A.S. Chandurkar, J.
1. Rule. Rule made returnable forthwith. Heard finally with 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.
3. The petitioner is a radiologist running a diagnostic centre. 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 10th 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.
4. Shri S.K. Shinde with Shri Makarand Panchakshari 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 and Anr Vs. Maharashtra Medical Council and Anr, 2013 (6) Mh.LJ 42. Similarly, reliance was also placed on the judgment dated 4th December, 2013 in Writ Petition No.4562 of 2013 - Dr.Uttam Kumar Balwant Sardesai Vs. Union of India and others.
5. Shri Aniruddha A. Garge, the learned Counsel for 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.
ShriRahul 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.
6. Before considering the challenge as raised, it would be 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.
9. Issuance of a letter of warning to a registered medical 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 three parts will have to be therefore examined.
12. In so far as issuance of letter of warning to a practitioner is 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 :
ORDER.
(1) 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.