Kerala High Court
Ibrahim Elettil vs Union Of India on 1 June, 2020
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942
WP(C).No.10636 OF 2020(S)
PETITIONER/S:
IBRAHIM ELETTIL
AGED 62 YEARS
S/O. ABDURAHMAN, CHOLAYIL, KIZHAKKOTH, ELETTIL-
KOZHIKODE, KERALA
BY ADVS.
SMT.O.A.NURIYA
SRI.HARRIS BEERAN
RESPONDENT/S:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS,
SOUTH BLOCK, NEW DELHI-110 001.
2 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, KERALA,PIN-695 001.
R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
R2 BY SRI. RENJITH THAMPAN, ADDL.AG
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.06.2020,
ALONG WITH WP(C).10648/2020(S), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos. 10636 & 10648 of 2020 :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942
WP(C).No.10648 OF 2020(S)
WRIT PETITIONER:
REJI THAZHAMON
S/O.CHANDY ABRAHAM, AGED 60 YEARS, THAZHAMON HOUSE,
VELLIYARA.P.O, AYROOR VILLAGE, PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.ARUN.B.VARGHESE
SMT. AISWARYA V.S.
RESPONDENT:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, NIRMAN BHAVAN, NEAR UDYOG BHAVAN
METRO STATION, MAULANA AZAD ROAD, NEW DELHI-110 011.
2 THE SECRETARY
MINISTRY OF HOME AFFAIR,S NORTH BLOCK, CENTRAL
SECRETARIAT, NEW DELHI-110 001.
3 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF
KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM-
695 001.
R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
R2 BY SRI. RENJITH THAMPAN, ADDL.AG
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.06.2020, ALONG WITH WP(C).10636/2020(S), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos. 10636 & 10648 of 2020 :3:
S. MANIKUMAR, CJ & SHAJI P. CHALY, J.
-------------------------------------------------------
W.P.(C). Nos. 10636 & 10648 of 2020
---------------------------------------------------------
Dated this the 1st day of June, 2020.
JUDGMENT
S. Manikumar, CJ Writ petitions have been filed for a direction to the State Government to bear the cost of institutional quarantine of expatriates.
2. The issue involved in both the writ petitions is common and therefore, we dispose of the same by a common judgment.
3. The facts leading to the filing of W.P.(C) No.10636 of 2020 are as follows:
The writ petition is filed seeking issuance of a writ of certiorari, or any appropriate writ, order or direction to the respondent No.1 to quash the provisions in the Standard Operating Protocols dated 05.05.2020, 24.05.2020 produced as Exts.P1 and P2 requiring the repatriated expatriates to bear WP(C) Nos. 10636 & 10648 of 2020 :4: the cost of institutional quarantine and to issue a writ of mandamus or any appropriate writ, order or direction to respondent No.2 to provide free of cost quarantine to these returned expatriates in consonance with Ext.P4 statement filed before this Court on 07.05.2020.
4. According to the petitioner, the protocols of the Central Government and the State Government not to provide free institutional quarantine to Indian Nationals coming from abroad is violative of Articles 14 and 21 of the Constitution of India. He prays for free quarantine to the financially broken non-residents, particularly, the non-resident Keralites especially the labour migrants, nurses, wives and children of poor labourers etc., who got stranded without, adequate money or access to health facilities and are returning from Gulf countries under Vande Bharat Mission. According to him, the action of the Central and State Governments are in sharp contrast to the actions expected to be taken by a welfare State and that in Ext.P4 statement dated 07.05.2020, it is stated by the State that they are well prepared to receive the expatriates WP(C) Nos. 10636 & 10648 of 2020 :5: once the Central Government lifts its restrictions, and that it has arranged 1.165 lakh rooms for quarantining the repatriates and that nowhere in the statement, it was stated that the returnees will have to bear the expenses for the institutional quarantine.
5. It is also submitted that the provisions in Standard Operating Protocols (SOP) are discriminatory as the Central Government is treating the migrant labourers within the State and migrant labourers outside India differently. The migrant labourers are those who leave their home seeking employment in a different State or country. Most labourers are unskilled workers and receiving low payments. Those migrant labourers working within the country and working abroad stands in equal footing. The Central and State Governments are providing free travel, free food and many other free amenities to those migrants within the country. Those migrant labourers returning from abroad are taking flight charges and asked to pay for their institutional quarantine. They are also financially limping, losing jobs, facing unemployment and WP(C) Nos. 10636 & 10648 of 2020 :6: uncertain future.
6. It is further contended that other States like the Punjab and Goa are providing free quarantine for the retunees and when the distressed categories like migrant labourers can be given free transportation amenities, and free quarantine, the action of the Central and State Governments providing such reliefs to the non-resident Indians, including financially backward labourers is highly discriminatory and violative of Articles 14 and 21 of the Constitution of India.
7. Reliance has been placed on Ext.P4 statement filed on behalf of the State of Kerala in W.P.(C) No. 9456 of 2020 (W.P.(C) TMP. No. 67 of 2020 and connected cases). Paragraphs 7, 8 and 9 relevant for the disposal of the case, read thus:
"7. The Government of Kerala has identified closed to 1.165 lakhs rooms for quarantining the returning Malayalees. Out this about 1.35 lakhs of rooms with attached toilets is readily available to accommodate this people for the purpose of quarantining. In addition to this, about 9000 rooms in Hotels and resorts have been identified for the purposes of housing those NRIs who wished to stay in these places at their own cost. The Kerala Medical Services Corporation Limited has in its possession about 40000 WP(C) Nos. 10636 & 10648 of 2020 :7: RT-PCR Test Kits to conduct about 40000 tests. A detailed report forwarded by the Principal Secretary, Department of Industries and NORKA dated 7.5.2020 is produced and marked Annexure- R2(d).
8. It is further submitted that Kerala State Disaster Management Authority with the help of Tourism Department and Public Works Department has prepared a list of infrastructure that could be used for temporary accommodation of disaster affected. This entire data is Geo Tagged and contains details of bed capacities, number of rooms etc. The database has hospitals (Government and Private), Hostels, Schools, Hotels, Lodges, Resorts, Ayur Centres, ITI Buildings, Auditoriums and Stadia. Considering the requirements of returning Pravasis as per the Health Management Protocol, a sub-set of this data containing only the Hotels, Lodges, Resorts and Ayur Centres which has readymade beds were listed out. The database in total had 4694 buildings with 82,566 beds including dormitories. District wise list is given below. A map of the facility is also attached herewith. Of this, bath attached room capacity is roughly 55,000. The list was provided to District Collectors for choosing the most appropriate facilities for housing the Pravasis.
9. An amount of Rs. 13.45 crores have been provided from State Disaster Response Fund till date since 1st April 2020 to the District Disaster Management Authorities for the purposes as laid by Ministry of Home Affairs, Government of India vide Ltr. No. 33- 04/2020-NDM-I dated 28-3-2020 and Ltr. No. 33-04/2020-NDM-I dated 14-3-2020."WP(C) Nos. 10636 & 10648 of 2020 :8:
8. The petitioner in W.P.(C) No. 10648 of 2020 was a Non-resident Indian and now settled down in Ayiroor Village, Pathanamthitta. For the past several years, the writ petitioner has worked at Sharjah in U.A.E. The petitioner's family and close relatives are still residing there. He was the former Vice President of Overseas Indian Cultural Congress (OICC), an Organisation at Dubai and he is working for the welfare and upliftment of the non-resident Indians. Raising the same averments as in W.P.(C) No. 10636 of 2020, W.P.(C) No. 10648 of 2020 is filed.
9. On instructions, Mr. Renjith Thamban, learned Additional Advocate General has submitted a note as hereunder:
Draft expenditure for quarantine/treatment of Covid patients is Rs.14000/- for each patient and the cost of of institutional quarantine is Rs. 1000/- day for 14 days. The same are apart from the PCR test at about Rs. 4000/test, for symptomatic persons before release. If the person is found WP(C) Nos. 10636 & 10648 of 2020 :9: positive during the quarantine period, he will be shifted to the hospital where the expenses will be as under:
Cost of hospital quarantine is Rs.1000/- per day per patient for 14 days and it will be Rs.14000/-. The same is apart from the food and medical expenses. Moreover, a Covid patient will be tested PCR test, every 48 hours (approximately), until he is tested negative two consecutive times. Each PCR test will cost Rs.4500/- (approximately). Thus, a Covid positive patient will be tested in the hospital for atleast 4 to 5 times minimum.
All the expenses for hospital treatment of Covid patients as on today in the State is completely free. As on 29.5.2020, 1088 positive Covid patients were being treated. The quarantine expenses alone will be 10,80,000/-. This is apart from the food expenses as well as PCR testing expenses and other medical expenses.
It is submitted that in the State of Kerala, the hospital expenses of the Covid patients are entirely free. However, this is not the case as regards many of the other States. As reported in Times now yesterday, in Tamilnadu itself, the Covid treatment in Private Hospitals comes to around Rs. 1,00,000/- per day with the minimum amount of Rs.WP(C) Nos. 10636 & 10648 of 2020 : 10 :
3,00,000/-
The cost of ICU treatment of a Covid patient per day is Rs. 40,000/- and average stay of a critical Covid patient in ICU is 6 days. As the average total expense for one critical Covid patient in ICU it will be 84,000/-, apart from the other quarantine expenses mentioned above including testing.
The hospital ward expense for each patient will be about Rs.9,000/- per day.
Average stay in ward is 5 - 10 days. Hence, total ward expense for each patient will be between 45,000/- and 90,000/-. Total positive cases till day is 1088 and the total ward expense itself will be Rs. 9,79,20,000/-
Cost of testing in Government hospital is as follows:
RTPCR Test Rs. 1447 X PERT - Rs. 2454/-
Truenat - Rs.1500/-
Total sample test in detail till 29.5.2020 - 78278/- Total cost of Rs.11,32,68,266/-
It is further submitted, it is understood, in other States institutional quarantine is mostly in a halt with no separate facilities and in some cases even without individual toilet facilities. However, in the State of Kerala, at present, persons who were placed under institutional quarantine are provided with separate rooms with attached bathroom and other facilities, apart from being provided free food and other medical expenses. It is submitted that in the State of Kerala, even the institutional quarantine is not made chargeable.WP(C) Nos. 10636 & 10648 of 2020 : 11 :
10. Learned Addl. Advocate General has further submitted that the Central Government have issued a notification regarding the relaxation of movement, opening of shops, increasing of staffs' strength and other matters. Government of Kerala have convened a meeting today to decide relaxation of conditions in the State of Kerala, and incurring of expenditure for the institutional quarantine for 7 to 14 days, is also one of the issues to be taken up in the meeting. According to him, as on today, the expenses for hospital treatment of Covid patients and institutional quarantine period, are completely free and there is no violation of Ext.P4 statement made by the Government of Kerala, before this Court on 07.05.2020 in W.P.(C) No. 9456 of 2020.
11. Ext.P1 in W.P.(C) No. 10636 of 2020 is the notification issued by the Government of India on 5 th May, 2020, which is superseded by Ext.P2 notification issued by the Government of India on 24.05.2020. Exts.P1 & P2 notifications in force at the time of filing the writ petition is relevant to the WP(C) Nos. 10636 & 10648 of 2020 : 12 : context, which read thus:
WP(C) Nos. 10636 & 10648 of 2020 : 13 :WP(C) Nos. 10636 & 10648 of 2020 : 14 : WP(C) Nos. 10636 & 10648 of 2020 : 15 : WP(C) Nos. 10636 & 10648 of 2020 : 16 : WP(C) Nos. 10636 & 10648 of 2020 : 17 : WP(C) Nos. 10636 & 10648 of 2020 : 18 : WP(C) Nos. 10636 & 10648 of 2020 : 19 : WP(C) Nos. 10636 & 10648 of 2020 : 20 : WP(C) Nos. 10636 & 10648 of 2020 : 21 :
12. Considering the submission of the learned Addl. Advocate General that, as on today, the cost of institutional quarantine for 7 to 14 days are free, we are of the view that there is no need to quash Ext.P1 Standard Operating Protocol dated 24.05.2020. Besides, there is no averment and proof in both the writ petitions that there is any breach of the statement made by the State of Kerala before this Court on 07.05.2020 in W.P.(C) No. 9456 of 2020 and connected cases. In that statement, it is stated that the Government of Kerala have identified about 1.165 lakhs rooms for quarantining the repatriated Malyalees, and that out of this, about 1.35 lakhs rooms with attached toilets are readily available to accommodate them for the purpose of WP(C) Nos. 10636 & 10648 of 2020 : 22 : quarantining. It is further stated that in addition to the above, about 9000 rooms in hotels and resorts have been identified for the purpose of housing those NRIs who wished to stay at their own cost.
13. The Hon'ble Supreme Court in a suo motu Writ Petition No. 6 of 2020 as per order dated 28.05.2020 has issued directions to the Central/State Governments to provide food and shelter to the migrant workers staying in different places in the country. Since the learned Addl. Advocate General has submitted that a meeting is convened today to discuss and finalise the issue with regard to relaxation of covid-19 conditions etc. pursuant to the Central Government's decision, and also the subject, incurring of expenditure for the institutional quarantine for the NRIs, we are not inclined to grant the relief as prayed for. However, we direct the State Government to consider the issue bearing in mind the order of the Hon'ble Supreme Court in the Suo Motu Writ Petition No. 6 of 2020 dated 28.05.2020 with regard to food and shelter to the migrants. In the event of any decision and consequential notification issued by the Government of Kerala on the aspect WP(C) Nos. 10636 & 10648 of 2020 : 23 : of providing institutional quarantine for free, it is always open to the petitioners to seek appropriate remedy before this Court.
With the above observations, these writ petitions are disposed of.
Sd/-
S. MANIKUMAR, CHIEF JUSTICE.
Sd/-
SHAJI P. CHALY, JUDGE.
Rv WP(C) Nos. 10636 & 10648 of 2020 : 24 : APPENDIX OF WP(C) 10636/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF ORDER OF MINISTRY OF HOME AFFAIRS DATED 5.5.2020 EXHIBIT P2 TRUE COPY OF ORDER OF MINISTRY OF HOME AFFAIRS DATED 24.5.2020 EXHIBIT P3 TRUE COPY OF ONLINE NEWS REPORT PUBLISHED IN THE WIRE DATED 7.5.2020 EXHIBIT P4 TRUE COPY OF STATEMENT FILED BY STATE GOVERNMENT AS DIRECTED BY HON'BLE HIGH COURT OF KERALA IN WPC NO.9456 OF 2020 DATED 7.5.2020 EXHIBIT P5 TRUE COPY OF TWITTER ACCOUNT OF HON'BLE CHIEF MINISTER OF KERALA DATED 13.4.2020 EXHIBIT P6 TRUE COPY OF FACEBOOK POST OF SRI.K.T.JALEEL, HON'BLE MINISTER OF LOCAL ADMINISTRATION DATED 6.5.2020 EXHIBIT P6(a) TRUE COPY OF ENGLISH TRANSLATION OF THE POST OF SRI.K.T.JALEEL, HON'BLE MINISTER OF LOCAL ADMINISTRATION DATED 6.5.2020 EXHIBIT P7 TRUE COPY OF NEWS REPORT OF NDTV DATED 27.5.2020.
EXHIBIT P8 TRUE COPY OF ORDER OF HON'BLE HIGH COURT OF KERALA DATED 05.05.2020 IN WP TEMP 150/20. EXHIBIT P9 TRUE COPY OF ORDER OF HON'BLE HIGH COURT OF KERALA IN WPC 9456 OF 2020 DATED 8.5.2020 EXHIBIT P10 TRUE COPY OF ORDER OF HON'BLE SUPREME COURT OF INDIA DATED 26.5.2020 IN SUO MOTO WRIT PETITION (CIVIL) NO.(S) 6/2020 EXHIBIT P11 TRUE COPY OF NEWSPAPER ONLINE REPORT OF TIMES OF INDIA DATED 27.5.2020.
EXHIBIT P12 TRUE COPY OF RELEVANT PAGES OF ORDER OF HON'BLE HIGH COURT OF KARNATAKA IN WPC 6435 OF 2020 DATED 21.5.2020.
WP(C) Nos. 10636 & 10648 of 2020 : 25 :EXHIBIT P13 TRUE COPY OF NEWSPAPER REPORT PUBLISHED IN INDIAN EXPRESS DATED 1.5.2020.
EXHIBIT P14 TRUE COPY OF NEWSPAPER REPORT PUBLISHED IN INDIAN EXPRESS DATED 20.5.2020.
RESPONDENTS' EXHIBITS: NIL /True Copy/ P S to Judge.
rv WP(C) Nos. 10636 & 10648 of 2020 : 26 : APPENDIX OF WP(C) 10648/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OFFICIAL MEMORANDUM BEARING NO.Z.28015/19/2020-EM(PT) DATED 24.5.2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF ORDER BEARING NO.40-3/2020-DM-
I(A) DATED 24.5.2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY O THE REPRESENTATION DATED 27.5.2020 SUBMITTED BY THE WRIT PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 27.05.2020 SUBMITTED BY THE WRIT PETITIONER BEFORE THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS: NIL /True Copy/ PS to Judge.
rv