Medaxis Hospital vs State Of U.P. And 2 Others
2019 Latest Caselaw 3298 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- WRIT - C No. - 4410 of 2019
 

 
Petitioner :- Medaxis Hospital
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Bharat Singh Pal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble Piyush Agrawal,J.

Heard Sri B.S.Pal, learned counsel for the petitioner and learned standing counsel for the respondents.

The petitioner through this writ petition is seeking quashing of the order dated 3.1.2019 passed by the Additional Chief Medical Officer- Administration, Nodal Officer - Private Doctor/ Hospital Registration (in short ACMO) by which the registration of the petitioner's clinical establishment has been cancelled.

Briefly stated the facts of the case are that the petitioner is running a clinic/hospital in the name of 'Medaxis Hospital'. The hospital was established in the year 2017. The registration certificate of the said hospital, which is valid upto 31st March, 2019 has been filed as Annexure 2 to this writ petition.

First submission of the learned counsel for the petitioner is that the impugned order has been passed by the ACMO, who is not the competent authority and under sub section (2) of Section 10 of the Clinical Establishments (Registration and Regulation) Act, 2010 (hereinafter referred to as the Act, 2010) the authority is the Chief Medical Officer (by whatever name called) (in short the CMO) to pass such order.

Second submission of the counsel for the petitioner is that before passing the impugned order, no show cause notice or opportunity of being heard was given to the petitioner and straight away the order of cancellation of petitioner's registration was passed on the ground that one Dr. Ayesha Khatoon, who was not a registered medical practitioner, was found working in the hospital during the inspection made on 3.1.2019.

Learned standing counsel has tried to justify the impugned order on the first count by submitting that the power of the CMO has been delegated to the ACMO and secondly, the undisputed fact that during the inspection of the clinical establishment, which was carried out by the authorities, one Dr. Ayesha Khatoon was found to be working there, who was neither a registered practitioner nor qualified to do medical practice, therefore, registration of the clinical establishment of the petitioner has rightly been cancelled.

Along with the counter affidavit, a document has been filed as Annexure 6, which is the letter of the Hospital dated 24.1.2019 wherein it has been stated that the lady named Ayesha Khatoon has been removed from the hospital. Learned standing counsel submits that this amounts to an admission on the part of the petitioner's hospital and proves that the hospital was taking services of such persons who are not qualified or registered medical practitioners to do medical practice meaning thereby that the petitioner's hospital was taking the services of jhola chaap doctors in its hospital.

So far as the question of jurisdiction of the authority, ACMO is concerned, we find under section 2(a) of the Act, 2010 defines "authority" to mean the district registering authority set-up under section 10 of the Act, 2010. Section 2(a) of the Act, 2010 reads as under:

"2. Definitions: In this Act, unless the context otherwise requires-

(a) "authority" means the district registering authority set-up under section 10;"

Section 10 of the Act, 2010 provides that the State Government shall, by notification, set-up an authority to be called the district registering authority for each district for registration of clinical establishments, with the following members, namely:

(a) District Collector - Chairperson;

(b) District Health Officer - Convenor;

(c) three members with such qualifications and on such terms and conditions as may be prescribed by the Central Government.

Sub-Section (2) of section 10 of the Act, 2010 further clarifies that for the purposes of provisional registration the District Health Officer or the Chief Medical Officer (by whatever name called) shall exercise the powers of the authority as per procedure that may be prescribed.

Section 10 of the Act, 2010 reads as under:

" 10. Authority for registration. - (1) The State Government shall, by notification, set-up an authority to be called the district registering authority for each district for registration of clinical establishments, with the following members, namely:

(a) District Collector - Chairperson;

(b) District Health Officer - Convenor;

(c) three members with such qualifications and on such terms and conditions as may be prescribed by the Central Government.

(2) Notwithstanding anything contained in sub-section (1), for the purposes of provisional registration of clinical establishment under section 14, the District Health Officer or the Chief Medical Officer (by whatever name called) shall exercise the powers of the authority as per procedure that may be prescribed."

Section 32 of the Act, 2010 provides for cancellation of registration and states that if the authority is satisfied with the condition as laid down therein, it will issue notice to the clinical establishment to show cause within three months' time as to why its registration under this Act should not be cancelled for the reasons to be mentioned in the notice.

Section 32 of the Act, 2010 reads as under:

"32.Cancellation of registration.- (1) If, at any time after any clinical establishment has been registered, the authority is satisfied that,-(a) the conditions of the registration are not being complied with; or

(b) the person entrusted with the management of the clinical establishment has been convicted of an offence punishable under this Act, it may issue a notice to the clinical establishment to show cause within three months' time as to why its registration under this Act should not be cancelled for the reasons to be mentioned in the notice.

(2) If after giving a reasonable opportunity to the clinical establishment, the authority is satisfied that there has been a breach of any of the provisions of this Act or the rules made thereunder, it may, by an order, without prejudice to any other action that it may take against such clinical establishment, cancel its registration;

(3) Every order made under sub-section (2) shall take effect-

(a) where no appeal has been preferred against such order immediately on the expiry of the period prescribed for such appeal; and

(b) where such appeal ha been preferred and it has been dismissed from the date of the order of such dismissal:

Provided that the authority, after cancellation of registration for reasons to be recorded in writing, may restrain immediately the clinical establishment from carrying on if there is imminent danger to the health and safety of patients."

From the conjoint reading of the sections referred to above what emerges is that the "authority" is the Committee constituted under section 10 of the Act, 2010 in which the District Collector is the Chairperson and the District Health Officer or the Chief Medical Officer (by whatever name called), shall exercise the powers of the authority as per procedure that may be prescribed. This means that for the purpose of provisional registration of clinical establishment this is the Committee which will consider whether registration has to be granted or not. Thereafter the registration itself will be granted by the "authority" i.e. the Chief Medical Officer.

Section 32 of the Act, 2010 also refers to the "authority" which means the Chief Medical Officer, who is the competent authority to cancel the registration of the clinical establishment.

In the present case the impugned order has been passed by the Additional Chief Medical Officer. Section 10 or Section 32 or any other section of the Act, 2010 does not provide for delegation of powers to act as the Chief Medical Officer. Therefore, the impugned order passed by the Additional Chief Medical Officer is without jurisdiction and is liable to be set aside on this ground alone.

We further find that sub-section (1) of Section 32 provides that three months' notice shall be given to the clinical establishment to show cause as to why its registration under this Act may not be cancelled. In the present case admittedly no notice was given to the petitioner's establishment before the impugned order was passed by the Additional Chief Medical Officer, therefore, the impugned order is bad in law.

Learned standing counsel further submits that the registration of the petitioner's clinical establishment was valid upto 31st March, 2019. Be that as it may, the impugned order is liable to be set aside for the reasons mentioned above.

For the reasons aforesaid, we set aside the impugned order dated 31.1.2019. The writ petition succeeds and is allowed. However, it will be open to the authorities to take action against the petitioner in accordance with law.

Learned counsel for the petitioner then submits that the petitioner's clinical establishment cannot function unless it applies for renewal or fresh registration as provided under section 22 of the Act, 2010. We therefore, simply observe that it will be open to the petitioner to apply for renewal or fresh registration, as the case may be, in accordance with law.

Order Date :- 22.4.2019

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