Calcutta High Court (Appellete Side)
Subalchandra Pal vs State Of West Bengal & Ors on 30 January, 2019
1
IN THE HIGH COURT AT CALCUTTA
30-01-2019Constitutional Writ Jurisdiction Appellate Side Subrata W.P.No.2463(W) of 2018 Subalchandra Pal
-vs-
State of West Bengal & Ors.
Mr. Shibaji Kumar Das ...for the petitioner Mr. Saibalendu Bhowmick Mr. Biplab Guha ...for the medical council The writ petitioner seeks interim order of stay of an order of punishment, which debars him from practising for a period of two years for infamous conduct found against him, passed by the Registrar, West Bengal Medical Council on July 31, 2017 (Annexure P7, p.61).
It appears from the facts as follows. On July 12, 2009 one Sampa Guha, 25, was taken in the evening to one H.K. Nursing Home at Burdwan with symptoms like PV bleeding IUGR/dry IGA. The petitioner conducted a cesarean section surgery on an emergency basis since, in his view, the same was needed to save the child in the womb of the patient as well as the patient.
The patient is stated to have normally delivered a female child in the evening at 9.09 p.m. on July 12, 2009. The patient is stated thereafter in the next morning to have developed a shock resulting from a cardiac situation, inter alia, as a consequence of post- operative hypertension and/or septicemia.
The petitioner immediately ordered transfer of the patient from HK Nursing Home to one BCCU Nursing Home in the same town which had ICU facility. The patient is stated to have died on the next date on July 14, 2009 at about 8.30 a.m. A complaint was received from the father of the victim and the West Bengal Medical Council embarked an inquiry thereupon. The PE Committee, before whom a preliminary investigation was done, took the evidence 2 of the petitioner as also other persons. The records were carefully considered.
The PE Committee, however, found the writ petitioner guilty of not following the normal prescribed procedure before ordering an emergency cesarean section surgery. Such opinion was formed also after taking into consideration the expert opinion of other doctors in this regard. It was found that the mandatory pre-surgical tests like USG and ECG tests were not done.
A charge-sheet was issued to the petitioner, and he had replied to the same asking for documents relied upon by the council for issuance of the charge-sheet.
The petitioner was thereafter heard once again before the West Bengal Medical Council where he chose to appear himself and did not avail of the assistance of any legal practitioner. No further witnesses were brought before the council on behalf of the petitioner or the complainant.
The council found that the charges against the petitioner were proved and hence passed the order of punishment debarring from practising for two years.
The petitioner would argue that before the PE Committee one Dr T.K. Majhi was examined, but that the petitioner was not allowed to cross-examine Dr Majhi. He also submits that he was not allowed access the other documents before the PE Committee.
I find from the rules for inquiry under the Bengal Medical Council Act, 1914 that there is no procedure of cross-examination of any witness before the PE Committee. A conjoint reading of rules under clause
(d)(I) of sub-section (2) of section 33 of the 1914 Act, as amended particularly rules 5-16, indicate that it is only before the council that witnesses are required to be produced either by the Registrar or the petitioner, and only then comes the stage of cross-examination. It also does not appear that the petitioner made any specific 3 request for production of witnesses or for bringing Dr Majhi for being examined/cross-examined before the council.
A PE Committee report, in my view, is in the form of preliminary investigation report before a formal inquiry.
The rules of the council under the statute in question do not conceive of any right of cross- examination before the PE Committee. The rules are not under challenge.
In those circumstances, I do not find any violation of the principles of natural justice or prejudice demonstrated by the petitioner towards such violation.
The principal charge against the petitioner is that conducting of cesarean section surgery was done without proper mandatory pre-surgical tests. The petitioner submits that since it was an emergency, he had no option but to perform surgery. The council found otherwise, as the petitioner could not demonstrate that patient consulted him only in the evening and not earlier since she was under his care for five months prior to the surgery.
The other charge that the petitioner did not go to visit the patient at the second nursing home - BCCU Nursing Home - according to me, is not material to the principal charge.
The aforesaid facts that have emerged after a two- day hearing given to the counsel for the petitioner do not persuade me to pass an interim order interfering with the order of punishment.
The West Bengal Medical Council shall file opposition in course of this week; reply thereto, if any, shall be filed by a week thereafter.
4List the writ petition for final hearing after exchange of affidavits on February 18, 2019.
[Rajasekhar Mantha, J]