Dr. Analdeb Basu vs West Bengal Medical Council & Ors

Dr. Analdeb Basu Vs. West Bengal Medical Council & Ors.

Mr. Debajyoti Datta Mr. Arijit Das Mullick ... For the Appellant

Mr. Saibalendu Bhowmick Mr. Biplab Guha Mr. Subrata Bhattacharjee Mr. Rajsekhar Basu Mr. Rajat Dahr Ms. Srilekha Chattopadhyay ... For the W.B.M.C.

Mr. Tapan Kumar Mukherjee, learned senior advocate Ms. Debdooti Dutta ... For the State respondent

Mr. Subrata Bhattacharyya Ms. Shipra Santra Mr. Indranil Dutta ... For respondent no. 3

1. This intra-Court appeal is directed against the

order dated 20th March, 2023 passed in WPA 5439 of 2023

by which the learned Single Bench declined to grant any

interim order as prayed for by the appellant. The appellant

challenged an order dated 17th February, 2023 passed by

the West Bengal Medical Council by which the name of the

appellant was removed from the Register of Registered

Medical Practitioners maintained by the West Bengal

Medical Council for a period of six months under Section

25(a)(ii) of the Bengal Medical Act, 1914. The said order

further stated that in terms of Section 26 of the said Act an 2

appeal lies against the said order to the Government.

2. The short issue which falls for consideration

in this appeal is whether the appellant is entitled for an

interim protection till the writ petition is heard or in the

event the appellant should be directed to file an appeal to

the Government or till the appeal is disposed of. On

perusal of the order dated 17th February, 2023, we find that

no reasons have been assigned as to why the Medical

Council found the appellant guilty of infamous conduct in

professional respect leading to removal of his name from the

Register of Registered Medical Practitioner for a period of six

months. Therefore, we issued an interim direction directing

the Medical Council to place the entire file concerning the

issue and, accordingly, the learned Advocate for the Medical

Council has placed the entire file from which it is seen that

based on a complaint given by the family of the deceased

patient, the Medical Council took up the matter for enquiry

and had referred the matter to the P.E. Committee and the

Committee consisting of four members and the Registrar of

the Medical Council being the Convenor. In the original file

the minutes of the meeting of the committee finds place and

the Committee has found the appellant guilty of

professional misconduct and recommended charge sheet to

be laid against him.

3. It is the submission of the learned advocate

appearing for the Medical Council that when the Bengal

Medical Act, 1914 does not stipulate that the Medical 3

Council has to assign reasons while removing the name of

the appellant from the Register of the Registered Medical

Practitioner, the Medical Council cannot be compelled to

give reasons, more particularly, when it was a case of

medical negligence and the Chairman and the members of

the P.E. Committee considered the entire matter and had

found the appellant guilty of misconduct in professional

respect. As pointed out earlier, the order dated 17th

February, 2023 communicated to the appellant does not

state as to why the appellant has been found guilty of

infamous conduct in professional respect. The charge

sheet, which was directed to be filed, is based upon the

finding recommended by the P.E. Committee. Therefore,

we are of the view that the findings need to be

communicated to the appellant so that the appellant will be

made aware of the basis of which he was found guilty and

also what laid to the recommendation of the Committee for

issuing charge sheet. Until and unless the minutes of the

meeting of the Committee are communicated to the

appellant, the appellant will be at a loss to understand as

to what was the basis for initiating disciplinary action

against him. Therefore, we are of the view that the

Medical Council should communicate the minutes of

the meeting of the P.E. Committee to enable the

appellant to question the correctness of the said report

which ultimately lead to the order of punishment dated

17th February, 2023. So far as the issue as to whether 4

the appellant could have challenged the order dated

17th February, 2023 in a writ petition, we are of the

view that the appellate remedy provided under the

Bengal Medical Act, 1914 is an efficacious remedy and

since the disputed questions of fact are involved, it is

advisable for the appellant to avail such appellate

remedy as the case cannot be decided based on

affidavits in a petition under Article 226 of the

Constitution of India.

4. Therefore, we are of the view that the

appellant should be relegated to the appellate remedy.

As rightly pointed out by the learned advocate for the

appellant that already two months have elapsed and

the appellant's name has been removed from the

Register of the Registered Medical Practitioner and in

the event, the appellant has to file an appeal to the

State Government or this intra-Court appeal or the writ

petition is to be heard, the period of punishment would

expire and the entire proceedings will become

infructuous. We are conscious of the fact that if the

appellant has to be relegated to avail the appeal

remedy, the appeal cannot be allowed to be rendered

infructuous by efflux of time and, therefore, the

appellant is required to be granted interim protection

till the appeal is heard and disposed of. Furthermore, 5

we find that the P.E. Committee enquired into the

complaint after 1½ years after the incident and this is

also one more reasons which has convinced us that the

appellant should be granted interim protection while

relegating the appellant to the appeal remedy.

5. In the result, both the appeal and the

writ petition stand disposed of by directing the West

Bengal Medical Council to communicate a copy of the

report of the P.E. Committee and the copies of the

depositions which are annexed to the report and other

material documents which were placed before the

Committee. The entire set of documents along with the

entire minutes of the meeting be furnished to the

appellant within three days from date of receipt of the

server copy of this order. The appellant is granted ten

days time to prefer an appeal to the State Government

from the date on which all the documents are

furnished to the appellant in terms of the above

direction. The appropriate authority of the State

Government is directed to take up the appeal for

consideration and decide the same on merit and in

accordance with law within a period of fifteen days

after affording an opportunity of personal hearing to

the appellant. Till orders are passed by the State

Government in terms of the above direction within the 6

time stipulated by this Court, the order dated 17th

February,2023 directing removal of the name of the

appellant from the Register of Registered Medical

Practitioners shall remain stayed and the West Bengal

Medical Council is directed to restore the name of the

appellant in the Register of the Registered Medical

Practitioners within a period of two days from the date

of receipt of the server copy of this order and such

restoration shall be published in the Gazette with a

rider that this is subject to the outcome of the appeal

to be filed before the Government against the order

dated 17th February, 2023.

6. We make it clear that we have not gone

into the merits of the matter and it is left open to the

appellant to canvas all points in the appeal.

7. Consequently, the connected application

also stands disposed of.

8. The original file, which was produced

before this Court for inspection, is returned back to the

learned advocate appearing for the Medical Council.

(T. S. Sivagnanam) Acting Chief Justice

(Hiranmay Bhattacharyya, J.) 7