Dr.Anuj Mittal v. The Medical Council Of

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.04.2015

CORAM:

THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN Writ Petition No.11993 of 2015 and M.P.Nos.1 and 2 of 2015 Dr.Anuj Mittal ... Petitioner vs.

1. The Medical Council of India, represented by its Secretary, Pocket-14, Sector-8, Dwarka Phase-I, New Delhi - 110 077.

2. Madhya Pradesh Medical Council, represented by its Registrar, No.F-7, Sanchi Complex, Bhopal - 426 016, Madhya Pradesh.

3. Vinayaka Missions Medical College, Represented by its Dean/Principal, Karaikal, Puducherry.

4. Arubadai Veedu Medical College & Hospital, represented by its Dean/Principal, Cuddalore Main Road, Kirumampakkam, Puducherry - 607 402.

... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus, call for the records relating to the order passed by the First respondent dated 16.03.2015 bearing reference no.MCI-211(2)(621)(CBI)/2012-Ethics 166025 and the consequential order passed by the second respondent in MPMC Regn.1/1-D/2015/1990, dated 31.03.2015, in so far as it relates to the petitioner and quash the said orders as being illegal, arbitrary, without jurisdiction and violative of the fundamental rights of the petitioner and to consequently forbear the 1st and 2nd respondents, their officers, employees, subordinates or any other persons claiming or acting under them from in any manner interfering with the right of the petitioner to practice his profession, including any post of medical teacher or any post of a similar nature in any university or medical college.

For Petitioner : Mr.Rajakalifulla Senior Counsel for Mr.Jayendra Krishnan For Respondents : Mr.V.P.Raman for R1

O R D E R

Mr.V.P.Raman, learned counsel takes notice for the first respondent. In view of the order passed herein, this Court is of the view that notice to the other respondents, including the second respondent, is not necessary.

2. The petitioner is a registered medical practitioner.

3. On 08.12.2012, the Central Bureau of Investigation, Anti Corruption Branch sent a communication to the Medical Council of India (for short 'the MCI'), to the following effect :- "A consolidated list shows 131 doctors who are not in the actual faculty payroll of the institute, had attended one or more of the three MCI inspections, as if they were regular faculty members of the medical college. (List attached)"

4. The said communication dated 08.12.2012 also requested the MCI to take suitable action against the doctors mentioned therein. The relevant passage from the communication is extracted in this regard:- "The Medical Council of India may initiate such action as deemed fit against the 131 doctors as per list attached along with copies of the declaration forms submitted by them during Inspection."

5. Pursuant to the aforesaid communication, a Show Cause Notice was issued by the MCI to the doctors mentioned therein to show cause as to why disciplinary action as permissible in terms of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (Shortly, MCI Regulations) should not be initiated against them. The petitioner gave his reply to the said Show Cause Notice.

6. While so, the impugned order dated 16.03.2015 came to be passed by the MCI in respect of the petitioner, while passing a common order in respect of other doctors. The relevant portion of the impugned order reads as follows:- "The Ethics Committee also noted that some of the doctors in the above mentioned list have submitted reply of their Show Cause Notice in written. The same were perused by the Ethics Committee but the Committee did not agree with the same and unanimously observed

that physical appearance of respective medical professional/doctor is required to hear their side. Therefore, the Ethics Committee after detailed deliberation decided to take suo-motto action against the above said medical professional/doctor who have not appeared before the Ethics Committee till date. The Ethics Committee subsequent to the deliberation is of the considered opinion that the conduct of the above said teachers/doctors doing practice in two medical colleges at the same time constitutes towards professional misconduct.

Henceforth, pursuant to the powers granted under Clause 8.2.of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, the Ethics Committee directs as under:- 1.The name of respective medical professional/doctor be suspended from the IMR to practice medicine for a period of 3 months. The respective State Medical Council may kindly implement the decision accordingly, and also;

2.He/She be debarred from undertaking any post of medical teacher or any post of similar nature in any university or medical college for a period of Five Years."

The above said decision of the Ethics Committee has been approved by the Executive Committee of the Council at its meeting held on 20.11.2014 while considering the minutes of the Ethics Committee. In view of the above, you are requested to take further necessary action in the matter accordingly under intimation to this office.

This issues with the approval of the competent authority."

7. The second respondent passed the consequential order dated 31.03.2015.

8. The learned counsel for the petitioner would submit that the official respondents failed to consider the explanation offered by the petitioner. It is further submitted that when the doctors whose names are found in the similar impugned order gave separate explanations, the MCI should not have passed a common order. The delinquency of each and every doctor should be considered independently based on his explanation. The learned counsel would further submit that before

passing the impugned order, an opportunity of personal hearing should have been afforded to the petitioner. The impugned order is nothing but the reproduction of the similar common order passed in respect of the other doctors. Hence, the impugned order is violative of principles of natural justice and the same deserves to be set aside.

9. On the other hand, the learned Standing Counsel for MCI has sought to sustain the impugned order. It is submitted that the doctors failed to appear before the Committee and therefore, the Committee has no option, except to pass the impugned order, like the common order passed in respect of other Doctors.

10. I have considered the submissions made by the learned counsel on either side.

11. A reading of the impugned order would go to show that it is a non-speaking order. The petitioner and similarly placed doctors gave individual explanations and therefore, MCI/Ethics Committee should have considered those explanations separately and should have passed separate orders in respect of each and every doctor. Though the impugned order is a separate order in respect of the petitioner, it is the reproduction of the similar common order and it does not disclose the application of mind on the part of MCI as to consideration of the explanations submitted by the petitioner.

12. Hence, I am of the view that MCI fell in error in passing impugned order, like the common order passed in respect of 90 doctors and as such, the same is liable to be interfered with.

13. Accordingly, the impugned order dated 16.03.2015 passed by the first respondent and the consequential order dated 31.03.2015 passed by the second respondent are quashed and the matter is remanded back to MCI to consider the matter afresh and to pass an appropriate order While doing so, the MCI shall consider the explanation offered by the petitioner and thereafter, shall pass the order on the same. The learned counsel for the petitioner sought personal hearing as provided under clause 8.2 of the MCI Regulations. The MCI shall also furnish the documents, which they rely on for passing the ultimate order. It is needless to state that before passing such order, MCI shall also give an opportunity of personal hearing to the petitioner as per clause 8.2 of the MCI Regulations.

It is made clear that if the petitioner fails to appear for personal hearing in spite of being given an opportunity for the same or if he expresses his unwillingness to take part in personal hearing, the MCI can proceed further and pass orders based on the explanation and other materials provided by the petitioner. All the issues, including merit as well as jurisdiction of MCI are left open The petitioner is at liberty to raise all issues, including jurisdiction and the MCI can decide the same on merits and in accordance with law and more particularly, with reference to the MCI Regulations.

14. The writ petition stands allowed to the extent indicated above. No costs. Connected miscellaneous petitions are closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar gg To

1. The Secretary, Medical Council of India, Pocket-14, Sector-8, Dwarka Phase-I, New Delhi - 110 077.

2. The Registrar, Madhya Pradesh Medical Council, No.F-7, Sanchi Complex, Bhopal - 426 016, Madhya Pradesh.

3. The Dean/Principal, Vinayaka Missions Medical College, Karaikal, Puducherry.

4. The Dean/Principal, Arubadai Veedu Medical College & Hospital, Cuddalore Main Road, Krumampakkam, Puducherry - 607 402.

+1cc to Mr.M. Jayendra Krishnan, Advocate, S.R.No.23966 PUR(CO) EU(11/06/2015) W.P.No.11993 of 2015