TaxTMI 
TaxTMI 
2014 (5) TMI 1204
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.... who had forwarded the same on 28th May, 2009 to the Government of NCT of Delhi requesting the Delhi Medical Council (for short 'DMC') to give its opinion in this matter. Meanwhile, father of the deceased, respondent no. 2-Mr. S.P. Manchanda had also filed a complaint dated 10th June, 2009 with the DMC in the matter. The impugned decision and order of MCI has been passed in an appeal filed under Clause 8.8 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (for short "Regulations, 2002) by respondent no. 2-Mr. S.P. Manchanda, being aggrieved by the order passed by the DMC dated 7th June, 2010. 3. The judgment in the present writ petition was reserved on 3rd December, 2013. The following order was passed:- Alka Gupta ... Petitioner Through Mr. Anil Goel, Adv. with Mr. Ashwini Goel, Adv. Mr. Rajeev Kumar, Adv., Mr. Ratnakar Maltiyar, with Petitioner in person. versus Medical Council of India and Anr. Through Mr. Ashish Kumar, Adv. With Mr. Avijit Mani Tripathi, Adv. for R-1. Coram: Hon'ble Mr. Justice G.P. Mittal Order 03.12.2013 Arguments heard. ....
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....limited power conferred under clause 'm', Medical Council of India cannot create any Appellate Authority or penal provision like removal of name from the Register maintained by itself or by the State Council. In fact Rules and Regulations are wheels of an enactment to give effect to the purposes and objects of an Act and cannot travel beyond the track laid down in the Act. Therefore, provisions of Rule 8.8 of the Regulation of 2002 made by the Medical Council of India in exercise of its powers conferred under Section 33(m) of the Act of 1956 are equally beyond its jurisdiction and as such unconstitutional because it has been set at rest in: 2006(4) SCC 327 (paragraphs 4, 15, 16 and 17) and 2005 (3) SCC 601 that as per general principle of cognate rules any provision of any substantive law whether Central or State cannot be curtailed by making provision in delegated provision-in the instant case Regulation of 2002 made by the Medical Council of India. xxxx xxxx xxxx xxxx 48. Section 27 of the Bengal Medical Act is also a bar to suits and other legal proceedings in like cases. It has been stated therein that no suit or other legal proceeding shall lie in res....
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....te the relevant portion of the Supreme Court decision in case of P.C. Kesavan Kuttynayar vs. Harish Bhalla and others. Reported in (2003) 8 SCC 490:- 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 on a request or otherwise the Medical Council of India is informed that any complaint 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 complaint 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 dispos....
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....ts before the next date of hearing failing which the interim order passed today shall stand automatically vacated. 11. Mr. Maninder Singh did not dispute that the judgment of learned Single Judge in Dr. (Mrs.) Rupa Basu (Banerjee) Vs. The State of West Bengal & Ors. (supra) quashing Clause 8.8 of Regulations, 2002 got revived on the passing of the aforesaid stay order dated 12th December, 2011 by the Apex Court. 12. He, however, candidly stated that at present the Ethics Committee of the MCI under Clause 8.8 of the Regulations, 2002 was entertaining appeals by any person who was aggrieved by a decision of the concerned State Medical Councils, under the bonafide impression that the matter is pending adjudication before the Supreme Court and thus such appeals under Clause 8.8 were maintainable. He also admitted, as a matter of fact, that appeals were also being filed before the Ministry of Health & Family Welfare, Government of India under Section 24(2) of the Act, 1956, where the Central Government is statutorily obliged to seek the opinion of the MCI. 13. Mr. Maninder Singh stated that MCI as a statutory authority constituted under the Act, 1956, would take appropriate act....
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....remains binding as a precedent though may not be binding upon the parties to the proceedings where the Superior Court has granted interim order............ but by mere grant of interim stay, the effect of a binding precedent is not destabilized............. xxxx xxxx xxxx xxxx 12........... the Supreme Court in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras [1992 AIR 1439 : 1992 SCR (2) 999] while pointing out the difference between an order of stay of operation of the order impugned and an order quashing the order itself: While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from exist....