1 cp.119.09 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 119 OF 2009 Dr. Manohar R.Jadhav and others. ... Petitioners Versus The State of Maharashtra and others. ... Respondents -------- Mr. S.S.Patwardhan for the Petitioners. Mrs. P.S.Cardozo, AGP for Respondent No.1. Mr. Ranveer Shekhawat for Respondent Nos.3, 4, 6, 7, 9, 16 to 19. Mr. R.D.Soni i/b M/s. Ram and Company for Respondent Nos.12 and 13. -------- CORAM : A.S.OKA, J. DATE : 15 th December, 2010. JUDGMENT : 1 The Petitioners in this contempt petition who are the Petitioners in Public Interest Litigation No. 28 of 2005 have alleged that Respondent Nos.2 to 22 have committed breach of interim order dated 10 th October, 2007 passed by the Division Bench of this Court. It appears that the Petitioners are practicing pathologists. By filing Public Interest Litigation, they have brought to the notice of this Court that persons holding Diploma in Medical Laboratory Technology (for short “DMLT”) or equivalent certificates are running pathological laboratories and are 2 cp.119.09 illegally practicing as pathologists. The grievance in the Public Interest Litigation is that the said technicians are not authorized to run an independent pathological laboratory and are not authorized to sign and issue reports. It is contended that in view of the provisions of law, the technicians are not entitled to practice as qualified pathologists. 2 On 10 th October, 2007, the Division Bench of this Court issued rule and granted interim relief. Paragraph Nos. 4 and 5 of the said order reads thus: “4. On going through the affidavit in reply filed by respondent no.3 and 4, this court is prima facie satisfied that the holder of DMLT (Diploma Lab Technique) is not entitled to practice in pathology and makes them eligible and qualifies for being employed as technicians in a Pathologist’s Laboratory. Therefore, there will be an interim order in terms of prayer clause (c) and (d) to be read in this context and if persons holding DMLT or other equivalent qualifications are running a pathological laboratory, they should appoint a qualified pathologist as recognised by the Maharashtra Medical Council and Medical Council of India to certify their reports for want of which they cannot be permitted to practice as such. 5. Pending of this petition does not prevent the respondent i.e. the association of DMLT holders to approach the Maharashtra Medical Council and Medical Council of India and make a representation to include them as qualified practitioners.” 3 Prayer clauses (c) and (d), which are granted by way of 3 cp.119.09 interim relief read thus: “c) Pending the hearing and final disposal of the present Writ Petition this Honourable Court be pleased to pass an order directing the respondents 1 to 3 to stop ad close the practice of pathology by persons holding D.M.L.T. OR EQUIVALENT qualification in the State of Maharashtra. Only registered doctors with post- graduate qualifications in Pathology be allowed to run a Pathology Laboratory. d) Pending the hearing and final disposal of the present Writ Petition this Honourable Court be pleased to stay the operation and effect of the decision of the State Government communicated vide letters dated 17.10.2001, 4.12.2001 and 11.12.2001.” 4 The learned counsel appearing for the Petitioners pointed out that the Respondent Nos.2 to 22 in this contempt petition happen to be the members of the Association of the Clinical Laboratory Analysts and Practitioners, which Association is a party Respondent No.7 to the PIL. The learned counsel pointed out that there are specific averments in the contempt petition that the said Respondent Nos.2 to 22 are not registered medical practitioners and are not holding qualifications necessary to practice as pathologists. He pointed out various documents forming part of Exhibit – C (collectively). He pointed out that the reports, which are forming part of Exhibit – C show that the Respondent Nos.2 to 22 are merely technicians most of whom claimed to have obtained qualification of DMLT. He pointed out that the reports show that the said 4 cp.119.09 respondents are practicing as pathologists in complete breach of the aforesaid order of Division Bench of this Court. He, therefore, submitted that this is the case of gross breach of the interim order passed by this Court. 5 The learned counsel appearing for the Contemnors submitted that the alleged Contemnors have neither diagnosed nor treated any disease. He submitted that the Contemnors have not given any opinion that a patient suffers from a particular disease. Reliance was placed on the disclaimer printed on the reports. It was submitted that the Contemnors have not committed any breach of the interim order passed by this Court. 6 I have given careful consideration to the submissions. It must be noted here that the Contemnors are not parties to the Public Interest Litigation in which interim order has been passed. Clause (4) of the interim order directs that if the persons holding DMLT or other equivalent qualifications are running a pathological laboratory, they should appoint a qualified pathologist as recognized by the Medical Council to certify their reports. The Division Bench observed that if they do not appoint a qualified pathologist, they cannot be permitted to practice as such. Perusal of the documents forming part of Exhibit – C show that there are various disclaimers printed on the reports allegedly issued by the Contemnors. The disclaimers are to the effect “Above 5 cp.119.09 readings are to be certified by the pathologist”, “strictly for the use of Medical Practitioners & Pathologists”, “these are not medical diagnostic results”, etc. Some reports clearly record that the same contain readings based on technical analysis and no opinion is indicated. What is recorded in those reports are readings recorded during technical analysis of blood or other samples. The reports are not issued by the Contemnors as practicing pathologists. In fact, some of the said reports record that the readings are to be certified by the pathologists. The reports record the technical results on analysis of samples. The said reports do not record any conclusion or any opinion of whatsoever of nature. The technicians are not authorized to record any opinion and/or to diagnose anything. They cannot issue reports containing opinions and if they want to do so, they will have to appoint a qualified pathologist, who will be able to record an opinion on the basis of the readings of the technical analysis and who will be able to record diagnosis on the basis of the results of the analysis. The order of the Division Bench does not prevent the persons holding qualifications as DMLT or equivalent from analyzing the samples of blood or urine and from recording the results of the technical analysis. 7 The affidavits of the Contemnors, which are filed on record clearly show that the concerned Contemnors are fully aware of the interim order of this Court and they are aware that they cannot issue reports containing any opinions or diagnosis and such reports can be issued only by a qualified pathologist. 6 cp.119.09 8 Considering the aforesaid aspects, at this stage, no action can be initiated under the Contempt of Courts Act, 1971. It must be noted here that the observations made by this Court are in the context of exercise of powers of this Court under the Contempt of Courts Act, 1971. The observations made herein should not be construed and read to mean that the actions of the Contemnors complained of in this contempt petition are accepted to be legal by this Court. The legality of the actions will have to be tested in appropriate proceedings and not in the contempt petition. Suffice it to say that no case is made out for proceeding with the action under the Contempt of Courts Act, 1971. 9 Hence, the notice issued by this Court on 24 th March, 2009 is discharged and the contempt petition is disposed of. [ A.S.OKA, J ]