Andhra Pradesh High Court - Amravati
M/S. Lotus Hospital. vs The State Of Andhra Pradesh, on 9 February, 2021
Author: U.Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.19315 of 2020
ORDER:
The petitioners pray for a writ of mandamus to declare the action of respondents, particularly 2nd respondent, in issuing proceedings in file No.COLNLR-DSED/194/2020-SA(D2)-REV- NLR dated 06.10.2020 de-notifying 1st petitioner hospital from category B for treating both COVID and non-COVID patients to category C hospital for treatment of exclusively non-COVID patients without considering the explanation of petitioners as illegal, arbitrary and violation of Article 14 and 19(1)(g) of the Constitution of India and in violation of the principles of natural justice and consequently set aside the aforesaid proceedings dated 06.10.2020 and direct the 2nd respondent to re-notify the 1st petitioner hospital as category B (both COVID and non-COVID) hospital.
2. The petitioners' case is thus:
(a) The 1st petitioner is the Hospital and 2nd petitioner is the Doctor and Proprietor of 1st petitioner. 1st petitioner-Lotus Hospital is located in Nellore City equipped with advanced health care facilities for both inpatients and out patients. The hospital equipped with women and child care facilities especially in Gynaecology, Obstetrics and Paediatric cases.
(b) While so, due to rapid outbreak of COVID-19, the 1st respondent in order to contain the rapid increase of COVID, issued orders to the District Collector to designate the Government and 2 private hospitals for treatment of COVID patients. Subsequently, the 3rd respondent in pursuance to COVID Order No.18, issued proceedings including the 1st petitioner hospital in 6th line vide Office note in DCLR No.77 dated 15.04.2020. The 2nd petitioner submitted a representation dated 27.04.2020 to the respondents 2 & 4 to reconsider the inclusion of 1st petitioner hospital as COVID-19 hospital as it is located in a residential zone and hence, its maintenance would be difficult. It was further informed that the hospital structure was not suitable for strict control and maintenance of full isolation and to prevent secondary spread of COVID-19.
Added to it, the hospital was majorly looking after women and child care cases especially relating to Gynaecology, Obstetrics and Paediatrics etc. The 2nd petitioner submitted further representations dated 29.07.2020, 03.08.2020 and 05.08.2020 to 2nd respondent to notify the 1st petitioner hospital as non-COVID hospital.
(c) While so, the 2nd respondent vide proceedings in RC.No.D1/SPL/2020 dated 04.08.2020 notified the 1st petitioner hospital as under category B hospital to treat both COVID and non- COVID cases. As there was no other go, the 2nd petitioner obtained a new building 'Samrat Clinic' with G + 4 floors in Sodhan Nagar, Nellore for establishing an exclusive COVID-19 hospital by incurring huge expenditure. By his letter dated 17.08.2020, the 2nd petitioner informed 3rd respondent that they have arranged an alternative treatment facility for COVID-19 patients in Sodhan Nagar, Nellore 3 and requested to allocate certain staff members to work in the said hospital. From 19.08.2020 onwards, the 1st petitioner hospital has started operations from the newly established COVID-19 hospital.
(d) Pursuant to the above request of the 2nd petitioner, the 2nd respondent vide proceedings in Rc.No.DCLR182/2020 dated 27.08.2020 has permitted the 1st petitioner hospital to treat COVID-19 patients at Samrat Clinic, Sodhan Nagar, Nellore.
(e) The further case of the petitioners is that the 2nd respondent vide impugned proceedings in COLNLR-DSED/194/2020-SA(D2)- REV-NLR dated 06.10.2020 has de-notified the petitioner hospital from category B and declared to category C (only non-COVID) hospital. The 2nd respondent in the said proceedings alleged as if the 1st petitioner hospital violated COVID-19 treatment protocols, caused inconvenience to the patients and to the Government by not submitting timely reports. Further, placing reliance on the report submitted by 4th respondent-Nodal Officer, the 2nd respondent mentioned in the impugned proceedings that the 1st petitioner has lost the good faith of the public and it collected amounts from the Aarogyasri card holders. The 2nd respondent further mentioned as if DMHO, Nellore and District Coordinator of Dr. YSR Aarogyasri have issued notices to the management of 1st petitioner hospital. However, the petitioners did not receive any such notices. Further more, the 2nd respondent did not even provide the petitioner with an opportunity of hearing before de-notifying the hospital from category B. The 2nd 4 petitioner by investing huge amount, has been providing treatment to COVID-19 patients to their utmost satisfaction by collecting minimum fee. However, the 2nd respondent for the reasons best known to him, passed the impugned order without providing an opportunity of hearing to the petitioner. Hence, the principles of natural justice were a casualty in this case.
Hence, the writ petition.
3. The 2nd respondent filed counter opposing the writ petition and inter alia contending thus:
(a) In view of rapid increase of COVID-19 patients in the State of Andhra Pradesh, the Government have issued G.O.Ms.No.77, Health Medical and Family Welfare Department, dated 08.07.2020 and instructed to take private hospitals for treating the COVID-19 patients in the following three categories:
Category A: Treat exclusive COVID-19 patients, Category B: Treat both COVID-19 and Non-COVID-19 patients and Category C: Only Non-COVID-19 Cases.
The District Administration identified 4 hospitals for category A, 11 hospitals for category B, and 14 hospitals for category C in the Nellore District and notified the same in the official proceedings No.Rc.D1/SPL/2020 dated 04.08.2020. In response to the aforesaid proceedings, the 2nd petitioner made a representation to the District Collector requesting to de-list their hospital from category A and B on 5 the ground that their hospital was treating non-COVID patients mainly pregnant women, infants, children etc. and they cannot take risk of mixing those patients with COVID patients. Similar representations were made on 08.08.2020 and 17.08.2020. In the representation dated 17.08.2020, it was requested that permission may be granted to the Lotus Hospital Branch situated in Samrat Clinic at Sodhan Nagar to treat the COVID-19 patients. Accordingly, vide proceedings dated 27.08.2020 the 2nd respondent gave permission.
(b) Nodal officers have been appointed to each notified COVID hospital for supervising the smooth running of hospitals. In that process, the 4th respondent has been appointed as Nodal Officer in Lotus Hospital. He reported that the Samrat Clinic (branch of Lotus hospital) has violated the COVID-19 treatment protocol and caused inconvenience to the patients and to the Government by not submitting the timely report. Further, the hospital management has violated Government norms and collected fee from critical and non-
critical COVID-19 patients more than the prescribed package fixed by the Government and also collected fee from Dr. YSR Aarogyasri health card holders who are eligible for cash less treatments. Hence, a notice was issued to the hospital management on 22.09.2020 to submit written explanation. However, the hospital management has not filed any explanation. Therefore, the District Administration has taken decision to de-notify the Lotus Hospital (Samrat clinic branch of Lotus Hospital) from category B to category C and accordingly, 6 proceedings dated 06.10.2020 were issued. The DMHO issued another notice to M/s. Lotus Hospital and in response to it, the Lotus Hospital submitted its explanation. The orders were passed basing on the report of the Nodal Officers. The team of professional Doctors have inspected the hospital and opined that it is not advisable to continue Samrat hospital as COVID hospital in the interest of public safety and to save precious lives. Hence, the impugned orders were passed.
(c) It is also pertinent to note that as per the proceedings of the DMHO dated 24.10.2020, the Lotus hospital authorities established their new branch at Sodhan Nagar near RTC Bus Stand, Nellore without obtaining registration from the District Registration Authority. They have also not obtained NOC from Fire Department, pharmacy license. No NOC was obtained from Pollution Control Board and no trade license was obtained. Therefore, the petitioners are not entitled to treat patients even under category C in their Branch hospital at Sodhan Nagar which is not having any valid permission or registration.
(d) It is further submitted that due to pandemic situation prevailing at that point of time, the petitioner was allowed to treat COVID patients at its branch hospital. However, he is not entitled to any equities to run the same after de-notifying from category B to category C. In fact, initially the Lotus hospital was notified as category B basing on the valid permissions of the hospital situated at 7 Pagathota only. It is only based on the request of the petitioner, he was allowed to treat the patients in the peculiar circumstances. In view of the same, he is not entitled to run the said branch without any valid permission. It is also pertinent to submit that the authority has de-notified all the hospitals in Nellore including the petitioner's hospital from category B to category C except Government General Hospital, Nellore and Narayana Medical College Hospital, Nellore.
(e) It is further submitted that during the months of July, 2020 to September 2020, the COVID-19 positive cases were at peak stage in Nellore District, but after that they gradually decreased. Now, these many number of hospitals are not required as COVID-19 prevalence and positive rate in the District has decreased and the capacity of the Government General Hospital, Nellore and Narayana Medical College Hospital, Nellore is more than adequate to treat the current active cases. The Government is at liberty to increase or decrease the number of hospitals depending upon the active cases. At present, there are below 100 cases in the District from past 15 days.
Hence, the writ petition may be dismissed.
4. Heard Sri N.Ashwani Kumar, learned counsel for petitioner, and learned Government Pleader for Medical, Health & Family Welfare.
5. From the pleadings and arguments, the facts that surface are to the effect that the petitioners are having their main hospital viz., Lotus Hospital at Pagathota which deals with different branches including 8 Gynaecology, Obstetrics and Paediatric cases. Due to prevalence of COVID-19 pandemic, on the directions of the Government, the 2nd respondent vide proceedings in Rc.No.D2/SPL/2020 dated 06.08.2020, identified the Lotus hospital as category B hospital, in which both COVID and non-COVID patients can be treated. It appears the petitioners submitted successive representations to de- notify their hospital from category B to category C on the ground that their hospital is located in the residential area and they were treating the Gynaec, Paediatric and Obstetric cases. Their request was not considered. In the meanwhile, the petitioners have opened a branch hospital i.e., Samrat Clinic at Sodhan Nagar, Nellore and submitted a representation dated 17.08.2020 to the respondent No.3 stating that the petitioners have made alternative treatment facility at Sodhan Nagar, Nellore for treating the COVID-19 patients and requested to provide staff members to work at their branch office. The 2nd respondent in his order dated 27.08.2020 permitted the petitioners to treat COVID positive patients at Samrat clinic (Lotus hospital Branch) located at Sodhan Nagar, Nellore and instructed the petitioners to maintain fire safety precautions and security for the COVID positive patients. To this extent, facts are not disputed by either side.
(a) Then, the bone of contention is the impugned proceedings dated 06.10.2020 issued by 2nd respondent. The said proceedings were issued with the following observations:
9
"In the references 3rd and 4th read above, the Nodal Officers have reported that the Hospitals Notified have violated the COVID-19 treatment protocols and have caused inconvenience to the patients and to the Government by not submitting timely reports. The reports of the Nodal Officers reveals that, the above hospitals have lost the good faith of the public for, the reasons cited below:
1. The Hospitals Management have violated the COVID-19 treatment protocols as per Government norms.
2. The Hospitals Management have collected fees from the Critical and Non Critical care for COVID-19 patients more than the prescribed package cost as fixed for the treatment by Government.
3. The Hospitals Management have collected fees from the Dr. YSR Aarogyasri Health Card Holders.
4. The Hospitals Management have not given proper treatment and full details of the treatment either to the patient or his relative as well as the Nodal Officer/concerned departmental officer.
In this connection the District Coordinator, Dr. YSR Aarogyasri and District Medical and Health Officer, Nellore have issued notices to the management of the above hospitals to why the hospitals shall not be taken action on the above lapses.
(b) On the above observations, the 2nd respondent de-notified the Lotus Hospital of the petitioner from category B hospital to category C hospital. Be that it may, as per the averments made in the counter filed by the Government Pleader, it seems, the District Medical & Health Officer (DMHO), Nellore in his proceedings dated 24.10.2020 observed that the branch office was established by the petitioners at Sodhan Nagar without obtaining registration from the District Registration Authority and they also not obtained NOC from the Fire Department and Pollution Control Board and they have also not obtained pharmacy license and trade license and therefore, the petitioners are not entitled to treat the patients in the branch hospital at Sodhan Nagar even under category C (i.e., non-COVID patients). However, in the impugned proceedings dated 06.10.2020 issued by 10 the 2nd respondent, we do not find such allegations relating to branch hospital at Sodhan Nagar. As noted supra, the allegations were relating to certain violations committed by the Lotus hospital management and consequent de-notification of the Lotus hospital from category B to category C.
(c) Learned counsel for petitioners vehemently opposed the allegations made in the impugned proceedings dated 06.10.2020. He would argue that even though the Government have notified the Lotus hospital as category B hospital to treat both COVID and non-COVID patients much against the willing of the petitioners and lack of sufficient infrastructure and facilities to deal with the COVID patients and despite the fact that the said hospital is located in the residential area and the petitioners are dealing with sensitive cases i.e., Gynec, Paediatric and Obstetric cases still the petitioners obliged the said order. He would argue that the petitioners have, in the public interest obliged the proceedings of 2nd respondent and treated the COVID cases in the Lotus hospital. However, keeping the security and health of the general patients, the petitioners procured alternative accommodation and started a branch hospital at Sodhan Nagar by incurring huge expenditure to treat the COVID patients exclusively and obtained permission of the 2nd respondent to treat the COVID patients in the branch hospital. Learned counsel would vehemently argue that the petitioners have undertaken this exercise only with a view to assist the Government machinery to treat the COVID patients. 11 However, much against their dismay, unruly allegations were made against the petitioners as if they did not follow the COVID treatment protocols, charged exorbitant fees from the COVID patients and Aarogyasri card holders and also did not submit reports to the concerned officials. Learned counsel argued that those allegations are baseless and false to the core. He would further argue that the allegations against the branch hospital at Sodhan Nagar are also false inasmuch as the petitioners have obtained all the necessary statutory permissions from the concerned authorities and in fact the 2nd respondent himself gave permission to treat COVID patients in the branch hospital which is indicative of the fact that the petitioners followed all the norms. Learned counsel lamented that before passing the impugned proceedings, the 2nd respondent did not give opportunity to the petitioner to submit his objections/explanation and no personal hearing was also accorded and thereby, principles of natural justice are a casualty in their case. He thus prayed to allow the writ petition.
6. Learned Government Pleader opposed the writ petition arguing that in the inspection made by the Nodal Officer and other medical officers, the malpractices committed by the petitioners came to light and therefore, the Nodal officer submitted a report, basing on which the 2nd respondent has rightly passed the impugned proceedings de- notifying the Lotus Hospital from category B to category C. He further argued that the Branch hospital also does not have necessary 12 permits as narrated in the counter. He thus prayed to dismiss the writ petition.
7. As can be seen, the nub of the issue is whether the petitioners' hospital committed certain violations in the matter of dealing with the COVID patients as narrated in the impugned proceedings. Since it is a factual aspect, the 2nd respondent is expected to issue show cause notice to the petitioner and call for his explanation in respect of the allegations made in the report of the Nodal officer and to conduct due enquiry before passing an order. A perusal of the impugned order dated 06.10.2020 does not show that the 2nd respondent issued any show cause notice to the petitioner calling for his explanation. It was only mentioned as if the District Coordinator of Dr. YSR Aarogyasri and DMHO have issued notices to the management of the petitioners' hospital. Since the 2nd respondent is the authority to take action against the alleged violations, he is expected to issue notice to the petitioners and conduct an enquiry. However, the 2nd respondent has not undertaken such an exercise and thereby, as rightly argued by the learned counsel for petitioners; the principles of natural justice became a casualty in this case. It is the cardinal principle of law that when allegation is grave, fair opportunity of hearing must be afforded to the person against whom the allegations are made. Unfortunately the same is not followed here. Therefore, in the considered view of this Court, the impugned proceedings need to be set aside and matter 13 requires to be remanded back to 2nd respondent to conduct fair enquiry by affording an opportunity to the petitioners.
8. In the result, this writ petition is allowed and the proceedings in file No.COLNLR-DSED/194/2020-SA(D2)-REV-NLR dated 06.10.2020 passed by 2nd respondent are set aside and the matter is remitted to 2nd respondent with a direction to issue show cause notice to the petitioners and call for their explanation and conduct due enquiry by affording a fair opportunity of hearing to the petitioners, and pass an appropriate order in accordance with the governing law and rules and also taking into consideration the present circumstances relating to COVID-19 pandemic. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
_________________ U.DURGA PRASAD RAO, J 09.02.2021 MVA 14