In the matter of an application under Article 226 & 227 of the Constitution v. State of Odisha & Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14911 of 2023 In the matter of an application under Article 226 & 227 of the Constitution of India. ----------- Ananta Balia Swasthya Seva Niketan, Puri …. Petitioner Versus State of Odisha & Ors. …. Opposite Parties For Petitioner … Mr.D.Mohapatra, M.R.Pradhan, J.Barik, P.K.singhdeo & S.K.Rout, Adv. For Opposite Parties … Mr.S.P.Panda, Addl.Govt. Advocate J U D G M E N T PRESENT: THE HONOURABLE JUSTICE BISWANATH RATH Date of Hearing and Judgment: 31.07.2023 Biswanath Rath, J. This writ petition involves the following prayer: <The petitioner therefore most humbly pray that, the Hon’ble Court be graciously pleased to issue rule Nisi calling upon the Opposite parties to show cause as to why the Annexure-3 & 5 shall not be quashed and as to why the petitioner shall not be allowed to continue in the panel of the BSKY Scheme as before with all consequential benefits/facilities; And if the Opposite Parties fail to show cause or show insufficient cause to make the said rule absolute by issuance of appropriate writ(s), order(s), direction(s) as this Hon’ble Court may deem fit and proper; Page 1 of 6 // 2 // And/or be pleased to pass any other order(s), direction(s) as this Hon’ble Court deem equitable and proper kin the facts and circumstances of the case; And for which act of kindness, the petitioner shall 2. as in duty bound and ever pray.= This matter is being heard for so many dates, finally by order dated 07.07.2023, this Court not being satisfied to the submission of the contesting opposite parties through their counter desired the perusal of the case record only to find out the fairness in it. Case record is produced today.
Decision
The writ petition involves a challenge to the impugned order at Annexure-5, page-28 of the brief on variety of grounds including serious allegation of an unilateral enquiry in absence of any complain by persons involved and even without serious engagement of the petitioner. 3. Short background involving the case is that petitioner was earlier accorded certificate of registration under Odisha Clinical Establishment (Control & Regulation) Act, 1990 bearing No.771 of 2007 to run its unit in consonance with the terms of the Registration. It was also extended the empanelment in Biju Swasthya Kalayan Yojana Scheme. But one of its employees claimed the said registration and empanelment and succeeded to get the same in respect of its Nursing Home <Nirmalya= in spite of the objection raised by the petitioner, finding no option left, petitioner again applied for registration under the Act, 1990 and the same was accorded to him in Registration No.PUR/00015/2022 dt.1.10.2022, which is valid till 30.09.2027. It is while the mater stood thus, the Chief District Medical Officer-opposite party no.3 issued notice to show cause alleging treatment of Page 2 of 6 // 3 // two patients in the hospital under BSKY Scheme on 05.03.2023 and 07.04.2023. It is further alleged that the patients’ BSKY Card was not blocked but they were treated under the said scheme and accordingly considered the same as fraudulent activity. The Chief District Medical Officer required the petitioner to file show cause reply vide Annexure-3 within two days. Accordingly, the petitioner submitted the show cause vide Annexure-4 denying even treatment of any such patients or their admission in the Hospital and thus there was no contingency to apply for use BSKY Card. After submission of show cause reply, petitioner finding no response went to the office of the Chief District Medical Officer to request for an enquiry into the matter and he was required to sign in a plain paper which was subsequently converted to a part of reply on admission. The petitioner thus compelled to submit a detailed request letter explaining the circumstances and its denial of treatment of the patients allegedly under BSKY scheme on 05.03.2023 and 07.04.2023 and any contingency to use the BSKY card who have not got treatment at all. 4. In addition to the above grounds, Mr.Mohapatra, learned counsel for the petitioner taking this Court to the show cause notice at Annexure-3 and the response of the petitioner at Annexure-4 read together with the impugned order alleges in spite of clear denial of treating the persons named in Annexures-3 and 5 at all in such institution further alleged there has been in fact no effort on consideration of such aspect and the impugned order is a bald one. There is Page 3 of 6 // 4 // also serious allegation of non-involvement of the petitioner in such serious process before bringing a final outcome of such serious issue. 5. Learned State Counsel taking this Court to the counter affidavit already on record, reading through paragraphs-5 & 6, again also in reference to the show cause notice issued to the petitioner and petitioner’s response vide Annexure-4 being considered, there has been proper procedure followed before taking the action vide Annexure-5, impugned herein. In the process, learned State Counsel attempted to justify the impugned action. 6. This Court here looking to the show cause notice finds the show cause notice at Annexure-3 reads as follows:. <OFFICE OF THE CHIEF DISGTRICT MEDICAL & PUBLIC HEALTH OFFICER,PURI. Letter No.2113/ Dt.28.04.2023 To The Proprietor, Ananta Balia Swasthya Seva Niketan, Puri. Sub: Show cause for Give reasons to explain how the patient is treated in your hospital under BSKY without blocking their BSKY card at your hospital. Sir, With reference to the subject cited above I am here to inform you that it has been noticed that patients Sasmita Nayak and Krishna Rani Chandua are being treated in your hospital under BSKY on 05.03.2023 and 07.04.2023. But patient’s BSKY card is not blocked by your hospital so how did you treat this patient under BSKY in this hospital. Which is considered fraudulent activity? Therefore, you are directed to explain as to why your hospital will not be de-empanelled for such fraudulent activity within 2 days of receipt of this letter. This is for kind information and necessary action. Yours Faithfully Sd/- 28.4.23 Chief District Medical & Public Health Officer, Puri.= 7. Perusal of response of the petitioner at Annexure-4, this Court finds petitioner has a flat denial on the treatment of persons named in the show cause completely denying to Page 4 of 6 // 5 // have treated any such patient. Looking to the allegation and the mode of denial at this stage going through the entire case record, this Court finds there is absolutely no attempt to bring on record as to whether such persons have been treated at all or not. There is even no material available on record establishing availability of any complain submitted to the competent authority nor any preliminary enquiry on attending such reason to find the complain at least subsists. It is here going through the impugned order at Annexure- 5,the impugned order, this Court finds the impugned order reads as follows: <OFFICE OF THE CHIEF DISGTRICT MEDICAL & PUBLIC HEALTH OFFICER,PURI. Letter No.2187/ Dt.1.05.2023 To The Proprietor, Ananta Balia Swasthya Seva Niketan, Chari Chhaka, Puri. Sub: Regarding De-empanellment of Ananta Balia Swasthya Seva Niketan, Chari Chhaka, Puri. Ref: This office letter No.2113 dt.28.04.32023. Your explanation dtd. 29.04.2023. Sir, With reference to the subject cited above, I am here to inform you that, your Hospital namely Ananta Balia Swasthya Seva Niketan, Chari Chhaka, Puri is here by de-empanellment from Biju Swasthya Kalyan Yopjana. w.e.f.02.05.2023 Since your explanation is not satisfactory. This is for kind information and necessary action. Yours Faithfully Sd/- 1.05.2023 Chief District Medical & Public Health Officer, Puri.= Reading the above, this Court finds serious issue involved herein should have been decided in such bizarre manner. The impugned order undisputedly remained as an outcome of non-application of mind and also an unreasoned one. Page 5 of 6 // 6 // 8. In the circumstance, this Court finds there is no foundation in bringing an outcome vide Annexure-5, which ought to be interfered. For the above reason, this Court accordingly interferes in the impugned order at Annexure-5 and sets aside the same. 9. The writ petition thus succeeds but in the circumstance there is no order as to cost. Orissa High Court, Cuttack. Dated the 31st July, 2023/SKS …….……………………….. Biswanath Rath, J. Signature Not Verified Digitally Signed Signed by: SUSIL KUMAR SWAIN Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2023 17:05:15 Page 6 of 6