Madras High Court
The Director Of Medical & Rural ... vs Sudha Hospitals on 5 August, 2022
W.A.Nos.1758 and 1759 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.Nos.1758 and 1759 of 2022
1.The Director of Medical & Rural Health Services,
No.258, DMS Complex,
Anna Salai Teynampet,
Chennai - 600 018.
2.The Joint Director of Health Services &
District Enforcement Officer,
The Tamil Nadu Clinical Establishments
(Regulation) Act,
Government Hospital,
Erode - 638 011. .. Appellants
Vs
Sudha Hospitals,
rep. by Managing Partner Dr.K.Sudhakar,
181, Perundurai Road,
Erode-638 011. .. Respondent
Prayer: Writ Appeals filed under Clause 15 of the Letters Patent
against the common order dated 21.7.2022 passed in W.P.Nos.18572
and 18573 of 2022.
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For the Appellants : Mr.J.Ravindran
Addl. Advocate General
assisted by
Mr.B.Vijay
Addl. Government Pleader
For the Respondent : Mr.A.L.Somayaji
Senior Counsel
for Mr.V.P.Sengottuvel
COMMON JUDGMENT
(Delivered by the Hon'ble Chief Justice)
Two writ appeals have been filed against the common order
dated 27.01.2022, whereby the writ petitions preferred by the
respondent in these appeals were disposed of with certain directions.
2. Two writ petitions were filed by the respondent in reference to
two separate actions initiated by the appellants - one under the
provisions of the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 [for brevity, "the Act of 1994"]
and the other under the provisions of the Tamil Nadu Clinical
Establishments (Regulation) Act, 1997 [for short, "the Act of 1997"].
The first order dated 14.07.2022 was passed by the second appellant
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by invoking Section 20(3) of the Act of 1994, whereby the
respondent/writ petitioner was instructed not to undertake any scan
procedures, however, liberty was given to file an appeal under the
provisions of the Act of 1994. The other order was passed on the
same date under Sections 5(2) and 6(1) of the Act of 1997 not to
admit new patients in the hospital and the patients undergoing
treatment were directed to be discharged within two weeks after giving
appropriate treatment to them. Therein also, liberty was given to file
an appeal under the provisions of the Act of 1997.
3. The two orders passed on 14.07.2022 have been questioned
by maintaining two writ petitions on the following grounds, which are
otherwise given in paragraph 4 of the impugned order of the learned
Single Judge and are quoted hereunder:
"4. The petitioner denies the contentions of the
respondents under the impugned orders and has
challenged the same on the following grounds:-
a) The impugned orders of the second respondent in
not allowing to admit any new patients in the Hospital
and to discharge patients, who are undergoing
treatment, directly affects the petitioner's right to carry
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on medical profession as guaranteed under Article
19(1)(g) of the Constitution of India. According to
them, there is no provision conferred under the Act to
issue such directions.
b) The impugned orders do not record the reasons for
the formation of opinion on the part of the second
respondent for dispensing with the issuance of notice
under Section 5(1-A) of the Act in public interest.
c) The second respondent, while issuing the impugned
orders, has to record the reasons for dispensing with
the issuance of notice before suspension of registration
and form an opinion on the basis of such valid reasons
that it is necessary or expedient to do so.
d) It is mandatory to give reasonable opportunity of
hearing under Section 5(2) of the Tamil Nadu Clinical
Establishments (Regulation) Act, 1997 and the
competent authority should be satisfied that there has
been breach of any of the provisions of the Act or the
Rules made thereunder or the conditions of registration
while issuing the impugned orders, which are drastic in
nature, affecting the fundamental rights of the
petitioner guaranteed under the Constitution of India.
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e) The impugned orders are liable to be set aside on
the ground of non-disclosure of reasons for passing the
drastic impugned orders.
f) The impugned orders of the second respondent
passed under Section 5(2) of the Tamil Nadu Clinical
Establishments (Regulation) Act, 1997 and Section
20(3) of Pre Conception and Pre Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994,
without assigning any reasons or violations alleged to
have been committed by the petitioner herein, are
unsustainable.
g) The respondents failed to see that the registration of
the license granted under Pre Conception and Pre Natal
Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994, cannot be suspended or cancelled for any
other reasons not falling within the scope of the said
Act, and hence, the impugned orders are
unsustainable.
h) The second respondent and the Committee
constituted by the first respondent, inspected the
Fertility Centre at Door No.181, Perundurai Road,
Erode during June 2022 and conducted investigation
with respect to only 2 ultra sound scan machines.
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While that being so, the action initiated by the second
respondent to seize and seal the ultra sound scan
machines in the Multi Specialty Hospital and Mother
and Child Care Centre, is wholly illegal.
i) The order of the second respondent suspending the
licenses of the petitioner herein for all its 10 Ultra
Sound Scanning Machines functioning at its three
Hospitals for unsustainable allegation made against the
petitioner's Fertility Center is wholly illegal and
unsustainable.
j) Directing the petitioner to submit their explanation to
the appropriate authority through the second
respondent within a period of two weeks, is nothing but
an eye wash, as the second respondent had already
concluded in the impugned proceedings regarding non
following of the procedures, pursuant to the enquiry
report. Having predetermined the issue, it is of no avail
to direct the petitioner to submit an explanation.
k) The respondents committed an illegality of seizing
the Ultra sound scan machines functioning in all the 3
hospitals, without furnishing a copy of the inspection
report submitted pursuant to the preliminary enquiry.
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l) The second respondent failed to see that the
arbitrary action of seizing and sealing the ultra sound
scan machines at the Multi Specialty Hospital and
Mother and Child Care Centre, would cause serious
medical complications leading to mortality and
morbidity, as there are several critical inpatients in the
ICU of the Multi Speciality Hospital and critical new
born babies in NICU of Mother and Child Care Center,
as they may require urgent Ultra sound examination."
4. In response to the issue raised and referred to above, the
appellants herein raised an objection qua maintainability of the writ
petitions, as the orders challenged by the respondent/writ petitioner
are appellable and, otherwise, it has narrated the reasons for
invocation of Section 20(3) of the Act of 1994 and Sections 5(2) and
6(1) of the Act of 1997 and those reasons have been given in
paragraph 6 of the impugned order and the same is quoted hereunder
for ready reference:
"6. According to the respondents, the illegalities and
violations committed by the petitioner Hospitals are as
follows:
a) A leading Tamil News Daily on 03.06.2022 published
a news item stating that an Ooctye was retrieved from
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a teenage girl by creating fake documents and
adopting unethical medical practice. The serious abuse
and misuse of license by the petitioner Hospital was
telecasted in various news Channels across the State.
A team was formed by the State Appropriate Authority
to investigate the illegality committed by the petitioner
Hospital in regard to ART procedure. The investigation
conducted by the team has revealed startling facts of
unethical medical practice of the petitioner Hospital for
Oocyte retrieval.
b) The investigation team of the respondents has
noticed gross violation of the provisions of the Pre
Conception and Pre Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 by the
petitioner Hospital, for the procedures carried out on a
teenage girl of 16 years from Soorampatti, Erode. The
Inspector of Police, Erode has registered an FIR in
Crime No.279 of 2022 against the parents of the
teenage girl and broker (tout), who were involved in
the illegal extraction of Ooctye from the under aged girl
and the person, who had fabricated the Aadhar Card of
the child for illegal Ooctye retrieval.
c) The victim minor girl with false identity of Bhanu
Mahalingam was stimulated for Ovulation at Sudha
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Hospital, Erode on 05.05.2022 for Ooctye retrieval. The
Hospital Management had initially mentioned the age of
the victim as 23 years in the case sheet and later it
was manipulated as 27 years to escape from the
clutches of law. In order to prove the age of the victim
girl, Aadhaar No.5641 6521 1544 was produced with
no QR code and the back side of the Aadhaar had also
not been verified by the counselor of the Hospital.
Moreover, the copy of the Aadhaar submitted to the
Hospital was not verified with the originals.
d) The Hospital Authorities were aware that the
Identity produced by the victim was fake. The victim
was stimulated with harmone injection at M/s.Sudha
Hospital, Erode and then, she was sent to Salem
Branch Hospital for retrieval of 9 Ooctyes. The Ooctyes
were retrieved from the victim by a team of Doctors
(Dr.Lakshmi, OG & Dr.Janaki, MD, DA) on 17.05.2022.
It is learnt that the retrieval of 9 Ooctyes were kept in
frozen condition in M/s.Sudha Hospital at Salem. The
retrieved Ovum was kept under frozen condition.
e) As per the Act, Hospital should obtain consent from
the donor woman and her husband for Ooctye
retrieval. However, examination of the Hospital records
revealed that Consent Form contains victim signature
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alone. But the petitioner Hospital had proceeded with
the procedures without obtaining consent from the
husband of the donor.
f) The petitioner has violated the provisions of the
Assisted Reproductive Technology (Regulation) Act,
which came into force on 25.01.2022.
g) According to the respondents, the age of the Ooctye
donor must not be less than 21 or more than 35 years.
However, the victim being a minor girl, aged below 21
years, the Ooctye retrieval form her is not legally
permissible, but the petitioner had violated the
provisions of law. Apart from the above mentioned
alleged violations, the respondents have also
mentioned other ancillary violations committed by the
petitioner in paragraph 18 of the counter affidavit.
5. The first limb of the argument to question the orders dated
14.07.2022 is in reference to violation of principles of natural justice,
as no opportunity of hearing was granted to the respondent/writ
petitioner. The appellants duly replied to the aforesaid and has been
narrated by the learned Single Judge in paragraph 7 of the impugned
order. The learned Single Judge, after hearing the submissions of
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learned counsel for the parties, made a suggestion to learned
Additional Advocate General as to whether the appellants would be
agreeable to depute a panel of Doctors in the government service, who
may be allowed to supervise the respondent hospitals and
simultaneously grant an opportunity of hearing to the respondent with
regard to the serious allegations made against them in the counter-
affidavit. The suggestion was refused by learned Additional Advocate
General, who submitted that, by the impugned orders, the respondent
has been given an opportunity to submit their explanation though an
appeal could have been filed for the aforesaid. The learned Single
Judge proceeded with the matter and disposed of the writ petitions
with certain directions contained in paragraph 20 of the impugned
order. For ready reference, paragraph 20 is quoted hereunder:
"20. For the foregoing reasons, the impugned orders
dated 14.07.2022 passed by the second respondent,
are quashed and the matter is remanded back to the
second respondent for fresh consideration on merits
and in accordance with law. The second respondent is
directed to pass final orders after affording a fair
hearing to the petitioner including granting them the
right of personal hearing and also permitting them to
produce all necessary documents/records / witnesses,
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in support of their case, within a period of twelve
weeks from the date of receipt of a copy of this order.
The respondents are directed to de-seal the medical
equipments which were sealed under the impugned
orders, within a period of three days from the date of
receipt of a copy of this order. However, in public
interest, the respondents are at liberty to depute a
panel of Doctors during the period of the enquiry
whenever they deem fit to do so to the petitioner
Hospitals to supervise their functioning without causing
disturbance to the patients and report any violations
under the Tamil Nadu Clinical Establishments
(Regulation) Act, 1997 as well as the Pre Conception
and Pre Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 to the competent authorities
under the respective enactments."
6. Mr.J.Ravindran, learned Additional Advocate General,
submitted that the impugned order has been passed in ignorance of
the provisions of the Act of 1994 and the Act of 1997, as there is no
stipulation to afford an opportunity of hearing before ordering
suspension. In view of the above and on the face of it, the finding in
regard to the violation of the principles of natural justice is going
beyond the provisions of the Acts and, furthermore, in the operative
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paragraph of the order of the learned Single Judge, a direction has
been given to provide hearing to the respondent/writ petitioner,
though it is not so provided under the provisions under which the
orders were passed. In view of the above and as there was no strong
reasoning for the learned Single Judge to cause interference in the
orders dated 14.07.2022, a prayer is made to set aside the impugned
order.
7. Learned Additional Advocate General further submitted that
the learned Single Judge ignored even reasons given in the orders
impugned before him and, even the provisions of Section 20(3) of the
Act of 1994 and Sections 5(2) and 6(1) of the Act of 1997. Ignoring
the aforesaid, the impugned order has been passed by the learned
Single Judge and, therefore, a challenge is made to it.
8. Learned Additional Advocate General has made a reference to
the counter and specifically paragraphs 10 to 18 and submitted that
the same is said to have been ignored by the learned Single Judge.
The action of the appellants was in public interest and was after a
preliminary enquiry, and not based on the news articles published in
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the dailies. Thus, a prayer is made to set aside the impugned
judgment.
9. The appeals are vehemently contested by the respondent/writ
petitioner.
10. Mr.A.L.Somayaji, learned senior counsel, appearing for the
respondent/writ petitioner submitted that the learned Single Judge has
meticulously considered the issue raised by the respondent/writ
petitioner and there is no illegality committed therein to interfere with
the order/orders dated 14.07.2022. It is submitted that the orders
aforesaid were passed in reference to three hospitals. If at all any
ground was existing against the respondent in respect of one hospital,
the other two hospitals could not have been subjected to the order
dated 14.07.2022. Thus, on the face of it, the action of the appellants
was illegal.
11. Learned senior counsel would further submit that even if
Section 20(3) of the Act of 1994 or Sections 5(2) and 6(1) of the Act of
1997 was to be invoked, the appellants were under obligation to record
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reasons in writing. The order dated 14.07.2022 does not contain any
reason and public interest. Thus, the learned Single Jude has rightly
caused interference therein. When any action is taken without
following the provisions of the principles of natural justice and affects
severely a party, reasons should be recorded in writing for passing an
order and that too indicating the public interest. The order dated
14.07.2022 does not contain reasons for passing or invoking the
provisions of Section 20(3) of the Act of 1994 and Sections 5(2) and
6(1) of the Act of 1997. In the absence of reasons in writing, the
learned Single Judge has rightly caused interference in the orders and
remanded the matter to the second appellant for fresh consideration
and pass orders after providing an opportunity of hearing. There is no
illegality in the order. Rather, the drastic action of the appellants has
been subjected to further action so that after complying the principles
of natural justice, an appropriate order can be passed. If the
respondent hospital has committed any illegality, which requires an
action against them, an appropriate order can be passed after
providing an opportunity of hearing to the respondent/writ petitioner.
The prayer is accordingly to maintain the impugned order of the
learned Single Judge by dismissing the writ appeals.
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12. To support his arguments, learned senior counsel has given
reference to the judgment of Gujarat High Court in the case of State
Appropriate Authority Under PNDT Act v. Jashmina Dilip Devda,
2015 SCC OnLine Guj 1340 and the judgment of Telangana High
Court in the case of Ravindranath GE Medical Associates Private
Limited RGE v. State of Telangana and others, 2020 SCC OnLine
TS 2780. It is submitted that the judgments aforesaid were given
after considering the pari materia provisions. Thus, the ratio
propounded by the High Courts squarely applies to the facts of this
case. Therein also an order was passed without assigning reason and
therefore an interference was made by the High Courts. Applying the
ratio propounded in those judgments, the prayer is to accept the order
of the learned Single Judge and, accordingly, dismiss the writ appeals.
13. We have considered the rival submissions and scanned the
records carefully.
14. In two different writ petitions, two different orders, though
issued on the same date, were challenged. One was issued under
Sections 5(2) and 6(1) of the Act of 1997, while the other was issued
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under Section 20(3) of the Act of 1994. The perusal of the order dated
14.07.2022 issued under the Act of 1994 would show temporary
suspension of the registration of the ultrasound clinic in public interest.
It was pursuant to the preliminary enquiry in respect of ART
procedures conducted in the respondent/writ petitioner hospital and,
therefore, it was instructed not to undertake any scan procedure. The
order aforesaid qualifies that if the respondent/writ petitioner was to
contest the suspension of registration, it may approach the State
Appropriate Authority, through the Joint Director of Health Services,
within a period of four weeks. The other order was passed under
Sections 5(2) and 6(1) the Act of 1997 and therein suspension of
temporary registration of the clinic was made in public interest,
pursuant to the confirmation of the preliminary enquiry in respect of
ART procedures conducted in the respondent hospital.
15. The first issue for our consideration is as to whether an
opportunity of hearing was required to be given to the respondent/writ
petitioner before passing the order. To analyse the said issue, we
would be referring to Section 20 of the Act of 1994 and Sections 5 and
6 of the Act of 1997, which are quoted thus:
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"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
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sub-section (1)."
"5. Suspension or cancellation of registration. -
(1) The competent authority may, suo-moto or on
complaint, issue a notice to any private clinical
establishment to show cause why its registration under
this Act should not be suspended or cancelled for the
masons mentioned in the notice.
(2) If after giving a reasonable opportunity of being
heard to the private clinical establishment, the
competent authority is satisfied that there has been a
breach of any of the provisions of this Act or the rules
made thereunder or the conditions of registration, it
may, without prejudice to any other action, that it may
take against such Private clinical establishment suspend
its registration for such period as it may think fit or
cancel its registration:
Provided that where the competent 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
writings suspend the registration of any private clinical
establishment without issuing any notice."
"6. Inspection or enquiry. - (1) The competent
authority shall have the right to cause an inspection of,
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or enquiry in respect of any private clinical
establishment, its buildings, laboratories and
equipments and also of the work conducted or done by
the private clinical establishment, to be made by such
person or persons as it may direct and to cause an
enquiry to be made in respect of any other matter
connected with the private clinical establishment and
that establishment shall be entitled to be represented
there at.
(2) The comment authority shall communicate to the
private clinical establishment the views of that
authority with reference to the results of such
inspection or enquiry and may, after ascertaining the
opinion of the private clinical establish meet thereon
advise that establish met upon the action to be taken.
(3) The private clinical establishment shall report to the
competent authority the action, if any, which is
proposed to be taken or has been taken upon the
results of such inspection or enquiry, Such report shall
be furnished within such time as the competent
authority may direct,
(4) Where the private clinical establishment does not,
within a reasonable time take action to the satisfaction
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of the competent authority that authority may, after
considering any explanation furnished or representation
made by the private clinical establishment, issue such
directions as that authority deems fit and the private
clinical establishment shall comply with such
directions."
16. A perusal of Section 20(3) of the Act of 1994 would show
that notwithstanding anything contained in sub-sections (1) and (2),
the provision of sub-section (3) can be invoked if it is necessary or
expedient to do so in the public interest for the reasons recorded in
writing, suspending the registration. Sub-section (3) of Section 20
does not require an opportunity of hearing, which is otherwise
stipulated in sub-section (2) of Section 20 of the Act of 1994. It is not
in dispute that the order under challenge was passed under Section
20(3) of the Act of 1994 and not under Section 20(2) of the Act of
1994. In our opinion, nullifying the said order on the ground of
violation of the principles of natural justice tantamounts to re-writing
the provision by the learned Single Judge. When sub-section (3) of
Section 20 of the Act of 1994 starts with a non obstante clause,
eliminating the procedure given under sub-section (2) of Section 20
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which pre-supposes an opportunity of hearing, the learned Single
Judge ought not to have held the impugned orders to be violative of
the principles of natural justice.
17. It is not that the interference in the order was made only in
reference to violation of the principles of natural justice going against
the provisions referred to above, but the operative portion of the order
of the learned Single Judge further directs the appellants to provide an
opportunity of hearing to the respondent/writ petitioner before passing
an order, making Section 20(3) of the Act of 1994 to be redundant.
18. The position of law is similar even under the Act of 1997.
There also the compliance of the principles of natural justice has not
been made a pre-requisite to pass an order, rather, it has been
excluded. Thus, the order of the learned Single Judge holding the
impugned orders to be in violation of the principles of natural justice
does not hold water.
19. The other issue is as to whether the orders impugned were
passed in conformity with the provisions referred to above i.e. Section
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20(3) of the Act of 1994 and Sections 5(2) and 6(1) of the Act of 1997.
Section 20(3) of the Act of 1994 postulates that if the appropriate
authority is of the opinion that it is necessary or expedient so to do in
the public interest, it may, for the reasons to be recorded in writing,
suspend the registration.
20. To analyze as to whether the order is in compliance with the
provisions aforesaid, we have gone through the order dated
14.07.2022. The order aforesaid is for temporary suspension of the
registration in public interest and reasons recorded in writing are
pursuant to the preliminary enquiry confirming non-adherence of the
guidelines in treating the patients at the ART Centre. A similar order
was passed even under Sections 5(2) and 6(1) of the Act of 1997.
Whether such orders can be said to have not recorded the public
interest in suspending the registration or do not contain reasons in
writing is to be considered by us. On the face of the orders, we would
not agree with the contention of learned senior counsel for the
respondent/writ petitioner. The orders refer to the public interest and
reasons for suspension have been recorded in writing. While recording
reasons, the second appellant is not required to elaborately discuss the
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issue, otherwise it would result in deciding the issue at the initial stage.
21. In view of the above, it cannot be said that the orders do not
contain any reason in writing. Sufficiency or deficiency of it cannot be
taken up by the Court and in the instant case that has not been
deliberated or decided by the Court. We find reasons have been
recorded, leaving aside the counter filed by the appellants showing the
alarming situation. But we would not conclude the matter, because if
the appellants further proceed to take action under Section 20(1) of
the Act of 1994 or under Section 5(1) of the Act of 1997 respectively,
it may cause prejudice to both sides. However, we quote paragraphs
10 to 18 of the counter submitted by the appellants for ready
reference:
"Illegalities and Violations committed by the
Petitioner Hospital:
10. A leading Tamil News daily on 03.06.2022
published a news item stating that a Oocyte was
retrieved from a teen aged girl by the Petitioner
hospital management by creating fake documents and
adopting unethical medical practice. The serious abuse
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and misuse of license by the petitioner hospital was
telecasted in various news Channels across the State.
A team was formed by the State Appropriate Authority
to investigate the illegality committed by the petitioner
hospital in regard to ART procedure. The investigation
conducted the team has revealed startling facts of
unethical medical practice of petitioner hospital for
Oocyte retrieval.
11. It is submitted that the investigation team has
noticed gross violation of provision of PCPNDT Act by
the petitioner hospital for the procedure carried out on
a teen aged girl of 16 years of Soorampatti, Erode. The
Inspector of Police, Erode PS has registered a FIR in
Crime No.279 of 2022 against the parents of the teen
age child, and brother (tout) who have involved in the
illegal extraction of Oocyte from the under age girl and
the person who had fabricated the Aadhar Card of child
for illegal Oocyte retrieval.
Fabrication of Victim Identity and Age Records:
12. It is submitted that the team has noticed that the
victim minor girl with false identity of Bhanu
Mahalingam was stimulated for Ovelation at Sudha
Hospital, Erode on 05.05.2022 for Oocyte retrieval.
The Hospital management has initially mentioned the
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age of the victim as 23 years in the case sheet and
later it was manipulated as 27 years to escape from
the clutches of law. The identity produced by the
victim to prove her age was recorded as vide: Aadhaar
No.5641 6521 1544 with no QR code and Back side of
the Aadhaar has not been verified by the counselor of
hospital. Moreover copy of the Aadhaar submitted to
the hospital was not verified with the originals.
Unethical Medical Practice of Oocytes Retrieval:
13. It is submitted that the Hospital Authorities has
aware that the Identity produced by the victim was
fake. The victim was stimulated with harmone injection
at M/s Sudha Hospital, Erode and she was sent to
Salem Branch Sudha Hospital for retrieval of 9
Oocytes. The victim oocytes were retrieved by a team
of Doctors (Dr Lakshmi, OG & Dr.Janaki, MD,DA) on
17.05.2022. It is learnt that the retrieval of 9 Oocytes
were kept in frozen condition at Salem M/s Sudha
Hospital. The retrieved Ovum was kept under frozen
condition.
14. It is submitted that as per the Act the hospital
should obtain consent form from the donor woman and
her husband for oocytes retrieval. The examination of
hospitals records reveals that consent form contain
victim signature alone. The petitioner hospital has
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proceeded with the procedure without obtaining
consent from the husband of the donor. It is crystal
dear that the petitioner has adequate knowledge on
the identity of the victim before commencing the
procedure. It is submitted that the counsellor and other
doctors who have performed the procedure are well
aware that the child with false identity was admitted
for Ovum donation through a Broker of organized
crime.
15. It is submitted that the Minor child had deposed
with the team that she has been retrieved for Ovum
stimulation at Sudha Hospital twice at Erode and the
hospital authorities submitted only one case sheets for
Ovum retrieval during May 2022. In another case
namely ZZZZ (Aadhaar No.2303 2549 4400) the Date
of Birth was mentioned as 14.12.1999 with both sides
of the Aadhaar Card were obtained from the same
Hospital duly QR code printed same side of the
Aadhaar Card Mrs. ZZZZ was admitted for Ovum
retrieval procedure on 11th July 2022 and vide MRD
No.SH/17/023717 mentioning her age as 20 years.
On verification that of AAdhaar ID it was found the
age of the victim is about 17 years 6 months 28
days. The examination of records establish that the
hospital is in indulging in crime of retrieving Ovum
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from under aged girls especially for commercial
trading. The enquiry team after through enquiry
with various persons had submitted a report to
appropriate authority on 07.07.2022 mentioning
various violations and breach of provisions under
PCPNDT Act, 1994 and ICMR Guidelines ART and
Tamil Nadu Clinical Establishments (Regulation) Act.
Statutory violations:
16. The Assisted Reproductive Technology
(Regulation) Act 2021 (ART Act) enacted by
Parliament came into force on 25.1.2022. Prior to
ART Act National Guidelines for Accreditation,
Supervision and Regulation of ART Clinics in
India was followed to regulate ART clinics which
were registered under the PCPNDT Act and ART
clinics were regulated in accordance with the
provisions of Para 3.15 of ICMR National Guidelines
by constitution of State Appropriate Authority. In
G.O. (Ms) No.274 Health and Family Welfare (R-1)
Department Dated: 31.07.2007, the Director of
Medical and Rural Health Services was made as
Appropriate Authority.
The guidelines clearly mandate the following
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3.5.3 The ART clinic must not be a party to any
commercial element in donor programmes or in
gestational surrogacy.
3.7.4 The age of the Oocyte donor must not be
less than 21 or more than 35 years.
3.14.2 Advertisements of an infertility centre: False
claim via hoarding and paper advertisements are a
cheap way of attracting a clientele that is vulnerable
and, therefore, easily swayed. Such advertisements
shall be banned.
It is pertinent to state here that the petitioner
hospital has violated above quoted guidelines in
retrieving oocytes from the victim girls which is a
serious violation and warrants suspension of
registration.
17. The provisions of ART Act adumbrates as under:
Section 21(h), "that the clinics shall issue to the
commissioning couple or woman a discharge
certificate stating details of the assisted reproductive
technology procedure performed on the
commissioning couple or woman".
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Section 27(3), "a bank shall not supply the sperm or
oocyte of a single donor to more than one
commissioning couple".
Section 27(4) "An oocyte donor shall donate oocytes
only once in her life and not more than seven oocyte
shall be retrieved from the oocyte donor".
Section 27(5) "All unused oocytes shall be preserved
by the banks for use on the same recipient, or given
for research to an organization registered under this
Act after seeking written consent from the
commissioning couple".
Section 27(6) "A bank shall obtain all necessary
information in respect of a sperm or oocyte donor,
including the name, Aadhaar number as defined in
clause (a) of section 2 of the Aadhaar (Targeted
Delivery and Financial and other Susidies. Benefits
and Services) Act 2016, address and any other
details of such donor, in such manner as may be
prescribed and shall undertake in writing from such
donor about the confidentiality of such information".
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Section 29 "The sale, transfer or use of gamets,
zygotes and embryos, or any part thereof or
information related thereto, directly or indirectly to
any party within or outside India shall be prohibited
except in the case of transfer of own gametes and
embryos for personal use with the permission of the
National Board".
Section 33(1) Any medical geneticist, gynaecologist,
registered medical practitioner or any person shall
not:-
b) sell human embryos or gametes, run an agency a
racket or an organization for selling, purchasing or
trading in human embryos or gamets;
d) exploit the commissioning couple, woman or the
gamete donor in any form
f) sell any human embryo or gamete for the purpose
of research or
g) use any intermediates to obtain gamete donors or
purchase gamete donors.
Section 33(2) Whoever contravenes the provisions of
clauses (a) to (g) of sub-section (1), shall be
punishable with a fine which shall not be less than
five lakh rupees but may extend to ten lakh rupees
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for the first contravention and for subsequent
contravention, shall be punishable with
imprisonment for a term which shall not be less than
three years but may extend to eight years and with
fine which shall not be less than ten lakh rupees but
may extend to twenty lakh rupees.
18. Other violations committed by the
Petitioner:
1. Sudha Fertility Centre used agents for commercial
oocyte retrieval which forms a part of FIR
No.279/2022 of Erode south PS and attracts
punishment under Section 33(1)(g), 27(6) of ART
Act and National Guidelines 3.5.3.
2. The actual age of Ms. XXXX being 16, and
nulliparous (no child birth) which was not
documented with the help of Aadhar Card and
violation under ICMR guidelines-3.7.4 & Section
27(6).
3. Neither counseling nor documentary summary
was provided which amounts to exploitation of donor
which attracts punishment under Section 33(1)(d) of
ART Act 2021.
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4. Sonographc images of the said girl was not
maintained which attracts punishment under Section
23 of PC & PNDT Act 1994. The oocyte retrieval
being a part of a conception and Assisted
Reproductive Technique, the images are to be
preserved for a minimum period of 2 years.
5. With single TNCEA registration, two other
establishments are functioning without a valid TNCEA
Registration which is a serious violation under
section 3(1) of TNCEA 1997 Act. These violations
are going on for a long period the authorities are
reasonable in temporarily suspending the facilities
which are unlawful.
6. As in profession of health, the trade is considered
as a crime and the happenings at Sudha Hospital,
Erode is an organized while collar crime by learned
professionals with the mis-use of technology and
exploitation of poor public."
22. We would not be persuaded by what has been stated in the
counter and even by the arguments of learned Additional Advocate
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General qua the alarming situation in regard to the affairs of the
hospital. Any comment/remark on it may cause prejudice to either of
the parties, but at the same time, we cannot ignore the detailed
reasoning given in the counter, which otherwise has been ignored by
the learned Single Judge. In any case, we do not find the orders to
have been passed in violation of Section 20(3) of the Act of 1994 or
Sections 5(2) and 6(1) of the Act of 1997. In view of the above, we
find reason to cause interference in the order of the learned Single
Judge.
23. At this stage, we would address one more argument raised
by learned senior counsel for the respondent/writ petitioner. It is in
reference to the application of the order for temporary suspension on
three hospitals, whereas it could have been in reference to the hospital
alleged to have indulged in the inappropriate practices only.
24. To appreciate the said argument, we have gone through the
registration of the hospital. We find it to be in the name of "Sudha
Hospitals" without showing separate establishment, though learned
senior counsel for the respondent has referred to different door
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numbers for three hospitals. In fact, we find from the records that the
petitioner had obtained single registration under the Act of 1997 by
wilfully furnishing three door numbers, without obtaining any
registration for different establishments. In any case, we would not
like to conclude the issue aforesaid for the reason that the impugned
order allows the respondent/writ petitioner to approach the State
Appropriate Authority through the Joint Director of Health Services and
explain their stand. Therefore, we would not like to close their
submissions, because it may be true that the appellants may further
proceed and pass orders under Section 20(2) of the Act of 1994 and
Section 5(2) of the Act of 1997 respectively.
25. We, however, would comment on the maintainability of the
writ petitions. The learned Single Judge should not have been driven
by the allegation of violation of the principles of natural justice when
the provision invoked by the appellants excludes such a procedure. It
is also when the orders under challenge were for temporary
suspension, with an opportunity to the respondent/writ petitioner to
approach the State Appropriate Authority. In view of the above, even
writ petitions would not have been maintainable.
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26. In the light of the aforesaid, we now need to analyze the
judgments referred by learned senior counsel for the respondent/writ
petitioner. The first judgment is in the case of Jashmina Dilip Devda
(supra). Therein, the judgment of the learned Single Judge was
affirmed finding that the provision of Section 20(3) was invoked
without recording reasons in public interest. If an order is passed
under Section 20(3) without recording reasons in the public interest, it
can be challenged. But in the instant case, the facts available on record
have been discussed and we do not find any violation of the provision
on that account. Rather, the order contains reasons and the provision
was invoked in public interest. Thus, on the facts, the judgment in the
case of Jashmina Dilip Devda (supra) cannot be applied to the
present case.
27. The other judgment is in the case of Ravindranath GE
Medical Associates Private Limited (supra), where a finding has
been recorded in paragraph 13. Therein also, the Court reiterated that
reasons are to be recorded in public interest and there can be no
quarrel that for invocation of Section 20(3) of the Act of 1994, reason
is to be recorded in writing for suspension of registration and that too
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when it is in public interest.
28. We find that, in the case on hand, the orders under challenge
contain reasons and that too in public interest to invoke the provisions
aforesaid. Reasons have been recorded in writing and we have already
expressed our view that it is not required to be narrated elaborately,
because it is only temporary suspension and not suspension for a
definite period, which can be only when the provision of Section 20(1)
of the Act of 1994 or Section 5(1) of the Act of 1997 is invoked.
29. In the light of the discussions made above, we find reasons
to cause interference in the order passed by the learned Single Judge.
Thus, the order under challenge is set aside and the writ appeals are
allowed. It is, however, with liberty to the respondent/writ petitioner,
if they so choose, to approach the State Appropriate Authority, through
the Joint Director of Health Services, on all the grounds available to
them either on facts or on law other than what has already been
discussed and decided by us vide this judgment. It is also with a
further direction to the appellants that if they would proceed further, it
should be done expeditiously, because ultimately if the case is found in
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favour of the respondent/writ petitioner's hospital, they may not suffer
for an indefinite period.
There will be no order as to costs. Consequently,
C.M.P.Nos.12849, 12910 and 12914 of 2022 are closed.
(M.N.B., CJ) (D.B.C., J.)
05.08.2022
Index : Yes/No
bbr
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THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARHY, J.
bbr
W.A.Nos.1758 and 1759 of 2022
05.08.2022
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