Dr.Shubash Singh, vs Maharashtra Medical Council,

ordjud (3)

Bombay High Court
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7560 OF 2014
Dr.Shubash Singh, )
Sanskar Plot No.101/4, )
Swami Nityanand Marg, )
Near Garden Hotel, Panvel-410206 )…Petitioner.
Vs.
Maharashtra Medical Council, )
189-A, Anand Complex, )
2nd Floor, Sane Guruji Marg, )
Arthur Road Naka, Chinchpokali (West) )
Mumbai-400011. )…Respondent
…..
Mr.S.C.Naidu I/b. M/s.C.R.Naidu & Co., for the Petitioner.
Mr.Rahul Nerlekar, for the Respondent.
……
CORAM: A. S. OKA &
G. S. KULKARNI, JJ.
RESERVED ON: 15st September, 2014
PRONOUNCED ON : 7th October,2014.

JUDGMENT:- (PER G.S.KULKARNI, J.)
1. Rule returnable forthwith. Heard finally by consent of the learned
Counsel appearing for the parties.
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Pvr2/13 wp7560-14.doc 2. By this Writ Petition filed under Article 226 of the Constitution of
India, the petitioner who is a Medical Practitioner challenges the order passed by
the respondent – Maharashtra Medical Council, dated 9th July,2014 which was
received by the petitioner on 17th July,2014, suspending the petitioner’s
registration.
3. It is the petitioner’s case that he is a qualified and experienced
orthopedic surgeon practising at Panvel since the year 1992. The petitioner
claims to be a Director of Panvel Medical Research Centre, a company registered
under Section 25 of the Companies Act,1956 and managing Peneacea Hospital
(for short ‘the hospital’). It is the petitioner’s case that in December,2002, the
hospital had purchased a sonography machine when the said hospital had full
fledged Gynecologist. The Gynecologist was working in the said hospital till the
year 2005 and after the Gynecologist left the hospital, the hospital only had an
orthopedic department. On account of this, since 2006 the sonography machine
had become non functional and also has become non repairable.
4. It is the petitioner’s case that the sonography machine was duly
registered under the provisions of the Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act,1994 (for short ‘the PCPNDT
Act’). It is the petitioner’s case that the said sonography machine was completely
redundant in orthopedic practice and therefore, lying idle in the premises of the
hospital. That one Dr.Bhavna Narayanrao Telang, Medical Superintendent,
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Panvel Rural Hospital was appointed by a notification in the official gazette as an
appropriate authority from 24th March,2010 to inspect all the clinics and
sonography centres as per the provisions of the PCPNDT Act. As per the
directions of Civil Surgeon, Alibag, Dr.Bhavna N.Telang alongwith
representatives of the Tahasildar, Panvel Municipal Council and others visited
the hospital on 23rd June,2011 and on 24th June,2011 for inspection of records. In
the said inspection, it was informed that the sonography machine was not in use
and was non repairable. The petitioner produced a certificate to that effect of
M/s.GEC, the manufacturer of the machine.
5. The inspection team submitted a report that the petitioner had
violated the provisions of PCPNDT Act and on a complaint made in that regard a
Criminal Case No.810 of 2011 was filed against the petitioner before the Court
of Judicial Magistrate, First Class at Panvel. The Court of Judicial Magistrate,
First Class, by its judgment and order dated 24th December,2013 convicted the
petitioner under Sections 19, 29 read with Section 23 of the PCPNDT Act and
was sentenced to suffer simple imprisonment for one month and to pay a fine of
Rs.1000/-.
6. The petitioner being aggrieved by the order of conviction passed by
the Court of Judicial Magistrate First Class, Panvel, approached the Sessions
Court at Alibag by filing Appeal no.3 of 2014. Alongwith the appeal, the
petitioner filed an application seeking suspension of the order of conviction and
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the sentence passed against the petitioner. Initially an order came to be passed by
the learned Sessions Judge, Raigad on 4th January,2014 suspending the sentence
as awarded by the learned J.M.F.C. pending the hearing of the appeal.
7. The Additional Director, Medical Services, Family Welfare
Department becoming aware of the conviction of the petitioner by the Court of
JMFC, Panvel, informed the respondent of the same by its letter dated 28 th
March,2014. The respondent taking cognizance of a letter dated 28 th March,2014
addressed by the Additional Director, Medical Services, Family Welfare
Department called upon the petitioner by its letter dated 21 st April,2014 as to why
the respondent should not take action against the petitioner under the PCPNDT
Act,2003 and the Maharashtra Medical Council Act,1965. The petitioner replied
to this letter of the respondent by its letter dated 26th April,2014 informing that
the petitioner had preferred an appeal and that the sentence was suspended during
the pendency of the appeal. The respondent, thereafter, issued notice dated 4 th
June,2014 inter alia stating that the respondent would held an inquiry into the
complaint received by it and called upon the petitioner to remain present
alongwith the relevant papers on 11 th June,2014. At the hearing held on 11 th
June,2014, the petitioner was informed by the respondent that as the order of
conviction passed against him was not stayed, his registration with the
respondent was suspended. On 11 th June,2014 itself the petitioner preferred an
application before the Sessions Court in the pending criminal appeal stating that
an action is being resorted by the Maharashtra Medical Council against him in
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view of the conviction and prayed that the order of conviction passed by the
learned J.M.F.C., Panvel, be stayed/suspended. By a letter dated 11 th / 12th
June,2014 passed by the learned Sessions Judge, Raigad, Alibag, the order of
conviction dated 24th December,2013 passed by the learned J.M.F.C., Panvel was
suspended during the pendency of the appeal. On 12 th June,2014, the petitioner
by his letter addressed to the Chairman of the respondent informed of this order
dated 12th June,2014 passed by the Sessions Court suspending the conviction.
The respondent however issued a letter dated 9 th July, 2014 to the petitioner
informing him that his registration with the respondent was suspended from 11 th
July,2014 and the petitioner is refrained from medical practice during the period
of suspension.
8. The respondent issued order dated 9th July, 2014 suspending the
registration of the petitioner on the ground that the petitioner was convicted by
the Court of Judicial Magistrate, First Class, Panvel, under the PCPNDT Act and
the petitioner was ordered to refrain from medical practice or profession of any
nature during the period of suspension. The petitioner in the present petition
impugns this order suspending the petitioner’s registration and prohibiting the
petitioner from undertaking medical practice/ profession during the period of
suspension.
9. Mr.Naidu, learned Counsel appearing for the petitioner submits that
the respondent could not have passed the impugned order when the order of
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conviction as passed by the learned J.M.F.C., Panvel, was suspended by an order
dated 12th June,2014 passed by the learned Sessions Judge in the criminal appeal
filed by the petitioner. He submits that the respondent could not have proceeded
to pass the impugned order when the petitioner had duly informed the respondent
of the order dated 12 th June,2014 passed by the learned Sessions Judge, Raigad,
suspending the sentence as awarded by the learned JMFC. He submits that the
respondent has shown undue haste in passing the impugned order inasmuch as
there were about 90 patients who were taking orthopedic treatment at the
petitioner’s hospital and that grave and irreparable prejudice would be caused to
the petitioner as also to the patients under the treatment by the impugned order
passed by the respondent. He submits that in the teeth of the order dated 12 th
June,2014 passed by the learned Sessions Judge, suspending the conviction, the
impugned order dated 9th July,2014 passed by the respondent is rendered illegal.
10. Mr.Rahul Nerlekar, learned Counsel appearing for the respondent
has supported the order dated 9th July,2014 passed by the respondent. It is
submitted that the respondent is justified in passing the impugned order on
account of the petitioner’s conviction under the PCPNDT Act by the Court of
learned JMFC, Panvel.
11. Having considered the rival submissions, it can be seen that there is
no dispute that the Sessions Court by its order dated 12 th June,2014 had
suspended the order of petitioner’s conviction as passed by the learned J.M.F.C..
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A perusal of the impugned order dated 9 th July,2014 passed by the respondent do
not reflect any consideration to the said order passed by the learned Sessions
Court suspending the petitioner’s conviction. The effect of the order dated 12 th
June,2014 passed by the learned Sessions Court was that during the subsistence
of the said order the conviction and the sentence remained suspended and that the
petitioner could not have been categorised as a person against who, a conviction
order is in operation so as to pass an order of suspension of his medical practice
as sought to be done by the respondent. In any event, the respondent could not
have proceeded to pass the impugned order disregarding the order dated 12 th
June,2014 passed by the learned Sessions Court.
12. In this context it would be useful to make a reference to the law
laid down by the Supreme Court in the case of “Rama Narang Vs. Ramesh
Narang and others; (1995)2 Supreme Court Cases 513”, which arose in the
context of an order passed by the Delhi High Court in exercise of power under
Section 389(1) of Code of Criminal Procedure granting stay to an order of
conviction so as to not result in a disqualification envisaged under Section 267 of
the Companies Act. The Supreme Court in considering the effect of an order
passed under Section 389(1) of Code of Criminal Procedure qua a
disqualification as would arise under Section 267 of the Companies Act has held
thus:-
19. That takes us to the question whether the
scope of Section 389(1) of the Code extends to
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conferring power on the Appellate Court to stay the
operation of the order of conviction. As stated earlier,
if the order of conviction is to result in some
disqualification of the type mentioned in Section 267
of the Companies Act, we see no reason why we
should give a narrow meaning to Section 389(1) of
the Code to debar the court from granting an order to
that effect in a fit case. The appeal under Section 374
is essentially against the order of conviction because
the order of sentence is merely consequential thereto;
albeit even the order of sentence can be independently
challenged if it is harsh and disproportionate to the
established guilt. Therefore, when an appeal is
preferred under Section 374 of the Code the appeal is
against both the conviction and sentence and
therefore, we wee no reason to place a narrow
interpretation on Section 389(1) of the Code not to
extend it to an order of conviction, although that issue
in the instant case recedes to the background because
High Courts can exercise inherent jurisdiction under
Section 482 of the Code if the power was not to be
found in Section 389(1) of the Code………………….” 13. In a recent judgment of the Supreme Court in the case of “Lily Thomas
Vs. Union of India & Ors.; ((2003) 7 Supreme Court Cases 653)”, in dealing with an issue arising under Section 8 of the Representation of the People Act,1951 and the provisions of Article 102(2) and Article 191 of the Constitution of India, concerning a disqualification for membership of either House of Parliament or a Legislative Assembly or a Legislative Council of the State, the Supreme Court referring to its
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Pvr9/13 wp7560-14.doc previous decision taken in the case of “Rama Narang Vs. Ramesh Narang and
others” (supra) has observed thus:
“34. We do not also find merit in the
submission of Mr.Luthra and Mr.Kuhad that if a
sitting Member of Parliament or the State Legislature
suffers from a frivolous conviction by the trial court
for an offence given under sub-sections (1), (2) or (3)
of Section 8 of the Act, he will be remediless and he
will suffer immense hardship as he would stand
disqualified on account of such conviction in the
absence of sub-section (4) of Section 8 of the Act. A
three-Judge Bench of this Court in Rama Narang V.
Ramesh Narang has held that when an appeal is
preferred under Section 374 of the Code of Criminal
Procedure (for short “the Code”) the appeal is
against both the conviction and sentence and,
therefore, the appellate court in exercise of its power
under Section 389(1) of the Code can also stay the
order of conviction and the High Court in exercise of
its inherent jurisdiction under Section 482 of the Code
can also stay the conviction if the power was not to be
found in Sectin 389(1) of the Code.
35. In Ravikant S.Patil Vs. Sarvabhouma
S.Bagah a three-Judg Bench of this Court, however,
observed: (SCC p.679, para 15)
“15. It deserves to be clarified that an order
granting stay of conviction is not the rule but is
an exception to be resorted to in rare cases
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pending upon the facts of a case. Where the
execution of the sentence is stayed, the
conviction continues to operate. But where the
conviction itself is stayed, the effect is that the
conviction will not be operative from the date of
stay. An order of stay, of course, does not
render the conviction non-existent, but only nonoperative. Be that as it may. Insofar as the
present case is concerned, an application was
filed specifically seeking stay of the order of
conviction specifying the consequences if
conviction was not stayed, that is, the appellant
would incur disqualification to contest the
election. The High Court after considering the
special reason, granted the order staying the
conviction. As the conviction itself is stayed in
contrast to a stay of execution of the sentence, it
is not possible to accept the contention of the
respondent that the disqualification arising out
of conviction continues to operate even after
stay of conviction.
In the aforesaid case, a contention was raised by the
respondents that the appellant was disqualified from
contesting the election to the Legislative Assembly
under sub-section (3) of Section 8 of the Act as he had
been convicted for an offence punishable under
Section 366 and 376 of the Penal Code and it was
held by the three-Judge Bench that as the High Court
for special reasons had passed an order staying the
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conviction, the disqualification arising out of the
conviction ceased to operate after the stay of
conviction. Therefore, the disqualification under subsection (1), (2) or (3) of Section 8 of the Act will not
operate from the date of order of stay of conviction
passed by the appellate court under Section 389 of the
Code or the High Court under Section 482 of the
Code.” (emphasis supplied)
14. The order dated 12th June,2014 passed by the learned Sessions
Judge whereby the conviction of the petitioner has been suspended is in exercise
of the powers under Section 389(1) of Cr.P.C. The petitioner had appropriately
moved an application before the Sessions Court invoking the powers under
Section 389(1) of Cr.P.C. by pointing out that the order of conviction if was
permitted to remain in operation, the same would seriously prejudice and
adversely affect the livelihood of the petitioner inasmuch as the petitioner would
be suspended from the medical practice by the respondents. It is on complete
satisfaction of all these facts by a detailed order, the learned Sessions Judge has
suspended the conviction of the petitioner. We have already taken into
considering as to what would be the effect of an order passed under Section
389(1) of Cr.P.C. by which the conviction is suspended. The order passed by the
Sessions Court under Section 389(1) of Cr.P.C. could not have been overlooked
by the respondent.
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15. Hence, there is much substance in the submissions of the learned
Counsel for the petitioner in assailing the impugned order passed by the
respondent. The order of suspension of the petitioner’s medical practice as
passed by the respondent undoubtedly has severe consequences and a drastic
effect, inasmuch as the petitioner’s livelihood stands directly affected. We are,
therefore, of the considered opinion that the impugned order deserves to be
stayed during the subsistence of the order dated 12 th June,2014 passed below
Exhibit 12 by the Court of learned Sessions Judge, Raigad in Criminal Appeal
no.3 of 2014. We, therefore, pass the following order:-
ORDER
(i) The impugned order dated 9th July,2014 passed by the respondent
shall remain stayed till the subsistence of the order dated 12 th June,2014 passed
below Exhibit 12 by the learned Sessions Court in Criminal Appeal no.3 of 2014.
(ii) In the event, the order dated 12 th June,2014 stands vacated for any
reason or the Criminal Appeal no.3 of 2014 filed by the petitioner is dismissed by
the learned Sessions Judge, Raigad, the impugned order dated 9 th July,2014
passed by the respondent shall forthwith come into operation. The petitioner
undertakes to forthwith give intimation of such order to the respondent. The
undertaking of the petitioner is accepted. If the appeal of the petitioner is
allowed by the Sessions Court and the petitioner is acquitted, in that case the
impugned order dated 9th July,2014 passed by the respondent shall stand set
aside.
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(iii) The Writ Petition is allowed in the aforesaid terms.
(iv) No order as to costs.
(G. S. KULKARNI, J.) (A.S.OKA, J.)
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