Madras High Court
Santosh Hospitals Private Limited, ... vs State Human Rights Commission, ... on 13 March, 2003
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Santosh Hospitals Private Limited, Chennai-90 is the petitioner in both the Writ Petitions. In the former Writ Petition (W.P. No. 40101/2002), the petitioner seeks to issue a Writ of Prohibition prohibiting the respondents- State Human Rights Commission, Tamil Nadu and the Chairman, Authorisation Committee and the Director of Medical Education from in any manner proceeding further in connection with the complaint of the third respondent-M.R. Balasubramani, Royapettah, Chennai-14 dated 26-8-2002, subject matter of Case No. 5026/2002-SS, pending before the State Human Rights Commission.
2. In the latter Writ Petition (Writ Petition No. 41806 of 2002), the very same petitioner Hospitals challenges proceedings No. 88261/MEII(3)/02 dated 29-10-2002 of the Chairman, Authorisation Committee and the Director of Medical Education from initiating action against the petitioner and others as well as Order in Ref. No. 95131/E7/2/2002 dated 13-11-2002 of the State Appropriate Authority under Human Organ Transplantation Act, 1994 from proceeding enquiry on various grounds.
3. Since the issues raised in both the writ petitions are inter-connected, they are being disposed of by the following common order. The case of the petitioner as seen from the affidavit filed in the earlier writ petition namely W.P. No. 40101/2002 is briefly stated hereunder:
It is stated that petitioner-Santosh Hospitals Private Limited, Chennai-90 is a recognised and reputed hospital known for its services in the medical field. After the Transplantation of Human Organs Act, 1994 (Central Act 42 of 1994) (hereinafter referred to as "the Act"), the petitioner hospitals applied to the appropriate Authority namely the Director of Medical and Rural Health Services under the provisions of the Act for registration for conducting transplantation of human organs. By order dated 01-9-1996, the registration certificate was issued in Registration No. 43670/E.7/4/95 valid for the period from 1-9-96 to 31-8-2001 authorising Santosh Hospitals Private Limited to allow kidney transplantation. The registration was renewed from 1-9-2001 to 31-8-2006 and the same is valid and is in force as on date. One Dr. Vijayaraghavan who is an established Nephrologist wanted to conduct kidney transplantation in Santosh Hospitals for one S. Seralathan by removing one kidney from M.R. Balasubramani, the third respondent in Writ Petition No. 40101/2002. The order of approval dated 4-12-2001 together with an affidavit of the said M.R. Balasubramani (donor) signed by him on 13-12-2001 and his wife B. Gomathi and attested by XXI Metropolitan Magistrate, Egmore, Chennai-8 and the affidavit of S. Seralathan (recipient) dated 13-12-2001 and attested by the XXI Metropolitan Magistrate, Egmore, Chennai-8 were produced by S. Seralathan (recipient) through Dr. Vijayaraghavan, the nephrologist. Only on receipt of the above mentioned documents, the petitioner in the usual course allowed the kidney transplantation for Seralathan in Santosh Hospitals which took place on 18-12-2001. Excepting to permit the surgery to be conducted in its theatre and the post operative stay, the petitioner herein did not have any other role in the transplantation procedure. As per the objects and Reasons, the Transplantation of Human Organs Act, 1994 was brought out for regulating the removal and transplantation of human organs and for preventing commercial dealings in organs by providing punishments for such dealings.
4. It is further stated that M.R. Balasubramani, third respondent in W.P. No. 40101/2002 has given a complaint before the State Human Rights Commission on 26-08-2002 against Dr. Vijayaraghavan who conducted the transplantation to the effect that a sum of Rs.1,50,000/- was agreed to be paid to him for donating one kidney and that only a sum of Rs.45,000/- was paid at the time of surgery and the balance of Rs.1,05,000/- was promised to be paid and that the balance of the agreed amount was not paid. The said donor approached State Human Rights Commission for issuance of directions for recovery of Rs.1,05,000/- alleged to have been agreed by Dr. Vijayaraghavan to be paid for the kidney. On the basis of the said complaint, the State Human Rights Commission issued summons to the petitioner hospitals, the Authorisation Committee and Dr. Vijayaraghavan to appear before it on 18-10-2002 in Case No. 5026 of 2002/SS. The State Human Rights Commission has no jurisdiction to entertain the complaint of M.R. Balasubramani (donor). Since Section 19 of the Act makes it clear that no Donor of his kidney can claim payment of money. Further, in his affidavit dated 13-12-2001 sworn in the presence of the XXI Metropolitan Magistrate, Egmore, Chennai-8, the donor has specifically stated that "there was no monetary consideration". The Authorisation Committee with mala fide intention has mentioned in his counter that the approval order in favour of Seralathan, the recipient and the donor is forged. Even otherwise, the petitioner hospitals did not have anything to do with the procurement of the kidney. The Commission committed an error in issuing summons to the petitioner hospitals.
5. In the latter writ petition namely Writ Petition No. 41806/20902, apart from the averments raised in the earlier writ petition, the petitioner challenges the Notice stating that the petitioner had no role to play as for as the authorisation order is concerned. Further, the guidelines issued by the Director of Medical Education dated 9-11-2000 makes the position very clear. The petitioner has strictly followed the directions given by the second respondent. The Authorisation Committee has already pre-judged the issue stating that the petitioner has produced forged authorisation letter. The said conclusion is without any basis and the proposed enquiry is nothing but an empty formality which is in violation of the principles of natural justice.
6. In Writ Petition No. 40101 of 2002 Dr. C. Ravindranath, Director of Medical Education and the Chairman, Authorisation Committee, Chennai-10 alone has filed a counter affidavit disputing various averments made by the petitioner. It is stated that the Registration Certificate issued in favour of the petitioner hospital was subject to the conditions noted on the reverse of the same. The condition No. 4 of the certificate provides that whenever a non-related Donor is used, the permission of the Authorisation Committee shall be obtained. In the instant case instead of obtaining permission from the Authorisation Committee by the petitioners hospital, the hospital authorities have permitted the Nephrologist Dr. Vijayaraghavan to perform Renal Transplantation in their hospital to one Seralathan, by removing one of the Kidneys from M.R. Balasubramani (Donor), the third respondent herein. Before permitting the Medical Officer to conduct the Renal Transplantation, the hospital authorities ought to have verified the certificate and other documents produced by the Nephrologist to conduct Renal Transplantation. The Director of Medical Education has given instructions to all private hospitals in letter dated 3-9-99 informing that hospital authorities alone have to apply for permission to the Authorisation Committee for approval to conduct Renal Transplantation. In the instant case, the petitioners hospital has not applied for permission in accordance with the above instructions issued by the Director of Medical Education. Further, the petitioners hospital has failed to verify each and every case to the satisfaction as to whether the application was submitted by the Nephrologist for the Rental Transplantation and other legal formalities have been made and also verified as to the correctness of the approval orders issued by the Authorisation Committee. When the hospital authorities have produced an order prepared to have been issued by the Chairman, Authorisation Committee, the genuinity of the approval order was verified and found the said order is a bogus and a fabricated one. The signature noted in the fair copy of the approval order is also a false one. Since the approval order submitted by the petitioner hospital before the State Human Rights Commission is a bogus one, the hospital authorities and the Nephrologist are liable for criminal action and also for cancellation of their registration.
7. The Appropriate Authority-Director of Medical and Rural Health Service, Teynampet, Chennai and the Appropriate Authority for Human Organ Transplantation Act, 1994 has also filed an identical counter affidavit in the latter writ petition, namely, W.P. No. 41806/2002.
8. Heard Mr. K. Doraisami, learned senior counsel for the petitioner-hospitals; Mr. N.R. Chandran, learned Advocate General for Chairman, Authorisation Committee and Director of Medical Education; and Mr. Y. Jyothi Chander for State Human Rights Commission.
9. It is seen from the Statement of Objects and Reasons that the Transplantation of Human Organs Act, 1994 was enacted for regulating the removal and transplantation of human organs and for preventing commercial dealings in organs by providing punishments for such dealings. Section 2(i) of the Act defines "near relative" which means spouse, son, daughter, father, mother, brother or sister. Among various sections, Section 9 is relevant:
"Section 9. Restrictions on removal and transplantation of human organs.- (1) Save as otherwise provided in sub-section (3), no human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.
(2) Where any donor authorises the removal of any of his human organs after his death under sub-section (2) of Section 3 or any person competent or empowered to give authority for the removal of any human organ from the body of any deceased person authorises such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ.
(3) If any donor authorises the removal of any of his human organs before his death under sub-section (1) of section 3 for transplantation into the body of such recipient, not being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee.
(4)(a) The Central Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the Central Government on such terms and conditions as may be specified in the notification for each of the Union territories for the purposes of this section.
(b) The State Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Government on such terms and conditions as may be specified in the notification for the purposes of this section.
(5) On an application jointly made, in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ.
(6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval. "
Chapter III speaks about Regulation of Hospitals. Section 10 reads thus:
"Section 10. Regulation of hospitals conducting the removal, storage or transplantation of human organs.- (1) On and from the commencement of this Act,-
(a) no hospital, unless registered under this Act, shall conduct, or associate with, or help in, the removal, storage or transplantation of any human organ;
(b) no medical practitioner or any other person shall conduct, or cause to be conducted, or aid in conducting by himself or through any other person, any activity relating to the removal, storage or transplantation of any human organ at a place other than a place registered under this Act; and
(c) xx xx (2) xx xx"
Chapter V speaks about Registration of Hospitals. Section 15 reads as follows:
"Section 15. Certificate of Registration.- (1) The Appropriate Authority shall, after holding an inquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the rules made thereunder, grant to the hospital a certificate of registration in such form, for such period and subject to such conditions as may be prescribed.
(2) If, after the inquiry and after giving an opportunity to the applicant of being heard, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for registration.
(3) Every certificate of registration shall be renewed in such manner and on payment of such fees as may be prescribed."
Chapter VI deals with offences and penalties. As per Section 18(1) any persons who renders his services to or at any hospital and who, for purposes of transplantation, conducts, associates with, or helps in any manner in, the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees. As per sub-section (2) of Section 18, where any person convicted under sub-section (1) is a registered medical practitioner, his name shall be reported by the Appropriate Authority to the respective State Medical Council for taking necessary action including the removal of his name from the register of the Council for a period of two years for the first offence and permanently for the subsequent offence. Section 19 deals with punishments to be awarded to persons responsible for commercial dealings in human organs.
10. By virtue of Section 24(1) of the Act, the Central Government has framed Rules called "The Transplantation of Human Organs Rules, 1995". Rule 4 prescribes duties of the Medical Practitioner before removing a human organ from the body of a donor before his death. Rule 7 speaks about registration of hospital, and according to which, application for registration has to be made to the Appropriate Authority as specified in Form 11. Renewal of Registration is specified in Rule 8. Unless the hospital fulfils certain requirement of manpower, equipment, specialised services and facilities as laid down in Rule 9, the same shall not be granted a Certificate of Registration under this Act. As per Rule 10, any person aggrieved by an order of the Authorisation Committee under sub-section (6) of Section 9, or by an order of the Appropriate Authority under sub-section (2) of Section 15 and Section 16 of the Act, may within 30 days from the date of receipt of the order, prefer an appeal to the Central Government. It is clear that the Act and the Rules regulate the removal and transplantation of human organs and prevents commercial dealings in human organs by providing severe punishments for such dealings. It is also clear that as per section 9 of the Act, it is mandatory to the State Government to constitute by notification one or more Authorisation Committees for issue of approval of transplantation of organs to the donors as well as the recipients. Section 14 of the Act prescribes registration of hospitals engaged in removal, storage or transplantation of human organs. Section 19 of the Act prohibits commercial dealings in human organs by providing punishment.
11. Mr. K. Doraisami, learned senior counsel for the petitioner-hospitals, by drawing my attention to the above referred statutory provisions, would contend that inasmuch as the alleged complaint of M.R. Balasubramani did not contain allegations against the petitioner hospitals, the State Human Rights Commission has no jurisdiction to go into the complaint of M.R. Balasubramani, donor. According to him, inasmuch as the hospital was having valid registration certificate, authorising them to allow Kidney Transplantation and only on receipt of order of approval dated 4-12-2001 together with the respective affidavit of the donor and the recipient, duly attested by the XXI Metropolitan Magistrate, Egmore, Chennai-8, the petitioner hospitals allowed the Kidney Transplantation for Seralathan, recipient on 18-12-2001, and in such a circumstance, the State Human Rights Commission has no jurisdiction to take the complaint for consideration. He also points out that since the complainant- M.R. Balasubramani (donor) has prayed for payment of the balance amount of Rs.1,05,000/- (Rs.1,50,000 - Rs.45,000 = Rs.1,05,000/-), which is prohibited under section 19 of the Act, the same cannot be taken note of and enforced by the State Human Rights Commission. It is true that after the enactment of the Act, namely the Transplantation of Human Organs Act, 1994, human organs cannot be removed from any donor before his death without authority and commercial dealings in human organs have been completely banned. Though the State Human Rights commission has entertained the complaint of M.R. Balasubramani (donor) and also issued notice to all the persons concerned, including the petitioner hospitals, I am of the view that in the light of the statutory provisions, it is open to the petitioner hospitals to put-forth their case before the State Human Rights commission. I have already referred to their case that they had obtained valid registration certificate for conducting transplantation of human organs from the competent authority and that the same is valid and is in force as on date. It is also brought to my notice that only after getting the order of approval from the competent authority together with the respective affidavit of the donor and the recipient, duly attested by a Magistrate, they allowed the kidney transplantation for Seralathan, recipient on 18-12-2001. In such a circumstance, I am of the view that all these materials can be placed and demonstrated before the Commission. Accordingly, while rejecting the claim of the petitioner hospitals for issuance of a Writ of Prohibition, prohibiting the State Human Rights Commission from proceeding further in respect of the complaint of M.R. Balasubramani dated 26-8-2002, in Case No. 5026/2002-SS, it is made clear that it is open to the petitioner hospitals to place all the materials in support of their stand and if those materials are placed, the Commission is expected to consider the same and decide the issue in accordance with the statutory provisions referred to above.
12. Coming to the challenge relating to the letter dated 29-10-2002 of the Chairman, Authorisation Committee and the letter dated 13-11-2002 of the State Appropriate Authority, as rightly observed by the learned Advocate General, pursuant to the said proceedings/letters, the petitioner hospitals were asked to appear before the State Appropriate Authority with all relevant documents to substantiate their case, and in that event, adjudication by this Court and interference at this juncture is not warranted. Further, whether the petitioner hospitals secured valid permission from the Authorisation Committee for getting approval to conduct Renal Transplantation etc., is a matter for consideration before the said Authority. If they (petitioner hospitals) had secured permission in accordance with the instructions of the Director of Medical Education dated 3-9-99, it is always open to them to place those details at the time of enquiry. Here again, though it is stated that only on the basis of order of approval dated 4-12-2001 together with the affidavits of the donor and the recipient duly attested by the competent Magistrate etc., they allowed Kidney Transplantation for S. Seralathan, recipient, in their hospital on 18-12-2001, as observed earlier, it is open to them to place all those details and establish their case before the State Appropriate Authority. I have already referred to the relevant provisions from the Act and the Rules applicable to transplantation of human organs, particularly Kidney. If the petitioner substantiate their position namely that they were having valid registration certificate, and order of approval from the Authorised Authority, there cannot be any difficulty for them to appear before the Appropriate Authority and substantiate their case. Though it is stated that the donor and the recipient are related, in the light of the definition of the expression "near relative" in Section 2(i) of the Act, it is for the respective parties to substantiate the same before the Authority.
13. Learned senior counsel for the petitioner by drawing my attention to both the order/letter dated 29-10-2002 and 13-11-2002 of the State Appropriate Authority and Authorisation Committee respectively, would contend that since both the authorities have pre-concluded the issue, the proposed enquiry is without any basis, and it is nothing but an empty formality and also in violation of the principles of natural justice. No doubt, both the Appropriate Authority and the Authorisation Committee have expressed their views in their respective letters/notice, I am of the opinion that the same cannot be construed as their final decision. As rightly contended by the learned Advocate General, if the notice/show cause notice does not contain the required details and the proposed action to be taken, the same would be characterised as vague or does not contain specific imputation. Looking at this angle, I am of the view that it cannot be contended that the respondents have pre-determined the issue and the petitioner may not get justice in the proposed enquiry. Inasmuch as the State Appropriate Authority is exercising jurisdiction under the Transplantation of Human Organs Act, 1994 and the Rules made thereunder, undoubtedly the said Authority would follow the provisions of the Rules strictly, including the principles of natural justice in passing orders.
14. In the light of what is stated above, both the Writ Petitions are disposed of with a liberty to the petitioner-Hospitals to put-forth their case before the State Human Rights Commission, Tamil Nadu as well as the state Appropriate Authority under the Transplantation of Human Organs Act, 1994. It is made clear that both the Authorities are directed to consider the case of the petitioner-hospitals uninfluenced by their observation/conclusion in their letter/Notice for enquiry in accordance with the provisions of the Act and the Rules as well as in compliance with the principles of natural justice. No costs. Consequently, connected Miscellaneous Petitions are closed.