There is a distinction between suspensions which are made as
holding operations and suspensions by way of punishment. Although
the said Act does not expressly provide for interim suspension, the
State Medical Council would always have the power in appropriate
cases or grave urgency to suspend the registration as a holding action
and afford the registered medical practitioner a post-decisional
hearing. Such an order pending the enquiry would not be a penalty or
punishment. It would be open thereafter for the Council, after the
enquiry is conducted, to suspend the registration for such period of
time as may be warranted by the facts of a particular case. The period
Such an order, after hearing the medical officer finally,
offence.
of suspension naturally would depend upon the nature of the alleged
would be by way of penalty.
33.
In Anand Rathi & Ors. v. SEBI & Anr. (2002) 1 LJSOFT 82 = 1
Vazifdar, J.) was a party, held :-
Mah.L.J. 522, a Division Bench of this Court, to which one of us (S.J.
““28. In the instance case the impugned order has been
passed not by way of punishment or penalty but only by
way of an interim measure, pending enquiry into the
manipulations. There is a well settled distinction in law
between the suspensions which are made as holding
operation pending enquiry and suspensions by way of
punishment. As observed by Lord Denning in Lewis v.
Heffer (supra), (cited with approval by the Supreme
Court in Liberty Oil Mills) there is a distinction between
the suspensions which are inflicted by way of
punishment, as for instance, when a member of the Bar
is suspended for six months or when a Solicitor is
suspended from practice. He said (All E. R. page 364
para 13):
"But they do not apply to suspensions which are
made, as a holding operation, pending enquiries.
Very often irregularities are disclosed in a gov-
ernment department or in a business house: and a
man may be suspended on full pay pending en-
quiries. Suspicion may rest on him; and so he is
suspended until he is cleared of it. No one, so far
as I know, has ever questioned such a suspension
on the ground that it could not be done unless he
is given notice of the charge and an opportunity
of defending himself and so forth. The suspension
in such a case is merely done by way of good ad-
ministration. A situation has arisen in which
something must be done at once. The work of the
department or the office is being affected by ru-
mours and suspicions. The others will not trust
the man. In order to get back to proper work, the
man is suspended . At that stage the rules of natu-
ral justice do not apply.
WRIT PETITION NO.1176 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
2. Dr. Prabhudas Solanki )
Versus
1. Dr. Ramineni Venugopal Somaiah )
Citation;2013(6) MH L J 42 bombay
CORAM : S. J. VAZIFDAR &
M. S. SONAK, JJ.
FRIDAY, 23RD AUGUST, 2013.
The petitioners are orthopedic surgeons. Respondent No.1 is
the Maharashtra Medical Council.
Respondent No.2 – one
Sanjaykumar Dattatraya Funde is the Medical Health Officer of the
Mumbai Municipal Corporation, who had filed a complaint against
the petitioners, which we will refer to shortly. Respondent No.3 is the
Appropriate Authority under the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994,
(hereinafter referred to as the “said Act”).
2.
The petitioners seek a writ setting aside an order passed by
respondent No.1 suspending their registrations with the Maharashtra
Medical Council for a period of five years from 20 th April, 2013,
and/or till the final decision of a criminal case on charges framed
against them for contravening the provisions of the said Act and the
Rules framed thereunder, whichever is earlier. The impugned action
is taken under Section 23 (2) of the said Act. They further seek an
order staying the impugned order till the decision in the criminal case
pending before the Metropolitan Magistrate and in any event till the
3.
Review Application filed by them before respondent No.1.
The question that falls for consideration is whether section
23(2) of the said Act makes it mandatory for respondent No.1 to
suspend the registration of a registered medical practitioner, if charges
are framed against him by the Court under the said Act.
Sub-section (2) of Section 23 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.”
Respondent No.1 was itself of the view that the mere filing of
charges does not require it to compulsorily suspend the registration of
a registered medical practitioner. Respondent No.1 was rightly of the
view that upon charges being framed, it was to initiate an enquiry
whether the registration of the concerned medical practitioner ought to
be suspended and if so, for what period. We have upheld this view
and the submission on behalf of the petitioner. Respondent No.1,
ig
however, has taken the impugned action of suspending the petitioner's
registration without anything more only in view of a judgment of a
learned single Judge of this Court.
Mr. Ravi Kadam, the learned senior counsel appearing on
4.
behalf of the petitioners submitted that even though charges have been
framed against the petitioners, respondent No.1 is bound to issue a
show cause notice and take a decision of its own as to whether in the
facts and circumstances of the case, their registration as medical
practitioners ought to be suspended or not and if so for what period.
The charges being framed is only an aspect which respondent No.1
may consider in deciding whether or not the registration ought to be
suspended till the disposal of the case. He further submitted that in the
present case there is nothing to indicate the involvement of the
petitioners in an offence admittedly committed by another doctor one
Dr. Ivan Rocha. Moreover, according to him, even the complaints
filed do not indicate any offence by the petitioners.
Petitioner Nos.1 and 2 have been practising as surgeons for 17
5.
years and 27 years respectively. They are attached, inter-alia, with J.P.
Hospital, Mumbai. The petitioners as partners have taken the said
hospital on the basis of a leave and licence agreement dated 25 th
October, 2010 for a period of three years.
6.
Respondent No.2, who was appointed as the Appropriate
Authority under the said Act filed a complaint dated 19 th November,
2011, against one Dr. Ivan Rocha and the petitioners under section
190 of the Code of Criminal Procedure, 1973 alleging violation of
various provisions of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996.
The
complaint states as follows:
The said Dr. Ivan Rocha, a medical practitioner practices at the
said hospital and at another clinic by the name of Pooja Clinic and
Archana Diagnostic Center. The petitioners are partners of the said
hospital but are not connected with the Pooja Clinic.
One Ms. Kamya Bhattachariya, a reporter with a television
channel, was informed that the said Dr.Ivan Rocha was performing
sonography on pregnant ladies with a view to detect the sex of the
foetus in violation of the provisions of the said Act. With a view to
conduct a sting operation to expose the same, she took an appointment
with Dr.Ivan Rocha for performing a sonography on a relative who
was pregnant to ascertain the sex of the child. She informed Dr. Ivan
Rocha on the telephone that she was a relative of one Ms. Priyanka
Patil (assumed name), who was five months pregnant and wanted her
sonography done to ascertain the sex of the child. Dr. Ivan Rocha gave
her an appointment for 7.00 p.m. on 8th July, 2011, at the said hospital.
As per the appointment, the said Ms. Kamya Bhattachariya, one
Ms.Priyanka Patil and one Ms. Thori Bhavine (assumed name) went
to the said hospital where they registered the said Ms. Priyanka Patil
with the receptionist, after informing her about their appointment with
Dr. Ivan Rocha and the receptionist after about ten minutes directed
the three ladies to Dr. Ivan Rocha's cabin.
Ms. Kamya Bhattachariya introduced the other two ladies to Dr.
Ivan Rocha. After performing a sonography of Ms. Priyanka Patil. Dr.
Ivan Rocha informed the three ladies that the child was perfectly well.
He, however, refused the request to divulge the sex of the child and
stated that he would do so only, if they paid him for the same. He
ig
stated that normally he charged Rs.8000/- to disclose the sex of a
child, but he would give them a concession of Rs.2000/-.
Accordingly, Ms. Thori Bhavine paid him Rs.6000/- in Rs. 500 notes,
the numbers of which had been noted by the ladies. Upon receipt of
the money, Dr. Ivan Rocha informed them that it was definitely a
female child. He told them to come the next day at 8.00 a.m., for the
report. Ms. Kamya Bhattachariya collected the sonography report
dated 8th July, 2011, on 9th July, 2011. Dr. Ivan Rocha then fixed up an
appointment for Ms. Priyanka Patil at the said hospital – J.P .Hospital
for an abortion on 11th July, 2011, and instructed them to bring
Rs.10,000/- for the same.
Thereafter, the said ladies contacted respondent No.2, and
informed him about the above facts. Respondent No.2, thereupon
visited the said hospital on 11th July, 2011. and found various
irregularities qua the said Act including that the original certificate
under the Act had not been displayed in the waiting area, the F-forms
were incomplete. As per the registration Certificate issued under the
Act, one Dr. Sharad Sancheti was supposed to do the sonography, but
the said Dr. Ivan Rocha who is a Gynecologist was doing the
ig
sonography during the consultation hours with his own portable
machines without filling the 'F' forms and without his machine being
included in the registration. Thus, the portable machines brought in
by Dr. Ivan Rocha was being used unauthorisedly. Dr. Ivan Rocha
who performed the sonography in his consulting room without his
name being included in the certificate issued under the said Act and
without his consultation room being included as a place for
sonography.
As per the application and the place shown in the
application, the F-form for the said Ms.Priyanka Patil was also not
found.
Various items were seized and a panchanama to that effect was
prepared. The panchanama was signed by petitioner No.1.
Thereafter respondent No.2 visited Pooja Clinic and met Dr.
Ivan Rocha who sent for and handed over the said Rs.6000/-. The
same notes were handed over.
After setting out the above facts, the complaint stated that
Dr.Ivan Rocha had conducted the sonography. Para 18 of the
complaint reads as under:
“18. Under the circumstance I submit that Accused
No.1 Dr. Ivon Rocha, who conducted the Sonograph,
Accused No.2 Dr. Venugopal Ramineni, Accused No.3
Dr. Prabhu Solanki, the partners of J.P. Hospital, who
permitted the illegal Sonograph and who were
permitting the performance of abortions in this Hospital
have all jointly and severally flouted the provisions of
Sections 3(A), 4(1), (3), 5, 6(a), (b) (c) and rules 9(i),
(ii), (iii), (iv),X(i), (i-A), 17 (1), 18(1) (3) (5) of The
PNDT Act.”
7.
It is important to note the examination-in-chief of the said Ms.
Kamiya Bhattacharya, in the evidence before charge. Mr. Kadam
placed considerable reliance upon the same to indicate that there were
no allegations against the petitioners.
There was nothing in the
evidence, which even remotely suggested any complicity leave alone
collusion between the petitioners and said Dr. Ivan Rocha. The entire
evidence is only with respect to the acts and conduct of Dr. Ivan
Rocha.
In her examination-in-chief, Ms. Kamiya Bhattacharya, in fact
8.
stated that when she asked Dr. Ivan Rocha to give her the sonography
report, he told her to come on the next day, i.e., 9th July, 2011 at his
Pooja Clinic to collect the same. In other words, the report was not
even handed over at the J.P. Hospital. She, in fact, went the next day
and collected the report from the Pooja Clinic. Mr. Kadam, stated that
the witness has not even alleged that thereafter the J.P. Hospital was in
9.
any manner informed or even contacted about the abortion procedure.
As far as the entire incident regarding the visit of the said three
ladies to the said Dr. Ivan Rocha and the transactions between them
are concerned, we see the force in Mr. Kadam's submission that it is
not even alleged that the petitioners had any role to play in the same.
All allegations by the witness and respondent No.2 are only against
Dr. Ivan Rocha. It is also important to note that the conversation
between Dr. Ivan Rocha and the ladies took place only in one room,
which he was permitted to occupy for only a part of the day by the J.P.
Hospital which was managed by the petitioners. There is nothing to
indicate that Dr. Ivan Rocha acted on behalf of the hospital or it's
partners or either of the petitioners. There is nothing to indicate that
the petitioners even knew about what Dr. Ivan Rocha had done in
respect of said incident or any other incident for that matter. Dr. Ivan
Rocha did not use the equipment of the hospital in respect of said
incident.
He used his own portable machine brought in by him.
Neither the complaint, nor the evidence of the witnesses suggest that
10.
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the petitioners knew about the said machine.
However, the complaint also refers, especially in paragraph 13,
to various other violations of the Act such as the PCPNDT Certificate
not being displayed in the waiting area and the 'F' Forms being
incomplete; the patient's declaration containing only the patient's
signature but not her name and the name of the doctor and the
sonologist not being written.
11.
The complaint was filed on 19 th November, 2011 and the
learned Metropolitan Magistrate on the very same day passed the
order of issuance of process. Thereafter on 6 th June, 2012, the
Metropolitan Magistrate allowed the addition of said Dr. Sharad
Sancheti as accused No.4.
By a letter dated 26th May, 2012, respondent Nos.2 and 3
informed the Registrar of respondent No.1 - Maharashtra Medical
Council about the case having been filed against the petitioners for
determination of sex of foetus at the said hospital run by the
Before referring to the charges, it is necessary to note that the
12.
petitioners.
said Dr. Sharad Sancheti challenged the said order of issuance of
process before this Court by filing Criminal Writ Petition No.2601 of
2012. By an order dated 31st July, 2012, ad-interim reliefs have been
granted. By an order dated 4th December, 2012, the learned Judge
noted that the matter is required to be heard finally and clarified that
the prosecution would proceed to the extent of the existing accused.
The interim relief to the extent of said Dr. Sharad Sancheti was
continued from time to time and remains in force. Unfortunately, the
petitioners have not filed similar proceedings.
13(A).
By an order dated 6th June, 2012, the Metropolitan
Magistrate noted that the law does not permit a roving inquiry or
detailed analysis of evidence at the time of framing charge and it is
permissible for the Court to appreciate the evidence for the limited
purpose of ascertaining whether a prima facie case has been made out.
Having said that the learned Metropolitan Magistrate held that it is
prima facie evident that the said Dr. Ivan Rocha was practising at the
said hospital – J.P. Hospital which was jointly run by the petitioners as
partners and that the said Dr. Ivan Rocha conducted the sex
determination test at J.P. Hospital.
By an order dated 6th June, 2012, the learned Metropolitan
(B)
Magistrate observed that on 8th July, 2012, the said Dr. Ivan Rocha
“aided” by the petitioners conducted the said procedure and had
committed an offence under section 23 read with sections 3-A, 4 and 6
of the Act. The order also records that it had been found that they had
committed a breach of Rules 9(i) to (iv), 10(1), (1A), 17(1) and 18(1),
(3) and (5) of the said Rules by not maintaining proper records, forms
and not displaying the notice to the effect that disclosure of the sex of
the foetus is prohibited under law. The order states that the said
14.
offences are punishable under section 23.
There is considerable force in Mr. Kadam's submission that it
was not even the allegation in the complaint or in the evidence of the
said Ms. Kamya Bhattachariya that the petitioners had aided the said
Dr. Ivan Rocha. It is important to note that there is not even a prima
facie observation against the petitioners regarding this incident i.e. the
conduct of Dr. Ivan Rocha in the order dated 6th June, 2012. The
Metropolitan Magistrate, however, observed that respondent No.2
during his visit noticed certain irregularities committed by the
petitioners and that there was prima facie evidence against all of them
for framing the charge for the commission of offences under sections
3A, 4(1) and (3), 5 and 6 of the Act and Rules 9(i) to (iv), 10(1) and
(1A), 17(1) and 18(1), (3) and (5) of the said Rules. He, accordingly,
directed that the charge be framed.
15.
By a letter dated 8th June, 2012, addressed to the petitioners,
respondent No.1 stated that they had been informed that a case had
been filed against the petitioners and called upon them to explain why
the Maharashtra Medical Council should not take action against them
(hereinafter referred to as the “MMC Act”).
16.
under the said Act and the Maharashtra Medical Council Act, 1965
Respondent No.1, however, did not pursue the show cause
Nor did it form any opinion of its own
this show cause notice.
notice. It did not afford the petitioners an opportunity to respond to
regarding the petitioners involvement in the said incidents. Instead,
by the impugned letter dated 25th April, 2013, addressed to the
petitioners, respondent No.1 stated that it had been resolved by the
Council on 20th April, 2013, that there was sufficient material /
allegations against the petitioners to suspend their registration under
section 23(2) of the said Act and that, therefore, their registration was
thereby suspended for a period of five years from 20th April, 2013
and/or till the final decision of the criminal case, whichever is earlier
and that the petitioners are restrained from medical practice and/or
profession of any nature during the period of suspension.
17.
The petitioners filed a review application before respondent
No.1 against the said order which is pending.
We may have directed the petitioners, in the first instance, to
pursue the review before respondent No.1. However, Mr. Nerlekar,
the learned counsel appearing on behalf of respondent No.1 stated that
this would be a futile exercise in view of a judgment of a learned
single Judge of this Court dated 22 nd October, 2012, in the case of Dr.
Pradipchandra Mohanlal Gandhi & Anr. v. Maharashtra Medical
Council & Anr. in Writ Petition No. 6495 of 2012. The learned Judge
observed that respondent No.1 understood section 23(2) to mean that
it would have to hold an enquiry before passing an order of
The learned Judge, however, held that section 23(2)
suspension.
contained a mandate to the Appropriate Authority to inform the State
Medical Council, the name of the registered medical practitioner
against whom the charges are framed by the Court and that when
charges are framed, the State Medical Council must take action,
including of suspension of the registration till the case is decided.
The learned Judge held that there was absolutely no warrant for
holding any enquiry so as to delay the taking of action in terms of
section 23(2). The learned Judge thereafter recorded the statement on
behalf of respondent No.1 that it would now follow section 23(2)
18.
accordingly. The order recorded that the Writ Petition was withdrawn.
Mr. Nerlekar submitted that the petitioners registration under
the Maharashtra Medical Council Act was suspended without holding
any inquiry or affording them any opportunity of defending
ig
themselves only in view of the judgment of the learned single Judge.
He fairly stated that the respondent No.1 had itself not formed any
opinion as to whether or not the petitioners' registration ought to be
cancelled. Nor had it formed any opinion whatsoever regarding the
merits of the matter. Mr. Nerlekar, however, rightly stated that the
Maharashtra Medical Council is bound to act on the basis of the
judgment. It would be futile, therefore, to require the petitioners to
pursue the review application filed by them before the Maharashtra
Medical Council.
19.
The question, therefore, is whether section 23(2) of the Act
requires the State Medical Council to mandatorily suspend the
registration of a registered medical practitioner upon charges being
framed against him for violation of the provisions of the said Act and
the Rules. In other words, whether section 23(2) prohibits the State
Medical Council from doing anything other than suspending the
registration of a registered medical practitioner, the moment charges
It is unnecessary to emphasize the adverse consequences upon
20.
are framed.
the suspension of the registration of a registered medical practitioner
under the State Medical Council Act – in this case the Maharashtra
Medical Council Act, 1965.
The adverse consequences are too
obvious to necessitate any elaboration.
21.
Section 23 of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994, reads as under :-
“23. Offences and penalties.-(1) Any medical
geneticist, gynaecologist, registered 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
this Act or 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.
(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.
(3)
Any person who seeks the aid of any Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic
or ultrasound clinic or imaging clinic or of a medical
practitioner or any other person for sex selection or for
conducting pre-natal diagnostic techniques on any
pregnant women for the purposes other than those
specified in sub-section (2) of section 4, he shall, be
punishable with imprisonment for a term which may
extend to three years and with fine which may extend to
fifty thousand rupees for the first offence and for any
subsequent offence with imprisonment which may extend
to five years and with fine which may extend to one lakh
rupees.
22.
(4)
For the removal of doubts, it is hereby provided,
that the provisions of sub-section (3) shall not apply to
the woman who was compelled to undergo such
diagnostic techniques or such selection.”
As we mentioned earlier, the consequences of suspension of
registration of a registered medical practitioner are extremely drastic.
Section 23(2) of the Act does not exclude the principles of natural
justice either expressly or by necessary intendment. In fact, as we will
shortly demonstrate, the provisions of the Act and especially sub-
section (1) of section 23 establish the contrary. Before going further,
however, it is necessary to note the objects of the said Act.
We are fully conscious of the fact that The Pre-conception and
23.
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994, was enacted to protect against and remedy a very disturbing and
unfortunate trend of alarming proportions. As the preamble itself
states, the Act was to provide, inter alia, for prohibition of sex
selection and for the prevention of their misuse for sex determination
leading to female foeticide and for matters connected therewith or
incidental thereto. It is necessary to set out the Statement of Objects
and Reasons of the Act as well as of the Amendment Act 14 of 2003.
The Statement of Objects and Reasons of the Act are as under:-
Statement of Objects and Reasons.- It is proposed to
prohibit
pre-natal
diagnostic
techniques
for
determination of sex of the foetus leading to female
foeticide. Such abuse of techniques is discriminatory
against the female sex and affects and dignity and status
of women. A legislation is required to regulate the use
The Bill, inter alia, provides for.-
(i) prohibition of the misuse of pre-natal
diagnostic techniques for determination of sex of
foetus, leading to female foeticide;
(ii) prohibition of advertisement of pre-natal
diagnostic techniques for determination of
sex;
(iii) permission and regulation of the use of pre-
natal diagnostic techniques for the purpose of
detection of specific genetic abnormalities or
disorders;
(iv) permitting the use of such techniques only
under certain conditions by the registered
institutions; and
(v) punishment for violation of the provisions of
the proposed legislation.”
ig
(2)
of such techniques and to provide deterrent punishment
to stop such inhuman act.
The Statement of the Objects and Reasons of the Amendment
Act 14 of 2003, insofar as they are relevant, read as under :-
“Amendment Act 14 of 2003 – Statement of Objects
and Reasons.- The Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994 seeks
to prohibit pre-natal diagnostic techniques (for
determination of sex of the foetus leading to female
foeticide. During recent years, certain inadequacies and
practical difficulties in the administration of the said Act
have come to the notice of the Government, which has
necessitated amendments in the said Act.
2.
The pre-natal diagnostic techniques like
amniocentesis and sonography are useful for the
detection of genetic or chromosomal disorders or
congenital malformations or sex linked disorders, etc.
However, the amniocentesis and sonography are being
:
used on a large scale to detect the sex of the foetus and
to terminate the pregnancy of the unborn child if found
to be female. Techniques are also being developed to
select the sex of child before conception. These
practices and techniques are considered discriminatory
to the female sex and not conducive to the dignity of the
women.
The proliferation of the technologies mentioned
above may, in future, precipitate a catastrophe, in the
form of severe imbalance in male-female ratio. The
State is also duty bound to intervene in such matters to
uphold the welfare of the society, especially of the
women and children. It is, therefore, necessary to enact
and implement in letter and spirit a legislation to ban
the pre-conception sex selection techniques and the
misuse of pre-natal diagnostic techniques for sex-
selective abortions and to provide for the regulation of
such abortions. Such a law is also needed to uphold
medical ethics and initiate the process of regulation of
medical technology in the large interests of the society.
4.
Accordingly, it is proposed to amend the aforesaid
Act with a view to banning the use of both sex selection
techniques prior to conception as well as the misuse of
pre-natal diagnostic techniques for sex selective
abortions and to regulate such techniques with a view to
ensuring their scientific use for which they are
intended.”
24.
It is clear, therefore, that the Act was introduced to curb an
extremely unfortunate and dangerous trend.
The Legislature,
therefore, provided for punishment for violation of the provisions of
the Act.
25.
We do not, however, find the Legislature having gone to the
extent of visiting registered medical practitioners with drastic and far
reaching consequences without affording them any opportunity of
even having their case considered in any manner whatsoever. More
important, we do not find the Legislature as having intended visiting
registered medical practitioners with drastic civil consequences for a
substantially long period of time irrespective of the nature or extent of
ig
the alleged violation of the provisions of the Act. It is clear from the
provisions of the Act itself that the intention of the Legislature was not
so. Much less, do we find the Legislature having intended in such
cases to render the powers and the jurisdiction of the Maharashtra
Medical Council redundant.
It is pertinent to note that the Medical Council itself was not of
26.
this view. It's present stand is only in view of the said judgment of the
learned single Judge of this Court. This is evident from the judgment
itself. In paragraph 2, the learned Judge noted that the Maharashtra
Medical Council understood section 23 to mean that it would have to
hold an enquiry before suspension or removal of the concerned
SRP
Firstly, if the Legislature intended the name of a registered
27.
registered medical practitioner.
medical practitioner to be suspended the moment charges are framed
against him by the Court under the Act and till the case is disposed of
without affording the registered medical practitioner an opportunity of
defending himself, it would have provided for the same in clear
language to that effect. Further, if the Legislature intended the
suspension to continue till the case is disposed of, it would have
provided for the same in clear, express terms. Most important, if the
intention of the Legislature was to do so irrespective of the gravity of
the offence under the Act, irrespective of the nature of the offence
under the Act and irrespective of the extent of the offence under the
Act, it would have provided for the same in clear language to that
effect. The language of the section would have been entirely different.
If that was the intention of the Legislature, it would have provided that
upon charges being framed, the registration of the registered medical
practitioner would stand suspended.
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
Section 23(2) does
Medical Council must suspend the registration.
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
To the contrary section 23(2) only provides that upon receiving
29.
would forthwith suspend the registration.
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
30.
without anything more.
This view is, in fact, supported by sub-section (1) of section 23.
Before construing sub-section (1), it is necessary to note that under
sub-section (2), the suspension is to continue from the date of framing
of the charges till the case is disposed of. There is no guarantee as to
when the case will be disposed of. Under sub-section (1) the persons
contemplated therein who contravene any of the provisions of the Act
or Rules shall be punishable with imprisonment for a period which
may extend to three years and with fine which may extend to
Rs.10,000/- and on any subsequent conviction with imprisonment
which may extend to five years and with fine which may extend to
Rs.50,000/-. There is no minimum term of imprisonment. This is
to” in respect of the first offence and any subsequent conviction.
clear from the words “with imprisonment for a term which may extend
There can be various offences under the Act with varying
degrees of seriousness.
For instance, the carrying out of a test
prohibited under the Act with a view to determine the sex of the foetus
would be a serious offence. On the other hand, the Rules provide for
various things to be done, including in respect of the paper work. If,
for instance, through inadvertence and with no mala fide intention
some paper work remains to be done and such a lapse has no adverse
consequence, the offence would not be serious. This is especially so
when the person covered by section 23, though technically responsible
for maintaining the records was, not responsible, for the lapse having
entrusted it to another. It may still be an offence under the Act or the
Rules. In such a case, however, the concerned person would in all
probability not be visited with a drastic sentence. The Legislature
could never have intended suspending the registration of such a person
for an inordinately long period of time – indeed an indeterminate
period of time viz. from the framing of the charge till the case is
31.
whatsoever of having his case even considered.
disposed of and that too by depriving him of any opportunity
Although the respondents did not raise the issue, it did occur to
us that considering the mischief sought to be suppressed by the Act, a
serious offender may, by being afforded an opportunity of being heard,
manage to avoid the consequences of the law till the State Medical
32.
however, unfounded.
Council concludes the hearing. Our apprehension in this regard is,
There is a distinction between suspensions which are made as
holding operations and suspensions by way of punishment. Although
the said Act does not expressly provide for interim suspension, the
State Medical Council would always have the power in appropriate
cases or grave urgency to suspend the registration as a holding action
and afford the registered medical practitioner a post-decisional
hearing. Such an order pending the enquiry would not be a penalty or
punishment. It would be open thereafter for the Council, after the
enquiry is conducted, to suspend the registration for such period of
time as may be warranted by the facts of a particular case. The period
Such an order, after hearing the medical officer finally,
offence.
of suspension naturally would depend upon the nature of the alleged
would be by way of penalty.
33.
In Anand Rathi & Ors. v. SEBI & Anr. (2002) 1 LJSOFT 82 = 1
Vazifdar, J.) was a party, held :-
Mah.L.J. 522, a Division Bench of this Court, to which one of us (S.J.
““28. In the instance case the impugned order has been
passed not by way of punishment or penalty but only by
way of an interim measure, pending enquiry into the
manipulations. There is a well settled distinction in law
between the suspensions which are made as holding
operation pending enquiry and suspensions by way of
punishment. As observed by Lord Denning in Lewis v.
Heffer (supra), (cited with approval by the Supreme
Court in Liberty Oil Mills) there is a distinction between
the suspensions which are inflicted by way of
punishment, as for instance, when a member of the Bar
is suspended for six months or when a Solicitor is
suspended from practice. He said (All E. R. page 364
para 13):
"But they do not apply to suspensions which are
made, as a holding operation, pending enquiries.
Very often irregularities are disclosed in a gov-
ernment department or in a business house: and a
man may be suspended on full pay pending en-
quiries. Suspicion may rest on him; and so he is
suspended until he is cleared of it. No one, so far
as I know, has ever questioned such a suspension
on the ground that it could not be done unless he
is given notice of the charge and an opportunity
of defending himself and so forth. The suspension
in such a case is merely done by way of good ad-
ministration. A situation has arisen in which
something must be done at once. The work of the
department or the office is being affected by ru-
mours and suspicions. The others will not trust
the man. In order to get back to proper work, the
man is suspended . At that stage the rules of natu-
ral justice do not apply. See Furnell v. Whangarei
High Schools Board."
In Liberty Oil Mill's case (supra), the Supreme
Court observed (SCC page 486 para 15):
ig
"We do not think that it is permissible to interpret
any statutory instrument so as to exclude natural
justice, unless the language of the instrument
leaves no option to the Court. Procedural fairness
embodying natural justice is to be implied when-
ever action is taken affecting the rights of parties.
It may be that the opportunity to be heard may not
be pre decisional: it may necessarily have to be
post decisional where the danger to be averted or
the act to be prevented is imminent or where the
action to be taken can brook no delay. If an area
is devastated by flood, one cannot wait to issue
show cause notices for requisitioning vehicles to
evacuate population. If there is an outbreak of an
epidemic, we presume one does not have to issue
show cause notices to requisition beds in hospital,
public or private. In such situation, it may be
enough to issue post decisional notices providing
for an opportunity. It may not even be necessary
in some situations to issue such notices, but it
would be sufficient but obligatory to consider any
representation that may be made by the aggrieved
person and that would satisfy the requirement of
procedural fairness and natural justice. There can
be no tape measure of the extent of natural jus-
tice. It may and indeed it must vary from statute to
statute, situation to situation and case to case.
Again. it is necessary to say that pre-decisional
natural justice is not usually contemplated when
the decisions taken are of an interim nature pend-
ing investigation or enquiry. Ad interim orders
may always be made ex parte and such orders
may themselves provide for an opportunity to the
aggrieved party to be heard at a later stage. Even
if the interim orders do not make provision for
such an opportunity, an aggrieved party has. nev-
ertheless. always the right to make an appropriate
representation seeking a review of the order and
asking the authority to rescind or modify the or-
der. The principles of natural justice would be sat-
isfied if the aggrieved party is given an opportuni-
ty at his request. There is no violation of princi-
ples of natural justice if an ex parte ad interim or-
der is made unless of course. the statute itself pro-
vides for a hearing before the order is made as in
clause 8A.
Natural justice will be violated if the authority re-
fuses to consider the request of the aggrieved par-
ty for an opportunity to make his representation
against the ex parte ad interim order." (Emphasis
supplied)
..................
31. It is thus clearly seen that pre decisional natural
justice is not always necessary when ad interim orders
are made pending investigation or enquiry, unless so
provided by the statute and rules of natural justice would
be satisfied if the affected party is given post decisional
hearing. It is not that natural justice is not attracted
when the orders of suspension or like orders of interim
nature are made. The distinction is that it is not always
necessary to grant prior opportunity of hearing when ad
interim orders are made and principles of natural justice
will be satisfied if post decisional hearing is given if de-
manded. In this regard the following observations of
Chinnappa Reddy, J. in Liberty Oil Mill's case are perti-
nent (SCC page 490 para 20):
"We have referred to these four cases only to illus-
trate how ex parte interim orders may be made
pending a final adjudication. We however, take
care to say that we do not mean to suggest that
natural justice is not attracted when orders of
suspension or like orders of an interim nature are
made. Some orders of that nature, intended to pre-
vent further mischief of one kind, may themselves
be productive of greater mischief of another kind.
An interim order of stay or suspension which has
the effect of preventing a person, however tempo-
rarily say, from pursuing his profession or line of
business, may have substantial serious and even
disastrous consequences to him and may expose
him to grave risk and hazard. Therefore, we say
that there must be observed some modicum of
residual, core natural justice sufficient to enable
the affected person to make an adequate represen-
tation (These considerations may not, however,
apply to cases of liquor licensing which involve
the grant of a privilege and are not a matter of
right: See Chingleput Bottlers v. Majestic Bottling
Company). That may be and in some cases it can
only be after an initial ex parte interim order is
made."
..................
33. We may add that if interim action, which is of a
drastic nature is to be taken ex parte, it must necessarily
be animated by sense of urgency and to quote the words
of Chinnappa Reddy, J. (SCC pg. 492, 493 paras 23,
24). "The sense of urgency may be infused by a host of
circumstances such as trafficking and unscrupulous
puddling in licences, large scale misuse of imported
goods, attempts to monopolise or corner the market,
whole sale prevalence of improper practices among
classes of importers, public sentiment etc. etc Public
interest must nolens volens be the paramount
consideration.”
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
35.
cases where the matter cannot be delayed at all.
In this manner, public interest, the implementation of this
provision of the Act and the interest of registered medical practitioners
are adequately and fairly protected.
We are, with respect, therefore, unable to agree with the
36.
judgment in Dr. Pradipchandra Mohanlal Gandhi & Anr. v.
Maharashtra Medical Council & Anr.
37.
In the case of the petitioners, for instance, the Medical Council
would be entitled to form an opinion not merely on the basis of the
record before us, but on the basis of any other material on the question
whether the petitioner's registration ought to be suspended either as a
holding operation or otherwise. Our observations are only based on
the record that is before us. We have recorded only prima facie
observations. The Medical Council would be entitled to construe even
the record before us on its own. They are experts who would be able
to appreciate the evidence in its correct perspective and come to an
informed decision as regards the petitioner's involvement or the
and the Rules.
Indeed, nothing prevents the Maharashtra Medical Council from
38.
absence thereof in the alleged violations of the provisions of the Act
proceeding against a registered medical practitioner under section 22
of the Maharashtra Medical Council Act, 1965 (MMC Act) even
where a criminal case is pending against him.
Section 2(b), 2(c), and section 22(1) thereof read as under :-
“2. In this Act, unless the context otherwise requires.-
..........
(b)
“council” means the Maharashtra Medical
Council constituted or deemed to be constituted under
section 3 ;
(c)
“Executive Committee” means the Executive
Committee of the Council constituted under section 11 ;
..........
22. (1) If a registered practitioner has been, after due
inquiry held by the Council (or by the Executive
Committee) in the prescribed manner, found guilty of
any misconduct by the Council, the Council may -
(a)
issue a letter of warning to such practitioner, or
(b)
direct the name of such practitioner -
(i)
to be removed from the register for such
period as may be specified in the direction, or
(ii)
to be removed from the register
permanently.
Explanation.- For the purposes of this section,
“misconduct” shall mean-
ig
(i)
the conviction of a registered practitioner by a
criminal court for an offence which involves moral
turpitude, and which is cognizable within the meaning of
the Code of Criminal Procedure, 1973 ; or
(ii)
the conviction under the Army Act, 1950, of a
registered practitioner subject to military law for an
offence which is cognizable within the meaning of the
Code of Criminal Procedure, 1973 ; or
39.
(iii) any conduct which, in the opinion of the Council,
is infamous in relation to the medical profession
particularly under any Code of Ethics prescribed by the
Council or by the Medical Council of India constituted
under the Indian Medical Council Act, 1956, in this
behalf.”
It is well established that the nature of the proceedings and the
level of proof in a criminal case and in an enquiry of the nature
contemplated by section 22 of the MMC Act are different. In certain
circumstances, even if a registered medical practitioner is acquitted in
the criminal proceeding, that by itself would not prevent the
Maharashtra Medical Council from taking action against him under
the MMC Act.
40.
It is a moot point whether the powers and jurisdiction of the
Council or the Executive Committee to suspend a registration as a
holding operation only pending an enquiry can also be traced to
section 23(2) of the Act. We, however, do not express any view on
this issue as in this case, in any event, the power to do so lies in
section 23(2) of the said Act.
41.
In the circumstances, Rule is made absolute by quashing the
suspension order. Respondent No.1, however, is directed to forthwith
initiate proceedings to consider whether the registration of the
petitioners under the said Act ought to be suspended and if so, for
what period of time. Further, the respondent No.1 shall be entitled to
issue such directions and orders to the petitioners in respect of the
working of the said J.P. Hospital in order to ensure that there are no
violations of the provisions of the said Act and/or the said Rules.
There shall be no order as to costs.
S.J. VAZIFDAR, J.
ig
M.S. SONAK, J.
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