W.P.(C).No.34537/19

W.P.(C).No.34537/19 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942** ## **WP(C).No.34537 OF 2019(N)** ## **PETITIONERS:** - **1 DR.MATHEW JACOB, AGED 47 YEARS S/O.K.C.JACOB, RESIDING AT NSC, KENT ILLAM, VENNALA P.O., KOCHI- 682028.** - **2 DR.SANGEETH P.S., AGED 41 YEARS S/O.P.K.SRINIVASAN, RESIDING AT PERATH HOUSE, ALA WEST, THRISSUR- 680668.** - **3 DR.RAJESH RAJAGOPAL, AGED 40 YEARS S/O.G.RAJAGOPAL, RESIDING AT DEVIGOPALAM, VNRA16/A, VADAKKENADA ROAD, ALAPPUZHA- 688003.** - **4 DR.SHEJOY P.JOSHUA, AGED 41 YEARS S/O.LATE P.J.JOSHUA, RESIDING AT 23, MARVEL MANISOINS, KATHRIKADAVU, KOCHI- 682017.** - **5 DR.DEEPAK VENUGOPALAN, AGED 30 YEARS S/O.DR.V.C.VENUGOPLALN, RESIDING AT FLAT NUMBER 12A, ASSET OCEAN GROVE APARTMENTS, SOUTH CHITTOOT TEMPLE, KOCHI- 682027.** - **6 DR.ARUN GEORGE, AGED 34 YEARS S/O.GEORGE M.T, RESIDING AT MULAVARICKAL HOUSE, ANAPPARA P.O., ANGAMALY, ERNAKULAM- 683581.** W.P.(C).No.34537/19 2 **7 DR.T.R.JOHN, AGED 53 YEARS S/O.LATE T.M.JOHN, RESIDING AT HOUSE NO.242, 14TH CROSS ROAD, GIRINAGAR, KADAVANTHRA, KOCHI682020.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.** - **2 TRAVANCORE-COCHIN COUNCIL OF MODERN MEDICINE COMBINED COUNCIL BUILDING, RED CROSS ROAD, THIRUVANANTHAPURAM, KERALA695035.** - **3 DR.S.GANAPATHY, ANJALY, MARUTHADI P.O., KOLLAM- 691003.** **R2 BY ADV. SRI.N.RAGHURAJ R3 BY ADV. SRI.R.RANJITH R3 BY ADV. SRI.M.T.SURESHKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2020, THE COURT ON 27-05-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.34537/19 3 ## **JUDGMENT** **Dated this the 27[th] day of May 2020** - 1.This writ petition is filed by seven medical practitioners challenging Exhibit P1 show cause notice issued to the 1[st] petitioner by the 2[nd] respondent. It is submitted that the 3[rd] respondent had submitted Exhibit P2 complaint before the 2[nd] respondent alleging offences under the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter referred to as “the 1994 Act”) and that the petitioners had been required to furnish their explanations in respect of the complaint. - 2.Heard the learned counsel appearing for the petitioners, the learned Government Pleader appearing for the 1[st] respondent, the learned Standing Counsel appearing for the 2[nd] respondent and the learned counsel appearing for the 3[rd] respondent. - 3.It is contended by the learned Senior Counsel appearing for the petitioners that on the allegations in respect of the 1994 Act, the 2[nd] respondent has no authority whatsoever to W.P.(C).No.34537/19 4 require an explanation from the petitioners and that action has already been initiated against the hospital under the provisions of the 1994 Act. It is stated that in terms of the 1994 Act, the appropriate authority under the said Act is empowered to make investigation with regard to any complaint and the power of any other authority is specifically excluded. Relying on the decision of the Apex Court in Jeewan Kumar Raut and another v. Central Bureau of Investigation [(2009) 7 SCC 526], it is contended that the Act being a special enactment which provides for an adjudicatory mechanism into any complaint arising in respect of the same, the parallel action taken by the 2[nd] respondent is violative of the clear provisions of the Act. Relying on Sections 13 and 22, it is contended that no other authority or court has any power to take cognizance of an offence under the Act, except on a complaint made by the appropriate authority under Section 13. - 4.It is further contended that the High Court of Punjab and Haryana in O.P.Mahajan and others v. State of Punjab W.P.(C).No.34537/19 5 (MANU/PH/1461/2018] and the High Court of Madras in Ganeesh v. State and others [MANU/TN/0342/2015] have also held that since the 1994 Act is a special Act and since the investigations is to be carried out by an authorised officer in terms of Section 13 of the Act, no one else can investigate any complaint of the breach of any of the provisions of the Act or the rules made thereunder. It is contended that since the matter is under investigation by the authorized officer on a complaint made by the 3[rd] respondent himself, the action taken by the 2[nd] respondent is totally non est and unsustainable. 5.A counter affidavit has been placed on record by the 2[nd] respondent contending that Exhibit P1 is only a communication forwarding Exhibit P2 complaint to the 1[st] petitioner seeking explanation to the same and that as such, no writ petition would be maintainable as against Exhibit P1. It is further submitted that the 2[nd] respondent is the statutory state council of modern medicine constituted under the Travancore Cochin Medical Practitioners Act, 1953 (the TCMP W.P.(C).No.34537/19 6 Act for short) and is duty bound to ensure ethical practice by medical practitioners. It is stated that the 2[nd] respondent is duty bound to conduct disciplinary actions contemplated under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 against persons who violate the provisions of the Act, Rules and Regulations. It is stated that the Ethics Committee of the 2[nd] respondent had considered the complaint received against the petitioners. In terms of Rule 63 of the Travancore Cochin Medical Practitioners Rules,1956, a notice was issued to the petitioners and the Medical Superintendent of the hospital with a copy of the complaint requiring their explanations in the matter. It is stated that the Regulations confer authority of the 2[nd] respondent to take appropriate action for violation of professional conduct by a medical practitioner. It is stated that apart from offences under the 1994 Act, Exhibit P2 complaint also contained allegations of violation of professional conduct by the petitioners and that the 2[nd] respondent is duty bound to enquire into such allegations. It is stated that no adverse action or imposition of punishment W.P.(C).No.34537/19 7 has been effected by the 2[nd] respondent and the writ petition challenging a notice requiring an explanation from the petitioners is not maintainable. It is further submitted that the decisions relied on by the petitioners are authority only on the point that an investigation into any offence under the Act is possible only at the instance of the appropriate authority under the said Act and that criminal prosecution, otherwise than on a complaint by the appropriate authority, is not maintainable. In the instant case, it is contended that the complaint contained allegation that the conduct of the petitioners amounted to professional misconduct apart from being violative of the professional ethics expected of medical practitioners. Since the complaint of the 3[rd] respondent involved allegations of professional misconduct as well, it is contended that the 2[nd] respondent was well within its powers and is the only authority which can initiate an investigation into such allegations of professional misconduct simplicitor. It is therefore contended that the writ petition is totally only devoid of merit and is liable to dismissed with costs. W.P.(C).No.34537/19 8 6.A counter affidavit has been filed by the 3[rd] respondent as well. It is contended that the TCMP Act and the 1994 Act are distinct and different in scope and operate in different spheres. It is stated that Exhibit P2 complaint alleged serious professional misconduct committed by the petitioners and that their conduct had led to the death of two persons mentioned in the complaint. It is stated that the 2[nd] respondent is duty bound to enquire into a complaint of professional misconduct by medical practitioners and that the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 specifically provides such power in the 2[nd] respondent. It is stated that in the cases of professional misconduct, the appropriate authority under the 1994 Act would have no power to enquire and that the issue is to be considered by the 2[nd] respondent. It is therefore contended that the action of the 2[nd] respondent in seeking explanations on the complaint submitted by the 3[rd] respondent is perfectly in order and that the writ petition is, therefore, liable to be dismissed. W.P.(C).No.34537/19 9 7.I have considered the contentions advanced. The Transplantation of Human Organs and Tissues Act, 1994 is an enactment to provide for regulation of removal, storage and transplantation of human organs and tissues for therapetic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. The enactment provides for authorities for granting permission for removal of human organs or tissues or both. Section 13 provides for the appointment of appropriate authorities for the purposes of the Act. Chapter 6 provides for offences and penalties. The offences are removal of human organs and tissues or both without authority, commercial dealings in human organs and illegal dealings in human organs. Section 24 provides that no court shall take cognizance of offence under this Act, except on a complaint made by appropriate authority or by a person who has given notice of not less than 60 days to the appropriate authority. W.P.(C).No.34537/19 10 8.The 2002 Regulation prescribes a Code of Medical ethics to be followed by medical practitioners. Chapter 1 thereof provides for duties and responsibilities of physician in general. Chapter 2 prescribes the duties of physicians to their patients. Chapter 6 enumerates unethical Acts while Chapter 7 enumerates misconduct. Chapter 8 prescribes punishment and disciplinary action. Regulation 8.2 reads as follows:- “8.2. It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/Societies/ Bodies. “ Therefore, it is evident that the notices issued to the petitioners are only in respect of the misconduct alleged against them. Exhibit P2 complaint discloses allegations of W.P.(C).No.34537/19 11 offences under the 1994 Act. However, there are clear allegations in Exhibit P2 complaint as regards violation of medical ethics and professional conduct by the doctors involved. Prayers are specifically made for imposition of punishments under the 2002 Regulations. Exhibit P1 dated 25.11.2019 is a notice issued by the 2[nd] respondent to the 1[st] petitioner. It forwards a copy of Exhibit P2 complaint and directs the 1[st] petitioner to furnish explanation to the Council within 15 days. The contention of the petitioners is that on the basis of the self same complaint, action has been initiated by the authorised officer vide Exhibit P4 notice. It is, therefore, contended that the parallel action taken by the 2[nd] respondent is bad in law. However, on an examination of Exhibit P2 complaint as well as the provisions of the Indian Medical Council (Professional conduct, Etiquitte, Ethics) the Regulations 2002, I am of the considered opinion that the 2[nd] respondent would be duty bound to examine an allegation of violation of Professional conduct, Etiquette and Ethics by a medical practitioner. The fact that an investigation has been initiated by the appropriate authority under the 1994 Act can, W.P.(C).No.34537/19 12 by no stretch of imagination, be a ground to interdict an investigation by the empowered authority under the 2002 Regulations. A reading of Exhibit P2 would make it clear that allegations are made both in respect of offences under the 1994 Act as well as professional misconduct in terms of the 2002 Regulations. If that be so, I am of the opinion that there is absolutely no legal infirmity in the action of the 2[nd] respondent in requiring the petitioners to offer their explanations to the allegations of professional misconduct which has been raised in Ext.P2 complaint. The judgments relied on by the learned Senior Counsel for the petitioners have no application whatsoever in the facts of the case, since they relate to prosecution for offences under the 1994 Act, which is not the factual situation in the instant case. The writ petition therefore fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE SHOW CAUSE NOTICE DATED**| |---|---| ||**25.11.2019 SERVED ON THE 1ST PETITIONER**| ||**(WITHOUT ENCLOSURE).**| |**EXHIBIT P2**|**A TRUE COPY OF THE COMPLAINT DATED**| ||**27.08.2019 FILED BY THE 3RD RESPONDENT**| ||**(MINUS THE ENCLOSURES), ON THE BASIS OF**| ||**WHICH THE SHOW CAUSE NOTICE WAS ISSUED.**| |**EXHIBIT P3**|**A TRUE COPY OF THE NEWS REPORT DATED**| ||**16.11.2016 (THE HINDU DAILY).**| |**EXHIBIT P4**|**A TRUE COPY OF THE ORDER DATED 17.09.2019**| ||**ISSUED BY THE DME.**|