Friday 28 September 2012

Requirement of hearing affected party prior to sealing sonography machine in pcpndt ACt

DASHRATH SHAMRAO SHINDE V STATE OF MAHARASHTRA
Citation 2012(3)MH.LJ 163 dated 7/3/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
        WRIT PETITION NO. 5231 OF 2011

           CORAM : S. A. BOBDE and P. B. VARALE, JJ.

ORAL JUDGMENT (PER P. B. Varale, J.)
1. Rule.     Rule   made   returnable   forthwith.     Heard   finally   by
consent of the learned counsel for the respective parties.
2. By   the   present   petition,   the   petitioner   who   is   running   a
sonography  centre  i.e.  a  Genetic  Clinic  with  a  sonography manchine
namely   ‘Shinde   hospital’,   is   challenging   the   order   dated   07.12.2010
passed by respondent no.3 ­ Civil Surgeon , Buldhana.

3. Mr.   Deshpande,   the   learned   counsel   for   the   petitioner
submits that the petitioner is a qualified Doctor having M.B.B.S. degree at
his credit and runs a clinic namely Shinde Hospital.  He further submits
that the petitioner purchased a Sonography machine and the same is
installed in his clinic.  He further submits that  a register is maintained by3         Judgment wp5231.11
the petitioner and record is duly maintained about the patients attended
for   sonography   test.     The   learned   counsel   for   the   petitioner   further
submits that the petitioner has completed all the required formalities as
prescribed under ‘F’ form.  He further submits that the impugned order
passed   by   respondent   no.3   ­   the   Civil   Surgeon,   Buldhana,   dated
07.12.2010 thereby  sealing the  sonography centre and  suspending the
registration  of the  clinic  of the  petitioner  is  wholly  unsustainable.   In
challenge to the impugned order, the learned counsel for the petitioner
raised his first contention that in view of the provisions of Section 20 of
The Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of
Sex Selection) Act,  1994  (57  of  1994)  (hereinafter  referred to  as  “the
PCPNDT Act”), the petitioner ought to have been granted an opportunity
of a personal hearing.  The second contention of the learned counsel for
the petitioner is that the impugned order do not reflect that the order is
passed ‘in public interest’.  The third contention of the learned counsel for
the petitioner is that no reasons are recorded for passing the impugned
order.  Lastly, the learned counsel for the petitioner contended that the4         Judgment wp5231.11
order has been passed by respondent no.3, who is not the Appropriate
Authority   to   pass   such   order   under   the   Act.     In   support   of   these
contentions, the learned counsel for the petitioner has placed reliance on
the order passed by this Court in Writ Petition No. 2766/2010.
4. Ms. Tajwar Khan, the learned Assistant Government Pleader
for   the   respondents   submitted   that   the   PCPNDT   Act   empowers   the
Authority to seal the sonography centre without issuing any notice, if the
action is in public interest.   The learned A.G.P. further submits that in
view of the  recent Government Circular, the Civil Surgeon is entrusted
with the power of sealing.
5. Considering   the   rival   contentions,   the   clinic   run   by   the
petitioner is undoubtedly a ‘Genetic Clinic’ within the meaning of Section
2(d) of the PCPNDT Act.   Insofar as submission of the learned A.G.P.
that in the public interest, the Appropriate Authority may  suspend the
registration   of   Genetic   Councelling   Centre,   Genetic   Laboratory   and5         Judgment wp5231.11
Genetic   Clinic   without   issuing   notice,   we   are   inclined   to   accept   the
submission.   However, perusal of the impugned order  reveals that the
order is not passed under sub­section 3 of Section 20 of the PCPNDT
Act so as to dispense with the issuance of show cause notice.  Though,
perusal of the record show that a show­cause notice was issued to the
petitioner under Section 3 and 18 of the PCPNDT Act and the same is a
format   notice,   Section   3   of   the   Act   deals   with   regulation   of   Genetic
Counselling Centres, Genetic Laboratories and Genetic Clinics, whereas
Section   18   deals   with   registration   of   Genetic   Counselling   Centres,
Genetic Laboratories and Genetic Clinics.   There is nothing on  record
placed by the  respondents to show that any notice was issued to the
petitioner   as   required   under   Section   20(1)   of   the   Act,   nor   there   is
anything on  record that any opportunity of hearing was granted to the
petitioner as required under Section 20(2) of the Act.   The record also
reveals that no  reasons are  recorded in writing in the impugned order
since the order purports to suspend the registration of Genetic Clinic of
the petitioner.   Though, it is the required under the law, the order merely6         Judgment wp5231.11
recites   that   the   petitioner’s   sonography   centre   was   inspected   by   the
inspection squad and a panchanama to that effect was drawn.     This
Court  has  considered this  issue  in  an  identical  case  i.e. Writ Petition
No. 613/2012.
6. It is interesting to note that the impugned order  only refers to
the deficiency in maintaining ‘F’ Form register.  It is not even the case of
the respondent­authorities that the petitioner was found involved in some
sex determination.   In view of this fact, we are of the opinion that the
impugned  order  suffers from  non­compliance  of the  requirements    of
Section   20   of   the   PCPNDT     Act.     Though,   the   learned   A.G.P.   has
submitted that the power of sealing and suspension of  registration are
with   Civil   Surgeon,   nothing   is   placed   on   record   in   support   of   this
submission.
7. In Our considered view, the impugned order is unsustainable
in view of non­compliance of the provisions of Section 20 of the PCPNDT
Act and the same is required to be quashed and set aside.  In the result,7         Judgment wp5231.11
the  writ  petition  is  allowed.   The  impugned  order  dated  07.12.2010  is
quashed and set aside.  Rule is made absolute accordingly.  No costs.
8. We   make   it   clear   that   this   order   does   not   prevent   the
respondents from taking any further action in the matter as they may
consider advisable, in accordance with law.
JUDGE      JUDGE
Diwale
Print Page

No comments:

Post a Comment