Mukesh Kumar Dharamshibhai Thummar v. State of Gujarat
Special Civil Application No. 12783 of 2017 decided by the Hon’ble Gujrat High Court on13/07/2017
Facts: Petition was filed by the petitioner under Article 19(1)(G) and 226 of the Constitution of India as well as under the provisions of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, as well as Gujarat Medical Council Act, 1967 and Rules 1969 assailing that the order passed by the respondent No.2 (GMC) dated 11.04.2017 suspending the registration of the petitioner was without jurisdiction or the authority. The petitioner, who had been practicing as Gynae is said to have been convicted for the offence is under the said (PNDT) Act. However, the impugned order/communication was issued by respondent No.2-Gujarat Medical Council in purported exercise of power under Section 23(2) of the Act. It was contended that the provisions of Section 25 of the Act provided for the penalty for contravention of the provisions of the Act or Rules, however it did not provide for any such suspension of the registration of a doctor by the Medical Council and therefore, such an order passed, was without jurisdiction. The provisions of Section 22 of the Gujarat Medical Council Act provided for removal of name from the register. Rule 84 of the Gujarat Medical Council Rules, 1967 were relied upon and submitted that no inquiry or procedure had been followed. The illegality or irregularity alleged to have been committed is in his capacity as Gynae, and not as a medical practitioner and therefore, if the order is given effect, he may not be allowed to practice as a general practitioner. Further, for the misconduct that if there is any council, it may not affect the exercise of power or function in another capacity and that as the exercise of power resulting in penalty was disproportionate.
Observations: The provisions of Section 23(2) of the Act provides thus:
“Section 23 Offences and Penalties :
23(2) The name of the registered medical practitioner who has been convicted by the court under subsection (1), shall be reported by the Appropriate Authority to the respective State Medical Council for taking necessary action including the removal of his name from the register of the Council for a period of two years for the first offence and permanently for the subsequent offence.”
As provided in Section 23 of the Act, any medical geneticist, gynecologist or medical practitioner who renders or provides the services and contravenes any of the provisions of this Act or rules made thereunder, shall be punishable with imprisonment for a term which may extend to three years and with fine as stated in detail. In the facts of the case, the petitioner has also been convicted by the trial court and he has preferred appeal challenging his conviction. Thus, prima- facie, case is established before the trial court with regard to the alleged commission of offence under the said Act. Therefore, Section 23(2) enables the State Medical Council to take necessary action including the suspension of registration, which would be justified. In fact, the statutory provisions also refer the removal of petitioner name from the register on conviction. However, as the appeal is pending the respondent No.2 as per the provisions of Section 23(2) has passed an order which cannot be said to be without any jurisdiction and authority. The provisions of Gujarat Medical Council Act as a reference to the exercise of power including removal where a member of the profession or the medical practitioner is found guilty of any misconduct after following the procedure, it contemplates different situations where as a regulatory body, the medical council exercises its power as stated in the Medical Council Act and the Rules after making some inquiry.
Held: It is a general power for enforcing the discipline or accountability of the members of the profession or the medical practitioner. The PNDT Act which is a special statute specifically empowers under Section 23(2) to the Medical Council to take necessary decision once the conviction has been recorded under PNDT Act. This appears to be a statutory provision of a special statute with underlying object of giving effect to the intention of the legislature and to prevent the abuse and misuse for which the Act has been enacted. The statement of objects and reasons and the preamble clearly referred to the purpose by which the act has been enacted by the Parliament to prohibit Pre-Natal Diagnostic Techniques for determination of sex of foetus leading to foeticide and therefore, the Parliament passed the aforesaid Act to regulate the use of such techniques and to provide deterrent punishment. While considering the issue involved, the legislative intention and the purpose of the legislature also requires to be kept in mind. When the special statute like PNDT Act itself provides for the exercise of power by the regulatory body like Medical Council to take necessary steps including the suspension or removal of the name from the register. In the facts of the case, the body has only exercised the power for suspension of the registration of the petitioner, who is a medical practitioner for a period of five years cannot be said to be erroneous and in any case the aspect of conviction is a matter of appeal before the appellate judge and also proportionality of the sentence which can be considered at the time of hearing of appeal. Exercise of discretion under Article 226 at this stage, pending the appeal interfering with the impugned communication regarding the suspension of the registration would, mean defeating the very purpose and object of PNDT Act and interfering in exercise of discretionary jurisdiction in spite of the provisions of Section 23(2) of the Act, which is a special statute enacted by the Parliament as stated above for the underlying purpose. Further, the exercise of discretion would also mean to interfere with the order of conviction as it would practically set aside the conviction pending the appeal which is not the relief which he could get in appropriate forum and the purpose cannot be sought to be achieved by such petition under Article 226. It is well settled that the special statute provides for a specific remedy and the petitioner can avail the remedy and if the special statute like PNDT Act has made the provisions the exercise of discretion under Article 226 would not justify. Therefore, the present petition cannot be entertained and deserves to be dismissed in limine and accordingly, stands dismissed.