. According to Section 27, every offence under the Act shall be cognizable, non-bailable and non-compoundable. From Annexure 5, it would appear that on the basis of the incident which lead to the cancellation of the registration of the Ultrasound Centre of the petitioner, criminal proceedings also have been initiated against the petitioner under the Act and the Rules. But the initiation of such criminal proceedings against the petitioner or the pendency of such criminal proceedings before Court is not a bar for deciding the appeal against cancellation of registration and it cannot be a ground for refusing to entertain and decide the appeal filed by the petitioner under Rule 19 of the PNDT Rules. There is no provision in the PNDT Act or the PNDT Rules which prevents the appellate authority from entertaining and considering the appeal filed under Section 21 of the PNDT Act or Rule 19 of the PNDT Rules on the ground that criminal proceedings have been initiated or are pending in respect of the same incident on the basis of which, the registration was cancelled. Cancellation of registration is for violation of the provisions of the PNDT Act and the Rules. The action is directed against the registration of the Ultrasound Centre and not against the owner of the Centre. But criminal action is initiated for committing an offence under the PNDT Act and the action is directed against the person who committed the offence. Both actions are independent and they can be proceeded with simultaneously. The pendency of criminal proceedings need not and should not deter the appellate authority from deciding the appeal filed against the cancellation of registration.
petitioner's Ultrasound Centre was first suspended and then cancelled illegally. As per Annexure 1 order dated 23-2-2005, the registration was suspended under Section 20(3) of the PNDT Act by the Chief Medical Officer, Dehradun who is the Appropriate Authority at the district level. The petitioner was also asked to show cause why the registration should not be cancelled. In reply to Annexure 1 notice/"suspension order, the petitioner submitted Annexure 2 explanation. However, as per Annexure 3 order dated 14-3-2005, the Chief Medical Officer, Dehradun cancelled the registration of the Ultrasound Centre under Section 20(2) of the PNDT Act. Against Annexure 3 order, the petitioner filed Annexure 4 appeal before the Appropriate Authority at State Level. But the appellate authority, as per Annexure 5 communication dated 27-6-2005, informed the petitioner that his appeal cannot be entertained in view of the criminal proceedings pending before Court. Aggrieved by Annexures 1, 3 and 5, the petitioner has filed this writ petition praying for quashing Annexures 1 and 3.
2. We have heard Mr. B. P. Nautiyal, learned Counsel for the petitioner and Mr. K. P. Upadhyaya, learned Standing Counsel for the State of Uttaranchal who accepted notice for the respondents.
3. The challenge against Annexure 1 order dated 23-2-2005 has become infructuous, as the registration has subsequently been cancelled as per Annexure 3 order dated 14-3-2005. Once the registration has been cancelled, there is no need for considering whether the suspension of registration was legal or not. Hence, we are not inclined to consider the legality or correctness of Annexure 1 order which has merged with Annexure 3 order cancelling the registration.
4. We also do not find it necessary to consider the legality or correctness of Annexure 3 order, as the petitioner has already resorted to the statutory remedy of filing an appeal against the said order and the appeal filed by the petitioner is still pending. As per Rule 19(2) of the PNDT Rules 1996, anybody aggrieved by the decision of the Appropriate Authority at district level may appeal to the Appropriate Authority at State/UT level within 30 days of the order of the district level Appropriate Authority. As per Rule 19(3) of the said Rules, each appeal shall be disposed of by the State/Union Territory Level Appropriate Authority within 60 days of its receipt. Annexure 3 order was passed by the Appropriate Authority at the district level. Hence, the appeal against Annexure 3 order lies to the Appropriate Authority at the State level. The petitioner rightly submitted the appeal to the Appropriate Authority at the State level (second respondent in the writ petition). Instead of considering the appeal on merits, the second respondent has declined to consider the appeal on the ground that some crimmal proceedings are pending against the petitioner in respect of the same incident on the basis of which, the registration was cancelled.
5. In our view, the stand taken by the second respondent in Annexure 5 communication is not correct or justified. Chapter VII of the PNDT Act deals with the Offences and Penalties. Section 22 in Chapter VII deals with the prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention of such prohibition. Section 23 lays down that any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of the Act or the Rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees. According to Section 25, whoever contravenes any of the provisions of the Act or any Rules made thereunder, for which no penalty has been elsewhere provided in the Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. According to Section 27, every offence under the Act shall be cognizable, non-bailable and non-compoundable. From Annexure 5, it would appear that on the basis of the incident which lead to the cancellation of the registration of the Ultrasound Centre of the petitioner, criminal proceedings also have been initiated against the petitioner under the Act and the Rules. But the initiation of such criminal proceedings against the petitioner or the pendency of such criminal proceedings before Court is not a bar for deciding the appeal against cancellation of registration and it cannot be a ground for refusing to entertain and decide the appeal filed by the petitioner under Rule 19 of the PNDT Rules. There is no provision in the PNDT Act or the PNDT Rules which prevents the appellate authority from entertaining and considering the appeal filed under Section 21 of the PNDT Act or Rule 19 of the PNDT Rules on the ground that criminal proceedings have been initiated or are pending in respect of the same incident on the basis of which, the registration was cancelled. Cancellation of registration is for violation of the provisions of the PNDT Act and the Rules. The action is directed against the registration of the Ultrasound Centre and not against the owner of the Centre. But criminal action is initiated for committing an offence under the PNDT Act and the action is directed against the person who committed the offence. Both actions are independent and they can be proceeded with simultaneously. The pendency of criminal proceedings need not and should not deter the appellate authority from deciding the appeal filed against the cancellation of registration.
6. Under Rule 19(3) of the PNDT Rules, an appeal filed under Rule 19(1) or 19(2) shall be disposed of within 60 days of its receipt. Annexure 5 shows that Annexure 4 appeal was received by the second respondent on 16-4-2005. Hence, the second respondent was bound to dispose of the appeal before 16-6-2005. Since the second respondent failed to discharge its statutory function, the said respondent is liable to be directed by this Court to consider and pass appropriate orders on Annexure 4 appeal without any further delay. Considering that the statutory period for deciding the appeal expired on 16-6-2005, we are of the view that the second respondent should be directed to decide the appeal within a time limit stipulated by the Court.
7. Hence, the writ petition is disposed of with a direction to the second respondent to consider Annexure 4 appeal filed by the petitioner and to take an appropriate decision in accordance with law as early as possible and at any rate, within a period of three weeks from the date of receipt of a copy of this judgment. Before taking a decision on Annexure 4, the second respondent shall give a personal hearing to the petitioner.
The petitioner may produce a copy of this judgment before the second respondent for information and compliance.
Uttaranchal High Court
Dr. Chitra Agarwal vs State Of Uttaranchal And Ors. on 16 August, 2005
Equivalent citations: AIR 2006 Utr 78
1. The petitioner claims to be a practising Doctor who is having an Ultrasound Centre and X-ray Clinic known as Chitra Ultrasound Centre at 5 New Road, Dehradun. The said Ultrasound Centre has been registered under the Preconception and Pre-natal Diagonostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short PNDT Act). According to the petitioner, the registration certificate bears No. A/CMO/16 dated 10-12-2001. The grievance of the petitioner in this writ petition is that the registration of the petitioner's Ultrasound Centre was first suspended and then cancelled illegally. As per Annexure 1 order dated 23-2-2005, the registration was suspended under Section 20(3) of the PNDT Act by the Chief Medical Officer, Dehradun who is the Appropriate Authority at the district level. The petitioner was also asked to show cause why the registration should not be cancelled. In reply to Annexure 1 notice/"suspension order, the petitioner submitted Annexure 2 explanation. However, as per Annexure 3 order dated 14-3-2005, the Chief Medical Officer, Dehradun cancelled the registration of the Ultrasound Centre under Section 20(2) of the PNDT Act. Against Annexure 3 order, the petitioner filed Annexure 4 appeal before the Appropriate Authority at State Level. But the appellate authority, as per Annexure 5 communication dated 27-6-2005, informed the petitioner that his appeal cannot be entertained in view of the criminal proceedings pending before Court. Aggrieved by Annexures 1, 3 and 5, the petitioner has filed this writ petition praying for quashing Annexures 1 and 3.
2. We have heard Mr. B. P. Nautiyal, learned Counsel for the petitioner and Mr. K. P. Upadhyaya, learned Standing Counsel for the State of Uttaranchal who accepted notice for the respondents.
3. The challenge against Annexure 1 order dated 23-2-2005 has become infructuous, as the registration has subsequently been cancelled as per Annexure 3 order dated 14-3-2005. Once the registration has been cancelled, there is no need for considering whether the suspension of registration was legal or not. Hence, we are not inclined to consider the legality or correctness of Annexure 1 order which has merged with Annexure 3 order cancelling the registration.
4. We also do not find it necessary to consider the legality or correctness of Annexure 3 order, as the petitioner has already resorted to the statutory remedy of filing an appeal against the said order and the appeal filed by the petitioner is still pending. As per Rule 19(2) of the PNDT Rules 1996, anybody aggrieved by the decision of the Appropriate Authority at district level may appeal to the Appropriate Authority at State/UT level within 30 days of the order of the district level Appropriate Authority. As per Rule 19(3) of the said Rules, each appeal shall be disposed of by the State/Union Territory Level Appropriate Authority within 60 days of its receipt. Annexure 3 order was passed by the Appropriate Authority at the district level. Hence, the appeal against Annexure 3 order lies to the Appropriate Authority at the State level. The petitioner rightly submitted the appeal to the Appropriate Authority at the State level (second respondent in the writ petition). Instead of considering the appeal on merits, the second respondent has declined to consider the appeal on the ground that some crimmal proceedings are pending against the petitioner in respect of the same incident on the basis of which, the registration was cancelled.
5. In our view, the stand taken by the second respondent in Annexure 5 communication is not correct or justified. Chapter VII of the PNDT Act deals with the Offences and Penalties. Section 22 in Chapter VII deals with the prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention of such prohibition. Section 23 lays down that any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of the Act or the Rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees. According to Section 25, whoever contravenes any of the provisions of the Act or any Rules made thereunder, for which no penalty has been elsewhere provided in the Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. According to Section 27, every offence under the Act shall be cognizable, non-bailable and non-compoundable. From Annexure 5, it would appear that on the basis of the incident which lead to the cancellation of the registration of the Ultrasound Centre of the petitioner, criminal proceedings also have been initiated against the petitioner under the Act and the Rules. But the initiation of such criminal proceedings against the petitioner or the pendency of such criminal proceedings before Court is not a bar for deciding the appeal against cancellation of registration and it cannot be a ground for refusing to entertain and decide the appeal filed by the petitioner under Rule 19 of the PNDT Rules. There is no provision in the PNDT Act or the PNDT Rules which prevents the appellate authority from entertaining and considering the appeal filed under Section 21 of the PNDT Act or Rule 19 of the PNDT Rules on the ground that criminal proceedings have been initiated or are pending in respect of the same incident on the basis of which, the registration was cancelled. Cancellation of registration is for violation of the provisions of the PNDT Act and the Rules. The action is directed against the registration of the Ultrasound Centre and not against the owner of the Centre. But criminal action is initiated for committing an offence under the PNDT Act and the action is directed against the person who committed the offence. Both actions are independent and they can be proceeded with simultaneously. The pendency of criminal proceedings need not and should not deter the appellate authority from deciding the appeal filed against the cancellation of registration.
6. Under Rule 19(3) of the PNDT Rules, an appeal filed under Rule 19(1) or 19(2) shall be disposed of within 60 days of its receipt. Annexure 5 shows that Annexure 4 appeal was received by the second respondent on 16-4-2005. Hence, the second respondent was bound to dispose of the appeal before 16-6-2005. Since the second respondent failed to discharge its statutory function, the said respondent is liable to be directed by this Court to consider and pass appropriate orders on Annexure 4 appeal without any further delay. Considering that the statutory period for deciding the appeal expired on 16-6-2005, we are of the view that the second respondent should be directed to decide the appeal within a time limit stipulated by the Court.
7. Hence, the writ petition is disposed of with a direction to the second respondent to consider Annexure 4 appeal filed by the petitioner and to take an appropriate decision in accordance with law as early as possible and at any rate, within a period of three weeks from the date of receipt of a copy of this judgment. Before taking a decision on Annexure 4, the second respondent shall give a personal hearing to the petitioner.
The petitioner may produce a copy of this judgment before the second respondent for information and compliance.
No comments:
Post a Comment