Delhi High Court - Orders
Dma Nursing Home & Medical ... vs Delhi Pollution Control Committee & Ors on 6 May, 2020
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3017/2020 & CM APPL. 10487-89/2020
DMA NURSING HOME & MEDICAL
ESTABLISHMENT FORUM & ORS .... Petitioners
Through: Mr. Ashish Kothari, Advocate
versus
DELHI POLLUTION CONTROL COMMITTEE
& ORS ..... Respondents
Through: Mr. Narender Pal Singh,
Advocate for R-1.
Mr. Anant Singh, Advocate for
R-2.
Mr. Gaurav Singh, Advocate
for R-4.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 06.05.2020 This matter has been taken up for hearing by video conferencing.
CM APPL. 10488/2020 (exemption) Exemption allowed, subject to all just exceptions. Application stands disposed of.
CM APPL. 10489/2020 (exemption from filing attested affidavits as well as requisite court fee) Exemption allowed, subject to all just exceptions. Application stands disposed of.
W.P.(C) 3017/2020 Page 1 of 13W.P. (C) 3017/2020
1. The prayer clause in this writ petition reads thus:-
"In the circumstances, it is most respectfully prayed that this Hon'ble Court may be pleased to:
a) Issue a writ of mandamus or any other writ order or direction directing the Respondents to permit the Respondent No. 4 herein to provide its services under the bar-code-based waste management system including provision of software, data storage, supply of barcode stickers etc.;
Or in the alternative, in case it is not possible for the Respondents to engage more than one service provider, to:
Engage the service provider/vendor through a transparent process by inviting bids/quotations from all interested firms and engage the firm that has quoted the lowest price;
b) Issue a writ of mandamus or any other writ order or direction directing the Respondents not to penalize any Healthcare Facility for non-
implementation of Bar-code based waste management system before expiry of one month from the date: -
(i) When the CBWTFs permit the Petitioner No. 4/all interested vendors from providing their services under the Bar-code based waste management system; or
(ii) When the CBWTFs appoints a service provider whose quotation was found to be the lowest after inviting bids from all interested firms;
c) Pass any other order or direction that this Hon'ble Court deems fit in the facts and circumstances of the case."W.P.(C) 3017/2020 Page 2 of 13
2. A brief factual over view may be appropriate.
3. Guidelines, for implementing the Bar Code System for Effective Management of Bio medical Waste were issued, by the Central Pollution Control Board (CPCB) in April, 2018. These guidelines prescribed requirements and procedures for implementation of the bar-code-based system for disposal of bio medical waste, and required the Common Bio-medical Waste Treatment Facility (CBWTF), appointed by the concerned State Pollution Control Board (SPCB) or Pollution Control Committee (in Union Territories), to procure and maintain Bar Code Based Waste Management System software, through which details of bio-waste generated by healthcare facilities (such as hospitals and clinics etc.) would be uploaded and stored on a cloud-based server.
4. For ready reference, Clauses 1-4 (i) of the Guidelines for Bar Code System for Effective Management of Bio-medical Waste, (hereinafter referred to as 'the Guidelines' are reproduced thus:-
"1. Introduction Bio-medical Waste Management Rules, 2016 notified on 28.03.2016 and as amended thereof under the Environment (Protection) Act, 1986, stipulates that it is the duty of every Health Care Facility (HCF) to establish a bar code system for bags or containers containing bio-medical waste (BMW) to be sent out of the premises or place for any purpose, by 27.03.2019. Also, Rule 5 of the BMWM Rules, 2016 stipulates that it is the duty of the every Operator of Common Bio- medical Waste Treatment Facility (CBWTF) to establish bar code system for handling of bio-medical waste.W.P.(C) 3017/2020 Page 3 of 13
These guidelines have been prepared to facilitate and provide guidance to both the Occupier as well as Operator of CBWTF to establish bar code system and also to have uniformity in adoption of the bar code system throughout the country, thereby ensuring effective enforcement of the BMWM Rules, 2016.
2. Need for Bar Code System Bar code system would help in accounting the quantity of biomedical waste being collected, treated and disposed. This system would also help the prescribed authorities in monitoring the implementation of BMWM Rules, 2016. The benefits of Bar code system are summarized below;
(i) Tracking of biomedical waste from source of generation to intended destination for final treatment and disposal;
(ii) Daily check on the Occupier, transporter (involved in transportation of bio-medical waste within HCF as well as transportation of bio-
medical waste from HCF to the CBWTF premises) and Operator of a CBWTF;
(iii) Preventing pilferage of bio-medical waste at HCFs as well as during transportation of waste from HCF to the CBWTF;
(iv) Keeping record of visits made by CBWTF to the member HCFs for collection of waste;
(v) Identification of source of generation of bio-
medical waste in case waste is disposed of improperly;
(vi) Creates real time online monitoring of waste generation, collection, transportation, treatment and disposal; and
(vii) Quantification of bio-medical waste generated, colour coding-wise waste handed over to the CBWTF operator by the Occupier and waste W.P.(C) 3017/2020 Page 4 of 13 collected daily by the Operator of a CBWTF from the member HCFs for further treatment and disposal.
3. Stakeholders responsible for Implementation of the Bar Code System According to BMWM Rules, 2016 as amended, following stakeholders are responsible for implementation of the Bar Code system as detailed below:
(a) Prescribed Authority: The State Pollution Control Board (SPCB) in respect of the State, Pollution Control Committee (PCC) in respect of the Union Territory (UT) and Director General, Armed Forces Medical Services (DGAFMS) in respect of Armed Forces Health Care Establishments fall under the jurisdiction of the Ministry of Defense are the prescribed authority for overall enforcement of the BMWM Rules, 2016 including implementation of Bar code system..
(b) Health Care Facility: The person having administrative control over the institution and the premises generating bio-medical waste, which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank, health care facility and clinical establishment, is responsible to implement bar code labelling system.
(c) Operator of a Common Bio-medical Waste Treatment Facility (CBWTF): The person who owns or controls a Common Bio-medical Waste Treatment Facility (CBWTF) for the collection, reception, storage, transport, treatment and disposal or any other form of handling of bio-medical waste is also responsible for implementing a Bar coding system.
BMWM Rules does not stipulate any responsibility to the bar code vendor (that is a person supplying and distributing bar coded bags or container with bar coded labels). However, such vendors may provide bar code labels compatible with W.P.(C) 3017/2020 Page 5 of 13 bar-code management system software and in accordance with these guidelines.
4. Bar Code Label
1. Bar code labeling may be of two types as given below
(i) Bar code or QR code label can be pre-
printed directly on the designated colour coded bags /containers, which may be procured by HCF through the Operator of a CBWTF providing services to them or through any vendor, fulfilling the specifications stipulated under these guidelines; or
(ii) Bar code or QR code labels can be pasted on the designated colour coded bags/ containers, which can be procured by the HCF either through the Operator of a CBWTF providing treatment services to the HCF or through Vendor.
In both cases, thickness of colour coded bag used for segregation and handling of bio-
medical waste should be as per Plastic Waste Management Rules, 2016 as amended thereof i.e. equal to or more than 50 μ.
The charges for bar coded labels or pre-printed bar coded label or QR code label may be levied by the Operator of a CBWTF or a Vendor as per the prevailing rates to the Occupier or as per the agreement between the Occupier and Operator of CBWTF/Vendor. Vendors shall consult the CBWTF and the Software Provider so as to ensure compatibility with software system being adopted by Operator of CBWTF."
(Emphasis supplied)
5. Respondents No. 2 and 3 were appointed, by the Delhi Pollution Control Committee (DPCC), as the CBWTFs for Delhi. These respondents, in turn, appointed M/s Butterfly Softwares LLP W.P.(C) 3017/2020 Page 6 of 13 (hereinafter referred to as "Butterfly") and Clean Code Solutions LLP (hereinafter referred to as "Clean Code"), for the respective areas, and conferred, on them, exclusive right to provide software and data storage services, as well as barcode stickers in the said areas.
6. The writ petition, jointly preferred by the DMA Nursing Home & Medical Establishment Forum (a wing of the Delhi Medical Association/DMA), Two hospitals, namely, East Delhi Medical Centre and Shri Ram Singh Hospital & Heart Institute and one vendor, namely, M/s. Jiyyo Innovations Pvt. Ltd., Chandigarh, alleges that, by the above action, a monopoly has been created in favour of Butterfly and Clean Code, using which they can exploit and fix fee/prices of their services at their whims and fancies. In fact, alleges in the writ petition, such misuse of monopoly by Butterfly and Clean Code has taken place.
7. Mr. Ashish Kothari, learned counsel appearing for the petitioners, places especial reliance on Clause 4(1)(i) of the Guidelines, which, for ready reference may be reproduced at the cost of repetition thus:-
"4. Bar Code Label
1. Bar code labeling may be of two types as given below
(i) Bar code or QR code label can be pre-
printed directly on the designated colour coded bags /containers, which may be procured by HCF through the Operator of a CBWTF providing services to them or through any vendor, fulfilling the specifications stipulated under these guidelines; or ..."
(Emphasis supplied) W.P.(C) 3017/2020 Page 7 of 13
8. Mr. Kothari submits that use of words "through any vendor"
used in the above clause 4(1)(i) of the Guidelines reveals that the choice of vendor, through whom printing of the Bar code or QR Code label on the bag, containers was to be effected, was with the Health Care Facilities (referred to, hereinafter, as "HCFs"). According to his interpretation of the above extracted clause, the HCFs can procure the Bar Code or QR Code label, either through the operator of the CBWTF or through any vendor. According to him, the CBWTFs do not have the authority to appoint vendors of their choice, especially when other vendors, providing similar services at cheaper prices, were available.
9. As a consequence, he submits, a monopoly has been created in favour of Butterfly and Clean Code, and financial prejudice has resulted to the HCFs which are having to pay higher price for obtaining a Bar Code or QR Code label.
10. Resisting the submissions, Mr. Narender Pal Singh, learned counsel appearing for the Delhi Pollution Control Committee (DPCC) submits that if each HCF was allowed its personal choice of vendor, it would result in serious operational difficulties, as, once the bags were coded with the Bar code, the Bar codes had to be tagged by the CBWTFs. Mr. Narender Pal Singh submits that a multiplicity of vendors would result in practical problems in the CBWTF maintaining data regarding Bar code on the bags which, in the present situation in which the country is ravaged by the COVID-19 pandemic, can pose serious health hazards, especially as the bags contained bio-medical waste. In these circumstances, submits Mr. Narender Pal Singh, the W.P.(C) 3017/2020 Page 8 of 13 restriction of the number of vendors, from whom Bar code/QR Code stickers could be procured, was in public interest and does not call any judicial intervention.
11. I have also heard Mr. Gaurav Singh, learned counsel appearing for Respondent No. 4, who needless to say, supports the selection of his client as the vendor, through whom Bar codes/QR Codes/labels are to be procured by the HCFs. He emphasises the fact that, while his client has been in the business of providing such Bar code/QR Code labels since 2012, Petitioner No. 4, whose cause essentially the writ petition purports to espouse, is a new player in the field having coming into existence only in 2019, to which Mr. Kothari responds that Petitioner No. 4 has been in operation for the past three years.
12. In any case, submits Mr. Singh, in a city of the size of Delhi, and given the present COVID-19 pandemic situation, it is in the public interest that a vendor with greater experience is chosen over a vendor of lesser experience.
13. Having heard learned counsel at considerable length, I find it strange, at the first instance, that DMA has chosen to espouse the commercial cause of Petitioner No. 4. The fact that even after Mr. Narender Pal Singh has pointed out the logic behind limiting the number of vendors, Petitioner No. 1 still continues to press the cause of the remaining petitioners, is equally disquieting.
14. At this stage, I say no more on this aspect.
W.P.(C) 3017/2020 Page 9 of 1315. To me, it is also clear that this court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, cannot sit in appeal over the wisdom of the decision regarding the vendor from whom the Bar code/QR Code labels should be procured. The issue, as correctly emphasized by learned counsel appearing for the respondents, involves serious health repercussions. As the bar codes are to be affixed on the bags containing bio-medical waste, the best judge to decide on the vendor from whom labels/stickers should be obtained, would be the respondents, and not a court of law. Nor, for that matter, would this court, in exercise of its powers under Article 226 of the Constitution of India, be in a position to rule on the competing commercial rights of Petitioner No. 4, vis-à- vis the private respondents, for which a more appropriate forum would be the civil court, exercising original jurisdiction.
16. The only point advanced by Mr. Kothari, which, according to me, may be arguable to some extent, is the interpretation of the Clause 4(1)(i) of the Guidelines. Mr. Kothari seeks to submit that the words "or through any vendor" confers absolute discretion, on the HCFs, to select vendors of their choice, and militates against the selection of a particular vendor by CBWTF. Though this may be one interpretation of the said clause, equally, in my view, the words "or through any vendor" may actually be qualifying the vendor, rather than the choice available to the HCFs. In other words, the clause appears prima facie, to be equally capable of being interpreted as stipulating that the vendor, appointed by the HCF, has to be a vendor who fulfils the specific stipulation under the guidelines, and none else. Expressed W.P.(C) 3017/2020 Page 10 of 13 otherwise, the Clause can be interpreted as empowering the CBWTF to source the bar codes through any vendor, who fulfils the prescribed guidelines. Thus, the use of the word "any" may be qualifying the kind of vendor, rather than the conferment of choice on the HCF.
17. The interpretation of the aforesaid clause appears, to me, prima facie, to be arguable to some extent. Needless to say, should the interpretation, placed on Clause 4(1)(i) of the Guidelines by Mr. Kothari, be found, ultimately, to be more acceptable, the appointment of Butterfly and Clean Code, by Respondents No. 2 and 3, as vendors, might be thrown into jeopardy.
18. Solely for this reason, let notice be issued on the writ petition to the respondents to show cause as to why rule nisi be not issued, limited to the aspect of whether the appointment of Butterfly and Clean Code, as vendors, by Respondents No. 2 and 3, was legally sustainable or not.
19. Mr. Narender Pal Singh, Advocate appearing for Respondent No. 1, Mr. Anant Singh, Advocate appearing for Respondent No. 2 and Mr. Gaurav Singh, Advocate appearing for Respondent No. 4 on advance notice accept notice.
20. Counter affidavits be filed within four weeks with advance copies to the petitioners, who may file rejoinder thereto, if any, within two weeks thereafter.
21. Renotify on 25th June, 2020.
W.P.(C) 3017/2020 Page 11 of 13CM APPL. 10487/2020 (for interim relief)
22. This application seeks restraint against taking any coercive action or imposition of penalty on the HCFs, for non implementation of the Bar code based waste disposal system during the pendency of the present writ petition. In other words, the interim prayer is directed against the very implementation of the bar code based system for disposal of biomedical waste, rather than the selection of Butterfly or Clean Code as vendors by Respondents No. 2 and 3.
23. On the face of it, the prayer is totally misconceived.
24. The enforcement of the Bar code based waste disposal system is a policy decision, taken in public interest, in order to ensure proper disposal of bags containing Bio-medical waste, and cannot be treated as arbitrary or perverse, in any manner, so as to invite any interference by this court.
25. Besides, as already noted by me hereinabove, the only issue arises for consideration, in this writ petition, which may be amenable to adjudication in the writ petition, is the interpretation of Clause 4(1)(i) of the Guidelines and whether, as correctly interpreted, Butterfly and Clean Code could have been appointed as vendors, under the said clause.
26. In view thereof, the prayer for interim relief, as contained in the stay application, is completely devoid of merit.
27. Mr. Kothari, at this juncture, prays for issuance of an interim W.P.(C) 3017/2020 Page 12 of 13 direction, at least to the effect that payment to the aforesaid vendors be permitted to be effected on a month to month basis.
28. It is not possible for this court to issue any such directions. Payment to the vendors would have to be made in accordance with the Guidelines and applicable instructions in that regard.
29. Any payments made to the designated vendors and all other action taken pursuant to the impugned communication dated 12th April, 2020 would, however, abide by the outcome of these proceedings.
30. Subject to the said caveat, the prayer for stay is rejected. The application is disposed of accordingly.
31. A copy of this order be uploaded on the website of this Court positively within 24 hours and copy be also forwarded to the counsel for the parties via email.
C. HARI SHANKAR, J.
MAY 06, 2020 vk W.P.(C) 3017/2020 Page 13 of 13