Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 515 (ORI)

PRASANTA KUMAR SAMAL v. STATE OF ODISHA

2015-08-28

B.K.NAYAK

body2015
JUDGMENT : B.K. Nayak, J - In this writ petition, the petitioner prays for quashing the seizure as per seizure list (Annexure-7) of the ultrasound machine and other materials from the petitioner's ultrasound Clinic at Dhenkanal and also the order of suspension of registration of the petitioner's ultrasound unit dated 18.06.2014 as per Annexure-9-A passed by the Collector-cum-District Appropriate Authority, P.C. & P.N.D.T., Dhenkanal. 2. Petitioner's Clinic, namely, Amrit Ultrasound Clinic was registered under the PC & PNDT Act as per certificate of registration dated 15.06.2003 vide Annexure-2 which has been renewed as per Renewal Certificate dated 04.01.2013 vide Annexure-3 for a period of five years i.e. 31.01.2013 to 31.05.2018. It is stated that in 2011 the Ultra sound machine installed in the Clinic went out of order and became obsolete for which the petitioner vide his letter under Annexure-4 dated 01.08.2011 intimated the C.D.M.O., Dhenkanal (opposite party No. 4) as required under Rule-13 that he was going to install a new Ultrasound machine. The new machine having been installed in January, 2012, the petitioner vide his letter dated 31.01.2012 (Annexure-5) intimated the factum of such installation to the C.D.M.O., where upon the A.D.M.O., Dhenkanal visited the clinic premises of the petitioner on 06.09.2012, inspected/verified the new machine and certified the same to be in order by noting down the machine No. and model name in his report dated 06.09.2012 (Annexure-6). It is further alleged that while the petitioner's clinic was running smoothly, all on a sudden on 30.05.2014, the Tahasildar, Dhenkanal along with some staff of the office of the Director of Family Welfare demanded the papers and seized and sealed the ultra sound machine on the allegation that it was not registered and supplied copy of the seizure list (Annexure-7) to the petitioner. In the aforesaid circumstances, the petitioner filed the present writ petition praying, at the first instance, for quashing the seizure. 3. In the aforesaid circumstances, the petitioner filed the present writ petition praying, at the first instance, for quashing the seizure. 3. A counter having been filed by the C.D.M.O., Dhenkanal (opposite party No. 4) in which it was contended that the petitioner's registration of the ultrasound clinic has been suspended by the Collector and District Magistrate-cum-Appropriate Authority, PC & PNDT, Dhenkanal-opposite party No. 3 in exercise of power under section 20(3) of the PC & PNDT (Prohibition of Sex Selection) Act, 1994 vide order dated 18.06.2014 (Annexure-G/4 to the counter affidavit), whereupon the petitioner amended the writ petition challenging the said suspension order, annexed as Annexure-9/A to the writ petition, since the suspension order has never been served on him. 4. In the meantime a criminal prosecution having been initiated against the petitioner in the criminal court in pursuance of the seizure of the machine and the criminal court having already passed order for release of the seized machine in favour of the petitioner, the prayer for quashing the seizure has not been pressed at the time of hearing. The petitioner therefore, confines his challenge to the order of suspension of registration vide Annexure-9/A. 5. The grounds of challenge to the order of suspension of registration of the petitioner's Ultra sound clinic is that the petitioner has never violated any provisions of PC & PNDT Act and Rules framed thereunder and that the installation of the new Ultra Sound machine was intimated to the C.D.M.O. before and immediately after such installation, pursuant to which the A.D.M.O., Dhenkanal visited the petitioner's clinic and inspected the new machine on 06.09.2012 and found everything in order. It is, therefore, submitted that without issuing any notice under section 20(1) of the Act prior to the proposed suspension, opposite party No. 3 should not have resorted to the extreme step of passing order of suspension without notice, in exercise of power under section 20(3) of the Act. It is submitted that in case notice of proposed suspension had been issued, the petitioner would have satisfied the authority that the proposed suspension was uncalled for. It is submitted that in case notice of proposed suspension had been issued, the petitioner would have satisfied the authority that the proposed suspension was uncalled for. It is also submitted that Sub-section (3) of Section 20 of the Act requires recording of reasons by the Collector and District Magistrate-cum-Appropriate authority in writing in passing the order of suspension dispensing notice and that the suspension order under Annexure-9/A having not recorded any reason in writing, it is a colourable exercise of power, which is legally unsustainable and liable to be quashed. 6. The C.D.M.O.--opposite party No. 4 filed a counter affidavit and an additional affidavit in reply to the writ petition. It is stated in the counter affidavit that there was allegation of sex determination test being conducted in the clinic of the petitioner and accordingly an inspection of the petitioner's clinic was conducted on 30.05.2014, in course of which it was found that the petitioner has installed a new Ultra Sound machine -PHILIPS-HD 6 having sl.no.C170 110 618 which was installed on 27.10.2011, but the factum of such installation was not intimated to the District Appropriate Authority as required under Rule-13 of P.C. & PNDT Rules, 1996 seeking re-issuance of certificate of registration from the Authority and therefore, the petitioner violated the mandate of law. It is also stated that the petitioner is a Government Doctor and ex-specialist in O & G, CHC, Anlaberni, District: Dhenkanal and was proceeded against under Rule-15 of OCS (CC & A) Rules, 1962. It is also stated that the C.D.M.O., ADMO (Family Welfare) and other officials inspected the clinic of the petitioner on 06.09.2012 and found one ultra sound machine of WIPRO GE make in the clinic as per the check list prepared on that day. But it has been overwritten in a different handwriting as PHILIPS HD 6. It is also stated that the petitioner being a Government Doctor, he is running the clinic without previous sanction of the Government which is a violation of the conduct Rule. In view of such irregularities, the petitioner's ultra sound machine was seized as per the seizure list. It is stated in the additional affidavit of opposite party No. 4 that the ultrasound unit of the petitioner was sealed on 30.05.2014 for violation of provisions of the P.C. & PNDT Act. In view of such irregularities, the petitioner's ultra sound machine was seized as per the seizure list. It is stated in the additional affidavit of opposite party No. 4 that the ultrasound unit of the petitioner was sealed on 30.05.2014 for violation of provisions of the P.C. & PNDT Act. The Collector & District Magistrate-cum-Appropriate Authority passed order on 18.06.2014 to suspend the registration of the ultrasound unit in pursuance of Section 20(3) of the Act and to file prosecution report in Court. Accordingly on 20.08.2014, 2 (CC) Case No. 44 of 2014 has been initiated in the court of the S.D.J.M., Dhenkanal. It is stated that the petitioner has not obtained permission from the District Appropriate Authority as required Rule-13 of the PC & PNDT Rules with regard to change of ultrasound machine. 7. The Collector-cum-District Appropriate Authority (opposite party No. 3) has not filed any counter affidavit. The CDMO, Dhenkanal (opposite party No. 4) in his counter affidavit and additional affidavit does not state that he has been authorized by the District Magistrate-cum-Appropriate Authority (opposite party No. 3) to file counter affidavit on his behalf. Therefore, even though the CDMO has tried to justify the action of opposite party No. 3 of suspending petitioner's registration, the entire gamut of the contention in the counter affidavit go to show that the CDMO and other officials effected search and seizure of the petitioner's unit on behalf of opposite party No. 3. 8. In his rejoinder affidavit, the petitioner has reiterated that the documents under Annexures-3, 4 and 5 clearly go to show that information with regard to change and installation of the new ultrasound machine was supplied to the District Appropriate Authority through the CDMO, who looks into all these matters. With regard to the previous disciplinary proceeding against the petitioner as stated in the counter affidavit, it is stated that the said proceeding was started against the petitioner on the ground of his remaining on unauthorized leave and that the petitioner has already left the Government job in 2006 and has so indicated in his show cause and since then the petitioner has been doing private practice and is not in receipt of salary from the Government. It is also stated that there is no prohibition for a Government doctor to open ultrasound clinic. It is also stated that there is no prohibition for a Government doctor to open ultrasound clinic. It is further stated that the publication of news against the unit of the petitioner in "the Pragatibadi" had no basis and on petitioner's protest the newspaper concerned regretted the publication of such news. 9. Undisputedly the order of suspension of registration of the petitioner's ultrasound unit has not at all been intimated to the petitioner. The factum of such suspension became known to the petitioner only from the averments made in the counter affidavit of opposite party No. 4 filed in the present writ petition and from the suspension order annexed thereto as Annexure-G/4. Apparently the suspension order has been passed in terms of sub-section (3) of Section 20 of the Act and it does not indicate the reasons for which the registration was suspended. The suspension order also does not indicate the duration of suspension, which otherwise means that it would continue for an indefinite period. No reply has been furnished in the counter affidavit to the petitioner's contention as to why recourse was taken to sub-section (3) of Section 20, instead of following the procedure of sub-section (1) of the said Section providing for issuing notice to the clinic owner of the proposed suspension or cancellation of registration. 10. Before going to examine the contentions raised on behalf of the petitioner it is apposite to see the relevant provisions germane to the case in hand. Section 18(1) of the Act mandates registration of genetic clinics having ultrasound or imaging machine after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002. The Appropriate Authority has been vested with power to grant certificate of registration of the clinic under Section 19 of the Act after holding an enquiry and being satisfied that the applicant has complied with all the requirements of the Act and the Rules made thereunder. 11. Section 20 of the Act which makes provision for cancellation and suspension of the Registration runs as under : "20. Cancellation and suspension of registration:-- (1) The Appropriate Authority may suo motu, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice. Cancellation and suspension of registration:-- (1) The Appropriate Authority may suo motu, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice. (2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be. (3) Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1)." 12. Rule-13 of the PC & PNDT (Prohibition of Sex Selection) Rules, 1996 runs as under : "13. Intimation of changes in employees, place or equipment:-- Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall intimate every change of employee, place, address and equipment installed, to the Appropriate Authority within a period of thirty days of such change." 13. Sub-sections (1) and (2) of Section 20 of the Act read together make it abundantly clear that before suspending or cancelling the registration of a clinic, the Appropriate Authority shall issue a notice to the clinic concerned calling upon to show cause against the proposed suspension or cancellation of the registration and after giving a reasonable opportunity of hearing to the clinic concerned and having regard to the advice of the Advisory Committee if the Appropriate Authority is satisfied that there has been a breach of the provisions of the Act or the Rules, it may, suspend or cancel the registration. Sub-section (3) of Section 20 however empowers the Appropriate Authority to suspend the registration of a clinic without issuing notice as referred to in Sub-section (1) if two conditions are satisfied; firstly where the Authority forms opinion that it is necessary or expedient to suspend the registration in public interest and, secondly, he must record reasons in writing for the suspension. Sub-sections (1) and (2) of Section 20 engraft the salutary principle of natural justice, which the Appropriate Authority has to follow before deciding to suspend or cancel the registration of the clinic, while, on the other hand, sub-section (3) dispenses with notice. The language of sub-section (3) suggests that only in cases of grave emergency where issuance of notice and giving opportunity of hearing to the clinic in terms of sub-sections (1) and (2), which evidently takes time, would frustrate the very object of taking the action of suspension of the registration, then only the Appropriate Authority can dispense with notice and pass the order. The two conditions stipulated in sub-section (3) of Section 20 are the parameters to assess the gravity of the situation and the emergent nature of the case. Therefore, the order under sub-section (3) of Section 20 must manifest how and what public interest would suffer and how the proposed action of suspension would be defeated if notice and opportunity of hearing is given to the clinic concerned. 14. Rule-13 of the Rules mandates that the clinic shall intimate every change of employee, place, address and equipment installed, to the Appropriate Authority within a period of thirty days of such change. It is admitted by the learned State Counsel that prior to 27.07.2007 the CDMO was the District Appropriate Authority under the Act and in pursuance of the Health Department. Office Memorandum No. 19077 dated 27.07.2007 the Collector and District Magistrate has been notified to be the District Appropriate Authority in place of the CDMO for the purpose of the Act. It is also not disputed that for the purpose of inspection and verification of the clinic the District Appropriate Authority takes the assistance of the CDMO. 15. The undisputed position is that the petitioner's clinic was registered under the Act on 15.06.2003 and since then has been renewed from time to time, the last renewal of registration being for five years, from 31.01.2013 to 31.05.2018. 15. The undisputed position is that the petitioner's clinic was registered under the Act on 15.06.2003 and since then has been renewed from time to time, the last renewal of registration being for five years, from 31.01.2013 to 31.05.2018. The petitioner before and after installation of the new machine intimated the same to opposite party No. 4 purportedly under Rule-13 of the Rules respectively on 01.08.2011 and 30.1.2012 by his letters under Annexures-4 and 5, and that after receipt of Annexure-5, the A.D.M.O. visited the petitioner's clinic on 06.09.2012 and verified the new machine as per his report/check list under Annexure-6. The fact of such verification has not been denied, but the CDMO in his counter affidavit states that the name of the new machine has been interpolated in the check list at Annexure-6. It is not known how Annexure-6, which was prepared by the ADMO and formed part of official document of the CDMO's office or the Appropriate Authority's office, was manipulated and copy thereof was furnished to the petitioner. Be that as it may, the petitioner's registration was renewed for five years, i.e., from 31.01.2013 to 31.05.2018. The provisions in the Act prescribe procedure of inspection and verification of the clinic concerned before grant of new registration or renewal of registration of a clinic. Does it mean that the petitioner's registration was renewed without any verification of the clinic? 16. The impugned order of suspension (Annexure-9/A) dated 18.06.2014 passed under Section 20(3) of the Act does not contain any reason for suspension. The Appropriate Authority himself has not filed any counter affidavit. The Court, therefore, called upon the State Counsel on 23.07.2015 to produce the file of the Collector-cum-District Appropriate Authority dealing with the suspension order. File No. 543 of 2014 which was produced by the learned Additional Government Advocate appears to be one maintained in the office of the CDMO, Dhenkanal. The file does not show as to why and under what circumstances the petitioner's clinic was inspected on 30.05.2014. However it contains order No. 405 dated 30.05.2014 of the District Appropriate Authority authorizing Shri Satrughna Kar, OAS-I(JB), Tahasildar, Dhenkanal to inspect various ultrasound clinics in Dhenkanal on 30th and 31st May, 2014 and to take appropriate legal action under the Act and the Rules and to file prosecution on behalf of the Appropriate Authority. Accordingly inspection of the petitioner's clinic was made on 30.05.2014. Accordingly inspection of the petitioner's clinic was made on 30.05.2014. Since a prosecution report has been filed against the petitioner's clinic before the criminal court, i.e., S.D.J.M., Dhenkanal, this Court refrains from indicating the contents of the said inspection report. In the counter affidavit filed by opposite party No. 4, the only violation alleged against the petitioner's clinic is of the provision of Rule-13 of the Rules, i.e., the failure of the petitioner to intimate the Appropriate Authority with regard to installation of the new ultrasound machine. Note sheet No. 2 dated 02.06.2014 refers to the alleged violation found during the inspection of the petitioner's clinic on 30.05.2014. Apparently, a note sheet was prepared by the Tahasildar, which was signed by three other persons and the file was endorsed to the Collector, who ordered the CDMO to discuss. Thereafter, the note sheet dated 13.06.2014 was prepared and signed by some officers, indicating that the petitioner contravened Sections 23 and 25 of the Act for which it was suggested to launch prosecution and suspend the registration of the petitioner's clinic in public interest and the file was endorsed to the District Appropriate Authority, who simply signed the same. 17. Apparently there is no allegation or report that the petitioner has undertaken sex determination test in his clinic, which is punishable under Section 22 of the Act. Opposite party No. 3 has not recorded any reason in writing in the note-sheet of the file or in the impugned order of suspension. Assuming for the sake of argument that signing the note-sheet by opposite party No. 3, would tantamount to his acceptance of the action proposed, note-sheet does not indicate how suspension would be in public interest and why and how the case was so grave and emergent that issuance of notice and giving of opportunity of hearing to the petitioner would defeat the very purpose of the proposed action. 18. For the aforesaid reasons, this Court is of the view that the impugned suspension order under Annexure-9/A passed by opposite party No. 3 is a colourable exercise of power, which does not satisfy the requirements of Section 20(3) of the Act and, therefore, the same is quashed. It is however open to opposite party No. 3 to proceed against petitioner's clinic in accordance with the provision of sub-sections (1) and (2) of Section 20 of the Act, if so advised. It is however open to opposite party No. 3 to proceed against petitioner's clinic in accordance with the provision of sub-sections (1) and (2) of Section 20 of the Act, if so advised. The writ petition is accordingly disposed of. The file produced by the learned Additional Government Advocate be returned to him. Final Result : Disposed off