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Himachal Pradesh High Court · body

2018 DIGILAW 16 (HP)

Arun Sharma v. State Of Himachal Pradesh

2018-01-02

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, A.C.J. (Oral) - Petitioner has prayed for the following reliefs: "(a) A writ of certiorari may kindly be issued to the respondents directing them to produce the entire records and the impugned order dated 3.11.2016 (Annexure P-2) and order dated 22.04.2017 (Annexure P-5), issued by respondents No. 2 and 3, respectively suspending the registration of the petitioner may kindly be quashed and set aside and the respondents be directed not to take any steps in furtherance of the same. (b) A writ of mandamus may kindly be issued directing the respondents to revoke the suspension order and to permit the petitioner to perform his profession activities at his clinic. Any other or further orders which this Hon''ble Court deems fit and proper in the facts and circumstances of this case may kindly be granted in favour of the petitioner and against the respondents in the interest of justice." 2. Annexure P-2 is the order dated 03.11.2016, passed by the Chief Medical Officer-Cum-District Appropriate Authority, Una, District Una, H.P., relevant portion whereof reads as under: "As per observation & recommendation of National Inspection & Monitoring Committee (NIMC) on date 01.11.2016 undersigned has suspended the registration of Arun Diagnostic Centre, Hamirpur Road Una (HP)) on 03.11.2016 as per the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (PCPNDT) Act, 1994, as per under section 20(3) by CMO Una-cum-District Appropriate Authority as per observations & recommendation of National Inspection & Monitoring Committee (NIMC) as follows:- No Form-F available for patient Reena, Age 26 Yrs, having 12 weeks and 6 days'' pregnancy on 09.08.2016, no entry in OPD register and non-availability of this Form F even in the records of Form F for August 2016 in CMO Office Una. Incompleteness of Form F in term of address of patient, result of USG detailed of previous children and signature of operator in the records. The Form F were not being submitted to CMO Office, Una, but only table summery was submitted. Copy annexed herewith as "A". 3. Annexure P-5 is order dated 22.04.2017, passed by the Appellate Authority affirming the action taken by the District Appropriate Authority. 4. During the course of hearing, Mr. Vinay Kuthiala, learned Senior Counsel confined the grounds of challenge with regard to the principles of natural justice. Copy annexed herewith as "A". 3. Annexure P-5 is order dated 22.04.2017, passed by the Appellate Authority affirming the action taken by the District Appropriate Authority. 4. During the course of hearing, Mr. Vinay Kuthiala, learned Senior Counsel confined the grounds of challenge with regard to the principles of natural justice. Our specific attention was invited to the provisions of Section 20 of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the Act"), which reads as under: "20. Cancellation or 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)." 5. We notice that prior to passing of order dated 03.11.2016 (Annexure P-2), no opportunity of hearing/show-cause was ever afforded to the writ petitioner. Not only that, the order does not explain the necessity of dispensing with the compliance of principles of natural justice, in terms of Sub-section(3) of Section 20 of the Act. Order is also not reflective of the fact as to whether the advice of the Advisory Committee was on record or not. We notice that even the Appellate Authority has not returned any findings on this aspect. 6. Order is also not reflective of the fact as to whether the advice of the Advisory Committee was on record or not. We notice that even the Appellate Authority has not returned any findings on this aspect. 6. As such, solely on the ground that principles of natural justice stand violated in terms of Section 20 of the Act, we quash and set aside order dated 03.11.2016, passed by the Chief Medical Officer-Cum-District Appropriate Authority, Una, District Una, H.P. (Annexure P-2), as also order dated 22.04.2017, passed by the Appellate Authority (Annexure P-5), with the observation that it shall be open for the Authority(s) to proceed in accordance with law. We are hopeful that the Authority(s) shall act expeditiously, in accordance with the provisions of the Act. 7. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.