WP/8167/2004 of Dr. P. Shyam Prasad, Vs The Project Officer, ITDA, on 30 December 2008

ORDER:

The petitioner is an Opthalimic Surgeon and he conductedeye operations in Avadhuta Eye Hospital, Bhadrachalam. He is aregistered Medical Practitioner recognized by the Medical Councilof India and registered with the A.P. State Medical Council.Alleging that the petitioner conducted as many as 83 IOL cataractoperations in his hospital between 10.04.2004 to 12.04.2004 andout of the same, 17 cases were found got infected, the ProjectOfficer, ITDA, Bhadrachalam, the first respondent herein, passedan order, dated 14.04.2004, directing that the petitioner be black-listed with immediate effect. He was also barred from conductingany cataract or eye surgeries until further orders. The firstrespondent further directed that the petitioner must bear theexpenditure incurred for the treatment of 17 patients at SarojinideviEye Hospital, Hyderabad. The said proceedings are challenged inthis writ petition.

The petitioner contends that his activities are governed bythe Medical Council of India and the A.P. State Medical Counciland the first respondent has absolutely no jurisdictional power inthis regard.

No counter affidavit is filed on behalf of the respondents.

Ms.Bharathi, the learned counsel for the petitioner submitsthat the petitioner is registered with the Medical Council of India aswell as the A.P. State Medical Council and in case any acts or omissions, in contravention of the relevant provisions of law areattributed, the proceedings under relevant enactments have to beinitiated by the agency concerned. She contends that the firstrespondent has absolutely no concern with the activities of thepetitioner, much less the jurisdiction, to pass an order directingblack-listing. She further contends that even under the MedicalCouncil of India Act, 1956 (for short ‘the Act’) and the Rules madethereunder, the penalties imposed through the impugned order arenot contemplated.

The learned Government Pleader for Social Welfare, on theother hand, submits that for an integrated development in thescheduled areas, the powers of various departments ororganizations are conferred upon the Project Director. He placesreliance upon G.O.Ms.No.274, dated 15.06.2002.

The first respondent took note of the fact that the petitionerconducted 83 cataract operations in his hospital at Bhadrachalamin three days in the month of April, 2004. It was alleged that 43operations were conducted on 10.04.2004. According to the firstrespondent, at the most, 15 to 20 operations can be performed byan Optholmist and that the petitioner had deviated from thenorms. An allegation is also made as to the improper sterilizationof the operation theatre. With these and other allied allegations,the first respondent directed that (a) the petitioner be black-listedwith immediate effect in public interest; (b) the petitioner be barredfrom conducting any cataract or other surgeries or eye tests tillfurther orders; and (c) that he shall be liable to bear theexpenditure that is incurred for treatment of the patients who are said to have been infected at the post operation stage.

The first respondent did not make reference to anyprovision of law, under which he acted. Various human activitiesare governed by different enactments. The Legislaturesconcerned confer corresponding powers upon different agenciesand even provide for hierarchy of remedies. If the Legislatureitself feels that the powers under an enactment can be delegatedto or conferred upon certain other agencies also, necessaryprovisions are made enabling such conferment or delegation.

The Act and the Rules made thereunder regulate themedical profession by prescribing the standards and procedures. In case, a registered Medical Practitioner is found deviating fromthe prescribed procedure, specified agency would initiate action. Before any penalty is imposed or any adverse order is passed,enquiry has to be conducted, duly giving opportunity to theaffected parties.

It is not even suggested that there is any provision in theAct and the Rules made thereunder that confers power of anykind what-so-ever, upon the first respondent. Further, it is justun-imaginable as to how the powers that are to be exercised by aspecialized agency, comprising of qualified persons in therespective fields, can be conferred upon an administrator pure andsimple. G.O.Ms.No.274, dated 15.06.2002, is not referable to anyprovision of law, much less, to the Act and the Rules. At the most,it may have conferred the administrative powers vested in differentauthorities, in the Project Director. However, the first respondentcannot assume to himself the powers under special enactments.

The impugned order could not have been passed, even byan agency created under the Act and the Rules made thereunder.No show cause notice was issued nor any reference is made tothe relevant provisions of law. The punishments are very drasticand they had the effect of completely crippling the activity of thepetitioner as well as branding him as inefficient. If at all thepetitioner had deviated from any stipulated norms, the firstrespondent, could, at the most have brought the same, to thenotice of the concerned agency.

Further, the impugned order had the effect of tarnishing theimage of the petitioner, apart from causing financial andprofessional damage to him. The first respondent had, assumedto himself, the stature of an expert and recorded findings of farreaching nature. People in the locality would certainly be carriedaway by such observations. In competitive profession likemedicine, the impact is bound to be phenomenal. Viewed from anyangle, the impugned order cannot be sustained in law.

The writ petition is accordingly allowed with costs ofRs.5,000/- payable by the first respondent to the petitioner. Theamount shall be paid within three (3) months from today. Indefault, the petitioner shall be entitled to initiate executionproceedings against the first respondent.

_____________________

L.NARASIMHA

REDDY,J

Dt:30.12.2008Note: L.R. copy to be marked.kdl