pending enquiry or prosecution is a drastic action and takes away
the fundamental right to practise the profession, as guaranteed
under Article 19(1)(g) of the Constitution of India. Such an
action can be taken only to enforce reasonable restrictions
imposed by making a law in the general public interest in terms
of Clause (6) of Article 19(1)(g) of the Constitution of India. The
exercise of power under Section 10 or 22 of the said Act is guided
by the circumstances pointed out by the judgment of the Division
Bench in the case of Ramineni, cited supra. The action can be
taken in cases of grave urgency and in appropriate cases, even
without affording an opportunity of being heard in the matter and
the validity of action can be judged in a postdecisional
hearing.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.320 of 2014
Dr. Sadanand Madhukar Ingle,
Vs
Maharashtra medical council Mumbai
Coram : R.K. Deshpande, J.
Dated : 19 th March, 2014
Citation; 2014(4) MHLJ 360 Bom,2014(4)ABR751,
1. Rule, made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
2. The challenge in this petition is to the order
dated 26122013
passed by the Maharashtra Medical Council,
Mumbai (for short, “the said Council”), in exercise of its power
conferred by Section 22 of the Maharashtra Medical Council Act,
1965 (for short, “the said Act”), suspending the registration of the
petitioner as a medical practitioner. The order suspending the
registration, is reproduced below :
“To,
Dr. Sadanand Madhukar Ingle,
Ingle Hospital Nandura Road,
Sant Tukaram Nagar,
Khamgaon444
303.
Sub.: SUSPENSION OF REGISTRATION NO.56463
Ref.No. RCC Case No.119/2011 & 02/2012 under
PCPNDT Act.
On behalf of the Maharashtra Medical Council, the
Registrar, upon receiving the copy of the Criminal
Complaints no.119/2011 and 02/2012 filed by the
Appropriate Authority under PCPNDT Act before
Hon'ble JMFC, Khamgaon, for violating various
provisions of PCPNDT Act as amended up to date.
Upon perusal by the Executive Committee of the
Maharashtra Medical Council on 04.12.2013, it is noted
that the Criminal complaint No.119/2011 and 02/2012
filed against you by the Appropriate Authority under
PCPNDT Act, before the Hon'ble JMFC, Khamgaon for
gross violation of various provisions of PCPNDT Act.
Therefore you have been show caused by Council on
13.12.2012, 27.12.2012 and considering your reply
dt. 26.12.2012 & 08.01.2013 and moreover considering
your submission made before the Council on
04.12.2013, the Council unanimously decided &
resolved that, there are sufficient materials/allegations
against you to suspend your Registration pending the
inquiry under sec.22 of MMC Act, thereby you are hold
on suspension from the practice on considering public
interest and by allowing you in medical practice lead to
further violation of PCPNDT Act, as amended up to date
till the inquiry is completed by the Council.
Thus your Registration No.56463 with the
Maharashtra Medical Council is hereby suspended
with immediate effect as holding order pending inquiry
before the Council. Therefore you are refrained from
Medical practice and/or profession of any nature
during the period of suspension. If you do any kind of
medical practice during the suspension period further
suitable action will be taken against you as per law.
The charges follows.
The necessary endorsement as to the above has been
made to the record of the Register of the Registration of
the medical professionals, which please be noted.
Registrar
Maharashtra Medical Council”
Bare reading of the order shows that the said Council has
received Criminal Complaints Nos.119 of 2011 and 02 of 2012
filed by the Appropriate Authority under the Preconception
and
Prenatal
Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 (for short, “the PCPNDT Act”) against the petitioner
before the Judicial Magistrate First Class, Khamgaon, for
violating various provisions contained therein, as amended from
time to time. The show cause notices were issued to the
petitioner on 13122012
and 27122012.
After considering the
replies dated 26122012
and 812013
given by the petitioner, it
has been unanimously decided by the said Council to suspend the
registration of practice pending enquiry under Section 22 of the
Maharashtra Medical Council Act, on considering public interest
and forming an opinion that the continuation of medical practice
by the petitioner would lead to further violation of the PCPNDT
Act, as amended from time to time, pending enquiry
contemplated by the Council. The petitioner is refrained from
medical practice and/or profession of any nature during the
period of suspension, else further suitable action will be taken
against him as per the law. From the order itself, it is apparent
that no charges have been framed against the petitioner for any
act of misconduct.
3. The question, which falls for consideration is, whether
there is a power of suspend the registration of a medical
practitioner, pending criminal prosecution or an enquiry into the
acts of misconduct? The provision of Section 22 of the
Maharashtra Medical Council Act fell for consideration of the
Division Bench of this Court in the case of Ramineni Venugopal
Somaiah and another v. Maharashtra Medical Council, Mumbai,
reported in 2013 (6) Mh.L.J. 42. It was a case where an order
passed by the Maharashtra Medical Council suspending
registrations of the medical practitioners for a period of five years
till the final decision of a criminal case on charges framed against
them for contravention of the provisions of PCPNDT Act and the
Rules framed thereunder, was sought to be set aside. The
Division of this Court considered the provision of Section 23(2)
of PCPNDT Act, which runs as under :
“23. Offences and penalties....
(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.”
The Division Bench has held that the consequences of suspension
of registration of a medical practitioner are expressly drastic and
Section 23(2) does not exclude the principles of natural justice
either expressly or by necessary intendment. It has been held that
Section 23(2) does not require the State Medical Council to
suspend the registration of a medical practitioner, but only to take
necessary action for suspension, otherwise the Legislature would
have provided for such action to be taken forthwith by the State
Medical Council. It has been held that the said provision merely
enables the Authority to initiate the process for considering the
suspension and not to suspend the registration without anything
more. The Court has further taken a note of the fact that there is
no guarantee as to when the pending cases will be disposed of,
and to continue the suspension pending such cases from the date
of framing of the charges would visit with the drastic
consequences, which the Legislature never intended.
4. Paragraphs 32 and 34 of the said judgment being
relevant, is reproduced below :
“32. 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 holding action and afford the registered
medical practitioner a postdecisional
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 of
suspension naturally would depend upon the nature of
the alleged offence. Such an order, after hearing the
medical officer finally, would be by way of penalty.”
“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 suspension. The
exercise of such power would only be in cases where the
matter cannot be delayed at all.”
The Division Bench of this Court has made a distinction between
“suspensions which are made as holding operations” and
“suspensions by way of punishment”. The Division Bench has
held that though the said Act does not expressly provide for
interim suspension, the State Medical Council would always have
the power – (i) in appropriate cases, or (ii) in cases of grave
urgency a power to suspend the registration as holding action and
afford the registered medical practitioner a postdecisional
hearing. It has been held that such an order pending enquiry
would not be a penalty or punishment and it would be open 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 particular case. It has also been held that the power of
suspension naturally would depend upon the nature of the alleged
offence. Such an order, after hearing the medical officer finally,
would be by way of penalty.
5. Section 10 of the Maharashtra Medical Council Act deals
with the powers, duties and functions of the Council, and it is
reproduced below :
“10. Subject to such conditions as may be prescribed
by or under the provisions of this Act, the powers, duties
and functions of the Council shall be(
a) to maintain the register, and to provide for the
registration of medical practitioners;
(b) to hear and decide appeals from any decision of
the Register;
(c) to prescribe a code of ethics for regulating the
professional conduct of practitioners;
(d) to reprimand a practitioner, or to suspend or
remove him from the register, or to take such other
disciplinary action against him as may, in the opinion of
the Council, be necessary or expedient;
(e) to exercise such other powers, perform such
other duties and discharge such other functions, as are
laid down in this Act, or as may be prescribed.”
Clause (d) under Section 10 cannot be construed in a restricted
manner and it includes as well, the power to suspend registration
of a medical practitioner, pending criminal prosecution or an
enquiry in respect of any act of misconduct on the part of such
medical practitioner. Thus, the power to suspend its referrable to
Section 10 of the said Act.
6. The suspension of registration of a medical practitioner
pending enquiry or prosecution is a drastic action and takes away
the fundamental right to practise the profession, as guaranteed
under Article 19(1)(g) of the Constitution of India. Such an
action can be taken only to enforce reasonable restrictions
imposed by making a law in the general public interest in terms
of Clause (6) of Article 19(1)(g) of the Constitution of India. The
exercise of power under Section 10 or 22 of the said Act is guided
by the circumstances pointed out by the judgment of the Division
Bench in the case of Ramineni, cited supra. The action can be
taken in cases of grave urgency and in appropriate cases, even
without affording an opportunity of being heard in the matter and
the validity of action can be judged in a postdecisional
hearing.
The cases of grave urgency would be those where the
continuation of a medical practitioner on the register for any
length of time is considered to be dangerous or detrimental to
public interest, health and welfare, and the danger or detriment
found to be imminent, is required to be averted by taking such
action of suspending the registration, as the said Council deems
fit and proper.
7. The petitioner and his wife both are practising
Gynaecologists and they are running a sonography centre in their
hospital. Bare perusal of the order impugned shows that Criminal
Complaints Nos.119 of 2011 and 02 of 2012 are pending against
the petitioner under the provisions of PCPNDT Act in the Court
of Judicial Magistrate First Class, Khamgaon, for gross violation
of various provisions therein. In the reply filed by the
respondents, the stand is taken that a decoy was sent to the
petitioner to test his credentials. The petitioner conducted a
sonography of the said decoy and it is alleged that he is found
guilty of sex determination practice. The Appropriate Authority,
therefore, filed Criminal Case No.7 of 2013 against the petitioner,
which is pending in the Court of Judicial Magistrate First Class,
Khamgaon. It is the further stand taken by the respondents that in
the meeting held on 17122013,
it was resolved as under :
“As per the Records available forwarded by the Nodal
Agency, Government of Maharashtra, there is prima
facie multiple cases of breach of ethics, and is
dangerous to public perception. Therefore it will be
prudent to hold in suspension the licence/Registration
with the Council of Dr. Sadanand Madhukar Ingle till
the inquiry is complete,preferably within six months.
The action is purely in public interest. The Registrar is
directed to comply as above and frame the charges
accordingly.”
8. My attention is also invited to Clause 7.6. of the Indian
Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002, which is reproduced below :
“Sex Determination Tests. On
no account sex
determination test shall be undertaken with the intent to
terminate the life of a female foetus developing in her
mother's womb, unless there are other absolute
indications for termination of pregnancy as specified in
the Medical Termination of Pregnancy Act, 1971. Any
act of termination of pregnancy of normal female foetus
amounting to female foeticide shall be regarded as
professional misconduct on the part of the physician
leading to penal erasure besides rendering him liable to
criminal proceedings as per the provisions of this Act.”
It is urged that the enquiry is being conducted against the
petitioner for the breach of the aforesaid clause.
9. The action was taken by the Competent Authority to seal
the sonography machine installed in the hospital of the petitioner.
That has been set aside by the Division Bench (M/s B.P.
Dharmadhikari and S.B. Shukre, JJ.) of this Court on 2162013
in Writ Petition No.683 of 2013. Criminal Complaints Nos.119
of 2011 and 02 of 2012 were filed against the petitioner by one
Dr. Suresh Kashiram Sirsat under Sections 23, 24, 26 and 29 of
PCPNDT Act, and those have been stayed by an order dated
1872013
passed by the learned Single Judge
(Shri P.D. Kode, J.) of this Court. The show cause notices were
issued to the petitioner on 13122012
and 27122012
in respect
of the acts of misconduct alleged against him, to which the
petitioner had filed his replies on 26122012
and 812013.
The
impugned action has been taken on 26122013.
The learned
counsel for the respondents submits that an enquiry in respect of
the misconduct alleged against the petitioner shall be completed
within one month. In view of this, it was not a case where the
respondents could not wait even for a month or two.
10. Merely quoting the words of 'public interest' is not
enough, but the formation of opinion has to be based upon the
objective assessment of the material relevant to the action taken.
It is not the charge against the petitioner that the sex
determination test was undertaken by the petitioner with an intent
to terminate the life of a female foetus developing in the mother's
womb or has actually terminated the pregnancy. It is not the
opinion formed as per the resolution reproduced above, that to
permit the petitioner to practice a medical profession as
Gynaecologist is in any manner considered to be dangerous or
detrimental to public health, safety and welfare and it is to avert
such danger or detriment that an action impugned has been taken.
The fundamental rights cannot be taken away merely because it is
prudent to do so. It is also not the case that the continuation of
medical practice by the petitioner is likely to hamper the
investigation in progress. In view of this, the action impugned
cannot be sustained.
11. In the result, the petition is allowed. The order
dated 26122013
passed by the respondents, is hereby quashed
and set aside. The respondents are at liberty to continue and
complete the enquiry as early as possible.
12. Rule is made absolute in above terms. No order as to
costs.
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