- (1.) Both the above appeals have been preferred against the common judgment and order of the learned Single Judge of this Court dated 17th February, 2010 in the aforesaid writ petition. By the impugned judgment and order the writ petition filed by the appellant in the second mentioned Appeal (A.S.T. 53 of 2010) Dr. Rupa Basu (Banerjee) (hereinafter referred to as "Rupa") was dismissed. First mentioned appeal (A.S.T. 60 of 2010) has been preferred by the appellant, Medical Council of India against the findings of the learned Trial Judge in the said writ petition that the Rule 8.8 of the Regulation of 2002 is unconstitutional. The fact leading to preferring the aforesaid two appeals are summarized hereunder: Rupa is a qualified doctor having registration certificate issued by the West Bengal Medical Council. She holds diploma in Gynecology and Obstetrics from Calcutta University and also Post Graduation Degree in the same field. One Smt. Modhumita Boral the respondent No.6 was admitted to the Nursing Home owned and run by Rupa under the name and style of New Life Maternity, Chanditala Hooghly, for delivery of third child of the respondent No.6. Accordingly, Rupa being the attending Surgeon in the morning of 15th August, 1999, undertook lower uterine caesarian section and bilateral tubectomy operation of Respondent No.6 who gave birth to a female baby. Nine days thereafter the said patient and female baby were discharged from Nursing Home on 24th August, 1999. On 27th August, 1999, on call Rupa attended respondent No.6 for dressing the caesarian section scar and wound. On 30th August, 1999, the respondent No.6 attended the nursing home with complaint of bleeding from caesarian section scar. In view of repeated complaint being made Dr. Biplab Banerjee, the husband of Rupa who is also a medical practitioner owing to his social connection attended the respondent No. 6 at her residence on 31st August, 1999 and dressed the scar and wound and also prescribed medicines. The husband of Rupa thereafter attended the respondent No.6 in the first week of September, 1999 at her residence absolutely gratuitously and not professionally. Thereafter it was discovered that after birth of the said female baby it became a victim of "Birth Asphysia" and underwent prolonged treatment but expired on 18th February 2002 on way to B.R. Singh Hospital being referred to by Chanditala Hospital.
(2.) It appears that the husband of the respondent No.6 made a complaint on 29th June, 2004 to the West Bengal Medical Council. Accordingly, Rupa was served with a memo bearing No. 1492-C/75/2004 dated 22nd July, 2004 issued from the West Bengal Medical Council under relevant provision of the Bengal Medical Act, 19144. It was complained that on 14th August 1999 Rupa is alleged to have performed defective caesarian section operation on 15th August, 1999. It was also complained that operation was done with spinal anaesthesia though on record it was done as general anaesthesia in the discharge certificate. It was alleged that Rupa did not take care or proper care during operation and had taken an unqualified person to assist her during operation. No Paediatrician was taken to assist at the Operation Theater during the operation to ensure proper care of the newly born baby. It was not indicated in the record that tubectomy operation was performed at the time of lower uterine caesarian section. On receipt of the said notice Rupa duly replied to the same and defended herself contending that she is innocence.
(3.) On 6th June, 2006, after detailed enquiry and taking evidence the West Bengal Medical Council found that three charges framed against Rupa had been substantiated and the West Bengal Medical Council had decided to warn Rupa for professional misconduct. Thereafter, an appeal was preferred by the said complainant Sri Susanta Kumar Boral to the Department of Health and Family Welfare, Government of West Bengal. The Principal Secretary of the said department took up hearing of the appeal and in the process gave personal hearing to both the parties under section 26 of the Bengal Medical Act 1914 (hereinafter as "State Act"). After hearing, the Principal Secretary passed an order that the punishment of warning would require modification and imposed punishment of removal of the name of Rupa by the West Bengal Medical Council from the register of Registered Medical Practitioner for a period of six months with effect from date of receipt of the said order by the Council.;