DEBANGSU BASAK,J. - (1.) An order passed by the appellate authority exercising jurisdiction under the provisions of the Bengal Medical Act 1914 is under challenge in the present writ petition.
(2.) Learned senior advocate appearing for the petitioner submits that, the petitioner had treated a patient up to December 24, 2010. The patient, however, subsequently expired. The condition of the patient remains stable up to December 24, 2010 when the petitioner was treating the patient. The subsequent deterioration cannot be attributed to the petitioner. He submits that, all errors of judgments cannot be treated as medical negligence. In fact, the criminal case initiated against the petitioner was dismissed. A proceeding under the Consumer Protection Act was also dismissed against the petitioner. The Medical Council has assumed jurisdiction over a subject on which it ought not to have done so. Every error of judgement cannot be termed as infamous contempt. Bengal Medical Council ought to have looked into the issues in such light and ought not to have imposed any penalty. Moreover, the petitioner had approached the appellate forum. The appellate forum is manned by an IAS Officer who may not have the expertise to hear an appeal in respect of a professional misconduct of a doctor. The provisions of the Act of 1994 does not bring into its wake every conduct of a doctor to be looked at either by the Medical Council or the appellate authority. Although, the Indian Medical Council Act, 1956 contemplates a provision for appeal, the same is not effective and efficacious in the facts of the present case, as the petitioner would be incurring a penalty for every day. His right to practise medicine will stand infringed. Article 191(1)(g) of the Constitution of India will stand affected.
(3.) The writ petition is being opposed by the State as well as the Bengal Medical Council.;