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2019 DIGILAW 884 (CAL)

Ashok Kumar Giri alias Ashok Giri v. Koushik Pal

2019-09-24

DEBANGSU BASAK

body2019
JUDGMENT : 1. The petitioner has filed the present revisional application, assailing the order dated February 2, 2018 passed by the West Bengal Clinical Establishment Regulatory Commission. 2. Learned Advocate appearing for the petitioner has submitted that, the petitioner was working as a doctor with B.M. Birla Heart Research Centre (hereinafter referred to as the Clinical Establishment). In a complaint against such Clinical Establishment, the Commission considered the issue as to whether, the petitioner was entitled to perform Echocardiogram and opine thereon, and proceeded to find the petitioner was not entitled to do so. According to him, the Commission acted in excess of jurisdiction in arriving at the findings recorded in respect of the working of the petitioner at the Clinical Establishment. The Commission acted in excess of jurisdiction in commenting upon and arriving at the finding that, the petitioner was not authorised to undertake Echocardiogram. He has relied upon Section 38 of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017 in support of his contentions. According to him, the Commission could not have decided on medical negligence in view of Section 38 of the Act of 2017. The entire grievance of the complaint of the Opposite Party No. 1 before the Commission was medical negligence. He has submitted that, the Commission travelled beyond its jurisdiction. In support of his contentions, he has relied upon the Judgment and Order dated August 25, 2019 rendered in C.O. No. 7236 (W) of 1988 (Manabendra Kumar Choudhury v. First Labour Court & Ors.). 3. Learned Advocate appearing for the petitioner has submitted that, the petitioner was an M.B.B.S. doctor and was entitled to conduct Echocardiogram and treat the patient. The petitioner is entitled to perform Echocardiogram being a doctor. The Commission acted with material irregularity in holding that, the petitioner did not have a right to treat the patient and did not have the educational qualification to interpret the outcome of the Echocardiography conducted by him. Moreover, there is nothing on record to suggest that, the interpretation of the petitioner was wrong or that such interpretation harmed the patient in any manner. 4. Learned Advocate appearing for the petitioner has submitted that, there is no law prohibiting an M.B.B.S. doctor from conducting Echocardiogram and interpreting such data. Moreover, there is nothing on record to suggest that, the interpretation of the petitioner was wrong or that such interpretation harmed the patient in any manner. 4. Learned Advocate appearing for the petitioner has submitted that, there is no law prohibiting an M.B.B.S. doctor from conducting Echocardiogram and interpreting such data. He has relied upon the answers to the queries raised under the Right to Information Act, 2005 and submitted that, the Medical Council of India is silent with regard to the minimum qualification required for conducting Echocardiogram. The West Bengal Medical Council has the view that, even paramedical professionals are eligible to perform Echocardiography. According to him, there being no bar on an M.B.B.S. doctor conducting and interpreting an Echocardiogram, the steps taken by the petitioner in treating the patient cannot be faulted. 5. Learned Advocate appearing for the petitioner has submitted that, the answer given by the Medical Council of India in response to the order of the Court, cannot be relied upon in as much as, and a law officer of Medical Council of India responded without the Medical Council of India itself responding. 6. Relying upon 2012 5 SCC 242 (Vijay Singh v. State of Uttar Pradesh & Ors.) and 1989 3 SCC 448 (Pyare Lal Sharma v. Managing Director, Jammu & Kashmir Industries Limited & Ors.) learned Advocate appearing for the petitioner has submitted that, since, the petitioner did not violate any law, no punishment can be imposed. Moreover, the petitioner not having acted in violation of any law, his action cannot be treated as a misconduct. 7. Learned Advocate appearing for the petitioner has also questioned the findings recorded by the Commission at least, so far as the patient is concerned. 8. Learned Advocate appearing for the Opposite Party No. 1 has submitted that, the mother of the Opposite Party No. 1 died due to the deficiency in service rendered by the Clinical Establishment. He has referred to the complaint dated May 12, 2017 made by the Opposite Party No. 1 to the Commission. He has submitted that, there were improper diagnosis done at the Clinical Establishment. He has submitted that, so far as the petitioner is concerned, the Commission did not impose any punishment on the petitioner. Therefore, the question of the Commission acting in excess of jurisdiction does not arise. The Commission looked into the conduct of Dr. He has submitted that, there were improper diagnosis done at the Clinical Establishment. He has submitted that, so far as the petitioner is concerned, the Commission did not impose any punishment on the petitioner. Therefore, the question of the Commission acting in excess of jurisdiction does not arise. The Commission looked into the conduct of Dr. Giri with regard to the patient in question, and the involvement of the Clinical Establishment in rendering services to a patient, through Dr. Giri. He has submitted that, the Commission has ample power to consider negligence on the part of the person employed by a Clinical Establishment. In the present case, the Commission was not acting without jurisdiction in considering the involvement of Dr. Giri in the patient care as a doctor employed by the Clinical Establishment. 9. Learned Advocate appearing for the Opposite Party No. 1 has submitted that, Dr. Giri was not qualified to perform Echocardiogram let alone interpret the date relating thereto. He has referred to the provisions of the Indian Medical Council Act, 1956 in support of his contentions as also the replies given by the Medical Council of India. 10. Learned Advocate appearing on behalf of the Medical Council of India has submitted that, the Medical Council of India in a meeting held on May 11, 2019 considered the Order dated March 15, 2019 issued by the Court. He has submitted that, the law officer merely communicated the decision of the Medical Council of India. The views of the Medical Council of India are contained in the letter dated June 25, 2019 issued by the law officer of Medical Council of India. According to him, the petitioner as a doctor is entitled to perform Echocardiography. However, a doctor or a paramedic with training although being entitled to perform Echocardiography, is not entitled to interpret the data of the Echocardiogram. For such purpose, a minimum qualification of M.D. (Medicine) is required. He has submitted that, knowledge of cardiology is imparted in M.D. (Medicine) and that a person with M.D. (General Medicine), M.D. (Paediatrics) and M.D. (Respiratory Medicine) are entitled to pursue D.M. (Cardiology) which is a super specialist qualification and such persons are better placed to clinically interpret the data of Echocardiogram. According to him, a doctor can only perform such medical procedures in which he or she received training. According to him, a doctor can only perform such medical procedures in which he or she received training. The curriculum of M.B.B.S. does not include interpretation of data of Echocardiogram. The view expressed by Medical Council of India was on the basis of an expert opinion obtained by Medical Council of India. 11. By the impugned order, the Commission has considered a complaint lodged with it by the Opposite Party No. 1 with regard to the death of the mother of the Opposite Party No. 1. 12. The mother of the Opposite Party No. 1 was admitted at the Clinical Establishment. The petitioner is a doctor and was functioning at such Clinical Establishment, at the material point of time, as the Consultant-in-Charge, Non-Invasive Department. The Commission has exercised jurisdiction under the provisions of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017. The Commission has been established under the Act of 2017. Section 38 of the Act of 2017 lays down the powers and functions of the Commission. Section 38 of the Act of 2017 is as follows:- "38. Powers and functions of the West Bengal Clinical Establishment Regulatory Commission. The Commission has been established under the Act of 2017. Section 38 of the Act of 2017 lays down the powers and functions of the Commission. Section 38 of the Act of 2017 is as follows:- "38. Powers and functions of the West Bengal Clinical Establishment Regulatory Commission. - (1) The Commission shall-- (i) monitor the functioning of clinical establishments; (ii) regulate and supervise functions of clinical establishments as prescribed; (iii) examine and consider complaints, filed manually or electronically through an online system in matters related to patient care service, deviations from declared fees and charges, refusal of supply of copy of medical records and allied matters, alleged irrational and unethical trade practice alleged before the Commission by aggrieved patient parties against clinical establishments and after issue of notice and hearing both parties, adjudicate, compensate and pass such other orders, as deemed appropriate: Provided that any complaint of medical negligence against medical professionals will be dealt with by respective State Medical Councils: Provided further that the Commission for the purpose of adjudicating disputes and appeal under this Act, shall have a quorum of the Chairperson and not less than two other members; (iv) make regulations with regard to fixing of rates or charges for indoor patient department and outdoor patient department treatment including diagnostics and also to ensure compliance with fixed rates and charges by clinical establishments; (v) enforce transparency in dealing with patients by the clinical establishments; (vi) tender advice and make suggestions regarding measures to be adopted under this Act, for improving patient care services and redressal of grievances; (vii) undertake planned or surprise inspections to examine and ascertain strict compliance by clinical establishments with provisions of this Act; (viii) hear appeals arising from orders and decisions passed by the Adjudicating Authority in the Districts; (ix) have the powers to award such compensation as deemed appropriate not exceeding fifty lakh rupees, including interim compensation; (x) ensure that only properly trained medical and para- medical personnel like doctors, nurses, technicians, pharmacists are employed by the clinical establishment." 13. The Commission established under the Act of 2017 is required to monitor the functioning of a clinical establishment, regulate and supervise the functions of a clinical establishment, examine and consider complaint relating to patient care service, deviations from declared fee and charges, refusal of supply of copy of medical records and allied matters, alleged irrational and unethical trade practice. The Commission established under the Act of 2017 is required to monitor the functioning of a clinical establishment, regulate and supervise the functions of a clinical establishment, examine and consider complaint relating to patient care service, deviations from declared fee and charges, refusal of supply of copy of medical records and allied matters, alleged irrational and unethical trade practice. It requires the Commission to adjudicate on such complaints, after complying with the principles of natural justice and pass orders for compensation and otherwise, as deemed appropriate. First proviso of Section 38 (iii) stipulates that, a complaint of medical negligence against a medical professional will be dealt with by the respective State Medical Council. The Act of 2017, also requires that, the Commission should ensure that, only properly trained medical and paramedical personnel like doctors, nurses, technicians, pharmacists are employed by the Clinical Establishment. 14. As noted above, the Commission received a complaint against the Clinical Establishment which it was adjudicating upon. In the course of such adjudication, the Commission was necessarily called upon to look into whether, the persons attending the patient, were properly trained medical and paramedical personnel or not. In doing so, the Commission noted that the conduct of three persons attending to the patient requires investigation. Two of the three persons are doctors and one who claims herself to be a technician. The petitioner is one of the doctors whose conduct in relation to the patient at the Clinical Establishment has been adjudicated upon by the Commission. 15. Section 38 of the Act of 2017 as it obtains today, mandates a Commission, on receipt of a complaint, to enquire, evaluate and adjudicate on the conduct of the medical and paramedical personnel involved in the treatment of the patient. In making a true and proper evaluation of such conduct, the Medical Commission, in a given case, may be called upon to evaluate the educational qualification and other parameters of the persons involved so as to arrive at a finding whether or not, the person concerned is a properly trained medical or a paramedical personnel engaged by the Clinical Establishment to deal with a patient. In the present case, the petitioner as a doctor, was functioning as the Consultant-in- Charge, Non-Invasive Department of the Clinical Establishment while dealing with the patient. In the present case, the petitioner as a doctor, was functioning as the Consultant-in- Charge, Non-Invasive Department of the Clinical Establishment while dealing with the patient. The Commission has noted that, the petitioner, as a doctor, and holding the post of Consultant-in- Charge, Non-Invasive Department of the Clinical Establishment, had conducted an Echocardiogram on the patient, interpreted the data and formulated the next course of treatment for the patient. The Commission has considered the educational qualification of the petitioner so as to find out whether, the petitioner can be treated as a duly qualified medical personnel to discharge such of the duties that the petitioner discharged while treating the patient. The Commission has noted that, the petitioner obtained MD (Physician) from St. Petersburg Medical Academy, Russia which is equivalent to M.B.B.S. degree in India. The petitioner was registered with Medical Council of India after acquiring Foreign Medical Graduate Examination from National Board, New Delhi. The Commission has found that, the Post Graduate Diploma in clinical cardiology obtained by the petitioner from Indira Gandhi National Open University is not a recognised Post Graduate medical qualification and that, a holder of such diploma is not entitled to practise in the speciality concerned and that, the diploma awarded by the Indira Gandhi National Open University is not included in the schedule of West Bengal Medical Council. The Commission did not award any punishment against the petitioner. It has noted the conduct of the Clinical Establishment in appointing the petitioner to the post as noted above, with the duties to be discharged by the petitioner in relation to the patient, as noted above. It has found that, the petitioner was not entitled to interpret the data of the Echocardiogram. In the facts of the present case, it cannot be said that, the Commission has acted in violation of the first proviso to Section 38(iii) of the Act of 2017. 16. Vijay Singh (supra) has considered a disciplinary proceeding. In the facts of that case, it has held that, the punishment imposed by the disciplinary authority was outside the purview of the statutory rules governing the disciplinary proceeding. Manabendra Kumar Choudhury (supra) has considered an industrial dispute relating to termination of services of an employee. It has held that, resignation implies a cessation of the relationship of an employer and an employee and is inextricably in connected with non-employment of a person. Manabendra Kumar Choudhury (supra) has considered an industrial dispute relating to termination of services of an employee. It has held that, resignation implies a cessation of the relationship of an employer and an employee and is inextricably in connected with non-employment of a person. The factum of resignation, becomes an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. Pyare Lal Sharma (supra) has considered whether, back wages can be awarded when, the termination of employment is held to be illegal. None of the ratio laid down in the three authorities have any manner of application in the facts and circumstances of the instant case. The Commission did not travel beyond the jurisdiction prescribed by the Act of 2017, in dealing with the complaint before it, by the impugned order. The impugned order does not suffer from any material irregularity warranting an interference under Article 227 of the Constitution of India. 17. In such circumstances, C.O. No. 2050(W) of 2018 is dismissed. No order as to costs. 18. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.