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2017 DIGILAW 199 (KER)

P. v. UNNIKRISHNAN VS STATE OF KERALA

2017-01-27

SHAJI P.CHALY

body2017
JUDGMENT : This writ petition is filed by a dentist, to declare that he is entitled to practice as Dentist in Kerala by virtue of the registration under the Dentists Act, before the State Dental Council, Union Territory of Puducherry, in the year 2010, and seeking other related reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is a registered Dentist within the meaning of the Dentists Act, 1948, and is running a Dental Clinic in the name and style 'S.V. Dental Clinic' at Tirur Road, Kuttipuram, Malappuram District in the State of Kerala. Petitioner initially registered his name with the Dentist Registration Tribunal in the Union Territory of Puducherry in the year 1982. The said Registration Tribunal was later replaced by State Dental Council, U.T. of Puducherry in the year 2010. Petitioner is issued with Ext.P2 Registration Certificate dated 09.08.2013, which is being renewed from time to time, as evident from Ext.P3, and valid till 31.12.2016. 3. The 3rd respondent has conducted an inspection in the petitioner's clinic on 14.06.2016, and has specifically instructed the petitioner that he shall not practice in Kerala, and since his registration is in Pondicherry, he can only practice there. According to the petitioner, such a course of action was adopted by the 3rd respondent at the instigation of some other Dentists practicing in Kuttippuram. It is also understood by the petitioner that hasty steps are being taken to close down the Dental clinic of the petitioner. These are the circumstances persuaded the petitioner to approach this Court. 4. The 2nd respondent has filed a counter affidavit refuting the allegations and claims and demands raised by the petitioner in the writ petition. The thrust of the contention advanced by the 2nd respondent is that, even though petitioner is a registered Dentist in the U.T. of Puducherry, petitioner has not cared to transfer the registration as per Sec.46A of the Dentists Act, 1948 to the Kerala Dental Council. The Chairman, Legal Cell, Indian Dental Association, Malappuram Branch had lodged Ext.R2(a) complaint before the 2nd respondent, alleging that the petitioner an unqualified person, running the clinic. On receipt of Ext.R2(a) complaint, 2nd respondent in its meeting held on 10.05.2016 resolved to obtain a report from the 3rd respondent in respect of the allegations made in the complaint, evident from Ext.R2(b). On receipt of Ext.R2(a) complaint, 2nd respondent in its meeting held on 10.05.2016 resolved to obtain a report from the 3rd respondent in respect of the allegations made in the complaint, evident from Ext.R2(b). It was thereupon that the 3rd respondent was directed to make necessary enquiries into the complaint, and report at the earliest. Accordingly, 3rd respondent conducted an enquiry and submitted Ext.R2(d) report, stating that the petitioner does not have registration with Kerala Dental Council and therefore, he is directed to close down his establishment and necessary instructions were provided to the Medical Officer, Taluk Hospital, Kuttippuram to watch whether the petitioner is running his establishment in violation of the above direction, evident from Ext.R2(d). 5. It is also contended that, as per Sec.46A of the Dentists Act, 1948, a dentist registered in one State in order to practice in another State, may get his registration transferred to the State in question. However, petitioner has not chosen to do so. Therefore, the practice of Dentistry by the petitioner in the State of Kerala, without obtaining registration with the Kerala Dental Council amounts to 'Unethical Practice', as provided under Regulation 6(a) of the Dentist (Code of Ethics) Regulations, 1976, which read thus: "6. Unethical practice--the following shall be the unethical practices for a dentist, namely;- (a) employment by a dentist in his professional practice of any professional assistance (not being a registered dental hygienist or a registered dental mechanic whose name is not registered in the State Dentist Register), to practice dentistry as defined in Clause (d) of Section 2 of the Act;" Therefore, it is contended that the petitioner is not entitled to get any relief as sought for in the writ petition. 6. Heard learned counsel for the petitioner, learned counsel appearing for the 2nd respondent and the learned Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties. 7. In my considered opinion, the issue raised in this writ petition can be resolved by making a reference to, Secs.46 and 46A of the Dentists Act, 1948. Sec.46 read thus: "46. Effect of registration--(1) Any reference in any other law to a person recognized by law as a dentist shall be deemed to be a reference to a dentist registered under this Act. Sec.46 read thus: "46. Effect of registration--(1) Any reference in any other law to a person recognized by law as a dentist shall be deemed to be a reference to a dentist registered under this Act. (2) No certificate required by or under any other law from a dentist shall be valid unless the person signing it is registered as a dentist under this Act. (3) After the expiry of three years from the date appointed under sub-section (2) of section 32, a person who is not registered in Part A of the State register of dentists shall not, except with the sanction of the Central Government or the State Government hold any appointment as dentist in any dispensary, hospital or other institution which is supported wholly or partially from public or local funds: Provided that the provisions of this sub-section shall not apply to any such person who is holding such an appointment immediately before the said date. (4) After the expiry of two years from the publication of a register of dental hygienists in a State, no person whose name is not entered in that register shall hold appointment as dental hygienist in any dispensary, hospital or other institution in the State, which is supported wholly or partially from public or local fund. (5) Any person who is registered dentist, registered dental hygienist or registered dental mechanic in a State may practise as such in any other State." 8. On a reading of sub-section (5), it is very specific and clear that any person who is registered as a dentist etc. etc. in a State may practice as such in any other State. Now the question is whether a transfer of registration is mandatory or not. To resolve the said issue, reference to Sec.46A is worthwhile, which read thus: "46A. etc. in a State may practice as such in any other State. Now the question is whether a transfer of registration is mandatory or not. To resolve the said issue, reference to Sec.46A is worthwhile, which read thus: "46A. Transfer of registration.--Where a dentist registered in one State is practising dentistry in another State, he may, on payment of the prescribed fee which shall not exceed the renewal fee for registration in such other State, make an application in the prescribed form to the Council for the transfer of his name, from the register of the State where he is registered, to the register of the State in which he is practicing dentistry, and on receipt of any such application, the Council shall, notwithstanding anything contained elsewhere in this Act, direct that the name of such person be removed from the first mentioned register and entered in the register of the second-mentioned State and the State Councils concerned shall comply with such direction: Provided that such a person shall be required to produce a certificate to the effect all dues in respect of his registration in the former State have been paid; Provided further that where any such application for transfer is made by a dentist against whom any disciplinary proceeding is pending or where for any other reason it appears to the Council that the application for transfer has not been made bona fide and the transfer should not be made, the Council may, after giving the dentist a reasonable opportunity of making a representation in this behalf, reject the application." 9. On a reading of Sec.46A, what could be gathered is, a dentist may seek transfer of his registration from the State where he is registered to the register of the State in which he is practicing dentistry. On an appreciation of sub-section (5) of Sec.46, and Sec.46A compendiously, it can be seen that the term 'may' employed in Sec.46A is providing an option to the dentist concerned, either to continue the registration in the Home State where he has made the registration or to seek a transfer. Learned counsel for the 2nd respondent contended that the term "may" employed in Sec.46A shall be construed as "shall" and the transfer of registration is a mandatory requirement in order to carry on the practice in a different State other than the place of registration. Learned counsel for the 2nd respondent contended that the term "may" employed in Sec.46A shall be construed as "shall" and the transfer of registration is a mandatory requirement in order to carry on the practice in a different State other than the place of registration. But, however, on a reading of Sec.46A in its entirety, would show that a dentist practicing in a different State is entitled to submit an application seeking a transfer from the State where he is registered, which thus means, it comprehends a situation of a dentist practicing already in a different State other than the State of registration. 10. Therefore, in my considered opinion, the transfer of registration is not a mandatory requirement in order to start and carry on practice of dentistry etc. in a different State other than the State of registration. The proviso under Sec.46A also persuades me to arrive at such a conclusion. Now the question is whether there is any difficulty in initiating any action against a dentist practicing in a State other than the State of registration, as contended by learned counsel for the 2nd respondent. Regulation 9.2 of the Revised Dentists (Code of Ethics) Regulations, 2014 will resolve this issue, which read thus: "9.2 It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Dental Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Dental Council would hold an enquiry and give opportunity to the registered Dental practitioner to be heard in person or by pleader. If the Dentist/Dental Surgeon is found to be guilty of committing professional misconduct, the appropriate Dental Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical and Dental Associations/Societies/Bodies." 11. Therefore, if the petitioner indulges in any unethical practice, there is every right vested on any person to file a complaint before the appropriate Dental Council. That apart, Regulation 9.1 also enables the Dental Council of India to act on any complaint made by any person against a dentist. Therefore, such an apprehension put forth by the 2nd respondent has no foundation or basis. That apart, Regulation 9.1 also enables the Dental Council of India to act on any complaint made by any person against a dentist. Therefore, such an apprehension put forth by the 2nd respondent has no foundation or basis. That apart, on a collective evaluation of the facts and law involved, persuades me to arrive at a conclusion that merely because the petitioner practiced in Malappuram District in Kerala, though his registration is with the Dental Council of U.T. of Puducherry, will not by itself transform the practice as an unethical practice, as apprehended by the 2nd respondent. 12. In that view of the matter, petitioner is entitled to succeed in this writ petition. The writ petition is allowed, and I hold that merely because the registration of the petitioner is with the Dental Council, U.T. of Puducherry, no action can be taken against the petitioner, since such practice will not constitute, violation of any code of ethics as provided under Regulations, 2014. Learned counsel for the petitioner also submitted that petitioner is seeking a transfer in accordance with the provisions of the Dentists Act, 1948. This is also recorded. The writ petition is allowed accordingly.