published in http://judis.nic.in/judis_andhra/filename=9788
THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD
WRIT PETITION No.16305 OF 2007
25.03.2013
Dr.L.Sudhakar
The Medical Council of India and two others
Counsel for the Petitioner: Sri Polavarapu Srinivas
Counsel for Respondent No.1: Sri Challa Gunaranjan.
Counsel for respondent No.2: Sri V.V.Anil Kumar.
Counsel for respondent No.3: Sri D.Prakash Reddy.
<Gist :
>Head Note:
? Cases referred:
1. W.P (civil) No.317 of 2000 (unreported)
2. (1974) 2 SUPREME COURT CASES 393
3. 2007(4) ALD 137 (LB)
4. AIR 1957 SC 540 (1)
5. (2010) 13 SUPREME COURT CASES 216
6. AIR 1968 SUPREME COURT 1336
7. (2003) 8 Supreme Court Cases 490
8. 2011 VII AD (DELHI) 420
9. (2004) 8 SCC 1
10. AIR 1961 S.C. 307
11. AIR 1968 SUPREME COURT 1336
12. 2007 (4) ALD 137 (L.B.)
13. 2006 (2) ALT 289
14. (2010) 4 MLJ 633
15. (1999) 8 SCC 16
ORDER:
Heard Sri Polavarapu Srinivas, learned counsel for the petitioner, Sri Challa
Gunaranjan, learned standing counsel for the 1st respondent, Sri V.V.Anil Kumar,
learned standing counsel for the 2nd respondent and Sri D.Prakash Reddy, learned
senior counsel for the 3rd respondent.
2. The writ petitioner was aggrieved by order No.MCI-211(2) (133)/2004-
Ethics/8222, dated 16.07.2007, of the Medical Council of India by which the 1st
respondent sought to impose a penalty of removal of the name of the writ
petitioner from the Indian Medical Register for a period of three months.
The
petitioner contended that he is a medical graduate of 1996 from Kakatiya Medical
College, Warangal and completed his Post Graduate Diploma in Anesthesiology from
Osmania University in 2001.
While describing his knowledge and experience in
the field, the writ petitioner contended that on 05.03.2003 at about 11.50 p.m.
he received information about the 3rd respondent's wife being admitted in
Shalini Maternity Hospital and Dr.Rajesh Khanna who gave the message and the 3rd
respondent were senior by one year to him and are his close friends.
Immediately the writ petitioner provided analgesia services to the deceased wife
of 3rd respondent, free of any charge, following all the formalities including
taking of consent of patient and her husband.
While he provided Epidural
Analgesia to the patient, Dr.Malathi, a senior Gynecologist assisted by
Dr.Thejeswari, attended on the wife of the 3rd respondent who developed a rare
complication Amniotic Fluid Embolism and did not survive inspite of the best
efforts of the doctors.
While the relatives of the deceased refused the
suggestion to have a post mortem examination, the 3rd respondent gave a
complaint on 19.07.2003 after 41/2 months alleging negligence on the part of the
doctors and after calling for explanations from all the doctors, the 2nd
respondent referred the matter to its Ethical and Malpractices Committee, which
found no negligence on the part of the doctors.
The cause of death being
Amniotic Fluid Embolism, the General Body of the 2nd respondent unanimously approved the findings of the committee on 03.02.2004 holding that there is no professional negligence on the part of any doctor.
The 3rd respondent preferred
an appeal before the Medical Council of India, challenging the said proceedings,
dated 11.02.2004, and the 1st respondent called all the doctors on 06.10.2005 to
Delhi.
It served a questionnaire and obtained the comments of all the doctors
including the writ petitioner.
Some expert opinions were also stated to have
been gathered and suddenly the impugned order informed the Ethics Committee of
the 1st respondent to have found him guilty of professional misconduct and
recommended removal of the name of the writ petitioner from the Indian Medical
Register for a period of three months.
The writ petitioner contended that the
Medical Council of India had no jurisdiction to entertain the appeal as there is no provision of law conferring such appellate jurisdiction under the statute or the regulations.
The writ petitioner further contended that the appellate order
is void apart from being violative of principles of natural justice and the
expert evidence forming the basis for the impugned order was gathered behind the
back of the writ petitioner without notice to him.
The material was never
furnished to the writ petitioner, more so while reversing the decision of the
2nd respondent and a criminal complaint under Section 304-A of the Indian Penal
Code and a complaint before the Andhra Pradesh State Consumer Disputes Redressal
Commission, Hyderabad for a compensation of Rs.1.00 Crore was also initiated by
the 3rd respondent and hence the Writ Petition.
3. The 1st respondent in its affidavit, called a short reply affidavit,
stated that the statutory provisions of the Indian Medical Council Act, 1956 (
for brevity, 'the Act') provided for an obligation on the Medical Council of
India under Section 21 of the Act for maintenance of the Indian Medical
Register. A reference was made to all the other provisions of the statute
including the provisions for appeal to the Central Government under Section 24
(2) of the Act against removing the name of a person from the State Medical
Register. In MALAY GANGULY v. MEDICAL COUNCIL OF INDIA AND OTHERS in W.P
(civil) No.317 of 2000, issues relating to action on complaints of medical
negligence attracted the attention of the Supreme Court which recorded the
suggestions of the learned Attorney General in its order, dated 08.09.2003, for
addition of Clauses 8.7 and 8.8 in the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002
(for brevity, 'the Regulations'). The Medical Council of India and the Central
Government accepted and approved the suggestions of the learned Attorney General
of India and a notification was issued including the suggested Clauses in the
Statutory Regulations on 26.05.2004. The affidavit further referred to the
contentions of the writ petitioner and stated that the Ethics Committee of the
Medical Council of India considered the appeal filed by the 3rd respondent in
its meeting held on 19/20-4-2004 in which it was decided to get the particulars
of the concerned doctors, the enquiry report etc., from the State Council as
requested in the letter dated 06.05.2004. The requisite documents were
furnished by the 2nd respondent vide its letters, dated 20.05.2004 and
22.05.2004. Then the Ethics Committee which met on 2/3.9.2004 noted the appeal
to have been preferred before incorporation of Clauses 8.7 and 8.8 in the
Regulations and the committee also observed the need for obtaining opinion from
Dr.Neera Agarwal and Dr.Rakesh Kumar, Professors, about any negligence on the
part of the concerned doctors. The said experts were communicated the same and
when their opinion was not received they were reminded and Dr.Rakesh Kumar,
Professor for Anesthesiology, Maulana Azad Medical College furnished his opinion
on 19.01.2005. The opinion was considered by the Ethics Committee on 1/2-4-2005
and then Dr.P.Malathi and the 3rd respondent were requested by a letter dated
29.04.2005 to appear before the Ethics Committee on
19/20-5-2005. The statement of Dr.P.Malathi was recorded on 19.05.2005, while
the 3rd respondent did not appear at the meeting on 24.06.2005 and at his
request he was asked to appear on 11.08.2005. The 3rd respondent appeared
before the Ethics Committee on 11.08.2005 and filed a written statement, while
Dr.T.Shyam Sunder and two Gynecologists and two Anesthesiologists were decided
to be called before the Ethics Committee as experts. On 5/6-9-2005, the Ethics
Committee considered the appeal of the 3rd respondent after discussing the
matter in detail along with 3 Professors and Heads of Department of the
University College of Medical Sciences, Delhi and Lady Hardinge Medical College,
New Delhi, analyzing the complaint, replies and depositions. The consent was
found to be in generalized form and the Ethics Committee of 1st respondent,
while recording the absence of record on the specified aspects, opined the
probability of Amniotic Fluid Embolism to be a rare probability. Then the
Ethics Committee decided to ask the writ petitioner and three other doctors to
appear before it on 06.10.2005 and also decided to request Dr.Neelam Bala Vaid
to be present as an expert. The statements of four doctors were recorded by the
Ethics Committee and it concluded, after perusal of the records available,
depositions of specialists mentioned in the complaints and the experts whose
opinion was sought for by the Ethics Committee along with all other relevant
papers, documents, files and the documents provided by the 2nd respondent
including the explanations submitted by the respective parties and after
deliberation and discussion in detail, that the unanimous opinion is about the
writ petitioner being found to be guilty of professional negligence due to which
his name was struck off from the Indian Medical Register for a period of three
months. Though negligence could not be substantiated against Dr.P.Malathi,
Gynaecologist, she was cautioned to be more careful in future and deficiencies
of the equipment and monitoring of critically ill patients in the nursing home
in question were decided to be brought to the notice of the Director of Health
Services of the State. The decision of the Ethics Committee, dated 06.10.2005,
was approved by the Executive Committee on 24.04.2006 and by the General body of
the Medical Council of India on 10.03.2007. The decision was communicated to
the writ petitioner, 3rd respondent and Registrar of the 2nd respondent.
4. While an interim suspension of the impugned order was granted by a learned
Judge of this Court on 03.08.2007, it was later extended until further orders.
5. The 2nd respondent in its counter affidavit, through its Registrar, stated
that the Ethics and Malpractices Committee of the 2nd respondent, after calling
for explanations from all the doctors who attended on the deceased wife of the
3rd respondent, found no negligence on the part of the concerned doctors which
finding was approved by the General Body on 03.02.2004. When the complaint was
decided, there was no Regulation providing for an appeal against the order of
the State Medical Council and the appeal appears to have been filed under the
amended Regulations.
6. The 3rd respondent filed his counter affidavit along with W.V.M.P.No.3343
of 2010 contending that Dr.Rajesh Khanna never called the writ petitioner and
the alleged friendship of the writ petitioner with Dr.Rajesh Khanna and the 3rd
respondent is denied. The 3rd respondent never met the writ petitioner between
leaving the college in 1996 and on the fateful night. The writ petitioner did
not show or take any concern and the cause of death was not due to Amniotic
Fluid Embolism. Srilatha, the wife of the 3rd respondent, died due to gross
negligence of the doctors, including the writ petitioner, and the doctors or the
hospital authorities did not inform the police for conducting Autopsy to
ascertain the exact cause of death. The 3rd respondent and his relatives were
also not informed and the complaint filed by the 3rd respondent before the 2nd
respondent was decided in closed door proceedings without communicating any
reasons for holding that there was no medical negligence. The 3rd respondent
preferred an appeal before the Medical Council of India as per the directives of
the Supreme Court in MALAY GANGULY v. MEDICAL COUNCIL OF INDIA AND OTHERS in W.P
(civil) No.317 of 2000 and the Ethics Committee of the Medical Council of India
found the writ petitioner to be guilty of medical negligence leading to erasure
of his name from the Medical Register for three months. The Secretary of
Medical Council of India issued distinct orders on 16.07.2007 to convey the
decisions approved by the General Body of the Council to the writ petitioner,
Dr.Malathi and the hospital. Even in the letter, dated 26.02.2004, the 2nd
respondent stated the 1st respondent to be one among the appellate authorities
and the Medical Council of India was hearing cases as an appellate authority
even before 2002 Regulations came into force. Sections 20(A) and 33(m) of the
Act and Clauses 8.1 to 8.6 of the Regulations confer the power on the Medical
Council of India to consider and decide professional misconduct. The directives
of Supreme Court to file an appeal within two months of the State Council's
order was complied with by the 3rd respondent and the apex Court later recorded
the suggestions of the learned Attorney General of India for addition of Clauses
8.7 and 8.8. The Medical Council of India followed due procedure prescribed in
Clause 8.2 and the writ petitioner was given a chance to be heard and defend
himself. The 3rd respondent also questioned the writ petition without
exhausting the available remedy under Section 24 of the Act and the removal of
the name from the register for three months cannot be considered to be an
adequate punishment unlike the strong action taken in such cases in United
Kingdom/The United States of America. The 3rd respondent claimed to have filed
W.P.(civil) No.3252 of 2008 before the High Court of Delhi seeking enhancement
of the punishment and hence requested the interim orders in W.P.M.P.No.20737 of
2007 in W.P.No.16305 of 2007, dated 03.08.2007, to be vacated and the Writ
Petition to be dismissed.
7. The first question raised by Sri Srinivas, learned counsel for the writ
petitioner, against the sustainability of the impugned order is the question of
jurisdiction. It is true that the specific provision relating to appeal against
the decision of a State Medical Council on any complaint against a delinquent
physician was provided for the first time by Clause 8.8 of the Regulations by a
notification dated 4.03.2004 of the Medical Council of India published in the
Extraordinary Gazette of India, dated 27.05.2004, styling the notification to be
dated 26.05.2004. The notification refers to No. MCI-211(2)2004-(Ethical) which
was stated to be dated 04.03.2004 as published in the Act by the Universal Law
Publishing Company Private Limited, New Delhi in 2012.
8. Sri Srinivas Polavarapu, learned counsel for the petitioner, referred to
precedents to contend that this right of appeal not in existence when the
proceedings were initiated before the 2nd respondent and not in existence even
when the appeal was presented by the 3rd respondent cannot be exercised. He
referred to SMT.GANGA BAI v. VIJAY KUMAR1, wherein the basic distinction between
the right of suit and the right of appeal was considered. The position in
regard to appeals is considered to be quite the opposite to a suit which for its
maintainability requires no authority of law except that it is not barred by any
statute. The right of appeal was stated to be inhering in no one and therefore
an appeal for its maintainability must have the clear authority of law due to
which a right of appeal is described as a creature of the statute.
9. Similarly in RAMVILAS BAJAJ v. ASHOK KUMAR AND ANOTHER2 referred to by Sri
Srinivas, learned counsel for the petitioner, the larger Bench held that the
right to forum is a vested right which becomes vested when the proceedings are
initiated in the Tribunal or the Court of first instance and unless the
legislation by express words or by necessary implication has indicated in clear
terms, the vested right alone will continue irrespective of the change of
jurisdiction of different Tribunals. The larger Bench, while observing that the
rights of the parties are prescribed on the date of the institution of the suit
and subsequent amendment would not affect the pending proceedings unless the
amending Act either expressly or by necessary implication gives retrospective
effect to the amended provisions, made a distinction between an amendment
dealing with the substantive rights of the parties which is always construed as
prospective unless expressly or by necessary implication a contrary intention is
manifested and statutes which deal with procedural aspects or statutes which are
declaratory in nature.
10. Sri Srinivas, learned counsel for the petitioner, also referred to
GARIKAPATI VEERAYYA v. N.SUBBIAH CHOUDHRY AND OTHER 3, wherein also the apex
Court held that the right of appeal is not a mere matter of procedure but is a
substantive right and the right of appeal which is a vested right is to be
governed by the law prevailing at the date of institution of the suit or
proceeding and not by the law that prevails at the date of its decision or at
the date of filing of the appeal.
11. Sri Srinivas, learned counsel for the petitioner, also relied on
MUNICIPAL COMMITTEE, HOSHIARPUR v. PUNJAB STATE ELECTRICITY BOARD, 4, wherein
the apex Court dealing with the conditions precedent for the exercise of the
power under
Section 100 of the Code of Civil Procedure, 1908, observed that the right to
appeal is a creation of statute and cannot be created by acquiescence of the
parties or by the order of the Court being a substantive statutory right. It
has to be regulated in accordance with the law in force ensuring full compliance
with the conditions mentioned in the provision that creates it and hence, a
Second Appeal cannot be decided on equitable grounds.
12. The learned counsel further referred to KESHAVLAL JETHALAL SHAH v.
MOHANLAL BHAGWANDAS AND ANOTHER5, wherein the apex Court was considering the
retrospective operation of an amendment claimed in relation to a right of appeal
in respect of a pending action and referring to the earlier precedents from the
apex Court, it was stated that there is nothing in the language of the amended
Section to indicate that it was intended to indicate retrospective operation and
the High Court did not possess the jurisdiction to call for a record for
satisfying itself about the decision of an appeal being in accordance with law
before the amending Act. As the amending Clause did not seek to explain any
pre-existing legislation which was ambiguous or defective or which attempted to
explain the meaning of a provision, it was held to be prospective. It was also
stated that an explanatory Act is generally passed to supply an obvious omission
or to clear up doubts as to the meaning of the previous Acts. The provision in
that case was found by the Court to be very precise in its expression and
implication and there was no omission in phraseology which was required to be
supplied by the amendment.
13. The introduction of 8.7 and 8.8 in the Regulations and the effect thereof
has to be appreciated with reference to the above principles. The Act in its
original form was intended, according to the Statement of objects and reasons
for the bill, among other things, to provide for the maintenance of an All India
Register by the Medical Council of India. The Medical Council of India was
intended even by the original legislation to prescribe standards of professional
conduct and etiquette and Code of Ethics for the medical practitioners as per
Sub-section 1 of sub-Section 20 A and Section 24 of the Act provides for the
procedure to be followed for removal of names from the Indian Medical Register.
The power to make regulations was given to the Medical Council of India by
Section 33 of the Act, which Regulations are made with the previous sanction of
the Central Government and the Regulations may provide, among other things, for
the standards of Professional Conduct and Etiquette and Code of Ethics to be
observed by medical practitioners. Thus, the Medical Council of India has the
statutory duty to maintain the Indian Medical Register and also to make
regulations prescribing the standards of Professional Conduct and Etiquette and
a Code of Ethics for the medical practitioners.
14. Though the State Medical Council has been defined in
Section 2(J) of the Central Act, 102/56, as a Medical Council constituted under
any law for time being in force in any State regulating the registration of
practitioners of medicine, nothing further has been stated in the Central Act
about the State Medical Councils. In the Regulations governing the Professional
Conduct, Etiquette and Ethics made in 2002 in exercise of powers conferred under
Section 20 A read with Section 33(m) of the Central Act laying down the Code of
Medical Ethics, duties of physicians to their patients, duties of physicians in
consultation, responsibilities of physicians to each other, duties of physician
to the public and to the paramedical profession, unethical acts and misconduct,
the punishment and disciplinary action were provided only in Chapter-8 under
Regulation-8. These Regulations refer to the State Medical Council/the Medical
Council of India and provided in the Regulation 8.1 that the Medical Council of
India or State Medical Councils are in no way precluded from considering and
dealing with any professional misconduct on the part of a registered
practitioner. The language of Regulation 8.2 provides for making any compliant
on such professional misconduct before either Medical Council which holds an
enquiry and awards a punishment and Regulation 8.1 to 8.6 as originally stood
before introduction of 8.7 and 8.8 providing for approach in the alternative
either to the State Council or to the Central Government did not at all provide
for any role for Medical Council of India in the event of a complaint being made
to and enquired by the State Council, though the Medical Council of India has
the statutory responsibility to be the author and guardian of standards of the
profession in such matters under Section 20 A and the Regulations made under
Section 33 of the Act. Insofar as the State of Andhra Pradesh is concerned, the
Andhra Pradesh Medical Council stood established under Section 3 of the Andhra
Pradesh Medical Practitioners Registration Act, 1968 and the statute provides
for the State Medical Council to make regulations under Section 32 of the Act
and the power of the State Government to make rules under
Section 31 of the Act. The power to hold enquiries under the Act was conferred
by Section 15(4) and Section 17 of the State Act and it may be noted that the
statute by itself does not make any specific reference to the Professional
Etiquette and Ethics of the practitioners. The rules regulating the procedure
at an enquiry under Sections 15 and 17 of the Andhra Pradesh Medical
Practitioners Registration Act 1968 or the Act itself make no reference to the
concurrent jurisdiction of the Medical Council of India under the 2002
Regulations in this regard though the Regulations apply throughout the country
to medical practitioners.
15. This situation obviously led the Supreme Court to consider the Code of
Ethics prescribed by the Medical Council of India and the absence of any role
for the Medical Council of India concerning the decision of a State Medical
Council on a complaint against any delinquent medical practitioner in MALAY
GANGULY V. MEDICAL COUNCIL OF INDIA AND OTHERS6.
The apex Court noted the
suggestions of the learned Attorney General of India in this regard and endorsed
his suggestions to add Regulation 8.7 and 8.8 in the Code of Ethics prescribed
by the Medical Council of India. The apex Court directed for inclusion of a set
of similar provisions, appropriate steps by the Medical Council of India under
the Act. In fact the hearing was directed to continue concerning the other
issues including this issue in the proceedings taken up by the Supreme Court.
The suggestions of the learned Attorney General and the consequent directions by
the apex Court accepting the said suggestions make it clear that the lacunae in
the Regulations in this regard disclosed an apparent and obvious defect with the
total exclusion of any role for the Medical Council of India in the matter once
a State Medical Council takes up a complaint, though the Medical Council of
India has the statutory responsibility to frame the Regulations and ensure their
implementation. This was sought to be corrected by the directions of the apex
Court.
16. Sri D.Prakash Reddy, learned senior counsel, invited attention in this
regard to Dr.MADHU KARNA v. MEDICAL COUNCIL OF INDIA AND ANOTHER7, wherein the
Delhi High Court considered the scope of judicial interference in the orders of
such Ethics Bodies. The learned Judge, while noting the Medical Council of
India to be governing the numerous facets of the medical profession, referred to
the right of appeal provided by the Act and Regulations from the findings the
Delhi Medical Council to the Medical Council of India. Similar statutes
designed to ensure that highest standards of professional conduct be maintained
were referred to with the Court not interfering as a general rule unless a
finding is based on no evidence or it proceeds on mere conjectures and
unwarranted inferences and notwithstanding the limited role of the Court
envisaged by the learned Judge, still the Medical Council of India was directed
to finalise its directions on facts and therefore if there is such a need for a
Court to intervene in exercise of its powers under a restricted and limited
jurisdiction, the total exclusion of the jurisdiction of the Medical Council of
India in matters of Professional Conduct, Etiquette and Ethics could have been
only due to an unconscious omission or inadvertent lapse and never by design,
which omission was obviously supplied and the lapse corrected in Malay Ganguly's
case.
17. The decision reported in ZILE SINGH v. STATE OF HARYANA AND OTHERS8
referred to by Sri D.Prakash Reddy, learned senior counsel, is about the
permissibility of retrospectivity in a legislation and the possibility of
rebutting the presumption against retrospectivity even by necessary implication,
in a case where the new law is made to remove an acknowledged evil for the
benefit of the community as a whole. The inclusion of Regulations 8.7 and 8.8 on
the suggestions of the learned Attorney General and with the approval of the
Supreme Court was obviously to cure a patent defect or omission negativing the
object and purpose of entrustment of statutory duties in this regard to the
Medical Council of India and the Supreme Court pointed out that where a statute
has been passed for the purpose of supplying an omission in a former statute or
to explain a former statute, the subsequent statute has relation back to the
time when the prior Act was passed and the rule against the retrospectivity is
inapplicable to such legislations as are explanatory and declaratory in nature.
18. The Supreme Court, referring to various precedents on this aspect, was
clear that intrinsic evidence may be available to show that the amendment was
necessarily intended to have retrospective effect. A draftsman's folly was noted
to have been corrected in the case before Their Lordships and so is the
situation in the present case as already stated above. To a similar effect is
the precedent in STATE OF MUMBAI v. VISHNU RAMCHANDRA9 wherein also the apex
Court held that the Act designed to protect the public against acts of a harmful
character may be construed retrospectively, if the language admits such an
interpretation, even though it may equally have a prospective meaning. The
Supreme Court followed the dictum that no man has such a vested right in his
past crimes and their consequences as would entitle him to insist that no
future legislation shall intervene, whatever be his past history.
19. As already referred to above, even in KESHAVLAL JETHALAL SHAH v. MOHANLAL
BHAGWANDAS AND ANOTHER10 relied on by the learned counsel for the writ
petitioner, the distinction concerning amending statutes or provisions
explaining any pre-existing legislation which was ambiguous or defective or an
explanatory legislation to supply an obvious omission or clear up doubts as to
the meaning of the previous Act were held to be capable of being construed to be
retrospective and as the role of the Medical Council of India which has a
statutory responsibility was totally excluded in these aspects though it has a
duty to maintain the professional conduct, etiquettes and ethics once a
complaint is entertained by a State Medical Council, the situation can be
considered to be requiring supply of an omission in the phraseology of the
Regulations.
20. While there can be no doubt that the normal rule is the availability of a
right of appeal only in the event of such a right being available at the time of
the institution of the original proceedings as pointed out by the larger Bench
in RAMVILAS BAJAJ v. ASHOK KUMAR AND ANOTHER11, the principle of prospectivity
of an amendment dealing with substantive rights of parties may not apply to a
statute which is declaratory in nature. Adopting, what is called by Sri
D.Prakash Reddy, learned senior counsel, as purposive interpretation, to give
effect to the purpose and object of the central statute and the Regulations made
thereunder, clearly appears to be called for as recognized by the apex Court
itself in ordering inclusion of Regulations 8.7 and 8.8. That the said
Regulations 8.7 and 8.8 have to be deemed to be retrospective in operation, so
naturally supplying an omission in the original draft is clear from the
alternatives provided by the said sub-Regulations as the first is to enable the
Medical Council of India to intervene in the event of unjustified delay in
dealing with a complaint by the State Medical Council and the second is to
provide for the scope for correction by the Medical Council of India in an
appeal that is to be filed within sixty days from the order of the State Medical
Council with the filing of such appeal being made even later permissible, which
can be entertained by the Medical Council of India in the event of existence of
a sufficient cause.
21. If the Regulations 8.7 and 8.8 are thus considered to be curative and to
be having retrospective effect in the light of the manner in which they were
brought into the Regulations on the suggestions of the learned Attorney General
and the directives of the Supreme Court, the appeal by the third respondent and
the entertainment of the same by the Medical Council of India cannot be
considered to be vitiated by total lack of jurisdiction.
22. The appeal by the third respondent is dated 31.03.2004 received by the
Medical Council of India on 05.04.2004. The notification introducing 8.7 and 8.8
in 2002 Regulations was stated to be by MCI 211 (2)/2004 (Ethics), dated
04.03.2004 published in the Extraordinary Gazette of India, dated 27.05.2004,
with the date 26.05.2004. While the Act did not refer to the manner in which
any Regulations made under Section 33 of the Act come into force and the
notification in the Extraordinary Gazette of India, dated 27.05.2004, did not
specify as to since when the Regulations came into force, when one falls back
upon the General Clauses Act, 1987, Section 5 (3) of the Act states that unless
the contrary is expressed, a Central Regulation shall be construed as coming
into operation immediately on the expiration of the day preceding its
commencement. The word 'commencement' has been defined in Section 3 Clause 13 of
the General Clauses Act, 1987 with reference to a Regulation as the day on which
the Regulation comes into force. In the absence of anything to show that the
coming into force of the amended 8.7 and 8.8 depended on their publication in
the official gazette, it may not be illegal or illogical to construe that the
amendment may have to be deemed to come into force on the date of the
notification itself much prior to the filing of the appeal by the third
respondent. Of course, even if such a view were to be taken that the date of the
notification should govern the entertainment of the appeal under 8.8, still the
fact remains that when the original complaint was entertained by the A.P.Medical
Council and decided by it, there was no right of appeal, the answer to which, if
the appeal was considered to be maintainable before the Medical Council of
India, will lie only in construing the amendment to be having retrospective
operation.
23. While the jurisdictionsl objection is thus not considered to be
substantive in the peculiar background in which the amendments have come into
force, the objections of the writ petitioner about total non-compliance with the
principles of natural justice while passing the impugned order stand on a
different footing. Nothing in the Act excludes the operation of the principles
of natural justice to any action taken by the Indian Medical Council in exercise
of its statutory duties or powers and the provision for removal of names from
the Indian Medical Register provide for an appeal to the Central Government
under sub-Section 2 of Section 24 of the Act, which may be indicative of the
anxiety of the legislature to provide for normally accepted remedies in case of
any adverse action against any medical practitioner. So is the provision even
under the original Regulation 8.2, which clearly mandates that an enquiry must
be held by the appropriate Medical Council on any complaint of professional
misconduct, the registered medical practitioner has to be heard in person or by
pleader and only if the medical practitioner is found to be guilty of committing
professional misconduct, an appropriate punishment will be awarded. The
incorporation of Regulation 8.7 providing for taking recourse to the
jurisdiction of Medical Council of India in case of abnormal delay also shows
that the rights and interests of the persons involved are designed to be
protected with reference to the fundamental principles of judicial procedure
adopted in any judicial or quasi judicial or administrative proceedings
affecting the civil or professional or such other rights of the parties. The
right given to file an appeal under Regulation 8.8 is also a pointer to that
effect in addition to even the original Regulation 8.2 prescribing such
mandatory opportunity on any complaint. In the present case, it is seen from "
the short reply affidavit" running into 24 pages that after receipt of the
appeal from the third respondent and before it has been decided by the Medical
Council of India, the only occasion for the writ petitioner to participate was
when his attendance was secured at the meeting of the Ethics committee of the
Medical Council of India on 06.10.2005 by issuing a letter informing him about
considering the appeal filed by the third respondent regarding the death of
Smt.Srilatha Reddy against the order passed by the Andhra Pradesh Medical
Council. It was only informed to the writ petitioner that it was decided to ask
the four doctors concerned to appear before the Ethics Committee and that an
expert also was called to be present on the same day and the writ petitioner was
requested to appear before the Ethics Committee. Mere enclosure of a copy of the
letter, dated 31.03.2004, received from the third respondent for ready reference
of the writ petitioner could not have been considered as an opportunity, leave
alone a reasonable opportunity for the writ petitioner to defend himself in the
sense in which such opportunity is understood in law. The Medical Council of
India in its pleading specifically admits in effect and substance that the writ
petitioner was not in the picture during the consideration of the appeal at any
other point of time, either when the documents were called for from the State
Medical Council or when Dr. Rajesh Khanna furnished his opinion or when the
third respondent made his statement before the Ethics Committee or submitted a
written statement or when orders were passed after detailed deliberation on 5/6-
9-2005 when the other three doctors summoned from Hyderabad were examined and
the only opportunity the petitioner had before the Ethics Committee was to
answer the questionnaire supplied to him. It may be true that some of the
questions put to the writ petitioner were suggestive of omissions in the manner
in which the patient was dealt with by him. The same does not appear to be
capable of being equated to giving an opportunity to the writ petitioner to
defend himself. The conclusions arrived at by the Ethics Committee in its
meeting on 5/6-9-2005 and its ultimate conclusions were obviously based on the
records available, the depositions of the specialists and experts, the relevant
papers, documents, files, including the documents provided by the State Medical
Council and the explanation submitted by the respective parties, none of which
except the answers of the writ petitioner appear to be available to the writ
petitioner before the punishment was handed over.
24. Sri D.Prakash Reddy, learned senior counsel, referred to a decision of a
larger Bench of this Court in K.SWARNA KUMARI v. GOVERNMENT OF ANDHRA PRADESH 12
as precluding any such complaint in such matters but, the leading judgment
rendered on behalf of four learned Judges, dealing with the contentions by the
same learned senior counsel on behalf of the petitioner therein and referring to
the various precedents cited before the Bench, clearly recognized the
distinction between serious prejudice caused to the employee by infraction of
procedural safeguards without demonstration of which the proceedings are not
vitiated and cases where the entire procedure contemplated by the rules was
totally ignored leading to prejudice. In the concurring judgment of the
Honourable Sri Justice Goda Raghuram, this aspect was referred to in the
principles laid down by the Supreme Court in S.K.Sarma's case, firstly by
requiring an enquiry into the question
whether the provision violated was
substantive or procedural and
secondly in case of a procedural provision
whether it is a case of no notice, no opportunity and no hearing or
whether it is only a
case of a complaint of violation of procedural safeguards, in which event,
prejudice in defending himself properly and effectively should be proved by the employee.
Holding that the principles of natural justice are to be implied by
the very nature and impact of the penal action, the distinction between a total violation of natural justice and violation of a facet of the said rule was directed to be kept in mind.
The larger Bench, therefore, may not come to the
aid of the third respondent, more so, when even a copy of the minutes of the
Medical Council of India produced by
Sri Challa Gunaranjan, learned standing counsel, concerning the meeting of the
Ethics Committee held on 06/07-10-2005 does not show anything more than the writ
petitioner answering the questionnaire put to him.
25. Sri Srinivas Polavarpu, learned counsel for the petitioner, rightly
referred to in the decision 6th cited supra, wherein the apex Court pointed
out that in case there is non-compliance with the statutory requirement of law
or the principles of natural justice have been violated under some
circumstances, non-compliance with the aforesaid by itself may be prejudicial to
a party and such an eventuality does not require that a party has to satisfy the
Court that his case has been prejudiced for non compliance with the statutory
requirements or principles of natural justice. At the cost of repetition, mere
recording of the answers of the writ petitioner to the questionnaire submitted
by the Ethics Committee can never be equated to providing any opportunity to the
writ petitioner to defend himself, leave alone a reasonable notice or
opportunity and it is clearly a case of no notice, no opportunity and no
hearing, referred to by the Honourable Sri Justice Goda Raghuram in the case
before the larger Bench and it is not mere violation of a facet of rule of
natural justice but a case of total violation of natural justice, which cannot
be condoned.
26. The decision reported in A.BHAGAVATHI AMMAL v. THE SECRETARY TO
GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT13,
which I happened to peruse,
is a similar case with reference to the departmental disciplinary action against
a medical practitioner wherein the learned Judge was dealing with a case of
recording the opinion of two senior doctors at the enquiry in the absence of the
petitioner, while the petitioner was not allowed to cross-examine those two
doctors. The learned Judge held the enquiry to be a farce, though I am not
inclined to use such strong words concerning the enquiry in the present case by
the Ethics Committee of the Medical Council of India.
27. The next step, therefore, should be to remit the matter back to the
Medical Council of India for dealing with the appeal in accordance with law.
Because of such a conclusion being arrived, the decision reported in
MAHARAJA CHINTAMANI SARAN NATH SHAHDEO v. STATE OF BIHAR AND OTHERS14 relied on
by Sri D.Prakash Reddy, learned senior counsel, needs no further reference.
The
question
whether the order of the Andhra Pradesh State Medical Council excluding
the writ petitioner from any medical negligence is factually or legally valid or
not need not, and in the interests of propriety, should not be gone into herein.
It will be for the Medical Council of India to consider all the relevant aspects
concerning the State Medical Council's order in the appeal being remanded to it.
28. Therefore, the impugned order, dated 16.07.2007, of the first respondent
is liable to be set aside and the appeal filed by the third respondent should be
remitted back to the first respondent for reconsideration in accordance with
law.
29. Accordingly, the order of the Medical Council of India, New Delhi in
MCI/211 (2) (133)/2004-Ethics/8222, dated 16.07.2007, is set aside and the
appeal filed by the third respondent be considered and decided on merits in
accordance with law by the Medical Council of India as expeditiously as
possible, of course after giving reasonable opportunity of hearing to the writ
petitioner and the third respondent in accordance with the prescribed procedure,
more particularly in compliance with Regulation 8.2. The observations made in
this order shall have no bearing on the determination of the said appeal by the
Medical Council of India on merits.
30. The Writ Petition is ordered accordingly without costs. The miscellaneous
petitions pending, if any, shall stand closed. There shall be no order as to
costs.
_________________________
G. BHAVANI PRASAD, J
25th March, 2013
THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD
WRIT PETITION No.16305 OF 2007
25.03.2013
Dr.L.Sudhakar
The Medical Council of India and two others
Counsel for the Petitioner: Sri Polavarapu Srinivas
Counsel for Respondent No.1: Sri Challa Gunaranjan.
Counsel for respondent No.2: Sri V.V.Anil Kumar.
Counsel for respondent No.3: Sri D.Prakash Reddy.
<Gist :
>Head Note:
? Cases referred:
1. W.P (civil) No.317 of 2000 (unreported)
2. (1974) 2 SUPREME COURT CASES 393
3. 2007(4) ALD 137 (LB)
4. AIR 1957 SC 540 (1)
5. (2010) 13 SUPREME COURT CASES 216
6. AIR 1968 SUPREME COURT 1336
7. (2003) 8 Supreme Court Cases 490
8. 2011 VII AD (DELHI) 420
9. (2004) 8 SCC 1
10. AIR 1961 S.C. 307
11. AIR 1968 SUPREME COURT 1336
12. 2007 (4) ALD 137 (L.B.)
13. 2006 (2) ALT 289
14. (2010) 4 MLJ 633
15. (1999) 8 SCC 16
ORDER:
Heard Sri Polavarapu Srinivas, learned counsel for the petitioner, Sri Challa
Gunaranjan, learned standing counsel for the 1st respondent, Sri V.V.Anil Kumar,
learned standing counsel for the 2nd respondent and Sri D.Prakash Reddy, learned
senior counsel for the 3rd respondent.
2. The writ petitioner was aggrieved by order No.MCI-211(2) (133)/2004-
Ethics/8222, dated 16.07.2007, of the Medical Council of India by which the 1st
respondent sought to impose a penalty of removal of the name of the writ
petitioner from the Indian Medical Register for a period of three months.
The
petitioner contended that he is a medical graduate of 1996 from Kakatiya Medical
College, Warangal and completed his Post Graduate Diploma in Anesthesiology from
Osmania University in 2001.
While describing his knowledge and experience in
the field, the writ petitioner contended that on 05.03.2003 at about 11.50 p.m.
he received information about the 3rd respondent's wife being admitted in
Shalini Maternity Hospital and Dr.Rajesh Khanna who gave the message and the 3rd
respondent were senior by one year to him and are his close friends.
Immediately the writ petitioner provided analgesia services to the deceased wife
of 3rd respondent, free of any charge, following all the formalities including
taking of consent of patient and her husband.
While he provided Epidural
Analgesia to the patient, Dr.Malathi, a senior Gynecologist assisted by
Dr.Thejeswari, attended on the wife of the 3rd respondent who developed a rare
complication Amniotic Fluid Embolism and did not survive inspite of the best
efforts of the doctors.
While the relatives of the deceased refused the
suggestion to have a post mortem examination, the 3rd respondent gave a
complaint on 19.07.2003 after 41/2 months alleging negligence on the part of the
doctors and after calling for explanations from all the doctors, the 2nd
respondent referred the matter to its Ethical and Malpractices Committee, which
found no negligence on the part of the doctors.
The cause of death being
Amniotic Fluid Embolism, the General Body of the 2nd respondent unanimously approved the findings of the committee on 03.02.2004 holding that there is no professional negligence on the part of any doctor.
The 3rd respondent preferred
an appeal before the Medical Council of India, challenging the said proceedings,
dated 11.02.2004, and the 1st respondent called all the doctors on 06.10.2005 to
Delhi.
It served a questionnaire and obtained the comments of all the doctors
including the writ petitioner.
Some expert opinions were also stated to have
been gathered and suddenly the impugned order informed the Ethics Committee of
the 1st respondent to have found him guilty of professional misconduct and
recommended removal of the name of the writ petitioner from the Indian Medical
Register for a period of three months.
The writ petitioner contended that the
Medical Council of India had no jurisdiction to entertain the appeal as there is no provision of law conferring such appellate jurisdiction under the statute or the regulations.
The writ petitioner further contended that the appellate order
is void apart from being violative of principles of natural justice and the
expert evidence forming the basis for the impugned order was gathered behind the
back of the writ petitioner without notice to him.
The material was never
furnished to the writ petitioner, more so while reversing the decision of the
2nd respondent and a criminal complaint under Section 304-A of the Indian Penal
Code and a complaint before the Andhra Pradesh State Consumer Disputes Redressal
Commission, Hyderabad for a compensation of Rs.1.00 Crore was also initiated by
the 3rd respondent and hence the Writ Petition.
3. The 1st respondent in its affidavit, called a short reply affidavit,
stated that the statutory provisions of the Indian Medical Council Act, 1956 (
for brevity, 'the Act') provided for an obligation on the Medical Council of
India under Section 21 of the Act for maintenance of the Indian Medical
Register. A reference was made to all the other provisions of the statute
including the provisions for appeal to the Central Government under Section 24
(2) of the Act against removing the name of a person from the State Medical
Register. In MALAY GANGULY v. MEDICAL COUNCIL OF INDIA AND OTHERS in W.P
(civil) No.317 of 2000, issues relating to action on complaints of medical
negligence attracted the attention of the Supreme Court which recorded the
suggestions of the learned Attorney General in its order, dated 08.09.2003, for
addition of Clauses 8.7 and 8.8 in the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002
(for brevity, 'the Regulations'). The Medical Council of India and the Central
Government accepted and approved the suggestions of the learned Attorney General
of India and a notification was issued including the suggested Clauses in the
Statutory Regulations on 26.05.2004. The affidavit further referred to the
contentions of the writ petitioner and stated that the Ethics Committee of the
Medical Council of India considered the appeal filed by the 3rd respondent in
its meeting held on 19/20-4-2004 in which it was decided to get the particulars
of the concerned doctors, the enquiry report etc., from the State Council as
requested in the letter dated 06.05.2004. The requisite documents were
furnished by the 2nd respondent vide its letters, dated 20.05.2004 and
22.05.2004. Then the Ethics Committee which met on 2/3.9.2004 noted the appeal
to have been preferred before incorporation of Clauses 8.7 and 8.8 in the
Regulations and the committee also observed the need for obtaining opinion from
Dr.Neera Agarwal and Dr.Rakesh Kumar, Professors, about any negligence on the
part of the concerned doctors. The said experts were communicated the same and
when their opinion was not received they were reminded and Dr.Rakesh Kumar,
Professor for Anesthesiology, Maulana Azad Medical College furnished his opinion
on 19.01.2005. The opinion was considered by the Ethics Committee on 1/2-4-2005
and then Dr.P.Malathi and the 3rd respondent were requested by a letter dated
29.04.2005 to appear before the Ethics Committee on
19/20-5-2005. The statement of Dr.P.Malathi was recorded on 19.05.2005, while
the 3rd respondent did not appear at the meeting on 24.06.2005 and at his
request he was asked to appear on 11.08.2005. The 3rd respondent appeared
before the Ethics Committee on 11.08.2005 and filed a written statement, while
Dr.T.Shyam Sunder and two Gynecologists and two Anesthesiologists were decided
to be called before the Ethics Committee as experts. On 5/6-9-2005, the Ethics
Committee considered the appeal of the 3rd respondent after discussing the
matter in detail along with 3 Professors and Heads of Department of the
University College of Medical Sciences, Delhi and Lady Hardinge Medical College,
New Delhi, analyzing the complaint, replies and depositions. The consent was
found to be in generalized form and the Ethics Committee of 1st respondent,
while recording the absence of record on the specified aspects, opined the
probability of Amniotic Fluid Embolism to be a rare probability. Then the
Ethics Committee decided to ask the writ petitioner and three other doctors to
appear before it on 06.10.2005 and also decided to request Dr.Neelam Bala Vaid
to be present as an expert. The statements of four doctors were recorded by the
Ethics Committee and it concluded, after perusal of the records available,
depositions of specialists mentioned in the complaints and the experts whose
opinion was sought for by the Ethics Committee along with all other relevant
papers, documents, files and the documents provided by the 2nd respondent
including the explanations submitted by the respective parties and after
deliberation and discussion in detail, that the unanimous opinion is about the
writ petitioner being found to be guilty of professional negligence due to which
his name was struck off from the Indian Medical Register for a period of three
months. Though negligence could not be substantiated against Dr.P.Malathi,
Gynaecologist, she was cautioned to be more careful in future and deficiencies
of the equipment and monitoring of critically ill patients in the nursing home
in question were decided to be brought to the notice of the Director of Health
Services of the State. The decision of the Ethics Committee, dated 06.10.2005,
was approved by the Executive Committee on 24.04.2006 and by the General body of
the Medical Council of India on 10.03.2007. The decision was communicated to
the writ petitioner, 3rd respondent and Registrar of the 2nd respondent.
4. While an interim suspension of the impugned order was granted by a learned
Judge of this Court on 03.08.2007, it was later extended until further orders.
5. The 2nd respondent in its counter affidavit, through its Registrar, stated
that the Ethics and Malpractices Committee of the 2nd respondent, after calling
for explanations from all the doctors who attended on the deceased wife of the
3rd respondent, found no negligence on the part of the concerned doctors which
finding was approved by the General Body on 03.02.2004. When the complaint was
decided, there was no Regulation providing for an appeal against the order of
the State Medical Council and the appeal appears to have been filed under the
amended Regulations.
6. The 3rd respondent filed his counter affidavit along with W.V.M.P.No.3343
of 2010 contending that Dr.Rajesh Khanna never called the writ petitioner and
the alleged friendship of the writ petitioner with Dr.Rajesh Khanna and the 3rd
respondent is denied. The 3rd respondent never met the writ petitioner between
leaving the college in 1996 and on the fateful night. The writ petitioner did
not show or take any concern and the cause of death was not due to Amniotic
Fluid Embolism. Srilatha, the wife of the 3rd respondent, died due to gross
negligence of the doctors, including the writ petitioner, and the doctors or the
hospital authorities did not inform the police for conducting Autopsy to
ascertain the exact cause of death. The 3rd respondent and his relatives were
also not informed and the complaint filed by the 3rd respondent before the 2nd
respondent was decided in closed door proceedings without communicating any
reasons for holding that there was no medical negligence. The 3rd respondent
preferred an appeal before the Medical Council of India as per the directives of
the Supreme Court in MALAY GANGULY v. MEDICAL COUNCIL OF INDIA AND OTHERS in W.P
(civil) No.317 of 2000 and the Ethics Committee of the Medical Council of India
found the writ petitioner to be guilty of medical negligence leading to erasure
of his name from the Medical Register for three months. The Secretary of
Medical Council of India issued distinct orders on 16.07.2007 to convey the
decisions approved by the General Body of the Council to the writ petitioner,
Dr.Malathi and the hospital. Even in the letter, dated 26.02.2004, the 2nd
respondent stated the 1st respondent to be one among the appellate authorities
and the Medical Council of India was hearing cases as an appellate authority
even before 2002 Regulations came into force. Sections 20(A) and 33(m) of the
Act and Clauses 8.1 to 8.6 of the Regulations confer the power on the Medical
Council of India to consider and decide professional misconduct. The directives
of Supreme Court to file an appeal within two months of the State Council's
order was complied with by the 3rd respondent and the apex Court later recorded
the suggestions of the learned Attorney General of India for addition of Clauses
8.7 and 8.8. The Medical Council of India followed due procedure prescribed in
Clause 8.2 and the writ petitioner was given a chance to be heard and defend
himself. The 3rd respondent also questioned the writ petition without
exhausting the available remedy under Section 24 of the Act and the removal of
the name from the register for three months cannot be considered to be an
adequate punishment unlike the strong action taken in such cases in United
Kingdom/The United States of America. The 3rd respondent claimed to have filed
W.P.(civil) No.3252 of 2008 before the High Court of Delhi seeking enhancement
of the punishment and hence requested the interim orders in W.P.M.P.No.20737 of
2007 in W.P.No.16305 of 2007, dated 03.08.2007, to be vacated and the Writ
Petition to be dismissed.
7. The first question raised by Sri Srinivas, learned counsel for the writ
petitioner, against the sustainability of the impugned order is the question of
jurisdiction. It is true that the specific provision relating to appeal against
the decision of a State Medical Council on any complaint against a delinquent
physician was provided for the first time by Clause 8.8 of the Regulations by a
notification dated 4.03.2004 of the Medical Council of India published in the
Extraordinary Gazette of India, dated 27.05.2004, styling the notification to be
dated 26.05.2004. The notification refers to No. MCI-211(2)2004-(Ethical) which
was stated to be dated 04.03.2004 as published in the Act by the Universal Law
Publishing Company Private Limited, New Delhi in 2012.
8. Sri Srinivas Polavarapu, learned counsel for the petitioner, referred to
precedents to contend that this right of appeal not in existence when the
proceedings were initiated before the 2nd respondent and not in existence even
when the appeal was presented by the 3rd respondent cannot be exercised. He
referred to SMT.GANGA BAI v. VIJAY KUMAR1, wherein the basic distinction between
the right of suit and the right of appeal was considered. The position in
regard to appeals is considered to be quite the opposite to a suit which for its
maintainability requires no authority of law except that it is not barred by any
statute. The right of appeal was stated to be inhering in no one and therefore
an appeal for its maintainability must have the clear authority of law due to
which a right of appeal is described as a creature of the statute.
9. Similarly in RAMVILAS BAJAJ v. ASHOK KUMAR AND ANOTHER2 referred to by Sri
Srinivas, learned counsel for the petitioner, the larger Bench held that the
right to forum is a vested right which becomes vested when the proceedings are
initiated in the Tribunal or the Court of first instance and unless the
legislation by express words or by necessary implication has indicated in clear
terms, the vested right alone will continue irrespective of the change of
jurisdiction of different Tribunals. The larger Bench, while observing that the
rights of the parties are prescribed on the date of the institution of the suit
and subsequent amendment would not affect the pending proceedings unless the
amending Act either expressly or by necessary implication gives retrospective
effect to the amended provisions, made a distinction between an amendment
dealing with the substantive rights of the parties which is always construed as
prospective unless expressly or by necessary implication a contrary intention is
manifested and statutes which deal with procedural aspects or statutes which are
declaratory in nature.
10. Sri Srinivas, learned counsel for the petitioner, also referred to
GARIKAPATI VEERAYYA v. N.SUBBIAH CHOUDHRY AND OTHER 3, wherein also the apex
Court held that the right of appeal is not a mere matter of procedure but is a
substantive right and the right of appeal which is a vested right is to be
governed by the law prevailing at the date of institution of the suit or
proceeding and not by the law that prevails at the date of its decision or at
the date of filing of the appeal.
11. Sri Srinivas, learned counsel for the petitioner, also relied on
MUNICIPAL COMMITTEE, HOSHIARPUR v. PUNJAB STATE ELECTRICITY BOARD, 4, wherein
the apex Court dealing with the conditions precedent for the exercise of the
power under
Section 100 of the Code of Civil Procedure, 1908, observed that the right to
appeal is a creation of statute and cannot be created by acquiescence of the
parties or by the order of the Court being a substantive statutory right. It
has to be regulated in accordance with the law in force ensuring full compliance
with the conditions mentioned in the provision that creates it and hence, a
Second Appeal cannot be decided on equitable grounds.
12. The learned counsel further referred to KESHAVLAL JETHALAL SHAH v.
MOHANLAL BHAGWANDAS AND ANOTHER5, wherein the apex Court was considering the
retrospective operation of an amendment claimed in relation to a right of appeal
in respect of a pending action and referring to the earlier precedents from the
apex Court, it was stated that there is nothing in the language of the amended
Section to indicate that it was intended to indicate retrospective operation and
the High Court did not possess the jurisdiction to call for a record for
satisfying itself about the decision of an appeal being in accordance with law
before the amending Act. As the amending Clause did not seek to explain any
pre-existing legislation which was ambiguous or defective or which attempted to
explain the meaning of a provision, it was held to be prospective. It was also
stated that an explanatory Act is generally passed to supply an obvious omission
or to clear up doubts as to the meaning of the previous Acts. The provision in
that case was found by the Court to be very precise in its expression and
implication and there was no omission in phraseology which was required to be
supplied by the amendment.
13. The introduction of 8.7 and 8.8 in the Regulations and the effect thereof
has to be appreciated with reference to the above principles. The Act in its
original form was intended, according to the Statement of objects and reasons
for the bill, among other things, to provide for the maintenance of an All India
Register by the Medical Council of India. The Medical Council of India was
intended even by the original legislation to prescribe standards of professional
conduct and etiquette and Code of Ethics for the medical practitioners as per
Sub-section 1 of sub-Section 20 A and Section 24 of the Act provides for the
procedure to be followed for removal of names from the Indian Medical Register.
The power to make regulations was given to the Medical Council of India by
Section 33 of the Act, which Regulations are made with the previous sanction of
the Central Government and the Regulations may provide, among other things, for
the standards of Professional Conduct and Etiquette and Code of Ethics to be
observed by medical practitioners. Thus, the Medical Council of India has the
statutory duty to maintain the Indian Medical Register and also to make
regulations prescribing the standards of Professional Conduct and Etiquette and
a Code of Ethics for the medical practitioners.
14. Though the State Medical Council has been defined in
Section 2(J) of the Central Act, 102/56, as a Medical Council constituted under
any law for time being in force in any State regulating the registration of
practitioners of medicine, nothing further has been stated in the Central Act
about the State Medical Councils. In the Regulations governing the Professional
Conduct, Etiquette and Ethics made in 2002 in exercise of powers conferred under
Section 20 A read with Section 33(m) of the Central Act laying down the Code of
Medical Ethics, duties of physicians to their patients, duties of physicians in
consultation, responsibilities of physicians to each other, duties of physician
to the public and to the paramedical profession, unethical acts and misconduct,
the punishment and disciplinary action were provided only in Chapter-8 under
Regulation-8. These Regulations refer to the State Medical Council/the Medical
Council of India and provided in the Regulation 8.1 that the Medical Council of
India or State Medical Councils are in no way precluded from considering and
dealing with any professional misconduct on the part of a registered
practitioner. The language of Regulation 8.2 provides for making any compliant
on such professional misconduct before either Medical Council which holds an
enquiry and awards a punishment and Regulation 8.1 to 8.6 as originally stood
before introduction of 8.7 and 8.8 providing for approach in the alternative
either to the State Council or to the Central Government did not at all provide
for any role for Medical Council of India in the event of a complaint being made
to and enquired by the State Council, though the Medical Council of India has
the statutory responsibility to be the author and guardian of standards of the
profession in such matters under Section 20 A and the Regulations made under
Section 33 of the Act. Insofar as the State of Andhra Pradesh is concerned, the
Andhra Pradesh Medical Council stood established under Section 3 of the Andhra
Pradesh Medical Practitioners Registration Act, 1968 and the statute provides
for the State Medical Council to make regulations under Section 32 of the Act
and the power of the State Government to make rules under
Section 31 of the Act. The power to hold enquiries under the Act was conferred
by Section 15(4) and Section 17 of the State Act and it may be noted that the
statute by itself does not make any specific reference to the Professional
Etiquette and Ethics of the practitioners. The rules regulating the procedure
at an enquiry under Sections 15 and 17 of the Andhra Pradesh Medical
Practitioners Registration Act 1968 or the Act itself make no reference to the
concurrent jurisdiction of the Medical Council of India under the 2002
Regulations in this regard though the Regulations apply throughout the country
to medical practitioners.
15. This situation obviously led the Supreme Court to consider the Code of
Ethics prescribed by the Medical Council of India and the absence of any role
for the Medical Council of India concerning the decision of a State Medical
Council on a complaint against any delinquent medical practitioner in MALAY
GANGULY V. MEDICAL COUNCIL OF INDIA AND OTHERS6.
The apex Court noted the
suggestions of the learned Attorney General of India in this regard and endorsed
his suggestions to add Regulation 8.7 and 8.8 in the Code of Ethics prescribed
by the Medical Council of India. The apex Court directed for inclusion of a set
of similar provisions, appropriate steps by the Medical Council of India under
the Act. In fact the hearing was directed to continue concerning the other
issues including this issue in the proceedings taken up by the Supreme Court.
The suggestions of the learned Attorney General and the consequent directions by
the apex Court accepting the said suggestions make it clear that the lacunae in
the Regulations in this regard disclosed an apparent and obvious defect with the
total exclusion of any role for the Medical Council of India in the matter once
a State Medical Council takes up a complaint, though the Medical Council of
India has the statutory responsibility to frame the Regulations and ensure their
implementation. This was sought to be corrected by the directions of the apex
Court.
16. Sri D.Prakash Reddy, learned senior counsel, invited attention in this
regard to Dr.MADHU KARNA v. MEDICAL COUNCIL OF INDIA AND ANOTHER7, wherein the
Delhi High Court considered the scope of judicial interference in the orders of
such Ethics Bodies. The learned Judge, while noting the Medical Council of
India to be governing the numerous facets of the medical profession, referred to
the right of appeal provided by the Act and Regulations from the findings the
Delhi Medical Council to the Medical Council of India. Similar statutes
designed to ensure that highest standards of professional conduct be maintained
were referred to with the Court not interfering as a general rule unless a
finding is based on no evidence or it proceeds on mere conjectures and
unwarranted inferences and notwithstanding the limited role of the Court
envisaged by the learned Judge, still the Medical Council of India was directed
to finalise its directions on facts and therefore if there is such a need for a
Court to intervene in exercise of its powers under a restricted and limited
jurisdiction, the total exclusion of the jurisdiction of the Medical Council of
India in matters of Professional Conduct, Etiquette and Ethics could have been
only due to an unconscious omission or inadvertent lapse and never by design,
which omission was obviously supplied and the lapse corrected in Malay Ganguly's
case.
17. The decision reported in ZILE SINGH v. STATE OF HARYANA AND OTHERS8
referred to by Sri D.Prakash Reddy, learned senior counsel, is about the
permissibility of retrospectivity in a legislation and the possibility of
rebutting the presumption against retrospectivity even by necessary implication,
in a case where the new law is made to remove an acknowledged evil for the
benefit of the community as a whole. The inclusion of Regulations 8.7 and 8.8 on
the suggestions of the learned Attorney General and with the approval of the
Supreme Court was obviously to cure a patent defect or omission negativing the
object and purpose of entrustment of statutory duties in this regard to the
Medical Council of India and the Supreme Court pointed out that where a statute
has been passed for the purpose of supplying an omission in a former statute or
to explain a former statute, the subsequent statute has relation back to the
time when the prior Act was passed and the rule against the retrospectivity is
inapplicable to such legislations as are explanatory and declaratory in nature.
18. The Supreme Court, referring to various precedents on this aspect, was
clear that intrinsic evidence may be available to show that the amendment was
necessarily intended to have retrospective effect. A draftsman's folly was noted
to have been corrected in the case before Their Lordships and so is the
situation in the present case as already stated above. To a similar effect is
the precedent in STATE OF MUMBAI v. VISHNU RAMCHANDRA9 wherein also the apex
Court held that the Act designed to protect the public against acts of a harmful
character may be construed retrospectively, if the language admits such an
interpretation, even though it may equally have a prospective meaning. The
Supreme Court followed the dictum that no man has such a vested right in his
past crimes and their consequences as would entitle him to insist that no
future legislation shall intervene, whatever be his past history.
19. As already referred to above, even in KESHAVLAL JETHALAL SHAH v. MOHANLAL
BHAGWANDAS AND ANOTHER10 relied on by the learned counsel for the writ
petitioner, the distinction concerning amending statutes or provisions
explaining any pre-existing legislation which was ambiguous or defective or an
explanatory legislation to supply an obvious omission or clear up doubts as to
the meaning of the previous Act were held to be capable of being construed to be
retrospective and as the role of the Medical Council of India which has a
statutory responsibility was totally excluded in these aspects though it has a
duty to maintain the professional conduct, etiquettes and ethics once a
complaint is entertained by a State Medical Council, the situation can be
considered to be requiring supply of an omission in the phraseology of the
Regulations.
20. While there can be no doubt that the normal rule is the availability of a
right of appeal only in the event of such a right being available at the time of
the institution of the original proceedings as pointed out by the larger Bench
in RAMVILAS BAJAJ v. ASHOK KUMAR AND ANOTHER11, the principle of prospectivity
of an amendment dealing with substantive rights of parties may not apply to a
statute which is declaratory in nature. Adopting, what is called by Sri
D.Prakash Reddy, learned senior counsel, as purposive interpretation, to give
effect to the purpose and object of the central statute and the Regulations made
thereunder, clearly appears to be called for as recognized by the apex Court
itself in ordering inclusion of Regulations 8.7 and 8.8. That the said
Regulations 8.7 and 8.8 have to be deemed to be retrospective in operation, so
naturally supplying an omission in the original draft is clear from the
alternatives provided by the said sub-Regulations as the first is to enable the
Medical Council of India to intervene in the event of unjustified delay in
dealing with a complaint by the State Medical Council and the second is to
provide for the scope for correction by the Medical Council of India in an
appeal that is to be filed within sixty days from the order of the State Medical
Council with the filing of such appeal being made even later permissible, which
can be entertained by the Medical Council of India in the event of existence of
a sufficient cause.
21. If the Regulations 8.7 and 8.8 are thus considered to be curative and to
be having retrospective effect in the light of the manner in which they were
brought into the Regulations on the suggestions of the learned Attorney General
and the directives of the Supreme Court, the appeal by the third respondent and
the entertainment of the same by the Medical Council of India cannot be
considered to be vitiated by total lack of jurisdiction.
22. The appeal by the third respondent is dated 31.03.2004 received by the
Medical Council of India on 05.04.2004. The notification introducing 8.7 and 8.8
in 2002 Regulations was stated to be by MCI 211 (2)/2004 (Ethics), dated
04.03.2004 published in the Extraordinary Gazette of India, dated 27.05.2004,
with the date 26.05.2004. While the Act did not refer to the manner in which
any Regulations made under Section 33 of the Act come into force and the
notification in the Extraordinary Gazette of India, dated 27.05.2004, did not
specify as to since when the Regulations came into force, when one falls back
upon the General Clauses Act, 1987, Section 5 (3) of the Act states that unless
the contrary is expressed, a Central Regulation shall be construed as coming
into operation immediately on the expiration of the day preceding its
commencement. The word 'commencement' has been defined in Section 3 Clause 13 of
the General Clauses Act, 1987 with reference to a Regulation as the day on which
the Regulation comes into force. In the absence of anything to show that the
coming into force of the amended 8.7 and 8.8 depended on their publication in
the official gazette, it may not be illegal or illogical to construe that the
amendment may have to be deemed to come into force on the date of the
notification itself much prior to the filing of the appeal by the third
respondent. Of course, even if such a view were to be taken that the date of the
notification should govern the entertainment of the appeal under 8.8, still the
fact remains that when the original complaint was entertained by the A.P.Medical
Council and decided by it, there was no right of appeal, the answer to which, if
the appeal was considered to be maintainable before the Medical Council of
India, will lie only in construing the amendment to be having retrospective
operation.
23. While the jurisdictionsl objection is thus not considered to be
substantive in the peculiar background in which the amendments have come into
force, the objections of the writ petitioner about total non-compliance with the
principles of natural justice while passing the impugned order stand on a
different footing. Nothing in the Act excludes the operation of the principles
of natural justice to any action taken by the Indian Medical Council in exercise
of its statutory duties or powers and the provision for removal of names from
the Indian Medical Register provide for an appeal to the Central Government
under sub-Section 2 of Section 24 of the Act, which may be indicative of the
anxiety of the legislature to provide for normally accepted remedies in case of
any adverse action against any medical practitioner. So is the provision even
under the original Regulation 8.2, which clearly mandates that an enquiry must
be held by the appropriate Medical Council on any complaint of professional
misconduct, the registered medical practitioner has to be heard in person or by
pleader and only if the medical practitioner is found to be guilty of committing
professional misconduct, an appropriate punishment will be awarded. The
incorporation of Regulation 8.7 providing for taking recourse to the
jurisdiction of Medical Council of India in case of abnormal delay also shows
that the rights and interests of the persons involved are designed to be
protected with reference to the fundamental principles of judicial procedure
adopted in any judicial or quasi judicial or administrative proceedings
affecting the civil or professional or such other rights of the parties. The
right given to file an appeal under Regulation 8.8 is also a pointer to that
effect in addition to even the original Regulation 8.2 prescribing such
mandatory opportunity on any complaint. In the present case, it is seen from "
the short reply affidavit" running into 24 pages that after receipt of the
appeal from the third respondent and before it has been decided by the Medical
Council of India, the only occasion for the writ petitioner to participate was
when his attendance was secured at the meeting of the Ethics committee of the
Medical Council of India on 06.10.2005 by issuing a letter informing him about
considering the appeal filed by the third respondent regarding the death of
Smt.Srilatha Reddy against the order passed by the Andhra Pradesh Medical
Council. It was only informed to the writ petitioner that it was decided to ask
the four doctors concerned to appear before the Ethics Committee and that an
expert also was called to be present on the same day and the writ petitioner was
requested to appear before the Ethics Committee. Mere enclosure of a copy of the
letter, dated 31.03.2004, received from the third respondent for ready reference
of the writ petitioner could not have been considered as an opportunity, leave
alone a reasonable opportunity for the writ petitioner to defend himself in the
sense in which such opportunity is understood in law. The Medical Council of
India in its pleading specifically admits in effect and substance that the writ
petitioner was not in the picture during the consideration of the appeal at any
other point of time, either when the documents were called for from the State
Medical Council or when Dr. Rajesh Khanna furnished his opinion or when the
third respondent made his statement before the Ethics Committee or submitted a
written statement or when orders were passed after detailed deliberation on 5/6-
9-2005 when the other three doctors summoned from Hyderabad were examined and
the only opportunity the petitioner had before the Ethics Committee was to
answer the questionnaire supplied to him. It may be true that some of the
questions put to the writ petitioner were suggestive of omissions in the manner
in which the patient was dealt with by him. The same does not appear to be
capable of being equated to giving an opportunity to the writ petitioner to
defend himself. The conclusions arrived at by the Ethics Committee in its
meeting on 5/6-9-2005 and its ultimate conclusions were obviously based on the
records available, the depositions of the specialists and experts, the relevant
papers, documents, files, including the documents provided by the State Medical
Council and the explanation submitted by the respective parties, none of which
except the answers of the writ petitioner appear to be available to the writ
petitioner before the punishment was handed over.
24. Sri D.Prakash Reddy, learned senior counsel, referred to a decision of a
larger Bench of this Court in K.SWARNA KUMARI v. GOVERNMENT OF ANDHRA PRADESH 12
as precluding any such complaint in such matters but, the leading judgment
rendered on behalf of four learned Judges, dealing with the contentions by the
same learned senior counsel on behalf of the petitioner therein and referring to
the various precedents cited before the Bench, clearly recognized the
distinction between serious prejudice caused to the employee by infraction of
procedural safeguards without demonstration of which the proceedings are not
vitiated and cases where the entire procedure contemplated by the rules was
totally ignored leading to prejudice. In the concurring judgment of the
Honourable Sri Justice Goda Raghuram, this aspect was referred to in the
principles laid down by the Supreme Court in S.K.Sarma's case, firstly by
requiring an enquiry into the question
whether the provision violated was
substantive or procedural and
secondly in case of a procedural provision
whether it is a case of no notice, no opportunity and no hearing or
whether it is only a
case of a complaint of violation of procedural safeguards, in which event,
prejudice in defending himself properly and effectively should be proved by the employee.
Holding that the principles of natural justice are to be implied by
the very nature and impact of the penal action, the distinction between a total violation of natural justice and violation of a facet of the said rule was directed to be kept in mind.
The larger Bench, therefore, may not come to the
aid of the third respondent, more so, when even a copy of the minutes of the
Medical Council of India produced by
Sri Challa Gunaranjan, learned standing counsel, concerning the meeting of the
Ethics Committee held on 06/07-10-2005 does not show anything more than the writ
petitioner answering the questionnaire put to him.
25. Sri Srinivas Polavarpu, learned counsel for the petitioner, rightly
referred to in the decision 6th cited supra, wherein the apex Court pointed
out that in case there is non-compliance with the statutory requirement of law
or the principles of natural justice have been violated under some
circumstances, non-compliance with the aforesaid by itself may be prejudicial to
a party and such an eventuality does not require that a party has to satisfy the
Court that his case has been prejudiced for non compliance with the statutory
requirements or principles of natural justice. At the cost of repetition, mere
recording of the answers of the writ petitioner to the questionnaire submitted
by the Ethics Committee can never be equated to providing any opportunity to the
writ petitioner to defend himself, leave alone a reasonable notice or
opportunity and it is clearly a case of no notice, no opportunity and no
hearing, referred to by the Honourable Sri Justice Goda Raghuram in the case
before the larger Bench and it is not mere violation of a facet of rule of
natural justice but a case of total violation of natural justice, which cannot
be condoned.
26. The decision reported in A.BHAGAVATHI AMMAL v. THE SECRETARY TO
GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT13,
which I happened to peruse,
is a similar case with reference to the departmental disciplinary action against
a medical practitioner wherein the learned Judge was dealing with a case of
recording the opinion of two senior doctors at the enquiry in the absence of the
petitioner, while the petitioner was not allowed to cross-examine those two
doctors. The learned Judge held the enquiry to be a farce, though I am not
inclined to use such strong words concerning the enquiry in the present case by
the Ethics Committee of the Medical Council of India.
27. The next step, therefore, should be to remit the matter back to the
Medical Council of India for dealing with the appeal in accordance with law.
Because of such a conclusion being arrived, the decision reported in
MAHARAJA CHINTAMANI SARAN NATH SHAHDEO v. STATE OF BIHAR AND OTHERS14 relied on
by Sri D.Prakash Reddy, learned senior counsel, needs no further reference.
The
question
whether the order of the Andhra Pradesh State Medical Council excluding
the writ petitioner from any medical negligence is factually or legally valid or
not need not, and in the interests of propriety, should not be gone into herein.
It will be for the Medical Council of India to consider all the relevant aspects
concerning the State Medical Council's order in the appeal being remanded to it.
28. Therefore, the impugned order, dated 16.07.2007, of the first respondent
is liable to be set aside and the appeal filed by the third respondent should be
remitted back to the first respondent for reconsideration in accordance with
law.
29. Accordingly, the order of the Medical Council of India, New Delhi in
MCI/211 (2) (133)/2004-Ethics/8222, dated 16.07.2007, is set aside and the
appeal filed by the third respondent be considered and decided on merits in
accordance with law by the Medical Council of India as expeditiously as
possible, of course after giving reasonable opportunity of hearing to the writ
petitioner and the third respondent in accordance with the prescribed procedure,
more particularly in compliance with Regulation 8.2. The observations made in
this order shall have no bearing on the determination of the said appeal by the
Medical Council of India on merits.
30. The Writ Petition is ordered accordingly without costs. The miscellaneous
petitions pending, if any, shall stand closed. There shall be no order as to
costs.
_________________________
G. BHAVANI PRASAD, J
25th March, 2013
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.