Dr. Yash Nigam vs Delhi Medical Council
2004 Latest Caselaw 662 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner is an Orthopaedics Doctor and is aggrieved by the order dated 23.06.2003 passed by the Delhi Medical Council (for short, `DMC'), the respondent herein whereby the petitioner has been debarred from medical practice for a period of six wee s from the date of the said order.

2. The matter raised in issue is the jurisdiction of the respondent to proceed against the petitioner since it is the contention of the petitioner that he not being registered with DMC, the respondent Council has no jurisdiction to proceed on disciplinary issue against the petitioner. Medical Council of India (for short, `MCI') was not made a party to the present petition, but this petition was heard along with WP (C) No. 5089/2003, which has also been filed by the petitioner herein in which MCI is imple ded as respondent No. 2. Thus, submissions were heard on behalf of MCI by Mr. Maninder Singh even in the present matter.

3. The undisputed facts are that the petitioner herein passed as M.S. Orthopaedics from S.N. Medical College, Agra, Uttar Pradesh and completed his Ph.D. from Central Research Institute of Traumatology and Orthopaedics Moscow (Russia). The petitioner is registered with MCI as registered practitioner.

4. One Mrs. Pushpa Soin, who was operated on by the petitioner in respect of knee joint problem on 10.04.2001, made a complaint against the petitioner. It is this complaint which has given rise to the impugned order.

5. In order to appreciate the contours of the controversy, it would be necessary to consider provisions of the Indian Medical Council Act, 1956 (hereinafter to be referred to as, `IMC Act') and Delhi Medical Council Act, 1997 (hereinafter to be referred t as,`DMC Act'). The provisions of Section 15(1) of IMC Act require a person holding adequate medical qualifications as per schedule of the Act to enroll himself on any State Medical Register. Section 21 of IMC Act refers to the Indian Medical Register, which is to contain names of the persons who are for the time being enrolled on any State Medical Register and who possess the recognised medical qualifications. Section 22 requires copies of the State Medical Registers to be sent to the MCI for facilitting entry into the Indian Medical Register. Section 24 empowers the MCI to remove the name of a person from the Indian Medical Register. The petitioner herein registered with MCI in the year 1986.

6. The problem has arisen not only in this matter but in other matters giving rise to various disputes on account of the fact that all the States of the country have not provided for a State Act. Insofar as Delhi is concerned, the Act came into being only in the year 1997 and was notified and published in the Gazette on 22.08.1997.

7. The DMC Act refers to two terminologies in respect of the doctors, which are `medical practitioner' or `practitioner' and `registered medical practitioner'. These two terms are defined in the provisions of Sections 2(7) and 2(14) of the DMC Act. The s me are as under :-

'' 2. Definitions.- ... ... ... ... ...

(7)`Medical practitioner' or `practitioner' means a person who is engaged in the practice of modern scientific system of medicine and all its branches and has qualifications as prescribed in the First, Second or Third Schedule to the Indian Medical Council Act, 1956 (102 of 1956); ... ... ... ... ... .

(14)`registered practitioner' means a medical practitioner having registerable qualification as prescribed in the Indian Medical Council Act, 1956 (102 of 1956) whose name is, for the time being, entered in the register, but does not include a person whose name is provisionally entered in the register;''

8. The definition of `register' is given under Section 2(13) of the DMC Act, which is as under :-

''2.(13) `register' means the register of medical practitioners prepared or deemed to be prepared and maintained under this Act;''

9. A reading of the aforesaid provisions would show that for a doctor to be a registered practitioner within the meaning of DMC Act, his name has to be entered in the register of the medical practitioners maintained under the said Act.

10. Section 10 of DMC Act provides for powers, duties and functions of the Council. Sub-section (a) of Section 10 requires the Council to maintain a register for registration of medical practitioners. This would imply that once a medical practitioner is entered on the register, he becomes a registered practitioner. Sub-sections (e) and (f) of Section 10 authorizes the Council to exercise such powers and perform duties as are laid down in DMC Act and to receive complaint from the public against misconduct or negligence by a medical practitioner. This would imply that the complaint can be received by DMC not only in respect of a registered practitioner, but in respect of even a medical practitioner. 11.Section 15 of DMC Act refers to preparation and maintenance of a register of medical practitioners. It is Section 21 of DMC Act which gives power to DMC for disciplinary action including removal of name from the register. The relevant provisions is Sub-section (2) of Section 21, which is as under :-

''21. Disciplinary action including removal of names from the register.- . (2) If a registered practitioner has been, after due inquiry held by the Council or by the Executive Committee in the prescribed manner, found guilty of any misconduct by the Council or the Executive Committee, the Council may-

(a) issue a letter of warning to such practitioner; or

(b) direct the name of such practitioner- (i) to be removed from the register for such period as may be specified in the aforesaid direction; or

(ii) to be removed from the register permanent

Explanation.- For the purpose of this section a registered practitioner shall be deemed to be guilty of misconduct if -

(a) he is convicted by a criminal court for an offence which involves moral turpitude and which is cognizable within the meaning of the Code of Criminal Procedure, 1974 (2 of 1974), or . (b)in the opinion of the Council his conduct is infamous in relation to the medical profession particularly, under any Code of Ethics prescribed by the Council or by the Medical Council of India constituted under the Indian Medical Council Act, 1956 (102 of 1956) in this behalf.'' A reading of this provision would, thus, show that the Council has an authority to proceed only against a registered practitioner. The question of the deletion of his name would only arise if his name is on the State Register.

12. A reading of the aforesaid provisions, in my considered view, leaves no manner of doubt that what is envisaged is that first the name of a medical practitioner has to be entered into the State Register where after he becomes a registered practitioner a d the doctor becomes subject to the jurisdiction of DMC only on being so registered.

13.The aforesaid does not imply that there is no authority to deal with the matter of such misconduct or disciplinary issue in case a doctor operates in Delhi and is not registered with DMC. If such a doctor is registered with any other State Medical Council, then the complaint is liable to be referred to such State Medical Council where the doctor is registered. This may be done directly or through MCI. However, it is not necessary to deal further in this issue in view of the fact that the Hon'ble Supreme Court is ceased with the issue of appropriate directions and this is one of the issues to be considered by the Hon'ble Supreme Court in WP (C) No.317/2000 titled `Malay Ganguly v. Medical Council of India and Ors.'.

14. In the present case, the petitioner applied for registration with U.P. State Medical Council on 16.06.2003. However, the petitioner claims not to have received any response to the same as yet. It may be noted that this attempt of the petitioner to ragister himself with U.P. State Medical Council has arisen after the present complaint has been dealt with.

15. It is the contention of learned counsel for the petitioner that the petitioner should be either subject to jurisdiction of U.P. State Medical Council or MCI. A query was posed to learned counsel for the petitioner that when the petitioner was not registered or had not even applied with U.P. State Medical Council when the present complaint arose, how could the said Medical Council have jurisdiction in respect of this complaint. On this query being posed, learned counsel for the petitioner fairly concludes that in such a case, MCI can look into the complaint.

16. The petitioner is registered with MCI and, thus, there is no difficulty in MCI examining the complaint against the petitioner, especially since the petitioner was not registered with the State Medical Council as on the date when the complaint arose or the operation was performed.

17. Learned counsel for MCI has pointed out that by subsequent Regulations notified on 26.05.2004, provision has been made for appeal from the order of the State Medical Council to MCI. However, IMC Act also contains a provision under Section 24(2) for a peal to the Central Government from an order of MCI. As to whether there would be a second appeal in matters where the disciplinary authority is the State Medical Council is not for this Court to determine at this stage of time. Learned counsel for MCI states that possibly, the Hon'ble Supreme Court may be looking into this matter. This is so since in the present case the petitioner admits to the jurisdiction of MCI and, in fact, really cannot have any dispute about the said jurisdiction. Learned counsel further states that MCI is willing to look into the complaint against the petitioner through its disciplinary body de hors the impugned order dated 30.07.2003.

18. I am, thus, of the considered view that since the petitioner was not registered with DMC, DMC could not have proceeded against the petitioner and the complaint made against the petitioner was liable to be referred to MCI for necessary disciplinary act on, if any. The impugned order dated 30.07.2003 is accordingly quashed and DMC is directed to forward papers to MCI to examine the complaint against the petitioner and proceed in accordance with law.

19. One other incidental issue, which has cropped up, is as to what would be the position of doctors, who may be predominantly practicing in Delhi, but may be registered with other State Medical Council. As noticed here-in-above, really speaking, this issue is also before the Hon'ble Supreme Court. The observations have been made by the Hon'ble Supreme Court in the Order dated 05.09.2003 in Malay Ganguly's case (supra) in the following terms :-

'' Other question which requires consideration is if a medical practitioner is registered in one State and practise in some other State which State Medical Council can take appropriate action for negligence committed by him/her.''

20. Be that as it may, in case the respondent is of the view that the petitioner is predominantly practicing in Delhi and is bound to be registered in Delhi, it is always open for the respondent to proceed in accordance with law in respect of the same for securing registration in Delhi. This would suffice in the present case since no order has been passed by the respondent in this behalf so as to call for any adjudication by this Court.

21. The writ petition is allowed in the aforesaid terms leaving the parties to bear their own costs.