Dr. Manoj Bansal vs Medical Council Of India & Anr

This order shall lead to final disposal of WP.12352.18, WP.12451.18 & WP.15635.18.

As the facts and the issue raised in this batch of writ petitions being same, they are analogously heard and decided by this common order.

Petitioners are doctors registered with the Madhya Pradesh Medical Council under the Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987

(referred to as “Adhiniyam 1987â€) and the Indian Medical Council Act, 1956 (referred to as Act of 1956). On being found guilty of negligence in

treatment of Baby Gargi their registration with the Madhya Pradesh Medical Council is temporarily erased from the State Medical Register for a

period of three months w.e.f. 01.06.2018 to 31.08.2018 (in case of petitioners Dr. Manoj Bansal and Dr. Devendra Gupta) and for a period of two

years (in case of petitioner-Dr. Seema Shihvare from 01.06.2018 to 31.05.2020) by order dated 29.05.2018 passed by the Registrar, Madhya Pradesh

Medical Council.

As the issue raised confines to competency of the Registrar to pass the impugned order, the only relevant fact is the death of Baby Gargi on

25.01.2013 in MASCOT Hospital, Sindhi Colony Road, Gwalior, wherefor these doctors who were Superintendent, Consultant Pediatrician and the

Anesthesiologist, were proceeded against for their alleged negligence. Their conduct was examined by the Ethics Committee, constituted under the

provisions of Adhiniyam, 1987 and the Act of 1956.

It is contended on behalf of the petitioners that under Adhiniyam, 1987, the Council, constituted under Section 3 thereof, alone is conferred with the

power to prohibit entry on direct removal from State Medical Register under Section 15 of Adhiniyam, 1987 whereas the Registrar is not conferred

such powers. Therefore, the impugned order is without jurisdiction.

The respondent Medical Council on its turn has supported the action. It is contended that against the decision under Section 15 of Adhiniyam, 1987,

the person aggrieved has remedy of appeal under Section 18 thereof. Accordingly, it is contended that the petitioners being aggrieved of the action

under Section 15 can avail the remedy of appeal. The petitions, it is urged, deserve to be dismissed.

It is next contended that the Registrar has not passed the impugned order but has forwarded the order of Ethics-cum-Disciplinary Committee duly

approved by the Commissioner. The Ethics and Disciplinary Committee, it is urged, was constituted by the Commissioner and Ex Officio Chairman of

the Council in exercise of its powers conferred under Section 29(2) of Adhiniyam, 1987 and in furtherance to the provisions contained under Section

17 of Adhiniyam, 1987. It is further contended that by virtue of Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 2015 published in Madhya Pradesh

Rajpatra dated 19.01.2016, in Section 4 of Adhiniyam, 1987 in sub-section (1) for Clause (c) and in sub-section (2) “Commissioner, Medical

Education, Madhya Pradesh in place of Director of Medical Services†having been substituted, the entire action at the instance of Commissioner,

Medical Education of constituting an Ethics and Disciplinary Committee and the approval of its findings duly communicated by the Registrar cannot be

termed to be without jurisdiction. On these contentions, respondent Medical Council seeks dismissal of the petitions.

Considered the rival contentions.

Adhiniyam, 1987, received the assent of the President on 10.07.1990, first published in the “Madhya Pradesh Gazette (Extra-ordinary) dated

24.07.1990, was enacted to consolidate and amend the laws relating to registration of practitioners of medicine in Madhya Pradesh and to make

provisions for Constitution of the Medical Council for the State and for matters connected therewith.

Section 2(a) defines “Councilâ€​ to mean “Madhya Pradesh Ayurvigyan Parishad established under Section 3â€​.

Section 3 of Adhiniyam envisages incorporation of State Medical Council. It stipulates:

“3. Incorporation of State Medical Council.- (1) The State Government shall, as soon as may be, establish, by notification a medical council for the

state w.e.f. such date as may be specified therein.

(2) The Council shall be a body corporate by the name of the Madhya Pradesh Ayurvigyan Parishad and shall have perpetual succession and a

common seal with power to acquire and hold property, both moveable and immovable, and subject to the provisions of this Act to transfer any property

held by it and to contract and do all other things necessary for the purposes of its constitutions and may sue and be sued in its corporate name:

Provided that the council shall not transfer any property held by it by way of sale, mortgage, lease or otherwise or borrow money from any person or

agency without the previous permission of the State Government.â€​

Section 4 of Adhiniyam makes provision regarding constitution of Council. It envisages:

“4. Constitution of Council.

(1) The Council shall consist of following members, namely: -

(a) Five members elected from amongstthemselves by persons enrolled on the State Medical Register;

(b) Five members to be nominated bythe State Government as follows(i) one representative of the Indian Medical Association, Madhya Pradesh State

Branch out of the panel of five persons to be proposed by the State Branch of the said association;

(ii) one member from amongst themember of medical faculties of the Universities in the State;

(iii) two members from amongstthe Madhya Pradesh Health Services holding class-I Post out of whom one shall be a Lady Doctor; (c) Director

Medical Services Madhya Pradesh.

(2) The Director of Medical Servicesshall be the President of the Council and the Dean shall be the Vice President of the Council.

(3) The name of every person elected ornominated under sub section (1) shall be published in the gazette and the members shall enter and shall, for

the purposes of their term, be deemed to have entered upon their respective office with effect from the date of such publication.

(4) The Vice President shall performsuch duties and exercise such powers of the President as may be assigned to him by the President.â€​

Pertinent it is to note that by virtue of Madhya Pradesh Ayurvigyan Parishad (Sanshodhan) Adhiniyam, 2015, “Director Medical Services, Madhya

Pradesh†has been substituted by “Commissioner, Medical Education, Madhya Pradeshâ€. The consequence whereof is that w.e.f. 19.01.2016,

the Commissioner, Medical Education, Madhya Pradesh is now the member of the Council in place of Director, Medical Services and is its President.

The State Medical Council has not been incorporated and the entire powers and function of the Council is governed by Section 29 of Adhiniyam, 1987,

which is a transitional provision.

Sub-section (1) of Section 29 of Adhiniyam, 1987 stipulates that:

“(1) The State Government may for bringing the council into being in accordance with the provisions of this Act appoint the director of medical

services to be a special officer to conduct election of council to be established for the first time after the commencement of this Act.â€​

Whereas, sub-section (2) of Section 29 provides for that:

“(2) Till the council is established under sub section-1 of section (5), the special officer appointed under sub section (1) shall be deemed to be

council established under sub section (1) of section-3 for the purposes of this Act and shall exercise the powers and discharges the function of the

council.†Presently, since the State Medical Council is not constituted, it is the Director of Medical Services, who is a designated “Special

Officer†under sub-section (1) of Section 29 of the Adhiniyam is deemed council under sub-section (1) of Section 3 as per sub-section (2) of Section

29 of the Adhiniyam.

In “State of Bombay Vs. Pandurang Vinayak and others [AIR 1953 SC 244]â€​ it is held by their Lordships:

“5. .....When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and

bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory

fiction and it should be carried to its logical conclusion. [Vide Lord Justice James in Ex parte Walton : In re Levy(1)]. If the purpose of the statutory

fiction mentioned in section 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was

construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952

AC 109(B), Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and

observed as follows:-

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences

and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it........ The statute says that

you must imagine a certain state of affairs; it does not (1) 17 Ch. D.746, at P. 756, (2) [1952] A.C. 109. say that having done so, you must cause or

permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

The corollary thus of declaring the provisions of section 25of the Bombay General Clauses Act applicable to the repeal of the ordinance and of

deeming that ordinance an enactment is that wherever the word ""ordinance"" occurs in the notification, that word has to be read as an enactment.â€​

Furthermore, it is observed in “Commissioner of Income-Tax, Delhi Vs. S. Teja Singh [AIR 1959 SC 352]†that it would be proper and even

necessary to assure all these facts on which alone the fiction can operate. It is held:

“6. .......It is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all

those facts on which alone the fiction can operate.......â€​

In the case at hand, the legislature, till establishment of the Council under sub-section (1) of Section 5, deems the Special Officer appointed under sub-

section (1) of Section 29, i.e. the Director of Medical Services, to be the Council established under sub-section (1) of Section 3 of Adhiniyam, 1987

and there being no amendment in Section 29, in the event of the council being not established, this Court is of the considered opinion that the Director

of Medical Services, who is designated as Special Officer shall be the Council, who alone is conferred with the powers stipulated under Sections 15,

16 and 17. In other words, presently, it is the “Special Officer†i.e. the Director of Medical Services who can exercise the power to prohibit entry

or to direct removal from State Medical Register (as per Section 15) or cause alteration in State Medical Register (as per Section 18) on exercising

the powers under Section 17 which envisages that:

“17. Procedure in enquiries.

For the purpose of any enquiry under section-12, 15 or 16 the council or any committee authorized by rules made under section-29 shall be deemed to

be a court within the meaning of the Indian Evidence Act, 1872 (No.1 of 1872), and shall exercise all the powers of a commissioner appointed under

the public servant (enquiries) Act, 1850 (No.37 of 1850), and such enquiries shall be conducted, as far as may be, in accordance with the provisions of

section-5 and section-8 to 20 of the public servant (enquiries) Act, 1850 (No. 37 of 1850).â€​

Evidently, in the present case, it is the Commissioner, Medical Education, Madhya Pradesh, who is one of the members constituting a Council under

Section 3, has exercised the powers and functions of the Special Officer, which isde hors the provisions contained in the Adhiniyam, 1987. Therefore,

such an act of the Commissioner, Medical Education, Madhya Pradesh cannot be approved, being illegal, deserves to be and is hereby quashed. The

consequential actions thereon are also set aside. The Council or the Special Officer as the case may be would be at liberty to take action in

accordance with law.

The writ petitions are disposed of finally in above terms. There shall be no costs.