IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO.49526 OF 2013 (GM-RES) BETWEEN:
DR. POONAM ARYA D/O. D. P. ARYA AGED 38 YEARS 12, 8TH MAIN, 7TH CROSS JAKKASANDRA BLOCK KORMANGALA LAYOUT BANGALORE-560 034. ... PETITIONER (BY SRI M. NAGAPRASANNA, SR. COUNSEL FOR SRI SIDDAPPA SUNIL AND SRI NITHIN, ADVS.) AND:
1. THE PRESIDENT KARNATAKA MEDICAL COUNCIL # 70, 2ND FLOOR "VAIDYAKEEYA BHAVANA"
K.R. ROAD (NEAR BASAWANAGUDI POST OFFICE) BASAVANAGUDI BANGALORE-560 004.
2. SRI D.R. JAGANNATH AGE: MAJOR NO.41/4, 7TH CROSS 10TH MAIN, GURURAJA LAYOUT BANASHANKARI 3RD STAGE BANGALORE-560 085. ... RESPONDENTS (BY SRI D.S. HOSMATH, ADV. FOR R1;
SRI MADHURANATH PADAKI S., ADV. FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DT.25.7.2013 VIDE NO.KMC/ENQ/31/2010 PASSED BY THE KARNTAKA MEDICAL COUNCIL R-1 AS PER ANNEXURE-B.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri M. Nagaprasanna, Senior counsel for Sri Siddappa and Sri Nithin, learned counsel for petitioner. Sri D.S. Hosmath, learned counsel for respondent No.1 and Sri Madhuranath Padaki S., learned counsel for respondent No.2.
2. The writ petition is admitted for hearing.
With the consent of the parties, the matter is heard finally.
3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 25.07.2013 passed by the Karnataka Medical Council.
4. The facts giving rise to filing of the writ petition briefly stated are that the petitioner is a General Surgeon, who at relevant point in time was working in Sagar Hospital, Banashankari, Bangalore. The patient namely, Mrs. Sunitha Jagannath consulted the petitioner on 20.05.2010. On examination, the petitioner found the patient to be in shock with an unrecordable pulse and Blood Pressure. Thereupon, the patient was admitted to I.C.U and resuscitated. The treatment was administrated to the aforesaid patient by the petitioner and another Doctor. However, the aforesaid patient expired after four months. Thereupon, the respondent No.2 filed a compliant before the Police Authority against the petitioner on 07.09.2010 for the alleged medical negligence of the petitioner. Thereupon, the police authority referred the matter to the Karnataka Medical Council. The Karnataka Medical Council, by an order dated 25.07.2013 has administrated warning to the petitioner. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned Senior Counsel for petitioner while inviting the attention of this Court to the impugned order dated 25.07.2013 submitted that the same suffers from vice of non-application of mind and no reasons whatsoever has been assigned.
6. Learned Senior counsel for the petitioner in support of his submission has placed reliance on the decision of the Hon’ble Supreme Court in ‘CYRIL LASRADO (DEAD) BY LRS. AND OTHERS VS. JULIANA MARIA LASRADO AND ANOTHER’ [(2004) 7 SCC 431] and in ‘ORYX FISHERIES PRIVATE LIMITED VS. UNION OF INDIA AND OTHERS’ [(2010) 13 SCC 427].
7. On the other hand, learned counsel for respondent No.1 has supported the impugned order dated 25.07.2013.
8. I have considered the submission made by learned counsel for the parties.
9. It is trite law that even a quasi-judicial authority is required to assign reasons for passing the order. In view of the decision laid down by the Supreme court in ‘VICTORIA MEMORIAL HALL vs. HOWRAH GANATANTRIK NAGRIK’, 2010 (3) SCC 732, reasons were held to be the heartbeat of every conclusion, apart from being an essential feature of the principles of natural justice, that ensure transparency and fairness, in the decision making process.
10. In view of the aforesaid well settled legal principles, the authority passing the order is required to assign reasons while passing the impugned order. The relevant extract of the impugned order dated 25.07.2013 reads as under:
“Discussion: Karnataka Medical Council is of the considered opinion that R(1) was hasty in proceeding with Laparoscopic repair of a perforated Duodenal ulcer without obtaining a C.T. Scan and fitness for surgery by a Physician. R(1) has failed to convince the Council about her Training, experience and competence in performing Laparoscopic Surgeries and she has not Registered her Post Graduate Qualification in K.M.C. There was a Technical defect in the supply of CO2 and R(3) is responsible for the deficiency in service. The duodenal bloc out and the ensuing complications and multiple Surgeries resulted in the death of the patient apart from the huge Hospital Bill. R(2) and the other Specialists have come to help R(1) and save the Patient and there was no Negligence on their part.”
11. Thus, from the perusal of the relevant extract of the impugned order dated 25.07.2013, it is evident that no reasons whatsoever have been assigned by the Karnataka Medical Council for passing the impugned order. On the other hand, the burden has been cast upon the petitioner to prove her competence and experience in performing Laparoscopic Surgeries. Thus, the aforesaid approach of the Karnataka Medical Council cannot be said to be reasonable. In fact, the Karnataka Medical Council while passing the impugned order was required to appreciate whether or not a case of medical negligence was established by respondent No.2 by taking into account the material on record which was brought by the parties. However, instead of doing so, without assigning any reason, the impugned order has been passed to the effect that the petitioner has failed to prove her competence and experience.
12. Therefore, the impugned order is cryptic and suffers from vice of non-application of mind. Therefore, the impugned order dated 25.07.2013 is quashed and set aside. The matter is referred to the Karnataka Medical Council to take a decision in the matter afresh, after affording an opportunity of hearing to the parties, in the light of the observation made supra.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE ST