SUKUMAR MUKHERJEE Vs. MEDICAL COUNCIL OF INDIA

JUDGEMENT

(1.) THE petitioner in W.P. No. 9758 (W) of 2011 is Dr. Sukumar Mukherjee, a medical practitioner. He has challenged the validity of an order passed by the Medical Council of India (MCI) acting in the capacity of appellate authority over the West Bengal Medical Council (the State Council) in relation to a proceeding involving allegations of medical negligence. By this order issued on 23 May 2011, the MCI has directed removal of the writ petitioner's name for a period of three months from the register of the State Council. The State Council had cleared the writ petitioner of the charge of negligence by its decision dated 18 June, 2002. The order of 23 May, 2011 was issued by the MCI in an appeal filed by Dr. Kunal Saha (the respondent no. 4 in W.P. No. 9758 (W) of 2011) under the provisions of Clause 8.8 of the Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations, 2002 (the 2002 Regulations), framed under the provisions of the Indian Medical Council Act, 1956 (the 1956 Act). Dr. Saha is also a medical practitioner involved, inter alia, in research work, based in the United States of America. He was the complainant before the State Council, alleging negligence on the part of Dr. Mukherjee and certain other medical practitioners in treating his wife, Anuradha, (since deceased). In this writ petition, i.e., W.P. No. 9758 (W) of 2011, the validity of the said provisions of the 2002 Regulations is also under challenge. Alternative submission of the writ petitioner in this proceeding is that the said provisions of the Regulations would not apply in his case, and the appeal of Dr. Saha before the MCI, in which the impugned order has been passed, was time barred.

(2.) THE petitioner in W.P. No. 3993 (W) of 2013 is Dr. Kunal Saha, the appellant in the proceeding before the MCI. The initial complaint was made before the State Council against Dr. Mukherjee on 7 July, 1999. The medical practitioners against whom allegations were made included Dr. Baidyanath Halder and Dr. Abani Roy Chowdhary. Complaint against them was also filed before the State Council at a later date. Dr. Roy Chowdhary passed away during subsistence of that proceeding. A similar order was passed by the MCI against Dr. Halder also in Dr. Saha's appeal. Dr. Halder had challenged the said order by filing an independent writ petition, which was registered as W.P. No. 9757 (W) of 2011. During pendency of that writ petition, Dr. Halder had passed away and there has been abatement of that writ petition. In his writ petition, being W.P. No. 3993 (W) of 2013, Dr. Saha has primarily prayed for enhancement of punishment of Dr. Mukherjee. I shall deal with both these petitions in this judgment, but I shall refer to and decide W.P. No. 9758 (W) of 2011 first. Thus, further reference to the petitioner in subsequent parts of this judgment would imply the petitioner in W.P. No. 9758(W) of 2011, and I shall discuss the factual and legal issues involved in that writ petition only. I shall deal with Dr. Saha's writ petition, W.P. No. 3993(W) of 2013 thereafter in this judgment.

(3.) DR . Mukherjee and Dr. Halder were found by the Learned Chief Judicial Magistrate to be guilty of offence under Section 304A of the Indian Penal Code and they were sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 3,000/ - each, in default of which they were to undergo further simple imprisonment for 15 days. In most of these proceedings lodged before different authorities by Dr. Saha, there has been common orders involving all the medical practitioners against whom proceedings were instituted, but in this judgment I shall deal with only those materials with which the writ petitioner is involved, as these two writ petitions at this stage do not concern any other medical practitioner against whom actions were brought at different fora.