Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 437 (CAL)

KUNAL SAHA v. WEST BENGAL MEDICAL COUNCIL

2006-07-20

BHASKAR BHATTACHARYA, DEBASISH KAR GUPTA

body2006
BHASKAR BHATTACHARYA, J. ( 1 ) INSTEAD of disposing of the interlocutory application, we have heard out the appeal itself by treating it as on days' list with the consent of the learned Counsel for the parties. ( 2 ) THIS mandamus appeal is at the instance of an unsuccessful writ petitioner and is directed against order dated 22nd February, 2006 passed by a learned Single Judge of this Court thereby dismissing a writ application filed by the appellant against order dated 18th June, 2002 communicated by the President, West Bengal Medical Council informing the writ petitioner that the Council did not find any merit in the allegations made against three of its members named in the complaint lodged by the appellant. By the said order, the appellant was further informed that the reason for rejection of the complaint, however, would be communicated to him in due course. ( 3 ) THE facts giving rise to filing of the present appeal may be epitomised thus: (a) On the basis of complaint filed by the writ petitioner, the Council initiated proceedings against three different Doctors mentioned in the said complaint alleging negligence on their part in treating the wife of the appellant which resulted in her death. (b) Ultimately, the Council made final order in the proceedings on 20th may, 2002 holding that it found no merit in the complaint. (c) Being dissatisfied, the appellant, in the past, filed another writ application which was disposed of by a learned Single Judge of this Court by order dated 23rd May, 2002 thereby setting aside the said order and directing the Council to give further opportunity of hearing to Mr. Pijush dutt, the learned Counsel for the appellant as the learned Single Judge was of the view that Mr. Dutt did not get the opportunity of making submission on the last date fixed by Medical Council on 20th May, 2002 due to rejection of the prayer for adjournment. His Lordship, however, made it clear that no further adjournment should be prayed for on behalf of the appellant. (d) Pursuant to the order passed by the learned Single Judge, the Council fixed a date for further hearing and gave notice to Mr. Pijush Dutt. Mr. His Lordship, however, made it clear that no further adjournment should be prayed for on behalf of the appellant. (d) Pursuant to the order passed by the learned Single Judge, the Council fixed a date for further hearing and gave notice to Mr. Pijush Dutt. Mr. Dutt, on the date fixed for hearing, gave a reply which arrived before the council after the time fixed for hearing and actually, after the conclusion of fresh ex parte hearing, stating that he being a senior Advocate, the notice of hearing could not be given to him and the notice ought to have been addressed either to the Advocate-on-record or direct to the appellant. It, however, appears that Mr. Dutt himself had given reply in his letterhead and as pointed out earlier, such letter was received by the Council after the conclusion of hearing which was fixed at 1. 00 p. m. The Medical council by that time already recorded the order that as none appeared on behalf of the complaint in spite of giving opportunity in terms of the order of the High Court, it had decided to reconfirm the earlier order passed by the Council. ( 4 ) BEING dissatisfied, the appellant has come up with another writ application out of which the present appeal arises. ( 5 ) IT may not be out of place to mention here that during the pendency of the proceedings before the Council, the appellant, in the past, filed a writ application alleging that the President of the Council was biased in favour of the persons against whom allegations were made but such writ application having been dismissed, the appellant preferred an appeal and such appeal was also dismissed by a Division Bench of this Court holding that the petitioner failed to establish the allegations of bias against the President of the Council. Against such order, the appellant moved a special leave application before the Supreme Court but such application has also been dismissed during the pendency of the present proceedings wherein the Supreme Court permitted the appellant to agitate the question of bias before this Court. ( 6 ) AS pointed out earlier, the learned Single Judge by the order impugned herein has dismissed the said writ application. ( 6 ) AS pointed out earlier, the learned Single Judge by the order impugned herein has dismissed the said writ application. By the order impugned, the learned Single Judge has stated that the writ petitioner had alternative remedy of appeal provided by the Statute but had chosen not to avail of the same. His Lordship has further recorded that Mr. Dutt was under the obligation to participate in the proceedings before the Council on the day notified by the Council and once the date was notified, Mr. Dutt without any just reason decided not to participate in the proceedings on the ground that notice should not have been sent direct to him. His Lordship further held that there was no reason why the date notified by the Council by its notice dated 13th June, 2002 should not be treated to be within the knowledge of the petitioner who was represented in the Council through Mr. Dutt. Consequently, His Lordship rejected the writ application. ( 7 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record, we find that the appellant made complaint against three Doctors, namely, Dr. Sukumar Mukherjee, Dr. Abani roychowdhury and Dr. Baidyanath Haider, alleging mistreatment and negligence while his wife was under medical treatment. On receipt of such complaint from the appellant, the Medical Council asked for the comments from the three Doctors and those were investigated by Penal and Ethical cases Committee (hereinafter referred to as P. E. Committee ). The said P. E. Committee examined those three Doctors as well as the appellant and also five different physicians who were all attached to A. M. R. I. Hospital where the wife of the appellant was treated. The P. E. Committee also obtained opinions from the experts in Medicines, Dermatology and Pharmacology during their course of investigation and ultimately, came to the conclusion that the allegations against the Dr. Abani Roychowdhury and Dr. Baidyanath haider could not be substantiated and accordingly, they might be exonerated. Dr. Sukumar Mukherjee was also exonerated of the charges of use of FCCP fraudulently and it was further found that the charges of negligence of treatment against all the three Doctors were not established. ( 8 ) HOWEVER, the dosage of "depomedrol", as had been advised in this case by Dr. Dr. Sukumar Mukherjee was also exonerated of the charges of use of FCCP fraudulently and it was further found that the charges of negligence of treatment against all the three Doctors were not established. ( 8 ) HOWEVER, the dosage of "depomedrol", as had been advised in this case by Dr. Sukumar Mukherjee, appeared to be very high and accordingly, the Council referred back the case to the concerned P. E. Committee for elaborating its recommendation for exonerating the said Doctor and the same was complied with. ( 9 ) THEREAFTER, the Council after consideration of the report along with evidence and other documents of the P. E. Committee exonerated Dr. Abani roychowdhury and Dr. Baidyanath Haider of the charges levelled against them. ( 10 ) AS it appeared that dosage of Depomedrol, advised by Dr. Sukumar mukherjee was high, hence, the Council issued chargesheet to Dr. Sukumar mukherjee alleging that Dr. Sukumar Mukherjee had used Injection of depomedrol 80 mg. BD from April 24, 1998 to May 11, 1998 which was much above the recommended dose of the drug and thus, hence, he was required to justify the use of the said drug at a high dose. ( 11 ) ON receipt of the reply of Dr. Sukumar Mukherjee, the West Bengal medical Council started an enquiry as per Rule 15 of the rules under the bengal Medical Act, 1914. During the hearing both the appellant and Dr. Mukherjee, were accompanied by their lawyers all throughout and adequate opportunities were given to the complainant as well as Dr. Mukherjee. Both made their submissions but did not produce any witness and they were assisted by their lawyers. ( 12 ) AFTER consideration of the submissions made by the parties, the members of the Council deliberated upon the whole matter and. after going through the papers and evidence, the Council came to the conclusion that against Dr. Abani Roychowdhury, there was no evidence that Dr. Roychowdhury either examined Mrs. Saha or advised any medicine and participated in her treatment at A. M. R. I. Hospital. As regards Dr. Baidyanath haider, the Council found that he was consulted only once on 12th May, 1998 and there was no evidence that he participated in the treatment of mrs. Saha. Abani Roychowdhury, there was no evidence that Dr. Roychowdhury either examined Mrs. Saha or advised any medicine and participated in her treatment at A. M. R. I. Hospital. As regards Dr. Baidyanath haider, the Council found that he was consulted only once on 12th May, 1998 and there was no evidence that he participated in the treatment of mrs. Saha. ( 13 ) THE Council, however, from the materials on record could not come to the conclusion whether five injections of Depomedrol prescribed by Dr. Mukherjee were actually administered to Mrs. Saha and if administered, by whom; during 7th to 10th May, 1998 and as such, was of the view that he could not be held responsible for any lapse or mismanagement of the case in the treatment of Mrs. Saha. It further came to the conclusion that there was extreme lack of co-ordination of managing Mrs. Saha's illness at A. M. R. I. as many Doctors were consulted and there was lack of interaction among them. It further came to the conclusion that the complainant interfered with the treatment of Mrs. Saha and even did not allow the Doctors and nurses to examine Mrs. Saha at A. M. R. I. and also interfered with the treatment of Mrs. Saha at Breach Candy Hospital. The complainant, the council proceeded, also did not follow the advice regarding skin-biopsy on may 06,1998 and on May 12,1998 which, if conducted, would have helped in coming to early diagnosis. Ultimately, the members "were of the opinion that dosage of Depomedrol advised by Dr. Mukherjee was not unjustified. ( 14 ) IT further appears from the reasoned order that the President of council against whom allegation of bias was made although presided over the said meeting, yet, did not take part in deliberation nor did he ever express his views. The explanation offered by Dr. Sukumar Mukherjee was accepted by the majority of the members present in the meeting and consequent to such acceptance, the Council exonerated Dr. Mukherjee of the charge framed against him. ( 15 ) FROM the aforesaid materials it is apparent that the allegations of the appellant that the President of the Council was biased is without any basis as he did not express any view nor did he take part in the discussions though as a President of the Council he was present in the meeting. ( 15 ) FROM the aforesaid materials it is apparent that the allegations of the appellant that the President of the Council was biased is without any basis as he did not express any view nor did he take part in the discussions though as a President of the Council he was present in the meeting. ( 16 ) AS regards the absence of Mr. Pijush Dutta, the learned Senior advocate, we find substance in the contention of Mr. Bhowmik, the learned advocate for the respondents that the Council as per earlier order passed by the learned Single Judge of this Court gave due notice to Mr. Dutt who received the notice and even gave reply, though such reply came after conclusion of hearing P. C. Ghose, J. in the past, specifically directed that no further adjournment should be granted and as such, the Council decided to proceed ex parte when no adjournment was even prayed till the conclusion of hearing afresh and the previous decision arrived at by the Council on detailed discussion was reaffirmed as no further submission was made on behalf of the complainant. ( 17 ) FROM the conduct of the appellant we find that the matter continued for years and the appellant sincerely did not co-operate with the Council and tried to stall the proceedings in the past with one pretext or the other and in such circumstances, the Council had no other option but to conclude the proceeding on the basis of materials already on record. ( 18 ) IT is also rightly pointed out by the learned Single Judge that there is a statutory provision of preferring appeal against the order of Council in terms of section 26 of the Bengal Medical Act but even before getting the reasoned order of the Council, the appellant straightaway came up in a writ application. The reasoned order was subsequently sent to him and was also annexed to the affidavit of the Council at the time of hearing of the writ application. ( 19 ) ON consideration of the entire materials on record, we find that the action of the Council was quite justified in the fact of the present case and we do not find any reason to interfere with the order passed by the learned single Judge. ( 19 ) ON consideration of the entire materials on record, we find that the action of the Council was quite justified in the fact of the present case and we do not find any reason to interfere with the order passed by the learned single Judge. There was no illegality on the part of the Council in proceeding ex parte on the last date fixed for hearing when nobody appeared and prayed even for adjournment before conclusion of hearing nor was there any mistake on the part of the Council in issuing notice direct to Mr. Dutt when he was the Counsel who prayed for adjournment on the previous occasion and this court directed the Council to give fresh opportunity of hearing to Mr. Dutt. ( 20 ) WE make it clear that we have otherwise not gone into the merit of conclusion of the Council and we have narrated the observations of the council in the process of investigation in our order only for the purpose of considering whether the allegation of bias against the President of the council was justified and we are convinced that such allegation was unfounded and that there is no material to show that the President in any way influenced the other members of the Council in arriving at the final decision as strenuously contended by Mr. Sen appearing on behalf of the appellant before us as per liberty given by the Apex Court as mentioned earlier. ( 21 ) THIS appeal is, thus, devoid of any substance and is dismissed accordingly. In the facts and circumstances, there will be, however, no order as to costs. Appeal dismissed. .