Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K AFR W.P.(C) NO.6965 OF 2023 An application under Articles 226 & 227 of the Constitution of India. Rabindra Das : Petitioner -Versus- State of Odisha & ors. : Opposite Parties For Petitioner
Legal Reasoning
: Mr.A.Mishra,Adv. For Opposite Parties : Mr.S.Ghosh, AGA J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 16.03.2023 1. Undisputedly, there involves serious technical issue in the matter of disposal vide Annexure-5 by the Competent Authority not only before receipt of objection of show cause notice at Annexure-4 undisputedly in gross violation of natural justice but also in the clear contravention of the time gap in the matter of show cause and cancellation of registration provided under Section 32 of the Clinical Establishment (R & C) Act, 2010. Page 1 of 6 // 2 // 2. Taking this Court to the show cause notice at Annexure-4, Mr.Mishra, learned counsel for the Petitioner submitted that this show cause was issued hardly on 01.03.2023 and asking for a response to the show cause notice from the Petitioner within two days from the date of issue of this notice. Mr.Mishra, learned counsel for the Petitioner fairly submits, this show cause notice was however served on the Petitioner on 01.03.2023 but in late hours. 3. Taking this Court to the provision at Section 32 of the Act and reading through sub-Clauses- 1 & 2 therein contended that for the statutory provision if there is attempt for cancellation of registration, it is not only after giving reasonable opportunity to the Clinical Establishment but such cancellation shall also based on satisfaction that there has been failure of any of the provision of the Act and/or the Rules made therein. 4. Taking this Court to the proviso (b) of Section 32(1), Mr.Mishra, learned counsel for the Petitioner contended that for this provision the Clinical Establishment if issued with show cause notice involving cancellation of registration, there is statutory prescription providing minimum three months’ time to intend in cancellation of registration. It is in the above background taking this Court to the observation in the order at Annexure-5, Mr.Mishra, learned counsel contended the impugned order becomes illegal and being contrary to the provision at Section 32 of the Act. Page 2 of 6 // 3 // 5. Mr.Ghosh, learned Additional Government Advocate however taking this Court to the provisions at Section 32 of the Act submits in the event the impugned order remain appealable and in the circumstance
Decision
claims the Writ Petition is not entertainable at this stage. 6. Considering the rival contentions of the Parties and taking into consideration the plea of the Petitioner taken note hereinabove attending to the objection of the learned State Counsel that the Writ Petition is not entertainable at this moment. For the statutory remedy of Appeal, this Court observes, the impugned order is challenged not only on the allegation of non-compliance of natural justice but also passing the impugned order completely contrary to the statutory provision at Section 32 of the Act and for a question of natural justice and violation of legal provision involved herein, this Court finds, there is no propose in asking the Petitioner to undertake the Appeal exercise, as in such exercise there will be simply wastage of time and therefore declines to entertain the claim of the learned State Counsel that Writ Petition should be dismissed for Petitioner having a statutory remedy of Appeal. This Court here also observes, law taking out the Writ Petition on the premises of availability of alternate remedy is not a complete ban but applies in the fitness of facts. 7. On the merit of the case, this Court finds, Section 32 of the Clinical Establishment (R & C) Act, 2010 reads as follows:- Page 3 of 6 // 4 // “32. Cancellation of registration- (1) If, at any time after any clinical establishment has been registered, the authority is satisfied that,- (a) the conditions of the registration are not being complied with; or (b) the person entrusted with the management of the clinical establishment has been convicted of an offence punishable under this Act, it may issue a notice to the clinical establishment to show cause within three months’ time as to why its registration under this Act should not be cancelled for the reasons to be mentioned in the notice. (2) If after giving a reasonable opportunity to the clinical establishment, the authority is satisfied that there has been a breach of any of the provisions of this Act or the rules made thereunder, it may, by an order, without prejudice to any other action that it may take against such clinical establishment, cancel its registration. (3) Every order made under sub-section (2) shall take effect- (a) where no appeal has been preferred against such order immediately on the expiry of the period prescribed for such appeal; and (b) where such appeal has been preferred and it has been dismissed from the date of the order of such dismissal: Provided that the authority, after cancellation of registration for reasons to be recorded in writing, may restrain immediately the clinical establishment from carrying on if there is imminent danger to the health and safety of patients.” Reading through the provision of sub-Section (b) of Section 32(1), there is clear provision commanding issuing a notice to the Clinical Establishment to show cause within three months’ time as to why its registration under this Act should not be cancelled further also mentioning the reasons of showing intentions of cancellation in the notice itself. Page 4 of 6 // 5 // 8. In the circumstance getting into the show cause notice at Annexure-4, this Court finds, placing the show cause notice against the Clinical Establishment hardly given two days’ time further notice of this nature being served on the last date and later hour absolutely providing no time to the person aggrieved is not only bad but also remain completely contrary to Section 32(1) of the Act. There is clear violation of statutory provision in issuing the impugned notice at Annexure-4 which is not maintainable in the eye of law. For the above undisputed position this Court here also finds, the impugned order vide Annexure-5 since passed in clear violation of statutory provision at Section 32(1) of the Act that too before getting into the show cause response of the Petitioner, the Party seriously affected by such order also remain unsustainable and ought to be set aside. 9. This Court therefore interferes with the notice at Annexure-4 as well as the outcome through Annexure-5 and set aside both. As a result immediately de-sealing of the institution involved. This Court clarifies taking out of the order of show cause notice under Annexure-4 and the final order at Annexure-5, for the technical reasons shall not prevent the Competent Authority in resorting to fresh show cause notice, in the event there is existing of any material to proceed in the matter but strictly in terms of Section 32 of the Act. Page 5 of 6 // 6 // 10. The Writ Petition succeeds but to the extent indicated hereinabove. In the circumstance no order as to cost. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 16th March, 2023/Swarna, Junior Stenographer Page 6 of 6