Dr. Analdeb Basu vs State Of West Bengal And Others
2023 Latest Caselaw 4107 Cal

D/L. 27.
July 5, 2023.
 MNS.


                                  WPA No. 15494 of 2023

                                  Dr. Analdeb Basu
                                         Vs.
                           State of West Bengal and others

                      Mr. Debajyoti Datta,
                      Mr. Sabyasachi Roy

                                     ... for the petitioner.

                      Mr. Saibalendu Bhowmik,
                      Mr. Biplab Guha,
                      Mr. Subrata Bhattacharyya,
                      Mr. Raj Sekhar Basu,
                      Mr. Rajat Dhar

                                   ...for the respondent no. 3.

Affidavit-of-service filed in Court today be

kept on record.

Learned counsel appearing for the

petitioner contends that although there was a

direction by the Division Bench of this Court,

granting opportunity to the petitioner to move

before the Appellate Forum, which was to take up

the appeal for consideration and decide the same

on merit and in accordance with law, the

Appellate Forum, while passing the impugned

order pursuant to the direction of the Division

Bench, merely reiterated the finding of the first

Forum mechanically by upholding the order of the

first Forum against the petitioner without

assigning any reason independently.

It is submitted that since all the documents

were not considered either by the first Forum or

the Appellate Authority, the matter may be

relegated to the first Forum for the purpose of re-

adjudication on the issues involved.

Heard learned counsel for the parties,

upon which it is seen that the Appellate Forum,

undoubtedly, reaffirmed the order of the first

Forum mechanically without assigning any

independent reason whatsoever.

From the impugned order of the Appellate

Forum, it is seen that the same is comprised

merely of the narrative of the facts of the case

and the arguments of parties.

Only in paragraph 4 of the said judgment

and order, the appellate forum, in a cryptic

manner, records that considering the facts and

circumstances and also taking into account the

relief sought by the appellant, it was in consensus

with the order passed by the West Bengal

Medical Council on February 17, 2023, which was

assailed before the Appellate Forum.

The order of the Division Bench in MAT

541 of 2023 dated April 20, 2023, clearly shows

that the Division Bench was of the opinion that

interim protection was to be granted to the

present writ petitioner, who was the appellant

therein, during pendency of the appeal before the

Appellate Forum.

In paragraph 5 of the said judgment, it was

recorded that both the appeal and the writ petition

pending before the said court were disposed of

by directing the West Bengal Medical Council to

communicate a copy of the report of the

P.E.Committee and the copies of the depositions,

which were annexed to the report and other

material documents, which were placed before

the Committee. The entire set of documents,

along with the entire minutes of the meeting, be

furnished to the appellant within three days from

the date of receipt of the server copy of the order.

The appellant was granted ten days' time to

prefer an appeal to the State Government from

the date on which all the documents were

furnished to the appellant in terms of the above

direction.

The appropriate authority of the State

Government was directed to take up the appeal

for consideration and decide the same on merit

and in accordance with law within a period of

fifteen days, after affording an opportunity of

personal hearing to the appellant.

Till orders were passed by the State

Government in terms of the direction of the

Division Bench, the impugned order of the

Medical Council dated February 17, 2023

directing removal of the name of the petitioner

from the Register of Registered Medical

Practitioners was to remain stayed and the West

Bengal Medical Council was directed to restore

the name of the petitioner in the said Register

within two days from the date of receipt of the

server copy of the Division Bench order and to

publish the same in the Gazette.

Although other paraphernalia were

complied with, the order of the Appellate

Authorities is palpably vitiated, being entirely

bereft of all reasons. There is, in fact, no

reflection in the impugned order of the Appellate

Authority as regards the documents and minutes

which were placed before the said authority, apart

from a mere narrative, recording the respective

cases of the parties.

In fact, there was no independent

application of judicial mind by the Appellate

Authority at all to the materials produced before

the said authority and/or before the Medical

Council.

As such, the impugned order passed by

the Appellate Authority, that is, the Principal

Secretary, Department of Health and Family

Welfare, Swasthya Bhawan, dated June 21,

2023, cannot survive judicial scrutiny.

Hence, WPA No. 15494 of 2023 is

allowed, thereby setting aside the impugned

order dated June 21, 2023 passed by the

Appellate Authority, being the Principal Secretary,

Department of Health & Family Welfare,

Government of West Bengal.

The interim order of stay granted by the

Division Bench in MAT 541 of 2023 vide its order

dated April 20, 2023 is hereby revived. The order

dated February 17, 2023 passed by the West

Bengal Medical Council, directing removal of the

name of the writ petitioner from the Register of

Registered Medical Practitioners shall remain

stayed and the restoration of the petitioner's

name in the said Register shall continue till

disposal of the appeal afresh by the appellate

authority pursuant to the direction of this Court.

While rehearing the appeal and deciding

the same afresh, the Principal Secretary shall

advert to all the materials and evidence produced

before it by both sides as well as the materials

produced before the First Forum and give the

parties fresh opportunity, if necessary, to produce

further materials which are germane to the issue

and re-decide the challenge of the petitioner in

accordance with law upon giving adequate

opportunity of hearing to the parties.

The entire exercise, it is expected, shall be

completed within eight weeks from the date of

communication of this order to the Principal

Secretary, Department of Health & Family

Welfare, Swasthya Bhawan.

There will be no order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)