Abhilasha Garg & Anr. vs The Appropriate Authority (Pndt ...
2010 Latest Caselaw 3876 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
31.

+                           W.P.(C) No. 182 of 2010


         ABHILASHA GARG & ANR.                 ..... Petitioners
                     Through: Mr. Siddharth Singla and Ms. Divya
                     Roy, Advocates.


                            versus


         THE APPROPRIATE AUTHORITY (PNDT ACT) DC
         (EAST) AND ORS.                        ..... Respondents
                       Through: Mr. Najmi Waziri, Standing counsel for
                       GNCTD with Mr. Shoaib Haider and Mr. P.
                       Abhilekh, Advocates.
                       Mr. V.K. Khurana, Advocate for R-4.

         CORAM: JUSTICE S. MURALIDHAR

 1.Whether reporters of the local news papers
      be allowed to see the judgment?                     Yes
 2.To be referred to the Reporter or not ?                Yes
 3. Whether the judgment should be reported in the
      Digest ?                                            Yes


                            ORDER

19.08.2010 %

W.P.(C) No. 182 of 2010 & CM Nos. 356, 1880 & 8776 of 2010

1. The validity of an order dated 26th November 2009 passed by the Chief

District Medical Officer („CDMO‟), East District, Directorate of Health

Services, Government of National Capital Territory of Delhi („GNCTD‟)

cancelling the registration under the Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex Selection) Act, 1994 („PNDT Act‟) in favour

of Abhilasha Maternity & Medical Clinic („AMMC‟), (Petitioner No. 2), the

owner of which is Petitioner No. 1, has been challenged by way of this writ

petition.

2. During the pendency of the writ petition, an order dated 27th January 2010

was passed by the CDMO suspending the registration of Petitioner No. 1

under the Medical Termination of Pregnancy Act, 1971 („MTP Act‟). The

Petitioners filed CM No. 1880 of 2010 challenging the said order dated 27 th

January 2010. By an order dated 11th February 2010, the said order dated 27th

January 2010 was directed by this Court to be kept in abeyance.

3. The Petitioner also filed CM No. 8776 of 2010 to bring on record certain

facts pertaining to a complaint filed against Respondent No. 4 Beti Bachao

Samiti („BBS‟) by a medical practitioner running a clinic in Ashok Vihar.

Notice was issued in the said application as well on 7th July 2010.

Background facts

4. The facts are that Petitioner No.1 is a medical practitioner who runs the

AMMC, Petitioner No.2 clinic. The Petitioner No.4 got a certificate of

approval under the MTP Act on 20th March 2002 and was duly certified to

conduct medical termination of pregnancy within legal parameters. On 9th

January 2008, the Petitioner No. 2 was granted a certificate of registration for

a period of five years under the PNDT Act whereby was authorised to carry

out ultrasound and other tests. It is stated that thereafter the Petitioners

premises was inspected on 16th May 2008 by the officials of Respondent No.

1 and the deficiencies noted were directed to be rectified. Thereafter a fresh

certificate was issued on 16th January 2009.

5. The Petitioners state that on 4th February 2009, an inspection team visited

the premises of Petitioner No.2. At that time the Petitioner No.1 and her

husband were out of station and only her ailing mother-in-law and her two

young daughters were present. The family of Petitioner No. 1 was informed

that there had been a complaint against the Petitioner No.1 by an NGO,

Respondent No.4 herein.

6. The complaint dated 4th February 2009, copy of which is annexed as

Annexure P-2 to the writ petition states as under:

"A decoy patient was sent to the clinic who told Dr. (Mrs.) Abhilasha Garg that she has to get a 14 weeks fetus of a female child of her sister aborted, and for this purpose the said doctor knowingly and deliberately not only accepted to do the abortion of the said fetus of 14th weeks but also advised to come ad immediately as possible. She suggested the decoy that she will charge a sum of Rs.4000/- out of which she took a sum of Rs. 500/- in advance but she also told the decoy to come for the abortion of the same who to her knowledge was grown upto 14 weeks. The copy of C.D. showing the sting is annexed herewith for your kind perusal."

7. The complaint was signed by Shri S.K. Sharma describing himself as

Secretary of Respondent No.4. It is stated that a compact disc („CD‟) was

handed over to the family of Petitioner No.1 which allegedly contained

recording of a „sting operation‟ carried out by Respondent No.4 which

showed a decoy patient discussing with Petitioner No.1 about the termination

of a 14 weeks‟ old female foetus of her sister and which shows the Petitioner

No.1 stating that she would charge Rs.4,000/- for terminating the pregnancy

and accepting Rs. 500/- as advance. The Petitioners allege that the said CD

was doctored and that the conversation recorded therein contained much more

than what actually transpired.

8. The Petitioners allege that the officers of Respondent No.1 brought along

with them 30 odd people who claimed to be members of Respondent No.4.

Other media agencies and news channels were also present. The whole

proceedings of inspection were recorded on video by Respondent No.4 and by

the media agencies with no respect for the privacy of the family of Petitioner

No.1, which included her ailing mother-in-law and two young daughters.

9. Thereafter Petitioner No.1 received a show cause notice dated 9th February

2009 issued by Respondent No.1 captioned: "Violation of MTP, PC and

PNDT Acts at your clinic- Complaint from Beti Bachao Samiti". The show

cause notice to stated as under:

"On 4/2/2009 your clinic was inspected by the undersigned on the basis of a complaint, dt 4/2/2008, received from "Beti Bachao Samiti", Nazaf Garh, Delhi along with a CD-ROM of a sting operation conducted by them. The member from ""Beti Bachao Samiti" as well as various media agencies & news channel were also accompanied the undersigned. Whole of the proceedings of the inspection & action taken were video recorded by the members of the ""Beti Bachao Samiti" & media agencies.

The inspecting team was formed that you were out of station & the inspection should take place only in presence of you & the police were called. The inspecting team was obstructed in carrying out the inspection of the records & premises, however following observations were made

during the inspection.

1. In the absence of authorized/competent person the premises/operation was open.

2. The MTP & PNDT registration certificates in r/o the clinic were not displayed.

3. Copies of both the above Acts were not available at the clinic.

4. The conditions at the operation theatre were not hygienic/satisfactory.

Following documents available at the reception were seized but the same were forcefully snatched back in presence of ASI-Delhi Police, Sh. Ravinder Tyagi.

i. Form C & Form 1 register ii. Delivery register w.e.f. April 2006 iii. OPD register w.e.f. 1/1/2006 iv MTP register w.e.f. 1/1/2006 v Consent form register w.e.f. 17/4/2008 As the search was incomplete/not proceeded further due to hassles created by the staff/kin, the evacuated Operation Theatre was sealed as a prima facie action to the complaint. A copy of the CD handed over by the "Beti Bachao Samiti" was handed over to your kin present at the clinic. You are hereby directed to submit your explanation regarding the above & the recordings in the CD, mentioned above, within three days."

10. Petitioner No. 1 replied to the above show cause notice on 13th February

2009 maintaining that there had been no violation of either the MTP Act or

the PNDT Act. As regards the objections mentioned at Clauses 1 to 4 of the

show cause notice, it was stated that repair works were going on in the

premises. The registration certificate was not found displayed because the

clinic was lying closed since the Petitioner No.1 was out of station. The

original certificate issued by the Government being a valuable document

could not have been left hanging on the wall while labourers were working.

Likewise, the copies of the MTP and PNDT Acts were kept in safe custody

and were not available because the clinic was itself closed. The operation

theatre („OT‟) was temporarily non-operational since the premises were under

renovation/repair. It was denied that the records were forcibly snatched back.

Petitioner No. 1 pointed out: "It is impossible for an old diseased widow and

two young unmarried girls to do so in the presence of ASI Police, Sh.

Ravinder Tyagi and his team of constables". While denying that any hassles

were created by the staff of Respondent No.2, it was stated that "they were

intimated by the crowd of 25-30 unknown persons that was brought by the

Appropriate Authority to the clinic at the time of the so called inspection at an

unreasonable time". As regards the CD prepared by Respondent No. 4,

Petitioner No. 1 pointed out that its quality was poor and it was difficult to

make out the conversation at many places.

11. The above reply was followed by a further reply by Petitioner No. 1 on

17th February 2009 after viewing the CD. She stated that the CD was

doctored. Petitioner No.1 pointed out as under:

"The agency/media personnel involved in the making of the doctored CD have clear intention to falsely implicate me in a pre-fabricated set-up. It is the design of someone who bears ill-will for me and might as well be one of my competitors."

12. It appears that the Petitioner No.2 clinic was re-inspected by a team of

medical officers on 13th April 2009 following which on 24th April 2009 a

further notice was issued regarding "violation of the PC and PNDT Act at

your clinic". It was stated that through the inspection report filed, it had come

to the notice of the Appropriate Authority under the PNDT Act "that there is

no designated Ultrasound room at your clinic which is mandatory under the

registration rules of PC & PNDT Act. This is a clear violation of the PNDT

Act". Petitioner No. 1 was further informed that she was being granted "this

last opportunity to removed the above mentioned deficiency & if you are

really interested in continuing the PNDT registration in r/o your clinic, the

details regarding the designated USG room along with a layout plan in r/o

your clinic must be immediately submitted to the undersigned, failing which it

would be presumed that you are not interested in continuing the PNDT

registration in r/o your clinic & the same would be cancelled." Petitioner No.

1 replied to the above notice on 27th April 2009 stating as under:

"Respected Sir, in ref. to your letter dt. 24/4/09 No. 515, I

have to state that since very few USG‟s were being done,

there is no specific designated room and the USG‟s were

being done on a bed kept for patient observation but proper

privacy of the patient ensured it is hereby requested to

kindly deseal my O.T. premises so that I can resume my

profession link as my livelihood and patients are suffering."

13. It is submitted that in the meanwhile the premises of the clinic remained

sealed. On 29th September 2009, Petitioner No.1 filed an application before

Respondent No.1 for de-sealing of the OT. It is stated that an earlier

application filed before the CDMO on 8th September 2009, was returned.

Another application was filed on 4th November 2009. An appeal was also

filed before the Respondent No.2 on 30th October 2009.

14. While the appeal and applications were pending the impugned notice

dated 26th November 2009 was sent to the Petitioner intimating her of the

cancellation of the registration of Petitioner No.2 clinic under the PNDT Act.

The impugned notice simply stated that "the registration is cancelled with

immediate effect" and required the Petitioner to "surrender the original

certificates issued on 21st January 2009 to the CDMO."

15. The Petitioner assails the said cancellation order dated 26th November

2009 as being in violation of Section 20 of the PNDT Act.

16. On 1st December 2009, the Respondent No.1 i.e. the Nodal Officer (East),

PNDT wrote to the Chief Medical Officer (PNDT) stating that as per the sting

operation CD prepared by Respondent No.4, and its complaint, that Petitioner

No.1 "has clearly violated the PC and PNDT Act 1994". It was stated that a

complaint against Respondent No.1 had been filed with the Station House

Officer, Pandav Nagar but no information on the status of the investigation

was received. While noting that the PNDT registration of Petitioner No.2

clinic has been cancelled it was stated that "a similar action regarding

cancellation of the MTP registration has also been proposed by the

appropriate authority to the CDMO under the MTP Act".

17. On 3rd December 2009, a letter was written by the Petitioner No.1 to the

Directorate of Family Welfare protesting against the punitive action taken

against her on the basis of a bogus complaint and a doctored CD. She also

wrote on 14th December 2009 to the CDMO to the same effect.

18. The Petitioners‟ appeal was listed before the Appellate Authority on 8th

December 2009. The Appellate Authority held that it could not consider the

prayer with respect to de-sealing of the OT, since they were an authority only

under the PNDT Act whereas the sealing of the OT was for violation of the

MTP Act and therefore the Appellant "may approach the right forum/court in

this respect".

19. Thereafter the present petition was filed on 7th January 2010. By an order

dated 13th January 2010, this Court impleaded the Secretary, Health

Department, GNCTD as a party Respondent. The records of the case were

asked to be kept ready by the GNCTD for perusal on the next date i.e. 11th

February 2010. In the meanwhile the CDMO passed a separate order

suspending the registration of Petitioner No.1 under the MTP Act. This Court

by an order dated 11th February 2010 in CM No. 1880 of 2010 directed the

CDMO (East) to explain on affidavit the circumstances which led to the

passing of the said order even when this Court was seized of the matter. The

order dated 27th January 2010 was directed to be kept in abeyance.

Pleadings

20. In the counter affidavit filed by Respondent No.1 on 11 th May 2010, it

was pointed that reasons for cancellation were furnished to the Petitioner No.1

on 19th January 2010 nearly two months after the cancellation order. In the

reasons it was noticed first that there was a sting operation carried out by

Respondent No.4, that an inspection was carried out on 4th February 2009,

"hassles were created by staff and kin" of Petitioner No.1 and "records were

snatched back from inspecting officials by them in the presence of police",

that proper inspection of clinic was not at all allowed, that OT was sealed

"looking at the public interest". The replies of the Petitioner No.1 were

considered and not found satisfactory. The appropriate authority decided that

till such time the investigation into the complaint filed by Respondent No.4

was not complete and the case was not concluded before the Court "the

registration of the centre is suspended/cancelled without prejudice to any

criminal action that may be taken against the centre". It was further observed:

"This decision of cancelling the PNDT registration is being taken in public interest, so that in case complaint is proved right by Court of law, such activities in contravention to provisions of the Act cannot allowed to be continued as it will cause irreparable harm which cannot be corrected later. So such suspension/cancellation is done under Section 20 of the Act".

21. In the counter affidavit of Respondent No.1 it is stated that since the

Petitioner No.1 was ready to abort a 14 weeks‟ old female foetus for which

she took even advance money, there was a violation of the MTP Act. It is

also mentioned that "as per Section 6 (c) of the PC and PNDT Acts no person

shall by whatever means cause or allowed to be caused selection of sex before

or after conception". As regards the MTP registration it was stated in para 15

as under:

"the MTP registration is granted on the condition of fulfilling all the norms laid down under the MTP Act. However the Act does not allow anyone to promote female foeticide which incidentally is shown in the recordings in the CD provided by the Beti Bachao Samiti, the authenticity of which can be

verified from the original CD that would be lying with the Beti Bachao Samiti".

22. In her rejoinder, Petitioner No.1 has explained that there was no

Radiologist working or visiting the Petitioner No.2 clinic since it was sealed

and the PNDT registration being cancelled. It is stated that "the earlier

Radiologist would visit the clinic of the petitioners with his portable

ultrasound machine and as there is no ultrasound being conducted in the clinic

of the Petitioner and there is no new Radiologist visiting the clinic currently,

therefore no intimation to the effect was given to the authorities".

23. It must be pointed out that despite several adjournments, Respondent No.4

has not chosen to file any counter affidavit although it has been represented

by Mr. V.K. Khurana, learned Advocate, whose submissions have been heard

at length.

Submissions of Counsel

24. Mr. Siddhartha Singla, learned counsel appearing for the Petitioners

submitted that so-called sting operation did not contain any material which

could constitute the basis of a complaint under the PNDT Act. Referring to

the definition of "sex selection" under Section 2 (c) of the PNDT Act read

with Section 6 (c) thereof, it is submitted that there was no pre-diagnostic test

conducted during the sting operation which could attract those provisions.

He pointed out that in the first place there has to be a conducting of the pre-

natal diagnostic procedure under Section 2(k), followed by the taking of the

written consent of the pregnant woman under Section 5, followed by the

conducting of a pre-natal test under Section 6. If these three acts have been

committed then the registration could be suspended or cancelled under

Section 20 of the PNDT Act. He pointed out under Section 20 PNDT Act the

suspension or cancellation of the registration can be done only after a show

cause notice is issued followed by giving a reasonable opportunity of being

heard under Section 20(2) followed by the advice of the „Advisory

Committee‟ („AC‟). He pointed out that neither was there any hearing given

to the Petitioner No.1 nor was the impugned order cancelling the registration

issued on the advice of the AC. He, therefore, pointed out that the mandatory

procedure under Section 20(2) of the PNDT Act has not been complied with.

He submits that with the PNDT Act itself not being attracted to the facts of

the present case, the entire proceedings were without jurisdiction. Mr. Singla

submits that the mere non-provision of a separate ultrasonography chamber

could not have invited the extreme penalty of cancellation of registration. The

Petitioners could have been afforded an opportunity to set right such

deficiency.

25. As regards the MTP Act Mr. Singla submitted that under Section 3(2)

thereof a pregnancy could be terminated by a registered medical practitioner

where the length of the pregnancy does not exceed twelve weeks, if such

medical practitioner was of the opinion, formed in good faith, that the

continuance of the pregnancy would involve a risk to the life of the pregnant

woman or of grave injury to her physical or mental health or there was a

substantial risk that if the child were born, it would suffer from such physical

or mental abnormalities to be seriously handicapped. It is submitted that the

above stage had not been reached and the Petitioner had not committed any

act attracting Section 3 of the MTP Act. Consequently, there was no question

of the Petitioner being visited the consequence of her registration under the

MTP Act being suspended.

26. Mr. Waziri, learned Standing counsel appearing for the GNCTD first

submitted that the GNCTD could not be helpless in tackling the grave

problem of female foeticide in the NCT of Delhi. Therefore it acted bonafide

on the basis of information received from Respondent No. 4. He candidly

stated that the contents of the complaint made by Respondent No. 4, and the

contents of the CD prepared by it, would not attract any offence under the

PNDT Act. However, he sought to justify the cancellation of the Petitioner

No. 2‟s PNDT registration with reference to other violations of the PNDT Act

and the Rules thereunder, as was mentioned in the show cause notice issued to

the Petitioner No.1 on 9th February 2009 read with the further show cause

notice dated 24th April 2009. In other words according to Mr. Waziri, the

unhygienic conditions in the OT, the non-display of the certificates of

registration under the MTP and the PNDT Acts, the non-availability of the

bare Acts of the PNDT Act and the MTP Act at the clinic, the snatching back

by the kin and staff of Petitioner No. 1 of the registers required to be

maintained under both Acts, the preventing of the officials of Respondent

No.1 from carrying out the search operation and finally the non-provision of a

designated USG room at the Petitioner No. 2 clinic were all serious violations

of the PNDT Act. He added that non-availability of a Radiologist was also a

serious violation of the PNDT Act and that therefore, the order cancelling

registration could not be faulted. In particular, he referred to Sections 6 (c)

and 19(4) of the PNDT Acts and Rules 11 (1), 13, 17(2) and 18(5) of the

PNDT Rules, 1996 as amended by the Amendment Rules of 2003. As

regards the advice of the AC in terms of Section 20(2) of the PC and the

PNDT Acts, Mr. Waziri produced the original files containing the minutes of

the meeting held on 20th April 2009 in which a recommendation was made

that the registration of the Petitioner No.2 clinic under the PNDT Act should

be cancelled.

27. Without prejudice to the above submissions, Mr. Waziri fairly stated that

in the event this Court was of the view that the extreme action of cancellation

of the registration of Petitioner No.2 under the PNDT Act was not warranted

and that a fresh opportunity should be given, a fresh show cause notice would

be issued giving the Petitioner No.1 sufficient time to rectify the defects

subject of course to her fully cooperating in a surprise inspection which would

be conducted by a team of Respondent No.1. If there were any violations

detected during such inspection, the Respondent No.1 would be free to

proceed under the PNDT Act.

28. Appearing for Respondent No.4, Mr. V.K. Khurana learned counsel

submitted that there were serious violations of the PNDT Act by the

Petitioners. He too however fairly conceded that the contents of the CD

prepared by Respondent No.4 during the sting operation conducted by it and

the contents of the complaint given by it to Respondent No.1 did not attract

any of the provisions of the PNDT Act. He sought to support the action of the

Respondent No.1 stating that notwithstanding that the sting operation and the

complaint of Respondent No.4 did not attract the violations of the PNDT Act,

there were other violations as stated in the show cause notices issued on 9th

February and 24th April 2009 by Respondent No.1 that justified the

cancellation of the registration of Petitioner No.2. He submitted that as

regards the action taken by the Delhi Police against Shri S.K. Sharma who is

the Secretary of Respondent No.4 in relation to an alleged action of his

extorting money by carrying out sting operations against doctors conducting

PNDT tests, he submitted that this was under investigation and, therefore,

should not prejudice this Court.

The Sting operation and complaint did not attract PNDT Act

29. In the first place this Court would like to refer to the provisions of the

PNDT Act which have been relied upon by the Respondent No.1 to justify the

impugned order dated 11th May 2009 cancelling the registration granted to the

Petitioner No.2 clinic. Sections 2 (i), (k) and (o) read as under:

"(i) "pre-natal diagnostic procedures" means all gynaecological or obstetrical or medical procedures such as ultrasonography, foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, embryo, blood or any other tissue or fluid of a man, or of a woman before or after conception, for being sent to a Genetic Laboratory or Genetic Clinic for conducting any type of analysis or pre- natal diagnostic tests for selection of sex before or after conception.

(k)"pre-natal diagnostic test" means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to detect genetic or metabolic disorders orchromosomal abnormalities or congenital anomalies or haemoglobinopathies orsex-linked diseases;]

(o)"sex selection" includes any procedure, technique, test or administration or prescription or provision of anything for

the purpose of ensuring or increasing the probability that an embryo will be of a particular sex"

30. Section 4(2) states that on and from the commencement of the PNDT Act

no pre-natal diagnostic technique shall be conducted except for the purposes

of detection of certain abnormalities specified therein. There is a specific bar

to conducting pre-natal diagnostic procedures under Section 4(3) of the Act

on pregnant women of certain categories. The proviso to Section 4(3)

requires the person conducting ultrasonography on a pregnant woman to keep

the complete record thereof in the clinic in such manner, as may be

prescribed, and any deficiency or inaccuracy found therein shall amount to

contravention of Sections 5 and 6 of the PNDT Act.

31. Under Section 6(c) of the PNDT Act no person shall "by whatever

means, cause or allow to be caused selection of sex before or after

conception". As already noticed hereinbefore, "sex selection" means "any

procedure, technically based or administration or prescription or prevention of

anything for the purposes of ensuring or increasing the possibility that an

embryo will be of a particular sex."

32. This Court fails to understand how the contents of the complaint of

Respondent No.4 and the contents of the sting operation recorded by

Respondent No.4 on CD, even if such recording is accepted to be correct, can

attract any violation of Section 6(c) of the PNDT Act. Even according to

Respondent No. 4, a woman approached Petitioner No.1 stating that her sister

was pregnant with a 14 weeks‟ old female foetus and wanted to abort it.

Therefore this woman had already disclosed the sex of the foetus to Petitioner

No.1. Also the conversation that ensued did not involve the Petitioner No.1

giving the person who approached her any advice on what the sex of the

foetus was since obviously that was disclosed by that person herself to

Petitioner No.1. No test under the PNDT Act was conducted. In other words,

looked at from any angle there is absolutely no question of Section 6(c) of the

PNDT Act being attracted.

33. It is obvious that the action against the Petitioner No.1 and her clinic was

triggered by the aforementioned sting operation carried out by Respondent

No.4. It is apparent that whatever was found in the CD did not attract any of

the provisions of the PNDT Acts and yet the Respondent No.1 persisted with

its inspection. It is only when confronted in this Court with the above facts

and asked for the justification for invoking the PNDT Act on the basis of the

sting operation that both learned counsel for the GNCTD as well as learned

counsel for the Respondent No.4 conceded that they did not attract any of the

provisions of the PNDT Act.

34. It is unfortunate that this „concession‟ has come more than a year and a

half after the „sting‟ operation. This Court can only express its displeasure

over the manner in which the Respondent No. 1 has proceeded to invoke the

PNDT Act on the basis of such a complaint. The following observations of

the Supreme Court R.K. Anand v. Registrar, Delhi High Court 2009 (8) SCC

106 advising caution in assessing sting operations of the media, are equally

relevant in this context:

"328. We also find that like almost every other sphere of human activity in the country the electronic news media has a very broad spectrum ranging from very good to unspeakably bad.

The better news channels in the country (NDTV being one of them) are second to none in the world in matters of coverage of news, impartiality and objectivity in reporting, reach to the audience and capacity to influence public opinion and are actually better than many foreign TV channels. But that is not to say that they are totally free from biases and prejudices or they do not commit mistakes or gaffes or they sometimes do not tend to trivialise highly serious issues or that there is nothing wanting in their social content and orientation or that they maintain the same standards in all their programmes. In quest of excellence they have still a long way to go.

329. A private TV channel which is also a vast business venture has the inherent dilemma to reconcile its business interests with the higher standards of professionalism/demands of profession. The two may not always converge and then the TV channel would find its professional options getting limited as a result of conflict of priorities. The media trips mostly on TRPs (television rating points), when commercial considerations assume dominance over higher standards of professionalism."

Conduct of Respondent No. 4.

35. Learned counsel for the Petitioner earnestly pleaded that this Court should

take note of the facts brought forth in CM No. 8776 of 2010. Enclosed with

the said application is a news item dated 9th June 2009 published in the

„Times of India‟ under the caption „DU graduate extorted cash from docs,

held". The said news item proceeds to say that the accused "Subhash Kumar

Sharma, who works for an NGO „Beti Bachao Aandolan‟ was apprehended

following investigation into a complaint filed by Dr. Sunil Fakay, who runs a

clinic in Ashok Vihar". The doctor in question alleged that Rs. 18 lakhs were

being demanded from him from some people who had conducted a sting

operation in his clinic and they threatened to ruin his career if he did not agree

to pay. According to the Police a decoy customer had been sent to the doctor

for PNDT. This decoy patient used spy cameras to record a video.

Investigations led to the NGO and Sharma was arrested. According to the

Police Shri S.K. Sharma told that "he has conducted four such sting

operations in MP, UP and eight sting operations in Delhi in the last two

years".

36. This Court would really not like to comment on the above news report or

the fact that the Secretary of Respondent No.4 Shri S.K. Shamra, who is also

the author of the complaint in the present case, has been accused in the

manner aforesaid. That would be the subject matter for further investigations

by the police. It would not be appropriate for this Court to comment on this

aspect any further.

Violation of other provisions of the PNDT Act

37. As regards the other provisions which have been mentioned by Mr.

Waziri, Section 19(4) of the PNDT Act requires that the certificate of

registration shall be displayed by the clinic "in a conspicuous place at his

place of business". The explanation offered by Petitioner No.1 that the

certificates were not displayed since the clinic was closed at the time of

inspection is certainly a plausible explanation. The fact remains that the

surprise inspection of the Petitioner No.2 clinic took place on 4th February

2009 when admittedly Petitioner No.1 was away with her husband at Jaipur.

The clinic was closed. Consequently, to immediately conclude that there was

a violation of Section 19(4) of the PNDT Act was not appropriate. Moreover,

the OT of Petitioner No.2 was sealed and she was unable to conduct any

activity in the clinic, as this was part of her main activity being licenced under

the MTP Act. It appears to this Court that a one-time violation of Section

19(4) of the PNDT Act should not visit the doctor concerned with the extreme

penalty of cancellation of the registration itself. A warning followed by

another chance to rectify such defect would have been appropriate.

38. Rule 13 of the PNDT Rules requires change of employees, place or

equipment to be informed to the appropriate authority within a period of 30

days of such change. If this refers to the Radiologist, then clearly even

according to the Respondent, he was only a visiting Radiologist and not an

employee. Rule 17(2) mandates making available one copy of the Act and

Rules in the premises. Again at the time when the inspection took place and

this defect was noticed the clinic was shut down with the Petitioner No.1 and

her husband being away in Jaipur. The non-availability of bare Acts should

not entail the extreme penalty of cancellation of the registration itself. If such

violation is repeated more than twice or thrice, it should attract a penalty. The

person concerned should first be given a warning and told that if this is

repeated in future it might entail severe consequences. Ultimately, it is a

question of what should be the proportionate measure keeping in view the

nature of the violation.

39. Rule 18(5) states that the medical practitioner has to ensure that no

provision of the Act and these Rules are violated in any manner". Rule 11(1)

of the PNDT Rules requires provision of reasonable facility for inspection of

the place to the appropriate authority. The circumstances in which the

inspection took place of the premises of Petitioner No.2 on 6th February 2009

have already been noticed hereinbefore. It is very difficult to imagine that in

the absence of Petitioner No. 1 and her husband, her mother-in-law and her

two daughters behaved in the way they have been alleged to behave and

created hassles in the inspection. Be that as it may, the Respondent No.1

authority does not appear to have encountered any difficulty at the time of re-

inspection on 13th April 2009. In that view of the matter, the action of

cancellation of the registration for the infraction of this provision, if at all,

was not called for.

40. The non-availability of the Radiologist in the clinic has been explained by

the Petitioner as owing to the fact that her clinic was in fact non-operational.

It was only at the time of re-inspection of the clinic on 13th April 2009, that

this deficiency was pointed out. Again for this kind of a deficiency, a time

limit could be given to the Petitioner to rectify, failing which the Petitioner

No.2 would be visited with the consequences.

41. It needs to be noticed at this stage that for violations of the provisions of

the PNDT Act, penal actions have been stipulated under Sections 23 and 25 of

the PNDT Act. These are separate criminal proceedings independent of the

action that can be taken under Section 20 of the PNDT Act. However, this

Court is only concerned with the actions taken under Section 20 and not to the

criminal proceedings which would be decided by an appropriate court.

Non provision of a separate USG Room

42. We then come to the last objection that the Petitioner‟s clinic does not

have a designated ultrasonography room. In the first place, it requires to be

noticed that neither learned counsel for the GNCTD nor Respondent No. 4

has been able to point out any provision of the PNDT Act or Rules which

mandates that there should be a designated ultrasound room. In a clinic run by

medical professionals holding registration under the PNDT Act, if there is no

specific provision requiring the maintenance of a designated ultrasound room

then obviously, no action can be taken under the PNDT Act for such failure.

This was noticed for the first time during the re-inspection of the premises on

13th April 2009. The show cause notice dated 24th April 2009 issued thereafter

makes no reference to the provisions of the Act or the Rules that are stated to

have been violated. This Court is, therefore, unable to appreciate how the

failure to have a designated ultrasound room will constitute a violation of the

PNDT Act or the Rules.

Violation of Section 20, PNDT Act

43. Now turn to Section 20 of the PNDT Act which is unambiguous. The said

provision reads as under:

"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)."

44. While the requirement of section 20(1) of issuing a show cause notice

may have been complied with by the Respondent No. 1 in the instant case,

clearly there is no indication that Petitioner No.1 was given a personal hearing

as required by Section 20(2). The words "after giving a reasonable

opportunity of being heard", necessarily implies a hearing having to be given

to the concerned doctor in-charge of the clinic. This clearly has not been

complied with in the instant case. A more serious violation concerns the

advice of the AC.

45. Section 17(6), states that the AC should consist of the following:

"(6)TheAdvisory Committee shall consist of--

(a)three medical experts from amongest gynaecologists,obstericians, paediatricians and medical geneticists;

(b)one legal expert;

(c)one officer to represent the department dealing with information and publicityof the State Government or the Union Territory, as the case may be;

(d)three eminent social workers of whom not less than one

46. In the instant case the records show that the AC met on 28 th April 2009

and considered, inter alia, the question of the cancellation of the PNDT

registration of Petitioner No.2. The minutes of the meeting dated 28th April

2009 shows that only four of the AC Members were present. This included

three Members of the medical fraternity and one representative of an NGO.

The appropriate authority was also present. While the last page of the

minutes has been signed by four Members of the AC, the changes made by

ink in the minutes have been initialed only by three of the four Members.

47. This Court is not sure that there was a legal Member in the AC as

mandated under Section 17(6) of the PNDT Act. From the list of persons to

whom a copy of the minutes has been marked, it appears that two further

NGO Members on the AC were not present. While not going into the validity

of the constitution of the said AC, the fact remains that only four of the

Members attended the meeting. Whether this constituted sufficient quorum is

also not clear. Be that as it may, the critical portion of the minutes which

records the advice of the AC regarding the cancellation of the PNDT

registration of Petitioner No.2 appears to be interpolated. Initially the AC was

of the view that the appropriate authority should cancel the PNDT registration

if Petitioner No.1 failed to allocate a designate ultrasound room in her clinic

and to de-seal the OT so that she could resume her normal work. Thereafter

the words "If Dr. Abhilasha Garg fails to allocate a dedicated USG room in

her clinic &" appear to have been deleted in ink and the words "operation

theatre" substituted by the word "room" and words "so that she could resume

her normal work" have been deleted. These corrections made by ink have

been initialed only by three of the four Members of the AC who met. It is,

therefore, doubtful whether any validity can be attached to the above advice

of the AC, whose composition appears to be not complete in terms of the

PNDT Act.

48. Strangely, no reference is made to the above advice of the AC in the

impugned order of cancellation or even in the counter affidavit filed by

Respondent No.1. This Court therefore concludes that there was no

satisfactory compliance of the mandatory requirement of Section 20(2) of the

PNDT Act.

49. This Court would like to emphasise the importance of strict compliance

with Section 20(2) of the PNDT Act since the consequence of suspension or

cancellation of a registration is indeed severe. If the principles of natural

justice which are encapsulated in Section 20, have to be complied with then

the person whose registration is proposed to be cancelled has to be provided

with all the material gathered against such person and then afforded an

opportunity of being heard. In the instant case, for instance, apart from

providing Petitioner No.1 with the copy of two inspection reports dated 4th

February 2009 and 13th April 2009, the minutes of the AC should also have

been provided. Thereafter, the Petitioner No.1 should have been afforded an

opportunity of being heard. That was simply not done in the present case.

Viewed from any angle, therefore, there is a clear violation of Section 20 of

the PNDT Act. Consequently, the impugned order dated 26th November 2009

cancelling the registration of Petitioner No.2 clinic cannot be sustained in law

and is hereby quashed.

Violation of the MTP Act

50. As regards the violation of MPT Act clearly, it cannot be sustained in law.

As already noticed no attempt was made by learned counsel appearing for the

GNCTD to defend the order dated 27th January 2010 passed by the CDMO,

East suspending the MTP registration of Petitioner No.1

Section 3(2) of the MTP Act reads as under:

"(2) Subject to the provisions of sub- section (4), a pregnancy may be terminated by a registered medical practitioner,--

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion formed in good faith, that--

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would be suffer form such physical or mental abnormalities as to be seriously handicapped."

51. There is no provision under the MTP Act which permits cancellation of an

MTP registration in the event of any violation of Section 3 of the MTP Act.

Be that as it may, there is in fact no violation of Section 3(2) of the Act. The

so-called sting operation is supposed to have shown the Petitioner No. 1

agreeing to perform an abortion of a 14 weeks‟ old female foetus. Clearly,

she did not perform the abortion itself. The mere agreement to do an act

which may constitute a violation of Section 3(2) is by itself not punishable

even under the MTP Act as amended in 2002. There has to be an actual act of

terminating of the pregnancy and not an agreement to terminate such

pregnancy. In any event, this does not envisage the suspension of the

registration per se. The impugned order dated 27th January 2010 therefore

cannot be sustained in law and is hereby quashed. The OT will be desealed

forthwith.

Consequential directions

52. Learned counsel for the Petitioners was open to the suggestion put forth

by Mr. Waziri, learned Standing counsel for the GNCTD that a fresh show

cause notice would be issued to the Petitioner No.1 pointing out the

deficiencies in the clinic which are required to be rectified within a specified

reasonable time limit.

53. Accordingly, it is directed that within a period of 10 days from today, it

would be open to the Respondent No.1 to issue a fresh show cause notice to

the Petitioner No. 1 listing out precisely the deficiencies noticed and the

precise provisions of law that have been found to be violated by the Petitioner

No.2 clinic. The Petitioner No.1 will be given a reasonable time to cure those

defects. At any time between 15th September 2010 and 15th October 2010, it

will be open to Respondent No.1 to undertake a surprise inspection of the

clinic of Petitioner No.1 during its working hours. It is assured by learned

counsel for Petitioner No.1 that she will fully cooperate in such inspection

and provide all necessary details to Respondent No.1. As regards the

provision of a designated ultrasound room, if such requirement is mandated

under provisions of the Act or the Rules that will be indicated and a

reasonable time limit will be given to Petitioner No.1 to rectify such defect.

Likewise, as regards the availability of a Radiologist to conduct the

ultrasound, the precise provision of the PNDT Act and Rules which mandates

it will be indicated, and again a reasonable time for rectifying such defect will

be given to the Petitioner No.1. If after such inspection the Respondent No.1

finds that there still are defects to be rectified, then it will be open to

Respondent No.1 to take further steps in accordance with the PNDT Act.

54. With the above directions, the writ petition is allowed with costs of

Rs.5,000/- which will be paid by Respondent No.1 to the Petitioner No. 1

within a period of four weeks. The applications are disposed of.

55. Order dasti.

S. MURALIDHAR, J AUGUST 19, 2010 dn