesaid decision, the Board has been taking up for consideration applications for stay that are placed before it.

4. Consequently, and in light of the above, the petition along with the pending application shall stand disposed of with the following directions:-

a) The petitioner shall forthwith take steps to remove and cure all defects that are pointed out in the pending appeal;

b) Since the order impugned in that appeal is stated to come into effect tomorrow itself, the Board is requested to take up the application for stay as expeditiously as possible and to consider the said application for stay on merits bearing in mind the principles enunciated by the Bombay High Court in Dr. Ashok.

c) The Court requests learned counsel appearing for the Commission to apprise the body of the passing of this order."

Learned counsel for parties are thus ad idem that this writ petition would warrant being disposed of on identical terms. Ordered accordingly.

All contentions of respective parties on merits are kept open.

YASHWANT VARMA, J.

JULY 13, 2022/neha Signature Not Verified Digitally Signed By:NEHA Signing Date:14.07.2022 13:28:52