Himachal Pradesh High Court
Between vs Chief Executive Officer on 29 October, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
FIRST APPEAL FROM ORDER No. 221 of 2021
Between:-
FREEDOM HOME WELFARE
SOCIETY, V.P.O. KINNU,
TEHSIL BHARWAIN, DISTRICT
UNA, THROUGH ITS
PRESIDENT RAKESH KUMAR.
...APPELLANT
(BY M/S SUNEET GOEL & RAGHAV GOEL, ADVOCATES)
AND
CHIEF EXECUTIVE OFFICER,
MENTAL HEALTH AUTHORITY,
H.P. STATE, SHIMLA-5.
....RESPONDENT
(BY SHRI ASHOK SHARMA, ADVOCATE
GENERAL, WITH M/S ADARSH SHARMA
AND SANJEEV SOOD, ADDITIONAL
ADVOCATE GENERALS)
Whether approved for reporting? Yes.
_________________________________________________
This petition coming on for hearing this day, the Court passed the
following:
JUDGMENT
By way of this appeal filed under Sections 69 and 83 of the Mental Health Care Act, 2017, the appellant herein has assailed Annexure A-11, i.e., office order dated 07.10.2021, passed by the Senior Medical ::: Downloaded on - 31/01/2022 23:14:31 :::CIS 2 Superintendent HHMH & Rehab-cum-CEO, H.P. State Mental Health Authority, Shimla-5, which reads as under:-
"OFFICE ORDER .
Whereas Freedom Home Welfare Society was provisionally registered at Sr. No. 063 dated 28.12.2019 with HP SMHA and subsequently renewed on dated 28.12.2019 at Sr. No. 063 to run SUD treatment and rehabilitation centre at VPO Kinnu, Tehsil Bharwain, District Una (H.P.)-177109.
And whereas Chief Medical Officer, Una, vide letter No. HFW-UNA-(NMHP-MHEC)-2020/14875 r dated 5.10.2021 has recommended closure on the basis of inspection carried out on 20.09.2021.
You are therefore directed to close down your operations within 7 days and shift the patients to their families. And De-addiction and rehabilitation services carried out in said SUDs treatment and rehabilitation centre shall be considered as unlawful and shall be accordingly dealt under MHCA-2017.
Sr. Medical Supdt.HHMH & Rehab-cum-CEO H.P. State Mental Health Authority, Shimla-5"
2. Brief facts necessary for the adjudication of the present petition are as under:-
Petitioner-Society was registered provisionally under the provisions of The Mental Healthcare Act, 2017 (hereafter referred to as 'the 2017 Act') as a Mental Health Establishment in terms of the provisions of Sections 65 and 66 thereof w.e.f. 28.12.2019 (Annexure P-2). Thereafter, ::: Downloaded on - 31/01/2022 23:14:31 :::CIS 3 the said provisional registration was renewed for a period of twelve months vide order dated 28.12.2020 (Annexure A-3). In other words, the petitioner-
Society was permitted to operate as a Mental Health Establishment up to .
27th December, 2021. In the interregnum, on the basis of a general complaint received against the functioning of such like Institutions, the petitioner-Institute was inspected by the Chief Medical Officer, Una alongwith his Team Members on 20th September, 2021 and based upon said visit, he submitted his report dated 5th October, 2021, which has led to the issuance of impugned order.
3. Learned counsel for the petitioner has primarily argued that the impugned order is not sustainable in the eyes of law, as the same has been issued without following the procedure, which is laid down under the 2017 Act for cancellation of registration. He has drawn the attention of the Court to the provisions of Section 68 of the Act and has submitted that the statutory provisions contained therein, which are mandatory in nature and which have to be followed before cancellation of the registration, have not been followed and result thereof is that the impugned office order is rendered void abinitio. Accordingly, a prayer has been made that the appeal be allowed and the impugned order be quashed and set aside
4. Defending the order, learned Advocate General has argued that as the mandate of the Act was not being followed by the Institutions, including the petitioner-Institution, accordingly, they were inspected by the Chief Medical Officer and based upon the report of the said officer, ::: Downloaded on - 31/01/2022 23:14:31 :::CIS 4 appropriate office order was passed by the authority envisaged under the Act, as the same was in the larger interest of the patients, who were undergoing treatment in such like Institutions. He further submitted that the .
act was undertaken by the authority concerned without any discrimination, as the same parameters were applied for all the Institutions and whereever the infirmities were found, appropriate action was taken. On these basis, he has stated that there is no infirmity in the impugned order and the appeal being without merit, be dismissed.
5. I have heard learned counsel for the parties and also gone through the impugned order as well as other documents on record.
6. The Mental Healthcare Act, 2017 has been brought into force in place of The Mental Health Act, 1987 with the aim to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto.
7. Chapter-X of the said Act deals with Mental Health Establishments. Section 65 thereof provides that no person or organization shall establish or run a mental health establishment unless it has been registered with the Authority under the provisions of this Act. Section 66 of the Act provides for procedure for registration, inspection and inquiry of mental health establishments. Section 67 provides for audit of mental health ::: Downloaded on - 31/01/2022 23:14:31 :::CIS 5 establishment and Section 68 thereof provides for inspection and inquiry and the same reads as under:-
"Section 68. Inspection and inquiry-(1) The .
Authority may, suo motu or on a complaint received from any person with respect to non-adherence of minimum standards specified by or under this Act or contravention of any provision thereof, order an inspection or inquiry of any mental health establishment, to be made by such person as may be prescribed.
(2) The mental health establishment shall be entitled to be represented at such inspection or inquiry.
(3) The Authority shall communicate to the mental health establishment the results of such inspection or inquiry and may after ascertaining the opinion of the mental health establishment, order the establishment to make necessary changes within such period as may be specified by it.
(4) The mental health establishment shall comply with the order of the Authority made under sub-section(3).
(5) If the mental health establishment fails to comply with the order of the Authority made under sub-section (3), the Authority may cancel the registration of the mental health establishment.
(6) The Authority or any person authorized by it may, if there is any reason to suspect that any person is operating a mental health establishment without registration, enter and search in such manner as may be prescribed, and the mental health establishment shall co-
::: Downloaded on - 31/01/2022 23:14:31 :::CIS 6operate with such inspection or inquiry and be entitled to be represented at such inspection or inquiry."
8. Section 69 of the Act provides that any mental health .
establishment aggrieved by an order of the Authority refusing to grant registration or renewal of registration or cancellation of registration, may, within the period of thirty days from such order, prefer an appeal to the High Court in the State.
9. Now, a perusal of Section 68 of the Act demonstrates that in terms thereof, the Authority prescribed under the Act may, suo motu or on a complaint received from any person with respect to non-adherence of minimum standards specified by the Act or with regard to contravention of any provision thereof, order an inspection or inquiry of any Mental Hhealth Establishment, to be made by such person as may be prescribed. This Section further provides that a Mental Health Establishment shall be entitled to be represented at such inspection or inquiry. It further provides that the authority shall communicate to the Mental Health Establishment the result of such inspection or inquiry and may after ascertaining the opinion of the Mental Health Establishment, order the establishment to make necessary changes within such period as may be specified by it. Section further provides that the Mental Health Establishment shall comply with the order of the Authority and in case it fails to comply with the order, then the Authority may cancel the registration of the Mental Health Establishment.
::: Downloaded on - 31/01/2022 23:14:31 :::CIS 710. As has already been mentioned hereinabove, the petitioner-
Institution was visited by the Chief Medical Officer on 20.09.2021 alongwith team members. This was done in compliance to letter, dated 10.09.2021, .
issued by the CEO, HPSMHA, Shimla. From the perusal of the inspection report, it is not evident as to whether the Mental Health Establishment was permitted to be represented during inspection or not. Be that as it may, the fact of the matter remains that after the petitioner-Institution was visited by the Authority concerned alongwith the team members and inspection report dated 05.10.2021 was prepared, on the basis of which, the impugned order has been passed. The inspection report admittedly was never communicated to the petitioner-Society nor any instructions were issued to the petitioner-Society to comply with the shortcomings, as stood pointed out in the inspection report. In other words, the provisions of Sub-sections(3) & (4) of Section 68 of the Act stand flagrantly violated while passing the impugned order by the Authority, as no opportunity of being represented or being heard or rectifying the purported shortcomings was given to the petitioner-Institution before passing the impugned order.
11. This Court is of the considered view that as the respondents have failed to comply with the provisions of Section 68 of the 2017 Act, the subsequent order, which was passed by the appropriate authority, but natural, is void abinitio and not sustainable in law.
12. When the Act prescribes a procedure to be followed before arriving at a conclusion, then that procedure has to be mandatorily followed, ::: Downloaded on - 31/01/2022 23:14:31 :::CIS 8 especially in those cases where the final order is penal in consequences and nature. In this case, the final order has grave civil consequences. It is penal in nature and, therefore, the provisions which are enshrined in .
Section 68 to safeguard the interests of the Mental Health Establishments have to be followed before passing an order envisaged under Sub-
section(5) of Section 68 of the Act, which admittedly was not done in this case.
13. In view of the observations made hereinabove, this appeal is allowed and order, dated 07.10.2021, passed by the Sr. Medical Supdt.
HHMH& Rehab-cum-CEO, H.P. State Mental Health Authority, Shimla, is quashed and set aside, but with the observation that as the order has been set aside on technical ground, the Authority shall be at liberty to proceed against the appellant, in accordance with law afresh. Miscellaneous applications, if any, also stand disposed of.
(Ajay Mohan Goel) Judge October 29, 2021 (bhupender) ::: Downloaded on - 31/01/2022 23:14:31 :::CIS