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2013 DIGILAW 2499 (BOM)

Uttamkumar Balwant Sardesai v. Union of India

2013-12-04

ABHAY SHREENIWAS OKA, S.C.GUPTE

body2013
Judgment S.C. Gupte, J. 1. Rule, Rule made returnable forthwith. By consent of Counsel for all parties the petition is taken up for hearing. The petitioner, who is a registered medical practitioner, challenges his suspension from the Register of Medical Practitioners maintained by the Maharashtra Medical Council, under Article 226 of the Constitution of India. 2. On 11 March 2011, a criminal complaint was filed against the petitioner and three other accused for offences punishable under sections 3, 4 and 5(3) of the Bombay Nursing Homes Registration Act, 1949 ("the Nursing Homes Act"), sections 3(1), 3(2),3(3), 3-B, 18, 23 and 25 of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Seduction) Act, 1949 ("the Prenatal Diagnostic Techniques Act") read with section 341 of the Indian Penal Code, 1860 with the learned J.M.F.C., Kagal. It was the case of the Complainant (Medical Superintendent Rural Hospital, Kagal) inter alia that sonography machines were used in the hospital/clinic run by the petitioner and other accused; that the equipments were used/capable of being used for prenatal diagnostic techniques; that the hospital/clinic had no registration either under the Nursing Homes Act or the Pre-natal Diagnostic Techniques Act; and that there was non-compliance with the Pre-natal Diagnostic Techniques Act and Rules framed thereunder. The petitioner filed an application under section 245 of the Code of Criminal Procedure, 1972 for discharge in the Criminal Case. The application was rejected by the learned J.M.F.C. and charges were thereupon framed against the petitioner and other accused. It appears that after framing of the charges respondent No. 4 - State Family Bureau filed a complaint with respondent No. 3 - Maharashtra Medical Council under the provisions of section 23(2) of the Pre-natal Diagnostic Techniques Act read with section 22(1)(b)(i) of the Maharashtra Medical Council Act, 1965 for suspension of the petitioner's registration. On the apprehension that the Medical Council was likely to impose the penalty of suspension on the petitioner after an inquiry, which according to the petitioner was illegal, the petitioner filed the present petition. Apart from the legality of the complaint and the inquiry, the petitioner also challenged the vires of section 23(2) of the Pre-natal Diagnostic Techniques Act. During the pendancy of the petition, the petitioner was suspended by the Medical Council on the complaint for five years. The petitioner, thereupon, amended the petition to include a challenge to the suspension order. 3. Apart from the legality of the complaint and the inquiry, the petitioner also challenged the vires of section 23(2) of the Pre-natal Diagnostic Techniques Act. During the pendancy of the petition, the petitioner was suspended by the Medical Council on the complaint for five years. The petitioner, thereupon, amended the petition to include a challenge to the suspension order. 3. At the hearing of the petition, the learned Advocate for the petitioner did not press prayer (B), which is the challenge to the vires of section 23(2) of the Pre-natal Diagnostic Techniques Act. The learned Advocate confined his challenge to the communication dated 25 April 2013, by which the Medical Council suspended the petitioner's registration for five years. It is submitted by the learned Advocate for the petitioner that the Medical Council has not independently applied its mind to the issue of suspension of the petitioner and mechanically suspended the petitioner's registration after report was made to it under section 23(2). The learned Advocate relied on the judgment of this Court in the case of (Dr. Ramineni Venugopal Somaiah & ors. v. Maharashtra Medical Council & ors.), Writ Petition 1176-2013, dated 23.8.2013 reported in 2015(2) Bom.C.R. 147 . 4. The learned Advocate for respondent No. 3 - Medical Council submitted that having regard to the decision of this Court in Dr. Somaiah's case (supra), the Medical Council was prepared to hold an inquiry for suspension of the petitioner's registration and in the meantime, treat the present suspension order as a holding action. 5. The impugned action of the Medical Council is under section 23(2) of the Prenatal Diagnostic Techniques Act. The section reads as under:-- "(2) The name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the Court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence." 6. The Division Bench of this Court in Dr. Somaiah's case (supra) considered the question whether section 23(2) made it mandatory for the Medical Council to suspend the registration of a medical practitioner, if charges are framed against him by the Court under the Pre-natal Diagnostic Techniques Act. The Division Bench of this Court in Dr. Somaiah's case (supra) considered the question whether section 23(2) made it mandatory for the Medical Council to suspend the registration of a medical practitioner, if charges are framed against him by the Court under the Pre-natal Diagnostic Techniques Act. Before the Division Bench considered this question, a judgment delivered by a learned Single Judge of this Court in (Dr. Pradipchandra Mohanlal Gandhi & anr. v. Maharashtra Medical Council & anr.), in Writ Petition No. 6495 of 2012, dt. 22-10-2012 held the field. The learned Judge had held in Dr. Pradipchandra's case (supra) that section 23(2) contained a mandate to the Appropriate Authority to inform the State Medical Council, the name of the registered medical practitioner against whom charges are framed by the Court and the State Medical Council must take action, including suspension of registration till the case is decided. The Division Bench in Dr. Somaiah's case (supra) expressed its disagreement with the judgment of the learned Single Judge in Dr. Pradipchandra's case (supra) and held (in paras 28 and 29) as follows : "28. Section 23(2) provides that in the event of the charges being framed against a registered medical practitioner under the Act, the Appropriate Authority shall report the same to the State Medical Council "for taking necessary action, including suspension of the registration". The section does not state that upon the Appropriate Authority reporting the fact of charges being framed, the State Medical Council must suspend the registration. Section 23(2) does not require the State Medical Council to suspend the registration of the medical practitioners but only to take necessary action for suspension. Had the intention been otherwise, sub-section (2) would have provided that the name of the registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council for suspending the registration if the charges are framed by the Court. In other words, sub-section (2) would in that case have provided that the name of such registered medical practitioner shall be reported by the Appropriate Authority to the State Medical Council and upon receipt thereof, the registration of the concerned medical practitioner will be deemed to have been suspended. Sub-section (2) would have provided that in such a case, the State Medical Council would forthwith suspend the registration. 29. Sub-section (2) would have provided that in such a case, the State Medical Council would forthwith suspend the registration. 29. To the contrary section 23(2) only provides that upon receiving the report from the Appropriate Authority, the State Medical Council must take steps, including for suspension of the registration, meaning thereby, it must initiate the process for considering suspending the registered medical practitioner and not to suspend his registration without anything more." 7. No doubt the Division Bench in Dr. Somaiah's case (supra) considered two types of suspension orders, one being merely a holding order pending inquiry and the other, a punishment after due inquiry and recognized the power of the Medical Council to issue an order of suspension as a holding order and then follow it up by an inquiry to consider whether or not to continue the suspension as a matter of punishment. But then this was only with a view to take care of extremely urgent cases which did not brook any delay. The relevant observations of the Division Bench (in para 34) may be noted. "34. Thus, if in a case of grave urgency and if the Medical Council forms an opinion for instance that the continuation of a medical practitioner on its register for any length of time is detrimental to public interest or is likely to lead to the violation of the provisions of the said Act, it can always issue an order of suspension as a holding order and then follow it by an enquiry to consider whether or not to continue the suspension. The exercise of such power would only be in cases where the matter cannot be delayed at all." 8. In the light of the legal position as noted above, in our view, the order of suspension cannot be sustained as a measure of punishment under section 23(2) of the Pre-natal Diagnostic Techniques Act. Having regard to the facts of the case, the impugned order, in our considered view, cannot even be sustained as a holding order pending the inquiry. In the light of the legal position as noted above, in our view, the order of suspension cannot be sustained as a measure of punishment under section 23(2) of the Pre-natal Diagnostic Techniques Act. Having regard to the facts of the case, the impugned order, in our considered view, cannot even be sustained as a holding order pending the inquiry. The impugned order, on the face of it, does not indicate that there was any grave urgency or that the Medical Council had formed an opinion that consideration of public interest required immediate suspension of the petitioner's registration or that continuation of the petitioner on the Register was likely to lead to any violation of the provisions of the Prenatal Diagnostic Techniques Act. 9. In that view of the matter, the present order of suspension will have to be set aside. We, however, reserve liberty to respondent No. 3 to initiate proceedings under the Maharashtra Medical Council Act to consider whether the registration of the petitioner ought to be suspended and if so, for what period of time or any other action needs to be taken in response to the communication of respondent No. 4 or in response to the framing of charges against the petitioner by J.M.F.C. Kagal. It is made clear that respondent No. 3 shall be free to consider whether during the pendency of the inquiry, the registration of the petitioner ought to be suspended as a holding order having regard to the principles enunciated by this Court in the case Dr. Somaiah (supra) and reiterated by us hereinabove. We make it clear that we have made no adjudication on merits of the allegations against the petitioner. The Rule is disposed of accordingly. Disposed off.