Gujarat High Court
Trisha Maternity And Nursing Home vs State Of Gujarat on 4 March, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/1679/2024 ORDER DATED: 04/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1679 of 2024
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 1679 of 2024
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TRISHA MATERNITY AND NURSING HOME
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. SHALIN MEHTA, SR. ADVOCATE WITH MR P P MAJMUDAR(5284) for
the Petitioner(s) No. 1
MR. VIPUL B SUNDESHA(6689) for the Petitioner(s) No. 1
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
MS RV ACHARYA(1124) for the Respondent(s) No. 2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/03/2024
ORAL ORDER
1. By way of present petition, the petitioner herein has prayed for the following reliefs:
"38. In the premises aforesaid, the petitioner most humbly and respectfully prays that:
(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting the impugned order dated 22.01.2024 passed by respondent no.2-authority (at ANNEXURE-A hereto) and further be pleased to allow the practice: petitioner to continue his practice;
(B) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay Page 1 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined operation, implementation and execution of order dated 22.01.2024 passed by respondent no.2-authority, and further be pleased to direct the concerned authority to de-seal the machine of the petitioner:
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
2. Heard Mr. Shalin Mehta, the learned Senior Counsel assisted by Mr. Panthil P. Majmudar, the learned advocate appearing for the petitioner, Ms R.V. Acharya, the learned advocate appearing for the respondent Nos. 2 and 3 and Ms. Dhwani Tripathi, the learned AGP for respondent No.1.
3. The petitioner is a Maternity & Nursing Home and the present petition is filed by the sole proprietor of the said Maternity & Nursing Home.
4. The petitioner herein came to be issued communication dated 5.9.2023, duly produced at Annexure "H", at page-83 & 84, calling upon the petitioner herein to furnish certain details, as referred in the said communication. Pursuant to the said communication dated 5.9.2023, the petitioner on 8.9.2023, placed on record, in necessary format, the requisite information, which is duly produced at Annexure "I" at Page-85 and 86.
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5. The respondent authority issued show-cause notice dated 22.9.2023 under the Pre--conception and Pre-Natal Diagnostics Techniquest (Prohibition of Sex Selection) Act, 1994 (for short " PC & PNDT Act") for violation of certain provisions of the said PC & PNDT Act, a copy of the show cause notice dated 22.9.2023 is duly produced at Page-87 Annexure "J", which reads thus:
"(1) Sex determination of foetus is being carried out in your institute. Therefore, it is found that violation of Section 3-A and Section - 22 of PC and PNDT Act has been committed.
(2) Sonography of beneficiaries is being conducted by your institute. Out of which, forms of some beneficiaries are not filled up. Hence, as forms of certain beneficiaries are not filled up, it is found that violation of Section 4(3), Rule 9 (1), Rule 9(4) and Rule 10(1-A) of PC and PNDT Act has been committed.
(3) Sonography reports are not given by the institute to the beneficiaries. Hence, it is found that violation of Section - 29 of PC and PNDT Act has been committed.
Thus, it is found that the institute has violated the Page 3 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined provisions of Rule-18(5) Considering the above details, as per the powers vested under the provisions of Section-20(1) of the PC and PNDT Act, 1994, this written notice has been issued to you as to why legal action should not be taken against you for violation of PC and PNDT Act, 1994. You are hereby informed to submit your written clarification, including required material documentary evidences, within five days. If you fail to submit your written clarification regarding this notice or if the same is not found satisfactory, you will be personally liable for any legal issue that may arise against you".
6. Pursuant to the said show-cause notice, the petitioner submitted a detailed reply and explanation to the authority on 25.9.2023. Pursuant to the explanation rendered by the petitioner herein, the petitioner herein was called upon for personal hearing on 6.10.2023 by the respondent No.3. The impugned order dated 22.1.2024 is passed by the respondent No.3, taking into consideration the reply filed by the petitioner herein pursuant to the notice dated 5.9.2023 i.e. reply dated 8.9.2023 and 25.9.2023, the proceedings during the personal hearing on 6.10.2023 and the report of the Advisory Committee dated 13.12.2023.
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7. By the impugned order dated dated 22.1.2024 passed by the respondent No.2 authority, Sonography / Ultra sound machine licenced to the petitioner is directed to be sealed, for violation of Sections 3-A, 4(3), 22, 29 of the PC&PNDT Act and Rules 9(1), 9(4), 10(1-A), 18(5) of the PC & PNDT Rules. The said order dated 22.1.2024 reads thus:
"Meeting of District Advisory Committee was convened vide letter under reference (6). Accordingly, it has been resolved that the Sub District Appropriate Authority, PC and PNDT Act
- cum - Taluka Health Officer, Mahesana shall initiate prompt action as per the rules for violation of Section-3 A, Section- 4(3), Section-22, Rule-9(1), Rule-9(4), Rule-10(1-A) and Rule- 18(5) of the PC and PNDT Act, 1994 by Trisha Maternity and Nursing Home, Gozariya.
Considering the details of Reference (1) to (6), as Trisha Maternity and Nursing Home, Gozariya has committed violation of Section-3 A, Section-4(3), Section-22, Rule-9(1), Rule-9(4), Rule-10(1-A) and Rule-18(5) of the PC and PNDT Act, 1994, order is passed to seal the Sonography Machine of the institute in the presence of independent panchas. Action taken report in this regard be submitted.
8. Being aggrieved by the impugned order dated 22.1.2024 passed by the respondent No.2 authority, the petitioner herein has approached this Court for the reliefs, as referred above, under Article 226 of the Constitution of India.
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9. Heard Mr. Shalin Mehta, the learned Senior Counsel appearing for the petitioner.
9.1 Mr. Mehta, the learned Senior Counsel, at the outset, submitted that the impugned order, passed by the respondent No.3 is a non-speaking order and the same is an unreasoned order. It was submitted that though the petitioner has duly replied to the notices issued by the competent authority dated 5.9.2023 and 22.9.2023, by replies dated 8.9.2023 and 25.9.2023, the impugned order has been passed, without any reasons and without considering the documents which are duly produced by the petitioner at Page-80, 85, 86.
9.2 On the aforesaid short ground, it was submitted that the order impugned is unsustainable, the same being an unreasoned order. It was submitted that no reasons are assigned as to how the petitioner has violated the provisions of the PC & PNDT Act, as stated in the impugned order, though the petitioner in the reply, has placed on record, the relevant material that could have been considered by the competent authority, as also the submissions at the time of hearing and the written reply.
9.3 Reliance was placed on Para-4 of the reply dated 25.9.2023, wherein it was submitted that the petitioner herein has rendered explanation with respect to each and every provisions which, according to the authority, was Page 6 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined violated by the petitioner herein. It was submitted that however, while passing the impugned order, no reasons are accorded to the reply that was filed by the petitioner is not dealt with at all.
10. Ms. R.V. Acharya, the learned advocate appearing for the respondent Nos. 2 and 3 submitted that the petitioner was granted an opportunity of hearing. Placing reliance on the recommendation by the Advisory Committee wherein, reliance was placed on Resolution No. 8.1, at page-139, wherein the said recommends that action be taken against the petitioner for violation of Section-3, Section-4(3), Section-22, Rule-9(1), Rule-9(4), Rule-10(1-A) and Rule-18(5) of the PC and PNDT Act, 1994.
10.1 Ms. Acharya, the learned advocate has submitted that relying on the statement of the decoy witness, at the instance of Chairman, PC&PNDT, District Advisory Committee, the Form-F was not filled qua decoy witness and in view thereof, based on her statement, it was recommended that the action be taken under the PC & PNDT Act.
10.2 It was submitted that this is for the second time that the respondent authority has come across such act at the end of the petitioner after drawing requisite panchnama. It was submitted that criminal proceedings are pending Page 7 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined against the petitioner and conduct of the petitioner is such that the order impugned passed by the competent authority not be interference with. It was reiterated that the sting operation and videography show that the petitioner has conducted sonography of the decoy patient without filing form -F without obtaining signature of the pregnant lady.
10.3 Ms. Acharya, the learned advocate submitted that the petitioner herein, though performs Sonography, failed to fill Form -F as per the provisions of the PC & PNDT Act and even after Sonography, no report is shared with the decoy patient.
10.4 Ms. Acharya lastly submitted that petitioner be relegated to avail statutory remedy of preferring appeal under Section 21 of the PC & PNDT Act.
11. Mr. Shalin Mehta, the learned Senior Counsel, relying on the Rejoinder filed by the petitioner, denied that the petitioner is indulging into detection of sex selection of the foetus.
11.1 It was submitted that the allegations with regard to decoy patient "Rituben Jigarji Thakor" is concerned, the name of Rituben Jigarji Thakor is shown in OPD register. It was submitted that to each patient a receipt is given Page 8 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined whose sonography is conducted.
11.2 Mr. Mehta, the learned Senior Counsel denied that Sonography of the decoy patient was carried out by the petitioner without filling up Form-F and without taking signature on any of the Forms. It was denied that Sonography was carried out by the petitioner without taking her signature on the consent form as well as without filling up Form-F. 11.3 Mr. Mehta further denied that decoy patient was not given any report of the Sonography neither any signature was obtained on any of the Forms by the petitioner. It was also denied that looking to the statement of the decoy patient, petitioner has violated the provisions of Section-3(a), Section-4(3), Section-22, Rule-9(1), Rule- 9(4), Rule-10(1-A) and Rule-18(5) of the PC and PNDT Act, 1994, by not filling up Form F, which is mandatory provisions of the Act.
ANALYSIS:
12. Considered the aforesaid submissions advanced by the learned advocates appearing for the respective parties.
13. The impugned order passed by the respondent No.2 authority dated 22.1.2024 is unreasoned/non-speaking Page 9 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined order. While respondent No.2 has passed the impugned order without taking into consideration the replies filed by the petitioner, the contentions of the petitioner and documents produced by the petitioner and has failed to deal with the same.
14. It is also apposite to refer Section 29 of the PN&PNDT Act and Rule 9 of the PC&PNDT Rules.
29. Maintenance of records.--
"(1) All records, charts, forms, reports, consent letters and all the documents required to be maintained under this Act and the rules shall be preserved for a period of two years or for such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the Appropriate Authority or to any other person authorised by the Appropriate Authority in this behalf."
"9. Maintenance and preservation of records.
- [(1) Every Genetic Counselling Centre, Genetic Laboratory, [Genetic Clinic including a Mobile Genetic Clinic] Page 10 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined [ Substituted by G.S.R. 109(E), dated 14.2.2003 (w.e.f. 14.2.2003).], Ultrasound Clinic and Imaging Centres shall maintain a register showing, in serial order, the names and addresses of the men or women given genetic counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouse or father and the date on which they first reported for such counselling, procedure or test.] (2) The record to be maintained by every Genetic Counselling Centre, in respect of each woman counselled shall be as specified in Form D. (3)[ The record to be maintained by every Genetic Laboratory, in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be as specified in Form E.] (4)[ The record to be maintained by every [Genetic Clinic including a Mobile Genetic Clinic] [Substituted by G.S.R. 109(E), dated 14.2.2003 (w.e.f. 14.2.2003).], in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be as specified in Form F.] (5)The Appropriate Authority shall maintain a permanent record of applications for grant or renewal of certificate of registration as specified in Form H. Letters of intimation of every change of employee, place, address and equipment installed shall also be preserved a permanent records.
(6)All case-related records, forms of consent, laboratory results, microscopic pictures, sonographic plates or slides, recommendations and letters shall be preserved by the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic for a period of two years from the date of completion of Page 11 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined counselling, pre-natal diagnostic procedure or pre-natal diagnostic test, as the case may be. In the event of any legal proceedings, the records shall be preserved till the final disposal of legal proceedings, or till the expiry of the said period of two years, whichever is later.
(7) In case the Genetic Counselling Centre or Genetic Laboratory of Genetic Clinic maintains records on computer or other electronic equipment a printed copy of the record shall be taken and preserved after authentication by a person responsible for such record.
(8) [Every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centres shall send a complete report in respect of all pre-conception or pregnancy related procedures/techniques/tests conducted by them in respect of each month by 5th day of the following month to the concerned Appropriate Authority.]"
15. On perusal of the information supplied by the petitioner to the respondent No.2 by communication dated 8.9.2023, the information as sought for is supplied by the petitioner. It is also stated in the said communication that the no separate register is prepared by the petitioner with respect to ANC i.e. Antenatal Care (Anti Natal Diagnostic Test) and Rule 9(1) of the Rules.
15.1 The learned advocate appearing for the respondent authority is not in a position to controvert the fact that information sought for was supplied by hte petitioner herein by communication dated 8.9.2023 wherein there Page 12 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined appears to be due compliance of Rule (9) of the Rules.
15.2 This Court has perused the show-cause notice dated 22.9.2023, wherein explanation is sought for from the petitioner herein with respect to Form-F, which resulted in violation of provisions of Sections 4(3), 9(1), 9(4), 10(1-A), 18(5) of the PC & PNDT Act as also violation of Section 29 of the Act. Section 29 is to be read with Rule 9 of the Rules, as referred above.
15.3 While passing the impugned order, the respondent No.2 has failed to consider with the information supplied by the petitioner herein, wherein the petitioner has duly supplied information with respect to maintenance of record under Section 29 of the PC&PNDT Act read with Rule 9 of the Rules, as referred above, by communication dated 8.9.2023. In light of the aforesaid, this Court is inclined to exercise the extra-ordinary jurisdiction under Article 226 of the Constitution of India rather than relegating the petitioner to avail statutory remedy under Section 21 of the Act. In the opinion of this Court, in absence of any reasons, no fruitful purpose would be served in relegating the petitioner to avail the alternative remedy by filing appeal under Section 21 of the PC&PNDT Act.
16. At this stage, it is apposite to refer to the ratio as Page 13 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined laid down in the case of Whirlpool Corporation V/s. Registrar of Trade Mark, Mumbai reported in (1998) 8 SCC 1, Para-15 reads thus:
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
17. It is also apposite to refer to the ratio as laid down in the case of Kranti Associates Private Limited versus Masood Ahmed Khan, reported in 2010 (9) SCC 496, wherein Para-51 reads thus:
"51. Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such Page 14 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in support of its conclusions.
c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior Courts.
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All Page 15 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
j. Insistence on reason is a requirement for both judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Page 16 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024 NEUTRAL CITATION C/SCA/1679/2024 ORDER DATED: 04/03/2024 undefined Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
18. In the facts of the present case and the position of law, as referred above, the impugned order dated 22.1.2024 passed by the respondent No. 2 authority is quashed and set-aside. Consequently, the concerned authority to de-seal the machine of the petitioner. The matter is remanded back to the respondent No.2 to decide afresh, in accordance with law.
This Court has otherwise not opined on the merits of the matter.
The Civil Application is also disposed of accordingly.
Direct Service is permitted.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 17 of 17 Downloaded on : Thu Mar 07 20:39:00 IST 2024