Karnataka High Court
Dr S Manmohan vs The Karnataka Medical Council on 1 August, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.40140/2010 (GM-RES)
Between:
Dr. S Manmohan
Surgen, Aged about 65 years
C/o Sri Siddaganga
Nursing Home, Adepet Road
Nelamangala
Bangalore Rural District
Pin Code - 562 123 ...Petitioner
(By Sri V N Jagadish, Adv.)
And :
1. The Karnataka Medical
Council, K.R.Road
Basavanagudi, Bangalore-04
Rep. by its Registrar.
2. Smt. Sujatha
C/o late Venkatashamaiah
Jakkasandra Colony
Kasaba Hobli, Nelamangala Taluk
Bangalore Rural District. ... Respondents
(By Sri D S Hosmath, Adv. for R1
Sri M Babu Rao, Adv. for R2)
This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India, with a prayer to quash the order
dt.08.07.2010, passed by the R1, Karnataka Medical Council in
case No.ENQ/10/10 vide Ann-J to this writ petition.
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This Writ Petition coming on for Preliminary hearing in
'B' group, this day, the Court made the following :
ORDER
The petitioner is before this Court assailing the order dated 08.07.2010 passed by respondent No.1- Karnataka Medical Council in case No. ENQ/10/2010 vide Annexure-J to the petition.
2. The petitioner is a Medical Practitioner. He contends that he has practiced for more than 30 years. During the said course, the daughter of respondent No.2 viz., Kum. Vijayalakshmi B.V. had been treated by the petitioner as she was diagnosed of Right Congenital Inguinal Hernia. In that process, respondent No.2 contends that due to medical negligence on the part of the petitioner, her daughter had suffered complications and therefore, she has complained to respondent No.1 in that regard. In addition, respondent No.2 has also filed a complaint before the Consumer Redressal Forum alleging that there was 'deficiency of service' by the petitioner. The said proceedings is stated to be pending. The instant 3 proceedings relate only to the action that had been initiated by respondent No.1. Respondent No.1 by the order dated 08.07.2010 has arrived at the conclusion that "Warning" is to be administered to the petitioner. The petitioner is aggrieved by the said order.
3. Learned counsel for the respondents seek to justify the action of respondent No.1. Respondent No.2 who had initiated the complaint has filed the objection statement and has referred to the manner in which the treatment was rendered by the petitioner to her daughter and the suffering thereafter. It is also contended that as against an order by the Karnataka Medical Council, an appeal is provided to the Indian Medical Council under Regulation 8.8 of the Regulations. It is therefore the contention of the respondents that the petition itself is not maintainable. Even otherwise on merits, respondent No.1 has taken into consideration the complaint put forth by respondent No.2 and has arrived at its conclusion and therefore same does not call for interference is the contention.
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4. The existence of statutory provision with regard to appeal to the Indian Medical Council cannot be disputed. However, the question in the instant case is as to whether the petitioner should be relegated to his appellate remedy. The well settled position of law is that notwithstanding an appellate remedy, this Court would be entitled to entertain a petition under Article 226 of the Constitution of India in the excepted circumstances, where the authority passing the order has no jurisdiction or if there is total lack of compliance of principles of natural justice.
5. In the instant facts, a perusal of the order impugned would indicate that except for taking note of a show cause notice dated 19.05.2010 being issued and there being observation that the complainant has failed to appear before the Council, there is no reason to indicate as to whether the petitioner has been granted sufficient opportunity when it is contended that a reply has been issued to the show cause notice but no opportunity was granted nor was it considered. Therefore, in a fact of the 5 present nature, I am of the opinion that the matter requires consideration before this Court, more particularly when this petition has been pending before this Court from the year 2010.
6. In that light, a further perusal of the order dated 08.07.2010 would indicate that respondent No.1 has only referred to the details of the complaint as made by respondent No.2 and has noticed the show cause notice that has been issued to the petitioner. Thereafter an observation is also made with regard to the notice received by respondent No.1 from the Karnataka State Human Rights Commission and ultimately decision was taken to impose punishment on the petitioner.
7. The manner in which respondent No.1 has proceeded itself would indicate that the action taken which prejudices the petitioner is without opportunity to the petitioner. Therefore, for the sole reason, I am of the opinion that the order dated 08.07.2010 is not sustainable as the matter requires reconsideration by respondent No.1 after providing opportunity to the parties before it. 6
8. In that view, the order impugned dated 08.07.2010 stands quashed. The petitioner as well as respondent No.2 shall now appear before respondent No.1 without further notice on 26.08.2013. Respondent No.1 shall thereafter provide opportunity to the parties and come to a conclusion one way or the other in accordance with law. All contentions are left open.
9. Needless to mention that since the nature of consideration in the proceedings before the Consumer Redressal Forum and the proceedings before respondent No.1 are distinct and different, there would no impediment for the Consumer Redressal Forum to proceed with the matter notwithstanding the pendency of the proceedings before respondent No.1.
The petition stands disposed of in the above terms.
Sd/-
JUDGE hrp/bms