High Court
Case Details
WP(C) 5229/2008 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) This case was heard day before yesterday and today is fixed for deliv ery of judgment. This petition seeks quashing of notice dated 19.6.2007 issued by the Jo 2. int Director of Health Services, Dibrugarh and pasted in the premises of the pet itioners declaring the premises as closed. Petitioners further seek a directio n to the respondents to give consequential effect to the order of this Court dat ed 22.6.2007 passed in WP( C) No.5770/2006. 3. Petitioner No.1 has projected itself as a company registered under the Companies Act, 1956 and the petitioner No.2 is the Managing Director. It const ructed a hospital called Jyotish Memorial Hospital at Seujpur, Dibrugarh. Petit ioners submitted application before the authority for registration under the A ssam Health Establishments Act, 1993 by depositing all the requisite papers and fee on 13.9.2006. Director of Health Services, Assam provisionally allowed the p etitioners to run the hospital till final decision was taken vide certificate dated 13.9.2006. 4. Because of unforeseen incident in the hospital premises which took place in the month of June,2006, in which the hospital premises were ransacked by ant isocial elements, District Magistrate, Dibrugarh passed an order dated 30.6.2006 directing closure of the hospital which was followed by notice dated 1.11.2006 issued by the Director of Health Services. Assam withdrawing the provisional pe rmission granted earlier on 13.9.2006 to operate the hospital. Petitioners at this stage moved this Court by filing WP( C) No.5770/2006. This Court by judgme nt and order dated 22.6.2007 directed the respondents to cause a fresh enquiry/ inspection of the hospital premises with due notice to the petitioners and there after to arrive at an appropriate decision.
Legal Reasoning
5. It is the contention of the petitioners that no consequential steps pu rsuant to the aforesaid order of this Court were taken by the respondents. On t he contrary, the impugned closure notice was pasted in the hospital premises of the petitioner. 6. Aggrieved, petitioners have preferred the present writ petition seeking the reliefs as indicated above. 7. Respondent No.2 in his affidavit has stated that management of the hospi tal did not fulfill some of the procedures as required under the Assam Health Es tablishments Act, 1993 (Act). Therefore, State Health Authority did not recommen d for issuance of licence. Provisional permission granted earlier on 13.9.2006 w as subsequently withdrawn. It is, however, stated that the respondents would not have any objection for registration of the hospital provided the manageme nt fulfills the required norms. 8. During the pendency of the present proceedings, Commissioner and Secreta ry to the Government of Assam, Health & Family Welfare Department issued order d ated 4.4.2009 accepting the decision of the State Health Authority not to issue licence to the petitioners at this stage. 9. Heard Mr. A.Sarma, learned senior counsel assisted by Mrs. S.Sarma, lear ned counsel for the petitioners and Mr. B.Gogoi, learned Standing Counsel, Healt h Department. 10. Learned senior counsel for the petitioners submits that the order of t he Commissioner and Secretary dated 4.4.2009 as well as previous closure notice dated 19.6.2007 are ex-facie illegal and null and void since those were passed i n complete violation of the principles of natural justice. Referring to the prov isions of Section 9 of the Act, learned senior counsel submits that the grounds given for declining registration are wholly unsustainable. He has particularl y referred to sub-section (3) and sub-section(4) of the aforesaid Section to co ntend that rejection of the prayer for registration is on non-existent grounds and in violation of the fundamental rule of audi alterem partem . Sub-section ( 4) specifically provides for giving opportunity of showing cause to the applica nt, which was given a go-bye in the present case. In support of his submission s, learned senior counsel has placed reliance on the following decisions :-
Decision
O R D E R Seen the order dtd.22.06.2007 passed by the Hon’ble Gauhati High C ourt in WP( C) No.5770/2006 (M/s Jyotish Memorial Hospital, Seujpur, Dibrugarh a nd Smti. Ajanta Deori of Milan Nagar, Dibrugarh, Managing Director of the Hospi tal-vs- State of Assam). Also seen the enquiry report as has been obtained afresh from the Deputy Commissioner, Dibrugarh vide No.DDO.30/06/170 dtd. 18th August 2007 in which th e detailed enquiry report as conducted through an Executive Magistrate, accompan ied by the Jt. Director of Health Services, Dibrugarh has been annexed. It is found from the said report of the Deputy Commissioner, Dibrugarh t hat M/s. Jyotish Memorial Hospital-a Private Hospital which was running without a licence/registration since 2-10-1996 has not taken sufficient measures in co nformity with the Health Establishment Act,1993 (as amended) to acquire licence . The Deputy Commissioner, Dibrugarh has accordingly recommended not to issue li cence to the said Health Establishment. The said report of the Deputy Commissioner, Dibrugarh has further been r eferred to the State Health Authority vide the Department’s letter No.HLA 1422/ 06/190 dtd. 21-2-2009 since it is implemented through the State Health Authority . The Registrar , State Health Authority has submitted its report vide letter No .SHA/Court Case/2008/1570 dted. 23.3.2009 to Govt. The management of the hospital has not submitted the supporting documen It is found from the said report of the State Health Authority that the matter has been examined by the Screening Committee under the authority. After examining the report of the Deputy Commissioner, Dibrugarh alongwith the writte n statement submitted by the Management of the said Hospital and the views of Sc reening Committee, the State Health Authority has rejected the application sub mitted by Smti. Ajanta Deori, Managing Director of M/s. Jyotish Memorial Hospita l for registration of their Hospital on the following grounds. 1. The applicant failed to submit certificate from ASEB regarding electrica l installation and arrangement for continuous power supply as required as per Ac t. 2. ts regarding arrangement of Morgue in case of hospital. 3. No documentary evidence regarding fire fighting as may be specified by the Director of Fire Services has been submitted with the documents as well as i n the inspection report. 4. As per Act, the management should submit a declaration that no Doctor in the Health Establishment in respect of which the registration has been applie d for under the provision of Act, is in Govt. services. But the management has not submitted the same and it is not mentioned in the inspection report also. 5. As regard Bio-medical Waste Disposal, there is no mention about ETP for disposal of liquid waste of the hospital in the inspection report and no documen tary evidence has been submitted by the management. As per Act, the management has to obtain NOC from Pollution Control Boar 6. d. The management has not submitted the same except a money receipt from the Pol lution Control Board. Money Receipt cannot be considered as NOC. 7. The declaration in respect of four Doctors reportedly engaged by the ho spital authority, does not bear counter signature of the Jt. DHS of the district . 8. There is shortage of one RMO against required three RMOs as required for a 30(thirty) bedded hospital since the Jyotish Memorial Hospital has proposed t o have 30 beds. Thus, it is clear that the State Health Authority has rightly rejected the application for issue of the licence as applied for by the management of M/s. J yotish Memorial Hospital (since renamed as Upasana Hospital). After careful consideration of all relevant records and keeping in view the decision of the State Health Authority, there is no scope/ground for considerat ion of the application of Smti. Ajanta Deori for issue of Licence in favour of M/s. Jyotish Memorial Hospital, but to accept the decision of the State Health A uthority not to issue licence at this stage. Commissioner & Secy. To the Govt. of Assam, Health & FW Deptt. (cid:29) Sd/- J.C. Goswami, 16. At this stage, we may briefly refer to the relevant provisions of the A ct, which has been framed to regulate health establishments so as to ensure bett er health care through health establishments and for matters connected therewit h or incidental thereto. 17. (cid:28)Health Establishment (cid:29) has been defined in Section 2 (c ) of the Act t o mean a nursing home, a research-institute, a hospital, a maternity home, a ph ysical therapy establishment, a clinical laboratory, or an establishment analogo us to any of them. 18. As per section 3 of the Act, no person shall establish or maintain a h ealth establishment without being registered in respect thereof and except under and in accordance with the terms of a licence granted under the Act. Section 4 of the Act provides for constitution of an authority by the Government to be cal led the State Health Authority. Under Section 8 of the Act, the State Health Aut hority may allow establishment or maintenance of health establishment within its jurisdiction as it thinks fit. 19. Sections 9 and 10 are relevant for the purpose of adjudication of th e present case. As per sub-section(1) of Section 9, every application for regist ration in respect of any health establishment and for the grant of a licence th erefor, shall be made to the Health Authority. Under sub-section(2) , the Health Authority, if it is satisfied that the applicant fulfills the conditions speci fied in Section 10, shall register the applicant and issue necessary licence. Th e Health Authority is empowered under sub-section( 3) to reject an application on 5 grounds mentioned therein. Sub-section(4) of Section 9 deals with rejectio n of application. In case of rejection, the Health Authority is to record reas ons and no application sdhall be rejected without giving an opportunity of sho wing cause to the applicant. Section 10 of the Act mandates that every licence granted under sub-section(2) of Section 9 shall be subjected to the terms and conditions mentioned therein. Since these two sections are pivotal to the issu e in hand, those are quoted hereunder in their entirety. :- (cid:28) 9.(1) Every application for registration in respect of any health esta blishment and for the grant of a licence, therefor shall be made to Health Autho rity. The application shall contain such particulars and shall be accompanied by such frees as may be prescribed. (2) The Health Authority, if satisfied that the applicant and the health establishment fulfil conditions specified under Section 10 shall register the a pplicant in respect of such health establishment and shall grant him a licnece therefore and the registration and the licence shall be valid for a period of : - (a) 5 years in case of nursing home, Hospital, maternity home and Research Insti tute ; (b) 3 years in case of clinical laboratory, physiotherapy establishment. the applicant or the health establishment does not fulfil the condition The Heath Authority shall reject an application if it is satisfied that the real object of the applicant is to use or allow the health establish 1. - (a) s specified under section 10; (b) ment to be used for immoral purposes ; (c) there is no adequate provisions for maintaining hygienic/sanitary condit ion to the detriment of the locality in which the health establishment is propo sed to be established; (d) in the case of a nursing home other than a maternity home that such nurs ing home is not or will not be under the charge of a medical practitioner resid ent therein round the clock and that the nursing of persons received, admitted a nd accommodated therein is not or will not be under the superintendence of a nur se resident therein round the clock ; or (e) in the case of a maternity home that such maternity home is not or will not be under the charge of a medical practitioner resident therein round the clo ck and that the attendance on every woman before at, or after child-birth or on any child borne is not or will not under the superintendence of a midwife resid ent therein round the clock. (4) Where the application is rejected under sub- section (3) the Health Au thority shall record the reason for such rejection and no application shall be r ejected unless the applicant has been given an opportunity of showing cause in s upport of his application. Every licence granted under sub-section(2) of section-9 shall be subj that adequate measures shall be taken to dispose of the garbages includ that the health establishment shall not be used for immoral purposes ; that adequate measures shall be taken to keep the health establishment i 10. ect to the following terms and conditions, namely :- (a) (b) n perfectly hygienic and sanitary condition ; (c) ing disposable syringes, needles, etc. (d) that every person keeping or carrying on a health establishment shall su bmit an immediate report to the Health Authority as soon as it comes to his noti ce that any person who has been admitted as an outdoor or indoor patient in the health establishment is suffering from or has been attacked with tetanus, gas ga ngrene, small pox, cholera, encephalitis, acquired immune deficiency syndrome ( AIDS) or any other infectious or dangerous disease specified by the Government i n this behalf by notification published in the Official Gazette ; (e) that for every health establishment records shall be kept in such form a nd report submitted to the Health Authority in such form, in such manner and at such internals, as may be prescribed, containing - (i) or accommodated at the health establishment as an outdoor or indoor patient ; (ii) the name of any of the prescribed diseases for which such person is treated the name and other particulars of each person who is received, admitted ; (iii) the name and other particulars of the medical practitioner who attends him ; ((iv) the amount paid by each person admitted and treated towards costs of - (a) (b) (v) birth, death and miscarriage, if any, that takes place in the health establi shment during the period to which the report relates ; and boarding and lodging, if any, and (b) treatment ; (f) any other terms and conditions which may be prescribed. (cid:28) 20. Having noticed the legal requirements under Sections 9 and 10 of the Ac t, let us now examine the order dated 4.4.2009, more specifically, the grounds mentioned therein, based on which the authority had decided not to issue licence to the petitioners. 21. The said grounds noticed in the earlier part of this judgment mentions, such as, failure to submit certificate from ASEB for continuous power supply , establishment of morgue in the hospital , lack of documentary evidence regardi ng fire fighting equipments, non-declaration that no doctor employed in the hos pital is in Government service etc. The Court is of the view that these are mat ters which could have been sorted out with the petitioners had an opportunity be en granted to them of showing cause in support of their application as per req uirement of Section 9(4) of the Act. It needs to be mentioned herein that the a pplication for registration was submitted way back in the year 2001 and the deci sion to decline registration has come in the year 2009 i.e., after eight years, which is most unfortunate to say the least. Moreover, as is evident, the groun ds mentioned in the order dated 4.4.2009 do not come within the ambit of sub-se ction(3) of Section 9 of the Act to warrant rejection of the application. Order dated 4.4.2009 also does not disclose that opportunity of hearing was given to t he petitioners. In view of the above discussion, dilation on the cited judgments is considered not necessary. 22. That being the position and taking an over all view of the matter, Court is of the view that impugned closure notice dated 19.6.2007 and the subsequent order dated 4.4.2009 suffer from arbitrariness and unreasonableness and are a lso in violation of Sections 9 and 10 of the Act. The aforesaid notice and order are accordingly set aside and quashed. Consequently, the Commissioner and Secr etary to the Govt. of Assam, Health & Family Welfare Department is directed to r e-examine the entire issue after giving due opportunity of hearing to the petiti oners. For the aforesaid purpose, let a meeting be convened by the said Commiss ioner and Secretary with the petitioners within 15 days from the date of receip t of a certified copy of this order. Petitioners shall also take all the steps required under the Act so that necessary registration can be granted under Secti on 9(2) of the Act within a period of 4(four) weeks from the date of holding the meeting as indicated above. 23. as to cost. Writ petition is accordingly allowed. There shall however be no order