Aniruddha Bose, J.The petitioner in W.P. No. 9758 (W) of 2011 is Dr. Sukumar Mukherjee, a medical practitioner. He has challenged the validity of an order passed by the Medical Council of India (MCI) acting in the capacity of appellate authority over the West Bengal Medical Council (the State Council) in relation to a proceeding involving allegations of medical negligence. By this order issued on 23 May 2011, the MCI has directed removal of the writ petitioners name for a period of three months from the register of the State Council. The State Council had cleared the writ petitioner of the charge of negligence by its decision dated 18 June, 2002. The order of 23 May, 2011 was issued by the MCI in an appeal filed by Dr. Kunal Saha (the respondent no. 4 in W.P. No. 9758 (W) of 2011) under the provisions of Clause 8.8 of the Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations, 2002 (the 2002 Regulations), framed under the provisions of the Indian Medical Council Act, 1956 (the 1956 Act). Dr. Saha is also a medical practitioner involved, inter alia, in research work, based in the United States of America. He was the complainant before the State Council, alleging negligence on the part of Dr. Mukherjee and certain other medical practitioners in treating his wife, Anuradha, (since deceased). In this writ petition, i.e., W.P. No. 9758 (W) of 2011, the validity of the said provisions of the 2002 Regulations is also under challenge. Alternative submission of the writ petitioner in this proceeding is that the said provisions of the Regulations would not apply in his case, and the appeal of Dr. Saha before the MCI, in which the impugned order has been passed, was time barred.

2. The petitioner in W.P. No. 3993 (W) of 2013 is Dr. Kunal Saha, the appellant in the proceeding before the MCI. The initial complaint was made before the State Council against Dr. Mukherjee on 7 July, 1999. The medical practitioners against whom allegations were made included Dr. Baidyanath Halder and Dr. Abani Roy Chowdhary. Complaint against them was also filed before the State Council at a later date. Dr. Roy Chowdhary passed away during subsistence of that proceeding. A similar order was passed by the MCI against Dr. Halder also in Dr. Sahas appeal. Dr. Halder had challenged the said order by filing an independent writ petition, which was registered as W.P. No. 9757 (W) of 2011. During pendency of that writ petition, Dr. Halder had passed away and there has been abatement of that writ petition. In his writ petition, being W.P. No. 3993 (W) of 2013, Dr. Saha has primarily prayed for enhancement of punishment of Dr. Mukherjee. I shall deal with both these petitions in this judgment, but I shall refer to and decide W.P. No. 9758 (W) of 2011 first. Thus, further reference to the petitioner in subsequent parts of this judgment would imply the petitioner in W.P. No. 9758(W) of 2011, and I shall discuss the factual and legal issues involved in that writ petition only. I shall deal with Dr. Sahas writ petition, W.P. No. 3993(W) of 2013 thereafter in this judgment.

3. The controversy involved in both the proceedings originates from the death of Anuradha Saha, the deceased wife of Dr. Saha on 28 May, 1998 in Breach Candy Hospital at Mumbai. She was initially treated in Kolkata by Dr. Mukherjee (the petitioner) along with certain other medical practitioners and basic complaint of Dr. Saha all along has been negligence on the part of the medical practitioners treating her at Kolkata. One Malay Kumar Ganguly, a relative of Dr. Saha had filed a criminal complaint in the Court of the Chief Judicial Magistrate, 24 parganas at Alipore against the writ petitioner and two other medical practitioners. A separate complaint was also filed before the National Consumer Disputes Redressal Commission, New Delhi (the Commission) under the Consumer Protection Act, 1986 seeking compensation, on the allegation of deficiency in service, and the writ petitioner was impleaded as a party respondent in that proceeding as well.

4. Dr. Mukherjee and Dr. Halder were found by the Learned Chief Judicial Magistrate to be guilty of offence u/s 304A of the Indian Penal Code and they were sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 3,000/- each, in default of which they were to undergo further simple imprisonment for 15 days. In most of these proceedings lodged before different authorities by Dr. Saha, there has been common orders involving all the medical practitioners against whom proceedings were instituted, but in this judgment I shall deal with only those materials with which the writ petitioner is involved, as these two writ petitions at this stage do not concern any other medical practitioner against whom actions were brought at different fora.

5. The petitioner preferred appeal against the judgment of conviction before the Learned Sessions Judge, Alipore and said Malay Kumar Ganguly also had filed a revisional application for enhancement of sentence imposed on the medical practitioners. An appeal was filed before this Court questioning the legality of the judgment of acquittal against another medical practitioner, who was exonerated by the Trial Court. The appeal of Dr. Mukherjee was finally heard by the High Court along other proceedings arising out of the said judgment of the first Court. The appeals of the writ petitioner and the other medical practitioner were allowed while the revisional application of the complainant as also the appeal against acquittal were dismissed in a composite judgment passed by an Honble Single Judge of this Court on 19 March 2004. The proceeding initiated by Dr. Saha before the National Commission for compensation was also dismissed on 1 June 2006. Both these judgments were appealed against by said Malay Kumar Ganguly and Dr. Saha before the Honble Supreme Court.

6. In a judgment delivered in the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee delivered on 7th August, 2009, reported in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others, the Supreme Court sustained the judgment of acquittal passed by this Court but opined that the judgment of the Commission in which Dr. Sahas plea for compensation was rejected was wrong and the case was remitted to the Commission for the purpose of determination of quantum of compensation. In this judgment, it has been observed and held:-

We enumerate heretobelow the duty of care which ought to have been taken and the deficiency whereof is being complained of in the criminal case and the civil case, respectively, so far as Respondent Nos. 1 to 3 are concerned. When Dr. Mukherjee examined Anuradha, she had rashes all over her body and this being the case of dermatology, he should have referred her to a dermatologist. Instead, he prescribed "Depomedrol" for the next 3 days on his assumption that it was a case of "vasculitis". The dosage of 120 mg Depomedrol per day is certainly a higher dose in case of a TEN patient or for that matter any patient suffering from any other bypass of skin disease and the maximum recommended usage by the drug manufacturer has also been exceeded by Dr. Mukherjee. On 11-5-1998, the further prescription of Depomedrol without diagnosing the nature of the disease is a wrongful act on his part.

According to general practice, long-acting steroids are not advisable in any clinical condition, as noticed hereinbefore. However, instead of prescribing to a quick-acting steroid, the prescription of a long-acting steroid without foreseeing its implications is certainly an act of negligence on Dr. Mukherjees part without exercising any care or caution. As it has been already stated by the experts who were cross-examined and the authorities that have been submitted that the usage of 80-120 mg is not permissible in TEN. Furthermore, after prescribing a steroid, the effect of immunosuppression caused due to it, ought to have been foreseen. The effect of immunosuppression caused due to the use of steroids has affected the immunity of the patient and Dr. Mukherjee has failed to take note of the said consequences.

After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified the previous prescription that has been given to the patient. On 12-5-1998 although `depomedrol was stopped, Dr. Halder did not take any remedial measures against the excessive amount of `depomedrol that was already stuck in the patients body and added more fuel to the fire by prescribing a quick-acting steroid `Prednisolone at 40mg three times daily, which is an excessive dose, considering the fact that a huge amount of depomedrol has been already accumulated in the body.

Life saving `supportive therapy including IV fluids/electrolyte replacement, dressing of skin wounds and close monitoring of infection is mandatory for proper care of TEN patients. Skin (wound) swap and blood tests also ought to be performed regularly to detect the degree of infection. Apart from using the steroids, aggressive supportive therapy that is considered to be rudimentary for TEN patients was not provided by Dr. Halder.

Further `vital signs of a patient such as temperature, pulse, intake-output and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill. The failure of Dr. Halder to ensure that these factors are monitored regularly is certainly an act of negligence. Occlusive dressings were carried as a result of which the infection had been increased. Dr Halders prescription was against the Canadian Treatment Protocol reference to which we have already made hereinbefore. It is the duty of the doctors to prevent further spreading of infections. How that is to be done is the doctors concern. Hospitals or nursing homes where a patient is taken for better treatment should not be a place for getting infection.

After coming to know that the patient is suffering from TEN, Dr. Abani Roy Chowdhury ought to have ensured that supportive therapy had been given. He had treated the patient along with Dr. Halder and failed to provide any supportive therapy or advise for providing IV fluids or other supplements that is a necessity for the patient who was critically ill.

As regards, individual liability of the Respondents 4, 5 and 6 is concerned, we may notice the same hereunder. As regards AMRI, it may be noticed:

(i) Vital parameters of Anuradha were not examined between 11-05-1998 to 16-05-1998 (body temperature, respiration rate, pulse, BP and urine input and output)

(ii) IV Fluid not administered. (IV fluid administration is absolutely necessary in the first 48 hours of treating TEN) As regards, Dr. Balaram Prasad, Respondent 5, it may be noticed:

(i) Most doctors refrain from using steroids at the later stage of the disease due to the fear of sepsis, yet he added more steroids in the form of quick-acting "Prednisolone" at 40g three times a day.

(ii) He stood as second fiddle to the treatment and failed to apply his own mind.

(ii) No doctor has the right to use the drug beyond the maximum recommended dose.

So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts, viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.

7. The State Council before which Dr. Saha had lodged complaint against Dr. Mukherjee alleging medical negligence has been constituted under the Bengal Medical Act 1914. The main object of the said statute is for providing for registration of medical practitioners in Bengal and as a professional body, the Council is empowered to remove the names of the doctors registered with them from the register maintained by them. Section 25 of the 1914 Act empowers State Council to direct removal of the names of medical practitioners from the register on the charge of "infamous conduct in any professional respect", which, on its plain reading, would include what is commonly understood as medical negligence. The said provision reads:-

25. Power to Council to direct removal of names from register, and re-entry of names therein.-The Council may direct-

(a) that the name of any registered practitioner-

(i) who has been sentenced by any Court for any non-bailable offence, such sentence not having been subsequently reversed or quashed, and such persons disqualification on account of such sentence not having been removed by an order which the [State Government] [is] hereby empowered to make, if [it thinks] fit, in this behalf; or

(ii) whom the Council, after due enquiry [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, be removed from the register of registered practitioners [or that the practitioners be warned], and

(b) that any name so removed be afterwards re-entered in the register.

8. There is provision under the said Act for appeal to the State Government from the decision of the State Council, and Section 26 of this Act in this regard specifies:-

26. Appeal to State Government from decision of Council.-

(1) An appeal shall lie to the [State Government] from every decision of the Council u/s 17 or section 25.

(2) Every appeal under sub-section (1) shall be preferred within three months from the date of such decision.

9. The State Council, by an order dated 18 June, 2002 had exonerated Dr. Mukherjee of the charges. I find from the Annexure P-1 to the writ petition, which has been titled as "Report on the Final Decision of the West Bengal Medical Council ...", and contains the final decision of the State Council, that at the initial stage, the P.E. Committee of the Council had found that charges of negligence in respect of all the three doctors being the writ petitioner, Dr. Abani Roy Chowdhary and Dr. Baidyanath Halder were not established. The State Council, however, had referred the matter back to the P.E. Committee for elaborating the recommendation and such elaboration, it appears, was made. Thereafter, the State Council after consideration of the report had exonerated Dr. Roy Chowdhary and Dr. Halder at that stage but a charge-sheet was issued against Dr. Mukherjee on the following count:-

That you have used Injection Depomedrol 80 mg BD on Mrs. Anuradha Saha, wife of Dr. Kunal Saha of U.S.A. who was under your treatment on and from April 24, 1998, to May 11, 1998, which is much above the recommended dose of the drug and, hence, you are required to justify use of the said drug at such a high dose.

10. On or about 3 July, 2002, a writ petition was filed by Dr. Saha challenging the order of the State Council passed on 18th June, 2002. This writ petition was registered as W.P. No. 1357 of 2002 (Dr. Kunal Saha Vs. The West Bengal Medical Council). In that writ petition, Dr. Saha applied for invalidation of the said order of State Council passed. Main ground on which that writ petition was filed was that the President of the State Council was biased. The allegations of violation of certain Rules and breach of the principles of natural justice were also made in that writ petition. On the latter issue, it was alleged that no opportunity was given to the parties to examine and cross-examine the respective witnesses. That writ petition was dismissed by a learned Single Judge of this Court by a judgment delivered on 22 February, 2006. Dr. Saha had preferred an appeal against the judgment of the learned Single Judge, which was registered as A.P.O.T. No. 149 of 2006. This appeal was also dismissed on 20 July, 2006 by a Division Bench of this Court. Dr. Saha preferred a petition for special leave to appeal (SLP) before the Honble Supreme Court against the judgment of dismissal of his appeal by the Division Bench, but on 3 August 2007. The SLP was also dismissed by the Honble Supreme Court. An application for review of the order of dismissal before the Honble Supreme Court was filed by Dr. Saha, which was rejected, and a further curative petition filed by Dr. Saha stood also dismissed on 24 March 2009 by the Honble Supreme Court.

11. In the meantime there was amendment to the provisions of Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations, 2002, which regulates professional conduct and practicing norms of the medical practitioners in India. In Chapter 8 of the Regulations, which deals with punishment and disciplinary action of registered medical practitioners, clauses 8.7 and 8.8 were inserted by a Notification Bearing No. MCI 211(2)/2004 (Ethical) dated 4 March 2004. These two clauses provide:-

8.7 Where either on a request or otherwise the Medical Council of India is informed that any compliant against a delinquent physician has not been decided by a State Medical Council within a period of six months from the date of receipt of compliant by it and further the MCI has reason to believe that there is no justified reason for not deciding the complaint within the said prescribed period, the Medical Council of India may-

(i) Impress upon the concerned State Medical Council to conclude and decide the complaint within a time bound schedule;

(ii) May decide to withdraw the said complaint pending with the concerned State Medical Council straightaway or after the expiry of the period which had been stipulated by the MCI in accordance with para (i) above, to itself and refer the same to the Ethical Committee of the Council for its expeditious disposal in a period of not more than six months from the receipt of the complaint in the office of the Medical Council of India.

8.8 Any person aggrieved by the decision of the State Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council:

Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, a low it to be presented within a further period of 60 days.

12. The 2002 Regulations has been framed in terms of Sections 20A and 33(m) of the Indian Medical Council Act 1956. These two provisions stipulate:-

20A. Professional Conduct.-(1) The Council may prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners.

(2) Regulations made by the Council under sub-section (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct, and such provision shall have effect notwithstanding anything contained in any law for the time being in force.

33. Power to make regulations.-The Council may, with previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for-

(.)

(.)

(.)

(m) the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners;

(.)

(.)

13. These amendments were introduced, coincidentally, on the basis of an order of the Honble Supreme Court passed in a batch of cases in which said Malay Kumar Ganguly, was also a party, and that proceeding also originated from the primary cause of action of Dr. Saha, being the unfortunate death of his wife. In the said order, passed on 23 September 2003 in the case of P.C. Kesavan Kuttynayar Vs. Harish Bhalla and Others, , it was observed and directed by the Supreme Court, on the suggestion of the Learned Attorney General for India:-

22. As suggested by the learned Attorney General, the following provisions could be added in the Code of Ethics prescribed by the Medical Council of India.

8.7 Where either or a request or otherwise the Medical Council of India is informed that any compliant against a delinquent physician has not been decided by a State Medical Council within a period of six months from the date of receipt of complaint by it and further, MCI has reason to believe that there is no justifiable reason for not deciding the compliant within the said prescribed period, the Medical Council of India may-

(i) impress upon the State Medical Council concerned to conclude and decide the complaint within a time-bound schedule; (ii) may decide to withdraw the said complaint pending with the State Medical Council concerned straight away or after the expiry of the period which had been stipulated by MCI in accordance with para (i) above to itself and refer the same to the Ethics Committee of the Council for its expeditious disposal in a period of not more than six months from the receipt of the complaint in the Office of the Medical Council of India.

8.8 Any person aggrieved by the decision of the State Council on any complaint against a delinquent physician, shall have the right to file an appeal to MCI within a period of sixty days from the date of receipt of the order passed by the said Medical Council:

Provided that MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days allow it to be presented within a further period of 60 days.

23. For inclusion of the said or similar provisions, the Medical Council would take appropriate steps under the Act.

14. On or about 15 May, 2009, Dr. Saha filed the appeal before the MCI under the aforesaid appellate provision of the 2002 Regulations against the order dated 18 June, 2002. As it appears from the copy of the document annexed at page 82 of the writ petition, the appeal was filed in a prescribed form, in which both the clauses of the 2002 Regulations, i.e. 8.7 and 8.8 have been specified. During pendency of the said appeal, the Honble Supreme Court decided the appeal of Dr. Saha against the judgment of this Court acquitting all the medical practitioners, including Dr. Mukherjee as also order of dismissal of the petition of Dr. Saha by the Commission. In this judgment delivered on 7 August 2009, in the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others, the medical practitioners were exonerated of the criminal charges but the writ petitioner certain other medical practitioners and the hospital concerned were found to have been negligent while treating Anuradha Saha (since deceased), so far as the proceeding under the Consumer Protection Act was concerned. It was held:-

167. So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.

15. There is some dispute as regards proper service of notice of appeal upon the writ petitioner by the MCI at the time of entertaining the appeal, but for the purpose of adjudication of both these proceedings, detailed discussion on the stand of the respective parties on such dispute is not necessary. I shall mainly refer to two decisions or communications made to Dr. Mukherjee by the respective councils dated 18 June 2002 and 23 May 2011, copies of which have been made Annexures "P1" and "P9" to the writ petition. These documents are in my opinion sufficient for addressing the issues raised in these two writ petitions, apart from the ones to which I shall specifically refer to in this judgment. The Ethics Committee of the Medical Council of India examined the appeal of Dr. Saha and at the initial stage directed the writ petitioner to submit his explanation the issue of quantum of punishment within a period of fifteen days. This was communicated to the petitioner by a memorandum bearing no. 211(2)(190)/2009-Ethics/29866 dated 21 September 2010 (Annexure "P2" to the writ petition). This communication contained a decision of the Ethics Committee dated 3 August 2010 in which the committee opined that the writ petitioner had committed misconduct under the 2002 Regulations. The petitioner informed the concerned officer of the MCI that he had no knowledge of the appeal of Dr. Saha till he received the order directing him to show cause on the question of quantum of punishment. There had been subsequent exchange of communications between the petitioner and the MCI after that, and eventually the petitioner gave his written response to the appeal filed by Dr. Saha. The parties were heard, and main objection of Dr. Mukherjee before the Ethics Committee of the MCI was on the ground of limitation. On merit, contention of the writ petitioner was that he had administered treatment in accordance with the standard protocol. The Ethics Committee of the MCI found, considering the materials produced before them, that the writ petitioner as also Dr. Halder had committed misconduct. The petitioner had raised the point of delay before the MCI, and on that issue the said authority invoked the provisions of Section 14 of the Limitation Act, 1963, and proceeded to imposed punishment on the writ petitioner, holding:-

So far as the objection on the ground of delay in filing of an appeal is concerned, we have noted that the matter was pending in the Honble Supreme Court of India through out the period. The Ethics Committee has also noted that the appellant is entitled to benefit of Section 14 of the Limitation Act, 1963, which provides for exclusion of the period from the computing the time limit provided in the Act. The Committee has no doubt that Section-14 of the Limitation Act, 1963 is applicable with regard to the Ethics Regulations.

The judgment of Honble Supreme Court of India and the various aspects discussed in the said judgment leave no scope of doubt that there was professional misconduct on the part of the treating doctors and we also hold the same and concur accordingly.

So far as the quantum of punishment to be imposed on the treating doctors are concerned, the Committee has noted that the treating doctors i.e. Dr. Sukumar Mukherjee and Dr. B.N. Halder have acted in good faith. However, they did not follow the standard protocol in treating the patient suffering from TEN. We are also not oblivious of the fact that treating doctors are senior citizens aged about more than 70 years it is also important to note that one of treating doctor namely Dr. Abani Roy Chowdhary died during the pendency of the case. Both the treating doctors are at an advanced age and ends of justice would be met if their names are removed for a period of three months from the register of concerned State Medical Council.

16. It is this order which has been challenged by the writ petitioner in the first petition on multiple grounds. First, it has been contended that there is provision for appeal against an order of the State Council u/s 26 of the 1914 Act and introduction of a new appellate forum by way of an amendment of a subordinate legislation is impermissible. Secondly, it is contended on behalf of the petitioner, whose case has been argued by Mr. Saktinath Mukherjee, Mr. Sundarananda Pal and Ms. Pinky Anand, Senior Advocates, at different stages that the aforesaid two clauses of the 2002 Regulations are ultra vires the provisions of the 1956 Act. It is also the contention of the writ petitioner that in any event, the provisions for appeal incorporated in the 2002 Regulations by the aforesaid amendment made in the year 2004 cannot be made applicable in relation to a decision of the State Council delivered in the year 2002. On this count case of the petitioner is that right to appeal is a substantive right and the forum of appeal which was available on the date of institution of the proceeding, in this case being the complaint before the State Council lodged on 7 July 1999, would be the appellate forum for Dr. Saha, in the absence of lawmakers specifically authorizing the newly constituted appellate forum to deal with pending appeals on making the said provisions retrospective in operation this point has been further elaborated by the learned counsel for the petitioner that a subordinate legislation cannot operate retrospectively unless the parent statute specifically empowers the Regulation framing authority in that regard. The other provision which has been referred to on behalf of the petitioner is Section 24 of the 1956 Act, which provides:-

24. Removal of names from the Indian Medical Register.-If the name of any person enrolled on a State Medical Register is removed therefrom in pursuance of any power conferred by or under any law relating to registration of medical practitioners for the time being in force in any State, the Council shall direct the removal of the name of such person from the Indian Medical Register.

(2) Where the name of any person has been removed from a State Medical Register [on the ground of professional misconduct or any other ground except that he is not possessed of the requisite medical qualifications] or where any application made by the said person for restoration of his name to the State Medical Register has been rejected, he may appeal in the prescribed manner and subject to such conditions including conditions as to the payment of a fee as may be laid down in rules made by the Central Government in this behalf, to the Central Government, whose decision, which shall be given after consulting the Council, shall be binding on the State Government and on the authorities concerned with the preparation of the State Medical Register.

Referring to sub-Section (2) of the aforesaid provision, it has been argued that the content of the aforesaid clauses in the 2002 Regulations run inconsistent with the provisions of the said sub-section, which provides for an independent appellate forum.

17. The petitioner has also argued, through his learned counsel, that the appeal in any event is barred under the principles of constructive res judicata as also is time barred. Case of the petitioner on this point is that Dr. Saha had invoked Constitutional Writ Jurisdiction of this Court to assail the order of the State Council passed on 18 June 2002 by filing the writ petition, being W.P. No. 1357 of 2002, and that writ petition having been dismissed, he cannot be permitted to reagitate the same cause even with additional ground by preferring an appeal. Maintainability of the appeal has also been questioned by the petitioner on the ground of limitation and thrust of argument advanced on his behalf on this point is that the MCI was not empowered to invoke the provisions of Section 14 of the Limitation Act, 1963, as the said Act was applicable only to proceedings before "Court" and the MCI, while exercising its disciplinary function was not "Court". The petitioner sought to sustain the decision of the State Council on merit as well. The State Council broadly supported the stand of the petitioner and has sought to insulate their own order from interference by the newly formed appellate forum. On behalf of the petitioner as also the State Council, authority of the MCI to make provisions for appeal against a decision of the State Council.

18. The MCI and Dr. Saha have contested the writ petition by filing affidavits. Dr. Saha has filed a composite affidavit in both W.P. No. 9757 (W) of 2011 and in this writ petition, and for the purpose of this writ petition, he has made his submissions on the basis of this affidavit. Mr. Sugata Bhattacharya learned counsel appearing on behalf of the MCI defended the impugned decision, asserting that the MCI had the jurisdiction to invoke the appeal provisions contained in the 2002 Regulation. As regards vires of the aforesaid provision, it was his case that the aforesaid provisions were introduced as per direction of the Supreme Court in the case of P.C. Kesavan (supra) and since these provisions were incorporated as per direction of the Honble Supreme Court, they are not open to challenge before this Court in this proceeding. Several authorities have been relied upon by the learned counsel for the parties and Dr. Saha appearing in person, but in this judgment I shall refer to only those authorities which I have found relevant for the purpose of adjudication of this writ petition.

19. On the question of inconsistency between the provisions of Section 26 of the 1914 Act and the aforesaid clauses of the 2002 Regulations, stand of the MCI is that the 1956 Act being a Central Legislation, Regulations framed under it supersedes the State Legislation on the same field. In this regard, the following passage from the judgment of the Supreme Court in the case of Dr Preeti Srivastava and Another Vs. State of M.P. and Others, was relied on by Mr. Bhattacharya:-

...57. In the case of Medical Council of India Vs. State of Karnataka a bench of three judges of this Court had distinguished the observations made in Nivedita Jain. It has also disagreed with Ajay Kumar Singh Vs. State of Bihar and has come to the conclusion that the medical council regulations have a statutory force and are mandatory. The court took note of the observation in State of Kerala Vs. T.P. Roshana (SCC at P. 580) to the effect that under the India Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualification would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning...

The other authorities which were relied upon to establish binding nature of Regulations framed by the Medical Council of India Vs. State of Karnataka and Others, State of Punjab Vs. Dayanand Medical College and Hospital and Others, , and The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, Prof. Prof. Yashpal and Another Vs. State of Chhattisgarh and Others, Harish Verma and Others Vs. Ajay Srivastava and Another, and Medical Council of India Vs. Rama Medical College Hospital and Research Centre, Kanpur and Another, These authorities, however, mostly relate to conflicting State and Central Regulations pertaining to admission in medical institutions, and the Central Regulations have been given a primacy in such a conflict over the State Regulations on the same field.

20. Regarding delay, my attention has been drawn to the provisions of Section 14 of the 1963 Act, and it has been submitted by the learned counsel for the MCI that Dr. Saha would be entitled to exclude the time which was taken for final conclusion of W.P. No. 1357 of 2002, being rejection of his curative petition by the Honble Supreme court, and if such time was excluded, then the appeal of Dr. Saha could be held to have been filed within the prescribed time. An unreported judgment of the Andhra Pradesh High Court in W.P. no. 16305 of 2007 in the case of Dr. L. Sudhakar Vs. The Medical Council of India & Ors. decided on 25 March 2013 has been cited by Mr. Bhattacharya to contend that the MCI was empowered to invoke the appellate jurisdiction in terms of Clause 8.8 of the 2002 Regulations even in respect of a complaint instituted prior to the aforesaid clause having become operational.

21. Dr. Saha, appearing in person has supported the MCIs stand. In addition, he has argued for dismissal of the writ petition on the ground of lack of territorial jurisdiction as well as availability of an alternative forum. His submission on the first point is that since the petitioner has challenged the validity of an order of the MCI, whose seat is in Delhi, and the said order was also passed in Delhi, this Court does not have the territorial jurisdiction to entertain the writ petition in which that order has been challenged. In his affidavit, he has taken a point that the interim order in this matter was originally obtained by misrepresenting to the Court that service of notice of the proceeding was made on him (respondent no. 4) whereas he was actually never served the notice of the proceeding on the day the interim order was obtained, being 5 July 2011. He has relied to a judgment of the Supreme Court in the case of Vijay Shekhar and Another Vs. Union of India (UOI) and Others, seeking dismissal of the writ petition on the ground of fraud. In this judgment, the Honble Supreme Court referred to a celebrated english authority, Lazarus Estates Ltd. Vs. Beasley (1956) 2 QB 702 to contend that a litigant taking recourse of fraud cannot be permitted to maintain an action.

22. I shall deal first with the issue of territorial jurisdiction of this Court to entertain the writ petition. In the event cause of action of a writ petition arises outside the territorial jurisdiction of this Court, and the seat of the main respondents is also outside such jurisdiction, then such a writ petition would have to be dismissed straightaway provisions of Article 226(2) of the Constitution of India, however, this Court has the jurisdiction to entertain a writ petition, if part of the cause of action of a proceeding arises within its territorial jurisdiction. The office of the MCI in this case is outside the territorial jurisdiction of this Court and the order impugned also emanates from Delhi. But the origin or source of the order impugned complaint filed before the state Council within the jurisdiction of this Court and the decision of the State Council. The impact of the order of the appellate forum would be removal of the writ petitioners name from the register maintained by the State Council. Thus the impugned order would have to be implemented within the territorial jurisdiction of this Court. The order has been served upon Dr. Mukherjee at Kolkata. These are the bundle of facts which are interlinked to form the cause of action of this writ petition and the place of occurrence thereof is also within the territorial jurisdiction of this Court. Hence I hold that part of the cause of action of this writ petition has accrued within the territorial jurisdiction of this Court. This writ petition thus is maintainable before this Court on this count.

23. On the issue of alternative remedy also, which was available to the petition u/s 24(2) of the 1956 Act, law is settled that alternative remedy is not an absolute bar to entertaining a writ petition. In this writ petition, the impugned decision is challenged on jurisdictional ground. This Court has entered into such issues on merit, and parties having contested the proceeding on filing affidavits, I do not think the writ petition ought to be dismissed at this stage on this technical plea.

24. On the point of fraud, if such fraud in the nature complained against, was established, that would have constituted a valid ground for vacating the interim order. But when the writ petition is being heard after filing of affidavits and parties have had chance to argue their cases on merit, the ultimate impact of such alleged fraud gets largely diluted. Moreover, the question as to whether there had been service of notice of the writ petition upon Dr. Saha or not is essentially a factual issue and witness action would have been necessary for determination of that question. Since parties have addressed me on merit of the matter primarily on legal issues, I shall proceed to deal with the contention of the respective parties on merit, and would refrain from non-suiting the writ petitioner on this ground alone. This shall, however, not be construed to be approval of the conduct of the petitioner in the event on the material date no service of notice of the proceeding was actually effected on the petitioner.

25. One of the reliefs claimed in the first writ petition is for a declaration that the said Clause 8.8 of the 2002 Regulations is ultra vires the Constitution of India and the 1956 Act. Argument on behalf of the writ petitioner on this point is that the source of power for making the Regulation 8.8 cannot be traced to either Section 20A nor to Section 33(m) of 1956 Act. According to the petitioner, Section 33 of the Act does not vest the MCI with power to deal with the question of punishment of a registered medical practitioner or with the question of an appeal against an order passed by the on the complaint of a victim by the State Council constituted under a separate statute. Moreover, the impact of the said clause, if held to be valid, would be amendment of Section 24 of the 1956 Act, as also Section 26 of the State Act would also be rendered nugatory. Both these provisions deal with appeal against the orders of respective Councils. A subordinate legislation, according to the petitioner, cannot override the substantive provisions of the statute. So far as the question of the Regulations being ultra vires the provisions of the 1956 Act is concerned, I find that the MCI is clothed with the power to prescribe standards of professional conduct and etiquette. Section 20A of the 1956 Act stipulates that Regulations made by the council may specify which nature of violations of prescribed standards of professional conduct and etiquette violations thereof shall constitute infamous conduct in any professional respect, and such provision is to have overriding effect on any subsisting law. Sub-Clause (m) of Section 33 of the same statute specifically empowers the Council, with previous sanction of the Central Government, to make Regulations laying down the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners. The power to prescribe standards of professional conduct and etiquette and enumerate the violations thereof which shall constitute infamous conduct in any professional respect carries with it the power to provide for consequences if the prescribed conduct or etiquette is breached. Such power is implicit, and necessary to give full effect to such a provision. No complaint has been made that the preconditions for making the Regulations, like not obtaining previous sanction of the Central Government, has been made in course of hearing of these two writ petitions. Further, Section 24 of the 1956 Act provides for appellate forum for the aggrieved medical practitioners only. The said section does not deal with complaint of an aggrieved patient. Thus I do not think the impugned Regulations override the provisions of Section 24 of the 1956 Act, or is in conflict with such provision.

26. Next comes the question of inconsistency between the provisions of Section 26 of the 1914 Act and Clause 8.8 of the 2002 Regulation. On this point, the petitioners submission is that a subordinate legislation cannot override a pre-constitution provincial enactment. To that extent, it has been argued, the impugned Regulations should fall foul of the provisions of the 1914 Act. On this point, three authorities have been relied upon by the learned counsel for the petitioner being the cases of Commissioner of Income Tax, U.P.-II, Lucknow Vs. Bazpur Co-operative Sugar Factory Ltd., Bazpur, Distt. Nainital, Delhi Development Authority, N.D. and Another Vs. Joint Action Committee, Allottee of SFS Flats and Others, and Union of India Vs. S. Srinivasan.

27. I have already held that Clause 8.8 cannot be held to be invalid on the ground of being beyond the Regulation framing power of the MCI. The nature of appeal contemplated in Section 26 of the 1914 Act can be preferred under Clause 8.8 as well. This results in creation of two fora for filing an appeal, which an aggrieved patient or his or her family may prefer. But this very fact cannot result in negation of the forum created subsequently. Existence of two fora only expands the choice of a potential appellant, and if lawmakers want such fora to coexist, the Court ought not to interfere.

28. On this point, however, additional submission of the petitioner is that the 1914 Act is a primary enactment and the 2002 is a subordinate legislation, and in a case conflict between the provisions of these two statutory instrument the former should prevail. But I also find that the issue of possible inconsistency was considered by the Honble Supreme Court and in an order passed on 10 October 2001 Malay Ganguly Vs. Medical Council of India [(2002) 10 SCC 93] [LQ/SC/2001/2329] , it was observed:-

Mr. Maninder Singh, counsel for the Respondent 1 has drawn our attention to some of the salient provisions of the Indian Medical Council Act, 1956 and contended that this is not a pari material with the Advocates Act, 1961. The Indian Medical Council Act, 1956 does not contain any provision regarding the constitution of the State Medical Councils under this Act and the State Medical Councils are required to be constituted under the State Acts. He further submits that some of the States have not enacted any provisions with regard to the constitution of the State Medical Council and the maintenance of State Medical Registers.

It may be desirable that there should be like the Advocates Act, a comprehensive provision made in the Medical Council Act relating not only to the Medical Council of India but also to the State Medical Councils. As this would involve Central legislation, we think it appropriate to implead the Union of India as one of the respondents in this case and we direct notice to be issued to the Union of India returnable after four weeks. Dasti service in addition is permitted. On the next date of hearing, counsel representing the different Medical Councils should place on record the respective State Acts. List after four weeks.

It was thereafter the issue was considered and thereafter directions were issued on 23 September 2003 in the case of P.C. Kesavan (supra), with the petition of Malay Ganguly (Writ Petition (c) No. 31/2000) was also considered. It was also urged on behalf of the petitioner that the aforesaid clause was not introduced specifically in pursuance of any direction of the Supreme Court, and the Supreme Courts direction upon the Council was to incorporate the provisions in the manner permissible under the law. The manner in which the said clause was introduced was not tested by any Court of law, and that could be scrutinized by this Court.

29. A Division Bench of this Court in a judgment delivered on 29th September, 2011 in the cases of (M.A.T. 613 of 2010, A.S.T. 60 of 2010, A.S.T. 53 of 2010 in connection with W.P. 9740 (W) of 2009) (1) Medical Council of India Vs. State of West Bengal & Ors., (2) Dr. (Mrs.) Rupa Basu (Banerjee) Vs. State of West Bengal & Ors. had considered all these points and it was held, dealing with the issue of this very clause of the 2002 Regulations:-

35. If a law (norm) in a higher layer in the above hierarchy clashes with lay in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the directive principles which, by Article 37, have been expressly made non-enforceable).

Here the regulation in our view belongs to the category of the lowest layer of the Central field of legislation. While respectfully following pronouncement of the Supreme Court Kerala Samsthana Chethu Thozhilali Union Vs. State of Kerala and Others, we hold that jurisdiction of State Government, under Act of 1914 cannot be declared to have been overridden by above regulation, for the simple legal principle that delegated legislation cannot run counter to supreme legislation, hence plea of repugnancy under Article 254 of the Constitution of the India does not arise.

We have merely observed the legal position as to the status of the aforesaid legislation. However, we cannot accept the ruling of the learned Trial Judge as the same being ultra vires, we cannot do so bearing judicial discipline in mind, as we notice the Supreme Court in the aforesaid case has directed to incorporate the same. We think that the matter can be reconsidered by the Honble Supreme Court only in this aspect when occasion will arise.

In view of the discussion as above we uphold the judgment and order of the learned Trial Judge dismissing the appeal preferred by Rupa, we, however, a low appeal of the Medical Council of India partly, and set aside declaration of ultra vires of clause 8.8 of the said Regulation made by the learned Trial Judge. This issue is left for future decision of the Honble Supreme Court. We stay permanently the operation of the aforesaid regulation (8.8) for this case only.

30. The appellate jurisdiction of the MCI under Clause 8.8 has also been considered in a judgment of the Delhi High Court delivered in W.P. (C) No. 5677/2012 and C.M. No. 11629/2012 in the case of Dr. Alka Gupta Vs. Medical Council of India & Anr. decided on 30th November, 2012 and in the case of Dr. K. Nedumaran Vs. The Chairman MCI (W.P. No. 29090-91/2012) decided on 8 March 2013 by the Madras High Court. But the issues raised in this writ petition were directed raised in those two proceedings. The unreported decision of the Andhra Pradesh High Court in the case of Dr. L. Sudhakar (supra), however, deals with questions similar to those raised in this writ petition also upholds the applicability of the said Regulation even in respect of complaint lodged prior to these clauses becoming operational. On this point that there was no specific direction of the Supreme Court in the case of P.C. Kesavan (supra) upon MCI to bring into operation Regulation 8.8, but it was only suggestion of the Supreme Court, the case of U.P. State Road Transport Corporation Vs. Assistant Comnr. of Police (Traffic) Delhi, Mr. Kar, learned Advocate appearing for the State Council submitted, relying on the said decision of the Supreme Court, that no statutory authority, even if empowered by the Supreme Court or otherwise, can operate dehorse the statute.

31. I am, however, not inclined to take a view different from the one adopted in the aforesaid decision by the Honble Division Bench of this Court so far as applicability of the Clause 8.8 is concerned in respect of a regular appeal against the decision of the State Council. In my opinion, it would be a case of judicial adventurism if I proceed to examine whether the said clause is valid or not, once its incorporation has been effected considering the aforesaid decision of the Supreme Court. I, however, do not adopt the course adopted by the Division Bench of this Court by permanently staying the operation of the provisions of Clause 8.8 of the 2002 Regulations, as such a course in my view would in substance would result in declaring the said provision ultra vires only, but in a particular case. Factual context of this case is different from the factual background in which the Division Bench passed such order. I adopt the observations made by the Division Bench of this Court dealing with the legality of the said provisions, but at the same time hold the said clause to be valid for the same reason explained in the judgment of the Honble Division Bench.

32. I shall now address the issue of constructive res judicata, on which ground also the appeal proceeding resulting in the impugned decision of the MCI has been assailed. If a litigant to a proceeding could have raised a point in an earlier proceeding in relation to a particular lis but chose not do so, the same litigant cannot be permitted to initiate a new proceeding on that issue against the same party, arising out of the same lis. His right to raise the same point shall stand forfeited, under the principles of constructive res judicata. This principle is embodied in Explanation IV to Section 11 of the CPC and the same principle would apply to a writ proceeding as well. Case argued on behalf of the writ petitioner is that since the impugned order was assailed by the petitioner in the writ petition filed by him before this Court, which was registered as W.P. No. 1357 of 2002, his right to agitate against the same order before the appellate forum would stand forfeited.

33. I have been taken through the pleadings of that writ petition and I find that barring bias, the impugned decision of the State Council was also challenged on the ground of certain procedural infirmities like not permitting cross-examination. Dr. Saha has referred to several authorities to contend that the principle of constructive res judicata would not apply in this case. These are Daryao and Others Vs. The State of U.P. and Others, Hoshnak Singh Vs. Union of India (UOI) and Others, and Bashir Ahmad and Others Vs. Government of Andhra Pradesh, The case of Daryao (supra) relates to applicability of the principle of res judicata in a writ petition filed under Article 32 of the Constitution of India. In the case of Hoshnak Singh (supra) it was held that if a writ petition was dismissed without a speaking order a second writ petition would lie on the same cause of action. In this regard, the observation of the Supreme Court is:-

10. In Virudhunagar Steel Rolling Mills Limited Vs. The Government of Madras, rejecting the contention that if the petition under Art. 226 is dismissed without issuing a notice to the other side though by a speaking order such a dismissal would not bar the subsequent petition for same cause of action or for the same relief, it was observed that this Court in Daryaos case did not mean to lay down that if the petition is dismissed in limine without notice to the opposite side it would not bar a subsequent petition. This Court only ruled that if the petition is dismissed in limine but with a speaking order which order itself indicates that the petition was dismissed on merits, the absence in notice to other side by itself would not be sufficient to negative the plea of res judicata in a subsequent petition in respect of the same cause of action. However, while negativing the contention on the facts of the cause this Court reaffirmed that if the petition is dismissed in limine without passing a speaking order then such a dismissal cannot be treated as creating a bar of res judicata. Similarly, in Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, a majority of the Judges affirmed the ratio in Daryaos case that if a petition was dismissed in limine without a speaking order such dismissal is not a bar to the subsequent petition under Article 226 is dismissed not on merit but because an alternative remedy was available to the petitioner or that the petition was dismissed in limine without a speaking order such dismissal is not a bar to the subsequent petition under Article 32. It must follow as a necessary corollary that a subsequent petition under Article 226 would not be barred by the principles analogous to res judicata. Re-affirming the view taken on this point in Daryaos case, in P.D. Sharma Vs. State Bank of India, the preliminary objection about the bar of res judicata was negative. It is, therefore, incontrovertible that where a petition under Art. 226 is dismissed in limine without a speaking order such a dismissal would not constitute a bar of res judicata to a subsequent petition on the same cause of action, more so, when on the facts in this case it appears that the petition was dismissed presumably because the petitioner had an alternative remedy by way of a revision petition u/s 33 of the 1954 Act which remedy he availed of and after failure to get the relief he moved the High Court again for the relief. It would be incorrect in such a situation to dismiss the petition on the ground that the order made by the revisional authority dismissing the revision petition had the effect of merging the original order against which the revision was preferred with the order made by the revisional authority and, therefore, the challenge on the fresh cause of action to the order made by the revisional authority would of necessity be a challenge to the original order also and the petition would be barred by the principles analogous to res judicata as the first order had become final. The High Court was clearly in error in dismissing the petition on this short ground.

34. The ratio of these proceedings, however, in my opinion, do not apply in the facts of the present case, except that there may be some similarity in the factual context of this case with the decision of the Honble Supreme Court in the case of Hoshnak Singh (supra). When the writ petition was dismissed, the finding of medical negligence on the part of the writ petitioner by the Honble Supreme court was not there. On behalf of the petitioner, it was submitted that the decisions of the Medical Council and the Supreme court operate in different fields and hence the judgment of the Supreme Court in the case reported in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others, cannot have any impact on the proceeding before the Council which is comprised of experts from the same profession.

35. I shall deal with that aspect of the argument on the part of the petitioner later in this judgment. Reverting to the principle of constructive res judicata, I do not think this principle would not apply in the instant case in relation to appeal of the petitioner before the MCI because of a different reason. Proceeding before the Council, whether at the State or at the Central level on the allegation of medical negligence is primarily based on factual enquiry, which is not permissible to be dealt with in a writ proceeding. In a writ proceeding, a decision can be assailed on the ground of procedural flaws or ex facie error of law as well as on jurisdictional ground. Thus, finding on the question of professional misconduct of a medical practitioner on merit considering the factual background of the complaint by the State Council could not have been challenged in the writ petition under ordinary circumstances. Dr. Saha also did not question the decision of the State Council on merit in the writ petition, as it appears from the pleadings thereof. Before the appellate forum, the impugned decision of the State Council was assailed on merit. Dr. Saha following the practice evolved over the years by law Courts dealing with writ petition, could not have invoked jurisdiction of the Court under Article 226 of India to decide on disputed factual issues in his writ petition. The principle of constructive res judicata cannot be made applicable to negate the appeal of Dr. Saha before the appellate forum, as issues on merit could not have been ground of attack on the decision of the State Council made in the said writ petition. To apply the principle of constructive res judicata, the grounds contained in the subsequent proceedings must have been capable of being raised in the proceeding instituted and determined prior in point of time. But in this case, complaint raised on factual issues in assailing the decision of the State Council could not have been raised in the writ petition even though the same decision was challenged in the latter proceeding.

36. Next comes the question as to whether in the given case, an appellate forum which was created subsequent to the date of institution of the proceeding before the State Council by Dr. Saha could be invoked by him. On this point, main argument of the writ petitioner has been that right of appeal is a substantive right and appellate forum is a creature of statute. No person can claim to have an inherent right of appeal. Two authorities, which support the latter proposition of law, being the cases of Smt. Ganga Bai Vs. Vijay Kumar and Others, and Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, has been relied upon by the petitioner. This proposition of law is cited to substantiate the case of the petitioner that an appellate forum which subsists on the date of institution of the suit would be the only appellate forum to guide subsequent proceeding arising out of the said suit and the vested right of appeal to that forum cannot be changed or generated by a subsequent amendment of law creating a new forum for appeal. On this point a passage from Sarkars CPC (page 553, 11th Edition) has been relied upon. In this passage, it has been noted:-

An appeal which was incompetent on the date of filing could not become competent as a result of a new Act passed subsequently [Hetram v. Collr., sup; see Surayya v. Inspector & C, A 1944 M 148] or which was competent on the date of filing could not become incompetent by subsequent legislation [Chhabildas v. Luhar, A 1967 G 7] unless retrospective effect is given [Examiner &c v. Subramania, A 1943 M 208]. In respect of suits instituted prior to the commencement of Amending Act 104 of 1976 where the valuation is less than Rs. 3,000/- the right of appeal is not taken away [Ramswaroop v. Hazarilal, 1996 AIHC 601, 603 (MP)]. Just as a right of appeal cannot be taken away during the pendency of an action except by a clear provision to that end, so also a new right of appeal cannot be availed of unless that right is given in a manner to apply to a pending case [Ratansi v. Jaysing, A 1954 N 348].

37. This position of law has been explained by the Judicial Committee of the Privy Council in the case of Delhi Cloth and General Mills Company, Limited Vs. Income Tax Commissioner, Delhi & Another (LIV, Indian Appeals 421):-

The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving, where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear suggestion that a judgment of the High Court referred to in sub-s. 2 is one which under sub-s. 1 has been pronounced by "not less than two judges of the High Court," a condition which was not itself operative until the entire section came into force.

In their Lordships judgment, therefore, the petitioners in these cases have no statutory right of appeal to His Majesty in Council. Only by an exercise of the Prerogative is either appeal admissible.

38. A constitution Bench of the Supreme Court in the case of Garikapatti Veeraya Vs. N. Subbiah Choudhury, formulated the principle guiding this field on the same line, laying down:-

(23) From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings al connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that al rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it is so provides expressly or by necessary intendment and not otherwise.

39. The same principle of law has subsequently been followed by the Supreme Court in the case of Nahar Industrial Enterprises Ltd. Vs. Hong Kong and Shanghai Banking Corporation, and a Full Bench of the Allahabad High Court in the case of Pratap Narain Agarwal Vs. Ram Narain Agarwal and Others,

40. To sum up, the contention of the petitioner on this point is that no Regulation can be framed unless there is specific conferment of power by appropriate legislation in that regard to generate a new forum of appeal against the decision of the State Council which was not there on the date of institution of the complaint before the latter. It has further been emphasized on behalf of the petitioner that a subordinate legislation cannot have retrospective application unless the parent statute gives authorization to that effect. On this point the decisions of the Supreme Court in the case of CIT Vs. Bazpur Coop. Sugar Factory Ltd. (supra), DDA Vs. Joint Action Committee, Allottee of SFS flats (supra), Union of India Vs. S. Srinivasan (supra) and MD University Vs. Jahan Singh (supra). The basic principle on this point has been laid down by the Supreme Court in the case Income Tax Officer, Alleppey Vs. M.C. Ponnoose and Others, as quoted in the case of Bazipur Coop. Sugar Factory Ltd. (supra). It has been held in the case of M.C. Ponnose (supra):-

Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the persons or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-laws which can operate with retrospective effect (see Subbha Rao, J., in Dr. Indramani Pyarelala Dupta v. W.R. Nathu, the majority not having expressed any different opinion on the point; Modi Food Products Ltd. v. CST,; India Sugar Refineries Ltd. v. State of Mysore, and General S. Shivdev Singh v. State of Punjab).

41. The learned Single Judge of the Andhra Pradesh High Court considered the judgment of the Honble Supreme Court in the case of Zile Singh Vs. State of Haryana and Others, coming to his decision that Clause 8.8 of the 2002 Regulations ought to have retrospective applications, covering appeals which arose from complaints instituted prior to the date the said clause became operational. In the case of Dr. L. Sudhakar (supra), dealing with this very provision (i.e. Clause 8.8) it was held:-

17. The decision reported in Zile Singh v. State of Haryana and Others referred to by Sri. D. Prakash Reddy, learned senior counsel, is about the permissibility of retrospectivity a legislation and the possibility of rebutting the presumption against retrospectivity even by necessary implication, in a case where the new law is made to remove an acknowledged evil for the benefit of the community as a whole. The inclusion of Regulations 8.7 and 8.8 on the suggestions of the learned Attorney General and with the approval of the Supreme court was obviously to cure a patent defect or omission negativing the object and purpose of entrustment of statutory duties in this regard to the Medical Council of India and the Supreme court pointed out that where a statute has been passed for the purpose of supplying an omission in a former statute or to explain a former statute, the subsequent statute has relation back to the time when the prior Act was passed and the rule against the retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature.

18. The Supreme Court, referring to various precedents on this aspect, was clear that intrinsic evidence may be available to show that the amendment was necessarily intended to have retrospective effect. A draftsmans folly was noted to have been corrected in the case before Their Lordships and so is the situation in the present case as already stated above. To a similar effect is the precedent in State of Mumbai v. Vishnu Ramchandra wherein also the apex Court held that the Act designed to protect the public against acts of a harmful character may be construed retrospectively, if the language admits such an interpretation, even though it may equally have a prospective meaning. The Supreme Court followed the dictum that no man has such a vested right in his past crimes and their consequences as would entitle him to insist that no future legislation shall intervene, whatever be his past history.

19. As already referred to above, even in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Another relied on by the learned counsel for the writ petitioner, the distinction concerning amending statutes or provisions explaining any pre-existing legislation which was ambiguous or defective or an explanatory legislation to supply an obvious omission or clear up doubts as to the meaning of the previous Act were held to be capable of being construed to be retrospective and as the role of the Medical Council of India which has a statutory responsibility was totally excluded in these aspects though it has a duty to maintain the professional conduct, etiquettes and ethics once a complaint is entertained by a State Medical Council, the situation can be considered to be requiring supply of an omission in the phraseology of the Regulations.

20. While there can be no doubt that the normal rule is the availability of a right of appeal only in the event of such a right being available at the time of the institution of the original proceedings as pointed out by the larger Bench in Ramvilas Bajaj v. Ashok Kumar and Another, the principle of prospectivity of an amendment dealing with substantive rights of parties may not apply to a statute which is declaratory in nature. Adopting, what is called by Sri. D. Prakash Reddy, learned senior counsel, as purposive interpretation, to give effect to the purpose and object of the central statute and the Regulations made thereunder, clearly appears to be called for as recognized by the apex Court itself in ordering inclusion of Regulations 8.7 and 8.8. That the said Regulations 8.7 and 8.8 have to be deemed to be retrospective in operation, so naturally supplying an omission in the original draft is clear from the alternatives provided by the said sub-Regulations as the first is to enable the Medical Council of India to intervene in the event of unjustified delay in dealing with a compliant by the State Medical Council and the second is to provide for the scope for correction by the Medical Council of India in an appeal that is to be filed within sixty days from the order of the State Medical Council with the filing of such appeal being made even later permissible, which can be entertained by the Medical Council of India in the event of existence of a sufficient cause.

21. If the Regulations 8.7 and 8.8 are thus considered to be curative and to be having retrospective effect in the light of the manner in which they were brought into the Regulations on the suggestions of the learned Attorney General and the directives of the Supreme Court, the appeal by the third respondent and the entertainment of the same by the Medical Council of India cannot be considered to be vitiated by total lack of jurisdiction.

22. The appeal by the third respondent is dated 31.03.2004 received by the Medical Council of India on 05.04.2004. The notification introducing 8.7 and 8.8 in 2002 Regulations was stated to be by MCI 211(2)/2004 (Ethics), dated 04.03.2004 published in the Extraordinary Gazette of India, dated 27.05.2004, with the date 26.05.2004. While the Act did not refer to the manner in which any Regulations made u/s 33 of the Act come into force and the notification in the Extraordinary Gazette of India, dated 27.05.2004, did not specify as to since when the Regulations came into force, when one falls back upon the General Clauses Act, 1987, Section 5(30) of the Act states that unless the contrary is expressed, as Central Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. The word commencement has been defined in section 3 Clause 13 of the General Clauses Act, 1987 with reference to a Regulation as the day on which the Regulation comes into force. In the absence of anything to show that the coming force of the amended 8.7 and 8.8 depended on their publication in the official gazette, it may not be illegal or illogical to construe that the amendment may have to be deemed to come into force on the date of the notification itself much prior to the filing of the appeal by the third respondent. Of course, even if such a view were to be taken that the date of the notification should govern the entertainment of the appeal under 8.8, still the fact remains that when the original complaint was entertained by the A.P. Medical Council and decided by it, there was no right of appeal, the answer to which, if the appeal was considered to be maintainable before the Medical Council of India, will lie only in construing the amendment to be having retrospective operation.

42. Dr. Saha and the learned counsel for the MCI on the other hand have submitted that it is not an absolute proposition of law that a new forum of appeal cannot be created by implication to be made applicable in respect of subsisting proceedings. Dr. Saha in particular laid stress on the case of Kavalappara Kottarathil Kochuni and Others Vs. The State of Madras and Others, and a later decision of the Supreme Court in the case of Zile Singh (supra) which was referred to in the case of Dr. L. Sudhakar (supra). He submitted that in respect of a beneficial legislation conceived to help the victims of medical maltreatment, retrospective construction of the aforesaid provision was necessary.

43. The law on this subject as it appears from various authorities is this. Presumption is in favour of prospective application of a legislation, unless by express provision, the enactment is given retrospective application. By intendment or implication also an enactment can be given retroactive effect. This principle would apply to construction of a primary enactment. The same principle of law guides the field of retrospective operation of a subordinate legislation, also, with an additional requirement. For the purpose of giving it retrospective operation, the parent statute must have provision for empowering the delegated authority to frame such regulations with retrospective operation. Such empowering provision of statute, to enable the delegated authority to frame Regulation with retrospective effect could also be either express, or by implication.

44. So far as the question of right of appeal is concerned, there is no absolute on creation of a new forum during subsistence of an existing proceeding. The right which is protected or preserved by different judicial pronouncements on this subject is right of a litigant to prefer an appeal as per the law prevailing on the date of institution of the initial proceeding. That right of appeal cannot be taken away unless there is express or implied statutory provision. In the event the statutory instrument by which such new appellate forum is introduced otherwise permits creation of such a new forum, then a party to the litigation against whom an appeal is filed is also entitled to be guided by the appellate provision which prevailed on the date of institution of the proceeding, unless of course the appellate provision is given retrospective application by the statutory instrument either in express terms or by implication. So far as the issues raised in this writ petition is concerned, it has to be tested first as to whether the 1956 Act empowered the MCI to frame the amendment Regulation with retrospective effect, and if there was such empowerment, whether by implication it could be inferred that Clause 8.8 was to operate retrospectively.

45. Dr. Sahas argument in this regard has been that I should take notice of the fact that the aforesaid clauses of the 2002 Regulations are beneficial legislative provisions and for this reason the said provision ought to be given retrospective operation so that a greater number of victims of maltreatment by the medical practitioners can avail of such appellate forum. This is how the said Regulation has been construed by the Andhra Pradesh High Court in the case of Dr. L. Sudhakar (supra). In that decision, several authorities have been referred to in which certain statutory instruments were construed to have retrospective effect on the ground that such provisions were declaratory in nature, supplying an omission in a former statute. The principle of purposive construction was also applied. Clauses 8.7 and 8.8 of the 2002 Regulations have been held to be curative in nature.

46. The aforesaid judgment was delivered in connection with a complaint proceeding instituted before the State Council of Andhra Pradesh. In this case, the action of the State Council is guided by the provisions of the 1914 Act. Under the provisions of Section 26 of the 1914 Act, a victim patient was entitled to prefer an appeal against the decision before the State Government. Clause 8.8, thus in effect created another forum for appeal. In this case, since an appellate forum was subsisting on the date the proceeding was instituted, I do not think the normal principle of construction of a Regulation having prospective application ought to be construed in a different manner applying the doctrine of purposive construction in respect of a beneficial construction.

47. Further, to interpret Clause 8.8 to have retrospective application, conflict with another established principle of law, that a litigant has a vested legal right to have his appeal heard before a forum of appeal existing on the date of institution of the proceeding would have to be resolved. In my opinion, in the absence of express provision contained in regard to applicability of Clause 8.8 of the 2002 Regulations, this being a subordinate legislation, provisions of this clause cannot be held to be applicable in the proceeding initiated against the writ petitioner. Such an interpretation would otherwise clash with the writ petitioners vested legal right to be arraigned in an appellate proceeding against the decision of the State Council before the forum which existed on the date such complaint was instituted.

48. In this case, the Regulation by which the forum was being created is a subordinate legislation, and for such a Regulation to have retrospective effect, authorization in the Parent Act permitting such retrospective framing of Regulation is necessary. Neither in the parent statute, nor in the Regulation made, there is express provision making the Regulation effective from a date earlier than one on which it came into existence. I do not think only on the basis of the dictum of "beneficial" or "purposive" construction, the said clause can be held to be retrospective. While tracing the origin of Clause 8.8 of the 2002 Regulations, two orders or directions of the Honble Supreme Court were referred to. I do not find any observation or indication in the orders of the Honble Supreme Court that the aforesaid provision was to operate retrospectively. There is no express authorization in Section 20A or 33 of the 1956 permitting the MCI to make the Regulation retrospective in operation. For the sole reason that larger number of victims of medical negligence or malpractice would have a forum for appeal, I do not think a subordinate legislation can be construed to have retrospective operation, particularly since under the 1914 Act, a forum for appeal was subsisting.

49. I am unable to accept the argument of Dr. Saha on this point and I respectfully disagree with view taken by the learned Single Judge of the Andhra Pradesh High Court in the case of Dr. L. Sudhakar (supra). In that judgment the additional embargo on delegated authorities in framing Regulations without authorization of the parent statute was not in issue. In the cases of K.K. Kochuni (supra) and Zile Singh (supra), it was operation of primary legislative enactments which were being examined by the Honble Supreme Court and not a subordinate legislation. So far as the 1956 Act is concerned, or the amended provisions of the Regulations, no material has been shown on the strength of which it could be implied that clause 8.8 is to have retrospective effect.

50. In this case, the appeal forum came into existence after the authorities of first instance had given its decision. Thus, the Regulation 8.8 would have had to be construed to have retrospective operation to permit entertaining of the appeal by the MCI. As I have already held that the aforesaid clause of the Regulations cannot be interpreted to have retrospective application, the act of entertaining the appeal and consequent decision of the MCI dated 23rd May, 2011, in my opinion, has been without jurisdiction.

51. The question of applicability of the provisions of Section 14 of the 1963 Act has also been argued before me in detail as it was under the aforesaid provision of MCI had entertained the appeal. The decision of the State Council was delivered on 18 June 2002, and Clause 8.8 of the 2002 Regulations appears to have come into force after publication of the notification in that regard in the Extraordinary Gazette of India dated 27 May 2004. The appeal was filed by Dr. Saha before the MCI on 15 May 2009. The MCI has applied the provisions of Section 14 of the Limitation Act, 1963, giving Dr. Saha benefit of the period during which he was prosecuting his writ petition, W.P. No. 1357 of 2002 until the date on which his curative petition was dismissed by the Honble Supreme Court, on 24 March, 2009. Under normal circumstances, it would not have been necessary to give my finding on this point, which would have been relevant if I had held that the appeal of Dr. Saha was otherwise maintainable. But substantial argument was advanced before me on this point by the learned counsel appearing for the parties and Dr. Saha, appearing in person. I shall accordingly deal with this aspect of the controversy as well, assuming that the MCI could otherwise entertain Dr. Sahas appeal. Section 14 of the Limitation Act, 196 provides:-

14. Exclusion of time of proceeding bona fide in court without jurisdiction.-

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXXIII of the Code of Civil Procedure, 1908(5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

Explanation.-For the purpose of this section,-

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a plaintiff;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

52. Section 2(j) of the 1963 Act defines period of limitation to mean the period of limitation prescribed for any "suit, appeal or application" by the schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of the said Act. No period of limitation has been prescribed in the Schedule in respect of an appeal preferred under Clause 8.8 of the 2002 Regulations. There is, however, a residuary provision in Part II of the Schedule under the heading "OTHER APPLICATIONS", which has been elaborated against entry 137 of the Schedule as "Any other application for which no period of limitation is provided elsewhere in this division". The prescribed period of limitation for such application is three years from the date the right to appeal accrues. Stand of the writ petitioner on this point is the provisions of the 1963 Act applies only to proceedings in Court, and a quasi-judicial tribunal requires to be specifically conferred with power to invoke the provisions of the Limitation Act, 1963. Learned counsel appearing for the State Council has supported this stand of the petitioner.

53. Dr. Saha and Mr. Bhattacharya on the other hand have drawn my attention to Section 2(a) of the 1963. The expression "applicant" is defined in the said Section to mean anyone who is a petitioner. referring to provisions of Section 14(2) of the 1963 Act, Dr. Saha has argued that the said provision refers to "any application", and not "suit" which is provided in sub-Section (1), and the expression "application" ought to be construed to include an appeal as well before a properly constituted forum. Referring to applicability of the provisions of the Limitation Act, he has drawn my attention to Section 29(2) of the 1963 Act. Section 29 of the said Act provides:-

29. Savings.-

(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872(9 of 1872).

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this act shall apply to any suit or other proceeding under any such law.

(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882(5 of 1882), may for the time being extend.

54. Dr. Sahas submission on this point is that the 2002 Regulations framed under the provisions of 1956 Act is a special law providing for specific period of limitation, and accordingly it was within the jurisdiction of the MCI to invoke the provisions of Section 14(2) of the Act while entertaining appeal of Dr. Saha.

55. He has referred to the meaning of the term "petitioner" in different dictionaries, and this term is defined to mean "one who presents a petition to a Court, officer or legislative body". Oxford Advanced Learners Dictionary (seventh edition) defines a "petitioner" as:-

Petitioner/noun 1 a person who organizes or signs a petition 2 (law) a person who asks a court to take a particular course of action 3 (formal) a person who makes a formal request to sb in authority.

56. In support of his submissions, he has cited the judgment of the Supreme Court in the case of State of Goa Vs. Western Builders, In this decision, provisions of Section 14 of the 1963 Act has been held to be applicable in a proceeding for setting aside an award u/s 34 of the Arbitration and Conciliation Act, 1996 (1996 Act). Citing the decisions of Shakti Tubes Ltd. tr. Director Vs. State of Bihar and Others, and J. Kumaradasan Nair and Another Vs. IRIC Sohan and Others, he has submitted that the provisions of Section 14 of the 1963 Act ought to be liberally construed for its application. So far as provisions of the 1996 Act is concerned, however, there is a specific provision therein, being Section 43, under which provisions of the Limitation Act has been made applicable in respect of arbitrations as it applies to proceedings in Court, with certain qualifications specified in sub-clauses (2), (3) and (4) of that provision. For the purpose of adjudication of this proceeding, the aforesaid sub-clauses are not of much relevance. The cases of Shakti Tubes Ltd. (supra) J. Kumaradasan (supra) relate to proceedings filed before the regular Courts, and ratio of these decisions are not applicable so far as this aspect of the present proceeding is concerned. On behalf of the petitioner, the decision of the Supreme Court in the case of T. Kaliamurthi and Another Vs. Five Gori Thaikal Wakf and Others, was relied upon, but the ratio of this decision has no application in the facts of this case. Two other authorities were referred to on behalf of the petitioner, being decisions of this Court, reported in State of West Bengal Vs. Afcons Infrastructure Ltd., and AIR 2009 Cal 131 [LQ/CalHC/2008/984] . Both these judgments again deal with application of Limitation Act in relation to proceedings arising out of the 1996 Act.

57. Decisions delivered in relation to applicability of the provisions of the 1963 Act in a proceeding arising out of the 1996 Act in my opinion cannot come in aid of the respondents in this writ petition, as there is specific provision in the 1996 Act on the question of application of the 1963 Act. In this proceeding, there is no provision similar to Section 43 of the 1996 Act incorporated in the 1956 Act or the 2002 Regulations. Thus, I will have to test, in this proceeding, as to whether the provisions of the 1963 Act applies in respect of any special law, in which timeframe has been prescribed for taking certain actions, but there is no reference to the provisions of 1963 Act in such special law-in this case being the 1956 Act and the 2002 Regulations.

58. In the case of Sakuru Vs. Tanaji, it was held by the Honble Supreme Court that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial tribunals, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil and Criminal Procedure.

59. What is being argued by Dr. Saha on this point is that the provisions of Section 14 the Limitation Act, 1963 applies to proceedings before all authorities on the question of exclusion of time unless the statute specifically excludes its operation. The decision cited on this point, I have already observed, cannot come in his assistance as that decision was rendered in a proceeding arising out of 1996 Act, in which there is specific provision importing the provisions of the 1963 Act. In B.B. Mitras commentary on The Limitation Act, (21st edition), the position of law has been explained as:-

Act not to apply to al applications. Although the new Limitation Act 1963 gives a wider definition to application yet the "long title" makes it clear that only certain and not all applications are covered by the Act. It cannot be said that by adding the words "other proceedings" in the long title or by deleting the preamble or by enlarging the scope of the definition of applicant is s. 2(a), the Legislature has intended to make the new Act applicable to proceedings before bodies other than courts, such as quasi-judicial tribunal or even as executive authority. There can be no doubt that the Act applies to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless its application is excluded by any enactment. The extent of such application is governed by provisions of sub-sec. (2) of s. 29. Even if such authorities are governed by CPC or Criminal Procedure Code, the Limitation Act 1963 will not be applicable to the proceedings before such authorities.

60. The decision of the Supreme Court in the case of State of Goa (supra) can be distinguished in the facts of the present case having regard to the applicable statutory provisions. The said judgment was delivered considering the provisions of Arbitration and Conciliation Act, 1996. u/s 43 of 1996, the provisions of the Limitation Act, 1963 has been made applicable to arbitrations. There is no such provision either in the 1956 Act, or in the 2002 Regulations. The MCI, while dealing with appeals under Clause 8.8 of the 2002 Regulations cannot be said to have the trappings of a regular Court. No jurisdiction or power ordinarily vested with a Civil Court has been conferred on the MCI. No such provision was cited or shown to me at the time of hearing of this writ petition. MCI also does not have any inherent power to extend the statutory timeframe. In such circumstances, I am of the opinion that it was not within the jurisdiction of the MCI to invoke the provisions of Section 14 of the Limitation Act, 1963, while entertaining the appeal of Dr. Saha. The impugned decision ought to be invalidated on this ground as well.

61. Argument was also made on behalf of the petitioner and the State Council that under Clause 8.8, the jurisdiction to decide an appeal vests with the MCI as a body, but the impugned decision was taken by the Ethics Committee of the MCI, which was impermissible. Certain english authorities were cited on behalf of the petitioner on this issue. But I do not consider it necessary to adjudicate on this dispute, as I have held the appeal of Dr. Saha under Clause 8.8 itself was not maintainable.

62. Having held so, I would like to express my opinion on another aspect of the controversy involved in this proceeding. There appears to remain one unbridged gap in the justice delivery procedure, so far as the case of Dr. Saha is concerned in relation to his complaint before the State Council. This point was specifically raised by Dr. Saha, who had submitted that in the event the decision of MCI was set aside, that would undermine the finding of the Honble Supreme Court. Main complaint of Dr. Saha before the State Council was negligence on the part of the medical practitioners who had been treating his wife in Kolkata. The dismissal of Dr. Sahas complaint by the State Council was one of the factors which was considered by the National Commission, while rejecting the petition of Dr. Saha, made under the provisions of the Consumer Protection Act, 1986. Eventually the Honble Supreme Court found two of the medical practitioners guilty of having committed medical negligence. When the State Council gave its decision, this finding of the Supreme Court was not available before the former, as the judgment of the Supreme Court was delivered later. Though the State Council and the regular judicial fora operate at different plains, the decision of the Honble Supreme Court as the highest Court of land ought to remain binding on the professional bodies like the State Medical Council if such decision is delivered on the same or near-identical factual issues. The issues considered by the Honble Supreme Court was almost identical to the ones, on the strength of which Dr. Saha lodged his complaint before the State Council, and the State Council gave their decision.

63. In paragraph 20 of the writ petition, a stand has been taken by the writ petitioner which borders on being an act of effrontery, while seeking to negate the finding of the Honble Supreme Court. In this paragraph it has been stated by the petitioner:-

20. The Honble Supreme Court proceeded on the footing that your petitioner treated Anuradha Saha for TEN. This is wholly wrong. Ethics Committee itself has held your petitioner diagnosed the disease as Allergic Vasculitis. Your petitioner had treated Anuradha Saha for Vasculitis and not for TEN. For this fundamental error the Supreme Court judgment is of no help to the Ethics Committee which has to arrive independently on merits about misconduct, if any.

64. I do not think a litigant can be permitted to assert before a Court of law in India that the highest Court of the land has proceeded on a wrong footing while delivering a judgment. The decision of the Supreme Court ought to be binding on the State Council as well as the MCI constituted under the provisions of the 1914 Act and the 1956 so far as the issue of medical negligence is concerned, which is described as "infamous conduct in any professional respect" in the 1914 Act. But I am not giving any direction on how to bridge this justice gap as that issue is not in lis before me. Will the State Council have to re-examine this question because of the subsequent finding of the Honble Supreme Court in the judgment reported in Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others, If so in what manner and under which provision of law There is no scope for answering that question in this proceeding.

65. I accordingly hold that Clause 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 is valid but quash the decision of the MCI, which appears to have been taken by their Ethics Committee, bearing memorandum no MCI-211(2)(190)/2009-Ethics/11831 dated 21 May 2011, a copy of which has been made Annexure "P9" is quashed.

66. So far as the writ petition of Dr. Saha is concerned, which has been registered as W.P. No. 3993 (W) of 2013, main prayer of the petitioner is enhancement of punishment. In this petition, main argument of Dr. Saha was the dimension of the negligence on part of the concerned medical practitioners was such, that the MCI wrongly considered age and experience of the writ petitioner in W.P. No. 9758 (W) of 2011 to be mollifying factor in deciding on the punishment. As I have held that the MCI had no jurisdiction to entertain and decide the appeal, and quashed the decision of the MCI in W.P. No. 9758 (W) of 2011, the question of enhancement of punishment cannot be examined.

67. This writ petition is shall stand dismissed.

68. There shall be no order as to costs in both the writ petitions.

69. Urgent certified photocopy of this order be made forthwith available to the parties if applied for, subject to compliance with all necessary requisite formalities.