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2023 DIGILAW 787 (TS)

L. Sudhakar v. Medical Council of India

2023-12-21

ALOK ARADHE, ANIL KUMAR JUKANTI

body2023
JUDGMENT : (Anil Kumar Jukanti, J.) 1. Mr. Srinivas Polavarapu, learned counsel for the appellant in W.A. No. 1784 of 2013 and respondent No. 1 in W.A. No. 698 of 2014. Mr. Challa Gunaranjan, learned Standing Counsel for the respondent No. 1 in W.A. No. 1784 of 2013 and respondent No. 2in W.A. No. 698 of 2014. Mr. Harsha Reddy, learned counsel for the respondent No. 3 in W.A. No. 1784 of 2013 and appellant in W.A. No. 698 of 2014. 2. These intra court appeals are filed challenging the order, dated 25.03.2013 passed in Writ Petition No. 16305 of 2007 on various grounds. Grounds pleaded in W.A. No. 1784 of 2013 are being considered. 3. Brief facts: Appellant is aggrieved by the order of the learned Single Judge in W.P. No. 16305 of 2007, wherein order No. MCI-211(2)(133)/2004-Ethics/8222, dated 16.07.2007 of Medical Council of India (hereinafter referred to as 'MCI') was challenged. A penalty of removal of name of the appellant from the Indian Medical Council Register for a period of three months was imposed by the said proceedings. 3.1. Appellant is a Medical Graduate and a Post Graduate Diploma in Anaesthesiology from Osmania University (in 2001). On 05.03.2003 at about 11.50 p.m., appellant received information from Dr. Rajesh Khanna (senior by one year and a close friend) about the admission of wife of respondent No. 3 in Shalini Maternity Hospital and was requested to provide medical attention including labour analgesia to her. Consent of the patient and her husband was taken before providing Epidural Analgesia and patient developed Obstetrics-Amniotic Fluid Embolism due to which patient died. A complaint was lodged with respondent No. 2 on 19.07.2003, alleging negligence on all treating doctors including appellant. The Ethical and Malpractices Committee of respondent No. 2 by order, dated 11.02.2004, discharged the three doctors who were arrayed as respondents in the complaint including the appellant. 3.2. Aggrieved by the order dated 11.02.2004, respondent No. 3 (husband of the deceased) filed appeal, dated 31.03.2004 before MCI challenging the decision of respondent No. 2, appeal was received on 05.04.2004. Ethics Committee of MCI found the appellant guilty of professional misconduct and recommended for removal of name from Indian Medical Register for a period of three months. 3.2. Aggrieved by the order dated 11.02.2004, respondent No. 3 (husband of the deceased) filed appeal, dated 31.03.2004 before MCI challenging the decision of respondent No. 2, appeal was received on 05.04.2004. Ethics Committee of MCI found the appellant guilty of professional misconduct and recommended for removal of name from Indian Medical Register for a period of three months. Challenging the order of MCI, writ petition was filed and the learned Single Judge by setting aside order dated 16.07.2007 remitted the appeal filed by the respondent No. 3 to respondent No. 1 for reconsideration in accordance with law, particularly to comply with Regulation 8.2 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (hereinafter referred to as 'Regulations, 2002'). The order of the learned Single Judge is under challenge. 4. It is submitted by learned counsel appearing on behalf of appellant that an appeal was filed on 05.04.2004 challenging the orders, dated 11.02.2004, passed by respondent No. 2 and that respondent No. 1 had no jurisdiction to entertain the appeal and the writ petition ought to have been allowed on the aspect of jurisdiction. It is further submitted that the learned Single Judge erred in holding that respondent No. 1 had jurisdiction to entertain the appeal. It is also submitted that Regulation Nos. 8.7 and 8.8 were incorporated by way of amendment to Regulations, 2002 and the said amendments were published in the Extraordinary Gazette on 27.05.2004. 4.1. It is further submitted that the learned Single Judge has not considered the decisions of Apex Court to the effect that right of appeal is not a vested right and it is a statutory right conferred. It is further submitted that in the present case, the amendment conferring the right of appeal was not in force on the date of filing of appeal by the aggrieved party. It is also submitted that an amendment ordinarily has a prospective effect, unless it is specified that the amendment has a retrospective effect. 4.2. It is submitted that original regulations provide concurrent jurisdiction to MCI and State Medical Councils for initiation of disciplinary proceedings and that the learned Single Judge erred in holding the amended regulations to be of curative in nature and have retrospective effect. 5. 4.2. It is submitted that original regulations provide concurrent jurisdiction to MCI and State Medical Councils for initiation of disciplinary proceedings and that the learned Single Judge erred in holding the amended regulations to be of curative in nature and have retrospective effect. 5. It is submitted by learned counsel for respondent No. 3 that a complaint was made before Andhra Pradesh Medical Council (hereinafter referred to as 'APMC') on 19.07.2003 for appropriate action against the negligent doctors of the hospital and that APMC vide order dated 11.02.2004 discharged the respondents in the complaint including the appellant. It is further submitted that aggrieved by the said order, an appeal was filed with MCI (appeal sent by post from Berlin on 31.03.2004, received by MCI on 05.04.2004) and that MCI has recommended a mere three months of suspension of medical licence for one doctor in spite of holding the appellant guilty for medical negligence which resulted in loss of two innocent lives. It is also submitted that the punishment imposed can hardly be considered as punishment for the act of grave negligence. It is submitted that Supreme Court in Malay Ganguly vs. Medical Council of India and Others 2003 INSC 508 : (2003) 8 SCC 490 was pleased to record the suggestions of Attorney General of India for addition of Regulations 8.7 and 8.8 in Regulations, 2002. 5.1. It is submitted that the MCI followed the due procedure as laid out in Regulation 8.2 of Code of Ethics Regulations, 2002. It is further submitted that the appellant has approached the Hon'ble Court without exhausting the remedy under Section 24 of Indian Medical Council Act, 1956 wherein under this Section, a person aggrieved for removal of his name from the Register can file an appeal before the Central Government. 5.2. It is further submitted that the Experts of the Ethics Committee of MCI gave a finding that the appellant was reckless and grossly incompetent in providing epidural analgesia and treating associated complications and that a mere punishment of three months suspension from practice cannot equate the loss of two innocent lives from gross negligence/incompetency of anesthetist. The learned Single Judge has erred in remanding the matter back for consideration in accordance with law by giving reasonable opportunity of hearing and in compliance with Regulation 8.2 of the Regulations, 2002. 6. The learned Single Judge has erred in remanding the matter back for consideration in accordance with law by giving reasonable opportunity of hearing and in compliance with Regulation 8.2 of the Regulations, 2002. 6. It is submitted by the learned Standing Counsel appearing for respondent No. 1 that on filing of appeal by respondent No. 3 against the order of respondent No. 2, the Ethics Committee of MCI secured the particulars of registration and qualification along with enquiry report and all other relevant documents vide its letter, dated 06.05.2004. Respondent No. 2 vide letters, dated 20.05.2004 and 22.05.2004, furnished the documents as desired by MCI. It was observed by the MCI that the appeal was preferred before the incorporation of Regulations 8.7 and 8.8 to the Regulations, 2002. 6.1. It is submitted that initially, the Ethics Committee observed the need for obtaining opinion from Dr. Neera Agarwal and Dr. Rakesh Kumar (Professors). When opinion was not received, another request was made for furnishing opinions. Dr. Rakesh Kumar, Professor of Anesthesiology, furnished opinion, dated 19.01.2005. By letters of various dates, Dr. P.Malathy, Dr. K.Srikar Reddy and Dr. Shyam Sundar were requested to appear on various dates. It was decided that two Gynecologists and two Anesthesiologists of University College of Medical Sciences, Delhi and Lady Hardinge Medical College, New Delhi, to be present before the Ethics Committee as experts on 05.09.2005. One Mr. Neelam Bala Vaid was requested to attend the meetings of Ethics Committee on 06.10.2005. In the Ethics Committee meeting, dated 06.10.2005, statements of Dr. P.Malathy, Dr. P.Tejeswari, Dr. L.Sudhakar (appellant herein) and Dr. Padmanabha Reddy were recorded. 6.2. It is further submitted that the decision of Ethics Committee, dated 06.10.2005, was approved by Executive Committee on 24.04.2006 and by General Body of MCI in its meeting held on 10.03.2007. The decision of General body was communicated to appellant, respondent No. 3 and Registrar of respondent No. 2 vide MCI order, dated 16.07.2007. Padmanabha Reddy were recorded. 6.2. It is further submitted that the decision of Ethics Committee, dated 06.10.2005, was approved by Executive Committee on 24.04.2006 and by General Body of MCI in its meeting held on 10.03.2007. The decision of General body was communicated to appellant, respondent No. 3 and Registrar of respondent No. 2 vide MCI order, dated 16.07.2007. It is submitted that the Ethics Committee, after perusal of the records available and deposition of specialists mentioned in the complaints and the experts (Gynecologists and Anesthesiologists) whose opinion was sought along with all relevant papers, documents, files including the documents provided by respondent No. 2, the explanation submitted by respective parties and having discussed all these in detail, came to the unanimous opinion that the appellant was guilty so far as the professional negligence is concerned in the instant case and recommended that the name of the appellant be struck off from the Indian Medical Council Register for a period of three months. It is further submitted that the learned Single Judge has erred in coming to the conclusion that no opportunity was granted to the appellant to defend himself and the order of the Ethics Committee is in accordance with law. 7. Heard learned counsels, perused the entire record, orders passed by respondent Nos. 1 and 2, the affidavit and the counter affidavits filed in the writ petition, the grounds in the writ appeal and the order of the learned Single Judge. 8. It is evident from record that appeal dated 31.03.2004, was received by MCI on 05.04.2004. The Notification adding Regulations 8.7 and 8.8 to Regulations, 2002 i.e., Indian Medical Council (Professional Conduct, Etiquette and Ethics) Amendment Regulations, 2004, came into force on the date of their publication in the Gazette of India i.e., 27.05.2004. On a perusal of the Notification published in the Gazette of India vide No. 98 at New Delhi on the 27th of May, 2004/Jyaistha Six, 1926, it indicates that the amended Regulations came into force with effect from the date published in the Gazette of India and the same is evident from sub-clause (ii) of Clause 1 of the Notification. 9. It is pertinent to take note of the relevant paragraph of the learned Single Judge's order wherein the genesis of Regulations 8.7 and 8.8 is taken note of: "... 9. It is pertinent to take note of the relevant paragraph of the learned Single Judge's order wherein the genesis of Regulations 8.7 and 8.8 is taken note of: "... 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 OTHERS (reported in 2003 INSC 508 : (2003) 8 SCC 490 ). 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." 10. Regulation Nos. This was sought to be corrected by the directions of the apex Court." 10. Regulation Nos. 8.7 and 8.8 as notified in the Gazette on 27.05.2004 are as follows: "8.7 Whether either on a request or otherwise the Medical Council of India is informed that any complaint against a delinquent physician has not been decided by a State Medical Council within a period of six months from the date of receipt of complaint by it and further the MCI has reason to believe that there is no justified reason for not deciding the complaint within the said prescribed period, the Medical Council of India may- (i) Impress upon the concerned State Medical Council to conclude and decide the complaint within a time bound schedule; (ii) May decide to withdraw the said complaint pending with the concerned State Medical Council straightaway or after the expiry of the period which had been stipulated by the MCI in accordance with para (i) above, to itself and refer the same to the Ethical Committee of the Council for its expeditious disposal in a period of not more than six months from the receipt of the complaint in the office of the Medical Council of India. 8.8 Any person aggrieved by the decision of the Sate Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council: Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to the presented within a further period of 60 days." 11. In Pankaj Jain Agencies vs. Union of India, 1994 INSC 251 : (1994) 5 SCC 198 , the Apex Court dealing with the issue of date of coming into operation the notification issued under Section 25 of the Customs Act, held as follows: "...the notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Gazette of India i.e. the date of publication of the Gazette. Apart from the prescribed requirement under Section 25, the usual mode of bringing into operation such notification followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the same by laying down additional requirement." 12. It is settled law that the amendments carried out to any statute, rules or regulations come into force from the date when they are notified in the Extraordinary Gazette of India which in the present case is 27.05.2004. We are of the considered opinion that the learned Single Judge has misdirected himself in coming to the conclusion that Regulations 8.7 and 8.8 of the Regulations, 2002 being curative in nature are retrospective. We are not in agreement with the view expressed by the learned Single Judge that the MCI had the jurisdiction to entertain the appeal of the respondent No. 3, dated 31.03.2004, received on 05.04.2004. 13. The jurisdiction to entertain an appeal by the MCI can only be from 27.05.2004 and not any date prior to and it is not in dispute that the appeal was preferred prior to 27.05.2004. We find merit in the submissions made by the learned counsel for the appellant (in W.A. No. 1784 of 2013), that MCI lacked jurisdiction to entertain the appeal. 14. For the foregoing reasons, Writ Appeal No. 1784 of 2013 is allowed and Writ Appeal No. 698 of 2014 is dismissed. No order as to costs. Miscellaneous applications, if any pending, shall stand closed.