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2013 Supreme(Bom) 2649
IN THE HIGH COURT OF BOMBAY
Abhay Shreeniwas Oka, S.C. Gupte, JJ.
Uttamkumar Balwant Sardesai - Appellant
Vs.
Union of India and Ors. - Respondents
Writ Petition No. 4562 of 2013
Decided On: 04.12.2013
Advocate Appeared:
For the Appellant: S.R. Ganbavale
For the Respondents: Y.S. Bhate
The main legal point established in the judgment is that the suspension of a medical practitioner's registration under section 23(2) of the Pre-natal Diagnostic Techniques Act must be based on immediate public interest or grave urgency, and the Medical Council must consider the principles enunciated by the court in previous judgments before issuing a suspension order.
Headnote:
Medical Council - Suspension of Registration - Bombay Nursing Homes Registration Act, 1949, Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Seduction) Act, 1949, Indian Penal Code, 1860 - Sections 3, 4, 5(3), 3(1), 3(2), 3(3), 3-B, 18, 23, 25, 341 - Summary of Acts and Sections: The court discussed the legality of the suspension of a registered medical practitioner's registration by the Medical Council under section 23(2) of the Pre-natal Diagnostic Techniques Act. It referred to the provisions of the Bombay Nursing Homes Registration Act, 1949, the Pre-conception and Prenatal Diagnostic Techniques Act, 1949, and the Indian Penal Code, 1860, particularly focusing on sections 3, 4, 5(3), 3(1), 3(2), 3(3), 3-B, 18, 23, 25, and 341. The court analyzed the interpretation of section 23(2) and its implications on the suspension of a medical practitioner's registration, considering previous judgments and legal principles.
Fact of the Case:
A registered medical practitioner challenged his suspension from the Register of Medical Practitioners maintained by the Maharashtra Medical Council. The suspension was based on a criminal complaint filed against the petitioner and three other accused for offenses under the Bombay Nursing Homes Registration Act, 1949, the Pre-conception and Prenatal Diagnostic Techniques Act, 1949, and the Indian Penal Code, 1860. The Medical Council suspended the petitioner's registration for five years, prompting the petitioner to file a petition challenging the suspension order.
Finding of the Court:
The court found that the Medical Council's suspension order could not be sustained as a measure of punishment under section 23(2) of the Pre-natal Diagnostic Techniques Act. It concluded that the suspension order did not indicate any grave urgency or immediate public interest that warranted the suspension. The court reserved liberty to the Medical Council to initiate proceedings under the Maharashtra Medical Council Act to consider whether the registration of the petitioner ought to be suspended, emphasizing that no adjudication on the merits of the allegations against the petitioner was made.
Issues: The issues involved the legality of the suspension of the petitioner's registration by the Medical Council, the vires of section 23(2) of the Pre-natal Diagnostic Techniques Act, and the compliance with the relevant acts and sections in the criminal complaint filed against the petitioner and other accused.
Ratio Decidendi: The court's decision was based on the interpretation of section 23(2) of the Pre-natal Diagnostic Techniques Act, the legal principles established in previous judgments, and the lack of immediate public interest or grave urgency to warrant the suspension of the petitioner's registration.
Final Decision: The court set aside the present order of suspension and reserved liberty to the Medical Council to initiate proceedings under the Maharashtra Medical Council Act to consider whether the registration of the petitioner ought to be suspended. It emphasized that no adjudication on the merits of the allegations against the petitioner was made.
S.C. Gupte, J.
1. Rule, Rule made returnable forthwith. By consent of Counsel for all parties the petition is taken up for hearing. The petitioner, who is a registered medical practitioner, challenges his suspension from the Register of Medical Practitioners maintained by the Maharashtra Medical Council, under Article 226 of the Constitution of India.
2. On 11 March 2011, a criminal complaint was filed against the petitioner and three other accused for offences punishable under sections 3, 4 and 5(3) of the Bombay Nursing Homes Registration Act, 1949 ("the Nursing Homes Act"), sections 3(1), 3(2),3(3), 3-B, 18, 23 and 25 of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Seduction) Act, 1949 ("the Prenatal Diagnostic Techniques Act") read with section 341 of the Indian Penal Code, 1860 with the learned J.M.F.C., Kagal. It was the case of the Complainant (Medical Superintendent Rural Hospital, Kagal) inter alia that sonography machines were used in the hospital/clinic run by the petitioner and other accused; that the equipments were used/capable of being used for prenatal diagnostic techniques; that the hospital/clinic had no registration either under the Nursing Homes Act or the Pre-natal Diagnostic Techniques Act; and that there was non-compliance with the Pre-natal Diagnostic Techniques Act and Rules framed thereunder. The petitioner filed an application under section 245 of the Code of Criminal Procedure, 1972 for discharge in the Criminal Case. The application was rejected by the learned J.M.F.C. and charges were thereupon framed against the petitioner and other accused. It appears that after framing of the charges respondent No. 4 - State Family Bureau filed a complaint with respondent No. 3 - Maharashtra Medical Council under the provisions of section 23(2) of the Pre-natal Diagnostic Techniques Act read with section 22(1)(b)(i) of the Maharashtra Medical Council Act, 1965 for suspension of the petitioner's registration. On the apprehension that the Medical Council was likely to impose the penalty of suspension on the petitioner after an inquiry, which according to the petitioner was illegal, the petitioner filed the present petition. Apart from the legality of the complaint and the inquiry, the petitioner also challenged the vires of section 23(2) of the Pre-natal Diagnostic Techniques Act. During the pendancy of the petition, the petitioner was suspended by the Medical Council on the complaint for five years. The petitioner, thereupon, amended the petition to include a challenge to the suspension order.
3. At the hearing of the petition, the learned Advocate for the petitioner did not press prayer (B), which is the challenge to the vires of section 23(2) of the Pre-natal Diagnostic Techniques Act. The learned Advocate confined his challenge to the communication dated 25 April 2013, by which the Medical Council suspended the petitioner's registration for five years. It is submitted by the learned Advocate for the petitioner that the Medical Council has not independently applied its mind to the issue of suspension of the petitioner and mechanically suspended the petitioner's registration after report was made to it under section 23(2). The learned Advocate relied on the judgment of this Court in the case of (Dr. Ramineni Venugopal Somaiah & ors. v. Maharashtra Medical Council & ors.), Writ Petition 1176-2013, dated 23.8.2013 reported in 2015(2) Bom.C.R. 147.
4. The learned Advocate for respondent No. 3 - Medical Council submitted that having regard to the decision of this Court in Dr. Somaiah's case (supra), the Medical Council was prepared to hold an inquiry for suspension of the petitioner's registration and in the meantime, treat the present suspension order as a holding action.
5. The impugned action of the Medical Council is under section 23(2) of the Prenatal Diagnostic Techniques Act. The section reads as under:--
"(2) The name of the registered medical practitioner shall be reported by
