On Wednesday, the Calcutta High Court set aside an order passed by the West Bengal Medical Council stating that even though the Council has medical expertise, it may not have jurisprudential expertise.

The Court remarked, 

"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 jurisprudential expertise."

The Court set aside an order of the Council through which, it had removed the Petitioner, Dr. Subhash Chandra Tiwari, from the Register of Registered Practitioners, in the exercise of its powers under Section 25 of the Bengal Medical Act, 1914, for infamous conduct.

The petitioner's registration got canceled on the finding that he had been working in the Department of Gastroenterology in spite of not holding any specialized qualification in this field of practice.

The Court after due examination facts noted that the "hearing" which was given to the petitioner was on the charges originally formulated in the notice against him.

The charges didn't have the ground on which he was ultimately punished.

The complaint against him was lodged for having prescribed the administration of a controversial drug, named Exelyte, to a four months old infant, which ultimately led to his demise.

The notice served to him was based on the averments made in the complaint and not on the ground on which he was ultimately expelled.

It is to be noted that the Petitioner had fully disclosed all his qualifications in his Curriculum Vitae and yet the hospital concerned deputed the petitioner at the Gastroenterology Department.

The Court thus after observation remarked,

"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…That apart, the said ground was not even in the control of the petitioner or the act of the petitioner at all, let alone infamous conduct in his professional field."

The Court in delivering its judgement placed reliance on Union of India & Ors. v. Gyan Chand Chattar, (2009) 12 SCC 78, for the proposition that an inquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice.

The Court thus stated, 

"The charges should be specific, definite and giving details of the incident which formed the basis of charges. No inquiry can be sustained on vague charges. An inquiry has to be conducted fairly, objectively and not subjectively."

The Court described the charge of "infamous conduct" as a charge much graver than medical negligence.

It thus accordingly said, 

""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 allegation leveled in the notice to the petitioner pertained at best to alleged medical negligence and could not be elevated to the plane of infamy…respondent no. 1 had no jurisdiction at the outset, to exercise its power under Section 25(a)(ii) of the 1914 Act."

For the above judgement, reliance was placed on Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors., (2010) 3 SCC 480.

The Court held, 

"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."

The Court thus citing the above observations, set aside the impugned order passed by the Medical Council.

It remarked, 

"[Respondent's] 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."

The Judgement has been delivered by JUSTICE SABYASACHI BHATTACHARYYA ON 27-11-2019:

Read Judgement Here:

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