Delhi High Court
People'S Union For Civil Liberties vs Union Of India (Uoi) And Ors. on 30 July, 2003
Equivalent citations: 2003VAD(DELHI)229, 105(2003)DLT937, 2003(70)DRJ162
Author: Dalveer Bhandari
Bench: Dalveer Bhandari
JUDGMENT Dalveer Bhandari, J.
1.The Delhi State branch of People's Union of Civil Liberties has filed this public interest litigation alleging that there was a big scandal in the purchase of IV Fluids by Safdarjung Hospital during the year 1993-94. IV fluids purchased by the Safdarjung Hospital were contaminated and purchased at exhorbitant prices.
2.The other main grievance of the petitioner is regarding keeping of vital diagnostic and medical equipments deliberately non-functional by various Government hospitals in order to compel the patients of government hospitals to go to private hospitals and from whom they get a cut or commission. The third grievance of the petitioner was regarding the custom duty exemption for medical equipments imported by the private hospitals.
3.During the course of hearing, learned counsel for the petitioner pressed the first two reliefs and did not press the third relief regarding the custom duty exemption for medical equipments imported by private hospitals. Therefore, our findings in this judgment are confined and restricted to the two main grievances highlighted by the petitioner.
4.The petitioner incorporated in the petition that several persons died in Kanpur hospital and J.J.Hospital, Bombay following administration of contaminated IV Fluids. Committees were set up to inquire into the matters in both the places but no action was taken against the erring persons. This petition is also concerned with a similar grievance regarding four patients, who died at Safdarjung Hospital following the administration of contaminated IV Fluids.
5. The Safdarjung Hospital, New Delhi purchased 3.15 lakhs bottles of IV Fluids from Super Bazaar at a cost of Rs.23 to Rs.29 per bottle as opposed to the prevailing price in Government Supply Depot of Rs.10 to Rs.12 per bottle. Most of the IV Fluids were manufactured by Sri Krishan Keshav Laboratories, Ahmedabad and Bengal Immunity Company, Calcutta. None of these bottles were got tested in the standard government laboratories.
6.Prominent newspapers reported about the severe adverse drug reaction to number of patients in Safdarjung Hospital following administration of IV Fluids. On the same day, i.e., 23.9.1992, the then Director General of Health Services, Dr.Vishwakarma directed Dr.B.P.Bansal, an Officer on Special Duty, to inquire about the matter regarding the above newspaper reports. Dr.Bansal immediately wrote a letter about this to Dr.P.C.Rai, the then Medical Superintendent of Safdarjung Hospital. The Drug Controller of India asked the Drug Controller, Delhi Administration to depute a Drug Inspector to investigate the samples.
7.Dr.B.P.Bansal who had been asked to inquire into this matter gave four interim reports about IV Fluids. Dr.Bansal mentioned in his note that out of the four batches involved in the adverse drug reaction, only two batches have been sent for testing. The other two batches have not been sent for testing at all. On the insistence of Dr. Bansal samples of third batch on testing were found to contain suspended particles and were of sub-standard quality. Samples of the fourth batch involved were never sent for testing. Dr.Bansal pointed out that 2 of the 15 patients who had suffered adverse drug reaction to the administration of IV Fluids had died, but no post-mortem was conducted in respect of those persons. According to him the reaction could have been due to contamination in IV Fluids sets which had not been tested. Dr.Bansal further pointed out that there was no justification for purchasing contaminated IV Fluids at such high costs by the Safdarjung Hospital. He further stated that actually residual fluid from the bottles used on the patients who suffered adverse drug reaction ought to have been seized, sealed and sent for testing but this was not done.
8.It is incorporated in the petition that the then Joint Secretary Health, Government of India, Mrs.Shailja Chandra noted that there were two aspects of the report of Dr.Bansal, the first related to quality of IV Fluids and the second relatied to the purchase of IV Fluids at a very exhorbitant price by Safdarjung Hospital. On the first part, the Joint Secretary noted that since the Drug Testing Laboratory, Bangalore had declared the sample to be of a standard quality, she had no further comments to offer.
9.It is mentioned in the petition that in the note she did not mention that one of the four samples involved was never tested at any stage while the other when tested in the Government laboratory was found to be of a sub-standard quality and this report had been officially received before she wrote her note. On the other issue of deficiency in the Safdarjung Hospital she agreed that there was no justification in the purchase of IV fluids from the Super Bazaar at such a high cost and she estimated that the loss of the Government would be at least of Rs.40 lakhs on account of this purchase from the Super Bazaar alone. In the petition it is specifically incorporated that Dr.P.C.Rai, the then Medical Superintendent of the Safdarjung Hospital was clearly involved in this purchase scandal but instead of taking any action against him he was promoted to the post of Additional Director General of Health Services. The matter was sent to the Central Bureau of Investigation (for short CBI) for investigation and the CBI gave its report clearly inditing Dr.P.C.Rai for these purchases and finding him personally guilty of frauds in the matter of these purchases. The CBI report was submitted sometime in 1995 when Dr.P.C.Rai was still the Additional Director General of Health Services. However, despite the CBI report no action was taken against Dr.P.C.Rai and he was allowed to retire on 30.10.1995. According to the petitioner, this has been done with active connivance of respondents.
10.The other main aspect which has been highlighted in this petition is regarding medical and diagnostic equipments kept deliberately non-functional in the Government hospitals. On a complaint, the CBI had investigated the allegation of very expensive medical equipments such as CT Scan, Ultrasound machines etc. being kept non-functional by the government hospitals so that the patients are compelled to go to private hospitals from whom they get a cut or commission. The CBI found great merit and substance in the allegation and clearly indicated in the report that the expensive diagnostic equipments were deliberately kept non-functional in various government hospitals in order to send the patients to private diagnostic centers from whom the government officials receive a cut. It is further mentioned that despite the fact that these equipments were kept non-functional for a large number of days in many hospitals, even then huge expenditure was incurred on their maintenance. For example, it was found that in GB Pant Hospital, CT Scan unit remained non-functional for 496 days out of 609 days and remained functional only for 113 days despite that maintenance charges of more than Rs.4 lakhs were paid for this period for the maintenance of the machine.
11.The only action taken by the Health Ministry was to write to Dr.P.C.Rai, the then Additional Director General of Health Services, to ensure that these machines function properly so as to avoid inconvenience to the poor patients. However, nothing was done and the matter was allowed to rest with inter-office correspondence exchanged with some of the accused persons themselves. It is mentioned that GB Pant Hospital had purchased equipments worth Rs.80 crores in the years 1988-90 which included more than 27 Endoscopes, much more than those purchased in any other hospital in the country.
12.This court after hearing counsels appearing for the parties constituted two separate Committees one, headed by Justice N.C.Kochhar, a retired Judge of the High Court and another headed by Mr.M.Chandrasekharan, former Solicitor General of India. Justice Kochhar was requested to enquire into allegations of the purchase of IV fluids by Safdarjung Hospital during 1993-94 which was allegedly contaminated and purchased at exhorbitant price and Mr.Chandrasekhran was requested to enquire into the causes of non-functional medical equipments in the government hospitals. Terms of references were formulated by the court for both the Committees. It was observed that the said two Committees after finalizing the reports would submit the same to Union of India through Secretary Health and to the Govt. of NCT of Delhi through Principal Secretary Health who shall take all necessary actions as suggested in the report including initiating disciplinary proceedings or prosecution against persons or authorities and take the remedial measures through their various concerned officers or authorities.
13.Both the Committees submitted their reports sometime in 1999. The CBI has also submitted its report to the Government but it is observed in the order dated 2.2.2001 that despite all this no concrete action as yet has been taken by the Government. The Committee observed that neither the Central Government nor the Delhi State Government have appreciated the gravity and seriousness of the matter.
14.Mr.R.Chandramohan, Secretary Health & Family Welfare, Government of NCT of Delhi in an affidavit on 24th August, 2000 incorporated the specific allegation regarding irregularity in procurement, Installment and maintenance of medical and diagnostic equipments at GB Pant Hospital was examined by the Committee, but the Committee could not point out any individual lapses on the part of the concerned officials/officers which could have enabled the Government to ensure disciplinary proceedings against them straightway. It is also mentioned in the affidavit that in pursuance to the recommendations of the Committee all the hospitals including GB Pant Hospital and L.N.J.P. Hospital were directed to take necessary steps in the light of the recommendations of the Committee. A copy of the report furnished by the Director, GB Pant Hospital regarding current position of the equipments was also annexed along with the report which gives the details of the medical equipments which are functional and the equipments which have been condemned.
15.It is mentioned in the affidavit that in pursuance to the recommendations of the Committee the Government of NCT of Delhi had introduced new drug purchase procedure for the procurement of hospital equipments. The new procedure envisaged a pre-qualification of the bidders/suppliers by a Technical Evaluation Committee of various experts drawn from outside the Government according to their speciality. This Committee used to evaluate the bids at two stages; one at the initial indent of the hospital along with technical specifications and second the evaluation of the technical bids. Once the technical bids are evaluated as qualified by the Committee then these technical bids are finally considered on the basis of their respective price bids. The guidelines issued by the Central Vigilance Commission have to be scrupulously followed. Regarding the streamlining of the procedure for procurement and maintenance of the equipments at the hospital level, the recommendations of the Committee have been communicated to all the hospitals for necessary action.
16.The Vigilance Officer of the GB Pant Hospital had submitted its report on 3.2.2001. In this report in the category of Additional Findings, it is mentioned that the cases related to the purchase of equipments without demand can be divided into two categories
(a) Where the Head of Department concerned clearly state that the equipment has not been requisitioned by that department;
(b) Where no documentary proof of requisition for the equipment has been furnished by any authority whether Purchase Officer/Store Officer or Head of Department.
In both cases, the responsibility of purchase also lies upon the then Medical Superintendent, Director and the Purchase Officer. The Vigilance Officer observed that primary hurdle to the enquiry is non-availability of the purchase files pertained to the equipments. It is mentioned that the whereabouts of the purchase files as well as those of maintenance/AMC etc. of the concerned equipments still remains a mystery. Even during the present enquiry these files or extracts thereof have not been furnished. These files are extremely vital for deciding the allegations leveled against the concerned officials in correct perspective.
17.Mr.R.Mohan Kumar, Under Secretary, Department of Heath, Ministry of Heath and Family Welfare, Nirman Bhawan filed affidavit dated 26.7.2001. In the affidavit he stated that the Department of Health, Ministry of Health and Family Welfare has taken up the matter with the Medical Council of India for taking action, if any, against Dr.A.K.Mukherjee and Dr.P.C.Rai under the Code of Ethics for Doctors. The Medical Council of India in its reply dated 26th April, 2001 mentioned that the medical ethics cases are normally related to the obligation of a physician to his patients while discharging his duty as a medical practitioner. The Council may take up this issue and if the charges levelled against the two doctors have been proved and a formal request is made by the Government with the relevant documents.
18.The Government of National Capital Territory of Delhi had listed 19 equipments of GB Pant Hospital which had been procured either improperly or were not repaired in time when they went out of order, indicating the names of CHS doctor concerned with each equipment at the relevant time for being responsible.
19.In the report, Dr.M.Khalilullah, the then Director of the Hospital has been held accountable for improper procurement of 9 equipments but no action whatsoever was taken against him at the relevant point of time. It is mentioned that now no disciplinary proceedings can, however, be initiated against Dr.Khalilullah as he had retired in 1994 and under Rule 9 of the CCS (Pension) Rules, departmental proceedings are not possible, four years after the date of misconduct in the case of retired employees. Government of NCT of Delhi has, however, indicated that this matter has been examined by the CBI and in three cases, prosecution charges have been filed in court.
20.Dr.S.K.Khanna has been held accountable for improper procurement of equipment (CABG Sets). He however, retired in February, 1997 and therefore, no departmental proceedings can be initiated because of four years' limitation under Rule 9 of the CCS (Pension) Rules.
21.Dr.N.G.Joseph has been held accountable for not getting an equipment (Sterivac Gas Sterilizer) repaired in time when it went out of order during 1992-93 and for receiving delivery of an incomplete equipment (PFT 2600). Since he retired in March 1994 and the misconduct took place when he was in service, no departmental proceedings can be initiated against him because of the four years' limitation under Rule 9 of the CCS (Pension) Rules.
22.In respect of on equipment (Accelograph) Dr.P.Budhiraja and Dr.Mary Abraham have been held accountable. Dr.P.Budhiraja who was the Head of Department Anesthesia in March 1997, when the equipment went out of order is reported to have called for the estimate of repair from M/s Unissi (India) Ltd. and sent the same to Purchase Division for getting the machine repaired in October, 1997. The disciplinary authority considered that the misconduct was not serious enough to warrant any departmental action. Further, because of his retirement in November, 1997 no proceedings can be initiated due to the limitation under Rule 9 of the CCS (Pension) Rules.
23.Dr.Mary Abraham took over as Head of Department in November 1997 after the retirement of Dr.P.Budhiraja. She is stated to have got a fresh estimate of repair and sent it to the Purchase Section on learning that the earlier one had been misplaced and got the machine repaired in February, 1999. The disciplinary authority viewed that his conduct warranted only minor penalty proceedings as she was not the in-charge when the machine went out of order and also when the estimate had been sent to the purchase section. However, she was also responsible for getting the fresh estimate to get the machine repaired through the Purchase Section by February, 1999.
24.Dr.Adarsh Chowdhary has been held accountable for not getting 6 equipments repaired in time. The disciplinary authority did not find his explanation satisfactory and tentatively decided that regular departmental proceedings should be initiated.
25.The case was referred to Central Vigilance Commission (for short `CVC') for advice in August, 2001. CVC after returning the case once for complying with procedural formalities, has given the advice in December, 2001 recommending minor penalty proceedings against Dr.Mary Abraham and major penalty proceedings against Dr.Adarsh Chowdhary.
26.Disciplinary authority has accepted the advice of CVC and has initiated proceedings for minor penalty proceedings against Dr.Mary Abraham and major penalty proceedings against Dr.Adarsh Chowdhary. The charge sheets are under issue.
27.The CBI in its affidavit mentioned that FIR No.35/90 dated 20.11.1990 was registered in Anti Corruption Bureau (ACB), Govt. of NCT of Delhi under Sections 409, 120-B IPC and Section 13 of the Prevention of Corruption Act, 1988 against (i) Shri P.K.Banerjee, Purchase and Store Officer, GB Pant Hospital; (ii) M/s MRA International, New Delhi (Indian Agent of foreign supplier); (iii) Shri Atul Kumar, Proprietor M/s MRA International; (iv)Shri Hari Om Prakash Gutpa, Store Keeper, GB Pant Hospital and some officials of DGS &D, New Delhi.
28.It is further stated that the case was investigated by Anti Corruption Bureau, Delhi from 20.11.1990 to 16.9.1994 and thereafter investigation was transferred to the CBI on the request of Chief Secretary, Government of NCT of Delhi vide his letter dated 16.9.1994. It may be relevant to mention that Dr.P.K.Banerjee expired during the interregnum period and the case against him was dropped by the Spl Judge. This case is pending in the court of Spl Judge, Tis Hazari, Delhi.
29.It is also mentioned that another case was registered by the CBI on 25.6.1997 on the basis of source information against (i) Dr.O.P.Jain, ex-Medical Superintendent, GB Pant Hospital, New Delhi; (ii) Mr.P.K.Banerjee, ex-Store Officer, GB Pant Hospital; (iii) M/s B.L.Marketing Service Pvt. Ltd., New Delhi; (iv) Mr.J.K.Aggarwal, Director of M/s.B.L.Marketing Services Pvt. Ltd, New Delhi; (v) Mr.Sunil Aggarwal, Director of M/s. B.L.Marketing Services Pvt. Ltd. for offences punishable under Sections 120-B, 420 IPC and Section 13(1)(d) of Prevention of Corruption Act, 1988. According to the CBI the aforesaid persons conspired among themselves during the period 1988-90 and purchased medical equipments at exhorbitant rates without requirement on the basis of false Proprietary Article Certificates and without budgetary approval.
30.On completion of investigation, a charge sheet was filed against (i) Dr.O.P.Jain, former Medical Superintendent, GB Pant Hospital, New Delhi; (ii) Shri Sunil Aggarwal, Director of M/s B.L.Marketing Services Pvt. Ltd, New Delhi and (iii)M/s. B.L.Marketting Services Pvt. Ltd., New Delhi in the court of Sub Judge, Delhi on 30.11.1999. Letters of Request for Foreign Investigation under Section 166(A) Cr.P.C. have been sent to Singapore, USA and Japan.
31.The third case was registered on 11.7.1997 by the CBI on the basis of information for the offences punishable under Sections 120-B, 420 IPC and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 against (a) Dr.O.P.Jain, ex-Medical Superintendent, GB Pant Hospital; (b) Shri P.K.Banerjee, ex-Store Officer, GB Pant Hospital; (c) M/s. Consolidate Products Corporation Pvt. Ltd, New Delhi; (d) Shri Sunil Saigal, Director of M/s Consolidated Products Corporation Pvt. Ltd. (v) Smt.Neetu Saigal, Director of M/s Consolidated Products Corporation Pvt. Ltd. After investigation the charge sheet was filed on 16.2.2001 in the court of Sub Judge, Delhi against Dr.O.P.Jain, M/s Consolidated Products Corporation Pvt. Ltd., Shri Sunil Saigal, Director, M/s Consolidated Products Corporation Pvt. Ltd. for the offences punishable under Sections 120-B/420 IPC and Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act.
32. It is mentioned that during the investigation certain documents were seized from a number of firms involved in the supply of various medical equipments to GB Pant Hospital. During the investigation of these cases the role and conduct of Dr.M.Khalillulah, the then Director, GB Pant Hospital came under scrutiny but no evidence either oral or documentary could be found against him regarding his criminal involvement in the aforesaid cases and, as such, his name did not figure in the aforesaid three charge sheets. In the affidavit it is mentioned that so far as the aforesaid 3 RCS are concerned, the subject-matter of CBI investigations had been the supplies of medical equipments to GB Pant Hospital by the aforesaid 3 firms only. Apart from these three firms, some other firms had also supplied medical equipments/items to GB Pant Hospital during the period 1988-90 and, therefore, after completion of investigation, the CBI had sent two letters to the Chief Secretary, Government of NCT of Delhi with the request to take appropriate action against remaining firms at his end. In reply to the CBI's letter dated 7.3.2001 addressed to the Chief Secretary, Govt. of NCT of Delhi, a letter has been received from Govt. of NCT of Delhi in which it is intimated that if any material is available against rest of the firms, apart from those already mentioned in the three FIRs the same may be supplied to them for further action. It is mentioned that appropriate action is being taken with regard to this letter received from Govt. of NCT of Delhi.
33.It may be pertinent to mention that by the order dated 5th February 1999 it was decided by the respondent UOI to conduct a preliminary inquiry by Dr. Mrs. Ira Ray, Additional Director General of Health Services and Smt. Sunila Basant, Joint Secretary, Ministry of Health and Family Welfare in the matter of procurement of sub standard I.V fluid at exhorbitant prices by the Safdarjung Hospital during 1990-92 and fix the responsibility. The committee submitted its preliminary report in which it was mentioned that the papers relating to procurement of I.V fluids from the Super Bazaar and some other papers on which approval of the then Medical Superintendent, Dr.P.C. Rai was obtained were not available in the files produced before the Committee. The Committee also concluded that certain documents such as written approval of Dr.P.C. Rai, the then Medical Superintendent for purchase of I.V fluids from Super Bazaar and original letters received from the Ministry of Health and Family Welfare are not available in the files. The committee also mentioned that the maintenance of the files in the medical stores during 1990-92 cannot be said to be satisfactory and this created a situation whereby papers could have been removed/misplaced without persons noticing the loss immediately. Since the file index register was also not made available one cannot say with certainty that a file or files are missing. The Committee also concluded that no responsibility was fixed or action initiated against any functionary or officer by the then Medical Superintendent. The Committee also concluded that no action appears to have been initiated against any person in 1994 when it was first realised that the said paper (s) containing the approval of the then Medical Superintendent, Dr.P.C.Rai for purchase of I.V fluids from the Super Bazaar was not traceable. It was the responsibility of Safdarjung Hospital authorities to have conducted a thorough investigation at that point of time and unfortunately it appears that this was not done. It was found that Shri Randhir Singh who was handling the matter relating to the procurement of I.V fluids was at times designated as ASS and sometimes promoted as Stores Officer and then at times reverted. He appears to have also been placed under suspension and then reinstated by the Dtre GHS/MOH&FW and then transferred out to Dr. Ram Manohar Lohia Hospital on complaints of possessing assets disproportionate to his known source of income. The procedure followed for purchase of stores and filing of important sanction/approval orders was not satisfactory during 19901992. The present Medical Superintendent, Safdarjung Hospital informed the Committee that now the system has improved.
34.On 9th February 1999 the Secretary Health, Ministry of Health and Family Welfare wrote a letter to the Director, Central Bureau of Investigation mentioning that the Kochhar Committee recommended that the inquiry be conducted by the CBI to unearth the conspiracy for making attempt to throttle action against Dr. P.C.Rai as well as to fix responsibility in the Government of NCT of Delhi. On 1st June,1999 the Director,CBI sent a letter to the Secretary, Ministry of Health and Family Welfare in which it is mentioned that the Special Director,CBI vide his D.O letter dated 16.4.99 has informed that no useful purpose will be served by undertaking a de novo inquiry into this matter by the CBI on the ground that the CBI has already looked into the matter once and that important evidence is still missing.
35.On behalf of the Union of India, R. Mohan Kumar, Under Secretary, Ministry of Health and Family Welfare filed an affidavit on 26.7.2001 the relevant portion of the said affidavit reads as under:-
"That the respondent had also taken up the matter with the Medical Council of India for taking action if any, against Dr. A.K. Mukherjee and Dr.P.C.Rai under the Code of Ethics for Doctors. The MCI has replied on 26th April,2001 that though medical ethics normally relate to the obligation of a physician to his patients while discharging his duty as a medical practitioner, the Council may take up the issue, if the charges levelled against the doctors have been proved and a formal request is made by the Government with relevant documents. The respondent assures that the matter would be pursued with the MCI after getting further advice from the CVC.
36.On 23rd April 2001 the Director, Ministry of Health and Family Welfare had sent a letter to the DIG of Police, CBI. The relevant portion reads as under:-
"In view of the above facts, there appears to be a conscious effort on the part of the then DGHS, Dr. Mukherjee and Dr. Rai to subvert the enquiry into the irregularities in purchase the Safdarjung Hospital, which also resulted in preventing action against Shri Randhir Singh. The contents of the report of the CVC also reflects this position. In view of the above facts and the irregularities noted by the CBI itself against Dr. Rai and Shri Singh, it is felt that there is a case for examining the existence of a criminal conspiracy between Dr.Mukherjee and Dr.Rai, and Shri Randhir Singh,respectively to subvert the whole issue and shield Shri Singh, who, even according to the CBI's own enquiry stands indicted for having undertaken irregular purchase of blood donor kits from his own son's firms as well as some non-existent ones. Therefore, the whole issue needs to be looked into in the larger context of the irregularities in purchases that were taking place at that time in Safdarjung Hospital, which were not looked into by the DGHS or the Medical Superintendent.
In so far as the Super Bazaar Officers are concerned, the Kochhar Committee Report clearly brings out the fact that the main supplier of IV fluids viz. M/s Shree Krishna Keshav Laboratory was charging exhorbitant amount vis a vis other suppliers. The report also indicates that the Manager, Safdarjung Hospital unit of the Super Bazaar Drug Department has admitted that he used to indicate the name of the above supplier on the indents received from the hospital even though he had no knowledge of the comparative rates of the suppliers and that this supplier was charging almost double the rate charged by others (pages 30-31 of the Kochhar Committee Report) . In fact this official is seen to have even admitted that the question of rates etc were to be looked into by the purchase department of the Super Bazaar. If that be so, then the reason why this official indicated the name of any one particular supplier without having the requisite information for doing so, and the fact that no one else in the purchase Department objected to it, merits serious consideration. These issues do not appear to have been examined earlier. Kochhar Committee also refers to the nexus between the Manager of the Super Bazaar and Shri Randhir Singh, Assistant Medical Superintendent though this matter does not appear to have been further followed up in their examination of the matter.
In view of the above facts, CBI is requested to kindly enquire into the above issues, in consonance with the advice given by CVC in the matter."
37. Union of India submitted its Status Report in pursuance of the order of this Court on 3.1.2002 in which details have been given regarding action taken against the concerned erring officials. The relevant portion of the Status Report reads as under:-
"2. GNCT of Delhi had listed 19 equipments of G.B.Pant Hospital which had been purchased either improperly or were not repaired in time when they went out of order, indicating the names of CHS doctors concerned with each equipment at the relevant time for being responsible.
3.Out of the doctors named in the report, Dr. M. Khalilullah, former Director of the Hospital has been held accountable for improper procurement of 9 equipments. No disciplinary proceedings can,however, be initiated against Dr. Khalilullah as he retired in 1994 and under Rule 9 of CCS(Pension) Rules, departmental proceedings are not possible, four years after the date of misconduct in the case of retired employees. GNCT of Delhi has,however, indicated that this matter has been examined by CBI and in 3 cases, prosecution charges have been filed in court.
4. Dr.S.K.Khanna has been held accountable for improper procurement of equipment (CABG Sets). He however, retired in Feb'97 and therefore, no departmental proceedings can be initiated because of four years' limitation under Rule 9 of CCS (Pension) Rules.
5. Dr.N.G. Joseph has been held accountable for not getting an equipment (Sterivac Gas Sterilizer) repaired in time when it went out of order during 1992-93 and for receiving delivery of an incomplete equipment (PFT 2600). Since he retired in March'94 and the misconduct took place when he was in service, no departmental proceedings can be initiated against him because of the four years' limitation under Rule 9 of CCS (Pension) Rules.
6. In respect of one equipment (Accelograph) Dr.P. Budhiraja and Dr. Mary Abraham have been held accountable. Dr. P.Budhiraja who was Head of Department of Anaethesia in March'97, when the equipment went out of order is reported to have called for the estimate of repair from M/s Unissi (India) Ltd and sent the same to Purchase Division for getting the machine repaired in Oct'97. The disciplinary authority considered that the misconduct was not serious enough to warrant any departmental action. Further, because of his retirement in Nov'97, no proceedings can be initiated due to the limitation under Rule 9 of CCS (Pension) Rules.
7. Dr. Mary Abraham took over as Head of Department in Nov'97 after the retirement of Dr. P. Budhiraja. She is stated to have got a fresh estimate of repair and sent it to the Purchase Section on learning that the earlier one had been misplaced and got the machine repaired in Feb'99, The disciplinary authority viewed that her conduct warranted only minor penalty proceedings as she was not in-charge when the machine went out of order and also when the estimate had been sent to the purchase section. However, she was also responsible for getting the fresh estimate to get the machine repaired through the purchase section by Feb'99.
8. Dr. Adarsh Chowdhary has been held accountable for not getting 6 equipments repaired in time. The disciplinary authority did not find his explanation satisfactory and tentatively decided that regular departmental proceedings should be initiated.
9. The case was referred to CVC for advice in Aug 2001, after returning the case once for complying with procedural formalities, has given advice in Dec 2001 recommending minor penalty proceedings against Dr. Mary Abraham and major penalty proceedings against Dr. Adarsh Chowdhary.
10. Disciplinary authority has accepted the advice of CVC and has initiated proceedings for minor penalty against Dr. Mary Abraham and for major penalty against Dr. Adarsh Chowdhary. The charge sheets are under issue."
38.Status Report has been submitted by the Central Bureau of Investigation in which details have been given regarding the persons who have been involved in FIR No. 35/90. Details have also been given of another Case No. RC 3(A)97-ACU.III/CBI/New Delhi registered on the basis of source information under Sections 120B, 420 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act,1988 in which action against 5 accused persons have been taken.
39.In another Case No. RC.4(A)97-ACU.III/CBI/New Delhi registered on the basis of source information under Sections 120B, 420 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act,1988 in which action against 5 accused persons have been taken.
40.On 19.9.2002 the CBI has filed another affidavit of Devendra Singh, Inspector of Police, Office of Supdt of Police, CBI, in which it is mentioned that the accused conspired among themselves during the period 1988 to 1990 and unauthorisedly and illegally purchased medical equipments on the basis of false proprietary article certificate without requirement and without budget allocation. On completion of investigation a charge sheet was filed on 6.6.1997 in the Court of Special Judge against P.K.Banerjee, Smt. Monika Kumar and Atul Kumar for offences under Sections 120B, 420 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act,1988.
41.It is further mentioned that in another case RC 3(A)/97/ACU.III/New Delhi registered by CBI on the basis of source information against (i) Dr.O.P.Jain (Ex-Medical Supdt), G.B.Pant Hospital, New Delhi,. (ii) P.K.Banerjee (Ex-Store Officer, G.B.Pant Hospital, New Delhi, (iii) M/sB.L.Marketing Services Pvt Ltd, New Delhi (v) J.K.Aggarwal, Director of M/sB.L.Marketing Services Pvt Ltd, New Delhi, (v) Sunil Aggarwal, Director of M/sB.L.Marketing Services Pvt Ltd, New Delhi and others for for the offences punishable under sections 120-B, 420 IPC and Section 13(1)(d) of Prevention of Corruption Act,1988.
42. It is also mentioned that a third case RC 4(A)/97/CBI/ACU-III/New Delhi was registered on 11.7.97 by CBI on the basis of source information for offences under Sections 120B, 420 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act,1988 against Dr.O.P.Jain, Ex-Medical Supdt, G.B. Pant Hospital, New Delhi, (ii) P.K.Banerjee, Ex-Store Officer, G.B. Pant Hospital, New Delhi, (iii) M/s Consolidated Products Corporation Pvt. Ltd, New Delhi, (iv) Sunil Saigal, Director of M/s Consolidated Products Corporation Pvt. Ltd, New Delhi and others. That during investigation of RC 3(A)/94/CBI/ACU-III/New Delhi, certain documents were seized from a number of different firms, involved in the supply of various medical equipments to G.B.P.H, CBI investigation in the above mentioned 3 cases, viz. RC.3(A)94, RC.3(A)97 and RC.4(A)/97 have been conducted with regard to only three firms, viz. M/s M.R.A. International, M/s B.L. Marketing and M/s Consolidated Products Corporation. During the investigation of these three cases, the role and conduct of Dr. M. Khalilullah , the then Director, GBPH, was examined, but no evidence either oral or documentary could be found against him regarding his criminal involvement in the aforesaid cases and, as such, his name did not figure in the aforesaid three chargesheets.
43.It is pertinent to mention that on 8.12.1999 the DIG of Police, CBI sent letter to the Chief Secretary, Govt of NCT of Delhi in which it is indicated that action was taken against some firms which were involved in illegal and irregular purchase and supply of medical equipment to the G.B.Pant Hospital. It is mentioned in the letter that there are a number of other firms which might also be involved in the illegal and irregular supply and purchase of medical equipment during the relevant period. CBI had taken up only two cases pertaining to M/s BL Marketing and M/s Consolidated Products Corporation as the amounts involved in the purchases made through these firms were the highest, and were exceeding Rs. 4 crores. It was requested in the letter that appropriate action may be initiated in respect of the remaining firms suspected to be involved in the above said illegal purchases of supply of medical equipments/items.
44.Again a letter has been sent by the DIG of Police, CBI to the Chief Secretary, Govt of NCT of Delhi on 27.3.2001 in which it again mentioned that appropriate action may be taken against remaining firms for illegal and irregular supply of medical equipments.
45.We have heard the learned counsel for the parties at length and perused a large number of documents, affidavits, reports including the status reports submitted to the Court from time to time during the pendency of this matter. The petitioner has taken great pains in bringing to light the grave irregularities and illegalities in purchase of sub-standard IV fluids at an exhorbitant price causing serious loss to the public exchequer running into several lakhs of Rupees.
46.The petitioner has also brought out and submitted details of vital medical equipments which were purchased without requirement and budgetary allocation and,thereafter, some of these equipments were not even installed for months and years and some vital equipments were deliberately kept non functional, compelling the patients to go to private diagnostic centres so that the concerned doctors and others may get their cut or commission. Because of the extraordinary efforts of the petitioner action has been initiated against some officials, but, despite the petitioner's best efforts action could not be initiated against Dr. P.C.Rai and Dr. A.K.Mukherjee. They were high officials who are responsible for several irregularities and illegalities.
47.A deep rooted conspiracy has come to our notice. Despite clear involvement of Dr.P.C.Rai in the purchase of contaminated IV fluids at an exhorbitant price, no action was initiated against him and on the contrary action against Dr. Rai was throttled by the officials involved in the conspiracy. Unfortunately officials involved in conspiracy have been successful in their mission and no action could be taken against Dr.P.C.Rai because of lapse of time. Similarly, action could not be taken against Dr.A.K.Mukherjee, the then Director General of Health Services. As far as impropriety in purchasing the medical equipment is concerned the name of Dr.M.Khalillulah also figures prominently, but according to the CBI there is no sufficient evidence to involve him in any criminal case.
48.Because of the earnest efforts of the petitioner some of these conspiracies in which large public funds were involved have been unearthed and action has been taken against some officials. Some of them have even been chargesheeted and cases are pending in courts.
49.G.B. Pant Hospital purchased equipments during the relevant period for Rs. 80 lakhs without receiving any requisition regarding the actual need,demand or requirement of those medical equipments from the concerned departments and without having any budgetary allocation for the same. It is most disturbing and astonishing that all the relevant purchase files of the relevant period of G.B. Pant Hospital are till date missing and no responsibility has been fixed on the concerned officials.
50.Because of the contaminated IV fluids four patients died in Safdarjung Hospital. No post mortem was conducted on the persons who died because of administration of contaminated IV fluids. When prominent newspapers reported about severe adverse drug reaction of contaminated IV fluids and consequent deaths, the then Director General of Health asked Dr.V.P.Bansal, OSD to inquire about the matter. Dr. Bansal gave four interim reports and directed that four samples of IV fluids be sent for testing. The third sample was found to contain suspended particles and was sub-standard. The fourth sample despite clear report of Dr. Bansal was not sent for testing. This shows that efforts have been made and a conspiracy had been hatched by senior officials to ensure that guilty persons involved in conspiracy are not brought to books and no action is taken against them. From the available record it is clear that the senior officials responsible for the purchase of contaminated IV fluids at exhorbitant price was Dr. P.C.Rai, the then Medical Superintendent of Safdarjung Hospital. Despite the fact that the CBI had submitted a report in 1995 and instead of taking any action against him, he was promoted to the post of Additional Director General of Health Services and thereafter was allowed to retire on 30.10.1995. Similarly no action whatsoever was taken against Dr.A.K. Mukherjee and he was also allowed to retire.
51.The CBI is of the opinion that because of the limitation and expiry of time no sustainable action can be taken against the senior erring officials. It is unfortunate that officials who are responsible for such major scandals go scot free because of high level conspiracy to throttle any action against erring officials with the aid of classic bureaucratic delays.
52.When the premier investigating agency of the country, the CBI, is of the opinion that no sustainable action can be taken against them, at this stage, we would not like the CBI to further undertake a totally futile exercise and waste public time and money. Even according to the status reports filed by the CBI there is clear indictment of Dr.P.C.Rai and Dr.A.K.Mukherjee. Though any legally sustainable action at this stage may not be possible, however, in the facts and circumstances of this case we deem it appropriate to direct the respondents Union of India and the Govt of NCT of Delhi not to give any post retirement assignment of the government or of the public undertakings to Dr.P.C.Rai and Dr.A.K.Mukherjee.
53. We direct the CBI and other concerned agencies to expedite the criminal action which has been initiated against some other officials.
54.We are deeply disturbed by the purchase of contaminated and spurious IV fluids in the hospitals. This indeed is a very alarming and serious problem faced by this country. Unfortunately a very big market of spurious drugs is flourishing in our country. Guilty people who play with the lives of millions are rarely brought to books. It is unfortunate that no action is taken against them. There is hardly any deterrence against such enemies of humanity. While taking into consideration all the facts and circumstances we deem it appropriate to issue some directions. We recommend to Union of India that a suitable legislation be enacted so that severe punishment be given to people who are involved in the manufacture, distribution, trade and business of spurious drugs. The Ministry of Health and the Director General of Health Services and other concerned agencies without further loss of time must ensure that the drug manufacturers should not be permitted to market their drugs unless the quality of the drug is approved by a high level committee or body consisting of doctors and other experts of impeccable integrity and eminence. We recommend the Government of India to constitute a committee within a period of three months to see that no new drug be permitted to be launched in the market without the approval of this High Panel Committee.
55.It is also imperative that once a drug has been permitted to be marketed, the quality of the same be periodically evaluated preferably after every six months. The Police Commissioner or other concerned agencies be directed to conduct periodical raids on the manufacturers and dealers of these spurious drugs. To ensure that contaminated IV fluids are not purchased at a cost of Rs. 23 to 29 aper bottle as opposed to the then prevailing price of Rs. 10 to 12 per bottle in future we deem it appropriate to direct that every Government hospital must have a hospital evaluation committee for the purchase of equipments, maintenance etc.
56.The Ministry of Health and Family Welfare must ensure that the drugs which have been banned in other parts of the world may not be permitted to be sold in this country.
57.It may be pertinent to mention that a prominent national newspaper "The Indian Express" on 27th July, 2003 published an article titled "Certified den of fake drugs"which also throws light on this serious problem. The relevant portion of the Article reads as under:-
" Bhagirath Palace in the Walled City runs a clandestine empire in spurious drugs and its notoriety is now part of official records. The Confederation of Indian Industries (CII) has identified the area as a principal distribution and probably the main production centre for spurious medicines in northern India. Lakhs of rupees exchange hands here on a daily basis - at times promising 10 or even 1000 times more profit per cent for retailers."
58.It is also stated in the article that "the three-storeyed junction park building and the Central Bank building are the hub of these activities. The heaps of medicines and porters loading huge cartons, suggest how business goes even on the rundown and dangerous staircase. The owners are busy taking orders over their mobile phones while their staff tries to squeeze in as much medicine as possible in a single box. These distribution centres function from small cubicles and have five to six salesmen jostling for space."
59.It is also stated in the article that the Confederation of Indian Industries has identified Bhagirath Palace in Delhi as one of the three main centres of the Rs.4,000-crore spurious drug trade in India.
PURCHASE OF VITAL MEDICAL EQUIPMENT DELIBERATELY KEPT NON FUNCTION AL
60.Despite all existing rules and regulations, unfortunately hospitals have been purchasing medical equipments which are infact not required by the Hospitals and no requisition for procuring these equipments have been received from the concerned departments. In some cases purchases have been made without there being any budgetary allocation or provisions for the purchase of those medical equipments. After purchase many of these equipments are not installed for years and some vital medical and diagnostic equipments are deliberately kept non functional for months and years so that patients are compelled to go to other private diagnostic centres and the concerned doctors and others may get their cut or commission on regular basis. This is also a very serious problem.
61.Experience reveals that all powers of purchase should not be concentrated in the hands of one or two individuals. Therefore, we direct that the committee which is purchasing equipments worth about more than one lakh of rupees must consist of the Director of the hospital, the Head of the department of concerned health department, and at least 5 other senior most doctors of the hospital.
62.The Committee must ensure that directions are not circumvented by purchasing different parts of same equipment separately and showing the price less than one lakh. The committee must also ensure that without receiving proper requisition from the concerned department regarding requirement of a particular medical equipment, the equipment should not be purchased.
63.The committee should ensure that the equipments installed in the hospitals are put to optimum use.
64.The hospitals may consider engaging a suitable agency for carrying out day to day repairs and replacement of parts of equipments on priority basis. Efforts must be made by all concerned to ensure that the equipments are not kept non-functional. If any equipment remains out of order then within three days, a report in writing must be submitted by the Head of Department to the Director or the Superintendent of the hospital. The Director/Superintendent of that hospital is directed to ensure that within a week thereafter an appropriate action must be initiated either by getting the equipment repaired or replaced. Failure to do so must entail disciplinary action against the concerned officials.
65.The annual maintenance contract be given to an agency on the condition that in case of necessary repair or replacement of the parts, the same be carried out by those agencies on priority basis, and if there is any delay of more than a fortnight in repair or replacing the part, then at least 50% of the annual maintenance amount must be deducted and if there is a delay of more than a fortnight, then no payment should be made towards maintenance. A clause to that effect be enacted in the contract with the maintenance agencies. In case, for unavoidable reasons, the medical or diagnostic equipments remain out of order, then the patients of one Government hospital be referred to some other Government hospital. A circular be sent by the Secretary, Ministry of Health and Family Welfare, Government of India and the Government of NCT of Delhi in respect of hospital under NCT of Delhi that it would be the bounden duty of the other hospitals to carry out the requests sent by other hospitals on priority basis.
66.To ensure that similar scandals of purchasing contaminated IV fluids at an exhorbitant prices are not repeated, the respondents may consider setting up of a centralised body for the purchase of essential drugs including IV fluids which are commonly used in all hospitals and ensure uninterrupted supply of those drugs at a reasonable and competitive rates.
67.In Delhi, because of contaminated IV fluids four patients died in Safdarjung Hospital and even then no post mortem was conducted. In these circumstances it has become imperative to give appropriate directions and consequently, we direct that in a case of an unnatural death in the hospital, post mortem must be conducted as a routine, unless, a very special case is made out by the treating doctor and the Head of the Department for not conducting the post mortem. In that case a report be submitted by those doctors to the Superintendent/Director of the Hospital giving detailed reasons for not conducting the post mortem.
68.In case of death, either by administration of contaminated IV fluids or by spurious drugs, investigation must be conducted on priority basis by an officer not below the rank of the Deputy Superintendent of Police so that the investigation can acquire greater credibility and public confidence. A copy of the judgment be sent within three days to the Secretary Health and Family Welfare, Government of India & Government of NCT of Delhi for compliance of directions.
69.The writ petition and all pending civil miscellaneous applications are accordingly disposed of.