Kerala High Court
Mahatma Gandhi Charitable & vs State Of Kerala on 28 March, 2014
Author: Manjula Chellur
Bench: Manjula Chellur, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936
WP(C).No. 3193 of 2010 (S)
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PETITIONER:
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MAHATMA GANDHI CHARITABLE &
WELFARE FOUNDATION NO.228,
VANIAPPURA TOWN BAKERY BUILDING,
RAMAPURAM P.O., KOTTAYAM DISTRICT.
BY ADV. SRI.P.P.JOYI.
RESPONDENT:
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STATE OF KERALA, REP. BY ITS SECRETARY,
DEPARTMENT OF HEALTH & FAMILYWELFARE, SECRETARIAT,
THIRUVANANTHAPURAM.
BY SR. GOVERNMENT PLEADER SRI. P.I. DAVIS.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-03-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
W.P.(C).NO.3193/2010-S:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P.1: DEED OF TRUST BEARING NO.173/4/09.
EXT.P.2: REPRESENTATION MADE TO THE DEPARTMENT OF HEALTH AND
FAMILY WELFARE, KERALA STATE DT. 02/12/09 AND ENGLISH
TRANSLATION.
RESPONDENTS' EXHIBITS:
EXT.R1.(a): TRUE COPY OF THE G.O.(RT.).NO.114/13/TD DTD. 05/02/2013.
EXT.R1.(b): TRUE COPY OF THE PROPOSAL DTD. 18/12/2013 FROM THE
DIRECTOR OF HEALTH SERVICES TO THE RESPONDENT.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
MANJULA CHELLUR,C.J.
&
A.M.SHAFFIQUE, J.
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W.P.(c) No.3193 of 2010
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Dated this the 28th day of March, 2014
JUDGMENT
Manjula Chellur,CJ This writ petition is filed seeking following reliefs:-
"i) pass a writ of mandamus directing the respondent State to establish at lease one free dialysis unit for poor kidney patient in each district.
ii) such other appropriate writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of this case in the Interest of Justice and Equity."
2. The main grievance of the petitioner-Foundation seems to be that there is need to establish and run dialysis centers which can cater to the needs of poor and needy kidney patients. Petitioner seems to be a charitable trust aiming to establish free medical assistance to poor patients, especially free dialysis for patients with kidney problems. According to W.P.(c) No.3193 of 2010 2 them, limited facilities in Government hospitals are not sufficient to meet the demand of patients as several patients have to wait for months together to get their turn. There are several patients who need dialysis at least twice in a week to keep themselves alive and if these patients were forced to seek assistance of private dialysis centres, they need to spend `30,000 per month which becomes impossible. Some of the patients are at the mercy of benevolent rich donor public and same cannot be consistent for ever. Therefore, they have come up with this application contending that right to life is guaranteed under Artice 21 of the Constitution and right to receive free medical care flows from the said Article.
3. According to them, unless regular dialysis facility is established, normal life of kidney patients would be jeopardized and especially those patients who are unable to afford such expenses, cannot sustain their life longer and this problem would affect their life under Article 19(1)(g) of the Constitution, which guarantees right to pursue any business or gainful employment or work to all the citizens. W.P.(c) No.3193 of 2010 3
4. As against this, respondent-State has filed a detailed counter affidavit. For the purpose of brevity and clarity, it would be just and proper to reproduce what is narrated in the counter, which throws light on the issues raised in the writ petition. Paragraphs 3,4 and 5 are relevant, which read as under:-
'3. It is submitted that in all Districts in the State of Kerala, Dialysis Units are working and the Hospitals having dialysis facilities at present are the following:-
1. General Hospital Thiruvananthapuram.
2. District Hospital, Kozhencherry.
3. District Hospital, Kottayam.
4. THQH Thodupuzha, Idukki.
5. General Hospital, Ernakulam.
6. District Hospital, Thrissur
7. District Hospital, Palakkad
8. District Hospital, Tirur, Malappuram
9. General Hospital, Kozhikode
10. District Hospital, Kannur
11. THQH Nilambur, Malappuram
12. District Hospital, Vadakara
13. District Hospital, Aluva, Ernakulam
14. General Hospital, Kasaragode
15. THQH Ottapalam, Palakkad W.P.(c) No.3193 of 2010 4
16. District Hospital, Mananthavady, Wayanad
17. District Hospital, Kollam (recently started) In Kollam District, recently a dialysis unit was set up and the unit had already been started and the registration for enrollment of the patients are going on. In addition to the dialysis unit at District Hospital, Tirur and Taluk Head Quarters Hospital, Nilambur in Malappuram District as mentioned above another Unit in Ponnani Taluk Head Quarters Hospital was also started and the unit will start functioning on getting sufficient staff for running the same.
4. In addition to above mentioned dialysis units, State Government as per G.O.(Rt.)No.114/13/TD dated 05.02.2013 accorded sanction for setting up dialysis unit in 27 institutions mentioned therein by using the fund of Karunya Benevolent Fund. True copy of the Government Order dated 05.02.2013 is produced herewith and marked as Exhibit R1(a). In terms of the said Government Order, a detailed proposal has been already forwarded from the directorate to the State Government for creation of posts needed for the functioning of the dialysis unit and for completion of other infrastructure facilities. True copy of the proposal dated 18.12.2013 from the Director of Health Services to the respondent is also produced herewith and marked as Exhibit R1(b). It is to be noted that for functioning of the dialysis units, expert specialized human resources as detailed in the proposal are absolutely necessary. As and when, sufficient posts are created, all the additional 27 dialysis units in Taluk W.P.(c) No.3193 of 2010 5 Head quarters and Taluk Hospitals will start functioning. The managements of the concerned hospitals are also taking appropriate steps for starting functioning of the additional dialysis units by engaging qualified persons on contract basis, while awaiting the creation of posts and appointment of permanent staff, in order to satisfy the need of the patients requiring dialysis.
5. It is submitted that, in the Districts of Ernakulam, Kozhikode, Idukki, Kottayam, Alappuzha and Palakkad, the dialysis units installed are working free of charges to all patients.
In Kasaragod District, no charges are levied from the Endosulphan affected people. In other districts, the BPL (Below Poverty Line) ration card holders have to pay an amount of not more than Rs.300/- to 350/- for dialysis and others have to pay only an amount of Rs.500/- to 600/-. In this regard, it is also to be noted that in Private Hospitals the charges for each dialysis varies from Rs.2000/- and 3000/-. In Government Hospitals the nominal charges are levied only because of the high costs of the consumable and chemicals used for the dialysis. In other Districts where nominal charges are being levied, depending on the funds available with the Hospital Management Committees in deserving cases the committee is entitled to give dialysis facility, free of costs."
5. Reading of these paragraphs clearly indicate, in all district head quarters they have dialysis units and in some W.P.(c) No.3193 of 2010 6 districts there are more than one unit. Most of the Taluk head quarters are also having this facility of dialysis. We note that whatever amount generated through Karunya Benevolent Fund is spent towards health need of patients, who cannot afford the expenses of the treatment, especially functioning of dialysis unit, where service is given free of cost. Providing free dialysis service depends upon the fund generated from the Karunya Benevolent Fund. In some centers, it is not possible to extend free dialysis facility for shortage of funds. In those cases, depending upon the seriousness and the background of the patients, no charges are levied, viz. patients suffering from Endosulfan effects and so far as patients who produce BPL ration card. They are also having the facility of paying concessional rate for dialysis.
6. Having regard to the steps already taken and the policy of the State using Karunya Benevolent Fund towards this purpose, we are of the opinion, what the State is required to do in order to safe guard the interest of its citizens from the point of Article 21, it is extending such benefits. From the W.P.(c) No.3193 of 2010 7 counter affidavit, we also note, further positive and effective steps for setting up dialysis units to render free dialysis service is also seriously thought of.
In the light of above circumstances and the steps taken, we place on record our satisfaction regarding the steps taken by the State and the writ petition is accordingly disposed of.
MANJULA CHELLUR, CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE.
sj 29/03