Learned senior counsel next cites a judgment reported at (2009) 12 SCC 78 [Union
of India and others vs. Gyan Chand Chattar], for the proposition that an enquiry is to
be conducted against any person giving strict adherence to the statutory
provisions and principles of natural justice. The charges should be specific,
definite and giving details of the incident which formed the basis of charges. No
enquiry can be sustained on vague charges. Enquiry has to be conducted fairly,
objectively and not subjectively. Finding should not be perverse or unreasonable,
nor should the same be based on conjectures and surmises. There is a distinction
between proof and suspicion. Every act or omission on the part of the delinquent
cannot be misconduct. The authority must record reasons for arriving at the
finding of fact in the context of the statute defining misconduct.In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon’ble Justice Sabyasachi Bhattacharyya
W.P. No. 21498(W) of 2019
Dr. Subhash Chandra Tiwari Vs. West Bengal Medical Council and others
Judgment on : 27.11.2019
1. The petitioner is a doctor who completed his MBBS in the year 2004 and did
Diploma in Tuberculosis and Chest Diseases (DTCD) in 2009 from the Medical
College and Hospital, Kolkata. Thereafter, the petitioner did his MD in Tropical
Medicine in 2013 from the School of Tropical Medicine at Kolkata. The petitioner
has been working as an associate consultant in the critical care unit of the
Gastroenterology Department of the Apollo Gleneagles Hospital, Kolkata. On
April 15, 2017, a minor child named Kuheli Chakroborty was admitted in the
emergency room of the Apollo Gleneagles Hospital after being referred by the
ESI Hospital, Joka as a case of passage of blood in stool since four days. The child
was admitted under Dr. V.R. Srivastava (consultant pediatric surgeon) at bed no.
P‐20 of the pediatric ward of the hospital. The situation of the child was assessed
by the on‐duty pediatric doctor, who discussed with Dr. V.R. Srivastava, and, as
per her advice the patient was referred to Dr. Vijay Rai (Gastroenterologist). On
April 16, 2017, the child was seen by Dr. V.R. Srivastava and certain
examinations were done as per her advice. Thereafter, later on the same day, the
child was seen by Dr. S.C. Tiwari. The on‐call Doctor from Gastroenterology
Department, as asked by his Department, merely suggested Sigmoidoscopy to be
done on April 17, 2017, Nil‐per‐mouth (NPM) for four hours with proper
hydration, Enema (once) and certain blood and stool examinations.
2. In the evening of April 16, 2017 itself, Dr. V.R. Srivastava was informed
regarding Sigmoidoscopy. Her advice was taken in that regard.
3. On April 17, 2017, Dr. V.R. Srivastava again saw the child and planned for
Sigmoidoscopy, kept NPM from 11 a.m., and directed neotomic enema and the
patient was started being administered IV fluid at 11 a.m. Thereafter, at 2.45 p.m.
the same day, the Dr. S.C. Tiwari, after discussion with the HOD, informed the
pediatric ward doctor and also Dr. V.R. Srivastava that in view of no definite
polyp having been found in the rectal examination, a decision was taken to do
full length Colonoscopy on the next day after proper preparation.
4. At 4 p.m. on April 17, 2017, a phone call went from a pediatric ward doctor to Dr.
S.C. Tiwari regarding Colonoscopy preparation, when he suggested proceeding
as per protocol. The baby was subsequently assessed by the on‐duty pediatric
doctor and was found clinically stable. The baby was kept on NPM and
maintenance IV fluid was started at 10 a.m. on April 18, 2017. Thereafter, Dr. V.R.
Srivastava examined the baby, followed by the patient being sent to the
Gastroenterology Department for endoscopic procedure, evaluated by Dr. Sanjay
Mahawar (consultant anesthetist) and Dr. M.K. Goenka (consultant
Gastroenterologist). Colonoscopy was then done by Dr. M.K. Goenka under close
anesthetic monitoring by Dr. Sanjay Mahawar. Subsequently, medical procedure
was adopted for the child and the child was in observation under Dr. Mahawar
and by the Pediatric Intensive Care Unit (PICU) team led by Dr. P.S.
Bhattacharya, Dr. D. Ghosh (Cardiologist) and also seen by Dr. M.K. Goenka and
Dr. V. R. Srivastava. After successful resuscitation, the patient was shifted to
PICU and the parents were counselled and updated about the entire events. In
PICU, the child was put on mechanical ventilation and medication and other
supportive measures were administered as required, continuously assessed and
treated by the PICU team as indicated above. According to the petitioner, Dr.
M.K. Goenka, Dr. Sanjay Mahawar and Dr. V.R. Srivastava also attended the
baby.
5. However, on April 19, 2017, the child again suffered from cardiac arrest and
despite all efforts over a period of one‐and‐a‐half hours, the child could not be
revived and was declared clinically dead subsequently.
6. On July 4, 2017, the respondent no. 8 made a complaint before the West Bengal
Medical Council. On November 20, 2017 at 2 p.m. the writ petitioner was called
by the penal and ethical case committee for deposing in the matter of the death of
the child, which was responded to by the petitioner. On February 28, 2018, the
writ petitioner received a letter, wherein he was charged to have prescribed to
administer a controversial drug, namely Exelyte, for the preparation of bowel in
the four month‐old baby named Kuheli. It was also alleged that the petitioner did
not care to find the level of Serum Calcium before sending the baby for ‘scopy’
and that the petitioner did not bother to have the baby checked by any pediatric
physician, although the baby was allegedly admitted to the petitioner’s tertiary
care hospital 72 hours before. It was also indicated in the notice that a meeting
would be held by the West Bengal Medical Council to consider the said charges
and decide whether or not they should direct the petitioner’s name to be
removed from the Register of Registered Practitioners pursuant to Section 17/25
of the Bengal Medical Act, 1914 (hereinafter referred to as “the 1914 Act”).
Ultimately, the petitioner’s name was removed from the said Register by an
order dated October 25, 2019, against which the present writ petition has been
filed.
7. Learned senior counsel appearing for the petitioner argues that the petitioner has
had a spotless career for 15 years and was employed by the Apollo Gleneagles
Hospital and deputed as an on‐call Doctor on the Gastroenterology team by the
said hospital administration. It is argued that the West Bengal Medical Council,
being the respondent no.1 herein, flouted the basic principles of natural justice in
removing the writ petitioner from the Register of Registered Practitioners for
three months. It is submitted that the notice dated February 28, 2018 itself
exhibits a pre‐determined mindset on the part of the respondent no. 1, inasmuch
as it intimated the petitioner that the respondent no. 1 would consider the
charges against the petitioner to decide whether or not they should direct the
petitioner’s name to be removed from the Register of Registered Practitioners
under Section 17/25 of the 1914 Act, which was the maximum punishment for the
alleged charges.
8. It is submitted that Section 17 of the said Act merely provides that every person
who possesses any of the qualifications referred to in the schedule therein shall
be entitled to be registered on compliance of the provisions therein.
9. Section 25, on the other hand, empowers the Council to direct the removal of
names of the doctors from the Register and re‐entry of names therein. Under
Section 25(a)(ii), it is provided that the Council may direct that the name of any
Registered Practitioner, whom the Council after due enquiry in the same manner
as provided in clause (b) of Section 17 have found guilty by a majority of twothird
of the members present and voting at the meeting, of infamous conduct in
any professional respect, be removed from the Register of Registered
Practitioners or that the practitioner be warned and that any name so removed
may afterwards be re‐entered in the Register.
10. It is argued by learned senior counsel for the petitioner that the complaint lodged
by the father of the deceased patient with the Registrar, West Bengal Medical
Council on May 17, 2017, did not even name the writ petitioner. It was
mentioned that the concerned consultant pediatrician Dr. Vaishali Roy
Srivastava and the members of her unit, including resident doctors, nursing staff
and ward attendants, failed to communicate inter personally and even with the
patient party, as a result of which the medical treatment was hampered and
delayed, leading to a state of dehydration of the deceased baby.
11. It is further submitted that the notice sent to the writ petitioner on February 28,
2018 directly mentioned that the petitioner’s name might be removed from the
Register of Registered Practitioners, without even mentioning the lesser
punishment of issuing a warning to the petitioner, thereby betraying a predetermined
approach in that regard.
12. It was further mentioned in the said notice, sent by the respondent no.1 to the
petitioner, that the petitioner had prescribed to administer a controversial drug,
Exelyte, which the petitioner never did, nor is anything on record to show that
the petitioner ever prescribed such drug to the concerned patient at all.
13. It is further argued that although the said notice sought to fix responsibility
upon the petitioner, stating that the baby was admitted to the petitioner’s tertiary
care hospital, and the petitioner did not bother to have the baby checked by any
pediatric physician, the said allegation was patently incorrect, since the records
of the hospital itself would show that the baby was admitted not by the
petitioner but under Dr. Vaishali Roy Srivastava, a consultant pediatric surgeon,
and was assessed the same day by Dr. Roy Srivastava and was referred to Dr.
Vijay Rai (Gastroenterologist). Moreover, the petitioner had all along been under
the care of competent doctors namely, Dr. V.R. Srivastava, Dr. S.C. Tiwari and
others as indicated above. It is further alleged on behalf of the petitioner that,
although the primary allegation against the petitioner was that the petitioner
prescribed a controversial drug, the impugned order dated October 25, 2019
shows that Dr. Vaishali Roy Srivastava was charged with the administration of
the said controversial drug. The charges framed against the petitioner were also
administration of the said controversial drug and a repeat of the notice dated
February 28, 2018 which had been sent to the petitioner.
14. After recording the charges, the respondent no.1‐Council recorded in the
impugned order that the Council then deliberated in camera. It was further
recorded that during the course of deliberations, apart from other points already
noted, it was summed up that, as far as the writ petitioner was concerned, he had
been working in the Department of Gastroenterology in spite of not holding any
specialized qualification in this field of practice.
15. Upon such ‘deliberations’, the Council unanimously observed that the petitioner,
along with other doctors concerned, were guilty of infamous conduct in
professional respect and the name of the petitioner, along with two other doctors,
was removed from the Register of Registered Medical Practitioners, being
maintained by the respondent no.1‐council, for a period of three months from the
date of communication of the order in this respect.
16. The first limb of the argument of the petitioner is, thus, that the respondent no.1
acted beyond jurisdiction in removing the name of the petitioner from the
Register on a charge on which neither any notice was given to the petitioner nor
was the petitioner heard (such charge being that the petitioner had been working
in the Department of Gastroenterology in spite of not holding any specialized
qualification in the field of practice). It is argued that the Apollo Gleneagles
Hospital, despite the petitioner having fully disclosed all his qualifications in his
Curriculum Vitae, deputed the petitioner at the Gastroenterology Department
and as such, there was no fault on the part of the petitioner in suppressing his
qualifications or otherwise. It is argued that the basic principle of natural justice
was violated by punishing the petitioner on a charge which the petitioner was
never confronted with or given any hearing on.
17. It is further argued that the Fundament Right to practice the medical profession,
as guaranteed under Article 19(1)(g) of the Constitution, was violated by the
impugned order. That apart, the petitioner was charged with ‘infamous conduct’
and not medical negligence, which was on a much higher footing than mere
negligence. Infamous conduct, it is argued, was hinted at in Rule 37(iii) of the
Code of Medical Ethics framed by the respondent no.1 itself. In the said
provision, it is indicated that the instances of professional misconduct punishable
therein (although not constituting a complete list of infamous acts which may be
punished by erasure from the Register) were indicated in Rule 39 of the said
Rules. Rule 39 reads as follows:
“39: Offences for which disciplinary action may be taken by the Council are:
(a) Adultery or Improper conduct or association with a patient.
(b) Conviction by Court of Law for offences involving moral turpitude/Criminal
Act.
(c) Misconduct:
The following acts of commission or omission on the part of a physician shall
constitute professional misconduct rendering him/her liable for disciplinary action
(d) Violation of the Regulation:
(i) If he/she commits any violation of these Regulations.
(ii) If he/she does not maintain the medical records of his/her indoor patients
for a period of three years as per regulations 3.1 and refuses to provide
the same within 72 hours when the patient or his/her authorized
representative makes a request for it as per the regulation 3.2.
(iii) If he/shen odt odeis splay the registration number accorded to him/her by
the State Medical Council or the Medical Council of India in his clinic,
prescriptions and certificates etc. issued by him or violates the
provisions of regulation 4.
(e) Sex Determination Tests:
On no account sex determination test shall be undertaken with the intent
to terminate the life of a female foetus developing in her mother’s womb,
unless there are other absolute indications for termination of pregnancy as
specified in the Medical Termination of Pregnancy Act, 1971. Any act of
termination of pregnancy of normal female foetus amounting to female
foeticide shall be regarded as professional misconduct on the part of the
physician leading to penal erasure besides rendering him liable to criminal
proceedings as per the provisions of this Act.”
18. The petitioner, it is argued, did not come within the periphery of any of such
acts.
19. Rule 38, on the other hand, provided for disciplinary action by the respondent
no.1 which are as follows:
“38. Disciplinary Action may be taken by West Bengal Medical Council as
follows:
(i) Censure
(ii) Warning: First warning is not to be recorded in the Registration
Certificate but the subsequent warning is to be recorded in the
Registration Certificate.
(iii) Removal of name of the Registered Practitioner for a specific period upto 3
years or permanently according to the nature of offence and the decision to
be taken by the West Bengal Medical Council.”
20. It is argued that the notice sent to the petitioner at the first instance threatened of
the ultimate punishment of removal of name from the Register, instead of even
giving a hearing or intending to hear the petitioner on the lesser punishments of
censure or warning. This, in itself, reeked of bias.
21. In this context, learned senior counsel cites a judgment reported at (1998) 8 SCC
1 [Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others], wherein it
was inter alia held that an alternative remedy would not operate as a bar in at
least three contingencies, namely where the writ petition has been filed for the
enforcement of any of the Fundamental Rights or where there has been a
violation of the principle of natural justice or where the order or proceedings are
wholly without jurisdiction or the vires of an Act is challenged. The aforesaid
judgment was followed in the next judgment cited by learned senior counsel for
the petitioner, reported at (2007) 9 SCC 593 [POPCORN Entertainment and another
vs. City Industrial Development Corpn. and another].
22. Learned senior counsel thereafter cites a judgment reported at (2019) 2 SCC 282
[S.K. Jhunjhunwala vs. Dhanwanti Kaur and another], wherein it was indicated, by
following the Jacob Mathew’s case, a celebrated judgment in the field, that the
standard of care required by professionals generally, and medical practitioners in
particular, followed from law laid down in Bolam vs. Friern Hospital Management
Committee [(1957) 2 All ER 118 (QBD)]. It was reiterated that the standard of care
is judged in the light of knowledge available at the time of the incident and not
the date of trial. The standard to be applied for judging whether the person
charged has been negligent or not would be that of an ordinary competent
person exercising ordinary skill in that profession. It was not possible for every
professional to possess the highest level of expertise or skills in the branch in
which he practices. As such, the standards of a reasonably competent
practitioner in his field were what were to be applied in adjudicating negligence
of a medical practitioner.
23. Learned senior counsel relies on Kusum Sharma and others vs. Batra Hospital and
Medical Research Centre and others reported at (2010) 3 SCC 480, in particular
paragraph no. 89 thereof, to reiterate the proposition that a medical practitioner
would be liable only where his conduct fell below that of the standards of a
reasonably competent practitioner in his field. It would not be conducive to the
efficiency of the medical profession if no doctor could administer medicine
without a halter round his neck. It was further held that it was our bounden duty
and obligation of the civil society to ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can perform their professional
duties without fear and apprehension.
24. Learned senior counsel next cites a judgment reported at (2009) 12 SCC 78 [Union
of India and others vs. Gyan Chand Chattar], for the proposition that an enquiry is to
be conducted against any person giving strict adherence to the statutory
provisions and principles of natural justice. The charges should be specific,
definite and giving details of the incident which formed the basis of charges. No
enquiry can be sustained on vague charges. Enquiry has to be conducted fairly,
objectively and not subjectively. Finding should not be perverse or unreasonable,
nor should the same be based on conjectures and surmises. There is a distinction
between proof and suspicion. Every act or omission on the part of the delinquent
cannot be misconduct. The authority must record reasons for arriving at the
finding of fact in the context of the statute defining misconduct.
25. Lastly, learned senior counsel for the petitioner cites a judgment reported at
2019 SCC OnLine SC 932 [Maharashtra Chess Association vs. Union of India and
others], wherein it was held by the Supreme Court, inter alia, that the principle,
that the writ jurisdiction of a High Court can be exercised where no adequate
alternative remedies exist can be traced to early times. But this rule requiring the
exhaustion of statutory remedies before the writ will be granted is a rule of
policy, convenience and discretion rather than a rule of law and instances are
numerous where a writ of certiorari has been issued in spite of the aggrieved
party having other adequate legal remedies. The mere existence of alternative
forums, where the aggrieved party may secure relief, does not create a legal bar
on a High Court to exercise its writ jurisdiction. It is only one of the factors to be
taken into consideration by the High Court amongst several others.
26. It is argued that in the event there is an injustice, the writ court cannot shut its
eyes to it.
27. Learned counsel appearing for the respondents‐authorities argues that an
alternative remedy is available to the petitioner under Section 26 of the 1914 Act
as well as under Section 24 of the Indian Medical Council Act, 1956 (hereinafter
referred to as “the 1956 Act”). Rule 27 of the Indian Medical Rules, 1957 make it
amply clear that the provision of Section 24 of the 1956 Act operates as a second
appeal from the appellate jurisdiction exercised under Section 26 of the 1914 Act.
28. It is submitted that the petitioner has come with unclean hands since it has been
pleaded in paragraph no. 39 of the writ petition that no alternative efficacious
remedy is available to the petitioner.
29. Learned counsel for the respondents‐authorities, in particular the respondent
no. 1, argues further that Section 25, read with Section 17, of the 1914 Act
provides that a majority of two‐thirds of a specialized body of people can remove
a medical practitioner from the Register of such Practitioners.
30. The rules framed under Section 33(2)(I)(d) of the 1914 Act, as amended, provides
an elaborate procedure for conducting such enquiries and there is no question of
any bias in that regard. It is further submitted that Form V, under Rule 10 of the
said Rules, provides a format for a notice to be given to the practitioner‐inquestion
under Section 17 or 25 of the 1914 Act, which stipulates that the Council
would consider the charges mentioned in such notice and decide whether or not
they should direct that the practitioner’s name shall not be registered or that his
name be removed from the Register of Registered Practitioners. As such, the
notice given to the writ petitioner was in consonance with the said form and did
not indicate any pre‐meditation in that regard. Learned counsel relies on the
judgment reported at (2014) 5 Supreme Today 735 [Gorkha Security Service vs.
Government of India]. Placing particular reliance on paragraph nos. 12 to 20 of the
said judgment, it is argued that if a notice does not contain the highest
punishment of blacklisting, no punishment could be meted out by blacklisting
the noticee and the notice would be bad. As opposed thereto, in the present case,
the respondent no. 1 has mentioned the highest punishment which could be
given to the petitioner in the notice and as such, the respondent no. 1 could not
be faulted for doing that. A lesser punishment could always be meted out to the
petitioner despite such notice.
31. By relying on the judgment reported at (2003) 12 SCC 578 [State (Union of India)
vs. Ram Saran], it is argued that paragraph no. 8 thereof lays down that the
provision of a special statute is to be strictly followed and such cases cannot be
governed by the general law. As such, it is argued that the appeals provided in
the special statutes‐in‐question ought to have been resorted to by the petitioner.
32. Relying on the judgment reported at (2011) 5 SCC 305 [State of Uttar Pradesh vs.
and others vs. Hirendra Pal Singh and others], it is submitted that where grant of
stay amounts to grant of final relief, such stay ought not to be granted. In this
case, it is submitted that Gazette Notification of the removal of the name of the
petitioner has already been published and as such, the grant of stay would create
many complications.
33. Learned counsel next relies on the judgment reported at (2004) 6 Supreme Today
509 [Management of Krishnakali Tea Estate vs. Akhil Bhartiya Chah Mazdoor Sangh]
for the proposition that an additional fact can be taken if evidence is available on
it, even if no charge was framed to that effect.
34. By relying on the case of Som Datt Datta vs. Union of India and others, reported at
AIR 1969 SC 414, it is argued that reason is not always necessary, if not provided
for in the statute. Since Section 25 of the 1914 Act does not contemplate any
reason being assigned, it could not be said that the impugned order was vitiated
due to lack of reasons. By relying on the third edition of Halsbury’s Laws of
England (Volume 26), the definition of “infamous conduct” was argued by
learned counsel for the respondent no.1. Section 129 of the said volume defines
infamous conduct, which is as follows:
“129. Infamous conduct. Infamous conduct means serious misconduct judged
according to the rules, written and unwritten, which govern the medical profession (g). If
it is shown that a practitioner has done something in pursuit of his profession which
would reasonably be regarded as disgraceful or dishonourable by his professional brethren
of good repute and competence, it is open to the disciplinary committee to say that he has
been guilty of infamous conduct in a professional respect. The question is, not whether
what was done was an infamous thing for anyone else to do, but whether it was an
infamous thing for a medical practitioner to do. All act which is not done in a
professional respect does not come within the definition (h).”
35. In the present case, although the complaint by the patient’s family did not
contain the name of the petitioner specifically, it might not have been possible for
the said complainants to know the complete details of the negligence, amounting
to infamous conduct. It was sufficient, it is argued, that during investigation, the
involvement of the petitioner was found out and a notice was sent indicating the
charge against him. During enquiry, it is argued, other charges came out, for
which the petitioner was punished. Such charges have been categorically laid
down at page 104 of the present writ petition, which is a part of the impugned
order, and the final summing up at page 106 indicates that the charge of not
being qualified, as alleged, was not the sole ground for removal of the name of
the petitioner. Deposition and other factors were also taken into consideration.
36. It is specifically argued that since there is a specialized body in the form of an
appellate forum, this court should not entertain the present application under
Article 226 of the Constitution of India.
37. Learned counsel for the State adopts the same argument as to the writ petition
not being maintainable. In this regard, the judgment reported at (2003) 3 SCC 186
[Cellular Operators Association of India and others vs. Union of India and others], was
referred to.
38. Regarding Whirlpool (supra), learned counsel for the respondent no.1 argues that
the present case does not fall within the exceptions provided therein for
interference under Article 226 despite the existence of alternative remedy. It is
argued that the petitioner was registered with the respondent no. 1‐council and
was bound by its Code of Ethics. As such, the respondent no.1‐council had
jurisdiction to mete out the punishment to the petitioner. The Code of Ethics
relied on by the petitioner itself indicates, in Rule 37(iii) thereof, that the
misconduct indicated therein are not exclusive or comprehensive.
39. As far as fundamental rights are concerned, learned counsel for the respondent
no.1 indicates that clause (6) of Article 19 of the Constitution prohibits the
exercise of such right and such right is not unfettered.
40. It is lastly argued that the violation of natural justice, as alleged, is not codified
but general. In the present case, the statute provides for a specific procedure,
read with the rules‐in‐question, which were followed by the respondent no.1. In
the event of general principles of natural justice clashing with a particular
statute, the statute shall prevail, as in the present case. Thus, it is argued that the
writ petition ought to be dismissed.
41. The first question which crops up in this context is whether this court has
jurisdiction under Article 226 of the Constitution of India to interfere in the
matter at all, in view of the appellate provisions provided in Section 26 of the
1914 Act as well as under Section 24 of the 1956 Act, read with Rule 27, of the
Indian Medical Council Rules, 1957 (hereinafter referred to as “the1957 Rules”).
42. Whirlpool (supra) is a landmark judgment in this context, the principle of which
has also been followed in the POPCORN Case (supra). Paragraph no.15 of
Whirlpool (supra) lays down the three contingencies where alternative remedy
would not be a bar for the constitutional courts to interfere under the writ
jurisdiction. Such three contingencies are:
(a) Where the writ petition has been filed for the enforcement of
any of the Fundamental Rights or;
(b) Where there has been a violation of the principle of natural
justice or;
(c) Where the order or proceedings are wholly without jurisdiction
or the vires of an Act is challenged.
43. The judgment of Maharashtra Chess Association vs. Union of India and others,
reported at 2019 SCC OnLine SC 932, lays down that the mere existence of
alternative forums does not create a legal bar on a High Court to exercise its writ
jurisdiction but is one of the factors to be taken into consideration amongst
several others. The High Court, it was held, must look at the case holistically and
make a determination as to whether it would be proper to exercise its writ
jurisdiction.
44. The present case, thus, has to be tested on such yardsticks as laid down in the
aforesaid judgments.
45. The first ground taken by the petitioner is that the petitioner was removed from
the Register of Registered Medical Practitioners on a charge which was never
communicated to the petitioner, thereby not granting any opportunity to the
petitioner to disprove the said charge. It is further argued that the initial
complaint lodged by the parents of the deceased patient did not name the
petitioner at all.
46. The initial complaint dated May 17, 2017, specifically named Dr. Vaishali Roy
Srivastava and also referred to the members of her unit, including resident
doctors, nursing staff and others, apart from other doctors.
47. Attributing a liberal interpretation to the complaint lodged, since the death of a
little child deserved extra care and caution, it may be construed that the
expression “resident doctors” included the writ petitioner as well. As such, the
non‐mention of the petitioner by name in the complaint might well have been
due to ignorance of the patient’s parents regarding the specific names of all
concerned, which is rightly argued on behalf of the respondent no. 1.
48. However, the communication sent to the petitioner by the respondent no.1 on
February 28, 2018, mentioned primarily the charge that the petitioner had
prescribed to administer a controversial drug, Exelyte, to the baby. It was also
alleged therein that the petitioner did not assess the level of Serum Calcium
before sending the baby for ‘scopy’. The other allegations were that the baby was
admitted to the petitioner’s tertiary care in the Hospital and the petitioner did
not bother to have the baby checked by any pediatric physician. It was further
alleged that the petitioner did not care to find whether the anesthetist concerned
checked the baby prior to sending to ‘scopy’.
49. On such grounds, the said notice directly issued a threat that it would decide
whether or not the respondent no. 1 should direct that the petitioner’s name be
removed from the Register pursuant to Section 17/25 of the Bengal Medical Act,
1914.
50. In this context, it is immediately seen that Section 17 of the 1914 Act has no
applicability in the matter, since the same pertains to persons possessing any of
the qualifications referred to in the Schedule being entitled to be registered. The
said section, as such, relates to registration for the first time and not deregistration.
51. Section 25 is more applicable to the present case, in particular Section 25(a)(ii).
The said provision proceeds on the premise that there was an “infamous conduct
in any professional respect” and provides that, after “due enquiry”, if the person
concerned is found guilty by a majority of two‐thirds of the members present
and voting at the meeting, the person shall be removed from the Register or be
warned.
52. In this context, learned senior counsel for the petitioner has argued that the
allegation against the petitioner does not amount to infamous conduct.
Moreover, the notice‐in‐question did not mention about the lesser punishment of
being warned.
53. In support of such submissions, the petitioner also relied on the Code of Medical
Ethics formulated by the respondent no.1 itself, Section 38 of which provides for
disciplinary action which may be taken by the respondent no. 1. The notice
mentioned the third and maximum action mentioned in Section 38, that is, the
removal of name from the Register for a period up to three years or permanently,
but omitted to mention the first disciplinary action, of censure and the second, of
a first warning to be issued to the practitioner.
54. The petitioner’s further point is that Section 39 of the said Code of Ethics
indicates the offences for which disciplinary action may be taken by the council.
Examples of such offences are, adultery or improper conduct or association with
the patient, conviction by a court of law for offences involving moral turpitude/
criminal acts. The misconduct envisaged in Section 39 pertains also to violations
of the Regulations, not maintaining medical records of the indoor patients for a
period of three years as per regulations, refusal to provide the same within 72
hours when the patient or his/her authorized representative makes a request for
it, not displaying the registration number accorded to him / her in the clinic,
prescription, certificates etc. or violation of Regulation 4 thereof and relating to
sex determination tests. There is substance in the contention of the petitioner that
the “infamous conduct in any professional respect”, since not defined in the 1914
Act, has to be read in the light of pari materia material, as available from the Code
of Medical Ethics framed by the respondent no.1 itself. The high level of
misconduct which would tantamount to infamous conduct, as reflected in
Section 39 of the Code of Ethics, is absent in the present case and as such, did not
confer power on the respondent no. 1 under Section 25(a)(ii) to conduct any
enquiry at all. From the inception, there arose no question of any complaint as
regards negligence and the petitioner was never heard on medical negligence as
well. The only allegation levelled was of infamous conduct on the charges as
formulated in the notice dated February 28, 2018. It is thus palpable that, in any
event, infamous conduct, as contemplated in the statute, was not even alleged by
the respondent no.1 against the petitioner.
55. In this context, the respondent no. 1 has referred to Halsbury’s Laws of England
(third edition), Volume 26, in Section 129 of which the expression “infamous
conduct” was explained. It is seen that such conduct has to be of a level which is
done in the pursuit of the profession of the medical practitioner and would
reasonably be regarded as disgraceful or dishonourable by his professional
brethren of good repute and competence. The question was whether the act was
infamous in the context of the medical practice of the person concerned.
56. In any case, “infamous”, even as per the dictionary meaning, like its counterpart
“famous”, cannot refer to a single deed, unless it is so abominable and
disgraceful that it would bring the entire medical community to disrepute.
“Infamy”, by its very definition, has to be over a period of time to make a person
well‐known for some bad quality or deed. The notoriety and disrepute
associated with the outrageous or shocking act done by the concerned person can
only attribute infamy on a person, in this context, regarding his professional
conduct.
57. The allegation levelled in the notice to the petitioner pertained at best to alleged
medical negligence and could not be elevated to the plane of infamy.
58. As such, the petitioner is correct in arguing that the respondent no. 1 had no
jurisdiction at the outset, to exercise its power under Section 25(a)(ii) of the 1914
Act.
59. The next aspect which is required to be gone into is whether or not the principles
of natural justice were violated in the present case. In this context, the judgment
of Gyan Chand Chattar (supra), cited by the petitioner, assumes relevance. In
paragraph no. 35 of the said judgment, the Supreme Court held that the law can
be summarized that an enquiry is to be conducted against any person giving
strict adherence to the statutory provision and principles of natural justice. The
charges should be specific, definite and giving details of the incident which
formed the basis of the charges. No enquiry can be sustained on vague charges.
An enquiry has to be conducted fairly, objectively and not subjectively. The
findings should not be based on conjectures and surmises, since there is a
distinction between proof and suspicion.
60. In the said reported judgment, the initiation of the enquiry against the
respondent therein appeared to the Supreme Court to be the outcome of anguish
of superior officers as there had been an agitation by the railway staff demanding
the payment of pay and allowances. There was no case of substantial
misdemeanour against the respondent therein except charge 6, which was totally
vague.
61. In the context of the current uproar against medical practitioners in general, on
the slightest pretext, and the resultant backlash being suffered by patients (which
is quite natural) in the patients not being admitted to emergency units readily
and having to undergo several diagnostic tests, sometimes unnecessarily, before
a doctor issues a certificate or a prescription, simply to protect themselves from
public reaction, which has created an unnecessary pressure on the functioning of
the medical practitioners, can be equated with the situation in the reported
judgment of Gyan Chand Chattar (supra).
62. Taken in proper perspective, the judgment of Kusum Sharma (supra) also cited by
the petitioner, in principle numbers VIII and IX of paragraph 89 thereof,
succinctly puts the situation in proper perspective. It is stated therein that it
would not be conducive to the efficiency of the medical profession if no doctor
could administer medicine without a halter round his neck. It was reminded by
the Supreme Court in the said judgment that it is the bounden duty and
obligation of the civil society to ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can perform their professional
duties without fear and apprehension. Such security to the medical professionals,
in turn would ensure proper healthcare, which enures to public benefit. These
aspects also lend a public interest ingredient in the matter, all the more justifying
the interference by this court under Article 226 of the Constitution of India. The
doctors, who are administering professional help to the patients, thereby
virtually discharging a function of the State as guaranteed by the Constitution of
India, being Article 47 of the Constitution, which casts a duty on the State to raise
the level of nutrition and the standard of living and to improve public health, as
well as the right to protection of life as inherent in Article 21 of the Constitution
of India, which has been interpreted several times to mean a healthy and full life,
are entitled to the protection of law for discharging such functions, in the event
the respondent no.1 creates an impediment thereto.
63. Another argument raised by the respondent no.1, that since the petitioner
subjected himself to the respondent no.1 and its rules by registering himself as a
medical practitioner, contains a basic fallacy. There has to be clarity on the
concept of the right to pursue the medical profession. Such a right emanates from
Article 19(1)(g) of the Constitution of India (being the grundnorm of all statutes in
India), which confers on all citizens the right to practice any profession, or to
carry out any profession, trade or business. The right to practice does not
emanate from, or is created by, either the 1914 Act or the 1956 Act. The said Acts
are merely statutes for the purpose of regulating medical practice and do not, by
themselves, confer the right to practice.
64. In the event a person has the necessary qualifications and merit to claim
registration as a medical practitioner under the Register, the respondent no.1 is
bound to register the name of such person; otherwise Article 14 of the
Constitution would be squarely violated.
65. As such, it cannot be claimed by the respondent no. 1 that since the right to
practice is conferred and/or created by the 1914 Act, the petitioner is bound by
the said Act as far as the appellate provisions are concerned.
66. That apart, the judgments cited by the respondent no. 1 on the proposition that
when a statute confers a right, the same has to be strictly followed, does not
concern the present case, since such strict adherence to procedure is confined to
the acts done under the statute. A right of appeal is a creature of statute and is
independent of such procedure and as such, the principle‐in‐question only
governs the actions taken by the respondent no.1 under the statute and not the
preference of an appeal under the said Act.
67. That apart, both Section 24 of the 1956 Act and Rule 27 of the 1957 Rules envisage
appeals on any ground other than that the person concerned is not possessed
with the requisite medical qualifications. In the present case, as evident from the
finding arrived at against the petitioner at page 106 of the writ petition, the
ground for removal of the petitioner from the Register was only that he had been
working in the Department of Gastroenterology in spite of not holding any
specialized qualification in this field of practice. Such allegation falls squarely
within the exceptions enumerated in Section 26 and Rule 27, as mentioned above,
pertaining to a person not possessing the requisite medical qualifications. Hence,
in any event, any appeal under the said provision of the Central Acts and Rules
is automatically ruled out by the provisions of those statutes themselves.
68. The only possible alternative remedy which could be available to the petitioner
was an appeal under Section 26 of the 1914 Act. The 1914 Act contemplates the
State Government as a forum of appeal. Such provision, by itself, defeats the
logic in the argument of the respondent no.1 that the respondent no. 1 is
comprised of people having expertise in the field and their decision being final as
per the contemplation of the statute for such reason. The argument, that this
court ought not to interfere under Article 226 of the Constitution of India with
the decision of such experts, is defeated by the fact that the High Court is
manned by Judicial Officers undergoing a minimum period of legal training and,
at least as perceived, expertise in the field. This is squarely opposed to the ‘State
Government’ as the appellate forum, which would at best be comprised of
bureaucrats, not having such legal training. In such a scenario, it is doubtful as to
whether an appeal to the State Government is an equally efficacious remedy,
particularly in the context of Whirlpool (supra), rather than a writ petition under
Article 226 before this court.
69. Even without such threadbare discussion about appellability of the instant
decision, the said decision reeks of rampant violation of natural justice.
70. Although it has been argued that the decision (at page 106 of the writ petition)
refers to “other points already noted”, the context of the same was not other
reasons for removal of the petitioner’s name from the Register. The exact
expression used in the sentences is that “during the course of deliberations, apart
from other points already noted, it was summed up that:” after which the
charges for removal of the concerned doctors followed. The narrative prior to
such summing up in the impugned order is only comprised of the charges that
were framed against the person concerned and the fact that they were called,
apparently for hearing and then discharged. As such, the expression “other
points already noted”, do not refer to any ground or reason for dismissal but
merely narrated the charges originally formulated against the concerned
physicians. Hence, the only ground on which the writ petitioner’s name was
struck out from the Register was that he had been working in the Department of
Gastroenterology in spite of not holding any specialized qualification in the field
of practice.
71. First, the petitioner did not suppress anything (nor is there any allegation in that
regard within the four corners of the notice or the impugned order) by furnishing
his entire Curriculum Vitae. It was the hospital which, knowing fully well the
qualifications of the petitioner, engaged the petitioner in the Gastro Department,
for which there was no responsibility, let alone fault, at all on the part of the
petitioner.
72. Moreover, the charges which were levelled against the petitioner, both in the
notice dated February 28, 2018 and as narrated in the impugned order dated
October 25, 2019, do not include anywhere the ground that the petitioner had
been working in the Department of Gastroenterology in spite of not holding any
specialized qualification in this field of practice, although that was the sole
ground on which the maximum punishment of de‐registration was meted out to
the petitioner.
73. This itself is a gross violation of the principles of natural justice.
74. Seen from another perspective, the “hearing” which was given to the petitioner
was on the charges originally formulated in the notice against him, which did not
contain the ground on which he was ultimately punished. Hence, the so‐called
hearing given to the petitioner was mere lip‐service to the principle of audi
alteram partem and no hearing worth the name was given at all on the ground for
which the writ petitioner was ultimately punished.
75. That apart, the argument of the respondent no. 1, that the petitioner was not
entitled to any hearing or reasons for the punishment at all, is also erroneous.
The judgment cited in this context related to the Army Act. The principle
governing the disciplined forces has given rise to the jurisprudence on the law
relating thereto. The cardinal principle in such cases is that the alleged offender
has to strictly comply with the directions of his superiors and to maintain
discipline much above the standard of normal citizens, because of the nature of
job they are performing. As such, a judgment on the Army Act, which has been
cited by the respondent no.1, could not operate as a precedent in respect of the
medical council, which is comprised of a body of medical practitioners and do
not have any expertise in the judicial field.
76. The ‘expertise’ argument also vanishes into thin air if we consider the violation
of natural justice in the present case. If the allegation was one of medical
negligence, involving technical issues, undoubtedly the respondent no. 1‐council
would be aided by the expertise of its members to deal with the same. However,
the flimsy single ground on which the petitioner was removed from the Register
does not require any medical expertise but requires jurisprudential expertise,
which medical practitioners are not otherwise expected to have.
77. In such view of the matter, it cannot be argued that the decision of an expert
body should not be interfered with by this court, particularly in view of the gross
violation of natural justice as indicated above.
78. It must further be mentioned that the categorical expression used in Section
25(a)(ii) is that “due enquiry” is a pre‐requisite of a decision by voting. In the
present case, the enquiry held, although giving a pseudo‐opportunity to the
petitioner to be heard, did not give any hearing at all on the ground on which he
was ultimately removed. That apart, the said ground was not even in the control
of the petitioner or the act of the petitioner at all, let alone an infamous conduct
in his professional field. The service required to be rendered as per the
judgments cited by the petitioner, is that of an ordinary professional having
normal skills and not of the highest standard expected from a professional
person of the said field. It was held in Kusum Sharma (supra) that a medical
practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field. There is no
discussion at all and/or material to support the assumption that the petitioner
failed in that regard, let alone committing any infamous act of such a notorious
nature that it would bring his profession to disrepute and justify his removal
from the Register, at the cost of his livelihood and casting an indelible stigma on
the writ petitioner.
79. As it has already been held that the petitioner’s right to practice is not merely a
creation of the 1914 Act but is guaranteed by the Constitution, this court has
ample jurisdiction to look into the violations of natural justice which have taken
place in this case, as indicated above.
80. Clause (6) of Article 19 of the Constitution deserves mention in this regard, since
the same imposes certain fetters to the right guaranteed under Article 19(1)(g). A
mere perusal at Clause (6) indicates that nothing in sub‐clause (1) (g) shall affect
the operation of any existing law in so far as it imposes, or prevent the State from
making any law imposing reasonable restrictions on the exercise of the right
conferred by the said sub‐clause. The expression “reasonable” has to be read into
the actions of the respondent no.1 in the present case, which actions virtually
defy all logic and seems a merely impromptu reaction on the part of the
respondent no.1 to find out a scapegoat in the writ petitioner to absolve
themselves of liability on the face of public uproar in respect of medical
negligence which, in general, is at present afflicting the State of West Bengal.
81. Moreover, it is provided in clause (6) of Article 19 that the imposition of
restrictions by the State law has also to be in the interest of the general public.
82. Although, undoubtedly, the concerned ethics are for the benefit and in the
interest of the general public, it is also in the interests of the general public that
they are not deprived of proper medical assistance and care altogether, due to a
reasonable backlash from the doctors, in the event medical practitioners are
victimized irrationally on a regular basis and suffer unwarranted onslaught from
the public and/or, at the behest of the public, by their own council.
83. Borrowing the language of Kusum (supra), it would not be conducive to the
efficiency of the medical profession if no doctor could administer medicine
without a halter round his neck and it is the bounden duty and obligations of
civil society to ensure that medical professionals are not unnecessarily harassed
or humiliated so that they can perform their professional duties without fear and
apprehension. The said principle has also to be factored in while interpreting the
expression “interests of the general public” as embodied in Clause (6) of Article
19 of the Constitution of India. Read in such light, the provisions of the 1914 Act
cannot confer unfettered right on the respondent no.1 to make scapegoats out of
innocent medical practitioners merely to avoid public criticism.
84. In view of the aforesaid discussions, the writ petition succeeds.
85. Accordingly, W.P. No.21498(W) of 2019 is allowed, thereby setting aside the
order dated October 25, 2019 passed in the extraordinary meeting of the West
Bengal Medical Council (respondent no.1), in so far as the same relates to the
writ petitioner. Accordingly, the writ petitioner is absolved from the charges
levelled against him and the removal of the name of the petitioner from the
Register of Registered Medical Practitioners is revoked. The rights of the
petitioner to practice in the hospital concerned as well as anywhere else, to which
he is otherwise entitled as per such registration, are revived from the date of this
order. The respondent no.1 is directed to publish in appropriate Gazette
Notifications and in all other modes, by which the removal of the name of the
petitioner from the Register was published, to inform the general public that the
said decision of removal has been revoked and the petitioner’s name is reinstated
in the Register of Registered Medical Practitioners. Such exercise shall be
completed by the respondent no.1 within three weeks from date.
86. Due to the unnecessary harassment, stigma and loss of goodwill suffered by the
petitioner, the respondent no. 1‐council shall pay costs of Rs. 50,000/‐ to the writ
petitioner within a fortnight from date.
87. Urgent certified website copies of this order, if applied for, be made available to
the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )
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