- (1.) THE Court : THE petitioner in this art.226 petition dated August 12, 2011 is seeking the following principal relief: a) A writ in the nature of Mandamus do issue directing the respondent authorities and/or their men, agents, servants and/or assigns to forthwith to restore the registration of the petitioner as a Doctor with effect from 03.03.2003 in the register of West Bengal Medical Council and to cause publish his name in Calcutta Gazette as per the Bengal Medical Act, 1914.
(2.) THE petitioner was a registered practitioner within the meaning of s.2(c) of the Bengal Medical Act, 1914. His name was removed by the Council from the register of registered practitioners in exercise of power conferred on the Council by s.25(a)(ii) of the Act. Clause (a) of s.25 of the Act provides that in the cases mentioned in sub-cls.(i) and (ii) thereof the Council may direct that the name of any registered practitioner be removed from the register of registered practitioners or that the practitioner be warned. Sub-clause (ii) of cl.(a) of s.25 of the Bengal Medical Act, 1914 is quoted below: (ii) whom the Council, after due inquiry in the same manner as provided in clause (b) of section 17, have found guilty by a majority of two-thirds of the members present and voting at the meeting, of infamous conduct in any professional respect. It has been stated in para.3 that the Council had directed removal of the petitioners name from the register of registered practitioners for a period of six months with effect from the afternoon of September 3, 2002. Correctness of this fact is not disputed. By a letter dated June 6, 2011 (at p.34) the office of the Council has informed the petitioner that in terms of a decision of the Council dated May 10, 2011 taken under s.25(b) of the Act his name has been re-entered in the register. In the certificate of registration it has been recorded that the name has been restored on 10.5.2011. The petitioner is aggrieved by the decision of the Council dated May 10, 2011 in the sense that though, according to him, the Council was under an obligation to re-enter his name in the register with effect from March 3, 2003 when the six-month punishment period expired, it wrongfully decided to re-enter his name in the register only with effect from May 10, 2011.
(3.) MR Bhowmik appearing for the Council submits that the petitioners remedy, if any, was an appeal under s.26 of the Act. His further submission is that, on the facts, the Council was justified in re-entering the petitioners name in the register with effect from May 10, 2011. Mr Sengupta appearing for the State submits that in view of the case stated in para.5 that seeking restoration of his name with effect from March 3, 2003 the petitioner previously filed a petition under art.226, this petition is not maintainable. He, however, does not say that the petitioner has no right to appeal against the decision of the Council dated May 10, 2011. Section 26 of the Bengal Medical Act, 1914 is quoted below: 26. (1) An appeal shall lie to the Local Government from every decision of the Council under section 17 or section 25. (2) Every appeal under the sub-section (1) shall be preferred within three months from the date of such decision. Clause (b) of s.25 of the Bengal Medical Act, 1914 empowered the Council to reenter the petitioners name in the register, in view of the fact that his name had been removed from the register in exercise of power conferred on the Council by the provisions of sub-cl.(ii) of cl.(a) of s.25. ;