Court No. - 10
Case :- WRIT - C No. - 17852 of 2018 Petitioner :- Dr. Rajeev Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ishwar Chandra Tyagi,Shri H.N. Singh Sr. Advocate Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri H.N. Singh, Senior Advocate assisted by Shri I. C. Tyagi, learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel for the State respondents.
By means of present writ petition, the petitioner is assailing the validity of order dated 28.04.2016 passed by District Magistrate/District Appropriate Authority, Agra as well as impugned order dated 26.02.2018 passed by the Appropriate State Authority, Family Welfare Directorate, U.P., Lucknow in Appeal no.57 of 2016. Further prayer has been made to command the respondents to permit the petitioner to run his Ultrasound Center and not to interfere to the same in any manner.
Petitioner is a qualifying Medical Practitioner/registered doctor with the Medical Council of Uttar Pradesh having qualification of MBBS, MD. He runs a hospital in the name and style "Priya Hospital and Trans Yamuna Colony, Kanpur Road, Agra" wherein, he owns ultrasound machines and providing ultrasound facilities. It appears that the petitioner is running Ultrasound Techniques Centre (Workshop Centre) following all conditions provided under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Selection) Act 1994 (in brevity 'Act 1994') and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Rules 1996 (in brevity 'Rules 1996') since 2006 and there had not been any complaint of violation of any of the aforesaid provision. It is alleged that the petitioner ensures submission of statutory returns and forms to the satisfaction of the registration authority. Record in question are maintained in accordance with the provisions of the Act and Rules and a public notice has been published by putting up a board in front of his clinic that there is restriction of diagnostic for sex selection by ultrasound machine, which amounts to an offence.
A show cause notice was issued against the petitioner by the District Magistrate/District Appropriate Authority under the Act 1994 on 02.04.2016 making allegations regarding violation of the provisions of the Act 1994 and Rules 1996 on the basis of an inspection. The said inspection is alleged to have been made on 26.03.2016 in the night at 10.30 pm. The said notice was issued on the basis of a written statement given by one Som Dutt s/o Ram Dutt on 26.03.2016 that in the Center, there is work of determination of sex, hence, it is violative of Section 6-A, 6-B and 6-C of the Act 1994. It has also been alleged in the show cause notice that at the time of inspection the employee of the petitioner namely Pankaj Rajauria and other staffs have failed to produce Form-F, which are required to be filled up before making ultrasound examination and as such, there is violation of Section 4(3) of the Act 1994 and Rule 9(4) and Rule 10(1) of the Rules 1996. Charge has also been levelled that they had failed to show the registration book of sonography and the same is also in violation of Rule 9(1) of Rules 1996. It had also been alleged in the said show cause notice that the record of referring doctor for ultrasound was not maintained, hence, the same is in violation of Section 29 (1) and (2) of the Act 1994 and amended copy of the Act 1994 and Rule 1996 were also not produced and the same is violation of Rule 17(2) of the Rule 1996, even the fee receipt of the patient as well as record of two years were not produced, hence, there is violation of Section 29 of the Act 1994.
In this backdrop, learned counsel for the petitioner submits that detailed response had been submitted by the petitioner indicating therein the report of engineer of Wipro GE, Health Care Pvt. Ltd dated 26.03.2016 to the effect that both the ultrasound machines were inspected by engineer on 26.03.2016 at 2.00 to 2.30 and 2.30 to 5.00 pm and it was found that the machines are not in working position and were also required proper repair. It is also alleged that the power of search and seizure is provided to the Appropriate Authority or an officer authorized by him under Section 30 of the Act 1994 and Rule 12 of the Rules 1996, which clearly provides that the Appropriate Authority or any officer authorized in this behalf may enter and search at all "reasonable time" to the Center but in the present matter admittedly the search and seizure was made in late night at 10.30 pm. In the aforesaid reply, it has also been mentioned that admittedly the petitioner was not present at the time of search and seizure as he was out of station and was in district Moradabad, the ultrasound machines were not in working position and only the assisting staff were present on the center and even though all records were in safe but the staff could not produce the record referred in the show cause notice.
Shri Singh also submits that the entire show cause notice is based upon the alleged statement of one Som Dutt in respect of allegation of determination of sex but admittedly at no point of time any material was found by the inspecting team at the time of inspection, which could establish that the determination of sex was being made from the petitioner's center and at no point of time, the alleged statement given by Som Dutt had ever been furnished to the petitioner and he was never examined by the Appropriate Authority. The entire record were meticulously being maintained by the Center and copy of the Form- F were always sent to the office of Chief Medical Officer every month as per the Rules, even the ultrasound register and its referral slip and other required documents of last two years are still available at the center of the petitioner and the same have been regularly sent to the Chief Medical Officer and must be available in the office of the Chief Medical Officer, Agra and the said documents can be verified by the Appropriate Authority as per their wish but in most arbitrary manner, the Appropriate Authority had passed the Impugned order by which the highest punishment of cancellation of registration was passed merely on the allegation that the documents were not provided to the inspecting team at the time of inspection. He had also placed reliance on Section 20(1) of the Act 1994 and submits that the Appropriate Authority may issue notice to "show cause why the registration should not be suspended or cancelled for the reason mentioned in the notice", whereas, admittedly in the present matter, the show cause merely mentions that "if the petitioner will not submit the reply within 7 days it will be presumed that he is nothing to say and thereafter appropriate action may be taken" and as such, it is stated that show cause notice is not maintainable under Section 20(1) of the Act 1994. It has also been submitted that once the notice is defective and it does not propose the punishment to be awarded to the petitioner, in such a situation, the petitioner was deprived of appropriate opportunity to defend himself and as such, the impugned order passed by the appropriate authority canceling the registration is arbitrary and denial of opportunity to petitioner depriving the petitioner from right to livelihood. He further made submission that in most arbitrary manner, the State Appropriate Authority had also proceeded to reject the appeal of the petitioner relying on the fact that during the pendency of the appeal, it is alleged that the fresh trap case/inspection was made on 14.09.2014 setting up imposter patient and it is alleged that in spite of cancellation of registration, determination of sex was going on and in this direction, a complaint was lodged in the Court of Judicial Magistrate, even though all such allegation had been denied by the petitioner on the ground that after passing the order impugned at no point of time any such activity was ever carried out at the center. Submission has also been made that the Appropriate Authority has got power under Section 17(A) of the Act 1994 for summoning any person in possession of any information, production of document, issuing of search warrant but in the present case, such power was not exercised in spite of the reply submitted by the petitioner that he is possession of all required documents and can produce if asked for and as such, the orders impugned are unsustainable and the same is liable to be set aside.
Per contra, Shri Sanjay Kumar Singh, learned Standing counsel has vehemently opposed the writ petition and has relied and reiterated the submission contained in the counter affidavit and submits that Shri Ashish Kumar Singh, Incharge Criminal Intelligence, Agra had submitted a report before the District Magistrate, Agra, wherein, it was mentioned that on 26.03.2016, he got an information that in an area at P.S. Etmaddaula, Agra, one Somdatt is indulged in the sex determination of pregnant women by ultrasound examination and the aforesaid Somdatt, in his written statement, had stated that in area of PS Etmaddaula, Agra, he used to take pregnant women to different ultrasound centers for sex determination and at the centers Rs.5000/- to Rs.6000/- was charged by the concerned center from which he also gets Rs.500 to 1000/- and the name of hospital has been informed as Priya Hospital, which is center of the petitioner and thereafter the inspection has been carried out on 26.03.2016 and a show cause notice dated 02.04.2016 was issued to the petitioner levelling certain allegations and after providing opportunity to the petitioner to appear personally on 23.04.2016, on which date also the petitioner could not place the entire relevant records of his center, finally vide order dated 28.04.2016 the registration of the petitioner has been cancelled. He further submits that the action taken against the petitioner is not only based upon the statement of any specific person but is also based upon the inspection done at the center, wherein, it was found that the provisions of Act 1994 and Rules 1996 were being violated with impunity and even the relevant documents have not been produced before the Authority concerned. He further submits that the petitioner has not stopped there, even after cancellation of his registration, the work of sex determination by ultrasound machine was going on, which was substantiated on the inspection done by producing a fake customer again on 14.10.2016. In this backdrop, he submits that once the Appropriate Authority, in exercise of powers conferred under the aforesaid act and rules, has proceeded to cancel the registration of the petitioner considering the written statement of an specific person and the inspection carried out by the Authorised Team, then rightful action has been taken in the matter, which may not seek any interference by this Court.
Heard rival submission and perused the record.
For proper adjudication of the case, it would be appropriate to extract Section 20, 29 and 30 of Act 1994 and Rule 9 of Rules 1996, which provide as follows:-
"20. Cancellation or suspension of registration.- (1) The Appropriate Authority may suo moto, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.
(2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.
(3) Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is, of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1).
29. Maintenance of records. (1) All records, charts, forms, reports, consent letters and all other documents required to be maintained under this Act and the rules shall be preserved for a period of two years or for such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the Appropriate Authority or to any other person authorised by the Appropriate Authority in this behalf.
30. Power to search and seize records etc. (1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place, such Authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.
Rule 9. Maintenance and preservation of records 4. The record to be maintained by every Genetic Clinic including a Mobile Genetic Clinic, in respect of each man or woman subjected to any pre- natal diagnostic procedure/ technique/ test, shall be as specified in form F."
Bare perusal of the aforesaid provision would got to show that Section 20 of the Act 1994 provides for procedure for cancellation or suspension of registration. Section 29 provides for procedure to maintain the records and production of the same for inspection at all reasonable times. Section 30 provides for Power to search and seize records etc which could be exercised at all reasonable times. Rules 9 of the Rules 1996 provides for maintenance and preservation of records.
Record in question reflects that name of hospital of petitioner has come in the version so made by one Som Dutt, who has also proceeded to submit that in area of PS Etmaddaula, Agra, he used to take pregnant women to different ultrasound centers for sex determination and at the centers Rs.5000/- to Rs.6000/- was charged by the concerned center from which he also gets Rs.500 to 1000/-. The same is also reflective of the fact that alongwith the center of petitioner, various other centers have been indicated by Som Dutt but the entire counter affidavit as well as the orders impugned are silent whether at any point of time any show cause notice had ever been given to other centers or not and in such a situation doubt is created in the mind of the Court that the center of petitioner is being singled out. This is also admitted situation that at no point of time the relevant records had been seen by the competent authority and while passing the order impugned, much emphasis has been placed on this score that no document has been produced before the Authority concerned, whereas, it is the consistent case of petitioner that at the time of inspection, he was not present as he was out of station but the records were there in the safe and could not be produced before the Authority as the keys were in custody of petitioner and it is also alleged that he is always ready and willing to produce such records and even the records in question are also sent to the Office of Chief Medical Officer concerned, which can also be perused, if required for.
The reply so submitted by petitioner on 08.04.2016 is also reflective of the fact that case has been set up by the petitioner that the Ultrasound machines installed in the Center were not in working position and the same is substantiated by the report submitted by the Engineer of Wipro GE, Health Care Pvt. Ltd dated 26.03.2016 but while passing the order impugned, the said fact has never been dealt with by the Authority concerned. Case has also been set up by the petitioner that at no point of time, the statement of Som Dutt, which has been relied upon by the Authority concerned, has ever been served upon to the petitioner and the same is not disputed by learned Standing Counsel.
A Division Bench of this Court in the Case of Rishi Hospital and Diagnostic C enter and others vs. State of U.P. and others, Writ Petition no.417 (M/B) of 2014 has taken the view that statutory authority must exercise its jurisdiction within the four corners of the statue and in the said case, in absence of the authority to seal the nursing home, the sealing order has been quashed. Admittedly the Authorised Officer as per Section 30 of the Act 1994 read with Rule 12 of the Rules 1996 can make inspection, search and seizure at all "reasonable time" to the Center. Nowhere in the counter affidavit as well as in the order impugned any reason has been assigned or mentioned to specify that what was the occasion to make such inspection at 10.30 pm, whereas, even the petitioner was not present at the center and as such, the said inspection cannot be treated being subscribed by law as 10.30 in the late night cannot be accepted as reasonable time.
So far as the order passed by the Appellate Authority is concerned, the same appears to have been passed relying upon the trap, which was made on 14.10.2016. The Authority concerned has failed to appreciate that the said matter would have no bearing in the matter being separate cause of action and once the order dated 28.04.2016 has already been passed by the District Magistrate/District Appropriate Authority and the license was already cancelled, then in such a situation, the Appellate Authority could not rely the subsequent action.
In view of the above facts and circumstances, this Court is of the considered opinion that both the orders impugned are liable to be set aside. Consequently, the writ petition is allowed. The orders impugned dated 28.04.2016 and 26.02.2018 are set aside. The District Magistrate/District Appropriate Authority is directed to proceed afresh in the matter strictly in accordance with law and finalize the proceeding expeditiously, preferably within a period of three months from the date of production of certified copy of this order but definitely after giving opportunity of hearing to all the stake holders in the matter.
Order Date :- 27.10.2018 A. Pandey