Dr. MC Gupta, a doctor turned lawyer provides guidance to doctors on where they should appeal, should they be faced with a situation where they discover that their name has been removed from the medical register.

QUESTION— A doctor’s name has been removed from the State Medical Register by the State Medical Council for a certain period. Where should he appeal- GOI or MCI?

ANSWER:

1—Section 24(2) of the Indian Medical Council Act, 1956, says that, in such a situation, an appeal should be filed with the GOI.

See below:

“REMOVAL OF NAMES FROM THE INDIAN MEDICAL REGISTER

24 (1) If the name of any person enrolled on a State Medical Register is removed therefrom in pursuance of any power conferred by or under any law relating to medical practitioners for the time being in force in any State, the Council shall direct the removal of the name of such person from the Indian Medical Register.

(2) Where the name of any person has been removed from a State Medical Register on the ground of professional misconduct or any other ground except that he is not possessed of the requisite medical qualifications or where any application made by the said person for restoration of his name to the State Medical Register has been rejected, he may appeal in the prescribed manner and subject to such conditions including conditions as to the payment of a fee as may be laid down in rules made by the Central Government in this behalf, to the Central Government, whose decision, which shall be given after consulting the Council, shall be binding on the State Government and on the authorities concerned with the preparation of the State Medical Register.”

2—Regulation 8.8 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, reads as follows:

“8.8 Any person aggrieved by the decision of the State Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council:

Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented within a further period of 60 days.”

3—A question arises which of the two remedies is the correct/appropriate one. An obvious answer is that section 24(2) is a statutory remedy while Regulation 8.8 is subordinate in nature because rules and regulations are, in essence, made by the executive. Hence section 24(2) may be deemed to provide a remedy that is legally more tenable.

4—In Dr. (Mrs.) Rupa Basu (Banerjee) vs The State Of West Bengal & Ors on 17 February, 2010, the single bench of the Calcutta held that Regulation 8.8 was unconstitutional.

Held as follows:

“36. Similarly in exercise of the powers conferred in clause (m) of Section 33 of the Act the Medical Council of India is empowered, subject to previous sanction of the Central Government, to make regulation to carry out the purposes of the Act so far as it relates to "the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners". So by virtue of such limited power conferred under clause 'm', Medical Council of India cannot create any Appellate Authority or penal provision like removal of name from the Register maintained by itself or by the State Council. In fact Rules and Regulations are wheels of an enactment to give effect to the purposes and objects of an Act and cannot travel beyond the track laid down in the Act. Therefore, provisions of Rule 8.8 of the Regulation of 2002 made by the Medical Council of India in exercise of its powers conferred under Section 33(m) of the Act of 1956 are equally beyond its jurisdiction and as such unconstitutional because it has been set at rest in 2006(4) SCC 327 (paragraphs 4,15,16 and 17) and 2005 (3) SCC 601 that as per general principle of cognate rules any provision of any substantive law whether Central or State cannot be curtailed by making provision in delegated provision - in the instant case Regulation of 2002 made by the Medical Council of India.”

This judgment can be viewed at—

https://indiankanoon.org/doc/75915378/

5—Upon an appeal being filed, the Division Bench of Calcutta High Court vide judgment dated 29th September, 2011 in Medical Council of India Vs. State of West Bengal & Ors, (2012) 1 CALLT 100 (HC) has held as under:-

"35. We supplement expressing our views to what Parliament has not done the same cannot be done by the Council which is the creature of the Act, even with the approval of the Government. It appears that the said Regulation has been accepted by the Supreme Court in the case of Moloy Ganguly v. Medical Council of India and Ors. in W.P.C. No.317 of 2000. We think the Hon'ble Apex Court has merely approved incorporation of regulation but it has not expressed any opinion of its overriding applicability.

41. We have merely observed the legal position as to the status of the aforesaid legislation. However, we cannot accept the ruling of the learned Trial Judge as the same being ultra vires, we cannot do so bearing judicial discipline in mind, as we notice the Supreme Court in the aforesaid case has directed to incorporate the same. We think that the matter can be reconsidered by the Hon'ble Supreme Court only in this aspect when occasion will arise.”

6—In Alka Gupta vs Medical Council Of India And Anr , on 5 May, 2014, the Delhi High Court observed as follows--

“12. He, however, candidly stated that at present the Ethics Committee of the MCI under Clause 8.8 of the Regulations, 2002 was entertaining appeals by any person who was aggrieved by a decision of the concerned State Medical Councils, under the bona fide impression that the matter is pending adjudication before the Supreme Court and thus such appeals under Clause 8.8 were maintainable. He also admitted, as a matter of fact, that appeals were also being filed before the Ministry of Health & Family Welfare, Government of India under Section 24(2) of the Act, 1956, where the Central Government is statutorily obliged to seek the opinion of the MCI.

13. Mr. Maninder Singh stated that MCI as a statutory authority constituted under the Act, 1956, would take appropriate action in future in accordance with the law declared by this Court.”

19. Having heard learned counsel for parties, this Court is of the view that as interpretation of Section 24(2) of the Act, 1956 and validity of Clause 8.8 is pending consideration before the Supreme Court, it would be appropriate to await the said judgment.”

This judgment can be viewed at—

https://indiankanoon.org/doc/124891331/

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Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

Content from the writer has been directly replicated on the website. No edits have been made.

The writer, Dr. MC Gupta is a practising lawyer specialising in medical negligence cases. He also has an MD Medicine from AIIMS, Delhi where he also worked as a faculty member for 18 years, later working another 10 years as a Professor and Dean at National Institute of Health and Family Welfare, New Delhi, before pursuing law.