Such letter of warning is to be issued to a practitioner after
holding due inquiry and on finding him guilty of any misconduct. The
expression “misconduct” has been explained in Section 22 (1) of the
Act of 1965 to mean 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. Under Rule 62 of Rules of 1967 the Council can hold an inquiry
as regards the misconduct for the purposes of Section 22 of the Act of
1965.
13.
In the present case, admittedly, no inquiry has been held
against the petitioner as contemplated by Chapter VI of the Rules of
1967. In fact, the petitioner has not yet been found guilty of any
misconduct contemplated by the explanation to Section 22 (1) of the
Act of 1965. Merely a charge has been framed in the criminal
proceedings initiated under Section 23 (2) of the Act of 1994. The stage
of issuing a letter of warning would come into play only if the
petitioner is found guilty of any misconduct after holding an inquiry in
the manner prescribed. The petitioner not having been convicted for an
offence involving moral turpitude and there being no inquiry held as
contemplated by Section 22 (1) of the Act of 1965 in the manner
prescribed, it is clear that the first part of the impugned communication
issuing warning to the petitioner is not in accordance with law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Dr Megha Mahendra Topale
CIVIL WRIT PETITION No. 11731 of 2013.
Vs
Navi Mumbai Municipal Corporation & ors
CORAM :A.S. OKA & A.S.CHANDURKAR,JJ
PRONOUNCED ON:28th July,2014.
Citation;2014(5) MHLJ 323
Rule. Rule made returnable forthwith. Heard finally with
1.
the consent of learned Counsel for the parties.
2.
The challenge in this writ petition is to the communication
dated 25th April, 2013 issued by the Maharashtra Medical Council,
Mumbai – respondent No.2 whereby it has issued a letter of warning to
the petitioner and has further directed her to refrain from using ultra
sound / sonography equipment in practice of any type. By order dated
5th February, 2014 the parties were put to notice that an endeavour
would be made to decide the writ petition finally at the stage of
admission.
The petitioner is a radiologist running a diagnostic centre.
3.
She holds a licence for undertaking pre-natal diagnostic procedure. On
24th June,2011 the appropriate authority under the Navi Mumbai
Municipal Corporation – Respondent No.1 during visit to the
petitioner's centre noticed certain discrepancies / irregularities. Certain
records were seized and thereafter on 8th November,2011 a complaint
was filed under provisions of Sections 23 and 25 of the Pre-conception
and Pre-natal Diagnostic Techniques ( Prohibition of Sex Selection )
Act, 1994 ( hereinafter referred to as the “the Act of 1994” for short). In
aforesaid criminal proceedings, charge was framed against the
petitioner on 7th November, 2012 as regards the contravention of
provisions of Section 3 (A) and Section 5 of the Act of 1994. In view of
aforesaid charge being framed, the respondent No.1 in terms of
provisions of Section 23 (2) of the Act of 1994 informed the State
Family Planning Office. The said office on 10 th January,2013 brought
the aforesaid fact to the notice of the respondent No.2. Thereafter, on 8th
February,2013 the Respondent No.2 through its Registrar issued a show
cause notice to the petitioner as to why action under provisions of the
Act of 1994 and the Maharashtra Medical Council Act, 1965
( hereinafter referred to as “the Act of 1965” for short) should not be
taken. The petitioner submitted her reply on 13th March, 2013. The
matter was thereafter considered by the Executive Council of the
Respondent No.2 and on 25th April, 2013 the Registrar of the
respondent No.2 issued a letter of warning to the petitioner. It was
further stated in the aforesaid communication that the petitioner should
refrain from using ultra sound / sonography practice of any type and
endorsement as regards the said action was made in the register of
registration. It is this communication issued by respondent No.2 that is
the subject matter of challenge in the present writ petition.
Shri S.K. Shinde with Shri Makarand Panchakshari
4.
appearing for the petitioner has submitted that the communication dated
25th April, 2013 has been issued to the petitioner without following the
due process of law. It was submitted that the letter of warning was
issued to the petitioner without observing the principles of natural
justice. It was further submitted that by directing the petitioner to
refrain from using the ultra sound / sonography machine she was being
prevented from carrying out her profession despite being a registered
medical practitioner. Such a direction had grave consequences and
there was no provision whatsoever either in the Act of 1994 or in the
Act of 1965 to issue such directions. It was further submitted that the
impugned communication had been issued without holding any inquiry
whatsoever. Reliance was placed upon the decision of the Division
Bench of this Court in the case of Dr Ramineni Venugopal Somaiah &
Anr Vs. Maharashtra Medical Council & Anr, 2013 (6) Mh.LJ 42.
Similarly,
reliance was also placed on the judgment dated 4 th
December, 2013 in Writ Petition No. 4562 of 2013 – Dr Uttam Kumar
Shri Aniruddha A. Garge, the learned Counsel for
5.
Balwant Sardesai Vs. Union of India and others.
Respondent No.1 submitted that in terms of provision of Section 23 (2)
of the Act of 1994, the appropriate authority had reported the aspect of
framing of charge against the petitioner to the State Medical Council
and on that basis the aforesaid action had been taken. It was submitted
that in view of various discrepancies noted by the appropriate authority,
proceedings under the Act of 1994 had been rightly initiated.
Shri Rahul Nerlekar, Advocate appearing for Respondent
No.2 supported the impugned action taken against the petitioner. It was
submitted that such course of action was permissible in view of
provisions of Section 23 (2) of the Act of 1994. The learned Counsel
also relied upon various provisions of the Act of 1965 to support the
impugned action. It was submitted that considering the object of the
Act of 1994, a warning had been rightly issued to the petitioner.
Similarly, it was submitted that the petitioner had been rightly directed
to refrain from using ultra sound/sonography equipment. It was,
therefore, submitted that the petitioner was not entitled to any relief
whatsoever.
Before considering the challenge as raised, it would be
6.
necessary to refer to certain provisions of the Act of 1994 and the Act
of 1965. Under Section 2 (m) of the Act of 1994, the expression
“registered medical practitioner” has been defined to mean a medical
practitioner whose name is entered in a State Medical Register. Under
Section 23 (2) of the Act of 1994 if charges are framed by a Court of
law, the name of the registered medical practitioner concerned has to be
reported by the Appropriate Authority to the State Medical Council for
taking necessary action including suspension of registration. Section
23 (2) of the Act of 1994 reads thus :
Section 23 (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.”
Under Section 10 (d) of the Act of 1965 the Medical
Council has a power 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. Section 22 of the Act of 1965 contemplates removal of
names from the register. Section 22 (1) of the Act of 1965 in so far as
the same is relevant, reads thus:
“22. (1) If a registered practitioner has been, after due inquiry
held by the Council (or by 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.”
7.
Under Section 30 of the Act of 1965 a power has been
conferred to the State Government to make rules to carry out the
purposes of the said Act. In exercise of said power, the Maharashtra
Medical Council Rules, 1967 ( “the Rules of 1967” for short) have been
framed. Chapter VI prescribes the manner of holding inquiries for the
purposes of Section 22 of the Act of 1965 Rule 62 (1) of the Rules of
1967 reads thus :
“62. Complaints against registered practitioners :-
(1) The Council may sou-motu or on any complaint
made to it in that behalf hold an inquiry as respects
the misconduct of any registered practitioner for the
purposes of Section 22 of the Act”.
Rule 74 relates to decision of the Council and its
implementation. The same reads thus :
“74. Decision of Council and Implementation : -
As soon as the hearing of the case is over and the
registered practitioner has made his oral or written
statement, if any, the Council shall deliberate
thereon in private and at the conclusion of the
deliberation, the President shall pronounce its
decision immediately thereafter or at any time
thereafter in terms of clause (a) or (b) of sub-
section (1) of Section 22; and thereupon the
President shall direct the Registrar [to inform the
parties of the decision of the Council by a
registered Cellar and to implement the decision].”
8.
Under the scheme of the Act of 1994, in addition to certain
acts being punishable with imprisonment and fine, in case of charges
being framed by the Court the name of the registered medical
practitioner has to be reported by the Appropriate Authority to the
concerned Medical Council for taking necessary action including
suspension of registration. Under the Act of 1965 an inquiry has been
contemplated to be held by the Council under the prescribed manner
and after finding a registered practitioner guilty of any misconduct, the
Council can either issue a letter of warning or direct removal of the
name of such practitioner for a specified period or permanently. The
Rules of 1967 lay down the manner in which an inquiry contemplated
under Section 22 (1) is to be held.
Issuance of a letter of warning to a registered medical
9.
practitioner under Section 22 (1) (a) of the Act of 1994 is a drastic
action taken by the Council after finding such medical practitioner
guilty of misconduct after holding inquiry in the prescribed manner. It
has serious consequences in so far as the medical practitioner is
concerned. Hence, strict compliance of the procedure prescribed in that
regard will have to be ensured. As observed in Nazir Ahmed Vs. King
Emperor – AIR 1936 PC 253, where a power is given to do a certain
thing in a certain way, the thing must be done in that way or not at all.
10.
At this stage, it will be necessary to refer to the contents of
the letter of warning dated 25th April, 2013 which is the impugned
communication in the writ petition. Besides issuing warning and
directing the petitioner to maintain dignity of the medical profession
and to strictly abide by the provisions of Act of 1994 certain further
actions have also been taken. The said actions are as under:
“Further, we have also recommended to the District
Civil Surgeon/appropriate authority for holding up
of the registration of ultra sound/sonography
equipments of your Centre, till the said case is
finally decided by the appropriate Court and you are
therefore also refrained from using ultra sound /
sonography practice of any type.
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.”
Thus, besides issuing warning, the petitioner has been
directed to refrain from using ultra sound / sonography practice and
necessary endorsement has also been made in the register of
registration.
11.
The impugned communication is thus in three different
parts. By the first part a warning has been issued to the petitioner. By
the second part the petitioner has been directed to refrain from using
ultra sound / sonography practice and by the third part an endorsement
to said effect has been made in the register. The legality of each of the
In so far as issuance of letter of warning to a practitioner is
12.
three parts will have to be therefore examined.
concerned, the same is stipulated by Section 22 (1) (a) of the Act of
1965. Such letter of warning is to be issued to a practitioner after
holding due inquiry and on finding him guilty of any misconduct. The
expression “misconduct” has been explained in Section 22 (1) of the
Act of 1965 to mean 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. Under Rule 62 of Rules of 1967 the Council can hold an inquiry
as regards the misconduct for the purposes of Section 22 of the Act of
1965.
13.
In the present case, admittedly, no inquiry has been held
against the petitioner as contemplated by Chapter VI of the Rules of
1967. In fact, the petitioner has not yet been found guilty of any
misconduct contemplated by the explanation to Section 22 (1) of the
Act of 1965. Merely a charge has been framed in the criminal
proceedings initiated under Section 23 (2) of the Act of 1994. The stage
of issuing a letter of warning would come into play only if the
petitioner is found guilty of any misconduct after holding an inquiry in
the manner prescribed. The petitioner not having been convicted for an
offence involving moral turpitude and there being no inquiry held as
contemplated by Section 22 (1) of the Act of 1965 in the manner
prescribed, it is clear that the first part of the impugned communication
issuing warning to the petitioner is not in accordance with law.
14.
Now, coming to the second part of the impugned
communication whereby the petitioner has been refrained from
undertaking ultra sound / sonography practice is concerned, it is clear
that such direction has the effect of suspending the petitioner's
registration indirectly without actually suspending such registration. In
effect while the registration for the petitioner continues, the petitioner
has been directed not to conduct any ultra sound / sonography practice.
This fact is further clear as in the subsequent paragraph of the
impugned communication it has been stated that the Council would
have liberty to pass an appropriate order of suspension or removal of
the petitioner's name from the Register, if any, further irregularities and
complaints were reported against her. Thus, without suspending the
petitioner's registration she has been directed not to use any ultra sound
sonography machine or equipment.
15.
The nature of power to be exercised by the Medical Council
under Section 23 (2) of the Act of 1994 was considered by the Division
Bench in the case of Dr Ramineni Venugopal (supra). It was held that
though the Act of 1994 did not expressly provide for interim
suspension, the Medical Council in an appropriate case or in case of
grave urgency could suspend the registration as a holding order. In
paragraph 34 it was observed as under :
“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 cases where the matter cannot be
delayed at all.”
16.
The aforesaid decision has been referred to and followed in
the case of Dr Uttamkumar (supra) by another Division Bench of
which one of us (Shri A.S.Oka,J) was a party. It is, therefore, clear that
in case of grave urgency or in public interest, on the Medical Council
forming such opinion in that regard it could direct in public interest
immediate suspension of registration of a medical practitioner. In the
present case, the impugned communication does not record that the
Council had formed an opinion that the continuation of the name of the
petitioner in the register was detrimental to public interest or that it was
likely to lead to the violation of the provisions of the Act of 1994. In
fact, the registration of the petitioner has not at all been suspended.
However, without doing so the petitioner has been directed to refrain
from using ultra sound / sonography machine of any type. We have not
been shown any such power with the respondent No.2 to direct a
medical practitioner to refrain from undertaking ultra sound /
sonography practice without even temporarily suspending his/her
registration. In the absence of there being any such power with the
respondent No.2 it could not have directed the petitioner to refrain from
using the ultra sound / sonography machine without even temporarily
suspending her registration as being detrimental to public interest.
Hence, even the second part of the impugned communication is without
any authority of law.
17.
The third part of the impugned communication records that
necessary endorsement of the first two parts had been made in the
concerned register. However, in view of the fact that we have found the
first and second part of the impugned communication to be bad in law,
there would be no occasion whatsoever to make such endorsement in
the concerned register. As the warning issued to the petitioner and the
subsequent direction to refrain from undertaking ultra sound /
sonography practice have been found to be illegal, there is no question
of recording aforesaid endorsements in the concerned register.
18.
In view of the aforesaid, the
impugned communication
dated 25th April, 2013 cannot be sustained and the same is required to
be quashed. However, at the same time, it is clarified that it would be
open for the respondents to take appropriate action in accordance with
law against the petitioner in the background of the alleged incident that
has led to initiation of prosecution against the petitioner under the Act
of 1994. It is clarified that we have not gone into the sufficiency or
otherwise of the material before the respondent No.2 for taking
appropriate action against the petitioner. Hence, we pass the following
order :
(1)
ORDER.
Writ petition is allowed by quashing the
communication dated 25th April, 2013 issued by the
Respondent No.2.
(2)
Rule is made absolute on the aforesaid terms
with no order as to costs.
(A.S. CHANDURKAR,J)
(A.S. OKA,J)
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