Dr.S.Sundararajan Vs. 1.The Medical Council of India, - Court Judgment

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

23. 07.2014 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.11577 of 2014 and M.P.(MD)Nos.1 and 2 of 2014 Dr.S.Sundararajan : Petitioner Vs. 1.The Medical Council of India, Rep. by its Deputy Secretary, Pocket-14, Sector-8, Dwarka, New Delhi-110 077. 2.Ethics Committee, Medical Council of India, Rep. by its Chairman, Pocket-14, Sector-8, Dwarka, New Delhi-110 077. : Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records of the respondents in connection with the impugned order passed by the first respondent in No.MCI/211(2)/(48) CBI-25/2013 Ethics/06294, dated 08.05.2014 and MCI/211(2)(48) CBI-25/13 Ethics/118290, dated 07.07.2014 and quash the same. !For Petitioner : Dr.S.Sundararajan party-in-person ******** :ORDER

****** The ethics proceedings initiated by the Medical Council of India on the basis of CBI report is challenged in this Writ Petition by a Radiologist based at Madurai, primarily on the ground that the Council has no jurisdiction to initiate any such action against registered medical practitioners, invoking the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. BACKGROUND FACTS:

2. The petitioner, after completing his M.B.B.S. Degree from Madurai Medical College, has enrolled his name on the rolls of Tamil Nadu Medical Council on 24.04.1990. Subsequently, the petitioner completed his P.G. Degree in M.D.Radiology. The petitioner served as Assistant Professor in Radiology in the State of Karnataka and thereafter, he joined Arupadai Veedu Medical College and Hospital, Pondicherry as Associate Professor in the department of Radiology. The petitioner was promoted as Professor in the department of Radiology and he worked in the said capacity till 31.07.2011. Thereafter, he left the institution and started his own Scan Centre (Karunai C.T. Scan Centre) at Madurai.

3. While so, the Central Bureau of Investigation conducted inspection at Arupadai Vedu Medical College and Hospital, Pondicherry. The CBI officials found that the petitioner was only a name lender and he never worked as a member of the faculty. The CBI registered a case against the institution. The CBI appears to have submitted a report to the Medical Council of India to initiate appropriate proceedings against the concerned medical officers. The Medical Council of India, on receipt of the said report, issued a notice to the petitioner, dated 08.05.2014 to show cause as to why action should not be taken against him under the provisions of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The petitioner was directed to appear before the Ethics Committee at 10.30 a.m., on 16 May, 2014.

4. The petitioner, vide his reply dated 13.05.2014, requested the Medical Council of India, to provide him relevant documents, so as to enable him to submit a reply. The petitioner failed to appear before the Ethics Committee. Thereafter, another notice was issued by the Medical Council of India dated 07.07.2014, calling upon the petitioner to appear before the Ethics Committee at 10.30 a.m, on 18 July, 2014. The petitioner, immediately, sent a reply on 14.07.2014, reiterating his earlier contention that unless relevant documents are given, he would not be in a position to submit a reply. The petitioner, thereafter, filed this Writ Petition, challenging the proceedings initiated by the Medical Council of India. SUBMISSIONS:

5. The petitioner, who appeared in person, contended that the Medical Council of India has no authority to initiate proceedings, by invoking the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (hereinafter referred to as ".the Ethics Regulations".). The petitioner further contended that it is only the State Medical Council, empowered to initiate proceedings against Medical Officers, like him. The petitioner, by placing reliance on the interim order granted by the Principal Bench, dated 12 June, 2014 in W.P.Nos.15173 to 15177 of 2014 and M.P.Nos.1 to 1 of 2014, contended that under similar circumstances, the Principal Bench of this Court was pleaded to grant an interim stay by forming a prima facie opinion that the Medical Council of India is only an appellate authority and as such, it is not proper on its part to initiate proceedings under the provisions of the Ethics Regulations. THE ISSUE:

6. The core question that arises for consideration is as to whether the Ethics Committee of the Medical Council of India is entitled to initiate proceedings against the petitioner under the provisions of Ethics Regulations. ANALYSIS:

7. According to the petitioner, he joined Arupadai Veedu Medical College and Hospital, Pondicherry, on 27.01.2006 and worked originally as Associate Professor and later as Professor in Radiology till 31.07.2011. However, the enquiry conducted by the Central Bureau of Investigation and the documents seized by the Agency proved that the petitioner was only a name lender. The report of the CBI found in the typed set of papers shows that as many as 29 doctors including the petitioner were working elsewhere and they were mere name lenders, insofar as Arupadai Veedu Medical College was concerned. The CBI, in its report, contended that the name of the petitioner and others were not figured in the attendance register maintained by the institution. Similarly, they were not paid salary through bank. In the said report, the CBI further stated that the names of 29 doctors including the petitioner did not figure in the salary statement prepared monthly for the regular staff or in the list provided to the Bahour Commune Panchayat for payment of professional tax. The CBI forwarded the report to the Medical Council of India. The Medical Council of India, on receipt of the said report, issued show cause notice to the petitioner dated 08.05.2014 and another notice on 07.07.2014. The petitioner was informed that the matter would be taken up by the Ethics Committee. He was called upon to appear before the Ethics Committee in person.

8. The petitioner challenges the show cause notices on the sole ground that the Medical Council of India has no jurisdiction to initiate proceedings, inasmuch as it is only an appellate authority.

9. The Medical Council of India is a statutory body constituted under the provisions of Indian Medical Council Act, 1956. The Medical Council of India has been given wide responsibility for the purpose of maintenance of standards of medical education in India. The Medical Council of India is empowered to prescribe the minimum standards of medical education and maintenance of good professional conduct by the medical practitioners. THE STATUTE:

10. The Medical Council of India, in exercise of its powers conferred under Section 20A r/w Section 33(m) of the Indian Medical Council Act, 1956 and with the previous permission of the Central Government, made the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The Ethics Regulations contain the Code of Medical Ethics, which includes the duties and responsibilities of the Physician in general, duties of Physicians to their patients, duties of Physician in consultation, responsibilities of Physicians to each other, duties of Physician to the public and to the paramedical profession and Unethical Acts.

11. Chapter 8 of the Ethics Regulations provides for punishment and disciplinary action. Regulation 8.1 very clearly states that the Medical Council of India is empowered to initiate ethics proceedings against the medical practitioners. The said provision reads thus: ".8.1 It must be clearly understood that the instances of offences and of professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to item in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils have to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils.".

12. The Regulation extracted above very clearly shows that concurrent power is given to the Medical Council of India and the State Medical Council to initiate ethics proceedings. The Regulation also contains a clear indication that the unethical practices mentioned in the Code are only illustrative and it would not preclude the Medical Council of India or State Medical Councils from considering and dealing with any other form of professional misconduct on the part of a registered medical practitioner. This is also evident from the relevant provision which states that circumstances may and do arise from time to item, in relation to which there may occur questions of professional misconduct which do not come within any of these categories. The Regulation further provides that every care should be taken that the Code is not violated in its letter or spirit. Therefore, it is very clear that not only the State Medical Council but the Medical Council of India is also entitled to initiate proceedings under the Ethics Regulations against registered medical practitioners.

13. The petitioner placed reliance on the interim order granted by the Principal Bench dated 12 June, 2014 in W.P.Nos.15173 to 15177 of 2014 and M.P.Nos.1 to 1 of 2014.

14. I have perused the interim order in W.P.Nos.15173 to 15177 of 2014 and M.P.Nos.1 to 1 of 2014. The learned Senior Counsel for the petitioners in the said matter contended before the learned Judge that the Medical Council of India is the appellate authority and the State Council alone is empowered to initiate the original proceedings. The interim order does not contain any indication that the attention of the Court was drawn to Regulation 8.1 of the Ethics Regulations. The Court, by granting an interim order, has not given a finding that the Medical Council of India has no right to initiate proceedings against registered medical practitioners. The stay order was given on the basis of Regulation 8.2 of the Ethics Regulations, which provides that complaint with regard to professional misconduct can be brought before the appropriate State Medical Council for Disciplinary action. There was no occasion for the learned Judge to consider the scope of Regulation 8.1, which gives power in very clear terms to the Medical Council of India to initiate proceedings under the Ethics Regulations. INTERIM ORDER

- WHETHER A PRECEDENT:

15. The Supreme Court in U.P.Avas Evam Vikas Parishad vs. Rajendra Kumar Aggarwal [2008(3) Scale 139]. observed that the grant of interim order is discretionary in nature and, therefore, only because an interim order has been passed by another co-ordinate Bench of the High Court, it cannot be said that similar interim order should be passed in another Writ Petition.

16. The Supreme Court in State of Assam vs. Barak Upatyaka D.U.K.Sanstha [2009(4) Scale 355]. observed that an interim order, which does not finally and conclusively decide the issue, cannot be a precedent. The Supreme Court said: ".10. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing...............".

17. I, therefore, hold that the Ethics Committee of the Medical Council of India is empowered to initiate ethics proceedings against registered medical practitioners under the provisions of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

18. The petitioner was directed to appear before the Ethics Committee originally on 16 May 2014 and thereafter, on 18 July, 2014. The petitioner could have appeared before the Ethics Committee and verified the documents, and in case after such verification, he is of the view that copies of those documents should be furnished, so as to enable him to submit an effective reply, he could have made a request for the same. It is very clear that the petitioner is not prepared to face the ethics proceedings initiated by the Medical Council of India. MEDICAL EDUCATION - DISTURBING TREND:

19. The report submitted by the Central Bureau of Investigation reveals the sorry state of affairs in the field of medical education. The medical practitioners, who are practising elsewhere, are stated to be signing the attendance registers of various Medical Colleges across the State to make it appear that they are actually working there. The salary is paid in cash and records are manipulated to make it appear that the concerned Medical College is having the required number of faculty members. Medical practitioners are engaged to function as faculty members during the time of inspection by the Medical Council to prove that the Institution is having the required teachers. The Medical Colleges, by hiring teachers in this manner and without giving practical and theoretical training to the medical students, are producing half-baked medical practitioners.

20. The Supreme Court in Medical Council of India vs. State of Karnataka and Others [1998(6) SCC131 indicated the necessity of proper facilities including teaching faculty and clinical materials in Medical Institutions. The relevant paragraph reads thus: ".A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study.".

21. There is a mushroom growth of ill equipped Medical Institutions throughout India. They are playing with the lives of the people. In case medical students are not given proper training, it would not be possible for them to give proper professional advice to the patients. The Society would be the ultimate sufferer in such cases. It is hightime that the Central Government and Medical Council of India rise to the occasion and take appropriate action against all those, who are instrumental in downgrading the standards of medical education and indulges in unethical practices.

22. The Writ Petition is dismissed with the above observation. Consequently, the connected miscellaneous petitions are also dismissed. No costs. 23.07.2014 Index:Yes/No Internet:Yes/No SML K.K.SASIDHARAN, J SML To 1.The Deputy Secretary, Medical Council of India, Pocket-14, Sector-8, Dwarka, New Delhi-110 077. 2.The Chairman, Ethics Committee, Medical Council of India, Pocket-14, Sector-8, Dwarka, New Delhi-110 077. Order made in W.P.(MD)No.11577 of 2014 Dated:- 23.07.2014