Straight from the Heart: Legal Success Stories
Dr KK Aggarwal
National President IMA
Team Legal IMA
Since I took over the reins of Indian Medical Association (IMA), we have done our level best to make IMA work in the interest of not only the medical professionals but also the medical profession and the rights of the public.
Following are a few of the success stories.
PIL: IMA part of CPCC Committee on Pollution in Delhi: IMA filed a Public Interest Litigation titled “Indian Medical Association versus Union of India & Others, W.P.(Civil) No. 895/2016” before the Hon’ble Supreme Court of India thereby praying the Hon’ble Apex Court to issue directions to the concerned authorities for taking immediate actions against the increasing levels of pollution and for constitution a Monitoring committee for monitoring the same. In the said case, Mr. Gopal Subhramanian, Senior Advocate and Team Legal IMA appeared on behalf of IMA. After hearing the arguments, the Hon’ble Apex Court had asked the Central Pollution Control Committee to constitute a committee for taking immediate steps for reducing the pollution levels. Accordingly, the Central Pollution Control Committee has constituted a committee and has also made IMA a party of the said committee.
Legal Notices: Indoco Remedies ceased from using “IMA Recommends”
Legal notice dated 02.09.2016 was sent to Indoco Remedies for using the words “IMA recommends” on its product without the permission of IMA. In response to said notice dated 02.09.2016 the Indoco Remedies has sent reply dated 14.10.2016 wherein they have accepted that they shall not use the words “IMA Recommends” in the advertisement or otherwise.
M/s. Gufic Biosciences Ltd. Ceased from using IMA name and logo: Legal notice dated was sent to M/s. Gufic Biosciences Ltd. for using the name and logo of IMA on its product without the permission of IMA. In response to said notice dated M/s. Gufic Biosciences Ltd. has stopped using the name and logo of IMA on its products and advertisements.
M/s. Me n Moms Private Limited ceased from using “IMA recommends”: Legal notice dated 15.7.2015 was issued and sent against M/s Me N Moms Private Limited, Mumbai for unauthorized and illegal use of the words “recommended by IMA Indian Medical Academy”. The said company was using the said words/expression in their publicity material and advertisements. The notice was duly served upon the company and their reply came on 24.7.2015 followed by detailed reply dated 7.8.2015. The company agreed to withdraw and stop using the said words / expression with immediate effect. Accordingly, the matter stood resolved.
Trademark: Trademark of IMA name and IMA Logo: The IMA Hq. has received the certificate of Trade mark of IMA name and logo which are: Copyright of IMA Name, Logo and “Dr Emblem” has been applied by IMA. Trademark of “Dr Emblem” Applied
Income Tax: Income Tax not applicable: The income Tax office had filed an appeal being Appeal No. 4/2015-16/263 against the order u/s 143(3) passed by Dy. CIT(Exemption), Circle-1 (1), Delhi, making certain additions against IMA. The said appeal has been dismissed vide Order dt. 30.05.2016 wherein it has been held that the IMA is not involved in any trade, commerce, business and is totally involved in charitable activities falling within the definition of charitable purpose under section 2(15) under the head "medical. As the Income Tax Act, 1961 allows exemption of tax in the case of assessee who are involved-in charitable and religious activities, so IMA is allowed exemption of income tax.
Service Tax: Service Tax not applicable on IMA: IMA had filed an appeal being Appeal No. ST/52555/2014-ST(DB) against the Service tax being charged on IMA under the category of club or association services before the Customs, Excise and Service Tax Appellate Tribunal. In the said Appeal, stay has been granted in favour of IMA against the Service Tax to be paid by IMA vide Order dated 19.04.2016.
IMA Elections: Fair and unanimous IMA elections: There was fair and unanimous elections of IMA HQs for the years 2016-2017 & 2017-2018. However, one Writ Petition No. W.P.(C) 7541/2016 was filed along with CM APPL. 31044/2016 and CM APPL. 31045/2016 by Dr Harish Gupta & Ors (namely. Dr. Hansraj Satija, Dr. Kamal Kishore Parwal and Dr. Vinod K. Arora) against. Indian Medical Association & Anr (namely, Election Commission, IMA HQs.) requesting the Hon’ble High Court of Delhi to appoint Court Observer for the rest of the electioneering process of IMA HQs. After hearing the arguments on behalf of all the parties, the Hon’ble High Court of Delhi was pleased to dismiss the said Writ Petition vide order dated 01.09.2016 and thus no Court Observer was appointed as prayed for.
IMA Mediation, Conciliation & Grievances Redressal Cell (IMA-MCGRC) has handled over 50 cases.
Independent Ethic Committee in operation: IMA has constituted Independent Ethics Committee to ensure that all bi-medical research in human subjects conducted in IMA and its affiliated Wings are in accordance with the ethical guidelines for bio-medical research on human subjects as prescribed by the Indian Council of Medical Research.
IMA can endorse: Endorsement can be done provided money raised is used for the purpose for which IMA was established. This has been held in favour of IMA vide ITAT Order for the A/Y 2009-2010 in the case titled as “ADIT (E) vs IMA”. As per the said Order, as long as the dominant purpose of any activity of society is to mobilize funds and resources for the charitable purposes as mentioned in its aims and objects and these raised funds are ploughed back and used by the society only towards its aims and objects, the same is within the law and within the proviso of section 2(15). And are allowed. Raising funds by sponsorships, endorsements, registration fee, entry to events ate are allowed to IMA and its branches as long as the proceeds and the excess of income over the expenditure is used only for the objects for which IMA was formed. This order can be cited in the following A/Ys cases which are pending before different courts at different stage.
JIMA back to IMA: The Journal of IMA has come back to IMA for publication.
No stay on pictorial warning on tobacco packets: Against the 2014 Rules for 85% pictorial warning on the tobacco packets, one matter titled as "Karnataka Beedi Industry versus UOI" was filed before the Hon’ble Supreme Court of India. The said case was listed for hearing on 04.05.2016. In the said case, an impleadment application has been filed on behalf of IMA thereby supporting the said Rules that there should be pictorial warning on the tobacco packets. The Hon'ble Supreme Court of India has been pleased to transfer all the pending petitions relating to 2014 Rules before the Hon'ble Karnataka High Court. Also, the Hon'ble Supreme Court has not granted any stay on the 2014 Rules and thus 85% pictorial warning on tobacco packets is in force.
NCERT withdraws defamatory material from its book: One writ petition being WP (C) No.8706/2015 titled “Indian Medical Association V/s UOI & Another” was filed before Hon'ble Delhi High Court, New Delhi on behalf of IMA for orders and directions against NCERT, New Delhi for removal and recall of the defamatory material in the text book “Social & Political Life-II” in the study material prescribed to students of class VII.
Under the directions of the court a complaint committee was set up to look into the grievances mentioned in the writ petition. The said committee has now made various changes / modifications in the book which have been mentioned in the report given before the court. Accordingly, the writ petition was disposed of as NCERT had made relevant changes in its book as prayed for.
Labs can operate in residential areas: The writ petition being WP (C) No.6568/2015 titled “Paardarshita Public Welfare Foundation (NGO) V/s Commissioner, South Delhi Municipal Corporation & Others” was filed before Hon'ble Delhi High Court, New Delhi in respect of various nursing homes, path labs, diagnostic centres etc. working in National Capital Territory of Delhi. In the said writ petition the petitioner had sought directions against the municipal authorities to carryout inspection of the various path labs, diagnostic centres etc. in the city and to close them if they are found causing pollution and traffic congestions. The said writ petition was filed on the basis of judgment given by Hon’ble Supreme Court of India in civil appeal dated 20.3.2015 in civil appeal NO.8284/2013 titled “Anirudh Kumar V/s MCD & Others”.
Team legal IMA had appeared in the above matter on 15.7.2015 before the Hon'ble Court and made the necessary submissions and arguments on behalf of IMA against the maintainability of the said writ petition on various grounds. After hearing the submissions the matter was reserved by the court for passing final judgment and the same was pronounced on 19.8.2015 whereby the writ petition of the petitioner was dismissed by the Hon'ble Delhi High Court, New Delhi. This was a very big relief to the doctors and members of IMA since any orders / directions, if issued by the court, may have resulted in lot of complications and harassment.
PIL against IMA dismissed: The writ petition being WP(C) No. 9597/2015 titled as “People for Better Treatment versus MCI & Others” was filed before Hon’ble High Court of Delhi. In the said case, IMA was also made party being respondent no. 2. The said writ petition filed by the Petitioner Namely People for Better Treatment, an NGO which is been operated by Dr. Kunal Shah.
Team Legal IMA had appeared and argued on the maintainability of the said case on behalf of IMA. After hearing the arguments, vide order and judgment dated 03.03.2016 the Hon’ble High Court of Delhi has been pleased to dismiss the said PIL filed against IMA being not maintainable.
ESI case won: An appeal was filed against the order of the ESI being Ministry of Labor & Employment versus IMA, LPA 402/2015 & C.M. No. 11195/2015 before the Hon’ble Division Bench of Delhi High Court. In the said case, Mr. Nitesh Jain Advocate appeared on behalf of IMA ad after hearing the arguments, vide order and judgment dated 07.01.2016 the Hon’ble Division Bench of Delhi High /Court has held that as rightly held by the learned Single Judge, the intention of the Parliament in enacting the provision that there shall be consultation with recognized organization of medical practitioners is to have inputs from the organizations about the expertise of the person to be appointed. Such consultation is apparently absent in the present case since the proposal to nominate Dr. Purshottam Lal was not even conveyed to IMA. Therefore, we entirely agree with the view of the learned Single Judge that the absence of consultation with IMA/the recognized organization of medical practitioners which is mandatory under the Act, has vitiated the nomination of the Respondent No. 2.
Section 2(p) of PCPNDT Act held bad: Undertaking and declaration by non-pelvic medical practitioner sufficient for PCPNDT Act. IMA had filed writ petition being WP(C) No. 2721/2014 titled as “India Medical Association versus Union of India & Others before the Hon’ble High Court of Delhi against the provisions of PCPNDT Act and Rules. Mr. Jayant Bhushan, Senior Advocate and Mr. Nitesh Jain Advocate appeared and argued in the said case on behalf of IMA. After hearing the arguments, the Hon’ble High Court was pleased to reserve the order for pronouncement. Thereafter vide order and judgment dated 17.02.2016 the Hon’ble High Court of Delhi was pleased to allow the writ petition filed by the IMA and has held that Section 2(p) of the PCPNDT Act defining a Sonologist or Imaging Specialist, is bad to the extent it includes persons possessing a postgraduate qualification in ultrasonography or imaging techniques. Also, it has been held that if the person seeking registration (a) makes a declaration in the form to be prescribed by the Central Supervisory Board to the effect that the said machine or equipment is not intended for conducting pre-natal diagnostic procedures; (b) gives an undertaking to not use or allow the use of the same for prenatal diagnostic procedures; and, (c) has a “silent observer” or any other equipment installed on the ultrasound machines, as may be prescribed by the Central Supervisory Board, capable of storing images of each sonography tests done therewith, such person would be exempt from complying with the provisions of the Act and the Rules with respect to Genetic Clinics, Genetic Laboratory or Genetic Counseling Centre.
No stay granted by Hon’ble Supreme Court against PCPNDT order dated 17.02.2016.
Against the order and judgment dated 17.02.2016 passed by the Hon’ble High Court of Delhi, two petitions titled as the Indian Radiological and Imaging Association versus UOI & Anr., SLP (C) 11046/2016" and "Union of India versus Indian Radiological & Imaging Association & Others, SLP (C) No. 16657/2016" have been filed before the Hon’ble Supreme Court of India. Mr. Jayant Bhushan, Senior Advocate, Mr. Rahul Gupta, Mr. Gagan Gupta, Mr Shekhar Gupta and Ms. Ira Gupta, Advocates appeared and argued in the said cases on behalf of IMA Hq. The UOI had filed an application for the stay of high court judgment. However, on 07.11.2016 after hearing the arguments, the Hon'ble Supreme Court has not passed any orders of stay and the UOI has been directed to file an application for transfer of similar cases pending before various High Courts in the country. Thus, there is no stay on the judgment dated 17.02.2016 passed by the Hon’ble High Court of Delhi.
IMA supports students qualifying courses conducted by IMA: IMA had conducted some paramedical courses like DMLT which were duly recognized by DGHS. However, after qualifying the said courses some students were denied employment in government department. Against the said refusal for the employment, some students had filed a writ petition before Hon’ble High Court of Rajasthan being by the Hon’ble High Court of Rajasthan, Jaipur Bench in the matter Civil Writ Petition bearing No. 19233/2015 titled as “Gopesh Sharma versus State of Rajasthan & Other. In the said case, IMA had supported all the students who have duly completed the courses conducted by IMA. After hearing the arguments, the Hon’ble High Court of Rajasthan, had vide judgment dated 25.02.2016 asked the petitioners to file an appeal before the Rajasthan Para Medical Council.
Wins crosspathy case: Writ petition under Article 226 of the Constitution of India was filed as a Public Interest Litigation (PIL) being WP(C) 7865/2010 titled as “Delhi Medical Association versus Principal Secretary (Health) & Others” before Hon’ble High Court of Delhi for seeking directions for ensuring that no practitioner of Indian System of Medicine or of Homoeopathic Medicine practices in Allopathic System of Medicine including by prescribing Allopathic Medicines. In the said case, IMA had supported Delhi Medical Association. After hearing detailed arguments, vide order and judgment dated 08.04.2016, the Hon’ble Division Bench of Delhi High Court has held that no practitioner of Indian System of Medicine or holding a qualification as listed in the Schedule to the Indian Medicine Central Council Act, 1970, even if it be of in integrated medicine as defined in Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act is entitled to practice modern scientific system of medicine as defined in the Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916 and as has come to be known as Allopathic system of medicine.
No stay granted by Hon’ble Supreme Court against crosspathy judgment dated 08.04.2016: Against the judgment dated 08.04.2016, two petitions have been before Hon’ble Supreme Court of India titled as "All India Indian Medicine Graduates Association versus Delhi Medical Association & Others, SLP (Civil) No. 20144-20145/2016 and "National Integrated Medical Association versus Delhi Medical Association & Others, SLP (C) No. 14297/2016". Team legal IMA had appeared in the said cases on behalf of Delhi Medical Association and had accepted notice of the said cases and made their submissions. Even though the petitioners in the said cases were praying the Hon’ble Apex Court to stay the operation of the order and judgment dated 08.04.2016, however, the Hon’ble Supreme Court has not passed any stay order in the same.
Hon’ble Supreme Court has Suo moto made IMA a party: The presence and working of IMA has been duly recognised by the Hon’ble Supreme Court. Accordingly, the Hon’ble Supreme Court has Suo moto appointed IMA as amicus curiae in the matter titled as "State of Andhra Pradesh versus Ganjikuntla Sridhar & Others, SLP(Civil) 10347-10359/2017".
Hon’ble High Court of Delhi has Suo moto made IMA a party: The Hon'ble Chief Justice of Delhi High Court has Suo moto made the Indian Medical Association as a party in the matter titled as "Court on its Own Motion versus UOI &Other, WP(C) 3903/2017 for addressing the issue of violence against the doctors and healthcare. Team legal IMA have appeared on behalf of IMA. A detailed affidavit of various incidents of assaults on doctors, the reasons of such assaults and also solution to curb the assault and violence against the doctors has been filed on behalf of IMA.
Su Moto Impleadment by IMA
IMA supports FDC ban: The matter titled as "Pfizer Limited versus UOI" relating to FDC has been allowed vide order dated 01.12.2016. IMA had filed impleadment application in the said case supporting the Central Government’s decision of ban on FDC drugs. Team legal IMA had appeared on behalf of IMA and made submissions in support of the ban of FDC drugs. However, vide order dated 01.12.2016, the Hon'ble High Court of Delhi has disallowed the ban on FDCs by Central Government thereby holding that All 344 Notifications dated 10th March, 2016 purportedly in exercise of power under section 26A of the Drugs Act are found to have been issued without following the procedure statutorily prescribed to be followed prior to issuance thereof and resultantly it is held that the Notifications are not based on satisfaction of the Central Government prescribed to be on the advice of an in consultation with the DTAB and DCC.
(Team Legal IMA: Dr KK Aggarwal, Dr R N Tandon, Rahul Gupta, Shekhar Gupta, Ira Gupta, Aanchal Dhingra, Dr Sunil Satrawal)