Himachal Pradesh High Court
Nari Sewa Foundation Regd. (Trust) vs Chief Executive Officer on 8 July, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
( 2024:HHC:4710 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
FAO No. 07 of 2024
Reserved on : June 27 , 2024
Decided on: July 8 , 2024
Nari Sewa Foundation Regd. (Trust)
through its President ...Appellant
Versus
Chief Executive Officer
H.P. State Mental Health Authority
Coram:
r to ...Respondent
Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting?1 Yes.
For the appellant : Mr. Raghav Goel, Advocate.
For the respondents : Mr. Dalip K. Sharma, Additional Advocate
General.
Jyotsna Rewal Dua, Judge
The Himachal Pradesh Mental Health Authority, Shimla has cancelled the registration of appellant's mental health establishment. Feeling aggrieved, appellant seeks quashing of the cancellation order.
2. The sequence of events leading to cancellation of appellant's registration:-
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 08/07/2024 20:34:03 :::CIS 2
2(i) Appellant was running an all-women drug de-addiction & rehabilitation centre in the respondent/State. On 20.02.2023 it .
applied for registration under The Mental Healthcare Act, 2017 (in short "the Act"). The respondent-Chief Executive Officer, H.P. State Mental Health Authority-cum-Senior Medical Superintendent, granted certificate of provisional registration to the appellant-
establishment on 07.03.2023. The provisional registration was subject to the conditions laid down in the Mental Healthcare Act, 2017, Rules & Regulations made thereunder and valid for a period of twelve months. The provisional registration was renewable.
2(ii) According to the respondent, all de-addiction and rehabilitation centres registered with H.P. State Mental Health Authority (in short "HPSMHA") are inspected by the District Inspection Team (in short "DIT") notified by the State on 27.10.2021.
According to this notification, the DIT consists of Chief Medical Officer as Chairman and Sub Divisional Magistrate & Deputy Superintendent of Police of the concerned area and Psychiatrist as Members of the DIT. The object behind constitution of the DIT is to ensure proper functioning of the centres, checking of inmates, their safety, to ensure congenial atmosphere for the inmates and to safeguard their rights during delivery of mental health care etc. ::: Downloaded on - 08/07/2024 20:34:03 :::CIS 3 2(iii) The DIT Solan carried out inspection of the rehabilitation centres under its administrative control including the appellant's .
centre on 26.09.2023. Several deficiencies and shortcomings were observed during inspection of these centres. The generalized deficiencies, as observed to be invariably there in all the centres, were forwarded in form of a report by the DIT to respondent No. 1 on 30.09.2023. During inspection, exclusive observations recorded concerning appellant's centre were as under:-
"1 Patient are admitted and discharged without the recommendation of Doctor.
2. Staff appointed is not with proper records.
3. Visits by psychiatrist is infrequent.
4. MBBS doctor has stopped coming after only 2023.
5. Patient monitoring is poor.
6. Vitals not properly monitored.
7. Patient with psychiatric symptoms also admitted."
2(iv) Respondent No. 1 issued a notice to the appellant on 4.11.2023. The notice stated that during the inspection of the appellant centre carried out on 26.09.2023 by the DIT as per Sections 67 & 68 of the Act, following deficiencies were pointed out:-
"1. Location of the center is not easily accessible place.
2. Patients not being kept at a safe and secure place.
3. Adolescents and adults not segregated.::: Downloaded on - 08/07/2024 20:34:03 :::CIS 4
4. Medical Officer not available.
5. Social Worker not available.
6. Staff Nurse not available round the clock.
.
7. Vocational trainer not available.
8. In house/outsource lab facility not available.
9. Unique ID of inmates not maintained.
10. All patients have not seen by Doctor.
11. Patients not getting wholesome diet.
12. doctor prescriptions not available.
13. Discharge slips/summaries not available.
14. Details of procurement of drugs are not available in r/o purchase, expenses and stock of medicine."
The appellant was directed to submit its action taken report in respect of each deficiency in a time bound manner. The respondent also directed the Chief Medical Officer (Chairman of DIT) to undertake fresh inspection of the appellant centre after requisite period.
2(v) To the above notice, the appellant furnished its reply to respondent No. 1 on 20.11.2023. It disputed existence of some deficiencies and also informed about removal of other deficiencies.
The reply was that the functioning of the centre had been much improved. No further action was taken either by the respondent or by the DIT. Appellant's centre was not reinspected.
2(vi) It appears that the Chief Medical Officer, Solan received a complaint from the Deputy Commissioner, Solan on 11.12.2023 ::: Downloaded on - 08/07/2024 20:34:03 :::CIS 5 highlighting an incident where fourteen girls of the appellant's centre had run away after breaking the glass. In compliance to the .
directions of the Deputy Commissioner and respondent No. 1, the DIT carried out inspection of the appellant's centre on 14.12.2023 and noticed the following deficiencies:
"1. Patients are being admitted and discharged without recommendation of Doctor.
2. No visit by Psychiatrist to this centre. Patients are being taken out to private clinic of the Doctor.
3. Visit by MBBS doctor is very rare and almost negligible.
Patients are not being monitored daily/SOS basis.
4. No proper roster wise presence of Nurse (qualified). The available Nurse is not qualified.
5. The centre has unauthorized Guard. Guard is not with any experience. She was a patient of substance Use disorder (SUD) at this centre.
6. One patient has been admitted without her willingness.
7. The other patient is a case of Schizophrenia (Paranoid) has been forcibly got admitted by inlaws with no H/o any SUD.
8. The I/c of this centre Mandeep Kaur is not qualified to run this centre (Photo I/D proof procured)."
On the basis of the above inspection report, that very day the provisional registration of the appellant's centre was cancelled by respondent vide impugned Office Order Annexure A-9.
::: Downloaded on - 08/07/2024 20:34:03 :::CIS 62(vii) In the above background, appellant has instituted this appeal under Sections 69 & 83 of the Mental Healthcare Act, 2017 .
with the following substantive prayer:-
"i) That the impugned order dated 14.12.2023 (Annexure A-
9) may kindly be set aside and quashed being illegal, cryptic, arbitrary and unsustainable in the eyes of law and appeal may kindly be accepted."
3. Submissions 3(i) Learned counsel for the appellant contended that though the impugned notice has been issued by the respondent under Section 67(6) of the Act, whereas, no such power is available to the respondent (the State Mental Health Authority) under the said provision. Power of cancellation of registration on inspection is available under Section 68 of the Act. In the instant case the respondent did not follow the procedure mandated under Section 68 of the Act. Impugned order is bad in eyes of law as neither any show cause notice was given to the appellant nor any opportunity of hearing was afforded to it before cancellation of its registration. The inspection report has not been shared by the respondent with appellant. The new deficiencies which were statedly observed by the DIT in its inspection carried out on 14.12.2023 were not brought to the notice of the appellant. Appellant was not even associated with ::: Downloaded on - 08/07/2024 20:34:03 :::CIS 7 the inspection so carried out on 14.12.2023. Merits of deficiencies allegedly noticed by the DIT on 14.12.2023 and as pointed out by .
the respondent in its reply filed to the appeal have also been disputed in instant appeal. Endeavour has also been made to explain the specific incident complained against the running of appellant's centre.
The State has defended the impugned order. Learned Additional Advocate General submitted that the appellant had contravened the statutory provisions. The centre was not being run in accordance with law, the provisions of the Act and Rules framed thereunder. The running of the centre in an illegal manner was detrimental to the interest of the patients and a threat to the society at large. Accordingly, it was decided to cancel the registration of the appellant's centre under the statutory provisions contained in Section 68(4) of the Act.
4. Consideration I have heard learned counsel on both sides and considered the case file.
4(i). Impugned notice has been given to the appellant in terms of provisions contained in Section 67(6) of the Act. Section 67 reads as under: -
::: Downloaded on - 08/07/2024 20:34:03 :::CIS 8"67. Audit of mental health establishment. -
(1) The Authority shall cause to be conducted an audit of all .
registered mental health establishments by such person or persons (including representatives of the local community) as may be prescribed, every three years, so as to ensure that such mental health establishments comply with the requirements of minimum standards for registration as a mental health establishment.
(2) The Authority may charge the mental health establishment such fee as may be prescribed, for conducting the audit under this section.
(3)The Authority may issue a show cause notice to a mental health establishment as to why its registration under this Act not be cancelled, if the Authority is satisfied that -
(a) the mental health establishment has failed to maintain the minimum standards specified by the Authority; or
(b) the person or persons or entities entrusted with the management of the mental health establishment have been convicted of an offence under this Act; or
(c) the mental health establishment violates the rights of any person with mental illness.
(4) The Authority may, after giving a reasonable opportunity to the mental health establishment, if satisfied that the mental health establishment falls under clause (a) or clause (b) or clause (c) of sub-section (3), without prejudice to any other action which it may take against the mental health establishment, cancel its registration.
(5) Every order made under sub-section (4) shall take effect -
::: Downloaded on - 08/07/2024 20:34:03 :::CIS 9(a) where no appeal has been preferred against such order, immediately on the expiry of the period specified for preferring of appeal; and .
(b) where the appeal has been preferred against such an order and the appeal has been dismissed, from the date of the order of dismissal.
(6) The Authority shall, on cancellation of the registration for reasons to be recorded in writing, restrain immediately the mental health establishment from carrying on its operations, if there is imminent danger to the health and safety of the persons admitted in the mental health establishment.
(7) The Authority may cancel the registration of a mental health establishment if recommended by the Board to do so."
Section 67 pertains to audit of mental health establishments. In the instant appeal, it is not the case of the respondent that any audit of the appellant's mental health establishment was carried out and on the basis of that audit the provisional registration of the appellant's establishment was cancelled. Therefore, it appears that the impugned order has been passed under a provision of law, which had no applicability.
4(ii) The power to cancel registration of a mental health establishment for shortcomings noticed during inspection, for non ::: Downloaded on - 08/07/2024 20:34:03 :::CIS 10 adherance of minimum standards has been conferred under Section 68 of the Act, which reads as under:-
.
"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 authorised 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-operate with such inspection or inquiry and be entitled to be represented at such inspection or inquiry.::: Downloaded on - 08/07/2024 20:34:03 :::CIS 11
It appears that the respondent is also aware of the folly it committed in passing the impugned order under Section 67 of the .
Act and the required obligation to have proceeded under and in accordance with the provisions of Section 68 of the Act. This comes to fore from reading of its reply where the stand taken is that "accordingly, it was decided to cancel the provisional registration of the Appellant firm under the statutory provisions contained in Section 68(5) of the Mental Healthcare Act, 2017, which accordingly lead to the issuance of the Office Order dated 14.12.2023". However, the impugned order has been issued not in exercise of power under Section 68(5) but under Section 67(6) of the Act.
4(iii) Notwithstanding above, even if it is assumed that respondent exercised the powers conferred upon it under Section 68 of the Act in passing the impugned order then also no gains can be made by the respondent. The procedure mandated under Section 68 of the Act had not been followed by the respondent while cancelling the provisional registration of the appellant's establishment. Section 68(2) states that mental health establishment is entitled to be represented at the time of inspection or inquiry.
Section 68(3) mandates that the Authority shall communicate to the mental health establishment the results of such inspection or inquiry ::: Downloaded on - 08/07/2024 20:34:03 :::CIS 12 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. Further, as per Section 68(4) the mental health establishment is bound to comply with the order of the Authority issued to it in accordance with Section 68(3) of the Act. It is only in case the mental health establishment fails to comply with the order of the Authority made under Section 68(3) that the Authority can cancel the registration of a mental health establishment. In the facts of the present appeal, the inspection was carried out of the appellant's health establishment on 26.09.2023. Certain deficiencies were noticed in the running of the appellant's establishment. These deficiencies were brought to the notice of the appellant vide notice dated 04.11.2023. Appellant's establishment furnished its response on 20.11.2023 indicating therein that it had complied with the observations of the State Mental Health Authority and had improved the functioning of the centre. The DIT again set out to inspect the appellant's establishment on 14.12.2023. There is no document on record to show as to whether deficiencies which were noticed by the DIT in its previous inspection carried out on 26.09.2023 as brought to the notice of appellant centre on 14.11.2023, had actually been rectified by the appellant or not. It appears the DIT during inspection on ::: Downloaded on - 08/07/2024 20:34:03 :::CIS 13 14.12.2023 did not bother to oversee compliance of previous deficiencies notified to the appellant but found out some new .
deficiencies. It is the case of the appellant establishment that it was not associated by the DIT while carrying out the inspection on 14.12.2023. There is no document on record to disbelieve this contention. It is the case of the appellant that new deficiencies allegedly found by the DIT during inspection on 14.12.2023 were never brought to the notice of the appellant in accordance with Section 68 (3) & (4) of the Act. Procedure mandated under the Act was not followed. The respondent straightaway went ahead and ordered cancellation of registration of appellant's establishment.
There is no document on record to dispel this contention. In view of the emerging facts, which are not in dispute, it has to be held that the procedure mandated under the Act had not been followed by the respondent in cancelling appellant's registration. When the Act prescribes specified procedure for proceeding in the matter, there is no option for the Authority but to follow that procedure. The mandatory provisions, which are in furtherance of principles of natural justice cannot be given a go-bye at the whims of the Authority. Respondent's action in cancelling appellant's registration is not in consonance with the provisions of the statute.
No other point was urged.
::: Downloaded on - 08/07/2024 20:34:03 :::CIS 145. Hence, for the aforesaid reasons, the appeal succeeds and is allowed. Impugned order dated 14.12.2023 (Annexure A-9) is .
quashed and set aside. However, the respondent/the DIT is at liberty to proceed further in the matter in accordance with law.
Pending miscellaneous application(s), if any, also stand disposed of.
July 8 , 2024 (PK)
r to Jyotsna Rewal Dua,
Judge
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