IN THE HIGH COURT OF PUNJAB AND HARYANA
Civil Writ Petition No.15152 of 2007
Date of decision: 7th July, 2009
State of Haryana
CORAM: HON’BLE MR. JUSTICE T.S. THAKUR
HOB’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ashwinie Kumar Bansal, Advocate for the petitioner. Mr. Onkar Singh Batalvi, Advocate for
Dr. Anmol Rattan Sidhu, Assistant Solicitor General of India. Mr. Randhir Singh, Additional Advocate General Haryana. Notes: 1. Whether reporters of local newspapers may be allowed to see the judgment?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the Digest? T.S. THAKUR, CJ. (ORAL)
In this petition filed in public interest, petitioner prays for a mandamus directing the respondents to conduct an inquiry into the 250 illegal abortions of female foetuses leading to recovery of large quantity of foetal remains from a 20 feet deep Well/ underground septic tank at Buala Nursing Home, Pataudi, District Gurgaon, as reported in a section of the press. Petitioner also prays for mandamus directing the respondents to take appropriate action against those guilty of negligence in discharge of their official functions leading to uninterrupted abortions of female foetuses.
Civil Writ Petition No. 15152 of 2007 2 When this petition came up before us for orders on 24th October, 2008, it was pointed out by Mr. Ashwinie Bansal, counsel appearing for the petitioner that while an inquiry had been conducted by the Divisional Commissioner, Patiala in a somewhat similar incident involving abortion of female foetus in the district of Patiala and while action against those found involved in the said incident has been initiated, but no inquiry, administrative or otherwise, has been conducted in a similar incident involving recovery of foetal material from the place mentioned earlier. It was submitted that conducting of an appropriate administrative inquiry by the Divisional Commissioner into the said episode would not only bring to light the true facts but would also be a basis for taking action against those found negligent in discharge of their duties. This Court, finding merit with that submission, had directed the Divisional Commissioner, Gurgaon to hold an administrative inquiry into the recovery of female foetuses from the septic tank Buala Nursing Home, Pataudi, District Gurgaon and also identify those who prima facie seem to be guilty of any lapses in the discharge of their official duties, leading to the said incident. The role of officers responsible for the implementation of PNDT Act, 1994, as amended in year 2002, was also directed to be examined by the Divisional Commissioner and to suggest remedial measures to prevent such incident in future. Report of the Divisional Commissioner was directed to reach this Court not later than three months from the date a copy of that order was made available to Mr.Rameshwar Malik, counsel for the respondent.
In compliance with the above direction, an inquiry has been conducted by the Divisional Commissioner, Gurgaon and report thereof place on record before us. The Divisional Commissioner, Gurgaon has inter alia dealt with the lapses on the part of medical authorities in the Civil Writ Petition No. 15152 of 2007 3 implementation and enforcement of the provisions of the Act aforementioned and identified following four doctors as persons, who had neglected in performance of their duties:
1. Dr. D.V. Saharan, Civil Surgeon, Gurgaon;
2. Dr. S.S. Dalal, Civil Surgeon, Gurgaon;
3. Dr. M.D. Sharma, DFWO, Gurgaon; and
4. Dr. Jai Narain, SMO, CHC Pataudi.
The report deals with individual roles of these doctors and the manner in which they are said to have committed dereliction in discharge of their duties. The report also makes certain other suggestions and remedial measures that are required to be taken to prevent episodes like the ones under scrutiny, taking place in future. This includes proper information system at village level to be run through multi-purpose health workers network and regular and timely inflow of inputs to prevent distortions and to spread awareness and guidance among such cases. The report also recommends proactive approach in the matter of spreading awareness among the people regarding the provisions of the Act and submission of prompt forensic reports, software in ultrasound machines, authorization, legal advisory support and video recording of raids etc.
Mr. Bansal submits that while respondents have, pursuant to the report of the Divisional Commissioner, initiated action against two of the doctors indicted in the report, no action has been taken against the remaining two. He urges that there is no justification for the authorities to sit over against the remaining two doctors, who have been prima facie found to be blameworthy and therefore, not to be proceeded against. Civil Writ Petition No. 15152 of 2007 4 Mr. Randhir Singh, however submits that action has already been initiated against three out of four doctors, as per the report submitted by the Divisional Commissioner and chargesheets have already been served upon the two doctors, namely Dr. M.D. Sharma and Dr. Jai Narain. So far as Dr. D.V. Saharan is concerned, the same, according to Mr.Randhir Singh, is being served upon him within a fortnight. Similarly, the respondents, according to Mr. Randhir Singh, are ready to examine the case of Dr.S.S. Dalal also and take whatever action may be called for against the said officer for any dereliction of duty. These submissions, in our opinion, should allay the apprehension of Mr. Ashwinie Bansal that the respondents are dragging their feet in the matter of taking appropriate action against the doctors found negligent in the discharge of their duties. All the same, we see no difficulty in directing the respondents to expedite the proceedings against the doctors mentioned above, on the basis of the report and to take the same to its logical conclusion, expeditiously, but not later than six months from the date chargesheets are served.
Mr. Bansal next submitted that the notifications under the Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of sex selection) Act, 1994 had not been published by the Government in the official gazette, which has led to many doctors escaping action against them. He refers to a notification dated 24th October, 1997 appointing Civil Surgeon of Districts as appropriate authorities for the PNDT Act which notification was not, on account of official apathy, published in the Government gazette. Counsel further submits that the said notification has not been published in the official gazette, even till date. Civil Writ Petition No. 15152 of 2007 5 This position was not disputed by Mr. Randhir Singh, who has filed a brief note, in which it is inter alia stated that the non-publication of the notification in question, in the official gazette, had come to the notice of the State Government recently and that non-publication was on account of some error committed by the printing press. The government is, according to Mr. Singh, examining the feasibility of either issuing a fresh notification with retrospective effect or an ordinance that would validate the notification already issued.
We do not consider it necessary at this stage to examine whether the remedial steps, which the Government is contemplating, would meet the requirements of law, for that question does not immediately arise for our consideration. All that we need say is that non- publication of an important statutory notification in the official gazette adversely reflects upon the official machinery of the State Government charged with implementing an important legislation like the PNDT ACT. It is regrettable that for a period of over 12 years non publication of the notification in question never came to the notice of the authorities concerned. Mr. Randhir Singh, however points out that most of the steps needed to be taken in terms of the provisions of the Act, have already been taken and a notification nominating a multi-member State appropriate authority has been duly issued and published in the official gazette. He further stats that a State Supervisory Board has also been constituted apart from the State and District Advisory Committees. In the circumstances, therefore, nothing further remains to be done or survives for consideration, in this petition, which can be disposed of in the light of observations made above.
Civil Writ Petition No. 15152 of 2007 6 We, accordingly dispose of this petition with the direction that proceedings already initiated, or to be initiated, shall be expedited by the concerned authorities and appropriate action taken against all those found to be violating provisions of the Act, or derelicting the discharge of their duties for the same.
[T. S. THAKUR]
[KANWALJIT SINGH AHLUWALIA]
July 7, 2009