Karnataka High Court
Mr V Damothiran vs Karnataka Medical Council (Kmc) on 3 December, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 03RD DAY OF DECEMBER 2015
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.32762-32765 OF 2013 (GM-RES)
BETWEEN:
Mr. V. Damothiran,
Son of Mr. A. Venkatesan,
Aged 37 years,
Residing at No.124/1-26,
Venkatapura, 2nd Cross,
Koramangala,
Bangalore 560 034.
...PETITIONER
(By Shri H.N.Narendra Dev, Advocate)
AND:
1. Karnataka Medical Council (KMC),
No.70, 2nd Floor,
Vaidyakeeya Bhavan,
K.R.Road,
Basavanagudi 560 004,
Represented herein by its President.
2
2. Dr. Annamma Thomas,
Wife of Dr. Reji Koshy Thomas,
Aged 49 years,
St. John's Medical College and Hospital,
Sarjapur Road,
Bangalore 560 034.
3. Prof. Gopinath N Shenoy,
No.199, G.K.Marg,
Lower Parel,
Mumbai 400 013.
[respondent no.3 impleaded
Vide court order dated 18.11.2014]
... RESPONDENTS
(By Shri D.S.Hosmath, Advocate for Respondent No.1;
Shri Narayana Reddy .M, Advocate for Respondent No.2;
Shri Gopinath M Shenoy, for Respondent No.3)
*****
These Writ Petitions filed under Articles 226 and 227 of the
Constitution of India, praying to quash the order dated May 23,
2013 passed by the first respondent in ENQ.No.29/12 vide
Annexure-C and quash the order dated June 27, 2013, passed by
the first respondent in ENQ.No.29/12 vide Annexure-J and to
expunge the recording of the depositions of the petitioners in the
proceedings of May 23, 2013 as recorded by the first respondent,
in ENQ.No.29/12, vide Annexure-C.
These Writ Petitions having been heard and reserved on
31.10.2015 and coming on for pronouncement of Orders this day,
the Court delivered the following:-
3
ORDER
Heard the learned Counsel for the petitioner and the learned Counsel for the respondents.
2. The petitioner was married to Smt.Rani, who is said to have been a patient of the second respondent, a Gynaecologist. It is alleged that on account of negligence on the part of the said respondent in performing a Laparoscopic procedure on Smt Rani, she is said to have died after much suffering, on 28.7.2013. On a complaint by the petitioner before the jurisdictional police, apart from initiating criminal proceedings against respondent no.2, the police are said to have forwarded the case papers to Karnataka Medical Council, Bangalore, (Hereinafter referred to as the 'KMC', for brevity), which is said to have initiated suo motu proceedings and an enquiry is on against respondent no.2 before the said authority.
4
It is stated that the parties were represented by counsel before the KMC and the pleadings are complete. The petitioner is said to have filed an affidavit in evidence and the matter was scheduled for his cross-examination as on 23.5.2013. On that day, the third respondent is said to have filed a power of attorney to enter appearance on behalf of respondent no.2. The petitioner's counsel is said to have protested and had pointed out that an application under Section 32 of the Advocates Act, 1961 (Hereinafter referred to as the '1961 Act', for brevity) or under Order III Rule 2, of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity), was not forthcoming, to enable the said respondent to enter appearance. The said objection having been overruled by the KMC, the witness was partly cross-examined and the matter stood adjourned to 27.6.2013.
It transpires that the petitioner had, by the next date, learnt that the third respondent was a practising Obstetrician and Gynaecologist and that he conducts cases of medical negligence 5 across various consumer fora and State Medical Councils and has adopted it as his profession. This is admitted by the third respondent himself in published articles posted on the internet.
The petitioner had hence filed an interlocutory application on 27.6.2013, seeking that the power of attorney filed by the third respondent be rejected and to expunge all action and proceeding undertaken pursuant thereto. The KMC had merely adjourned the matter for further cross examination on 1.8.2013. As this was a virtual rejection of the petitioner's prayer, the present petition is filed.
3. It is contended that where a person, being a power of attorney seeks to represent a party to a proceeding on a standalone basis and not as a matter of practice, such party ought to file an application under Section 32 of the 1961 Act, and the court may permit such representation, if deemed appropriate. That the first respondent has, vide impugned order dated 23.5.2013, permitted a power of attorney holder, who is not an advocate, to represent the 6 second respondent under Section 32 of the 1961 Act. Thus, it is clear that the first respondent has not applied its mind while permitting a power of attorney to represent the second respondent. Therefore, it is contended that the impugned order is liable to be quashed.
It is contended that by virtue of a Power of Attorney, a party to a proceeding may at best give powers to represent such party's case in the proceeding for the limited purpose of signing and verifying requisite pleadings, that too in the absence of the party. A Power of Attorney cannot be granted to a lay person for doing any other act or thing, including to act as an Advocate to plead on behalf of the party. However, by virtue of having procured the power of attorney in his favour, Prof. Shenoy has attempted to appear, act and plead as an Advocate on behalf of the respondent No.2, which is impermissible in law.
It is contended that respondent no.1 has, by the impugned order, permitted a power of attorney holder, who is not an Advocate to represent respondent No.2 in the proceedings before 7 it, despite the existence of an advocate on record for respondent No.2. It is, therefore, contended that such dual representation of the respondent No.2 is impermissible in law.
It is contended that respondent no.1 has, by the impugned order dated 23.5.2013, permitted a power of attorney holder, who is not an Advocate, to represent respondent no.2 in the proceedings before it, and summarily over ruled the objections of the petitioner thereto, without providing any reasons therefor. The actions of the respondent no.1 apart from being arbitrary is also in violation of principles of natural justice.
It is contended that Section 18 of the Karnataka Medical Registration Act, 1961 (hereinafter referred to as the 'KMR Act', for brevity) clearly lays down that where a question of law arises before respondent no.1 - Council, such question ought to be referred to an Assessor for opinion. That the interlocutory application filed by the petitioner seeking to reject the power of attorney raised an important question of law as to the eligibility of a Power of Attorney, being a non Advocate, to appear, act and 8 plead on behalf of the respondent no.2. Consequently, the respondent no.1 ought to have referred the matter to its Assessor for opinion. Having failed to so act, the respondent no.1 has violated Section 18 of the KMR Act.
It is contended that Prof. Gopinath N Shenoy, the power of attorney holder of respondent no.2, appears before various consumer fora and State Medical Councils on a regular basis to represent delinquent doctors and carries on such representations as his profession. Such representation of Prof.Gopinath N Shenoy amounts to practicing the profession of law, which is a violation of Section 29 and Section 33 of the 1961 Act. Consequently, the said Prof. Gopinath N Shenoy cannot be permitted to represent the respondent no.2 before the respondent no.1 or like authorities.
It is contended that the proceedings before respondent no.1 is a judicial proceeding and only advocates are entitled to represent parties to such proceedings as a matter of right and no other person. An exception to the rule is a specific permission granted by an authority under Section 32 of the 1961 Act, subject 9 to just exceptions. Therefore, without an application under Section 32 of the 1961 Act, respondent no.1 cannot entertain any person to represent and plead on behalf of a party to the proceeding. However, in the instant case, such provision was also not available to respondent no.2 at the very outset, as Prof.Shenoy is legally disentitled to make such application given that his representation of different persons before different fora of law amounts to practice of law, which is illegal.
4. The second respondent has filed statement of objections to contend that there is no embargo under the KMR Act, on a party to proceedings before the first respondent from being represented by an authorized agent. The CPC has no application to proceedings before the first respondent except to the limited extent as provided in Section 16 of the 1961 Act.
Notwithstanding this it is contended that even in proceedings to which the CPC applies, a party can be represented by a recognized 10 agent. The holder of a power-of-attorney is a recognized agent under Order III Rule 2 of the CPC.
It is contended that on a similar question, the Supreme Court has held in C.Venkatachalam vs. Ajitkumar C Shah, (2011)12 SCC 497, that in certain cases where the claim may involve professional expertise, such as where a person sues a hospital for medical negligence, an architect for a faulty design or a building contractor for defective work, a professional like a Doctor, Architect or an Engineer may be more suitable than an advocate. Thus, both the parties have been given an option to choose from an advocate or any other person who may even be a professional expert in the particular field. The Court further held that an interpretation to the effect that an agent may represent a party is not only literally correct, but also promotes the declared objective of the statute. It helps the claimant and the defendant equally. It does not violate the provisions of the 1961 Act. 11
It is contended that under Section 32 of the 1961 Act, any court or authority may permit any person not enrolled as an advocate under the 1961 Act, to appear before it in any particular case. Therefore, any authority may in its discretion permit a party to the proceeding to be represented by a person who is not enrolled as an advocate. Order III of the CPC (which does not apply to the proceedings before the first respondent Council) also provides that a party may be represented by his recognized agent which includes the holder of a power-of-attorney. That there is no requirement in law that permission may be accorded by the first respondent - Council only on an application in the manner suggested by the petitioner. When the second respondent sought leave of the first respondent to be represented by her power-of- attorney holder by filing the power-of-attorney, the first respondent has, in exercise of its discretionary power, permitted the second respondent to be represented by her power-of-attorney holder.
12
It is contended that the holder of the power-of-attorney is representing the second respondent in addition to the advocate on record. As admitted by the petitioner, the advocate on record has stated in writing that he has no objection to the second respondent being represented by her power-of-attorney holder. Furthermore, the Council has also permitted the second respondent to be represented by her power-of-attorney holder.
It is further contended that it is true that Dr.Gopinath Shenoy is an Obstetrician and Gynecologist. The proceedings before the first respondent being one regarding medical negligence, the second respondent, thought it expedient that an expert should represent her in the proceeding. Dr.Gopinath Shenoy is also a very close acquaintance of the second respondent and he has been constituted by the second respondent as her agent in view of the trust reposed by the second respondent in him.
5. The third respondent appearing in person, contends that the point for consideration is whether, persons other than 13 advocates can represent parties before quasi judicial bodies, such as the KMC. And it is asserted that the question is no longer res integra, as the Apex Court in the case of C.Venkatachalam v. Ajitkumar C. Shah, (2011)12 SCC 497, has held that non- advocates can represent parties before quasi judicial bodies. That doctors are better suited to appear in cases involving medical issues. That the provisions of the 1961 Act are not attracted to non-advocates appearing before quasi judicial bodies and appearing before such bodies does not amount to practising law.
It is pointed out that the third respondent had filed a vakalath jointly with an advocate, before the KMC. In addition, a power-of-attorney was also said to have been executed in his favour by the second respondent, authorizing him to appear and represent her before the KMC in the above said proceedings.
That the third respondent had conducted the cross- examination of the complainant before the KMC. Though the counsel for the complainant had raised strong objections to the participation of the third respondent in the said proceedings, the 14 KMC had overruled the objection and permitted the third respondent to cross-examine the witness. The present petition having been filed thereafter, there was initially an interim order staying further proceedings. However, the same was vacated later.
6. A large number of cases are cited by the learned counsel for the petitioner. But as both the petitioner and the third respondent seek to place reliance on the decision of the Supreme Court in the case of C.Venkatachalam vs. Ajitkumar Shah (supra), it is useful to notice the law laid down therein.
In the said case, the facts were, that a complaint alleging deficiency of service was filed before a District Consumer Forum in Mumbai. The complaint was against two tour operators. During the pendency of the complaint, the opposite parties filed an application contending that an authorized agent, who sought to represent the complainant should not be allowed to participate in the proceedings on behalf of the complainant, as he was not enrolled as an Advocate. That application was allowed. 15
In another complaint, however, before the Consumer forum, the majority expressed the view that the authorized agents have a right to file, act, appear and argue the case. The issue was taken to the State Consumer Redressal Commission. The Commission having stayed the order of the Forum, a large number of matters where agents were representing parties, came to a stand-still. The interim order of the Commission was said to have been challenged in writ petitions before a Division Bench of the Bombay High Court. The High Court had allowed the petitions holding that the Consumer Fora constituted under the Consumer Protection Act, 1986 (Hereinafter referred to as the 'CP Act', for brevity), had the "trappings of a civil court", but were not "civil courts within the meaning of the provisions of the Code of Civil Procedure". It was held that the right of audience inhere in favour of authorized agents of the parties in the proceedings under the CP Act and such right was not inconsistent with the provisions of the 1961 Act. It was held that permitting authorized agents to represent parties in those proceedings cannot be said to practice law. 16
An appeal having been preferred before the Supreme Court, the matter was referred by a bench of the Court to a larger bench, having regard to the importance of the issue involved. The two judge bench which referred the matter had, in its order of reference, stated that the basic issue involved was whether a person, under the purported cover of being an agent, could represent a large number of persons before the forum created under the CP Act and the Rules. And whether the Rule relating to agents could be used to bypass stipulations under the provisions of the 1961 Act, more particularly, Sections 29, 31 and 32 thereof.
On a detailed analysis of the relevant provisions of law, the historical perspective of the consumer movement and the case law, the Supreme Court held as follows:-
"79. The agent has been defined both in the Consumer Protection Rules, 1987 and under the Maharashtra Consumer Protection Rules, 2000. The agents have been permitted to appear before the Consumer Forums. The appearance of authorized agents is not inconsistent with Section 33 of the Advocates Act, 1961.17
80. The legislature in its wisdom has granted permission to the authorized agents because most of the cases before the Consumer Forums are small cases of relatively poor people where legal intricacies are not involved and great legal skills are not required, which may be handled by the authorized agents.
81. The other reason is that a large number of litigants may not be able to afford heavy professional fees of trained advocates, therefore, authorized agents have been permitted.
82. It is the bounden duty and obligation of the Court to carefully discern the legislative intention and articulate the same. In the instant case we are not really called upon to discern legislative intention because there is specific rule defining the agents and the provisions of permitting them to appear before the Consumer Forums. The agents have been permitted to appear to accomplish the main object of the act of disposal of consumers' complaints expeditiously with no costs or small costs.
83. In our considered view the High Court was fully justified in observing that the authorised agents do not practise law when they are permitted to appear before the District Forums and the State Commissions.
84. In the impugned judgment the High Court aptly observed that many statutes, such as, Sales Tax, Income Tax and Competition Act also permit non-advocates to 18 represent the parties before the authorities and those non- advocates cannot be said to practise law. On the same analogy those non-advocates who appear before Consumer fora also cannot be said to practise law. We approve the view taken by the High Court in the impugned judgment."
The Apex Court has, while noticing that many statutes and Acts in India permit non-advocates to represent the parties before the Authorities and fora, has noted that in other jurisdictions also, non-advocates are permitted to appear before quasi- judicial fora or sub-ordinate courts. In most of those jurisdictions, specific rules have been framed for the regulation of qualifications, conduct and ethical behaviour of the non-advocates appearing in those fora. That most fora had rules granting them some discretion in admitting or refusing the appearance of a non- advocate representative.
The appeals were dismissed. However, the National Commission was directed to frame comprehensive rules regarding appearances of agents, registered organizations or non-advocates appearing before the National Commission, the State 19 Commissions or the District Fora - governing their qualifications, conduct and ethical behaviour.
In yet another decision in Harishankar Rastogi v. Giridhar Sharma, (1978)2 SCC 165, the question whether a person, who is not an advocate by profession, can be permitted to plead on behalf of a party before the court, was addressed. It was a criminal proceeding. The court while noticing that Advocates were entitled as of right to practise in any court, the said privilege could not be claimed as of right by any one else. It was held that it was open to a person who was a party to a proceeding, to get himself represented by a non-advocate in a particular instance or case. That practising a profession means something different from representing a friend or relative on one occasion or in one case or on a few occasions or in a few cases. It was emphasized that anyone who is not an advocate, cannot, as of right, force himself into court and claim to plead for another. It was held that the court's power may well be exercised in regulating audience before it in tune with the spirit of Section 2(q) of the Code of Criminal 20 Procedure, 1973. (As the Court was dealing with a criminal proceeding) The Court has cited with approval the contentions made on behalf of the Supreme Court Bar Association to the following effect:
".......while a private person who is not an advocate by profession cannot, as of right, walk in and claim to argue before this Court, he may, in a particular case, be specially permitted by the court in exercise of its wise discretion The wisdom of the discretion, in his submission, must be guided by a plurality of considerations. If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the court may receive counter-productive service from him. Justice may foil if a knave were to represent a party. Judges may suffer if quarrelsome, ill- informed or blackguardly or blockheadly private representatives fling arguments at the court. Likewise, the party himself may suffer if his private representative deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect for the Court. Other situations, settings and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice......"21
It was held on a conspectus of considerations that a private person, who is not an advocate, has no right to barge into court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the court to grant or withhold permission in its discretion. The court may, even after granting permission, withdraw it halfway through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.
7. Having regard to the above legal position, in the present case on hand, the third respondent seeks to represent the second respondent before the KMC in a complaint regarding an alleged act of medical negligence by the second respondent. Though the second respondent is represented by counsel, having regard to the fact that the forum is a quasi judicial body, which has not framed 22 any Rules as regards representation of parties before it, and the fact that the matter would involve highly technical knowledge and information, which cannot be readily grasped by an advocate, let alone a lay person, the third respondent, who is a qualified and experienced man in the field, may prove to be of much assistance to the Council itself, in addressing the controversy. It would be cumbersome for the third respondent to seek to merely assist the Counsel, especially while cross-examining a witness, particularly medical professionals, as it would not be possible to explain the import of a statement made or a reply to a question or the need for framing a question in the proper form.
While it is entirely in the discretion of the KMC to even withdraw the permission granted to the third respondent to represent the second respondent, for good reason; it cannot be said that the discretion exercised by the KMC in permitting the third respondent to represent the second respondent, along with her legal counsel, cannot be said to be impermissible or of causing any prejudice to the complainant. The fact that the third 23 respondent is shown to be representing medical practitioners embroiled in such controversies, before other fora in a large number of cases as candidly admitted by the third respondent himself, would actually be a point in his favour. In that, it would only indicate that his conduct has not been reprehensible and that he has not been debarred from such appearances. It cannot be said that such appearances by the third respondent would tantamount to a practise in law. Incidentally, the third respondent states that he never seeks to represent a party before any judicial body.
In the above view of the matter, the writ petitions are dismissed.
Sd/-
JUDGE nv*