#PCPNDT : The High Court desealed the USG Machine and Clinic which were sealed as Boards not properly displayed and USG clinic being in the basement with 16 stairs is unsafe & dangerous for patients" ADV. ROHiT ERANDE. ©

 The High Court desealed the USG Machine and Clinic which were sealed as  Boards not properly displayed and   USG clinic being in the basement with 16 stairs is unsafe & dangerous for patients"

ADV. ROHiT ERANDE. ©

                        

Case Details :  Before Hon. Delhi High Court. 

CORAM:  JUSTICE PRATHIBA M. SINGH

W.P.(C) 16655/2022 & CM APPL. 52488/2022

Dr. Tarun Kothari vs Government Of NCT Of Delhi & Anr.                                                      

judgment Link :    https://indiankanoon.org/doc/42159888/


Facts in short :

 1. The Petitioner - Dr. Tarun Kothari filed the petition seeking directions to the Respondent No.1 - Government of NCT of Delhi to hear his appeal for re-registration and also prayed for desealing of USG machine and his Clinic.  

2. Since 2010, the Petitioner runs a diagnostic centre/clinic called Indo-American Health Care at RR13, Miyavali Nagar, Paschim Vihar, New Delhi.  Initial registration of the same was from 19th May, 2010 to 18th May, 2015. The Petitioner was granted renewal till 17th May, 2020. Sometime in March, 2020, the Petitioner sought further renewal but no renewal was granted by the Respondent No. 2.

3. The Respondent No.2 issued a  show cause notice dated 20th October, 2020 stating three discrepancies as under:

"(a). Notice board depicting ban on Prenatal Sex Determination {Rule 17(1)} was not displayed at conspicuous place.

(b) The centre is in basement and there are 16 stairs which are very steep and there is no ramp or lift. Steepness of the stairs is unsafe and dangerous to the ANC patients.

(c) Board displaying name of the centre was in very bad condition and unreadable."

5. The Petitioner accordingly replied to the said show cause notice. However, the application of the Petitioner for renewal of registration was rejected vide order dated 22nd January, 2021 passed by the Respondent No.2. The Petitioner filed a writ petition bearing W.P.(C) 1808/2021 titled Tarun Kothari v. District Magistrate/ District Appropriate Authority (West) PCPNDT Act, GNCT of Delhi before Hon. Delhi High Court for setting aside of the said order. In the meantime, the Respondent No.2 sealed the medical equipment of the Petitioner. 

6. Hon. High Court vide  order dated 23rd February, 2021 observed that the discrepancies related to Board can be easily rectified by the Petitioner. Related to the clinic in Basement, the Court observed that the clinic is being run since beginning in the basement so there cannot be any grievances. The Court only directed the petitioner to make adequate safeguards and safety measures such as installation of proper rails to enable patients to take support while climbing the stairs etc. and the Court also directed to deal the machine and clinic and dispose of the Petition thereby Directing  the Appellate Authority to consider the appeal afresh for Re-registration.

7. On this background,  the State Appropriate Authority vide order dated 6th September, 2022, upheld the rejection of the Petitioner's renewal application and directed the Petitioner to stop work and once again sealed the USG Machine and clinic.  The Appeal before SPO was also rejected. Hence again the Petitioner knocked the doors of the Hon. High Court. 


8.  It has been submitted that the Petitioner's clinic is one being run for the last 12 years without any complaint or untoward incident.  It was further  submitted on behalf of the Petitioner that in the entire locality, several patients are being deprived of diagnostic services of the Petitioner and there is an urgent need for de-sealing of the USG machine and room/clinic of the Petitioner. 

Held :

1. A perusal of the order passed by the Appellate Authority also shows that there is a Public Works Department (PWD) report stating that there is no possibility of installing a ramp in the clinic as per the Central Public Works Department (CPWD) guidelines. Under this situation, the Petitioner submits it would be fait accompli to deprive patients of the Peera Garhi area from accessing the ultrasound services of the clinic. Further the Petitioner is also unable to earn his livelihood from the functioning of clinic.

2. The Petitioner also submitted the Photos showing "New Board" as required. 

3. On the issue of Stair-case, the Court agreed to the contention of the Petitioner that since beginning of the Clinic,  there has been no untoward incident in his clinic in the last 11 to 12 years, and installation of Ramp was not feasible as per report of PWD. On this background the court gave relief to the Petitioner by permitting him to file an appeal before Central Appellate Authority and also directed to De-seal the machine and the equipment, which shall be subject to the final order of CAA. 

This Judgment reminds me the action used to be taken against the Shopkeepers under Shops and Establishment Acts. "Board showing Sunday is the holiday not mentioned" fine the shopkeeper. 

Does it achieve the aims and objects of the PCPNDT Act ? In the City like Delhi, many lawyers also have offices in the basement. So can they be fined on similar logic ? When the Petitioner is running his clinic for last 10-12 years, he ought not to have been granted Registration if the clinic in the basement is really so dangerous !

Who shall bear the losses suffered by the Doctor while his clinic was closed ? Further, this relief is an interim relief. The Authority has right to accept or reject the registration. Again the Petitioner would require to come to the Court. If such things could be curtailed,  shall automatically result into reducing the burden on the court. 

thanks and regards,


ADV. ROHiT ERANDE. ©

Pune. 


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