Full Text
HIGH COURT OF DELHI
Date of Decision: 09th December, 2022 IN THE MATTER OF:
AMIT KUMAR AGARWAL AND ORS ..... Appellants
Through: Mr. Amit Kumar, Senior Advocate with Mr. Jai Bansal, Mr. Abhishek Verma, Advocates
Through: Mr. Nitinjya Chaudhry, Senior Panel Counsel for UOI
Mr. T Singhdev, Mr. Abhijit Chakravarty, Ms. Michelle Biakthansangi Das, Mr. Bhanu Gulati, Advocates for R-7/NMC
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The present LPA arises out of an Order dated 02.09.2022 passed by the learned Single Judge in W.P.(C) 7566/2022 whereby the same was dismissed on the ground that an Order of the Ethics and Medical Board can only be subjected to an appeal by a ‘medical practitioner’ or a ‘professional’.
2. The facts in brief, leading to the instant appeal are as under:i. It is stated that in the year 2017, the Appellant lost his nephew as a result of Haplo Stem Cell Transplant, a clinical trial carried out by Respondent No.4/ Dr. Satyender Katewa at Respondent No.3/ Manipal Hospital, Jaipur. ii. It is stated that the Appellant herein filed a complaint before Rajasthan State Medical Council on 12.03.2018, and before the Medical Council of India (MCI)/National Medical Commission (NMC) on 27.03.2018. Furthermore, an FIR was also registered by the Appellant at Bidyadhar Nagar PS, Jaipur, against Respondent No.4. iii. Upon the failure of the Rajasthan State Medical Council to take action, the MCI vide letter dated 14.08.2018 asked the Rajasthan State Medical Council to begin proceedings, failing which the MCI would take over. iv. As the Rajasthan State Medical Council still did not act on the complaint filed by the Appellant, the MCI was compelled to step in and, vide Order dated 13.12.2018, directed the Rajasthan State Medical Council to provide it with all the necessary documents pertaining to the complaint. v. During the pendency of the said complaint before the MCI, the Rajasthan State Medical Council vide Order dated 05.03.2021, declared that the Respondent No. 4 was not guilty. vi. This Order passed by the Rajasthan State Medical was challenged before the Ethics and Medical Registration Board of the MCI/NMC, which dismissed the appeal inter alia on the ground that nothing unethical seemed to have been done by the Physician, and further that Respondent No. 3 was well-equipped to carry out the transplant. vii. Thereafter, vide Order dated 05.04.2021, the MCI/NMC dismissed the complaint of the Appellant. viii. This order was challenged before the NMC vide letter dated 05.04.2021. However, due to the inaction of the NMC in addressing the grievance of the Appellant, the Appellant filed W.P. (C) No. 7566/2022 before this Court. ix. The learned Single Judge vide Order dated 02.09.2022 dismissed W.P. (C) No. 7566/2022 on the ground that an appeal against the Order of the Ethics and Medical Registration Board cannot be preferred by a ‘complainant’ and can only be filed by a ‘medical practitioner’ or ‘professional’. It was further observed that the National Medical Commission Act, 2019 does not confer any right on a complainant to file appeals. x. The complainant has, thereafter, filed this instant appeal.
3. The short question of law which arises for consideration in this case is whether an appeal against an order of the Ethics and Medical Registration Board is maintainable by the complainant before the National Medical Commission or not.
4. The facts of the case which are relevant for deciding this legal issue is that the Appellant had filed a complaint against Respondent No.4/ Dr. Satyender Katewa before Rajasthan State Medical Council stating that his nephew was suffering from thalassemia major and Respondent No. 4 induced the family to opt for Haplo Stem Cell Transplant treatment by charging an exorbitant amount of money without taking an informed consent from the family. The complaint notes that Respondent No.4, by doing so, had committed professional misconduct. The Ethics and Medical Registration Board by its order dated 31.03.2021, after considering the complaint of the Appellant, held that Respondent No.4 had conducted the Haplo Stem Cell Transplant treatment as per the universally accepted standard protocol in a well equipped hospital.
5. It is stated that the National Medical Commission has not been adjudicating the appeal of the Appellant against the Order dated 31.03.2021 passed by the Ethics and Medical Registration Board. Aggrieved by the inaction on the part of the NMC, the Appellant herein filed W.P.(C) 7566/2022 praying for an appropriate writ, direction or Order in the nature of a Mandamus directing the Respondent/National Medical Council to decide the representation/appeal of the Petitioner by affording opportunity of hearing to the petitioners.
6. The learned Single Judge vide Order dated 02.09.2022 has rejected the writ petition stating that only a medical practitioner aggrieved by the decision of the Ethics and Medical Registration Board can file an appeal to the Commission.
7. Mr. Amit Kumar, learned Senior Advocate for the Appellants, has taken this Court through the various provisions of the National Medical Commission Act, 2019 (hereinafter referred to as 'the Act') and has contended that appeals are maintainable before the National Medical Commission from the orders of the various Autonomous Boards, and that Section 30(4) of the Act must be read harmoniously with the provisions of the Act. He has further stated that Section 30(4) of the Act cannot be restricted and should be read in a way which would enable even the complainant to prefer an appeal against the order of the Ethics and Medical Registration Board. The relevant provisions which have been referred to by the learned Senior Advocate for the Appellants read as under:- “22. Meetings, etc., of Autonomous Boards. —(1) Every Autonomous Board shall meet at least once a month at such time and place as it may appoint. (2) All decisions of the Autonomous Boards shall be made by majority of votes of the President and Members. (3) Subject to the provision of Section 28, a person who is aggrieved by any decision of an Autonomous Board may prefer an appeal to the Commission against such decision within sixty days of the communication of such decision. *****
27. Powers and functions of Ethics and Medical Registration Board.— (1) The Ethics and Medical Registration Board shall perform the following functions, namely:— (a) maintain National Registers of all licensed medical practitioners in accordance with the provisions of Section 31; (b) regulate professional conduct and promote medical ethics in accordance with the regulations made under this Act: Provided that the Ethics and Medical Registration Board shall ensure compliance of the code of professional and ethical conduct through the State Medical Council in a case where such State Medical Council has been conferred power to take disciplinary actions in respect of professional or ethical misconduct by medical practitioners under respective State Acts;
(c) develop mechanisms to have continuous interaction with State Medical Councils to effectively promote and regulate the conduct of medical practitioners and professionals;
(d) exercise appellate jurisdiction with respect to the actions taken by a State Medical Council under Section 30. (2) The Ethics and Medical Registration Board may, in the discharge of its duties, make such recommendations to, and seek such directions from, the Commission, as it deems necessary. *****
30. State Medical Councils.— (1) The State Government shall, within three years of the commencement of this Act, take necessary steps to establish a State Medical Council if no such Council exists in that State. (2) Where a State Act confers power upon the State Medical Council to take disciplinary actions in respect of any professional or ethical misconduct by a registered medical practitioner or professional, the State Medical Council shall act in accordance with the regulations made, and the guidelines framed, under this Act: Provided that till such time as a State Medical Council is established in a State, the Ethics and Medical Registration Board shall receive the complaints and grievances relating to any professional or ethical misconduct against a registered medical practitioner or professional in that State in accordance with such procedure as may be specified by the regulations: Provided further that the Ethics and Medical Registration Board or, as the case may be, the State Medical Council shall give an opportunity of hearing to the medical practitioner or professional concerned before taking any action, including imposition of any monetary penalty against such person. (3) A medical practitioner or professional who is aggrieved by any action taken by a State Medical Council under sub-section (2) may prefer an appeal to the Ethics and Medical Registration Board against such action, and the decision, if any, of the Ethics and Medical Registration Board thereupon shall be binding on the State Medical Council, unless a second appeal is preferred under sub-section (4). (4) A medical practitioner or professional who is aggrieved by the decision of the Ethics and Medical Registration Board may prefer an appeal to the Commission within sixty days of communication of such decision." (emphasis supplied)
8. It is contended by the learned Senior Advocate for the Appellants that Section 22(3) of the Act provides for appeal to the National Medical Commission and the same does not restrict the right of appeal of any person and there is no reason why right of appeal under Section 30(4) of the Act must be restricted only to a medical practitioner or professional and not to a complainant. This Court is unable to agree with the submissions made by the learned Senior Advocate for the Appellant.
9. The Ethics and Medical Registration Board is an Autonomous Board and Section 22(3) of the Act provides for an appeal by an aggrieved person against the decision taken by an Autonomous Board to the National Medical Commission. However, this appeal is subject to Section 28 of the Act which deals with permission for establishment of new medical colleges. Section 27(1)(d) of the Act deals with the appellate jurisdiction in respect of the actions taken by State Medical Council under Section 30 of the Act.
10. It is the contention of learned Senior Advocate for the Appellants that when Section 22(3) of the Act prescribes for an appeal by any person who is aggrieved by a decision of an Autonomous Board, which includes Ethics and Medical Registration Board, then Section 30(4) of the Act cannot restrict an appeal from the Ethics and Medical Registration Board to the National Medical Commission to one instituted by a medical practitioner or professional.
11. Per contra, Mr. T Singhdev, learned Counsel for the NMC, submits that Section 22(3) of the Act has to be read harmoniously. He states that it would be against the mandate of Section 30(4) of the Act if a liberal interpretation is given to include any person to file an appeal against an order of the Ethics and Medical Registration Board.
12. Learned Counsel for the NMC states that the instant complaint was filed before the 2019 Act was promulgated and the complaint was primarily filed under the Indian Medical Council Act, 1956. He states that the Rajasthan Medical Council by an Order dated 05.03.2021 in independent proceedings had rejected the complaint of the Appellant and the present appeal was being treated as an independent complaint by the Medical Council of India since the Rajasthan Medical Council was not dealing with the complaint and the same was being dealt with by the Ethics Sub- Committee. He states that under the National Medical Commission Act, 2019, while dealing with the misconduct of a medical practitioner or professional, an appeal from the Ethics and Medical Registration Board is restricted only to a medical practitioner or professional and that there are other remedies under the law available to a complainant, but an appeal under the Act to the Commission from the Order of the Ethics and Medical Registration Board is not available.
13. Heard Mr. Amit Kumar, learned Senior Advocate for the Appellants, Mr. Nitinjya Chaudhry, learned Senior Panel Counsel for Union of India, Mr. T Singhdev, learned Counsel for the Respondent No.7/National Medical Commission, and perused the material on record.
14. The principal contention of learned Senior Advocate for the Appellants is that Section 22(3) of the Act provides for an appeal by any aggrieved person against the decision of an Autonomous Board to the Commission. Section 30(4) of the Act again restricts filing of an appeal from an order of the Ethics and Medical Registration Board only to a medical practitioner or professional. Chapter V of the National Medical Commission Act, 2019, deals with Autonomous Boards. Section 16 of the Act reads as under:-
15. Section 17 of the Act deals with the composition of Autonomous Boards and Section 22 of the Act deals with the meetings of the Autonomous Boards. Section 22(3) of the Act provides for an appeal to a decision of the Autonomous Board to any person who is aggrieved by any decision of the Autonomous Board to the Commission.
16. Section 30 deals with State Medical Councils and the powers conferred on State Medical Council to take disciplinary action in respect of any professional or ethical misconduct by a registered medical practitioner or professional. Section 30(3) of the Act provides for an appeal from an order passed by any State Medical Council while dealing with a complaint for taking disciplinary action against the medical practitioner or professional to the Ethics and Medical Registration Board. This appeal is also restricted to a medical practitioner or professional who is aggrieved by the disciplinary action sought to be taken against him by the State Medical Council. Section 30(4) of the Act provides for a further appeal by a medical practitioner or professional who is aggrieved by an order of the Ethics and Medical Registration Board which entertained the appeal of the medical practitioner or professional from the order of the State Medical Council. Section 30 of the Act, is, therefore, specific and deals with the disciplinary action to be taken against professional or medical practitioner for any misconduct committed under the National Medical Commission Act, 2019 whereas Section 22(2) of the Act deals with a decision taken by an Autonomous Board.
17. Since Section 30 of the Act is a special provision dealing with a disciplinary action against the medical practitioner or professional for any medical misconduct, the law regarding reconciling two provisions which may be overlapping with each other is well settled by the Apex Court and has been discussed in terms of the principle of harmonious construction.
18. In Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., AIR 1958 SC 255, the Apex Court has observed as under:-
19. In Jagdish Singh v. Lt. Governor, (1997) 4 SCC 435, the Apex Court has observed as under:- "7... It is a cardinal principle of construction of a statute or the statutory rule that efforts should be made in construing the different provisions, so that, each provision will have its play and in the event of any conflict a harmonious construction should be given. Further a statute or a rule made thereunder should be read as a whole and one provision should be construed with reference to the other provision so as to make the rule consistent and any construction which would bring any inconsistency or repugnancy between one provision and the other should be avoided. One rule cannot be used to defeat another rule in the same rules unless it is impossible to effect harmonisation between them. The well-known principle of harmonious construction is that effect should be given to all the provisions, and therefore, this Court has held in several cases that a construction that reduces one of the provisions to a “dead letter” is not a harmonious construction as one part is being destroyed and consequently court should avoid such a construction.. " (emphasis supplied)
20. In Commercial Tax Officer, Rajasthan v. Binani Cements Ltd. & Anr., (2014) 8 SCC 319, the Apex Court has observed as under:-
39. In J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. [J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170: (1961) 3 SCR 185], this Court has clarified that not only does this rule of construction resolve the conflicts between the general provision in one statute and the special provision in another, it also finds utility in resolving a conflict between general and special provisions in the same legislative instrument too and observed that: (AIR pp. 1174-75, paras 9-10)
21. In Kalyan Dombivali Municipal Corporation v. Sanjay Gajanan Gharat & Anr., 2022 SCC OnLine SC 385, the Apex Court has observed as under:-
37. It could thus be seen that it is more than wellsettled that the court has to avoid the interpretation which will result in head-on clash between two sections of the Act. When one section of an Act is not in a position to bring out the legislative intent, recourse will have to be made to other sections of the statute for gathering the legislative intent. An attempt should be made to see to it that the effect must be given to parts of the statute even if they may, on first blush, appear to be conflicting. One provision of the Act has to be construed with reference to other provisions in the Act, so as to make a consistent enactment of the whole statute. An attempt should be made of avoiding any inconsistency or repugnancy either within a section or between two different sections.
38. It has further been held that if the court has a choice between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, such an interpretation will have to be avoided. The court should avoid a construction which would reduce the legislation to futility. A broader interpretation which would bring about an effective result, will have to be preferred. Applying this principle, we are of the considered view that subsection (9) of Section 2, Sections 39A and 56 of the MMC Act will have to be read in reference to each other. They cannot be read in isolation. "
22. It is well settled that a special provision would always prevail over a general provision applying the principles of 'generalia specialibus non derogant'. In CIT v. Shahzada Nand & Sons, (1966) 3 SCR 379, the Apex Court, while discussing the application of the newly amended Section 34(1)(a) of the Indian Income Tax Act, 1922, and Section 34(1-A) of the same legislation, observed as under:
23. In J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., (1961) 3 SCR 185, the Apex Court made a very categorical observation on harmonious construction between a special and general enactment in the same legislation. The same reads as under:
10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that clause 5(a) has no application in a case where the special provisions of clause 23 are applicable.”
24. If the argument of the learned Senior Counsel for the Appellant is accepted and is held that any person aggrieved by an order of the Ethics and Medical Registration Board can file an appeal to the Medical Council then Section 30(4) of the Act becomes otiose. It is a well settled principle of law that each Section is enacted/legislated for a specific purpose and the Courts cannot interpret a provision to make it nugatory. It is further settled law that effort should be made to ensure that each provision has its play and is harmoniously construed to iron out any repugnancy or inconsistency that exists between two provisions in the same enactment.
25. In view of the above, Section 30 of the Act is a special provision dealing only with disciplinary actions taken against a medical practitioner or professional for ethical and professional misconduct and restricts the right to appeal from an order of the Ethics and Medical Registration Board only to medical practitioners or professional. Section 22(3) of the Act would not apply in case of professional misconduct.
26. In view of the above, this Court does not find any infirmity with the Order passed by the learned Single Judge dismissing the writ petition.
27. Accordingly, the appeal is dismissed, along with all the pending applications.
SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J DECEMBER 09, 2022