Patna High Court - Orders
Abhinay Priyadarshi vs The State Of Bihar on 24 August, 2020
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5641 of 2020
======================================================
Shivani Kaushik
... ... Petitioner/s
Versus
Union of India
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7135 of 2020
======================================================
Dinesh Kumar Singh
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7207 of 2020
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Aditi Hansaria
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7208 of 2020
======================================================
Ashish Sinha
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7209 of 2020
======================================================
Kishore Kunal
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020
2/9
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with
Civil Writ Jurisdiction Case No. 7212 of 2020
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Abhinay Priyadarshi
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 5641 of 2020)
For the Petitioner/s : Mr. Shivani Kaushik (In Person )
For the Respondent/s : Mr. Anjani Kumar (AAG4)
(In Civil Writ Jurisdiction Case No. 7135 of 2020)
For the Petitioner/s : Ms. Ritika Rani
For the Respondent/s : Mr. Lalit Kishore, Advocate General
(In Civil Writ Jurisdiction Case No. 7207 of 2020)
For the Petitioner/s : Mr. Nikhil Kumar Agrawal, Advocate
For the Respondent/s : Mr. Lalit Kishore, Advocate General
(In Civil Writ Jurisdiction Case No. 7208 of 2020)
For the Petitioner/s : Mr. Saket Tiwary, Advocate
For the Respondent/s : Mr. Lalit Kishore, Advocate General
(In Civil Writ Jurisdiction Case No. 7209 of 2020)
For the Petitioner/s : Mr. Kishore Kunal (In Person)
For the Respondent/s : Mr. Lalit Kishore, Advocate General
(In Civil Writ Jurisdiction Case No. 7212 of 2020)
For the Petitioner/s : Mr. Ritesh Kumar, Advocate
For the Respondent/s : Mr. Lalit Kishore, Advocate General
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
12 24-08-2020During the course of hearing of these petitions, learned Advocate General invites our attention to a vital issue of importance effecting public health. It is pointed out that one Association of Para Medical Employees has already resorted to strike. Following suite, the doctors have also threatened to go on strike.
Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020 3/9 In this regard, our attention is invited to the new reports published in the daily newspapers, Dainik Bhaskar dated 24.08.2020 and Dainik Jagaran dated 24.08.2020 which reads as under:-
",u,p,e dehZ gM+rky ij dksjksuk MkVk baVªh izHkkfor iVuk% jk"Vªh; LokLF; fe'ku (,u,p,e) ds lafonkdehZ jfookj ls vfuf'prdkyhu gM+rky ij pys x,A bl dkj.k dksjksuk MsVk baVªh dk dke izHkkfor gks x;k gSA jkT; LokLF; lfefr ds dk;Zikyd funs'kd }kjk 22 vxLr rd ekaxas iwjh djus dh fn'kk esa dksbZ dk;Zokgh ugha gksus ij dfeZ;ksa us gM+rky dk fu.kZ; fy;k gSA flfoy ltZu MkW- jktfd'kksj pkS/kjh us dgk fd blls dksjksuk laca/kh vkadM+ksa dks viyksM djus esa dqN ijs'kkuh gksxhA lafonkdehZ 20 tqykbZ dks Hkh gM+rky ij x, FksA ,u,p,e dehZ la?k] foHkkx ds dk;Zikyd funs'kd o foHkkxh; ea=h ds chp okrkZ gqbZ FkhA blesa ,d ekg esa ekaxsa iwjh djus dk vk'oklu fn;k x;k FkkA"
"us'kuy gsYFk fe'ku ds dehZ gM+rky ij x, iVukA jkT; ds LokF; dsanzkas esa lafonk ij rSukr us'kuy gsYFk fe'ku ds dehZ jfookj ls vfuf'prdkyhu gM+rky ij pys x, gSaA buesa gsYFk eSustj] MkVk vkWijsVj] fMfLVªDV izksxzke eSustj] ,dkmaVsaV] Cykd dE;qfuVh ekscykbtj] ekWfuVfjax ,aM boSY;q,'ku vkfQlj] QSfeyh Iykfuax dkmaflyj vkfn 'kkfey gSaA budh rSukrh gsYFk lc lsaVj ls ysdj jkT; LokLF; lfefr rd gSA fcgkj jkT; LokLF; lafonk dehZ la?k ds v/;{k eksgEen vQjkst vuoj us us dgk fd viuh ekaxksa ds leFkZu esa ,d eghuk igys Hkh gM+rky ij x, FksA ml nkSjku vk'oklu feyk Fkk fd desVh xfBr dj ,d eghuk ds vanj ekaxksa dh iwfrZ dj nh tk,xhA ysfdu vHkh rd mu ekaxksa dh iwfrZ ugha gqbZA"
In our considered view, during the time of current situation and circumstances prevalent as a result of Pandemic Covid-19, none of the functionaries empowered and authorized under the provisions of the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 can refrain from discharging their duties and functions, more so by resorting to the Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020 4/9 mechanism of strike which perhaps may be illegal. The doctors and the para medical staff(s) are constitutionally duty bound, even so on humanitarian grounds, to protect and preserve human life. Perhaps, they may have some genuine grievance, but then for redressal thereof, proper mechanism has to be resorted to, but State cannot be put to ransom by resorting to an illegal method of protest, i.e. going on indefinite strike.
Article 21 imposes an obligation not only on the State, but also on its functionaries to safeguard and protect the life of every individual as the Hon'ble Apex Court has already held preservation of human life is of paramount importance. The Medical Officers and the Para Medical Staff(s) employed in the Government Hospitals are duty bound to extend medical assistance for preserving human life. Failure on their part to provide timely medical treatment in the need of hour results in violation of right to life. This is what Hon'ble Apex Court held long ago. Consistently thereafter, every Court of the land, more so this Court in its earlier decisions has already highlighted the need and struck down such an action of the employees.
In Kameshwar Prasad and others v. State of Bihar and another, AIR 1962 SC 1166, the Apex Court held as under:-
"The rule in so far as it prohibits a strike cannot be struck down since there is no Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020 5/9 fundamental right to resort to a strike."
Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty- bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. [Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37] There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a "Bandh" which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. [Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201)] The Hon'ble Apex Court in T.K. Rangarajan v. Govt. of Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020 6/9 T.N., (2003) 6 SCC 581:
"19. Apart from statutory rights, government employees cannot claim that they can take the society at ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, the entire educational system suffers; many students are prevented from appearing in their exams which ultimately affects their whole career. In case of strike by doctors, innocent patients suffer; in case of strike by employees of transport services, entire movement of the society comes to a standstill: business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among the public against those who are on strike."
In Ashoka Kumar Thakur v. Union of India, (2011) 12 SCC 787, the Hon'ble Apex Court held as under:-
"5. As was noted by this Court in Paschim Banga Khet Mazdoor Samity v. State of W.B. (1996) 4 SCC 37 a person's right to get treated is inseparable from Article 21 of the Constitution of India. Keeping that aspect in view, we had required the persons who were on strike, demonstration, etc. to call them off to avoid inconvenience to the patients. The Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020 7/9 damage done to a patient is sometimes irretrievable, but the grievances of the persons who are resorting to strikes, etc. can be remedied in appropriate proceedings and the issues are being examined by this Court.
6. In that background, making the position clear that if any action is taken by the Government in respect of the impugned policy, the same shall be subject to the outcome of the present proceedings and/or any proceeding which may be filed relating to the issues, we direct that all protests, strikes and demonstrations or any such form of dissent relating to the issues being examined and/or connected and/or incidental and/or relatable thereto shall be called off forthwith. The medical services shall be restored forthwith. The doctors cannot be insensitive to the plight of patients."
In Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, at page 241, the Hon'ble Apex Court held as under:
"In the evolution of its jurisprudence on the constitutional right to life under Article 21, this Court has consistently held that the right to life is meaningless unless accompanied by the guarantee of certain concomitant rights including, but not limited to, the right to health.245 The right to health is understood to be indispensable to a life of dignity and well- being, and includes, for instance, the right to emergency medical care and the right to the maintenance and improvement of public health."
Preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020 8/9 capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment. A doctor at the Government hospital positioned to meet the State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. Every doctor should be reminded of his total obligation and be assured of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others. [Pt. Paramanand Katara v. Union of India & Ors., Patna High Court CWJC No.5641 of 2020(12) dt.24-08-2020 9/9 AIR 1989 SC 2039].
We are duty bound, more so by virtue of Article 144 of the Constitution to enforce the orders passed by Hon'ble the Apex Court.
As such we issue notice to the Bihar State Contractual Health Employees Federation and Junior Doctors Association.
Notice be effected through the Director, Health Department, Government of Bihar, Patna.
We also direct the Association and each one of the members of these Associations also other persons discharging duty as Para Medical workers and doctors to immediately call off their strike and discharge their respective duties.
Violation would only tantamount to aggravation of contempt.
List day-after-tomorrow, i.e. 26.08.2020.
(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/-
U