Case Note & Summary
The petitioner, Dr. Ashok Bawaskar, a registered medical practitioner, faced a complaint filed by the Buldana District Pathology Association before the Maharashtra Medical Council. After a disciplinary inquiry, the Council found him guilty of violating Articles 1.1.1, 1.1.2, 1.4.1, and 1.9 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, and imposed a penalty of removal of his name from the State Medical Register for a period of one month. The petitioner appealed to the Ethics and Medical Registration Board under Section 30(3) of the National Medical Commission Act, 2019, and sought a stay of the order. The Board refused to grant a stay, claiming it had no power to do so. The petitioner then filed a writ petition under Articles 226 and 227 of the Constitution of India. The High Court examined the provisions of Section 30(3) and held that the power to entertain an appeal includes the power to grant interim relief, including a stay, to ensure the appeal is not rendered infructuous. The court set aside the Board's order and directed it to consider the stay application afresh on its merits.
Headnote
A) Medical Law - Professional Misconduct - Appellate Power - Section 30(3) National Medical Commission Act, 2019 - The Ethics and Medical Registration Board has the power to stay the order of the State Medical Council pending appeal, as the power to entertain an appeal includes the power to grant interim relief to prevent the appeal from becoming infructuous. Held that the Board's interpretation that it lacks such power is erroneous (Paras 2, 7-9).
Issue of Consideration
Whether the Ethics and Medical Registration Board has the power to stay the disciplinary action taken by the State Medical Council against a registered medical practitioner while considering an appeal preferred under Section 30(3) of the National Medical Commission Act, 2019.
Final Decision
The High Court allowed the writ petition, set aside the order of the Ethics and Medical Registration Board dated 22.02.2021, and directed the Board to consider the petitioner's application for stay afresh on its own merits, in accordance with law.
Law Points
- Power to stay disciplinary action
- Appellate authority's inherent power
- Section 30(3) National Medical Commission Act
- 2019
- Indian Medical Council Regulations 2002
Case Details
2022 LawText (BOM) (04) 111
Writ Petition No. 589/2021
A. S. Chandurkar, Smt. M.S. Jawalkar
Shri Shajal S. Sarda (for petitioner), Mrs. Radhika G. Bajaj (for respondent nos.1 and 2), Shri V.P. Panpalia (for respondent no.3)
Dr. Ashok s/o Shrawan Bawaskar
The National Medical Commission, The Ethics and Medical Registration Board, The Maharashtra Medical Council, Buldana District Pathology Association
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging the refusal of the Ethics and Medical Registration Board to stay the disciplinary order of the Maharashtra Medical Council.
Remedy Sought
The petitioner sought a direction to the Ethics and Medical Registration Board to grant a stay of the order of removal from the State Medical Register pending appeal.
Filing Reason
The Ethics and Medical Registration Board refused to stay the disciplinary action, claiming it had no power to do so under Section 30(3) of the National Medical Commission Act, 2019.
Previous Decisions
The Maharashtra Medical Council passed an order on 02.12.2020 removing the petitioner's name from the State Medical Register for one month for professional misconduct.
Issues
Whether the Ethics and Medical Registration Board has the power to stay the disciplinary action taken by the State Medical Council while considering an appeal under Section 30(3) of the National Medical Commission Act, 2019.
Submissions/Arguments
The petitioner argued that the power to entertain an appeal includes the power to grant interim relief, including a stay, to prevent the appeal from becoming infructuous.
The respondent Board contended that Section 30(3) does not expressly confer any power to stay the order appealed against, and therefore no such power exists.
Ratio Decidendi
The power to entertain an appeal under Section 30(3) of the National Medical Commission Act, 2019 includes the power to grant interim relief, such as a stay of the impugned order, as otherwise the appeal could be rendered infructuous. The appellate authority must have the power to preserve the subject matter of the appeal.
Judgment Excerpts
This writ petition filed under Articles 226 and 227 of the Constitution of India raises a question as regards the power of the Ethics and Medical Registration Board to stay the disciplinary action taken by the State Medical Council against a registered medical practitioner for professional misconduct while considering an appeal preferred to it against such action under Section 30(3) of the National Medical Commission Act, 2019.
According to the Ethics and Medical Registration Board there is no power conferred on it to stay an order passed by the State Medical Council taking disciplinary action against a registered medical practitioner or a professional while considering such appeal.
Procedural History
A complaint was filed against the petitioner on 17.05.2018. The petitioner submitted his explanation on 27.06.2018. A notice of charges was served on 10.10.2019. The petitioner replied on 24.10.2019. On 02.12.2020, the Maharashtra Medical Council passed an order removing the petitioner's name from the register for one month. The petitioner appealed to the Ethics and Medical Registration Board under Section 30(3) of the Act of 2019 and sought a stay. The Board refused stay on 22.02.2021. The petitioner then filed the present writ petition.
Acts & Sections
- National Medical Commission Act, 2019: Section 30(3)
- Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002: Articles 1.1.1, 1.1.2, 1.4.1, 1.9
- Constitution of India: Articles 226, 227
