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.49230 OF 2013 (GM-RES) BETWEEN:
DR. SHANTANU TANDON S/O. LATE DR. ASHOK TANDON AGED ABOUT 37 YEARS RESIDING AT D-8 ST. JOHN’S HOSPITAL STAFF QUARTERS OFF. HOSUR ROAD BANGALORE-560 034. ... PETITIONER (BY SRI GANAPATI HEGDE, ADV. FOR M/S. DUA ASSOCIATES) AND:
1. THE KARNATAKA MEDICAL COUNCIL NO.70, 2ND FLOOR VAIDYAKEEYA BHAVANA K.R. ROAD, BASAVANAGUDI BANGALORE-560 004.
2. MRS. NAGARATHNA 52, 7TH MAIN, HONGASANDA BEGUR ROAD NEAR ANJANEYA TEMPLE OPPOSITE POST OFFICE BANGALORE-560 068. ... RESPONDENTS (BY SRI D.S. HOSAMATH, ADV. FOR R1 – ABSENT SRI H. MALATHESH, ADV. FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.10.2013 PASSED BY THE KARNATAKA MEDICAL COUNCIL VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri Ganapati Hegde for M/s. Dua Associates, learned counsel for petitioner. Sri D.S. Hosmath, learned counsel for respondent No.1 and Sri H. Malathesh, 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 seeks a writ of certiorari for quashment of the order dated 17.10.2013 passed by the Karnataka Medical Council.
4. The facts giving rise to filing of the writ petition briefly stated are that the petitioner is an ENT Specialist from Lokmanya Tilak Municipal Medical College, Mumbai. The petitioner has been working as full time teaching faculty in St. John’s Medical College and Hospital, Bengaluru and he has been involved in both clinical and teaching activities. It is averred in the petition that the petitioner has performed over 110 Endoscopic Surgeries. It appears that the petitioner has performed an operation on respondent No.2. Thereupon, the respondent No.2 has filed a complaint to the Police authority for the alleged medical negligence of the petitioner. Thereafter, the Police authority referred the matter to the Karnataka Medical Council. The Karnataka Medical Council, by the impugned order dated 17.10.2013 has administrated a stern 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 17.10.2013 submitted that the same suffers from vice of non-application of mind and no reasons whatsoever have been assigned.
6. On the other hand, learned counsel for respondent No.1 has supported the impugned order.
7. I have considered the submissions made by learned counsel for the parties.
8. 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.
9. 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 17.10.2013 reads as under:
“Discussion: R(1) referred the case to R(2). R(2) is an Assistant Professor of ENT. He has reviewed the pre-operative C.T. Scan and states that thinning of the orbital wall was noticed by him. This thinning was due to multiple Polyps in the Right nostril. R(2) has not proved him competence and experience in performing Endoscopic Polypectomy in a situation where thinning of the orbital wall was present and a known risk. Post operative C.T. Scan confirmed a defect in the lower region of lamina papyracea and this defect leading to prolapse of the Right eyeball was caused during the first Surgery by R(2). Ultimately the Complainant lost the eye sight permanently.”
10. Thus, from the perusal of the relevant extract of the impugned order dated 17.10.2013, 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 his competence and experience in performing Endoscopic Polypectomy. 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 the 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 his competence and experience.
11. Therefore, the impugned order is cryptic and suffers from vice of non-application of mind. Hence, the impugned order dated 17.10.2013 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