Case Note & Summary
The petitioner, Dr. Ajay Tejraj Oswal, a medical practitioner and surgeon, had been performing kidney transplantation surgeries since 1999 as a freelance surgeon at various hospitals, including Aditya Birla Hospital, Pune and Suretech Hospital, Nagpur. On 26th November 2010, a team comprising Dr. Bhavani and Dr. Mohan Jadhav, the appropriate authority under the Transplantation of Human Organs Act, 1994, visited Aditya Birla Hospital and found that the petitioner's name was not mentioned as a surgeon when the hospital sought registration under the Act. Consequently, show cause notices were issued to the hospitals, and after explanations, the competent authority passed orders dated 01/04/2011 and 11/04/2011, which specifically stated that the petitioner was not recognized for performing kidney transplantation operations and should not be allowed to perform such operations, and also cancelled the registration of the hospitals. The petitioner challenged these orders by way of a writ petition under Articles 226 and 227 of the Constitution of India, primarily on the ground that he was not given any opportunity of hearing before the orders were passed. The court observed that the impugned orders directly affected the petitioner's right to practice his profession, yet no show cause notice was issued to him, and he was not heard. The court held that the orders were passed in gross violation of principles of natural justice and quashed and set aside the orders insofar as they pertained to the petitioner. The court also directed that if the respondents wish to proceed against the petitioner, they must follow due process of law and give him a reasonable opportunity of hearing.
Headnote
A) Constitutional Law - Right to Practice Profession - Articles 226 and 227 of Constitution of India - Writ Jurisdiction - Petitioner, a medical practitioner, challenged orders restricting him from performing kidney transplant surgeries - Court held that the orders were passed without giving any opportunity of hearing to the petitioner, thus violating principles of natural justice - Orders quashed and set aside (Paras 1-6). B) Medical Law - Transplantation of Human Organs Act, 1994 - Competent Authority - Show Cause Notice - The competent authority issued show cause notices to hospitals but not to the petitioner - The impugned orders directly affected the petitioner's right to practice his profession - Held that any order affecting a person's rights must be passed after affording a reasonable opportunity of hearing (Paras 3-6).
Issue of Consideration
Whether the impugned orders dated 01/04/2011 and 11/04/2011 passed by the competent authority under the Transplantation of Human Organs Act, 1994, preventing the petitioner from performing kidney transplantation surgeries, are sustainable in law and whether they violate principles of natural justice.
Final Decision
The court allowed the writ petition, quashed and set aside the impugned orders dated 01/04/2011 and 11/04/2011 insofar as they pertained to the petitioner. The court directed that if the respondents wish to proceed against the petitioner, they must follow due process of law and give him a reasonable opportunity of hearing.
Law Points
- Natural justice
- right to be heard
- audi alteram partem
- right to practice profession
- Article 226
- Article 227
- Transplantation of Human Organs Act 1994
