Allahabad High Court
Dr. Ganesh Yadav @ Ganesh Chandra Yadav ... vs State Of U.P. And 3 Others on 16 May, 2023
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:105889-DB Court No. - 3 Case :- WRIT - C No. - 15607 of 2023 Petitioner :- Dr. Ganesh Yadav @ Ganesh Chandra Yadav And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gulab Singh Yadav Counsel for Respondent :- CSC Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Shri Nitin Sharma holding brief of Shri Gulab Singh Yadav, learned counsel for the petitioners and Shri Ankur Tandon, learned Standing Counsel for State-respondents.
2. This writ petition has been filed praying to quash the order dated 12.04.2023 suspending the registration of "Eeshi Hospital, Bhadohi" under the Clinical Establishments (Registration and Regulation) Act, 2012 (hereinafter referred to as 'the Act, 2012') and another order of the same date i.e. 12.04.2023, whereby, a penalty of Rs.2,50,000/-, under Sections 40-41 of the Act, 2012 has been imposed upon the Manager of the Hospital. Admittedly, both the orders have been passed without any notice or opportunity of hearing to the petitioners.
3. By the other impugned order dated 15.04.2023, the Operation Theater and Ventilator of the petitioners' Hospital have been sealed allegedly in exercise of power, under Section 40 & 41 of the Act, 2012, which provide as under:-
40. Penalty.--Whoever contravenes any provision of this Act shall, if no penalty is provided elsewhere, be punishable for the first offence with fine which may extend to ten thousand rupees, for any second offence with fine which may extend to fifty thousand rupees and for any subsequent offence with fine which may extend to five lakh rupees.
41. Monetary penalty for non-registration.--(1) Whoever carries on a clinical establishment without registration shall, on first contravention, be liable to a monetary penalty up to fifty thousand rupees, for second contravention with a monetary penalty which may extend to two lakh rupees and forany subsequent contravention with a monetary penalty which may extend to five lakh rupees.
(2) Whoever knowingly serves in a clinical establishment which is not duly registered under this Act, shall be liable to a monetary penalty which may extend to twenty-five thousand rupees.
(3) For the purpose of adjudging under sub-sections (1) and (2), the authority shall hold an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any monetary penalty.
(4) While holding an inquiry the authority shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the authority, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, it is satisfied that the person has failed to comply with the provisions specified in sub-sections (1) and (2), it may by order impose the monetary penalty specified in those sub-sections to be deposited within thirty days of the order in the account referred to in sub-section (8) of section 42.
(5) While determining the quantum of monetary penalty, the authority shall take into account the category, size and type of the clinical establishment and local conditions of the area in which the establishment is situated.
(6) Any person aggrieved by the decision of the authority may prefer an appeal to the State Council within a period of three months from the date of the said decision.
(7) The manner of filing the appeal referred to in sub-section (6) shall be such as may be prescribed."
4. Section 32 and 33 of the Act, 2012 provide for the procedure for Cancellation of Registration and Inspection of registered clinical establishments are as under:
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.
33. Inspection of registered clinical establishments.--(1) The authority or an officer authorised by it shall have the right to cause an inspection of, or inquiry in respect of any registered clinical establishment, its building, laboratories and equipment and also of the work conducted or done by the clinical establishment, to be made by such multi-member inspection team as it may direct and to cause an inquiry to be made in respect of any other matter connected with the clinical establishment and that establishment shall be entitled to be represented thereat.
(2) The authority shall communicate to the clinical establishment the views of that authority with reference to the results of such inspection or inquiry and may, after ascertaining the opinion of the clinical establishment thereon, advise that establishment upon the action to be taken.
(3) The clinical establishment shall report to the authority, the action, if any, which is proposed to be taken or has been taken upon the results of such inspection or inquiry and such report shall be furnished within such time, as the authority may direct.
(4) Where the clinical establishment does not, within a reasonable time, take action to the satisfaction of the authority, it may, after considering any explanation furnished or representation made by the clinical establishment, issue such directions within such time as indicated in the direction, as that authority deems fit, and the clinical establishment shall comply with such directions."
5. On 9.05.2023, this Court passed the following order;
"1. Heard Sri Manoj Yadav holding brief of Sri Gulab Singh Yadav, learned counsel for the petitioners and Sri Ankur Tandon, learned Standing Counsel for State-respondents.
2. There is a Hospital, namely Eeshi Hospital situated at Bypass road, Ramrairpur, Bhadohi, of which the petitioner no. 1, being a qualified doctor, claims himself to be a manager/person-incharge of the Hospital and the petitioner no. 2 also, being a qualified doctor, is anesthetist in the said hospital.
3. The aforesaid Hospital is registered by a Medical Establishment Certificate No. CMEE2258119 dated 30.07.2022 issued by the office of the Chief Medical Officer- Bhadohi, under the Department of Medical Health & Family Welfare, Government of U.P. In the said certificate the details of doctors and paramedical staff are given. Name of both the petitioners are included as doctors in the said certificate.
4. By the impugned order dated 12.04.2023, the respondent no. 4 held the petitioner no. 2 to be guilty of breach of Section 40 & 41 of the Establishment (Registration and Regulation) Act, 2012 and Rule 34 of the Rules and suspended her registration.
5. By another order of the same date i.e., 12.04.2023, a penalty of Rs. 2,50,000/- has been imposed upon the manager of the hospital i.e., the Petitioner no. 1 and yet by another office memorandum dated 15.04.2023 operation theater and ventilator of the Hospital have been sealed.
6. All the aforesaid three orders prima facie appears to have been passed in haste in complete breach of the provisions of Section 40 & 41 (3) of the Act, 2012, and also in complete breach of principles of natural justice. Both the orders dated 12.03.2023 prima facie appears to be completely arbitrary and illegal.
7. Learned Standing Counsel prays for time to file counter affidavit.
8. In view of the aforesaid, we direct the respondent no. 4 to file a counter affidavit within a week by means of his personal affidavit and show cause that in what circumstances and under what authority of law he passed the impugned order in breach of specific provisions of Section 41 (3) of the Act and also in breach of principles of natural justice. In the event counter affidavit is not filed, the respondent no. 4 shall remain personally present before this Court.
9. List/put up on 16.05.2023 as a fresh case before the appropriate Bench."
6. Despite afore-quoted order, the respondent no.4 has not filed counter affidavit, although he is personally present in Court. We repeatedly asked the respondent No.4, namely, Sri Santosh Kumar Chakra (Chief Medical Officer, Bhadohi) to read Section 40 and 41 of the Act, 2012 and justify the action taken under the aforesaid three impugned orders. The Court further asked him to apprise as to how without issuing any notice to the petitioners as contemplated under sub section (3) of Section 40 and 41 of the Act, 2012, he has passed the impugned order but the respondent No.4 could neither justify the imposition of penalty nor could justify sealing of the Operation Theater and Ventilator nor he could state that any notice as contemplated under section 41(3) of the Act, 2012 was issued to the petitioners.
7. In view of the facts as aforenoted, it is evident that the impugned orders have been passed in gross violation of the principles of natural justice, without following the procedure prescribed in the Act, 2012 and quantum of penalty imposed is without authority of law and beyond the maximum amount provided for the first offence under sections 40 & 41 of the Act, 2012. Therefore, the impugned orders cannot be sustained. Since the action has been taken by the respondent No.4 against the petitioners in gross violation of principles of natural justice and in breach of the provisions of Sections 40 & 41 (3) of the Act, 2012 and also without following the procedure as provided under Sections 32 and 33 of the Act, 2012, we quash the impugned order dated 12.04.2023 (suspension order) and the orders dated 15.04.2023 (imposing penalty and sealing the operation theatre and ventilator). Liberty is granted to the respondent No.4 to initiate proceedings against the petitioners, strictly in accordance with law and if permissible under the facts and circumstances of the case.
8. The writ petition is allowed with cost of Rs.50,000/- considering the gross illegal and unauthorised action on the part of the respondent No.4, which has caused much loss and serious harassment to the petitioners.
9. The respondent No.4 shall pay the cost of Rs.50,000/- to the petitioners within two weeks from today by an account payee bank draft/Banker cheque.
Order Date :- 16.5.2023 SFH