Meenakshi Jain v. Delhi Medical Council & Anr
W.P.(C) No. 5604/2012 and CM No. 11451/2012, decided by the Hon’ble High Court of Delhi on 25th April, 2016.
Facts: The petition impleading the respondent Delhi Medical Council (DMC) as the sole respondent impugned (i) “the illegal modification approved in the meeting of the respondent DMC dated 16th November, 2011 whereby the eligibility criteria of qualification for appointment of experts was arbitrarily and perversely lowered down”; and further seeks that (ii) “consequently the hearing, proceedings and order dated 17th November, 2011 in a Complaint No. 780/2010 of the petitioner before the respondent DMC as also the final approved order dated 18th July, 2012 be also quashed”.
Case of the Petitioner:
(i) That the respondent DMC is the statutory body constituted under the Delhi Medical Council Act, 1997 (DMC Act) and has function inter alia to conduct hearing on complaints of medical negligence and professional misconduct against the medical practitioners and to give its decision thereon;
(ii) That the father of the petitioner late Shri P.K. Jain, Advocate was admitted to Indraprastha Apollo Hospital on 6th March, 2009 at 1.00 p.m. and passed away on 1st April, 2009 due to gross, grave and reckless criminal negligence of the hospital and its doctors; the patient was admitted for a non-cardiac surgery of incision and drainage of perianal abscess. Despite being a known cardiac patient, all his vital cardiac medicines and anti-platelet drugs were completely discontinued for continuous three weeks by the regular Cardiologist who also stopped visiting/evaluating the patient and in consequence whereof the patient succumbed to Myocardial Infraction;
(iii) That the petitioner filed complaint before the Delhi State Consumer Disputes Redressal Commission on 19th March, 2010 against the hospital and its doctors and on 19th October, 2010 also filed a complaint for disciplinary action for professional misconduct and medical negligence against the hospital and its doctors under section 10(f) of the DMC Act before the respondent DMC, being Complaint No. 780/2010;
(iv) That the petitioner also filed a complaint before SHO, PS Sarita Vihar on 12th October, 2010 for registration of FIR under section 304A of Indian Penal Code, 1860 (IPC) and for forging and tampering of the medical record and being aggrieved by the inaction of the Police, filed application under section 156(3) of Code of Criminal Procedure, 1973 (Cr.P.C.) along with complaint before the Metropolitan Magistrate (MM), Saket seeking registration of an FIR; aggrieved from one of the orders of the MM in the said complaint case, the petitioner preferred Crl. M.C. No. 2504/2011 before this Court and this Court vide order dated 5th August, 2011 directed the respondent DMC to communicate its opinion on the complaint preferred by the petitioner in a sealed cover to the Court;
(v) That one of the documents produced by the respondent DMC in the aforesaid Crl. M.C. No. 2504/2011 related to the meeting held by the respondent DMC on 27th April, 2010 wherein the criteria for appointment of a Medical Specialist to be an expert member of the Disciplinary Committee was laid down as follows:-
“(i) He should be registered with Delhi Medical Council.
(ii) He should be a holder of post graduate qualification with minimum of 15 years of experience after obtaining the post graduate qualification.
(iii) He should be of high integrity and good standing.
(iv) He should have no conflict of interest.”
(vi) That the respondent DMC, on 15th February, 2012 communicated the decision of its Disciplinary Committee to this Court in Crl. M.C. No. 2504/2011 in a sealed envelope and on perusal whereof this Court vide order dated 2nd July, 2012 dismissed Crl. M.C. No. 2504/2011 preferred by the petitioner with clarification that the respondent DMC may proceed further qua its decision communicated to this Court;
(vii) The respondent DMC vide order dated 18th July, 2012 confirmed the order dated 17th November, 2011 of its Disciplinary Committee;
(viii) The petitioner on checking the website of the respondent DMC found that in the meeting held on 16th November, 2011 the respondent DMC had modified the criteria for appointment of Experts to lower down the qualifications of the Expert Members with retrospective effect from 27th April, 2010 as follows:-
“(i) He should be registered with Delhi Medical Council.
(ii) Minimum 10 years’ post graduate qualification experience or 7 years’ post doctoral qualification experience.
(iii) He should be of high integrity and good standing.
(iv) He should have no conflict of interest.”
(ix) That the petitioner on further enquiries came to know that one of the three Experts appointed for hearing of the complaint of the petitioner, namely, Dr. Jamal Yusuf, Cardiologist did not fulfill the criteria as existed prior to 16th November, 2011 because he did not have 15 years’ experience having qualified medicine only in the year 1998;
(x) The aforesaid vitiated the hearing and proceedings in Complaint No. 780/2010 rendering it null and void;
(xi) That the criteria of Expert Members was changed on 16th November, 2011 i.e., just a day before the order dated 17th November, 2011 of the Disciplinary Committee on the complaint of the petitioner; and
(xii) That the qualification of the Expert Member could not have been changed retrospectively and such change is mala fide.
Observations: The challenge to the decision dated 18th July, 2012 of the respondent DMC of confirming the order dated 17th November, 2011 of the Disciplinary Committee on the complaint of the petitioner is only on the ground of one of the six members of the Disciplinary Committee not fulfilling the criteria as prescribed prior to the filing of the complaint though fulfilling the impugned modified criteria. There is a reason for such limited challenge. Else the petitioner, against the decision of the respondent DMC has the remedy of appealing to the Medical Council of India (MCI). Section 30 of the DMC Act empowers the Government to make rules to carry out the purposes of the Act and inter alia to provide for manner for taking disciplinary action, etc. against registered practitioners and though in exercise of the said powers the Delhi Medical Council Rules, 2003 have been framed but the same also under the head “Inquiries”, in Rule 32 provides as under:-
“32. Complaint against medical practitioner.—(1) The Council may inquire into complaint against medical practitioner either suo motu or on the basis of any complaint made to the Council in respect of misconduct or negligence of any medical practitioner for the purposes of the Act through the Disciplinary Committee. The proceedings shall be conducted by the Registrar in the presence of the Chairman, Disciplinary Committee and at least two members thereof sitting together. The complaint shall contain the following particulars:—
(a) the name, description and address of the complainant;
(b) the name, description and address of the opposite party or parties, as the case may be, as far as they can be ascertained;
(c) the facts relating to the complaint, when the cause of action arose and what are the grounds or causes of the complaint;
(d) the documents in support of the complaint, if any;
(e) the relief which the complaint claims.
No complaint shall be entertained unless it is in writing and signed by the person making it. The complaint shall be verified by the complainant. The complainant shall file six copies of the complaint along with such number of copies as there are opposite parties in the complaint. All anonymous and frivolous complaints shall be rejected.
Procedure on receipt of complaint.—The Council shall on receipt of a complaint—
(a) Refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his version of the case within a period of fifteen days of receipt of copy of the complaint.
(b) Where the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the Council, the Council shall proceed to adjudicate the complaint—
(i) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Council, or
(ii) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint.
(c) On the date of hearing or any other date to which hearing could be adjourned, it shall be obligatory on the parties to appear before the Council. Where the complainant fails to appear before the Council on such days, the Council may in its discretion either dismiss the complaint for default or decide it on merits, where the opposite party fails to appear on the date of hearing, the Council may decide the complaint ex-parte.
(d) The decision of the inquiry shall be implemented and communicated to the respective parties and to others as may be required. In case there is any difference of opinion amongst themselves, the opinion of the majority shall be the decision.”
A conjoint reading of section 21 and rule 32 shows that (i) though section 21(1) provides for constitution of the Disciplinary Committee but section 21(2) provides for the inquiry to be held by the Council or the Executive Committee of the Council in the prescribed manner; (ii) Rule 32(1) provides for the Council to enquire into the complaint through the Disciplinary Committee but provides for the proceedings of the Disciplinary Committee to be conducted by the Registrar of the Council in the presence of the Chairman of the Disciplinary Committee and at least two members only out of five (other than Chairman) prescribed in section 21(1), sitting together; and (iii) however Rule 32 while laying down the procedure on receipt of complaint again provides for adjudication of the complaint by the Council and not by the Disciplinary Committee. It thus appears that the proceedings of the Disciplinary Committee though prescribed to comprise of six members can enquire into the complaint with a minimum quorum of Chairman and any other two members only and is only to act as a fact finding body to place its recommendations before the Council which is to ultimately adjudicate the matter. On an analysis aforesaid of the DMC Act, I find the order dated 27th April, 2010 of the respondent DMC to be purely administrative, having no force of law and the proposition of law laid down in aforesaid judgments to be applicable thereto.
Held: The composition of the Disciplinary Committee is not found to be contrary to the DMC Act or the Rules framed thereunder and in the absence of any plea of the outcome of the decision having been affected owing to change in criteria for selection of an expert member on the Disciplinary Committee, the minimum quorum for proceedings before which is prescribed under the Rules supra of Chairman and two (out of five) members only, I am unable to find any ground to have been made out for setting aside of the decision of the respondent DMC on the complaint of the petitioner. The petition is dismissed.
