district: kolkata in the high court at calcutta w.p. no

DISTRICT: KOLKATA

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

Appellate Side

W.P. No. 16879 (W) of 2012

IN THE MATTER OF:

An application under Article 226 of

the Constitution of India;

AND

IN THE MATTER OF:

Dr. Kunal Saha

……Petitioner

Versus

Ms. Mamta Banerjee & Anr.

…Respondents

INDEX

Sl. No. Particulars Annexure Page

1. Writ Petition

2. MCI Order dated 23rd

May, 2011 “P-1”

3. Paper report dated 21st April, 2011 “P-2”

4. Govt. circular dated 12th

July, 2012 “P-3”

2

DISTRICT: KOLKATA




Appellate Side

W.P. No. 16879 (W) of 2012

IN THE MATTER OF:



AND

IN THE MATTER OF:

Dr. Kunal Saha

……Petitioner

Versus

Ms. Mamta Banerjee & Ors.

…Respondents

LISTS OF DATES

1) May 28, 1998: Petitioner’s wife, Anuradha Saha, died due to medical

negligence by one Dr. Sukumar Mukherjee (Res. no. 3)

and some other doctors/AMRI Hospital.

3

2) August 7, 2009: Hon’ble Supreme Court of India held Dr. Mukherjee

(and some others) guilty for causing death of

petitioner’s wife.

3) May 23, 2011: Medical Council of India (MCI) held Dr. Mukherjee

guilty for “professional misconduct” and decided to

remove his name from the list of registered doctors.

4) Oct. 21, 2011: National Consumer Forum (NCDRC) awards a

compensation of Rs. 40.40 lakh against Dr. Mukherjee

for “medical negligence”, highest in Indian medico-

legal history against an individual physician.

5) April 20, 2012: Respondent no. 1 glorifies Dr. Mukherjee in an open

public function by declaring him to be the “chief

advisor” for the state government to fix the healthcare

woes for the people of West Bengal.

6) July 12, 2012: State Health Department issues an Order appointing Dr.

Mukherjee as the “chief advisor” for the health

department with sweeping power to make changes in

the “Standard Treatment Guidelines” and control

medical education. Hence this public interest litigation

(PIL).

4

DISTRICT: KOLKATA




Appellate Side

W.P. No. of 2012

IN THE MATTER OF:



AND

IN THE MATTER OF:

Dr. Kunal Saha

……Petitioner

Versus


…Respondents

5

Points of Law

1. Whether any person or authority including the chief minister of a

state, can undermine the dignity of the Hon’ble Supreme Court by

glorifying an individual as an “eminent” physician who has been

convicted for medical negligence with scathing criticism by the Apex

Court in total disregard to the mandatory provision as enumerated in

Article 144 of the Indian Constitution?

2. Whether Article 144 of Indian Constitution is violated when the

authority including the chief minister of a state deliberately appoints a

physician who has been convicted for “medical negligence” by the

Hon’ble Apex Court?

3. Whether any person, even the chief minister of a state, can trample

over the fundamental rights for equality, life and liberty of a private

citizen (guaranteed under Article 14 and 21 of Indian Constitution)

by deliberately promoting a convicted physician who caused his

wife’s death by using the state’s machinery in the most arbitrary and

capricious manner?

6

4. Whether any person, even the chief minister of a state, can select a

physician to the top of healthcare as “chief advisor” without following

any procedures that are in place for fair treatment?

5. Whether any person, even the chief minister of a state, can

deliberately appoint a physician as the “chief advisor” for the health

department who has been found guilty for “professional misconduct”

by the MCI, highest medical regulatory authority in India?

6. Whether any person, even the chief minister of a state, can appoint a

physician as the “chief advisor” for the health department with

sweeping power to control medical practice in the state whose own

medical registration has been directed to be cancelled/suspended by

the MCI?

7. Whether the statutory and legislative power enjoyed by the leaders of

the state government can trump over the fundamental rights of a

citizen as guaranteed under Articles 14, 19 and 21 of the Constitution

of India?

8. Whether any person, even the chief minister of a state, can lower the

solemnity of the judiciary in the eyes of the public by deliberately

7

acting to promote an individual in clear contradiction to the

observations made by the Hon’ble Supreme Court of India?

DISTRICT: KOLKATA




Appellate Side

W.P. No. 16879 (W) of 2012

IN THE MATTER OF:



AND

8

IN THE MATTER OF:

Writ of and/or in the nature of

Mandamus and/or Certiorari and/or

Prohibition and/or any other

appropriate Order or Directions in the

matter thereof;

AND

IN THE MATTER OF:

Deliberate attempt by the head of a

state government to undermine public

trust and credibility for judiciary and

the Hon’ble Supreme Court of India;

AND

IN THE MATTER OF:

Public Interest Litigation (PIL) for

restoration of public trust in the

Hon’ble Supreme Court of India by

preventing the arbitrary, capricious

and malicious use of the state

government’s machinery to promote a

9

negligent doctors as the “chief

advisor” for the health department;

AND

IN THE MATTER OF:

Violation of the Articles 14 and 21 of

Indian Constitution that guarantees

equality and right for life and liberty

for every citizen in West Bengal and

across India;

AND

IN THE MATTER OF:

Undermining public trust in the

performance of MCI, highest medical

regulatory authority in India, by

appointing a physician as the “chief

advisor” for the health department

with sweeping power to regulate

practice of medicine, whose medical

registration has been suspended by the

MCI because of “professional

misconduct”;

10

AND

IN THE MATTER OF:

Deliberate attempt to bestow supreme

power to change “Standard Treatment

Guidelines” to a doctor who has been

found guilty by the Hon’ble Apex

Court for using excessive dose of

steroids and whose treatment

philosophy “does not flow from any

considered affinity to a particular

school of thought but out of sheer

ignorance of basic hazards relating to

the use of steroids as also lack of

judgment” (AIR 2010 SC 1162);

AND

IN THE MATTER OF:

Dr. Kunal Saha, permanently residing

at 2704 Bridge Watch Lane, Hilliard,

OH 43026, USA with a local

residence at c/o Mr. M.K. Ganguly,

11

Subol Apartment (Flat-E1), 7

Nilgunge Road, P.O. Belghoria,

Kolkata 700056.

…………….Petitioner

Versus

1. Ms. Mamta Banerjee, Chief

Minister/Health Minister, Govt. of

West Bengal, Writers’ Building,

Kolkata 700001;

2. Mr. Sanjay Mitra, Principal

Secretary, Dept. of Health & Family

Welfare, Govt. of West Bengal,

Swastha Bhavan, GN 29, Sector V,

Salt Lake, Kolkata 700091.

3. Dr. Sukumar Mukherjee,

“Aishani”, DA-05, Sector- I, Salt

Lake, Kolkata 700064.

12

4. Secretary, Medical Council of

India (MCI), Pocket-14, Sector-8,

Dwarka Phase-I, New Delhi 110077.

…….Respondents

To,

The Hon’ble Mr. Jainarayan Patel, The Chief Justice and His Companion

Justices of this Hon’ble High Court.

The humble application of the

Petitioner above named:

Most Respectfully Showeth:-

1. The petitioner is originally a physician from Kolkata, India but has

been permanently settled in the USA for the past more than two decades

working as a professor and specialist in the field of HIV/AIDS. The

petitioner is a naturalized citizen of USA and also an “overseas citizen of

India” (OCI). The petitioner is also the founding-president of “People for

Better Treatment” (PBT), a registered humanitarian society based in Kolkata

which is primarily dedicated to work for promotion of better healthcare

system and to help the victims of “medical negligence” in West Bengal and

across India.

13

2. It is most respectfully submitted that your petitioner suffered the most

horrific personal tragedy in life in 1998 as while visiting India with his wife,

Anuradha Saha, she died at an age of only 36 falling victim to gross medical

negligence primarily due to the negligent therapy by one Dr. Sukumar

Mukherjee (Respondent no. 3). After more than a decade of legal battle

from USA, Hon’ble Supreme Court of India held Dr. Mukherjee primarily

responsible for the death of petitioner’s wife (AIR 2010 SC 1162; Malay

Ganguly vs. Sukumar Mukherjee & Ors.). Dr. Mukherjee used a steroid

(“Depomedrol”) at an astronomical dose (80 mg twice daily in contrast to its

maximum recommended dose of only 40-120 mg once at 1-2 weeks interval)

which is unheard of in the annals of medical science. While holding Dr.

Mukherjee guilty for medical negligence, Hon’ble Apex Court also made

scathing criticism about the irresponsible and reckless nature of the

treatment guideline provided by Dr. Mukherjee as the court observed:

“It is also to be noted at this juncture, that there may

well be a difference of opinion on the course of action to

be adopted while treating a patient of TEN, but the

treatment line followed by Dr. Mukherjee which entailed

administration of 80 mg of Depomedrol injection twice is

not supported by any school of thought. The treatment

14

line, in this case, does not flow from any considered

affinity to a particular school of thought, but out of sheer

ignorance of basic hazards relating to use of steroids as

also lack of judgment” (para 119) (emphasis added)

In fact, while remitting the matter back to the National Consumer Forum

(NCDRC) only for determination of the quantum of compensation to be paid

by Dr. Mukherjee (and two other doctors and AMRI Hospital), Hon’ble

Apex Court also imposed a cost of Rs. 1 lakh only against Dr. Mukherjee for

the “stand taken and conduct” (para 203) clearly indicating that Dr.

Mukherjee played the most heinous role in causing the death of petitioner’s

wife. In fact, Dr. Mukherjee also filed a review petition against the Apex

Court’s decision which was also promptly dismissed by the Supreme Court.

Thus, Dr. Mukherjee’s conviction for causing death of petitioner’s wife as a

result of “medical negligence” has reached finality in the eyes of law. As

enshrined under Article 144 of Indian Constitution, every authority, civil and

judicial, within the territory of Union of India is duty-bound to obey the

Supreme Court’s decision and they shall act in aid of the Apex Court’s

ruling both in letters and spirit.

3. That NCDRC also fined Dr. Mukherjee for Rs. 40.40 lakh, highest

compensation ever paid by any doctor for “medical negligence” in Indian

15

medico-legal history, on October 21, 2011. Although Dr. Mukherjee has

already paid this compensation to your petitioner, Hon’ble Apex Court has

already admitted appeal by your petitioner for enhancement of the

compensation against Dr. Mukherjee (Civil Appeal No. 2866/2012).

4. That Medical Council of India (MCI), highest regulatory authority for

practice of medicine in India, also investigated the treatment of Dr.

Mukherjee and found him guilty for medical negligence and “professional

misconduct”. The MCI directed the West Bengal Medical Council to

suspend the medical registration of Dr. Mukherjee in an order passed dated

23rd

May, 2011. However, Dr. Muherjee’s medical registration has not been

cancelled/suspended yet as a writ petition in this regard is still pending

before this Hon’ble Court (W.P. No. 9758 of 2011). A copy of the said

order passed by MCI is annexed herewith and marked as Annexure-P1.

5. That although Dr. Mukherjee was found guilty for gross medical

negligence both by the Hon’ble Apex Court and MCI, the WBMC

exonerated Dr. Mukherjee from all charges of negligent therapy through a

botched up investigation in collusion with the devious members of the state

medical council. It is pertinent to mention that 17 doctor-members of

WBMC who voted to acquit Dr. Mukherjee were recently indicted for

“criminal conspiracy” and processes have been issued against them under

16

Section 201 (read with Section 120B IPC) on 19th August, 2011 by the

Learned Metropolitan Magistrate, 8th Court, Calcutta (Complaint Case no.

C/20678 of 2011; Dr. Kunal Saha vs. Dr. Ashok Chowdhury & Ors.). This

underscores the strong level of personal influence that Dr. Mukherjee enjoys

over the state medical council and health department in West Bengal.

6. That despite being found guilty for gross medical negligence by the

Apex Court and even after losing medical registration by the MCI, Dr.

Mukherjee was lauded and glorified at an open public function on April 20,

2012 by the Respondent no. 1, who is also the chief minister as well as

health minister of West Bengal. The Respondent no. 1 did not even care to

follow the categorical instructed enshrined under Article 144 of Indian

Constitution that all authorities must act to aid the Supreme Court that had

already held Dr. Mukherjee guilty for medical negligence and chastised him

severely for his deplorable “stand taken and conduct” (AIR 2010 SC 1162).

To great distress of your petitioner, Respondent no. 1 also declared publicly

that Dr. Mukherjee was the most “eminent” physician in West Bengal who

should be appointed as the “chief advisor” for the health department in order

to improve the ailing healthcare system in the state. The said program

hosted by Respondent no. 1 and the medical wing of the state government to

promote Dr. Mukherjee to the post of “chief advisor” for the health

17

department was highly publicized by the electronic as well as print media

(Annexure-P2).

7. That the state health department (Respondent no. 2) issued a

circular/order dated July 12, 2012 with formal announcement that Dr.

Mukherjee has been appointed as the “chief advisor” with sweeping and

wide-spread power not only to control medical education and training but

also to bring changes in the “Standard Treatment Guidelines” for healthcare

providers in West Bengal. A copy of the said circular/order dated July 12,

2012 passed by the West Bengal health department is annexed and marked

as Annexure-P3.

8. It is most respectfully submitted that the deliberate action by

Respondent no. 1 of promoting Dr. Mukherjee to the highest post (“chief

advisor”) for regulating practice of medicine in West Bengal with virtually

unfettered power of framing of treatment guidelines for the healthcare

providers is extremely alarming because it poses a great danger for the

innocent patients of West Bengal. As Hon’ble Supreme Court has

categorically held in Malay Ganguly (Supra.), Dr. Mukherjee’s treatment

guideline for using “Depomedrol” at an excessive dose was “not supported

by any school of thought, but out of sheer ignorance of basic hazards

relating to the use of steroids as also lack of judgment”. It must be pointed

18

out that despite such unequivocal findings of guilt for excessive use of

steroids (“Depomedrol”) both by the Hon’ble Apex Court and MCI, Dr.

Mukherjee has always maintained that there is absolutely nothing wrong to

use “Depomedrol” at the same excessive dose (80 mg twice daily).

Appointing Dr. Mukherjee in charge of framing the “Standard Treatment

Guidelines” for all doctors in West Bengal is likely to promote wide-spread

use of erroneous drug therapy including excessive use of steroids e.g.

Depomedrol which would undoubtedly bring great threats to all patients in

the state.

9. That the deliberate and patently arbitrary action by Respondent no. 1

to appoint Dr. Mukherjee as the “chief advisor” for the health department on

the face of his conviction by the Hon’ble Apex Court and suspended medical

registration by the MCI (Annexure-P1) is nothing but a glaring example of

gross abuse of power by the state government which would undoubtedly

undermine public trust in the control of the healthcare system by regulatory

authorities like the MCI.

10. That the arbitrary, capricious and mala fide action by Respondent no.

1 to glorify Dr. Mukherjee as an “eminent” physician and to appoint him as

the “chief advisor” for the health department is in total contrast to

categorical observations made by the Hon’ble Apex Court in Malay Ganguly

19

(Supra.). The blatant move by the Respondent no. 1 is undoubtedly a

colossal abomination which clearly violates Article 144 of Indian

Constitution and would certainly lower public trust in the entire judicial

system including the Hon’ble Supreme Court. The deliberate move by

Respondent no. 1 to appoint Dr. Mukherjee as the “chief advisor” for the

health department in total disregard to the Apex Court’s unequivocal

observations cannot be viewed anything other than a contemptuous act

against the Hon’ble Supreme Court.

11. That Article 14 of the Constitution of India provides fundamental

rights for equality while Article 21 provides rights to life and liberty for all

citizens in India. The arbitrary and mala fide action by Respondent no. 1 to

elevate Dr. Mukherjee to the post of “chief advisor” for the health

department despite his conviction for “medical negligence” by the Apex

Court for causing death of petitioner’s wife has candidly trampled over the

fundamental rights for life, liberty and equal treatment. It may be noted that

starting from E.P. Royappa vs. State of Tamil Nadu (AIR 1974 SC 555), the

Hon’ble Supreme Court in a catena of decisions has established that any

arbitrary, discriminatory or mala fide act against a citizen would amount to

violation of the fundamental rights protected under Articles 14, 19 and 21 of

the Constitution of India (AIR 1978 SC 597; AIR 1980 SC 1992). In the

historic judgment in Sub-committee on Judicial Accountability vs. Union of

20

India & Ors. (1991 SCC 4, 1991), the Hon’ble Apex Court has categorically

held that courts should declare an legislative act invalid if it infringes any of

the fundamental rights for the citizens that are protected under the

Constitution as the court observed, “In a democratic country governed by a

written Constitution, it is the Constitution which is supreme and sovereign”

(para 62). The blatantly arbitrary and mindless action by Respondent no. 1

using her position in the government to appoint Dr. Mukherjee as the “chief

advisor” for the health department has not only violated the fundamental

rights of the petitioner that are protected under Articles 14, 19 and 21 of the

Indian Constitution but it has also violated Article 144 of the Constitution

and undermined the dignity of the Hon’ble Supreme Court .

12. That being deeply aggrieved, hurt and dissatisfied with the arbitrary,

capricious and mala fide action by Respondent no. 1 to appoint Dr.

Mukherjee as the “chief advisor” for the health department, your petitioner

begs to move your Lordships on the following amongst other:

GROUNDS:

I. For that the appointment of Dr. Mukherjee as the “chief advisor” for

the health department is nothing but a gross abuse of power by the

21

Respondent nos. 1 and 2 which lowers public trust in the judiciary and

undermines credibility of the Hon’ble Supreme Court.

II. For that the appointment of Dr. Mukherjee as the “chief advisor” for

the health department is nothing but a patently capricious and

arbitrary act on part of Respondent no. 1 that blatantly violates Article

144 of Indian Constitution and demeans the categorical observations

made against Dr. Mukherjee by the Hon’ble Apex Court in Malay

Ganguly (Supra.).

III. For that the appointment of Dr. Mukherjee as the “chief advisor” for

the health department in the most arbitrary fashion violates the

fundamental rights for equal treatment and rights to life and liberty of

the Petitioner as guaranteed under Article 14 and 21 of the

Constitution of India as held in numerous decisions by the Hon’ble

Supreme Court (AIR 1980 SC 1992; 1991 SCC 4, 699).

IV. For that the appointment of Dr. Mukherjee as the “chief advisor” for

the health department despite his medical registration being cancelled

by the MCI is an act which is illegal, mala fide and it undermines

public trust in the healthcare regulatory system in India.

22

V. For that appointment of Dr. Mukherjee as the “chief advisor” for the

health department with exclusive authority to change the “Standard

Treatment Guidelines” (Annexure-P3) may allow wide-spread use of

excessive or lethal dose of “Depomedrol” at 80 mg twice daily on

innocent patients of West Bengal. In Malay Ganguly (Supra.), the

Hon’ble Apex Court has categorically held that use of Depomedrol 80

mg twice daily “is not supported by any school of thought” and that

Dr. Mukherjee recommended such dose of Depomedrol “out of sheer

ignorance of basic hazards relating to the use of steroids as also lack

of judgment” (para 119) (emphasis added). There is no doubt that

appointment of Dr. Mukherjee as “chief advisor” for health

department would give a green signal to all doctors for excessive use

of steroids which is likely to pose great danger for all patients in West

Bengal.

VI. For that promotion of Dr. Mukherjee as the “chief advisor” for the

health department is implicitly, if not explicitly, contemptuous to the

Hon’ble Supreme Court that has unequivocally held Dr. Mukherjee as

a reckless and negligent physician who was ignorant about the danger

and “basic hazards” for excessive use of steroids. The lofty praise of

Dr. Mukherjee by Respondent no. 1 that he is an “eminent” physician

and that he is best qualified to be the “chief advisor” for the

23

government sharply contrasts the unequivocal observations made by

the Hon’ble Apex Court in Malay Ganguly (Supra.).

VII. For that selection of Dr. Mukherjee as the “chief advisor” for the

health department is a gross abuse of the power by the government in

the most undemocratic and unconstitutional manner. Dr. Mukherjee

was not qualified to become the “chief advisor” of health, especially

in view of his conviction for medical negligence and scathing

criticism by the Hon’ble Supreme Court and also by the MCI. The

blatant act by Respondent no. 1 to make Dr. Mukherjee as the “chief

advisor” without consideration of any other qualified medical

candidates is overtly discriminatory as it violates the principle of

equality as guaranteed under Article 14 of the Constitution.

VIII. For that appointment of Dr. Mukherjee as the “chief advisor” for the

health department sends a wrong signal for the hapless patients of

West Bengal many of whom are well aware about the heinous role

played by Dr. Mukherjee in the death of petitioner’s wife as this case

has been highly publicized in West Bengal and across India over the

years ever since petitioner's wife died from wrongful treatment by Dr.

Mukherjee during a social visit to India in 1998.

24

IX. For that selection of Dr. Mukherjee as the “chief advisor” for the

health department has blatantly violated petitioner’s fundamental

rights for life and liberty as guaranteed under Article 21 of the

Constitution of India since petitioner had already established before

the highest court of the land as well as the highest medical regulatory

authority (MCI) that his wife had died due to negligent treatment by

Dr. Mukherjee. The Hon’ble Apex Court has clearly stated on

numerous occasions that fundamental rights under the Constitution is

supreme and it trumps over any other condition that may conflict with

any other law or legislative enactment (1991 SCC 4, 699).

13) That the petitioner has not filed any similar writ petition in this

Hon’ble Court or any other High Court or Supreme Court of India or in any

other forum on the self-same cause of action earlier.

14) That your petitioner states that it is a fit case for urgent judicial

intervention for the sake of public health and for the ends of justice.

15) That the records are lying in the appellate side Jurisdiction of this

Hon’ble Court.

16) That this application is made bona fide and in the interest of justice.

25

In view of the facts and circumstances

as narrated hereinabove, it is,

therefore, most respectfully prayed

that this Hon’ble Court may

graciously be pleased to:-

a) A writ in the nature of

Mandamus calling upon the

respondents No.1 and 2 to show cause

as to why the impugned Order dated

July 12, 2012 passed by the

Department of Health & Family

Welfare (Annexure-P3) should not be

set aside;

b) A writ in the nature of Certiorari

directing the respondents and/or their

men, agents or subordinates to

transmit all relevant records

pertaining to this case before the

Hon’ble Court so that conscionable

justice may be done after perusing the

same;

26

c) Rule NISI in terms of prayers (a)

and (b) as above;

d) Pending hearing of the case,

Your Lordships would be pleased to

stay any further action/

implementation of the order passed by

the Department of Health & Family

Welfare dated July 12, 2012

(Annexure-P3).

e) Interim order in terms of the prayer

(d) above;

f) Any such other or further order

or orders, direction or directions as to

Your Lordships may deem fit and

proper;

And for this act of kindness, your petitioner as in duty bound shall ever pray.

27

AFFIDAVIT

I, Dr. Kunal Saha, son of Late Dr. J. Saha, by faith- Hindu, by occupation

Medical Doctor, permanent resident of 2704 Bridgewatch Lane, Hilliard,

OH 43026, USA and presently residing at Subol Apartment (Flat- E1), 7

Nilgunge Road, P.O. Belghoria, Kolkata 700056, do hereby solemnly affirm

and say as follows:-

1. That I’m the petitioner herein and as such, I am well acquainted with

the facts and circumstances of this writ petition.

2. That the statements made in paragraph nos. 1-12 are true to the best of

my knowledge and paragraph nos. 13-16 are my respectful submission

before this Hon’ble Court.

Prepared and drafted in person

DEPONENT

Solemnly affirmed before me on

This 30th

day of July, 2012.

COMMISSIONER

I certify that all annexures are legible.

28

DISTRICT: KOLKATA

IN THE HIGH COURT AT

CALCUTTA

CONSTITUTIONAL WRIT

JURISDICTION


Appellate Side

W.P. No. 16879 (W) of 2012

IN THE MATTER OF:



AND

IN THE MATTER OF:

Dr. Kunal Saha

……Petitioner

Versus

Ms. Mamta Banerjee & Anr.

…Respondents

WRIT PETITION

DR. KUNAL SAHA

(In person)

2704 Bridge Watch Lane, Hilliard,

OH 43026, U.S.A

29

DISTRICT: KOLKATA




Appellate Side

W.P. No. 16879 (W) of 2012

IN THE MATTER OF:



AND

IN THE MATTER OF:

Subject matter relating to –

Under Group - , Head-

of the classification list

CAUSE TITLE

IN THE MATTER OF:

Dr. Kunal Saha

……Petitioner

Versus


…Respondents

DR. KUNAL SAHA

(IN-PERSON)

2704 Bridgewatch Lane,

Hilliard, OH43026, U.S.A.

district: kolkata in the high court at calcutta w.p. no

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