BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/09/2006 CORAM: THE HONOURABLE Mr. JUSTICE K. VENKATARAMAN W.P.NO. 98 of 2006 and M.P.No. 97 of 2006 M. Amirtham .. Petitioner vs The Joint Director of Medical and Rural Health Service and Family Welfare, Madurai at Usilampatty, Madurai District. .. Respondent PRAYER Petition is filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorari to call for the records relating to Ref. No.5740/P&D/05, dated 28.7.2005 pending on the file of the respondent and quash the same as illegal. !For Petitioner ... Mr. T. Lajapathi Roy ^For respondents ... Mr. M. Rajarajan Addl. Govt. Pleader :ORDER
By consent, the main writ petition itself is taken up for final
disposal.
2. The petitioner has come forward with the present writ petition
for an issuance of Certiorari calling for the records relating to the order of
the respondent dated 28.7.2005 in reference No.5740/P & D/05 and for quashing
the same.
3. The case of the petitioner is that she is running a scan center
in the name of M/s. Amirtham Scans and is attached with Maternal and Child
Health Center, at Thirumangalam, Madurai District. The Scan Center has been
registered under PNDT Act 1994 and it has been renewed upto 15.9.2009. The
Maternal Child Health Center, Thirumangalam is a center for family welfare
operations and also an approved center for medical termination of pregnancy.
4. The further case of the petitioner is that on the basis of a
complaint given by one Mrs. Phavalam, the respondent has passed the impugned
order dated 28.7.2005 by which he has asked the petitioner to close the scan
center and the scan center has been sealed by the respondent.
5. Mr. T. Lajapathiray, learned counsel for the petitioner has
submitted the following points in support of his contention that the order of
the respondent is liable to be set aside.
(a) The order of the respondent dated 28.7.2005 is only on the
instructions given by the Secretary, Health and Family Welfare Department,
Government of Tamilnadu. Hence, the respondent has not applied his mind
independently and passed the impugned order;
(b) The respondent has no jurisdiction to pass the impugned order;
( c) though the impugned order is dated 28.7.2005, it has been served on
the petitioner only on 3.8.2005 after the closure of the scan center and sealing
of the scan center on 28.7.2005;
( d) the impugned order has been passed by the respondent without any
notice and hence it is in violation of the principles of natural justice;
( e) even assuming that the Joint Director of Health and Family Welfare
has jurisdiction to pass the impugned order dated 28.7.2005, as per Section 17
of the Pre-conception and Pre-natal Diognostic Techniques (Prohibition of Sex
Selection) Act 1994 (herein after referred as ‘the Act’), the respondent can
pass only an order of suspension or cancellation of the registration and he has
no power to seal the premises;
(f) Though an appeal remedy is available under Section 21 of the Act, it
will be futile exercise because the respondent has passed the impugned order
dated 28.7.2005 at the instances of the Secretary, Health and Family Welfare
Department, Government of Tamil Nadu.
6. Per contra, the learned Government Advocate appearing for the
respondent has submitted that (a) the Joint Director of Medical Services, the
respondent herein has power to close the scan center (b) the impugned order has
been passed on the instructions of the Secretary to Government, Health and
Family Welfare, Government of Tamil Nadu which is based upon the complaint given
by Phavalam dated 12.7.2005. The scan centre has been closed only to enable
the respondent to conduct an enquiry. (c) The impugned order has been passed
after serving a notice to the petitioner which was not answered. There is a
remedy available under the Act by filing an appeal before the appropriate
authorities as enumerated under the Act.
7. Now let me deal with the points that have been urged by the
counsel for the petitioner one by one.
8. Insofar as the jurisdiction point that has been canvassed by the
counsel for the petitioner is concerned, it will be useful to refer to Section
17 of the Act. Section 17 (3) reads as follows:-
” The officers appointed as Appropriate Authorities under sub Section (1)
or Sub-Section (2) shall be,
(a) When appointed for the whole of the State or the Union
Territory, consisting of the following three members:-
(i)an officer of or above the rank of the Joint Director of Health and Family
Welfare – Chairperson;
(ii) an eminent woman representing women’s organisation
(iii) an officer of Law Department of the State or the Union territory
concerned:
9. The said provision makes it very clear that appropriate
authority means an officer of or above the rank of Joint Director of Health and
Family Welfare and Chairperson, an eminent woman representing workmen’s
organisation and an officer of Law Department of the State. But, unfortunately,
the impugned order has been passed only by the second respondent and hence, it
cannot be stated that the order impugned is passed by the appropriate authority
as enumerated under the Act. The learned Government Advocate could not dispute
the said fact. Hence, the argument of the learned counsel for the petitioner in
this regard has to be accepted.
10. As regards the argument of the learned counsel for the
petitioner that the respondent has not passed the order independently by
applying his mind and he has relied upon only the instructions of the Secretary,
Health and Family Welfare Department, since the order dated 28.7.2005 merely
states that “as per the instructions given by the Secretary, Health and Family
Welfare Department, Government of India, Tmt.M.Amirtham, Jawahar Street,
Thirumangalam, is instructed to close the scan center today i.e. 28.7.2005”.
This sounds reasonable. Hence, it can be safely concluded that the respondent
has passed the impugned order mechanically without applying his mind only on the
instructions of the Secretary, Health and Family Welfare Department, Government
of Tamil Nadu.
11. The next contention of the learned counsel for the
petitioner that the impugned order dated 28.7.2005 is passed without any notice
to the petitioner and hence it is violative of the Principles of natural
justice, has to be accepted for the simple reason that as per the impugned order
dated 28.7.2005, the petitioner has been asked to close the scan center on the
very same date i.e. On 28.7.2005. If really, any show cause notice has been
given to the petitioner before passing the impugned order dated 28.7.2005, the
impugned order would have clearly stated that an opportunity has been given to
the petitioner by issuing a show cause notice and an explanation has been
called for and the same has been obtained. By a reading of the impugned order,
there is nothing to show that a show cause notice has been given to the
petitioner calling for an explanation and then the petitioner has been directed
to close the scan center. Except the impugned order dated 28.7.2005, no other
documents have been produced before me to show that the petitioner has been put
on notice before passing the impugned order dated 28.7.2005. Further, it seems
that the impugned order was served on the petitioner only on 3.8.2005. Hence,
the argument of the learned counsel for the petitioner that the impugned order
was passed without notice has to be accepted.
12. The next contention of the learned counsel for the petitioner is
that even assuming that the respondent has got power independently without
reference to the other officials enumerated under Section 17(3) of the Act, the
respondent has got power only to suspend or cancel the registration and nothing
more. In this regard, it will be useful to refer Section 17 (4) of the Act
which reads as follows:-
The appropriate authority shall have the following functions namely,
(a) To grant, suspend or cancel registration of a Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic;
……..
(i) to take action on the recommendations of the Advisory Committee made
after investigation of complaint for suspension or cancellation of registration.
13. A reading of Section 17 (4) of Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection ) Act 1994 would clearly
show that the appropriate authority as enumerated under the Act has got power
only to suspend or cancel the registration and the appropriate authority has no
power to close the scan centre or seal the scan centre.
14. Then the learned counsel for the petitioner has drawn my
attention to Section 21 of the Act and has stated that only in case an order of
suspension or cancellation alone, a remedy is provided for filing an appeal
under Section 21 of the Act which reads as follows:-
” Appeal:- The Genetic counselling centre, Genetic Laboratory or Genetic
Clinic may, within thirty days from the date of receipt of the order of
suspension or cancellation of registration passed by the Appropriate Authority
under Section 20, prefer an appeal against such order to-
(i)the Central Government, where the appeal is against the order of the Central
Appropriate Authority; and
(ii) the State Government, where the appeal is against the order of the State
Appellate Authority;”
15. Thus Section 21 clearly says that the person aggrieved can file
an appeal against the order of suspension or cancellation of registration before
the State Government where the appeal is against the order of the said
appropriate authority. Thus only in case of suspension or cancellation of
registration passed by the authority, an appeal remedy is provided for.
Further since the impugned order dated 28.7.2005 has been passed by the
respondent only at the instance of the Secretary of Heath and Family Welfare
Department, Government of Tamil Nadu, no useful purpose will be served by filing
an appeal as provided for under Section 21 of the Act.
16. Though the learned Government Advocate has submitted that the
respondent has got power or jurisdiction to pass the order, he is unable to
quote any provisions under the Act to say that the respondent independently can
pass the impugned order. Further, he is unable to point out any provision under
the Act, by which the respondent has got power to close the scan centre or seal
the scan centre. Though it has been pointed out by the learned Government
Advocate that the petitioner has got a remedy by filing an appeal under Section
21 of the Act, within a period of 30 days from the date of the order, I am
unable to accept the said argument since, as stated earlier, the aggrieved party
can file an appeal only against the suspension or cancellation of the
registration of the scan centre and nothing more. Further it will be an empty
formality to file an appeal since the impugned order itself was passed at the
instance of Secretary Health and Family Welfare Department, Government of Tamil
Nadu, who will be an appellate authority.
17. For all the reasons stated above, I am constrained to allow the
writ petition and accordingly, the impugned order of the respondent dated
28.7.2005 is set aside. The respondent is directed to remove the seal
forthwith. It is needless to say that, it is open to the competent authority to
take fresh action, if they so desire, after following the procedure contemplated
under the Act. The writ petition is allowed. Consequently, connected
miscellaneous petition is closed. No costs.
To
The Joint Director of Medical
and Rural Health Service and
Family Welfare,
Madurai at Usilampatty,
Madurai District.