@JUDGMENTTAG-ORDER
H.L. Dattu, J.@mdashAn interesting issue arises in this writ petition. Before noticing that issue, facts may briefly be noticed:
Petitioner, who was suffering from tooth ache had approached one Dr. B.H. Sripathi Rao, who was managing the affairs of an institute by name Yenopoya Institute of Medical Sciences and Research, Kodialbail, Mangalore, on 10.1.1995. The second Respondent after diagnosis of the ailment had extracted the third molar tooth of the Petitioner. It is the Petitioner''s case before this Court, that nearly after 7 days of such extraction, Petitioner could not open his mouth due to pain and lock jaw. It appears that he had consulted Dr. Sripathi Rao for the said problem. It is his further case before this Court that he did not properly treat him and did not provide him necessary relief. Therefore, he had to approach Doctors at Mangalore Nursing Home, Mangalore, and on the same night he was shifted to Kasturba Hospital, Manipal, as per the advice of the Mangalore Nursing Home, Mangalore. In the hospital, Petitioner was treated for nearly a month for tetanus. It is the case of the Petitioner before this Court that he suffered from the aforesaid disease due to the negligence of Dr. Sripathi Rao, who was managing the affairs of Yenopoya Institute of Medical Sciences and Research, Kodialbail, Mangalore.
2. After his discharge from Kasturba Hospital, Manipal, Petitioner had lodged a complaint before the Karnataka State Dental Council by his complaint letter dated 14.8.1995. In the complaint, he had requested the State Dental Council to take appropriate action against the second Respondent, who is registered as a Medical Practitioner under the Dentists Act and the rules framed thereunder. The complaint filed by the Petitioner is produced along with the writ petition docket and it reads as under:
From M. Seetharama Bhat S/o. Sri M. Ishwara Bhat Muliyala Nadumane, Enmakaje Village, Adhyanadka Post Kasaragod District, Kerala.
To The Registrar, Karnataka State Dental Council, Bangalore Government Dental College, Bangalore.
Sir,
Subject: Complaint against Dr. B.H. Sripathi Rao, Professor and H.O.D. Department of Oral and Maxello Facial Surgery, Yenopoya Dental College, Zulekha Complex, Bibi Alabi Road, Mangalore.
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Regarding the above subject, I like to submit as under for your kind consideration.
On 19.1.1995, the aforesaid Dr. B.H. Sripathi Rao has extracted my tooth (Impacted Mandibular Molar tooth) at Yenopoya Institute of Medical Sciences and Research, Kodialbail, Mangalore. Due to the negligence of the aforesaid Dr. B.H. Sripathi Rao and also the staffs of the aforesaid institution, I could not open my mouth due to pain and lockjaw after seven days. Immediately thereafter on 28.1.1995, I consulted the aforesaid Dr. Sripathi Rao in the aforesaid institution about the lock jaw and pain. Again Dr. B.H. Sripathi Rao acted negligently by not diagnosing properly and also not providing proper treatment to me.
From 2.2.1995, I could not walk as usual due to stiffness in my both lower limbs and thereafter my health deteriorated. In a serious condition, I was admitted to Mangalore Nursing Home, Mangalore, on 4.2.1995. On the same day night, I have been shifted to Kasturba Hospital, Manipal, I have been treated as an inpatient from 5.2.1995 to 6.3.1995 for Tetanus.
I submit further that I contacted Tetanus solely due to the negligence of the aforesaid Dr. B.H. Sripathi Rao and also the staffs of the aforesaid institution.
Since my wife was seriously injured in a road accident on 8.4.1995, I could not lodge this complaint to you earlier.
Therefore, I request you kindly enquire into the matter and to take necessary action against Dr. B.H. Sripathi Rao and oblige.
Yours faithfully,
Sd/-
Muliyala Dt.
14.8.1995.
3. Pursuant to the complaint so made, the Dental Council by its letter dated 6.1.1996 has informed the Petitioner that a Panel of Doctors/Experts in the field has been constituted to go into the complaint of negligence filed by him and the Panel of Experts have opined that Petitioner did not suffer from Tetanus illness in view of the negligence of the second Respondent. The letter of the State Dental Council along with the opinion of Experts is extracted and the same reads as under:
KARNATAKA STATE DENTAL COUNCIL
Office of the Karnataka State Dental Council, Government Dental College Premises Fort, Bangalore-2.
Ref. No. K.S.D.C. 556/1995-96, dated 6.1.1996
To Sri M. Seetharam Bhat S/o. Sri M. Ishwar Bhat Muliyala Nadumane Enmakaje Village Adyanadka Post Kasaragod District, Kerala.
Sir,
Subject: Your complaint against Dr. B.H. Sripathi Rao, Professor and H.O.D. Department of Oral and Maxille Facial Surgery, Yenopoya Dental College, Mangalore.
Reference: 1. Your complaint dated 14.8.1995.
2. Your letter dated 8.9.1995 in reply to this office letter No. KSDC 283/1995-96, dated 21.8.1995.
3. Your letter dated 13.10.1995 in reply to this office letter No. KSDC 327/1995-96 dated 21.9.1995.
4. Your letter dated 1.11.1995 in reply to this office letter No. KSDC 381/1995-96, dated 21.10.1995.
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I am to invite a reference to the subject cited above, and to state that Panel of experts was constituted to go into your complaint of negligence against Dr. B.H. Sripathi Rao, Professor and Head of the Department of Oral and Maxillo Facial Surgery, Yenopoya Dental College, Mangalore.
The opinion of the Panel of experts on your complaint is enclosed herewith for your reference.
Thanking you,
Yours faithfully,
Sd/- (Registrar)
Draft approved by the President, K.S.D.C.
Copy to Dr. B.H. Sripathi Rao, Professor and Head of the Department of Maxillo Facial Surgery, Yenopoya Dental College and Hospital, Kodialbail, Mangalore - 575 003.
4. Petitioner aggrieved by the inaction on the part of the State Dental Council and being aggrieved by the communication received by him dated 6.1.1996, is before this Court in a petition filed under Article 226 of the Constitution.
5. Sri Raviprakash, learned Counsel appearing for the Petitioner submits that the rejection of the Petitioner''s complaint by the Respondents by their letter dated 6.1.1996 is wholly contrary to the procedure prescribed under the Dentists Act and the Rules framed thereunder. That apart, the learned Counsel would submit that Respondent-State Dental Council could not have rejected the complaint filed by the Petitioner without hearing him. Therefore, a request is made to set aside the communication of the State Dental Council dated 6.1.1996 on the ground that the same is wholly arbitrary, unfair, unjust and is in violation of the principles of natural justice.
6. The State Dental Council, which is the contesting Respondent has not even bothered to file their statement of objections resisting the relief sought for by the Petitioner in this writ petition. However, its learned Counsel Sri Prakash Shetty submits, that immediately after receipt of the complaint filed by the Petitioner dated 14.8.1995, the State Dental Council had referred the complaint to the Panel of Experts for their opinion and basing on that opinion, they have informed the Petitioner that there was no negligence on the part of the second Respondent when he treated the Petitioner for tooth ache.
7. Sri Holla, learned Counsel appearing for the second Respondent-Dr. B.H. Sripathi Rao has filed his detailed statement of objections. Further, he contends that there was no negligence on the part of the second Respondent when he treated the Petitioner for tooth ache. Further, he submits that there is no truth in the allegations made by the Petitioner in his complaint dated 14.8.1995. Lastly, he would submit that for conducting preliminary investigation, the State Dental Council need not have to hear the Petitioner. In support of these contentions, learned Counsel relies upon the observations made by the Supreme Court in the case of
8. The issue that requires to be considered and decided by this Court is whether the procedure adopted by the State Dental Council while dealing with the complaint filed by the Petitioner dated 14.8.1995 is in accordance with the provisions of Dentists Act and the Rules framed thereunder.
9. The Dentists Act, 1948, was enacted with the object of regulating the profession of dentistry and for that purpose to constitute Dental Councils. Section 21 of the Act provides for the constitution and composition of State Councils. Section 55 of the Act provides for framing of Rules and its publication in the official gazette.
10. Having seen the provisions of the Act, let me now look into the Rules framed thereunder.
11. Rules are known as Karnataka Dentists Rules, 1960. In the dictionary clause, the meaning of the expression ''Executive Committee'' is defined. It means, the Executive Committee constituted u/s 21 (1) and (2) of the Act (Dentists Act). ''President'' means President of the Council and the ''Registrar'' means Registrar appointed u/s 28 of the Dentists Act.
12. Chapter VIII of the Rules provide for prosecution, removal and restoration of registration. For the purpose of this case, we are required to notice Rules 120 to 121, 124 to 130 and also Rule 134.
13. Rule 120 provides for the procedure when a complaint alleging an offence has been committed under the Act is received by the Registrar. It says, if any information is received by the Registrar that an offence under the Act has been committed, then the Registrar may require the complainant to produce in the form of an affidavit or otherwise prima facie proof of the matter complained of. Thereafter, the Registrar is obliged to bring the matter before the President of the Council or if the President is unable to act, then place the matter before the Executive Committee, who may, if they decide, that the case is one in which prosecution should be instituted, take necessary action u/s 52 of the Dentists Act.
14. Rules 122 and 123 of the Rules is not relevant for the purpose of this case. So they are not noticed.
15. If the Registrar places the complaint before the President, then under Rule 124, he is expected to call for the explanation of the dentist and thereafter along with the explanation and the records of the case place it before the Executive Committee of the Council. After receipt of the records such as the explanation, complaint, etc., from the dentist, under Rule 125, the Executive Committee may require the Registrar to investigate the matter further and collect further evidence. Under Rule 126, if the Committee resolves that the case is one in which an enquiry ought to be held, then the President shall direct the Registrar to take effective steps for the institution of an enquiry for having the case heard and determined by the Council.
16. Rules 127, 128 and 134 provides for the procedure and the punishment, if for any reason it is found that the Registered Doctor is convicted of an offence or guilty of infamous conduct in any professional respect.
17. Having seen the relevant provisions prescribed in the Dental Council Rules, let me now notice the fact situation in the instant case.
18. It is not in dispute nor it can be disputed about the complaint filed by the Petitioner before the State Dental Council by his complaint letter dated 14.8.1995. The complaint was addressed to the Registrar, Karnataka State Dental Council, Bangalore, to take appropriate action against the second Respondent-Dr. Sripathi Rao, who was incharge of Yenopoya Institute of Medical Sciences and Research and who had treated the Petitioner for his tooth ache for negligence, etc. It was expected of the Registrar to have placed the papers before the President and it was again expected of the President to have called for the explanation from the Dentist and after securing the explanation offered by the Dentist, place the papers before the Executive Committee for further action as required under Rule 125 of the Rules. It was only the Executive Committee constituted under the Dental Council Rules, could have requested the Registrar to investigate the matter further and collect further evidence if it is necessary and if the Committee resolves that the case is one in which enquiry requires to be held, then the President would direct the Registrar to take steps.
19. But in the instant case, the State Dental Council refers the complaint filed by the Petitioner to the Panel of Doctors, who are supposed to be the experts in the field of Dentistry. After securing their opinion, the State Dental Council informs the Petitioner that the second Respondent is not guilty of the negligence as alleged by him in his complaint. In my opinion, the entire procedure adopted by the State Dental Council while considering the complaint filed by the Petitioner dated 14.8.1995 is wholly contrary to the procedure prescribed under the Dentists Act and the rules framed thereunder.
20. Since I have come to the conclusion that the State Dental Council while deciding the complaint filed by the Petitioner has deviated from the procedure prescribed under Rules 120 to 134, the communication issued by the State Dental Council requires to be set aside by this Court.
21. At this stage, it is appropriate to refer to the decision relied upon by Sri Udaya Holla, learned Counsel appearing for the second Respondent. In Nandlal Khodidas Barot''s case, the Supreme Court was considering the provisions of Section 35 of the Advocates Act. The said provision mandates that on receipt of a complaint, the State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, then only it shall refer the case for disposal to its disciplinary committee. Keeping in view the language employed in Section 35 of the Advocates Act, the Supreme Court was pleased to observe as under:
State Bar Council referring the complaint without applying its mind to the complaint to find out whether prima facie case for reference was made out - reference is incompetent and subsequent proceedings before the Disciplinary Committees invalid.
22. In my opinion, the decision on which reliance was placed by the learned Counsel Sri Udaya Holla appearing for the second Respondent would not assist him in any manner whatsoever. The provisions of Section 35(1) of the Advocates Act is not in para materia with the provisions of Rule 120 of the Dental Council Rules. The Dental Council Rules envisage that if any complaint is received by the Registrar, he is required to place the same before the President. Thereafter, the President to call for the explanation of the dentist. After receipt of the explanation if any and the records of the case requires to be placed before the Executive Committee. It is that Executive Committee which resolves whether any enquiry requires to be held or not.
23. Since the procedure adopted by State Dental Council is contrary to the procedure prescribed under the Rules, the impugned communication requires to be set aside. Since I am allowing the petition on the first issue, the other ancillary issues need not be noticed and considered.
24. For the reasons stated, writ petition deserves to be allowed. Accordingly, it is allowed. Rule made absolute. The impugned communication of the State Dental Council dated 6.1.1996 is quashed on the ground that the same is contrary to the procedure prescribed under the State Dental Council Rules. Further, the State Dental Council is directed to proceed with the matter from the stage defects are noticed by this Court in accordance with the provisions under Chapter VIII of Dental Council Rules.
25. With these observations and directions, writ petition is disposed off. Ordered accordingly.
