PARESH JAGJIVAN RUPAREL Vs. UNION OF INDIA

JUDGEMENT

(1.) The present petition is filed by the petitioner under Articles 14, 19, 21 and 226 of the Constitution of India as well as under the provisions of the Indian Medical Council Act, 1956 and also under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 for the following prayers:

(2.) Heard learned advocate, Shri Vishal Dave for the petitioner.

(3.) Learned advocate, Shri Dave referred to the background of the facts and submitted that the impugned order is passed without jurisdiction. In support of his submissions, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., reported in (1998) 8 SCC 1 to emphasis that if the order of the authority is without jurisdiction then writ petition is maintainable. He, therefore submitted that the present petition is maintainable. He has also referred to the background of the facts and submitted that the Medical Council of India has no power to conduct inquiry as Gujarat Medical Council Act would prevail. He has referred to the provision of the Gujarat Medical Council Act and submitted that the inquiry could be conducted and appropriate order could be passed. However, he submitted that the impugned order is also in violation of the rules of natural justice as no opportunity has been given. He referred to the papers and submitted that Annexure B refers to the complaint and on that basis, decision seems to have been taken. Learned advocate, Shri Dave submitted that the order at Annexure A does refer to the charges for the misconduct nor does it provide any details or opportunity to represent his case. He, therefore, strenuously submitted that the order is in violation of the rules of natural justice. Learned advocate, Shri Dave referred to the Chapter - VII of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 and submitted that it provides for punishment and disciplinary action. Learned advocate, Shri Dave referred to Rule 8.1 as well as Rule 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. He emphasized that Rule 8.8 refers to the Appeal before the Medical Council of India. He, therefore, submitted that as now the decision is taken by the Medical Council of India, he is deprived of his right to appeal and, therefore, the present petition may be entertained as right of appeal is taken away. He also referred to the papers and background and submitted that the Medical Council of India had filed proceeding in the Hon'ble Supreme Court against the College viz., RKDF Medical College, Bhopal and, hence, he is made to suffer. For that, he has also referred to the order of the Hon'ble Apex Court in SLP (C) No.19513/2015 dated 22.09.2015. He also referred to the proceedings, which had taken place earlier by the Executive Committee and submitted that earlier the petitioner was suspended for a period of five years from practice and, thereafter on the same set of facts and background, another order is passed, by which, his name is removed from the Indian Medical Practitioner Register. Learned advocate, Shri Dave submitted that without any sufficient material or evidence against him, the decision is taken which is in violation of natural justice and in arbitrary manner. He also referred to the order of the Hon'ble Bombay High Court, Nagpur Bench in Writ Petition No.4905/2014 and Writ Petition No.4920/1994, wherein identical facts were before the Hon'ble Division Bench and the Hon'ble Division Bench had considered and, therefore on the same line, this Court may also entertain the present petition. He, therefore, submitted that the present petition may be allowed.