W.P. (C) No. 182 of 2010 Page 1 of 28 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI 31. + W.P.(C) No. 182 of 2010 ABHILASHA GARG & ANR. ..... Petitioners Through: Mr. Siddharth Singla and Ms. Divya Roy, Advocates. versus THE APPROPRIATE AUTHORITY (PNDT ACT) DC (EAST) AND ORS. ..... Respondents Through: Mr. Najmi Waziri, Standing counsel for GNCTD with Mr. Shoaib Haider and Mr. P. Abhilekh, Advocates. Mr. V.K. Khurana, Advocate for R-4. CORAM: JUSTICE S. MURALIDHAR 1.Whether reporters of the local news papers be allowed to see the judgment? Yes 2.To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in the Digest ? Yes O R D E R 19.08.2010 % W.P.(C) No. 182 of 2010 & CM Nos. 356, 1880 & 8776 of 2010 1. The validity of an order dated 26th November 2009 passed by the Chief District Medical Officer („CDMO‟), East District, Directorate of Health Services, Government of National Capital Territory of Delhi („GNCTD‟) cancelling the registration under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 („PNDT Act‟) in favour of Abhilasha Maternity & Medical Clinic („AMMC‟), (Petitioner No. 2), the owner of which is Petitioner No. 1, has been challenged by way of this writ W.P. (C) No. 182 of 2010 Page 2 of 28 petition. 2. During the pendency of the writ petition, an order dated 27th January 2010 was passed by the CDMO suspending the registration of Petitioner No. 1 under the Medical Termination of Pregnancy Act, 1971 („MTP Act‟). The Petitioners filed CM No. 1880 of 2010 challenging the said order dated 27th January 2010. By an order dated 11th February 2010, the said order dated 27th January 2010 was directed by this Court to be kept in abeyance. 3. The Petitioner also filed CM No. 8776 of 2010 to bring on record certain facts pertaining to a complaint filed against Respondent No. 4 Beti Bachao Samiti („BBS‟) by a medical practitioner running a clinic in Ashok Vihar. Notice was issued in the said application as well on 7th July 2010. Background facts 4. The facts are that Petitioner No.1 is a medical practitioner who runs the AMMC, Petitioner No.2 clinic. The Petitioner No.4 got a certificate of approval under the MTP Act on 20th March 2002 and was duly certified to conduct medical termination of pregnancy within legal parameters. On 9th January 2008, the Petitioner No. 2 was granted a certificate of registration for a period of five years under the PNDT Act whereby was authorised to carry out ultrasound and other tests. It is stated that thereafter the Petitioners premises was inspected on 16th May 2008 by the officials of Respondent No. 1 and the deficiencies noted were directed to be rectified. Thereafter a fresh certificate was issued on 16th January 2009. W.P. (C) No. 182 of 2010 Page 3 of 28 5. The Petitioners state that on 4th February 2009, an inspection team visited the premises of Petitioner No.2. At that time the Petitioner No.1 and her husband were out of station and only her ailing mother-in-law and her two young daughters were present. The family of Petitioner No. 1 was informed that there had been a complaint against the Petitioner No.1 by an NGO, Respondent No.4 herein. 6. The complaint dated 4th February 2009, copy of which is annexed as Annexure P-2 to the writ petition states as under: “A decoy patient was sent to the clinic who told Dr. (Mrs.) Abhilasha Garg that she has to get a 14 weeks fetus of a female child of her sister aborted, and for this purpose the said doctor knowingly and deliberately not only accepted to do the abortion of the said fetus of 14th weeks but also advised to come ad immediately as possible. She suggested the decoy that she will charge a sum of Rs.4000/- out of which she took a sum of Rs. 500/- in advance but she also told the decoy to come for the abortion of the same who to her knowledge was grown upto 14 weeks. The copy of C.D. showing the sting is annexed herewith for your kind perusal.” 7. The complaint was signed by Shri S.K. Sharma describing himself as Secretary of Respondent No.4. It is stated that a compact disc („CD‟) was handed over to the family of Petitioner No.1 which allegedly contained recording of a „sting operation‟ carried out by Respondent No.4 which showed a decoy patient discussing with Petitioner No.1 about the termination of a 14 weeks‟ old female foetus of her sister and which shows the Petitioner No.1 stating that she would charge Rs.4,000/- for terminating the pregnancy W.P. (C) No. 182 of 2010 Page 4 of 28 and accepting Rs. 500/- as advance. The Petitioners allege that the said CD was doctored and that the conversation recorded therein contained much more than what actually transpired. 8. The Petitioners allege that the officers of Respondent No.1 brought along with them 30 odd people who claimed to be members of Respondent No.4. Other media agencies and news channels were also present. The whole proceedings of inspection were recorded on video by Respondent No.4 and by the media agencies with no respect for the privacy of the family of Petitioner No.1, which included her ailing mother-in-law and two young daughters. 9. Thereafter Petitioner No.1 received a show cause notice dated 9th February 2009 issued by Respondent No.1 captioned: “Violation of MTP, PC and PNDT Acts at your clinic- Complaint from Beti Bachao Samiti”. The show cause notice to stated as under: “On 4/2/2009 your clinic was inspected by the undersigned on the basis of a complaint, dt 4/2/2008, received from “Beti Bachao Samiti”, Nazaf Garh, Delhi along with a CD-ROM of a sting operation conducted by them. The member from ““Beti Bachao Samiti” as well as various media agencies & news channel were also accompanied the undersigned. Whole of the proceedings of the inspection & action taken were video recorded by the members of the ““Beti Bachao Samiti” & media agencies. The inspecting team was formed that you were out of station & the inspection should take place only in presence of you & the police were called. The inspecting team was obstructed in carrying out the inspection of the records & premises, however following observations were made W.P. (C) No. 182 of 2010 Page 5 of 28 during the inspection. 1. In the absence of authorized/competent person the premises/operation was open. 2. The MTP & PNDT registration certificates in r/o the clinic were not displayed. 3. Copies of both the above Acts were not available at the clinic. 4. The conditions at the operation theatre were not hygienic/satisfactory. Following documents available at the reception were seized but the same were forcefully snatched back in presence of ASI-Delhi Police, Sh. Ravinder Tyagi. i. Form C & Form 1 register ii. Delivery register w.e.f. April 2006 iii. OPD register w.e.f. 1/1/2006 iv MTP register w.e.f. 1/1/2006 v Consent form register w.e.f. 17/4/2008 As the search was incomplete/not proceeded further due to hassles created by the staff/kin, the evacuated Operation Theatre was sealed as a prima facie action to the complaint. A copy of the CD handed over by the “Beti Bachao Samiti” was handed over to your kin present at the clinic. You are hereby directed to submit your explanation regarding the above & the recordings in the CD, mentioned above, within three days.” 10. Petitioner No. 1 replied to the above show cause notice on 13th February 2009 maintaining that there had been no violation of either the MTP Act or the PNDT Act. As regards the objections mentioned at Clauses 1 to 4 of the show cause notice, it was stated that repair works were going on in the W.P. (C) No. 182 of 2010 Page 6 of 28 premises. The registration certificate was not found displayed because the clinic was lying closed since the Petitioner No.1 was out of station. The original certificate issued by the Government being a valuable document could not have been left hanging on the wall while labourers were working. Likewise, the copies of the MTP and PNDT Acts were kept in safe custody and were not available because the clinic was itself closed. The operation theatre („OT‟) was temporarily non-operational since the premises were under renovation/repair. It was denied that the records were forcibly snatched back. Petitioner No. 1 pointed out: “It is impossible for an old diseased widow and two young unmarried girls to do so in the presence of ASI Police, Sh. Ravinder Tyagi and his team of constables”. While denying that any hassles were created by the staff of Respondent No.2, it was stated that “they were intimated by the crowd of 25-30 unknown persons that was brought by the Appropriate Authority to the clinic at the time of the so called inspection at an unreasonable time”. As regards the CD prepared by Respondent No. 4, Petitioner No. 1 pointed out that its quality was poor and it was difficult to make out the conversation at many places. 11. The above reply was followed by a further reply by Petitioner No. 1 on 17th February 2009 after viewing the CD. She stated that the CD was doctored. Petitioner No.1 pointed out as under: “The agency/media personnel involved in the making of the doctored CD have clear intention to falsely implicate me in a pre-fabricated set-up. It is the design of someone who bears ill-will for me and might as well be one of my competitors.” 12. It appears that the Petitioner No.2 clinic was re-inspected by a team of W.P. (C) No. 182 of 2010 Page 7 of 28 medical officers on 13th April 2009 following which on 24th April 2009 a further notice was issued regarding “violation of the PC and PNDT Act at your clinic”. It was stated that through the inspection report filed, it had come to the notice of the Appropriate Authority under the PNDT Act “that there is no designated Ultrasound room at your clinic which is mandatory under the registration rules of PC & PNDT Act. This is a clear violation of the PNDT Act”. Petitioner No. 1 was further informed that she was being granted “this last opportunity to removed the above mentioned deficiency & if you are really interested in continuing the PNDT registration in r/o your clinic, the details regarding the designated USG room along with a layout plan in r/o your clinic must be immediately submitted to the undersigned, failing which it would be presumed that you are not interested in continuing the PNDT registration in r/o your clinic & the same would be cancelled.” Petitioner No. 1 replied to the above notice on 27th April 2009 stating as under: “Respected Sir, in ref. to your letter dt. 24/4/09 No. 515, I have to state that since very few USG‟s were being done, there is no specific designated room and the USG‟s were being done on a bed kept for patient observation but proper privacy of the patient ensured it is hereby requested to kindly deseal my O.T. premises so that I can resume my profession link as my livelihood and patients are suffering.” 13. It is submitted that in the meanwhile the premises of the clinic remained sealed. On 29th September 2009, Petitioner No.1 filed an application before Respondent No.1 for de-sealing of the OT. It is stated that an earlier application filed before the CDMO on 8th September 2009, was returned. W.P. (C) No. 182 of 2010 Page 8 of 28 Another application was filed on 4th November 2009. An appeal was also filed before the Respondent No.2 on 30th October 2009. 14. While the appeal and applications were pending the impugned notice dated 26th November 2009 was sent to the Petitioner intimating her of the cancellation of the registration of Petitioner No.2 clinic under the PNDT Act. The impugned notice simply stated that “the registration is cancelled with immediate effect” and required the Petitioner to “surrender the original certificates issued on 21st January 2009 to the CDMO.” 15. The Petitioner assails the said cancellation order dated 26th November 2009 as being in violation of Section 20 of the PNDT Act. 16. On 1st December 2009, the Respondent No.1 i.e. the Nodal Officer (East), PNDT wrote to the Chief Medical Officer (PNDT) stating that as per the sting operation CD prepared by Respondent No.4, and its complaint, that Petitioner No.1 “has clearly violated the PC and PNDT Act 1994”. It was stated that a complaint against Respondent No.1 had been filed with the Station House Officer, Pandav Nagar but no information on the status of the investigation was received. While noting that the PNDT registration of Petitioner No.2 clinic has been cancelled it was stated that “a similar action regarding cancellation of the MTP registration has also been proposed by the appropriate authority to the CDMO under the MTP Act”. 17. On 3rd December 2009, a letter was written by the Petitioner No.1 to the Directorate of Family Welfare protesting against the punitive action taken W.P. (C) No. 182 of 2010 Page 9 of 28 against her on the basis of a bogus complaint and a doctored CD. She also wrote on 14th December 2009 to the CDMO to the same effect. 18. The Petitioners‟ appeal was listed before the Appellate Authority on 8th December 2009. The Appellate Authority held that it could not consider the prayer with respect to de-sealing of the OT, since they were an authority only under the PNDT Act whereas the sealing of the OT was for violation of the MTP Act and therefore the Appellant “may approach the right forum/court in this respect”. 19. Thereafter the present petition was filed on 7th January 2010. By an order dated 13th January 2010, this Court impleaded the Secretary, Health Department, GNCTD as a party Respondent. The records of the case were asked to be kept ready by the GNCTD for perusal on the next date i.e. 11th February 2010. In the meanwhile the CDMO passed a separate order suspending the registration of Petitioner No.1 under the MTP Act. This Court by an order dated 11th February 2010 in CM No. 1880 of 2010 directed the CDMO (East) to explain on affidavit the circumstances which led to the passing of the said order even when this Court was seized of the matter. The order dated 27th January 2010 was directed to be kept in abeyance. Pleadings 20. In the counter affidavit filed by Respondent No.1 on 11th May 2010, it was pointed that reasons for cancellation were furnished to the Petitioner No.1 on 19th January 2010 nearly two months after the cancellation order. In the reasons it was noticed first that there was a sting operation carried out by W.P. (C) No. 182 of 2010 Page 10 of 28 Respondent No.4, that an inspection was carried out on 4th February 2009, “hassles were created by staff and kin” of Petitioner No.1 and “records were snatched back from inspecting officials by them in the presence of police”, that proper inspection of clinic was not at all allowed, that OT was sealed “looking at the public interest”. The replies of the Petitioner No.1 were considered and not found satisfactory. The appropriate authority decided that till such time the investigation into the complaint filed by Respondent No.4 was not complete and the case was not concluded before the Court “the registration of the centre is suspended/cancelled without prejudice to any criminal action that may be taken against the centre”. It was further observed: “This decision of cancelling the PNDT registration is being taken in public interest, so that in case complaint is proved right by Court of law, such activities in contravention to provisions of the Act cannot allowed to be continued as it will cause irreparable harm which cannot be corrected later. So such suspension/cancellation is done under Section 20 of the Act”. 21. In the counter affidavit of Respondent No.1 it is stated that since the Petitioner No.1 was ready to abort a 14 weeks‟ old female foetus for which she took even advance money, there was a violation of the MTP Act. It is also mentioned that “as per Section 6 (c) of the PC and PNDT Acts no person shall by whatever means cause or allowed to be caused selection of sex before or after conception”. As regards the MTP registration it was stated in para 15 as under: “the MTP registration is granted on the condition of fulfilling all the norms laid down under the MTP Act. However the Act does not allow anyone to promote female foeticide which incidentally is shown in the recordings in the CD provided by the Beti Bachao Samiti, the authenticity of which can be W.P. (C) No. 182 of 2010 Page 11 of 28 verified from the original CD that would be lying with the Beti Bachao Samiti”. 22. In her rejoinder, Petitioner No.1 has explained that there was no Radiologist working or visiting the Petitioner No.2 clinic since it was sealed and the PNDT registration being cancelled. It is stated that “the earlier Radiologist would visit the clinic of the petitioners with his portable ultrasound machine and as there is no ultrasound being conducted in the clinic of the Petitioner and there is no new Radiologist visiting the clinic currently, therefore no intimation to the effect was given to the authorities”. 23. It must be pointed out that despite several adjournments, Respondent No.4 has not chosen to file any counter affidavit although it has been represented by Mr. V.K. Khurana, learned Advocate, whose submissions have been heard at length. Submissions of Counsel 24. Mr. Siddhartha Singla, learned counsel appearing for the Petitioners submitted that so-called sting operation did not contain any material which could constitute the basis of a complaint under the PNDT Act. Referring to the definition of “sex selection” under Section 2 (c) of the PNDT Act read with Section 6 (c) thereof, it is submitted that there was no pre-diagnostic test conducted during the sting operation which could attract those provisions. He pointed out that in the first place there has to be a conducting of the pre- natal diagnostic procedure under Section 2(k), followed by the taking of the written consent of the pregnant woman under Section 5, followed by the conducting of a pre-natal test under Section 6. If these three acts have been W.P. (C) No. 182 of 2010 Page 12 of 28 committed then the registration could be suspended or cancelled under Section 20 of the PNDT Act. He pointed out under Section 20 PNDT Act the suspension or cancellation of the registration can be done only after a show cause notice is issued followed by giving a reasonable opportunity of being heard under Section 20(2) followed by the advice of the „Advisory Committee‟ („AC‟). He pointed out that neither was there any hearing given to the Petitioner No.1 nor was the impugned order cancelling the registration issued on the advice of the AC. He, therefore, pointed out that the mandatory procedure under Section 20(2) of the PNDT Act has not been complied with. He submits that with the PNDT Act itself not being attracted to the facts of the present case, the entire proceedings were without jurisdiction. Mr. Singla submits that the mere non-provision of a separate ultrasonography chamber could not have invited the extreme penalty of cancellation of registration. The Petitioners could have been afforded an opportunity to set right such deficiency. 25. As regards the MTP Act Mr. Singla submitted that under Section 3(2) thereof a pregnancy could be terminated by a registered medical practitioner where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner was of the opinion, formed in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or there was a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped. It is submitted that the above stage had not been reached and the Petitioner had not committed any act attracting Section 3 of the MTP Act. Consequently, there was no question W.P. (C) No. 182 of 2010 Page 13 of 28 of the Petitioner being visited the consequence of her registration under the MTP Act being suspended. 26. Mr. Waziri, learned Standing counsel appearing for the GNCTD first submitted that the GNCTD could not be helpless in tackling the grave problem of female foeticide in the NCT of Delhi. Therefore it acted bonafide on the basis of information received from Respondent No. 4. He candidly stated that the contents of the complaint made by Respondent No. 4, and the contents of the CD prepared by it, would not attract any offence under the PNDT Act. However, he sought to justify the cancellation of the Petitioner No. 2‟s PNDT registration with reference to other violations of the PNDT Act and the Rules thereunder, as was mentioned in the show cause notice issued to the Petitioner No.1 on 9th February 2009 read with the further show cause notice dated 24th April 2009. In other words according to Mr. Waziri, the unhygienic conditions in the OT, the non-display of the certificates of registration under the MTP and the PNDT Acts, the non-availability of the bare Acts of the PNDT Act and the MTP Act at the clinic, the snatching back by the kin and staff of Petitioner No. 1 of the registers required to be maintained under both Acts, the preventing of the officials of Respondent No.1 from carrying out the search operation and finally the non-provision of a designated USG room at the Petitioner No. 2 clinic were all serious violations of the PNDT Act. He added that non-availability of a Radiologist was also a serious violation of the PNDT Act and that therefore, the order cancelling registration could not be faulted. In particular, he referred to Sections 6 (c) and 19(4) of the PNDT Acts and Rules 11 (1), 13, 17(2) and 18(5) of the PNDT Rules, 1996 as amended by the Amendment Rules of 2003. As W.P. (C) No. 182 of 2010 Page 14 of 28 regards the advice of the AC in terms of Section 20(2) of the PC and the PNDT Acts, Mr. Waziri produced the original files containing the minutes of the meeting held on 20th April 2009 in which a recommendation was made that the registration of the Petitioner No.2 clinic under the PNDT Act should be cancelled. 27. Without prejudice to the above submissions, Mr. Waziri fairly stated that in the event this Court was of the view that the extreme action of cancellation of the registration of Petitioner No.2 under the PNDT Act was not warranted and that a fresh opportunity should be given, a fresh show cause notice would be issued giving the Petitioner No.1 sufficient time to rectify the defects subject of course to her fully cooperating in a surprise inspection which would be conducted by a team of Respondent No.1. If there were any violations detected during such inspection, the Respondent No.1 would be free to proceed under the PNDT Act. 28. Appearing for Respondent No.4, Mr. V.K. Khurana learned counsel submitted that there were serious violations of the PNDT Act by the Petitioners. He too however fairly conceded that the contents of the CD prepared by Respondent No.4 during the sting operation conducted by it and the contents of the complaint given by it to Respondent No.1 did not attract any of the provisions of the PNDT Act. He sought to support the action of the Respondent No.1 stating that notwithstanding that the sting operation and the complaint of Respondent No.4 did not attract the violations of the PNDT