Herat R. Parmar (Ms.) vs Maharashtra Medical Council And ...
2001 Latest Caselaw 630 Bom

JUDGMENT

S.A. Bobde, J.

1. By this petition under Article 226 of the Constitution of India; the petitioner is challenging the order of the respondent No. 1 -- Maharashtra Medical Council dated 21-3-1996 by which the Maharashtra Medical Council has accepted the opinion of its Executive Committee that the respondents-Doctors are not guilty of any negligence in discharge of their professional duties; in particular, in treating the petitioner's father at Ashirwad Heart Hospital, Ghatkopar (East), Bombay.

2. The only grievance of the petitioner is that the respondent - Maharashtra Medical Council ought not to have accepted the recommendations of its Executive Committee that there is no prima facie case against the respondents - Doctors i.e., respondents No. 2 to 5 without affording the opportunity to the petitioner of being heard before taking such a decision. The impugned decision of the Maharashtra Medical Council dated 21-3-1996 has been taken and communicated, admittedly without hearing her.

3. The petitioner's father, R.U. Parmar on 24-3-1993 while walking suddenly developed a weakness in both the limbs, started perspirating and had difficulty in speaking. He however reached home. Since he was a diabetic, the petitioner, who herself is a doctor, took him to Dr. Metalia who advised the petitioner to contact one, Dr. Panchal. Dr. Panchal suggested that the petitioner's father might have a neurological problem and advised that he be admitted to the Ashirwad Heart Hospital, the respondent No. 6 herein and that he along with Dr. Bhaskar Shah, the respondent No. 3 herein, to take care of the patient being ICCU. According to the petitioner, her father was therefore admitted in the ICCU of Ashirwad Heart Hospital on 24-3-1993 at about 9.00 p.m. Unfortunately, on 26-3-1993, the vital health parameters of petitioner's father started deteriorating when, according to her, she repeatedly requested the doctors, in particular respondent No. 4 and respondent No. 5 to assess her father's condition and give proper treatment. The petitioner's case is that the Doctors did not do the needful and failed to detect primary cardio failure as a result of which, her father died.

4. The petitioner therefore lodged a compliant with the respondent No. 1 - Maharashtra Medical Council complaining of negligence in discharge of duties on the part of respondents No. 2 to 5. On 28-4-1993, the Maharashtra Medical Council called upon the petitioner to furnish copies of the complaint, medical case papers and other documents so as to enable it to deal with the complaint. Though the matter was taken up on 19-1-1996, it was adjourned on that date and subsequently thereafter the petitioner did not come to know the date of hearing.

5. On 22-3-1996 the respondents Doctors, who were charged with negligence before the Consumer Disputes Redressal Committee, produced before that committee a letter dated 21-3-1996 addressed to them by the Maharashtra Medical Council to the effect that the Council has accepted the recommendations of the Executive Committee that there is no prima facie case against the respondents - Doctors and no further inquiry being necessary, the case is closed. The petitioner claims that that is when she came to know of the decision of the respondent Council, exonerating the Respondents. That is the letter which is impugned in the petition.

6. It is contended on behalf of the petitioner that the petitioner is entitled to hearing before the Maharashtra Medical Council takes any decision to exonerate the respondents Doctors.

7. It is therefore necessary to reproduce the relevant statutory scheme under which such complaints are dealt with by the Maharashtra Medical

Council. The respondent Council is constituted under the Maharashtra Medical Council Act, 1965 (hereinafter referred to as, "The Act"). The Executive Committee is formed under Section 11 of Act and consists of four ex-officio independent members who are all medical practitioners.

8. The Council itself is constituted under Section 3 of the Act. It is conferred, inter-alia, under Section 10(d) of the Act with the power to reprimand a practitioner, or to suspend or remove him from the register, or to take such other disciplinary action against him as may, in the opinion of the Council, be necessary or expedient. Another power conferred on the Council by the Act is to take action against a registered practitioner found guilty of any misconduct by the Council under Section 22 of the Act.

9. Chapter VI of the Maharashtra Medical Council Rules, 1967 (hereinafter referred to as, "The Rules") deals with "Inquiries". The relevant scheme is as follows ;

Rule 62 empowers the Council to hold inquiry suo-motu or on any complaint made to it regarding misconduct of any registered practitioner for the purposes of Section 22 of the Act. Section 22(1) reads as follows :

"22(1) -- If a registered practitioner has been, after due inquiry held by the Council (or by the Executive Committee) in the prescribed manner, found guilty of any misconduct by the Council, the Council may:--

 (a)    issue a letter of warning to such practitioner, or   
 

 (b)    direct the name of such practitioner - 
  

 (i)     to be removed from the register for such period as may be specified in the direction, or  
 

 (ii)    to be removed from the register permanently."   
 

 Rule 63 empowers the President of the Council, on going through the complaint, to ask the petitioner for an explanation. It reads as follows : 
  

 "63. Procedure for submission of complaint to Executive Committee. - 
  

(1) Subject to the provisions of Rule 62, the President may, on going through the complaint and all the papers submitted by the complainant, instruct the Registrar to ask the practitioner by means of a registered letter for any explanation he may have to offer.

(2) All the documents pertaining to the complaint including any explanation forwarded by the registered practitioner shall then be referred to the Executive Committee along with the remarks of the President, if any."

When the matter is referred to the Executive Committee under the last rule, the Executive Committee is empowered under Rule 64 to cause further investigation, take such action as it may deem fit and after considering the case, record the opinion and refer it to the Council for the decision. Rule 64 reads as follows:

"64. Powers of Executive Committee to refer complaint to Council. -

(1) The Executive Committee shall consider the complaint and may cause further investigation to be made and may take such legal advice by consulting any legal practitioner as it may deem fit.

(2) The Committee shall, after consideration of the case, record its opinion and refer it to the council for decision."

Thereafter, the case comes within the domain of the Council whose action is governed by Rule 65 which reads as follows :

"65. Action to be taken by the Council when case is referred to it. --When a case is referred to it under Sub-rule (2) of Rule 64, the Council may -

 (a)    direct the Registrar to call for such additional information as it may desire to have about the points arising in the case; 
 

 (b)    direct the Registrar to file the papers if in its opinion no prima facie case is made out against the medical practitioner; 
 

 (c)    exonerate the medical practitioner of the charges levelled against him if the explanation offered by him is considered satisfactory by the Council; or  
 


(d) direct an inquiry to be held in accordance with Rules 66 to 73."   
 

 It is clear from the reading of the above rules that; 
  

 (i)     It is the council alone which has exclusive power to file papers if in its opinion no prima facie case is made out against the medical practitioner or,  
 

 (ii)    Exonerate the medical practitioner of the charges levelled against him if the explanation offered by him is considered satisfactory, or  
 

 (iii)   direct an inquiry to be held in accordance with Rules 66 to 73. 
 

10. The learned counsel for the petitioner contended that it is at this stage i.e., before any of the aforesaid decisions is taken by the Council i.e., to either file papers on the ground that no prima facie case is made out against the respondents or to exonerate the practitioners on the ground that the explanation offered by them is considered satisfactory, the Council must hear the complainant.

11. Having considered the matter at some length, we are of the view that the sole cause of an inquiry is whether the patient has suffered due to the misconduct or mal-practice of any medical practitioner. The complainant cannot therefore be excluded from the decision making process especially if the decision results in the dismissal of her complaint. In Basudeo Tiwary v. Side Kanhu University , the Supreme Court observed:--

"10. In order to impose procedural safeguards this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that

omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing - it may be implied from the nature of the power -- particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the legislature (vide Mohinder Singh Gill v. Chief Election Commissioner) and except in case of direct legislative negation or implied exclusion (vide S.L. Kapoor v. Jagmohan)"

We are satisfied that there is no direct legislative negation or an implied exclusion of the rules of natural justice in the statutory scheme under consideration.

12. It is important to note that if the Council decides to direct an inquiry to be held in accordance with the Rules 66 to 73, the Rules entitle the complainant to obtain in advance, the documents filed by the registered medical practitioner before the hearing of the case commences. The complainant is also entitled to obtain copies of any explanation, submission of other documents putforth in advance by the registered medical practitioner. This can be seen from Rule 69 which reads as follows :

"69. Council and (complainant), if any, to be supplied with copies of all documents etc. -- (1) Copies of all material documents including written statement of defence, if any, which is placed before the Council as evidence in regard to the case shall be supplied to all members of the Council before the hearing of the case commences."

Further, Rule 71 contemplates that at the inquiry, the complainant, may appear personally or by a legal practitioner. Rule 71 reads as follows:

"71. Procedure of Inquiry. -- (1) Where a complainant appears personally or by a legal practitioner, the following procedure shall be followed, namely:--

 (a)    The Registrar will read to the Council the notice of inquiry addressed to the petitioner. 
 

 (b)    The complainant will then be invited to state his case by himself or by his legal practitioner and to produce his evidence in support of it. At the conclusion of the evidence of the complainant, his case will be closed. 
 

 (c)    The practitioner will then be invited to state his case by himself or by his legal practitioner and to produce his evidence in support of it. He may address the Council either before or at the conclusion of his evidence, but only once. 
 

 (d)    At the conclusion of the practitioner's case, the Council shall, if the practitioner has produced evidence, hear the complainant in reply on the case generally, but will hear, no further evidence except in any special case in which the Council may think right to receive such further evidence. If the practitioner produces no

evidence, the complainant will not be heard in reply except by special leave of the Council. 
 

 (e)    Where a witness is produced by any party before the Council will be first examined by the party producing him, and be cross-examined by the adverse party, and then re-examined by the party producing him. The Council reserves to itself the right to decline to admit in evidence any declaration where the declarant is not present or declines to submit to cross-examination. 
 

 (f)     The President and the assessor, if any, appointed under Section 22 may put questions to the complainant and registered practitioner including any of their witnesses and members of the Council, through the President, may likewise put questions to them. 
 

 (2) Where there is no complainant or no complainant appears, the following procedure shall be followed, namely :-- 
  

 (a)    The Registrar shall read to the Council the notice of inquiry addressed to the practitioner, and will state the facts of the case and produce before the Council the evidence by which it is supported. 
 

 (b)    The practitioner shall then be invited to state his case by himself or by his legal practitioner and to produce his evidence in support of it. He may address the Council either before or at the conclusion of his evidence, but only once. 
 

 (c)    The legal practitioner of the Council, if any, may be heard in reply if the Council so desires." 
 
 

13. Having regard to the statutory scheme, we find that if the complainant is allowed full participation at the inquiry which is held by the Council, we find no reason or justification why the complainant ought not to be heard at the stage of Rule 65, if the Council decides to dismiss the complaint on the ground that no prima facie case is made out against the medical practitioner or to exonerate the medical practitioner of the charges levelled against him. After all, the effect of such a decision by the Council is, from the point of view of the complainant, that his or her complaint stands dismissed. We, therefore, hold that the Council must hear the complainant, either in person or through a legal practitioner before acting under Rule 65 Clauses (b) and (c) i.e., before holding that no prima facie case is made out against the medical practitioner or before the medical practitioner is exonerated. The explanation offered by the medical practitioner is considered satisfactory by the Council.

14. It is important to note that at the stage of Rule 64 i.e., when the Executive Committee considers the complaint, there is no express provision for hearing the complainant. We do not find it necessary to read in, in Rule 64, a requirement of hearing the complainant because the Committee does not have the power to file the complaint or exonerate the medical

practitioner but is bound under Sub-rule (2) to record its opinion and refer it to the Council for decision.

15. The learned counsel for the petitioner drew our attention to the judgment of Division Bench of this Court in Raghunath G. Raheja v. Maharashtra Medical Council and Ors. reported in 7996 (1) Mh.LJ. 687. We are of the view that the decision has no application in the facts of the present case since in that case the Executive Committee which found no prima facie evidence against the medical practitioners in question had in fact complied with the rules of natural justice.

16. The learned counsel for the petitioner further relied on a decision of the Supreme Court in the case of Vasant D. Bhavsar v. Bar Council of India and Ors. . That was a case in which the complainant had alleged that she lost her case before the Prant Officer because of the negligence of her advocate. The Disciplinary Committee of the Bar Council of India found that the Advocate had misconducted himself and acted in a manner unbecoming of a lawyer and his professional ethics and suspended him from practice for a period of two years. The order of the Disciplinary Committee was, however, an order which did not contain any discussion of the evidence. The Supreme Court found that the lack of such discussion is consequential since on a perusal of the evidence, it was found that the complainant had admitted that she had not filed Vakalatnama of the Advocate before the Tahsildar or Prant Officer. It was therefore found that as a result, the Advocate could not be found guilty of the dereliction of duty for not appearing before the authorities on behalf of the complainant. While allowing the appeal, the Supreme Court has observed in para 4 as follows :

"4. We think that we should impress upon the Disciplinary Committee of the Bar Councils that their orders in disciplinary matters should be speaking orders; they must set out the reasons for which they are passed. Where the orders are based on evidence, as is usually the case with complaints against advocates, there must be some analysis of the evidence and the conclusion must be based on such analysis. It is not enough to state the conclusions without indicating the material on the record upon which such conclusions are based."

17. We find that the order of the respondent Maharashtra Medical Council in the case before us is not a speaking order. It merely reproduces the recommendation of the Executive Committee and thereafter merely states that the said recommendation has been accepted by the Council. Such evidence can hardly inspire any confidence in complainants who consider themselves aggrieved by the negligence of registered medical practitioner. We therefore hold that the Council must pass a speaking order which indicates reasons for its decisions.

18. We are therefore of the view that the Medical Council must, while considering the case, on the basis of the opinion of the Executive Committee

formed under Rule 64, issue notices to the complainant and give an opportunity to the complainant to present her case before taking any decision in terms of Clause (b) of Rule 63 to file the papers if it is of the opinion that no prima facie case is made out against the medical practitioner or (c) exonerate the medical practitioner of the changes that is against him if the explanation offered by him is considered satisfactory by the Council. We are further of the opinion that in an appropriate case, the Medical Council may allow the complainant to be represented by a lawyer at the stage of hearing.

19. In the present case, we find that the impugned order dated 21-3-1996 is untenable in law because the petitioner was not heard before passing the order and because it does not disclose reasons. We, therefore, set aside the order and direct the respondent Medical Council to issue notices to the petitioner before taking proceeding further in the matter. In the event Medical Council decides to file the papers or close the case, the Medical Council shall record its reasons for doing so. In the result, writ petition is allowed. Rule, is made absolute in terms of prayer Clauses (a) and (b). We, however, make it clear that the Medical Council is entitled to form its own opinion after hearing the petitioner.