Jyotish Memorial Hospital And … vs State Of Assam And Ors. on 22 June, 2007

Gauhati High Court

Jyotish Memorial Hospital And … vs State Of Assam And Ors. on 22 June, 2007

Equivalent citations: 2007 (3) GLT 1000
Author: A Roy
Bench: A Roy

JUDGMENT

Amitava Roy, J.

1. The extra ordinary jurisdiction of this Court is sought to be invoked against the order dated 30.6.2006 of the District Magistrate, Dibrugarh, directing closure of the petitioner hospital and the notice dated 1.11.2006 of the Director of Health Services, Assam withdrawing the ‘no objection certificate’ dated 13.9.2006 permitting its provisional operation pending registration under the Assam Health Establishment Act, 1993 (hereinafter referred to as the ‘Act’) and for grant of licence thereunder. In the face of intervening developments during the pendency of this proceeding the challenge stood extended also to the minutes of the meeting of the Scrutiny committee under the Act held on 7.8.2006 and 18.8.2006 as well as the enquiry report dated 6.3.2007 and the decision of the State Health Authority (hereinafter referred to as the ‘Authority’) dated 14.3.2007 on the basis thereof withholding the registration and the licence to it.

2. I have heard Mr. P.J. Saikia, learned Counsel for the petitioner. Mr. D. Saikia, learned Standing Counsel, Health & Family Welfare Department, Govt. of Assam and Ms. V.L. Singh, learned State counsel for the other official respondents.

3. First the pleaded facts as projected by the petitioners. The petitioner No. 1 has described itself as a company registered under the Companies Act, 1956 with the petitioner No. 2 as its Managing Director, the objectives amongst others being to establish, acquire, maintain, run and to carry on profession and business of heath care, diagnostic center, hospitals etc. The petitioners constructed a hospital/nursing home at Seujpur and applied for its registration under the Act inter alia depositing the necessary fee therefor. The hospital started functioning with effect from 2.10.1996 after obtaining a Trade Licence from the Dibrugarh Municipal Board. It applied for a “No objection Certificate” from the Pollution Control Board, Assam and the hospital was made operational by paying necessary fee, tax etc. as required under the law. On several occasions thereafter the petitioners requested the concerned authorities for the issuance of formal licence/registration, but the issue was kept pending. The inspecting officers under the Act however, at regular intervals visited the petitioner hospital and issued necessary instructions whenever deemed warranted. Nothing adverse either was commented upon or determined by them against the petitioner hospital. The petitioners in the meantime, had also obtained the registration under the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (herein after referred to as the ‘Act of 1994’) and the ‘No Objection Certificate’ from the Pollution Control Board, Assam.

4. In response to their application for registration, the Registrar of the Authority and the Additional Director of Health Services (R), Assam by his letter dated 23.8.2005 required the petitioners to furnish certain documents as in his opinion the application was otherwise incomplete. The petitioners submitted the documents as sought for through the Joint Director of Health Services, Assam, Dibrugarh who forwarded those to the Director of Health Services, Assam by his letter dated 29.6.2006. The petitioners as well submitted the said documents before the respondent No. 3 on 16.8.2006, who thereafter on 13.9.2006 issued a certificate permitting the petitioner hospital provisionally to function until further orders pending consideration of its application for licence/registration.

5. In the month of June, 2006 the hospital premises was raided and ransacked by some rowdy elements for being refused certain undue demands of theirs. In this regard an FIR was also lodged by the petitioners with the local police. This incident was, however exploited by the vested circles to defame the petitioner hospital and tarnish its image. To quell the resultant upheaval, the Deputy Commissioner, Dibrugarh got an enquiry conducted through a Magistrate without serving any prior notice to the petitioners or affording any opportunity to them and on the basis of the ex-parte report, issued the impugned order dated 30.6.2006 directing the petitioners to close down the hospital. As in terms of the No Objection Certificate granted by the Director of Health Services, Assam on 13.9.2006 the petitioners were allowed to run the hospital, the petitioner No. 2 by her letters dated 16.9.2006 and 25.10.2006 requested the District Magistrate/Deputy Commissioner, Dibrugarh to permit them to restart the hospital. While the request was thus pending, by the impugned notice dated 1.11.2006 the Director of Health Services, Assam withdrew the No Objection Certificates of all kinds issued by him to the Nursing homes/private hospitals/Clinical Laboratories, X-Ray Clinics etc. By implication therefore, the No Objection Certificate dated 13.9.2006 issued in favour of the petitioner also stood recalled.

6. Situated thus, the petitioners approached this Court contending inter alia that the impugned order dated 30.6.2006 is incompetent and without jurisdiction and that the withdrawal of the No Objection Certificate was without any conceivable justification. The failure of the respondent authorities in granting the registration and the licence was assailed to be in breach of the mandatory provisions of the Act and the amendments thereof occasioned by the Assam Health Establishment (Amendment) Act, 2003 (hereinafter referred to as the ‘Act of 2003’) and the Assam Health Establishment (Amendment) Act, 2006 (for short the Act of 2006).

7. In their counter, the respondent Nos. 1 and 2 have asserted that the petitioner hospital had been functioning without any registration or licence under the Act in gross violation thereof and that the application submitted by the petitioners therefore was in complete. Maintaining that the registration under the Act of 1994 was for totally different purpose they contended that the Director of Health Services was n6t competent to issue the ‘No Objection Certificate’ to provisionally run the hospital and therefore the permission was nonest in law. While endorsing the Deputy Commissioner/District Magistrate’s power to inspect any health institution in the District in the demand of public interest the answering respondents have stated that the enquiry report revealed that the hospital was functioning without the requisite qualified Doctors, Staff Nurse, Professional Pathologists and with the engagement of untrained staff which was considered to be hazardous to human life and safety. According to them, one Dr. S.P. Deuri appeared to be the owner of the hospital though a government employee and that the nursing home was in operation without a valid licence or registration under the Act. The allegation that the enquiry was conducted by keeping the petitioners in dark or without affording any opportunity to them was denied. The answering respondents contended that the withdrawal of No Objection Certificate was a corrective measure, as the Act did not authorize the Director of Health Services to issue the same.

8. The Director of Health Services while reiterating that the petitioners’ application for registration/licence was incomplete averred that on submission of sortie documents thereafter by the petitioners the issue was placed before the Scrutiny Committee under the Act. It after examination thereof in its meetings held on 7.8.2006 and 18.8.2006 resolved that a thorough enquiry and physical verification of the facilities and manpower in the hospital be made before permitting it to be functional again. The deponent admitted to have issued a certificate provisionally permitting the petitioner hospital to operate, but contended that the letters N.O.C. were unauthorizedly typed on the said document by the dealing Assistant and as the same amounted to tampering of the certificate it was withdrawn on 1.11.2006 and a disciplinary action was ordered against the erring dealing Assistant. The answering respondent reiterated that the registration/licence was withheld as the documents in full had not been submitted by the petitioners in support of the request therefor.

9. The affidavit on behalf of the Respondent No. 5, District Magistrate, Dibrugarh, was sworn by the Executive Magistrate and Circle Officer, Dibrugarh, East Revenue Circle, Dibrugarh who had conducted the enquiry into the incident leading to closure of the petitioner hospital. While categorically denying the imputation of a hurriedly conducted enquiry without serving any notice to the petitioners, the deponent pleaded that after making a probe into the circumstances culminating in the episode and the public allegations against the hospital complaining about the illegalities committed therein, he submitted a report on 26.6.2006. The deponent maintained that all reasonable opportunities were accorded to those incharge of administering the affairs of the hospital and in course of the enquiry statements of those relevant were recorded and the written statements were also received from other doctors including Dr. Sidhi Pd Deori. As the enquiry revealed blatant violation of norms and regulations under the Act, the Deputy Commissioner, Dibrugarh passed the impugned order dated 30.6.2006 in public interest to protect the health and life of the ailing people of the district.

10. In course of the arguments on the basis of the above pleadings, it transpired that the Authority under the Act had decided on similar applications by other hospitals and nursing homes in the State and that the case of the petitioners was lying unattended due to the pendency of the proceedings and no availability of the relevant records the same having been placed at the disposal of the learned State counsel. This Court therefore to facilitate the consideration of the petitioners’ case as well, without prejudice to the rights and contentions of the parties, adjourned the hearing of the arguments by three weeks.

11. By an additional affidavit filed thereafter by the respondent Nos. 1 and 2 it was contended that the Scrutiny Committee under the Act in its meeting held on 7.8.2006 on a consideration of the petitioners’ case had recommended the closure of the hospital. In a subsequent meeting held on 18.8.2006 the said committee on a scrutiny of the fresh documents submitted by the petitioners concluded that the declaration issued by the concerned doctors appeared to be manipulated necessitating a thorough enquiry and physical verification of the facilities and manpower in the hospital before permitting it to be re-opened. The respondents further asserted that subsequent thereto, an enquiry was conducted by the Additional District Magistrate, Dibrugarh and Joint Director of Health Services, Dibrugarh and on inspection of all relevant documents a report was submitted. The same having been forwarded by the Deputy Commissioner, Dibrugarh on 7.3.2007, the Authority in its meeting held on 14.3.2007 determined that the requirements prescribed by the Act for obtaining licence had not still been fulfilled by the petitioner hospital and that thereof, issuance therefor in its favour was not feasible.

11.1 In their rejoinder affidavit, the petitioners while asserting that the last enquiry was also conducted in absence of the petitioner No. 2, complained that at no point of time adverse any finding was recorded against the hospital by the Scrutiny committee. The petitioners insisted that all documents as sought for by the respondent authorities had been duly submitted as far back as on 14.8.2006 and therefore the decision to withhold the registration and/or licence was wholly arbitrary and unreasonable.

12. Refuting the alleged discrepancies and deficiencies of their hospital as baseless and unfounded, the petitioners sought to explain the points recorded against them in the enquiry report. They contended that the process of changing the name of the hospital had been initiated long ago with due intimation to the concerned respondent authority. The hospital having been closed with effect from 30.6.2006, the petitioners insisted that the expert enquiry without either informing them in advance or extending an opportunity to explain the existing state of affairs is grossly unfair and lacks bonafide.

13. The pleadings in the application filed by the petitioners narrating the facts pertaining to the meetings of the Scrutiny committee held on 7.8.2006 and 18.8.2006, the enquiry report dated 6.3.2007 and the decision of the Authority thereon and the affidavit of the State respondents being in reiteration of the above, are not being elaborated.

14. The learned Counsel for the petition-s has argued that all the documents as required and sought for by the respondent authorities having been furnished, their refusal to grant registration and the licence is in patent breach of the provisions of the Act and the Assam Health Establishment Rules, 1995 (hereinafter referred to as the ‘Rules’) and is thus liable to be adjudged as such. It being incumbent on the part of the Authority to take a decision on the petitioners’ application for registration/licence under Section 9 of 2003 Act within 45 days thereof, their omission to do so amounts to failure in the discharge of their statutory duty. Mr. Saikia has urged that the Authority had acted illegally in contravention of Rule 5(9) of the Rules in not communicating to the petitioners the reason for withholding the registration/licence. According to the learned Counsel, the refusal to grant registration or licence to the petitioners being without any justification whatsoever, a writ of mandamus ought to be issued to the Authority to redress their grievance. The provisional permission having been issued to the petitioners on being satisfied that the documents submitted by them for obtaining registration/licence were complete in all particulars, the exparte withdrawal thereof without affording any opportunity of hearing to them is ex facie illegal and unfair he urged. The learned Counsel contended mat the Deputy Commissioner/District Magistrate not being empowered under the Act to close any health establishment, the impugned order dated 30.6.2006 is per se without jurisdiction and is therefore liable to be quashed. It being apparent on the face of the record that the incident leading to the closure of the petitioner hospital had been contrived by interested persons to feed fat to their long standing grudge against the petitioners, the impugned order dated 30.6.2006 is also misdirected and thus unsustainable in law, Mr. Saikia argued that the enquiry on the basis of which the said order had been passed having been conducted behind the petitioners’ back, the very basis thereof being not cognizable in law intervention of this Court in the interest of justice is warranted. The learned Counsel questioned the legality and/or validity of the minutes of the Scrutiny committee meeting held on 7.8.2006 and 18.8.2006 being violative of the principles of natural justice in absence of a prior opportunity to the petitioners to represent against the materials acted upon by it to their prejudice. The enquiry report dated 6.3.2007 and the decision of the Authority taken on 14.3.2007 acting thereon were also impeached as arbitrary, unfair and unjust besides being in violation of Rule 5(9) of the Rules. According to Mr. Saikia, the impugned decision having been taken in transgression of the provisions of the Act and the Rules are ineffectual, null and void. He submitted that the petitioners were prepared to face a fresh inspection after due notice and that in the attending facts and circumstances the petitioner hospital ought to be allowed to function till then.

15. The learned Standing counsel, Health and Family Welfare Department per contra has argued that in absence of any prayer for grant of registration and/or licence in the pleadings, the petitioners are not entitled to any such relief in the instant proceeding. As the Authority has not been impleaded as a respondent, the contentions bearing on refusal to grant registration or licence ought not to be entertained. The petitioners’ hospital not having obtained the registration or licence as mandatorily required under Section 3 of the Act, the impugned actions are sustainable in any view of the matter. The learned Standing counsel contended that though the Deputy Commissioner/District Magistrate of a District under the Act has not been conferred with any specific power to order closure of a health establishment within the meaning thereof, the impugned order dated 30.6.2006 being obviously in public interest is valid under Section 144 of the Criminal Procedure Code. Moreover, the District Magistrate having been designated as Inspecting Officer under the Act following the amendment thereof in 2006, the challenge is untenable. He was particularly critical about the ‘No Objection Certificate’ issued by the Director of Health Services, Assam contending that the same was evidently without any authority under the Act and hence, the same was withdrawn as a corrective measure. According to the learned Standing counsel it being apparent from the repeated enquiries conducted that the petitioner hospital had failed to comply with the mandatory requirements under the Act more particularly Section 10 thereof, the proceeding of the meeting of the Scrutiny committee held on 7.8.2006 and 18.8.2006 and the decision of the Authority dated 14.3.2007 cannot be faulted with. In view of the disclosures made in the enquiries demonstrating the petitioner hospital’s deficiencies vis-a-vis the prescriptions of the Act and the Rules, the impugned decision of withholding the registration and licence is in the interest of public life and safety. As a matter of fact, the petitioners have been dealt with leniently, he insisted. The enquiry report having disclosed that reasonable opportunity to the persons incharge of administration of the hospital had been duly extended, “the plea of unfairness in action is wholly untenable, he urged. To reinforce his submissions, the learned Standing counsel placed for the perusal of this Court the relevant official records.

16. Mrs. Singh, learned State counsel adopted the arguments of Mr. Saikia.

17. I have extended my cautious consideration to the contesting assertions advanced. Admittedly as on date, the petitioner hospital has neither been granted the registration nor the licence under the Act and the Rules framed thereunder. The impugnment having been laid pithily against the closure of the hospital by the jurisdictional Deputy Commissioner and the refusal by the authority to accord registration and/or the licence thereto, the relevant provisions of the Act and the Rules demand a survey to delineate the statutory foundation for adjudicating the issues involved.

18. The preamble of the Act proclaims its objective to regulate the health establishments to provide better provisions with respect to medical-health care of the people through these institutions and for matters connected therewith or incidental thereto. Health establishment as defined in Section 2(c) means a nursing home a research institute, a hospital, a maternity home, a physical therapy establishment, a clinical Laboratory, or an establishment analogous to any of them. Section 2(e) illustrates Licensing Authority to mean State Health Authority or other Authority authorized by the State Government for issue of licence. Under 3, no person can establish or maintain a health establishment without being registered in respect thereof and except under and in accordance with the terms of a licence granted therefor. The constitution of the State Health Authority is provided in Section 4, which discloses amongst others the Director of Health Services (FW) to be the member thereof. Section 6 empowers the Government to appoint a Registrar to be the Secretary of the Authority and also the staff necessary for carrying out the purposes of the Act. Section 9 lays down that every application for registration in respect of any health establishment and for the grant of a licence therefor has to be made to the Authority disclosing the particulars as prescribed. Section 9(2) mandates that if the authority is satisfied and that the applicant and the health establishment fulfills the conditions specified under Section 10 it would register the applicant in respect of such health establishment and would grant him a licence therefor. The term of such licence for a Nursing Home, Hospital, Maternity Home and Research Institute has been prescribed to be five years. The power of inspection and enquiry by the Health Authority and the procedure to be adhered therefor have been incorporated in Section 12A to 12D by the Assam Health Establishments (Amendment) Act, 1998, (hereafter referred to as the 1998 Act).

19. By the Assam Health Establishments (Amendment) Act, 2003, amendment amongst others has been occasioned in Section 9(2) of the Act in terms of which the authority if satisfied that the applicant and the health establishment fulfills the conditions specified under Section 10 would register the applicant in respect of the establishment and grant a licence within 45 days from the date of application. Following such amendment, the Authority is required to reject the application on one or more of the grounds enumerated in Section 9(3) within 45 days from the date of the receipt of the application. Section 9(4) obligates the authority to record reasons for such rejection and enjoins an opportunity of showing cause to the applicant prior thereto. Section 10 details the terms and conditions subject to which a licence can be granted under Section 9(2) of the Act. Section 13 provides for an appeal against an order of the authority refusing to grant or renew a licence or canceling licence before the Government. Section 13Ainserted by 2003 Act ordains that if such appeal is rejected by the Government, the Authority would thereafter issue an order for closure of the health establishment concerned with the approval of the Government and in that eventuality the Health Establishment would remain closed till the suspension order is withdrawn or a fresh registration and licence is granted in respect thereof. Section 14 vests the Government with the power to appoint Chief Medical and Health Officer as Inspecting Officer for the purpose of inspecting the Health Establishments.

20. The Assam Health Establishments (Amendment) Act, 2006, which received the assent of the Governor on 11.8.2006 substituted the original Section 14 and thereby the District Magistrate or such Officer as authorized by him and Sub-divisional Magistrate and the Joint Director of Health Services of the district were identified to be the Inspecting Officers within their respective jurisdictions competent to take any action as empowered by the Act. Section 15,16,17,18 and 20 are the penal provisions for establishment or maintenance of a health establishment not duly registered or licensed under the Act or for any transgression of the provisions thereof or of the Rules framed thereunder.

21. Rule 3 declares that the post of Registrar would be of the status of Additional Director with the minimum qualification of M.B.B.S. He is made responsible to place the application received for registration before the Health Authority and communicate the decision thereon to the applicant in conformity with the provisions of the Rules. He amongst others is required to issue licence to the Health Establishments as approved by the Health Authority. Rule 5 outlines the procedure of applying for a licence requiring an institution or institutions already in existence also to do so within 90 days from the date of the enforcement of the Rules. Under Rule 5(2), the licensing authority on being satisfied after receipt of the inspection report of the concerned inspecting officer from the District concerned and on scrutiny of the application in question and the inspection report by the scrutiny committee with favorable recommendations would issue the licence in Form-X with the instruction that the name of the Health Establishment be incorporated in the concerned register. The make up of the Scrutiny Committee is provided in Rule 5(8). The licencing authority under Rule 5(9) may refuse to issue a fresh licence or licences or renewal of old licence or licences after giving an opportunity to the applicants to represent their case in writing, if not satisfied with the available facilities or mode of functioning or deficiencies in any of the prescribed conditions to be fulfilled or in the event of adverse remarks by the Scrutiny Committee. Such a decision is required to be communicated within 90 days from the date of receipt of application for fresh licence or licences. The duties of a Inspecting Officer are recited in Rule 9.

22. Whereas the petitioners claim that the application for registration and the licence had been submitted in the year 1999, the respondents insist that it was as late as on 15.10.2001 almost 5 years after the hospital admittedly had been made operational.

23. The provisions of the Act and the Rules do not display any statutory intendment explicit or implicit to deduce automatic grant of registration or licence on the failure of the authority to adhere to the time limits prescribed for the sanction or rejection of the application therefor. The Act and the Rules though evidently outline a time limit for the Authority to take a decision on such application, no deeming provision exists to infer that on a mere breach thereof grant of registration or licence would ensue. Essentially though the concerned authorities are obliged to abide by the statutory mandate and meticulously conform to the time limit stipulated, failure to do so though not approvable, in absence of any enabling provision in the Act or the Rules, grant of registration or licence to any health establishment as a corollary is not comprehended. This lapse of the authorities under the Act and the Rules, therefore, does not ipso facto ensure to the benefit of the petitioners.

24. The Act and the Rules neither envisage nor recognize any power or authority of the Director of Heath Services either to permit a health establishment whose application for registration pending before the Authority to issue any No Objection Certificate to it allowing it to function temporarily. The statutory provisions endow the Authority with the exclusive dominion to grant or reject the request for registration/licence of a health establishment and only if approved by it, its Registrar under Rule 3(2) can issue the licence. No other authority under the Act or the Rules is contemplated to exercise any power to permit a health establishment, pending grant or rejection of its application for registration/licence to operate in the interregnum. The Act and the Rules also do not envision such an eventuality. The certificate dated 13.9.2006 issued by the Director of Health Services, Assam, Guwahati, is therefore, not sanctioned by the Act and the Rules and, therefore, has to be adjudged nonest in law. In that view of the matter, the withdrawal thereof by the notice dated 1.11.2006 is unassailable in law. The cause assigned namely interpolation of the certificate by the dealing clerk, in face of the discernible legislative disapproval is of no consequence. The challenge in this regard is therefore negated.

25. Before adverting to the aspect of closure of the petitioner’s hospital, a few provisions of the Act dealing with the conditions to be fulfilled by a health establishment for grant of registration and licence as well as enquiries to be conducted by the Authority are essential to be noted. Section 10 requires that every licence to be granted under Section 9 would be subject inter alia to the stipulation that adequate arrangement would be made for (I) proper disposal of garbage, bio-medical waste, other chemical wastes and such other materials, equipments and appliances which have become unfit for further use in accordance with the procedure prescribed. (H) qualified resident Doctors, staff nurses and other nurses (III) equipments including life-saving devices para medicos and other staff as notified by the authority from time to time. The health establishment should have its (IV) own specialist Doctors in all disciplines recognized by Medical Council of India, (V) Clinical Laboratories with requisite infrastructure for necessary laboratory examinations for diagnosis and treatment of different ailments (VI) specialist Doctors for different disciplines recognized by Medical Council of India with at least three resident Doctors and proportionate nursing staff, equipment and other staffs. For a Clinical Laboratory having radiological facilities at least one qualified Radiologist and such other Radiographer and staffs are to be appointed as required for the purpose.

26. Section 12 A and 12B inserted by the Assam Health Establishments (Amendment) Act, 1998 (hereafter referred to as the 1998 Act) empowers the Authority to carry out any inspection or conduct any enquiry either in its own motion or on receipt of a complaint in respect of any health establishment whether registered or unregistered or licensed or unlicensed by itself or through any of its members or such other persons capable of so doing in presence of the Inspecting Officer concerned for smooth performance of the functions of the Authority or for carrying out the purposes of the Act or the Rules or Regulations made thereunder.

27. During any inspection or enquiry the concerned heath establishment or any person in charge or responsible to it is obliged to allow free entry of the persons connected with such inspection or enquiry into any such place or places of the health establishment as may be required to facilitate such inspection and also produce such information and documents as may be necessary for the purpose. The Authority is left at liberty to solicit the assistance from any competent authority to facilitate smooth conduct of the enquiry or the inspection. It on the report thereof is empowered to take any action as called for after extending a reasonable opportunity of hearing to the health establishment or the person concerned. The Authority is also endowed with the power of calling any record or document or any other information in respect of any health establishment and/or require any person or persons in charge or responsible to it to appear personally before it to answer on any matter which is considered necessary for the carrying out the purposes of the Act. Section 12C(i) mandates the decisions and orders of the Authority to be binding on the health establishments.

28. That a bizarre incident displaying public indignation against the petitioner’s hospital had occurred within its premises on 7.6.2006 is borne out by the records. Though the petitioners have alleged that the episode was framed up and stage managed by one Shri Sarat Ch. Neog, a news reporter of the local daily “Aji” to wreak his personal vendetta against the institution, the materials on record are inadequate to definitively arrive at the said finding. Moreover Mr. Sarat Ch. Neog has not been impleaded as a respondent in the instant proceeding. The official records reveal that the incident received media coverage and the Director of Health Services, Assam, was requested to get an enquiry conducted in the matter. It transpires from the documents contained in the file No. SHA/DBR/54/2002 of the Assam Health Establishment Authority that a Magisterial enquiry was ordered by the Deputy Commissioner, Dibrugarh, into the said incident and Mr. P.P. Boiragi, ACS, Executive Magistrate, Dibrugarh, carried out the same and submitted his report on 26.6.2006 before the former. From the report it appears that the enquiry was directed to ascertain the circumstances leading to the incident, public allegations against the nursing home and the attending Doctors and the alleged illegalities perpetrated in the said health establishment. It transpires from the report that the enquiry officer sought for reports from the in-charge Gabharu Pather O.P. and the Joint Director of Medical and Health Services, Dibrugarh, on these aspects. The District Information and Public Relation Officer was also requested to effect wide publicity of the enquiry inviting oral and written statements from individuals and organizations having information and knowledge in the areas of the enquiry. The report discloses that the enquiry officer examined three witnesses in connection with the circumstances culminating in the incident. The report received from the I/C Gabharu Pather O.P. inter alia evinced that the demonstration was arranged by one Shri Sarat Neog S/o Jagat Neog, a resident of Amollapatty, Dibrugarh, and a news reporter of the daily “Aji”. Media persons were reported to be present at the spot. The enquiry officer on the basis of the oral statements recorded by him and the police report concluded that the incident was a fall out of the growing public resentment over malpractice of acquiring patients for the petitioner’s hospital and the chambers of other Doctors on payment of commission. The enquiry officer also took note of the complaint made by Mr. Sarat Ch. Neog to the effect that the petitioner’s hospital was without any licence and that it was administering two clinical laboratories viz Getwell Lab and Imagine Lab illegally and that no laboratory in Dibrugarh by such name was in existence. With regard to the charged illegalities committed in the nursing home, the report disclosed that Dr. S.P. Deori and Mrs. Mitali Konwar Deori of Jyotish Memorial Nursing Home were served with notices. In response thereto, they submitted their written statements wherein Dr. S.P. Deori averred that the said Hospital was their ancestral property and owned by Siddhi Hospital Private Limited. He further disclosed that he had resigned from the honorary post of a Director having joined the Government service and that the Hospital was run by the aforementioned Company of which Ms. Ajanta Deori was a Director. The Enquiry Officer claimed to have issued two notices to Ms. Ajanta Deori by registered post with acknowledgment due but on both the occasions the notices were returned by the postal department with the endorsement “addressee refused, returned to sender”. The Enquiry Officer recorded that Dr. S.P. Deori failed to produce any licence for the establishment of the Hospital and that it was apparent from the report dated 14.6.2006 of the Joint Director of Health Services, Dibrugarh, that it was operating without it w.e.f. 2.9.1996. The following illegalities/irregularities were noticed by the Enquiry Officer as is detailed in the report.

iii) Another example of illegal activities that is going on in Jyotish Memorial Hospital, is that without having any requisite qualification of ANM/GNM, one Smti. Anjana Panging has been performing the duties of a nurse in that Hospital since 2004.

iv) From statement of Smt. Kamal Kumari Deori who is working as a nurse there, it has come to my knowledge that no formal appointment letter is issued to her even though she has been working as a nurse since 2005.

v) It is a fact that in the name of GETWELL LAB and IMAGINE LAB the reports of various tests are given by the Doctors in Jyotish Memorial Hospital itself. There are no licenses of those laboratories. However, the Additional Chief Medical and Health Officer (FW) granted registration of ultrasound machine under PNDT Act, 1994 to Jyotish Memorial Hospital.

vi) No Objection Certificate from pollution control board has not yet been obtained.

29. The accusation of denial of opportunity in the enquiry in the face of the above revelations supported by the official records is, therefore, plainly untenable. The Deputy Commissioner, Dibrugarh, on a consideration thereof and being of the considered opinion that the functioning of the petitioner’s health establishment in absence of any registration or licence under the Act was wholly unauthorized and that the deficiencies in its infrastructual set up was hazardous to public safety and human life, ordered closure thereof with immediate effect.

30. At the first place, the satisfaction arrived at by the Deputy Commissioner, Dibrugarh, and District Magistrate, Dibrugarh, cannot be dismissed as baseless or unfounded on facts. Admittedly, the petitioner’s health establishment could not have been made operational without its registration and/or licence in face of the emphatic and unambiguous mandate of Section 3 of the Act. The Magisterial enquiry warranted by the incident brought to the fore the anomalies noticed therein.

31. The District Magistrate, Dibrugarh, being in charge of the local administration and logically responsible in law to conduct the same best suited in public interest, in my view, having regard to the factual background, the order dated 30.6.2006 directing closure of the petitioner’s hospital cannot be condemned as illegal and without jurisdiction. As it is, the petitioners for want of registration of the hospital and the licence cannot claim to run the same even temporarily there being no enabling provision under the Act or the Rules therefor. Though the legislations involved at that point of time did not specifically empower the District Magistrate, Dibrugarh, to direct closure of any health establishment or discharge any role thereunder, having regard to the office and the accountability of the incumbent thereof, the action taken cannot be dubbed and denounced as arbitrary or uncalled for. Reference of Section 144 of the Code of Criminal Procedure authorizing the District Magistrate to direct any person to abstain form a certain act or to take certain order or certain property under his management if in his opinion such a direction is likely to prevent or tend to prevent danger to human life, health or safety is not out of place. Having regard to the emergent fact situation that surfaced following the incident and the disclosures in the magisterial enquiry, the order of closure by the District Magistrate, Dibrugarh, is sustainable in public interest. The challenge thereto fails.

32. The official records reveal that the application for registration of the petitioner’s health establishment under Section 9 of the Act was submitted on 15.10.2001 by Dr. Siddhi Pd. Deori mentioning therein the names of the Directors of its Board to be

(1) Dr. S.P. Deori,

(2) Dr. (Mrs.) Mitali Konwar Deori.

33. It transpires from the records placed before this Court that following the petitioner’s application for registration, an enquiry was conducted in the year 2002 by the Inspecting Officer, SDM & HO (HQ), Dibrugarh, in which the Jyotish Memorial Hospital was shown to be a proprietorship establishment. The Enquiry Officer observed that the inspection could not be completed due to non-receipt of the related documents of the institution. Thereafter by letters dated 5.2.2003 and 23.8.2005, the authority required the petitioners to furnish the documents referred to therein. In response thereto, the petitioners submitted documents with the Joint Director of Health Services, Dibrugarh, which were forwarded to the Authority on 29.6.2006. The Director of Health Services, Assam, in his certificate dated 13.9.2006 (withdrawn subsequently on 1.11.2006) also acknowledged receipt of additional documents from the petitioners for licence/registration. The records produced also affirm that additional documents were received. However, it was observed on a scrutiny thereof that the hospital was operating without a pathologist and a radiologist. The office note dated 13.9.2006 mentions that the petitioners had submitted the declaration pertaining to pathologist and radiologist.

34. In the meantime, the scrutiny commit-fee under the Act had met on 7.8.2006 visibly to consider pending applications for registration/licence of several health establishments. Apropos, the petitioner, the Committee while acknowledging receipt of the documents sought for observed that the management had not appointed any qualified staff for X ray and pathological lab required for running a hospital and that Dr. P.K. Konwar, Visiting Consultant, and not a full time Doctor. The Committee, therefore, was of the view that the Hospital be asked to be closed.

35. In its meeting on 18.8.2006 on a reexamination of the documents the committee opined that the declaration in the prescribed form by the concerned Doctors appeared to be manipulated and that therefore a thorough enquiry and physical verification of the facilities and manpower of the institution was necessary before permitting it to reopen and function.

36. In course of the arguments on 13.2.2007 the Court having been apprised by the learned State Counsel that the petitioner’s application for registration/licence was under consideration of the concerned authorities, the hearing was deferred by three weeks to facilitate a decision. The pleadings and the official records demonstrate that another enquiry was thereafter conducted through the Joint Director of Health Services, Dibrugarh, and the Additional Deputy Commissioner (Health), Dibrugarh, on the completion whereof a report was submitted on 6.3.2007 which was duly forwarded to the Health and Family Welfare Department, Government of Assam, on 7.3.2007. The State Health Authority in its meeting held on 14.3.2007, on a consideration of the said report concluded that the requirements as necessary for obtaining the licence for the petitioners health establishment had not been fulfilled and that, therefore, their request therefor cannot be considered. The authority recommended the Government to take appropriate action against the petitioner’s hospital in accordance with law till the prescribed essentialities for grant of licence were complied with.

37. The report dated 6.3.2007 precipitating the above decision divulge that no notice had been served on the petitioners health establishment or persons in charge of the management thereof before the enquiry. It discloses that at the time of inspection, none of the owners was present and that the name of the hospital had been altered to Upasana Hospital by an affidavit of Smt. Ajanta Deori sworn before the Judicial Magistrate, Dibrugarh, on 5.10.2006. The joint owners, as reported by the Manager of the hospital at the enquiry were Ajanta Deori D/o late Sashidhar Deori and Smti Kalibai Deori, W/o late Sashidhar Deori. The observations and the conclusions at the close of the enquiry as contained in the report are extracted herein-below:

Observation:

1. There is no hospital in the name and style of “Jyotish Memorial Hospital, Seujpur, Dibrugarh. They have changed the name as “Upasana Hospital” and running the nursing home without any licence.

2. The nursing home has not appointed any Doctor as per rules. No formal appointment letter has been issued to any of the staff as well.

3. It is observed that there is no Radiologist in the nursing home.

4. The nursing home authority has not appointed any full time Doctor.

5. The X-Ray machine is found out of order.

6. During inspection, it has been observed that the nursing home rendered medical treatment to 24 (twenty four) patients during the period from 19th October, 2006 to 5th March, 2007, i.e. during the period in which the nursing home was declared closed by the District Magistrate, Dibrugarh, vide order No. DDO.30/2006/dated 30th June, 2006.

Conclusion:

From the foregoing observations, we are of the opinion that the nursing home is running their activities by violating the terms and conditions of Assam Health Establishment (Amendment) Act, 2003. Hence, we suggest that the proposal for granting of licence etc. is not advisable unless the newly named nursing home complied with the provisions of the Assam Health Establishment (Amendment) Act, 2003.

38. In the teeth of the statutory prescriptions to be complied with by a health establishment to qualify itself for registration/licence as enumerated hereinabove in brief, the decision of the Authority refusing the licence to the petitioner’s hospital with the shortcomings noticed in the enquiry cannot be per se proscribed as unwarranted absurd or in defiance of logic. Noticeably, the finding of the Scrutiny Committee recorded in its meetings held on 7.8.2006 and 18.8.2006 were not preceded by any contemporaneous spot enquiry and were founded on the available records. As a matter of fact, the scrutiny committee in its meeting of 18.8.2006 suggested an enquiry and physical verification of the’ ‘facilities and man power” of the petitioner’s hospital before responding to its request to reopen the same. The petitioners in their counter to the additional affidavit of the State respondents while bringing on records the fact of the enquiry conducted thereafter, they have not only questioned the validity thereof for want of fairness and prior notice, but also have endeavoured to controvert the findings recorded therein item wise. They have interalia contended that the hospital being closed w.e.f. 30.6.2006, no meaningful and effective enquiry could have been conducted without a prior notice/opportunity to them to furnish all necessary documents and particulars in response to the queries to be made.

39. Considering the provisions of the Act and the Rules pertaining to the grant of registration and licence to a health establishment, this grievance of the petitioner has substance. Section 12A and 12B though empower the Authority to conduct an inspection or enquiry in all or any aspect of a health establishment these enjoin extension of reasonable opportunity of hearing to it (health establishment), if any adverse action is proposed on the basis thereof. The licensing authority is also obligated under Rule 5(9) to accord such facility to the applicant to represent against the proposed refusal of licence or renewal thereof on the ground of unsatisfactory facilities or mode of functioning or deficiency in any one or more of the prescribed conditions to be fulfilled or in the event of an adverse remark by the scrutiny committee. Rule 5(2) where-under a licensing authority can issue licence in the prescribed form on being satisfied on the receipt of the inspection report of the Inspecting Officer, scrutiny of the application of the health establishment and inspection report by the scrutiny committee with favourable recommendations, also demonstratively contemplate inspections to ascertain the eligibility of such health establishment for the licence.

40. The enquiry report having formed the foundation of the satisfaction of the Authority to refuse the petitioner, the licence under the Act, in my opinion they ought to have been accorded an opportunity of hearing prior thereto. The petitioners thus have been denied a right guaranteed under the Act and the Rules. Bearing in mind the serious detrimental consequences likely to visit a health establishment following an enquiry/inspection on its application for registration/licence, an opportunity to it to be present and participate in such an exercise would be an essential and indispensable adjunct or administrative fairness, denial whereof would render the process as well as the resultant decision invalid and ineffectual in law. In that view of the matter, the decision of the Authority contained in its meeting held on 14.3.2007 being in violation of the Act and the Rules is unsustainable and is hereby set aside. By the same analogy, the resolutions of the scrutiny committee dated 7.8.2006 and 18.8.2006 are also interfered with. The respondent authorities would cause a fresh enquiry/inspection to be conducted in the matter with due notice to the petitioners and arrive at an appropriate decision on the issue thereafter in accordance with law. The authorities in conducting the enquiry would also determine the impact of the process initiated by the petitioners for the alteration of the name of the health establishment vis-a-vis the Act and the Rules.

41. In the face of rigorous statutory provisions to the contrary, the prayer for allowing the petitioner hospital to function pending completion of the enquiry cannot be acceded to. However, the respondent authorities would expedite the process as ordered and complete the enquiry within a period of 30 days from the date of receipt of certified copy of this order. The order dated 30.6.2006 of the District Magistrate, Dibrugarh, and the withdrawal of the certificate dated 13.9.2006 of the Director of Health Services, Assam, are hereby sustained. The petition is thus party allowed. No costs.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s