Delhi High Court
M K Gupta vs Dr Ram Avtar Garg & Ors. on 23 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd October, 2018
+ LPA 863/2015 & CM APPL. 28932/2015
M K GUPTA ..... Appellant
Through: Mr. Nishant Datta, Adv.
Versus
DR RAM AVTAR GARG & ORS. ..... Respondents
Through: Mr. Arun K. Sharma, Adv. for R-1.
Mr. T. Singhdev with Mr. Tarun
Verma, Advs. for R-2/MCI.
Mr. Praveen Khattar, Adv. for
R-3/DMC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
Rajendra Menon, Chief Justice (Oral)
1. Seeking exception to an order passed by the learned writ court on
10.07.2015 in W.P.(C) 4220/2011 titled Dr. Ram Avtar Garg v. Medical
Council of India & Ors., this appeal has been filed under Clause 10 of the
Letters Patent.
2. The appellant herein Shri M.K. Gupta had made a complaint before
the Delhi Medical Council against the writ petitioner - Dr. Ram Avtar Garg
to the effect that a child patient was brought to the casualty of Holy Family
Hospital, Okhla, New Delhi around 8:00 p.m. on 04.12.2009. The child was
sick for more than three months with various complaints. The child was
admitted, examined by a resident paediatrician who was on call duty,
treatment was prescribed in the casualty and ultimately the child was
admitted to Room No.324 at 08:30 p.m. The child was examined and finally
it is stated that child died and he was declared dead at 01:08 a.m. on
06.12.2009. Shri M.K. Gupta filed a complaint with regard to negligence
and improper treatment before the Delhi Medical Council which heard four
doctors including the appellant Dr. Ram Avtar Garg and finally disposed of
the matter by issuing a warning to Dr. Ram Avtar Garg and one Dr. Sachin
Jain.
3. Being aggrieved by the warning issued on 07.12.2010, respondent
No.2 filed an appeal against the order of the Delhi Medical Council before
the Medical Council of India. The Ethics Committee considered the matter
and passed the impugned order dated 18.05.2011 enhancing the punishment
of warning to three months removal of name from the Indian Medical
Register as well as the State Medical Register. Challenging this
enhancement of punishment passed on 18.05.2011 by the Medical Council
of India, the writ petition in question was filed by Dr. Ram Avtar Garg and
the writ court allowed the writ petition, went into the merit of the matter, the
treatment granted and exonerated the doctor of the culpability and quashed
not only the punishment but also held that the doctor has not committed any
negligence or misconduct in the treatment. Aggrieved by this order passed
by the learned writ court, this writ petition has been filed.
4. On behalf of the petitioner and the Medical Council of India,
primarily two contentions have been raised. The first one was that on
07.12.2010 the Delhi Medical Council has issued warning to the doctor -
appellant herein finding him culpable, responsible for negligence and
improper treatment resulting in death of the child. This order passed on
07.12.2010 was never challenged. It had attained finality and Dr. Ram
Avtar Garg - the appellant herein did not impugn this order. It was only
when on 18.05.2011 that Medical Council of India enhanced the punishment
that the second order dated 18.05.2011 was challenged meaning thereby that
the appellant herein i.e. Dr. Ram Avtar Garg only challenged the
enhancement of punishment. It is argued that while considering the
question of enhancement of punishment, the learned writ court committed
grave error and illegality in entering into the question of culpability on merit
and exonerating the doctor by examining various technical and factual
aspects when the original order of punishment dated 07.12.2010 was never
challenged. That apart, it was argued that if Dr. Ram Avtar Garg had any
grievance with regard to the original order passed on 07.12.2010 holding
him guilty, he should have challenged it by filing an appeal under Clause 8.8
of the Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002 (hereafter referred to as "the Regulations") before the
appropriate Council and this having not been done, the writ petition directly
challenging the enhancement of punishment dated 18.05.2011 was not
maintainable.
5. Learned counsel appearing for the respondent - Dr. Ram Avtar Garg
tried to indicate that it was the hospital where the child was admitted and the
treatment granted. The doctor could not be singled out for imposing
punishment and on merit of the matter he tried to justify the order of the
learned writ court.
6. Having considered the submissions made, we are of the considered
view that in this case once the order holding Dr. Ram Avtar Garg culpable
and issuing him a warning was passed by the Delhi Medical Council on
07.12.2010 and when this order was not challenged by Dr. Ram Avtar Garg
and it had attained finality then when challenge was made to the appellate
order passed by Medical Council of India on 18.05.2011, only enhancing the
penalty, the learned writ court could have only considered the question of
enhancement of penalty and could not go into the merits of the matter and
examine the culpability of the doctor with regard to the merit of the
allegation. In entering into the culpability of the matter, while considering
the enhancement order by the appellate authority, namely, Medical Council
of India on 18.05.2011 the learned writ court has committed a grave error
and acted in excess of jurisdiction available. That apart, once concurrent
findings with regard to culpability were recorded both by the Delhi Medical
Council and the Medical Council of India in their orders passed on
07.12.2010 and 18.05.2011, the learned writ court in exercise of its limited
jurisdiction under Article 226 of the Constitution of India could not act as a
further appellate authority and go into the question of culpability on merit,
particularly, when remedy was available to the petitioner Dr. Ram Avtar
Garg under Clause 8.8 of the Regulations.
7. In our considered view, the learned writ court has misdirected itself,
acted in excess of jurisdiction and interfered into the matter which was not
permissible for the reasons recorded hereinabove. Accordingly, we allow
this appeal quashing order dated 10.07.2015 passed by the writ court.
However, we grant liberty to Dr. Ram Avtar Garg, the original writ
petitioner and the respondent herein to challenge the orders passed on
07.12.2010 or 18.05.2011 if permissible in accordance with the statutory
provision before the statutory authority.
CHIEF JUSTICE
OCTOBER 23, 2018/kks V. KAMESWAR RAO, J
