Rajasthan High Court - Jaipur
Siddha Raj Dhadda vs State Of Rajasthan on 2 June, 1989
Equivalent citations: AIR1990RAJ34, 1989(2)WLN63
JUDGMENT Sharma, J.
1. In this public interest litigation relating to functioning of the S.M.S. Hospital Jaipur and other government hospitals in Rajasthan, more so, in respect of various commissions and omissions by various functionaries therein, the petitioner, who is a freedom fighter and has been active in and has very long association with the Sarvodaya Movement and claims to believe in the Philosophy of Mahatma Gandhi, the father of the Nation, seeks from this court direction that a Commission of Inquiry under the provisions of Commissions of Inquiry Act, 1952 (for short the Act), be set up by the State of Rajasthan to find out and identify the guilty persons responsible for the various incidents of deaths and other sufferings. We will at the latter stage of this order deal with the question as to whether this Court can order the State Government to set up a Commission of Inquiries under the provisions of the Act, but for the present we will give few facts as alleged in this writ petition, though we may state that in a public interest litigation the strict law that the court should confine to the pleadings is not practicable as it is not expected that in such matters the petitioner can be and should be in possession of all the material facts on which relief is sought and can be granted. The court in such matters of public interest litigation if the matter is really of public importance can even act on the newspapers clippings. In the case of Rakesh Chand Narain v. State of Bihar, 1986 (Supp) SCC 576, the court took up the matter on the report published in the newspaper pointing sub-standards conditions existing in Ranchi Mental Hospital and the court issued directions for provisions of various amentities to the patients and for periodical visit of Chief Judicial Magistrate to the hospital and to submit report to the Court. The arguments of Mr. Calla, learned counsel for the non-petitioner that news in papers at best are secondary evidence and therefore they cannot form the basis even in public interest litigations in the matters of public places like the hospitals run by the State Government cannot be accepted and so far as the case of Manmohan Kalia v. Shri Yash, AIR 1984 SC 1161 is concerned. It was not a case of public interest litigation and was the case under the Representation of the People Act. The court said that it is very difficult for the court to rely on the news items published on the information given by correspondents because they may not represent the true state of affairs. A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand secondary evidence. The Court further said that it is well konwn that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. We are of the opinion that whatever was said in that case is in respect of an adversery system of litigation but so far as public interest litigation is concerned, we will say with all emphasis at our command that the present is a public interest litigation and litigation is not based on, adversary system, but the petitioner brings certain facts to the notice of the court. The petitioner and the state are to assist the court in arriving at a conclusion and if possible to take remedial action and grant relief to public at large and to ameliorate their conditions. In the case of Dr. P. Nalla Thampy Thera v. Union of India, AIR 1984 SC 74, the court was dealing with matter under Article 32 of the Constitution of India and the writ petition was filed under the aforesaid provisions seeking directions to the Union of India and its instrumentalities to improve the service conditions. The court in para 9 said :--
"The lis before us is not of the ordinary type where there are two contending parties, a claim is raised by one and denied by the other issues are struck evidence is led and the fidings follow. Though the petitioner is a commuter of trains run by the Indian Railways, the writ petition is essentially in the nature of public interest litigation and the petitioner has attempted to voice the grievance of the community availing the services of the Indian Railways,"
2. The court in the case of State of Himachal Pradesh v. A. Parent of a Student of Medical College, Simila, (1985) 3 SCC 169 : (AIR 1985 SC 910) in para 4 of the judgment said that where the court finds on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the underprivileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the court certainly can and must intervene and compel the executive to carry out its constitutional and legal obligations. No doubt the court said that the court cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law-making activities of the executive and the legislature. A reference may be made to the case of Veena Sethi v. State of Bihar, AIR 1983 SC 339, as well as Sheela Barse v. State of Maharashtra, AIR 1983 SC 378. In the famous case of Bandhu Mukti Morcha v. Union of India (1984) 3 SCC 161 : (AIR 1984 SC 802), an objection was raised on behalf of the State of Haryana as well as one of the mine-lessees that the letter cannot be treated as writ petition under Article 32 of the Constitution of India because no fundamental right of the petitioner or of the workman on whose behalf the writ petition has been filed, can be said to have been infringed. The court said (at p. 811 of AIR):--
"This contention is in our opinion futile and it is indeed surprising that the State Government should have raised it in answer to the wirt petition. We can appreciate the anxiety of the mine-lessees to resist the writ petition on any ground available to them, be it hyper-technical or even frivolous but we find it incomprehensible that the State Government should urge such a preliminary objection with a view to stiffing at the threshold an enquiry by the court as to whether the workmen are living in bondage and under inhuman conditions. We should have thought that if any citizen brings before the court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the State Government, which is under our constitutional scheme, charged with mission of bringing about a new socio-economic order where there will be social and economic justice for every one and equality of status and opportunity for all would welcome an enquiry by the court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act. 1976, but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such as a situation can set right by the State Government."
3. The Supreme Court also said that the adversial procedure with evidence let by either party and treated by cross-examination by the other party and the Judge playing a passive role has become a part of our legal system because it is embodied in the Code of Civil Procedure and the Indian Evidence Act. But these statutes obviously have no application where a new jurisdiction is created in the Supreme Court for enforcement of a fundamental right. The Supreme Courts in para No, 14 of the judgment, further said that (AIR 1984 SC 802 at p. 816):--
"....... The poor and the disadvantaged cannot possibly produce relevant material before the court in support of their case and equally where an action is brought on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and place it before the Court. What is the Supreme Court to do in such a case? Would the Surpreme Court not be failing in discharge of its constitutional duty of enforcing a fundamental right if it refuses to intervene because the petitioner belonging to the under privileged segment of society or a public spirited citizen espousing his cause is unable to produce the relevant material before the court. If the Supreme Court were to adopt a passive approach and decline to intervene in such a case because relevant material has not been produced before it by the party seeking its intervention, the fundamental would remain merely a teasing illusion so far as the poor and disadvantaged sections of the community are concerned."
The Supreme Court also observed that it is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of a fundamental right made on behalf the weaker sections of the society. The report of the commissioner would furnish prima facie evi-dence of the facts and data gathered by the commissioner and that is why the Supreme Court is careful to appoint a responsible person as commissioner to make an enquiry or investigation into the facts relating to the complaint. The Court also observed that it is interesting to note that in the past the Supreme Court has appointed sometime a district Magistrate, sometimes a District Judge, some time a professor of law, sometimes a journalist, sometime an officer in the Court and sometimes an advocate practising in the Court for the purpose of carrying out an enquiry or investigation and making report to the court because the commissioner appointed by it must be a responsible person, who enjoys the confidence of the court and who is expected to carry out his assignment objectively and impartially without any predilection or prejudice. Once the report of the commissioner is received, copies of it would be supplied to the parties so that either party if it wants to dispute any of the facts or data stated in the report may do so by filing an affidavit and the court then consider the report of the commissioner and the affidavaits which may have been filed and proceed to adjudicate upon the issue arising in the writ petition. It would be entirely for the court to consider what weight to attach to the facts and data stated in the report of the commissioner and to what extent to act upon such facts and data. But it would not be correct to say that the report of the commissioner has no evidentiary value at all, since the statements made in it are not tested by cross-examination. To accept this contention would be to introduce the adversial procedure in a proceeding where in the given situation, it is totally inapposite. It may be said that the jurisdiction of this Court under Article 226 of the Constitution of India is similar as that of the Supreme Court under Article 32 of the Constitution of India. The Supreme Court in para 15 of the judgment in the case of Bandhu Mukti Morcha (AIR 1984 SC 802) (supra) said that what it had said in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Court under Article 226 of the Constitution for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Court while exercising jurisdiction under Article 226. The Supreme Court also said that in fact, the jurisdiction of the High Court under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights. In view of the aforesaid dictum of the Apex Court, it can hardly be disputed that in the exercise of the powers under Article 226 of the Constitution this court in the matter of public interest litigation, like the present one, can appoint commissioner to make investigation and furnish the complete facts before this Court.
4. Now few facts as have been given in the writ petition. The S. M. S. Hospital Jaipur is one of the prestigious government run hospitals in the State of Rajasthan, There are various specialities and disciplines in the hospital. It is mainly that hospital where serious cases are referred from all over Rajasthan and as given out by Mr. Calla, learned counsel for the State, the annual budget for S.M.S. Hospital is 1.64 crores of rupees. In the National papers as well as local papers from time to time news were published in respect of the malpractices being adopted, the bad management and functioning in the hospitals and the irregularities committed in the purchase of medicines and equipments in the S.M.S. Hospital Jaipur. As per those paper reports even in the Rajasthan State Assembly the Government is said to have come under heavy fire in respect of drugs purchase policies. There were also reports for bungling in the purchase of machinery for S.M.S. Hospital and the government itself appointed committees. Certain deaths also took place in the S. M. S. Hospital and other government run hospitals allegedly on the ground of negligence of doctors. They were published in the news papers and government itself appointed more than one committees to go into the matters. In other words the government itself acted on the paper reports and on the questions raised in the Assembly, appointed committees as aforesaid. The petitioner as stated earlier, is a freedom fighter and claims to have been active in and has very long association with the Sarvodaya Movement which believed in the philosophy of Mahatma Gandhi, the father of the Nation. Having come aross the paper reports in respect of various incidents which took place in the S. M. S. Hospital Jaipur and other hospitals the petitioner was of the opinion the incidents illustrate the apathy of the respondents towards human life, frequently projecting gross errors of judgment and negligence, the corruption in the purchase of medicines and other equipments. Several deaths, reported and unreported have occurred due to the negligence of the unmindful doctors and the respondents. The people have lost trust and faith in the S.M.S. and other Hospitals, so much so that the people of late have dubbed and nicknamed the S. M. S. Hospital as 'Butchar Khana'. The creditability of these institutions has reached the lowest ebb ever in the recent years. The local Hindi Daily 'Rajasthan Patrika' besides others has expressed great concern about the worsening situation as would be evident from the editorial of Rajasthan Patrika dated June 1, 1988 (Annr. 1 to the writ petition). According to the petitioner apart from the assurances by the State Government expressed on the floor of the Legislature for indepth inquiry into the various incidents of corruption and gross irregularities in the purchases of medicines and equipments and into the affairs of S.M.S. and other government run hospitals, nothing has been done. The petitioner by way of illustrations has given instances of Prem Narayan Pareekh, death of Kamla Navalkha, Suman Sethia who was rendered completely crippled as a result of family planning (tubactomy) operation performed upon her, the corruption in the purchase of "Gama Cameras', Cobalt, Teletherapy Unit for S.M.S. Hospital, Nexua in between the various diagonstic laboratories and the doctors which has developed mostly around the S.M.S. Hospital has also been alleged. According to the petitioner, these doctors invariably advice, even insist of their patients, to get various clinical tests conducted from particular dignostic laboratory. According to the petitioner, people have become fear-striken by the gross mismanagement in these hospitals. The doctors do not turn up in time. They hardly attend to the agony of the patients or realise the urgency of checking them in time. Many patients breath their last simply because no medicine could be given to them in time or merely because the doctors did not care to examine them in time. There is no limit to the fees charged by the doctors employed by the Government to treat patient. They have to pay heavily to the doctors to get a bed or admission into the ward. They have also to pay to the doctors to have his attention for proper check-up or prescriptions. The petitioner further states that he has no malice towards anybody or towards any doctor involved or may not be involved into the various incidents alleged by the petitioner. The petitioner has also no personal interest into these matters. According to the petitioner the various incidents reported in news papers may have been exaggerated. But the fact remains that in the interest of general public, in the interest of their life and health a thorough inquiry should be conducted so that the truth must be brought out. The petitioner is interested only into the surfacing the truth, not for his personal satisfaction but for the satisfaction of lacs of the fear striken people and for the restoration of the reputation of these public hospitals, more particularly S. M. S. Hospital which once used to be regarded as one of the most prestigious hospitals of the State of Rajasthan and which in its golden jubilee year is being sought to be upgraded to the level of an Institute.
5. It can be said that the petitioner has no personal axe to grind and nothing has been alleged by Mr. Calla, learned counsel for the State, and has only highlighted few incidents so that inquiry may be made, so that sufferings of thousands of people, a large majority of them belong to the poor class and even do not have any knowledge of their rights, who come for treatment in the hospitals are reduced to such extent as in the present circumstances is reasonably possible.
6. The writ petition has been contested by the State and on behalf of the State number of news paper cuttings have been filed in order to show that the condition of the S.M.S. Hospital and other hospitals is very good and it has been appreciated from time to time.
7. We may state at the very outset that what appears in the news papers clippings filed on behalf of the petitioner as also on behalf of the State, may or may not be correct, may even be exaggerated, but we are satisfied that all is not well and the health of S.M.S. Hospital and other hospitals is not sound and even the State Government has appointed inquiry committees to go into the incident of P.M. Pareekh, death of Kamla Nawalkha as well as in the alleged malpractice in the purchase of medicines and other equipments in the hospitals. It has also taken a decision though belated to appoint a high level committee to go into mismanagement in hospitals at Divisional Headquarters. Though, the Committees were appointed long back, but even the reports have not been given and it can hardly be disputed that it is a matter of public interest that these government run hospitals are run properly and the doctors appointed therein have a spirit of service and dedication and during hospital hours attend to the patients and that the purchase of medicines and other equipments for S.M.S. Hospital, Jaipur, or for that matter, all other hospitals, is done in the larger public interest on a fair price and that the equipments are in working order and the medicines are not substandard or spurious. Under Article 27 of the Constitution one of the duties of the State is to improve public health. We would have much appreciated, if the State in a case of present nature, rather contesting the case, would have left to the court to appoint the Commissioner Commissioners for investigation into the Commissioner or investigation into the general conditions in the S.M.S. Hospital and other hospitals and then to consider the report of the Commissioners or investigators and to ask the government to look into the matter and take remedial measures, but the petition has not only been opposed but has also been vehemently contested on behalf of the State mainly on the ground that so far as the appointment of Commissioner under the Act is concerned, firstly no case is made out and secondly it is within the discretion of the Government to appoint commissions under the Act and the court cannot give any direction to set up a commission under the provisions of the Act. Even the appointment of the Commissioner or investigator by the Court was opposed during the course of arguments, firstly on the ground that basically and primarily it is an executive function and even the court could not intervene in such matters and when the government has appointed committee to go into the matters no case for appointment either of Commissioner or investigator is made out. Mr. Calla, learned counsel for the State further said that the petitioner wants to put the Government in dock defame it through the press and the court during the election year and the Court should not allow such things to happen, but we find no substance in this submission of the learned counsel for the State because in our opinion, it is the concern of every citizen that in the government run hospitals where the government has to spend huge amount, the conditions are such that the patients are welt looked after and all efforts are made to provide treatment to their ailment and to ameliorate their conditions. We may state that a few instances have already been cited in the writ petition by way of illustrations and we will deal with them at a latter stage. Majority of the patients who come to the S.M.S. Hospital and for that matter all government run hospitals, are poor, and have no resources, rather they are mute, they consider the doctors next to God, and if they are exploited and if they are not properly attended, if the procedure of admission of patient in the ward is faulty, as the patients are to be admitted to the wards allotted to the doctors not only on the days of admission fixed for them but also on the slips of the doctors during the days which are not admission days of the doctor, it is a matter of great concern, not only for public in general but even for the government. That section of the public which can afford to a great extent goes to private nursing homes or clinics and by and large majority of patients in government hospitals are poor, belong to the weaker section of the society. Their welfare in a welfare State should be and is the concern of the State. The conditions in the hospitals must be hygenic and these matters are such which do call and should call attention of the government, a government elected by the people, for the people. Therefore, we are of the opinion that it is a case which really is a public interest litigation and has been filed on behalf of people at large and not on behalf of few individuals and individual cases have only been cited by way of illustrations. It is the duty of the court in such matters to see what can be done to improve the health and the conditions of the government run hospitals. We may at the very outset state that so far as the question of setting up Commission under the Act it is concerned, under Section 3(1) of the Act, it is discretionary with the appropriate government to set up a commission and it is only mandatory to set up a commission if the resolution is passed by the House of people or as the case may be by the legislature of the State, Where there is discretionary jurisdiction, no mandamus in our opinion, can be; issued to the State Government to set up a Commission of Inquiry, for the purpose to make inquiry into the matter of public importance by notification in the official gazette. Therefore, the prayer which has been made that this Court should set up a Commission of Inquiry under the provisions of the Act cannot be allowed, But it can hardly be disputed that the court has power to appoint Commissioner/Commissioners and investigators to make inquiries, collect data, submit its report to the Court suggesting remedial measurers, if any. In that case the report as aforesaid should in be made available to both the parties who may be asked to give their objections, if any to the report and to file affidavits, and then the court may give such, directions as it deemes proper in public interest to the State Government, and we do not agree with the contention of Mr. Calla, learned counsel for the State that it is only the State function to appoint committees and the court has no such powers, by and large the public has no faith in the committees of officers appointed by the State Government and the fact that in the matter of incident of P.N. Pareekh, a senior Advocate, inquiry has been ordered vide order dated July 26, 1988 (Annr. R/11), Dharam Singh Meena, Secretary to the Government, was appointed who declined to act as such, and some other officer has been appointed, but no report has been made, the inquiry has been initiated in the incident of Kamal Navalkha, and also in the incident of the death of wife of Shri N. C. Sharma a sitting Judge of this Court, who died in Mahatma Gandhi Hospital Jodhpur, inquiry regarding Gama camera and cobalt unit have been initiated but except in the last case, no report has been made, goes to show how the committees appointed by the State Government proceed in the matter. We had asked Mr. Calla to place for perusal of the court the proceedings before those committees or to furnish details as to how those enquiries have proceeded to enable this court to judge if they have proceeded with the expedition which they deserve, but no concrete steps were taken to satisfy us and even the files were not placed before the court for its perusal and satisfaction. The fact that the Government itself thought to act even on news paper reports goes to show that all is not well in S. M. S, Hospital and other government run hospitals in the State of Rajasthan and indepth inquiry is necessary on the basis of which remedial measures may be taken by the State Government. It may be stated that so far as Mahatma Gandhi Hospital is concerned, a Division Bench of this court at the principal seat at Jodhpur has already appointed a committee headed by Dr. Kamal to go into the matter of functioning of that hospital. During the pendency of the case before us, we had asked Mr. Calla, learned counsel for the State if the Government is willing to appoint a high level committee to go into various matters in respect of S.M.S. Hospital Jaipur and short-comings, if any defects etc. and malpractice if any, in the functioning of the S.M.S. Hospital. Mr. Calla gave out that the Government will consider the matter and there after made a statement to the court on May 16, 1989, that on principles the Government has no objection to the appointment of independent committee and it agrees in principle to appoint a committee but it will only be possible to do so after the reports of the Committees appointed are received so that on that basis the points for the reference to the committee may be formulated and Mr. Calla gave out that the reports of the various committees will be expedited. The offer was with too many ifs and buts, and Mr. Calla on being asked did not agree that the personnel of the committee wilt be decided in consultation with the court of the Chief Justice. On May 17, 1989. when further queries were put to Mr. Calla whether the Government is still wiiling to appoint an independent high power committee to go into the working of the S.M.S. Hospital and to suggest remedial measure, Mr. Call gave out that the Government is willing to appoint a high power commttee consisting of three persons, i.e. a serving or retired Director of All India Institute, or a professor serving or retired, office public man of eminance in Rajasthan and a senior officer of the Finance Department. The aforesaid suggestion was not acceptable to the petitioner. It may also be stated that on May 26th 1989, Mr. Calla. learned counsel for the State also placed for our perusal an order of the State Government dated May 23, 1989 after the arguments were closed and they were closed on May 17, 1989 and order was reversed, wherein it has been mentioned that in order to improve the existing mis-management in S.M.S. Hospital Jaipur and other divisional hospitals run by the State and to make the adminstrative machinery strong in the aforesaid hospitals, the State Government has taken a decision to appoint a high level committee. The Chairman of that Committee will be an eminant public man and the Committee shall consist of Senior Medical Expert and a Senior Officer of the Finance and Accounts Department. It has also been mentioned in the aforesaid order that early necessary steps for appointment of the committee shall be taken by the Medical and Health Department and the committee shall give its report within three months to the Government. An application was filed by Mr. Calla, that in view of the aforesaid diecision of the State Government to appoint high level committee the writ petition has become infructuous.
8. The question is whether after the aforesaid order of the State Government taking the decision to appoint a high level committee immediately, whether this court shall still appoint Commissioner/Commissioners to go into the functionings of the S.M.S. Hospital arid suggest remedial measures or should leave the matter with the State Government?
9. In the public interest litigation arguments were heard more than once and all sugestions to the learned counsel for the State that a committee in consultation with the court should be appointed, and personnel of the committee should be decided by the State Government in consultation with the court or their names should be disclosed first, were not accepted. As the proceedings taken before thsi court will show that the State Government has contested this petition and only when the arguments were being heard, to a suggestion of the court Mr. Calla, learned counsel for the State communicated to us orally that the State Government principally agrees to the appointment of the committee and an administrative order dated May 23, 1989 was produced before us by Mr. Calla much after the closure of arguments and even till date it is not known whether any administrative action has been taken in accordance with the said order of the State Government and if so, who are the personnel who have been appointed as the Members of that proposed high power committee. Possibly, the Government does not want inquiry by the court through the Commissioners/investigators appointed by it and that is why after the order was reserved such an administrative order dated May 23, 1989 has been made. Once the matter came up to the court in a case of present nature, which relates to the conditions in the government run hospitals where crores of rupees of public funds are involved; relates to the treatment to poor and downtrodden weaker section of the society who by and large come to the hospital, in our opinion it becomes the duty of the court to appoint the Commissioner/Commissioners to go into the matter and to submit their report with the suggestions of remedial measures which are rquired. The court cannot be the silent spectator and should, rather must intervene. The mere fact that the Government agrees to the appointment of a committee or has made an administrative order in that direction will not make the petition filed before the court infructuous. Even if the State Government on its own or on inquiry by the proposed committee may be ultimately satisfied that there is no mismanagement in Government run hospitals incluidng the S.M.S. Hospital, the conditions are superb or that there is mismanagement which calls for remedial measures, the State Government should not have even contested this petition and should have allowed the Commissioners appointed by the court and the report of the commissioners, if any, might have facilitated the task of the State Government to improve the conditions in the S.M.S. Hospital Jaipur, and other government run hospitals. The Supreme Court in a famous case of Bandhu Mukti Morcha (AIR 1984 SC 802) (supra) in para No. 9 said that --
"Even if the State Government is on its own inquiry satisfied that the workmen are not bonded and are not compelled to provide forced labour and are living and working in decent of conditions with all the basic necessaries of life provided to them, the State Government should not baulk an inquiry by the court when a complaint is brought by citizen but it should be anxious to satisfy the court and through the court, the people of the country, that it is discharging its consistu-tional obligation fairly and adequately and the workmen are being ensured social and economic Justice."
We are of the opinion that rather than oppsoing the present petition which is a petition for improving the conditions in the State run hospitals, the Government should have accepted the appointment of the committee of experts by the court to report into the functionings of the hospitals and to suggest remedial measures. Be that as it may, despite the preparedness of the State Government to appoint committee after filing the writ petition in the background it failed to take action though such a demand was made on the floor of the State Assembly as appears from the paper clippings, despite the fact that the Government has now made the administrative order dated May 23, 1989 to appoint a high level committee as aforesaid, we are of their opinion that in a case of present nature, where various instances have been cited as illustrations the court should appoint commissioners to make inquiries into the matter and more particularly in the matter of functioning of S.M.S. Hospital and other associated hospitals located at Jaipur and to submit its report to the court. Besides the instances which have been cited in the writ petition during the Course of our sitting in the Division Bench, one case came to our notice of one Smt. Kamla Sharma wife of Shri R.P. Sharma, who was admitted in 3AB ward under the supervision of Dr, P.C. Kala. She was operated upon for removal of gall-stone on March 7, 1988 and the medical staff wroking under the operating surgeon was advised for giving blood transfusion of blood group-O + ive to the patient Smt. Kamla Sharma. One bottle blood of blood group O = ive was obtained from the Blood Bank of the aforesaid hospital and was transferred to the patient's body. The patient's body needed more blood, another bottle was obtained from the aforesaid blood bank personally by Dr. Indu from Dr. Madhu who handed over the bottle of blood without proper examination and confirmation of blood group. It is said that the said bottle of blood was obtained by Dr. Indu and was transferred to the body of Smt. Kamla by a nurse and after about 10 minutes of transfusion of the blood from the second bottle, the condition of the patient Smt. Kamla Sharma deteriorated and became serious; she ultimately died. A committee of experts was appointed by the State Government and in the inquiry report dated May 13. 1988, so far as the death of Smt. Kamla is concerned, the committee opined that it was a case of mis-matched blood transfusion, The writ petition was filed by Shri R.P. Sharma bearing No. 3597 88 and is pending consideration by this court. We know not what action has been taken by the State Government on that report. We have cited the aforesaid case as an additional illustration and as already stated earlier majority of the people who come to the hospitals incuding the S.M.S, Hospital Jaipur belong to the weaker section of the society and are not even conversant with their rights and they consider the doctors as next to God and even if something happens to the patient due to the negligence of the doctors or medical staff, either in outdoor emergency or in the ward, they do not complain about it and treat it as an act of God and take it as if it was destined. There were complaints made during the course of arguments on behalf of the petitioner that the diagnostic tests, wanted or unwanted required or not required, are recommended by the doctors in the government hospitals and reference is made to those diagnostic laboratories from which huge commissions are paid to the doctors, even if such facilities are available in the hospital it self. It is given out that the results of the tests conducted in the hospital are not reliable. Cliques, if any of unscrupulous doctors, who enter into any malpractice, if correct, must be smashed as they are behaving like fleas, with the patients who have hardly any money sufficient even for their bread. It is mentioned in the petition that there has been an inordinate growth of various diagnostic laboratories, which it is rumoured, are mostly run and operated by proxy by very eminint doctors who at the other end, are manning government run hospitals. They refer, even insist on their patients to get various clinical tests conducted from a particular diagnostic laboratory, from which they get commission. We have nothing to say about the truth or otherwise of the above averments, but we are of the opinion that even such matters need inquiry whether any doctor from S.M.S. Hospital or any other hospital run by the Government in Jaipur, has any interest, direct or indirect, in any diagnostic laboratories which have many rooms around the SMS Hospital, through them the poor patients are compelled to pay through their nose for various expensive tests which may or may not be necessary. We are of the opinion that the matter needs inquiry. We may say that we are only concerned with the proper functioning of SMS Hospital and other hospitals run by the Government and we are not making the inquiry against any individual or in any individual case.
10. Consequently, we appoint a committee of Commissioners of the following
1. Dr. R.M. Kasliwal, Formerly Principal of S.M.S. Medical College, Jaipur.
2. Dr. M. L. Gupta, retired Principal, Medical College, Udaipur.
3. Shri S. R. Bajwa, Advocate.
The Committee of Commissioners shall be headed by Dr. R.M. Kasliwal, who has not only been the Principal of SMS Medical College but also is an eminent doctor and a public man of eminence. He has also served the Indian National Army (INA). The Committee is directed to submit its report to this Court within a period of three months. We hereby direct the State Government through the Chief Secretary, Secretary to the Government Medical College and Health Department, Principal, S.M.S. Medical College, Jaipur and other doctors in charge of the administration in other associated hospitals in Jaipur to extend all cooperation to the members of the Committee to provide them the record which they may require for the purpose of investigation and to provide them proper space for their sitting in the hospital as and when they so require. The Committee shall inquire into the various matters in the SMS Hospital. Jaipur and other associated hospitals, at Jaipur regarding admission, treatment, investigations, admissions of the patients in various wards. It shall also report whether any sophisticated equipment is functioning or not and if not functioning, since when and the reasons therefor. The Committee, for the purpose of making inquiry as aforesaid shall have power, to put question examine the indoor or out-door patient, in the hospital, or the hospital staff.
11. We are also of the opinion that to inquire into the truth or otherwise of the allegations that some diagnostic laboratories near or around the SMS Hospital, Jaipur or in Jaipur City are run by proxy on behalf of the Profession doctors in the Government run hospitals the inquiry should be made by person persons to be nominated by the Chief Income-tax Commissioner, Rajasthan, Jaipur. The said person or persons shall also inquire whether any commissions on the cases referred for investigation to the variuous diagnostic laboratories is paid to the doctors who make the aforesaid reference, and if so what is the percentage thereof. We therefore direct the Chief Income-tax Commissioner. Rajasthan. Jaipur to appoint person persons not below the rank of Income-tax Officers to make the aforesaid inquiry or investigations and to submit the report to this Court within a period of three months. A copy of this order be immediately sent to the abovenamed persons including C.I.T.C.
12. The case may be listed for such further directions as may be deemed necessary after the receipt of the reports as aforesaid.