Bombay High Court
Association For Aiding Justice , Thru ... vs State Of Maharashtra Thru Ministry And ... on 21 January, 2020
Author: R.I. Chagla
Bench: S.C. Dharmadhikari, R.I. Chagla
911ASPIL89.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 89 OF 2019.
Association for Aiding Justice ... Petitioner
Vs
1 State of Maharashtra & Ors. ... Respondents
Mr. Jamshed Mistry with Mr. Dipesh Siroya i/b Dipesh G. Siroya
for the Petitioner.
Mr. G.S. Godbole, Special Counsel with Mr. P.P. Kakade, Govt.
Pleader and Mrs. N.M. Mehta, AGP, for the Respondent - State.
Mr. Suresh M. Pakale, Special Counsel with Mr. Vinod Mahadik
for the Respondent - MCGM.
Mr. Rafique Dada, senior counsel with Mr. Abhay Jadeja, Arun
Unnikrishnan and Mr. Pradeep Mane i/b Crawford Bayley & Co.
for the Respondent No.3.
--- --- ---
Mr. Pandurang Gosavi, Deputy Secretary (Finance) present in
Court.
Mrs. Seema Mhatre, C.A. (G.S. Medical College) present in Court.
Mrs. Gosavi, Head Clerk (G.S. Medical College) present in Court.
Mr. Ravindra Gadhari, Deputy Secretary, Public Health
Department present in Court.
CORAM : S.C. DHARMADHIKARI &
R.I. CHAGLA, JJ.
TUESDAY, 21ST JANUARY, 2020 SRP 1/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 ::: 911ASPIL89.19.doc P.C. :
1 The petitioners in this PIL have already raised the issues of lack of financial assistance and which we have addressed partially in our previous orders. Today, the matter was placed only to ascertain whether the parties to the Trust Deed dated 27 th July, 1926, can work in coordination and cooperation with each other by extending minimal courtesies so that all pending issues are resolved.
2 Mr. Godbole, learned Special Counsel, appearing on behalf of the State submits that it was not the intent of the State to harass or cause embarrassment to the Chief Executive Officer ("CEO" for short) personally or to the other functionaries of the Navroze Wadia Maternity Hospital when it addressed the communication dated 18th January, 2020.
3 Mr. Godbole submits, on instructions, that the State is trying to resolve the pending issues, but the State Government has not been provided information which is vital and crucial for resolving the pending issues. For instance, Mr. Godbole says that from the year 2010 till date, various communications have been SRP 2/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 ::: 911ASPIL89.19.doc addressed to the CEO, but they have met with a terse response.
The information has not been provided on important matters such as procurement policy, methodology for medicine and equipment purchase and the expenses incurred on procurement and purchase of medicines and equipments, item-wise. Further, after procurement and purchase, the position of the existing stock has not been provided, including the details as to how the medicines already procured have been utilised for the benefit of the patients. Whether the medicines have been dispensed free of cost or at a minimal charge, has not been clarified. Further, the Government is insisting on being provided the photocopies of the Agenda items, explanatory notes and minutes of the Board of Management meetings convened from 1st January, 2010 to 31st December, 2019. The State could not obtain the details of the attendance in these meetings, including by representative of the State. Further, from items 4 to 14 of this communication, the details of the employees, their number, their categorization, their status, designation and powers, including the salary structure is not made available. This is also for the ten year period. After our attention has been invited to these items, Mr. Godbole says that the matters could not be resolved as the response of the hospital SRP 3/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 ::: 911ASPIL89.19.doc and its CEO in particular is not encouraging at all. 4 Mr. Pakale, learned counsel appearing for the Mumbai Municipal Corporation says that though the Municipal Corporation has not addressed any communication seeking information and details, but it has a grievance because the Municipal Corporation is not served with any intimation or notice of the meetings. It appears that notices are received by the Corporators chosen to represent the Municipal Corporation at such meetings, but no details of the above nature are available with the Municipal Corporation.
5 We pointed out to the counsel appearing for all parties that it is extremely unfortunate that such issues and concerns are voiced during hearing of a PIL. Mr. Godbole, Mr. Pakale and Mr. Rafique Dada seem to be oblivious of the fact that they are respondents to this PIL and it is not a litigation at their instance. In the least, we would expect trading of charges by the State and Municipal Corporation against the Trustees and functionaries of these two hospitals and they, in turn, levelling charges of non- cooperation against the State and Municipal Corporation. No SRP 4/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 ::: 911ASPIL89.19.doc dirty linen need be washed in this Court. It does not augur well for the functioning of the Court and the highest Court in the State that it allows public causes to be converted into a slinging match. In the circumstances, we expect both sides to cooperate with each other and resolve all pending issues. If there is a Trust deficit, then, that can also be removed and corrected if public spirited, like minded people come together. If two gentlemen are out to resolve all pending issues, then, we would not tolerate any further match of this nature in this Court. We would not allow the parties to come back with fresh allegations against each other or affidavits filed to reiterate the demands of each other. 6 To our mind the Trust Deed is a complete answer to all the pending problems. The Trust Deed has an in-built dispute resolution mechanism.
7 If the State and the Municipal Corporation had been vigilant and its representatives had attended Board meetings, raised necessary queries and sought proper explanations with regard to day-to-day functioning of the Maternity Hospital, possibly nothing of the present nature was necessary. The finger SRP 5/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 ::: 911ASPIL89.19.doc actually points at the State and the Mumbai Municipal Corporation for their approach is lacklustre. If they do not keep strict vigil and ensure that public funds are not wasted or frittered away as is now alleged, then, possibly this Court would not like to comment as far as their conduct is concerned. We are aware that State officials and the MMC functionaries know very well that if inquires are launched, it is their officials and representatives who may land in difficulty and may have to face even criminal prosecution. Therefore, they have turned round now to blame the Trustees. If the State and the Municipal Corporation are stakeholders, then, their conduct ought to be befitting that status and they should maintain a strict vigil as trustees of public funds and the public at large. No wastage of funds would be tolerated and we think that audited accounts would disclose the details sought by the State and the Municipal Corporation. Ultimately, the Charity Commissioner is in a position to deal with several issues as per the scheme of the Maharashtra Public Trusts Act, 1950. The two Public Charitable Trusts are registered under and, therefore, governed by the 1950 Act. The State, in the least, should have been aware of this legal position.
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911ASPIL89.19.doc 8 In the above circumstances, we have indicated to both sides at length that we would not tolerate the trading of charges against each other in this Court nor would we enter into their factual disputes. It is entirely for parties to the Trust Deed to resolve them amicably.
9 We are glad that at our request the State, the Municipal Corporation and the hospital authorities have agreed that the Board of Management will meet on the 12 th of February, 2020. We would expect the functionaries to take out time and attend this meeting. Mr. Godbole, on instructions, says that as a beginning, the Departmental Secretaries, namely, either the Principal Secretary or the Secretary in the Department of Public Health with the Director of Medical Education, Research and Drugs / Director / Additional Director, Public Health to assist him, together with the authorised functionaries of the Department of Finance, Government of Maharashtra would attend this meeting of the Board of Management. We would be glad if, in the first instance, the Principal Secretaries of these two Departments find time to attend this meeting and possibly by their attendance and SRP 7/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 ::: 911ASPIL89.19.doc intervention, all the pending issues can be amicably resolved. Equally, we expect the Commissioner of the Municipal Corporation of Greater Mumbai to authorise the Additional Municipal Commissioner if it is not possible for him to attend this meeting himself, so that a true representative of the Mumbai Municipal Corporation would represent its cause. It is agreed by both sides that the meeting would be convened in the hospital premises and not anywhere else.
10 The learned senior counsel Mr. Rafique Dada appearing for the hospital authorities, on instructions, says that within one week from today, the agenda items with the notice of the meeting would be despatched to the State Government as also the Mumbai Municipal Corporation together with others who are, in terms of the Trust Deed, part and parcel of the Board of Management. The hospital authorities shall, as soon as the agenda items and the notice is served, arrange for an inspection by the Municipal and State functionaries (duly authorised officials at the level of the Joint Municipal Commissioner and Deputy Secretary) to inspect the original records for the period mentioned in the communication of 18th January, 2020 and SRP 8/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 ::: 911ASPIL89.19.doc would also be able to obtain photocopies of the relevant and necessary documents. The hospital authorities would, in the office of the CEO, arrange for such inspection and that be provided, latest by 6th February, 2020. Needless to clarify that on the basis of the prior inspection and the details obtained during the same, the State as well as others can raise the necessary issues and seek appropriate clarification at the Board of Management meeting. If everybody works in a spirit of cooperation and mutual respect for each other, we do not see how there can be a trust deficit. If at all the deficit is continuing, it is always possible to make a new beginning.
11 We hope and trust that we would not have to continue with these PILs in the years to come and 2020 will be a real eye- opener for all stakeholders.
12 Stand over to 18th February, 2020.
R.I. CHAGLA, J. S.C. DHARMADHIKARI, J. SRP 9/9 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 10/06/2020 17:28:36 :::