NESAMONEY DANIEL Vs. GOVERNMENT OF MADRAS

JUDGEMENT

(1.) THESE appeals are directed against the order of Srinivasan J. in W. P. 123 and 124 of 1961 in which the prayers were for the issue of a writ of certiorari and consequent writ of mandamus respectively. The prior facts required for a consideration of these two appeals are briefly the following: the appellant Mrs. Nesamoney Daniel was employed as a teacher in the government aided Primary School, Pannimade estate, Annamalais. Under the rules issued by the Deputy Inspector of Schools, the appellant in her capacity as a teacher of a primary school, was obliged to take an insurance policy on her life. As instructed by the Life Insurance Corporation, she presented herself for medical examination, to one Dr. K. V. Mathai, M. B. B. S. the third respondent in the two writ petitions, who was at that time employed by the estate, in which the teacher was also employed. Sometime later, she received a communication from the Life insurance Corporation stating that the report of the third respondent showed that 20 years previously she had been operated upon for hysterectomy (removal of the uterus ). She was asked to give a history of the operation including the details. The appellant felt surprised, as she had never undergone such an operation, and contacted the third respondent, who assured her that he would take up the necessary correspondence with the Life Insurance Corporation. The appellant did not take any further interest in the matter Subsequently, in connection with some other proceedings, she learnt that the third respondent had written to the insurance Corporation, in answer to their communication, to the effect that the appellant had undergone an operation for hysterotomy, in the hospital, as she had a prolonged and difficult labour ending in the rupture of the uterus. It is common ground, that the Corporation accepted the proposal according to the normal schedule of rates, that is for a healthy person. She became aware of the communication of the third respondent, to the Life Insurance Corporation about the operation, which she had never undergone, in or about April 1959, and thereafter she got herself examined by the company's Chief Medical Officer, Dr. Kuruvilla John, M. B. B. S. who, after a careful examination, certified that she had never undergone an operation for hysterotomy, that her uterus was intact and that there was no scar on the abdomen indicating an operation. Thereupon, the appellant filed a complaint to the Registrar, Madras Medical Council, against the third respondent, asking that suitable action should be taken against him, for his sending a false report about her, to the Life Insurance Corporation. The Medical council then called for an explanation from the third respondent which he submitted, and that explanation was accepted by the Medical Council. They decided not to take any further action against the third respondent, but without giving any opportunity to the appellant, to substantiate her allegation against the third respondent and giving her a hearing. The appeal which the appellant filed against the order of the Medical Council, to the Government of Madras, under S. 10 of the Madras Medical Registration Act (hereinafter referred to as the Act), was rejected by the first respondent, the government of Madras, represented by the Secretary to the Government, education and Public Health Department, by an order stating that no appeal lay to the Government on the facts of this case. On the above allegations the appellant filed the two writ petitions for the issue of a writ of certiorari quashing the order of the first respondent Government, because the Government did have jurisdiction to grant relief in her appeal, but without any proper reasons, it declined to exercise that jurisdiction. The order of the Medical Council accepting the explanation of third respondent, was also sought to be quashed by writ of certiorari, because that body had violated the principles of natural justice and the provisions of law, in its perfunctory disposal of the appellant's complaint. W. P. 124 of 1961 was filed for the issue of a writ of mandamus directing the first and second respondents to dispose of the complaint and the appeal in accordance with law.

(2.) THE principal counter affidavit was filed by the third respondent, Dr. K. V. Mathia before the learned Judge, He averred therein that he submitted the medical report to the Life Insurance Corporation relying upon the data supplied by the appellant herself, about her operation, and that this was done because the appellant wanted to obtain more favourable rates of premium under the impression, that a female who was not subject to the risks of pregnancy, would be considered to be a safer life, than a female exposed to such risks. In fact, his bona fides would be apparent by the fact that he had recommended the appellant's life to the Life Insurance Corporation, as a first class life. Subsequently, on account of enmity between the third respondent and the appellant's husband, both of whom were under the employ of the same estate, the appellant came forward with the complaint to the second respondent. It was also urged that the Medical Council acted within its jurisdiction, in accepting his explanation, and dropping further proceedings, and also that the Government was right in their view, about the non-maintainability of an appeal against such an order. Affidavits more or less to a similar purport, were filed by the first and second respondents, the first respondent's affidavit being filed by one Sri Philip Devprasad, Deputy Secretary to govt. in the concerned department. In this affidavit of the Govt. , there was also a reference to the fact, that at the time the appellant approached the third respondent for a medical report, she had supplied a hospital discharge slip to support her oral statement but this slip was taken back and retained by her. The counter affidavit of the Government also alleged that the appellant could not be considered as an aggrieved party against the order of the Medical Council accepting the explanation of the doctor, and that Section 18 of the Act must be deemed as providing for a right of appeal only where the Medical Council had passed an order adverse to the medical practitioner. Hence, there is no question of the Government failing to exercise their jurisdiction under Section 18 of the Act. The counter affidavit also proceeded to allege that the appellant might have felt aggrieved in her being allowed only the normal rates of premium, whereas she had hoped to get a lesser rate, and this might have prompted her to file a false complaint to the Medical Council.

(3.) THE learned Judge dismissed the two writ petitions. One of the rules framed by the Government under Section 24 (1) (iii) of the Act, namely, rule 4 (1) (a) gave power to the Medical Council, after obtaining the explanation of the Doctor, against whom a complaint had been preferred, to stop all further proceedings, after accepting the explanation. The second respondent, the Medical Council, asserted that it had acted under this rule, in this case. Learned counsel appearing for the appellant, Sri G. Vasantha Pai, urged a strenuous argument before the learned Judge that this rule was ultra vires the Act. This was repelled by the learned Judge, and he held that rule 4 (1) (a) was intra vires and that the Council acted properly in the exercise of its discretion in accepting the doctor's explanation, and in dropping further proceedings. Secondly, the learned Judge, held that even apart from that rule, the Medical Council, in its general jurisdiction to deal with complaints against medical practitioners, had power to pass an order like the one now impugned. The learned Judge also held that since there was no enquiry conducted by the Medical Council, in this case, as provided under Section 13 or Section 16 of the Act, the Government were in order in declining to entertain the appeal of the appellant, made to them under Section 18 of the Act. Aggrieved with this order, the appellant has filed these two appeals.