Bombay High Court
Pratibha Shinde President Lok ... vs Principal Secretary Public ... on 27 January, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
1 PIL-25-2020 J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION NO. 25 OF 2020
1. Pratibha Shinde
President Lok Sangharsh Morcha,
33-B, Near Ambedkar Market,
Next to Sai Mandir, Swatantray Chowk,
Jalgaon ...Petitioner No. 1
2 Kamlabai Devidas Birhade,
Sai Gajanan Nagar, Paroda Road,
Amarner, Dist: Jalgaon ...Petitioner No. 2
3. Rafik Tadvi,
At Post Utkheda
Tehsil Raver, Dist Jalgaon ...Petitioner No. 3
Versus
1. Principal Secretary, Public Health
Department, State of Maharashtra,
Room No. 108, Mantralaya,
Mumbai, 400 038
2. State of Maharashtra
Through The District Collector,
Office of the District Collector,
Jalgaon
3. State of Maharashtra
Through the Deputy Collector
Jalgaon, Maharashtra
4. Civil Hospital & Government Medical
College, Jalgaon, Maharashtra.
5. Chief Executive Officer & Administrator
Civil Hospital & Government Medical
College, Zilla Parishad, Jalgaon,
Near Shivaji Nagar Railway Bridge,
Jalgaon
6. District Civil Surgeon,
District Hospital, Jalgaon, Maharashtra
::: Uploaded on - 27/01/2021 ::: Downloaded on - 09/02/2021 01:07:38 :::
2 PIL-25-2020 J
7. Commissioner, (Health Services)
National Rural Health Mission,
Arogya Bhavan, Mumbai
8. Superintendent of Police, Jalgaon
7, Jilha Peth, MG Road, Jalgaon
Maharashtra 425 001
9. Jilha Peth Police Station, Jalgaon
Through its Senior Police Inspector,
Bhaskar Market Road, Jalgaon
10. Maharashtra Disaster Management Authority,
through the Director
The Maharashtra Disaster Management Unit,
Relief and Rehabilitation Department,
Mantralaya, Mumbai - 400 23
11. Union of India,
Through the Ministry of Health & Family
Welfare, 4th Floor, Aaykar Bhavan,
M.I. Road, Mumbai ...Respondents
Ms Gayatri Singh, Senior Counsel i/by
Mr Ankit Kulkarni, Advocate for Petitioners
Mr P.S. Patil, Additional Government Pleader for
Respondent Nos. 1 to 10
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
DATE OF RESERVATION : 28.10.2020
DATE OF PRONOUNCEMENT : 27.01.2021
JUDGMENT : ( PER SHRIKANT D. KULKARNI, J. )
1. On March, 11, 2020, the World Health Organization declared
COVID-19 a pandemic. In India too, the Government of India has also
termed COVID-19 as a pandemic. The on going global Corona virus
disease ("COVID" ) has affected millions of persons around the world. In
3 PIL-25-2020 J
order to save precious lives, a public spirited Non-Government
Organization acting in concert with two persons from Jalgaon have filed
this PIL raising grievances in the matter of Covid-19 pandemic focusing
light on mismanagement, negligence, etc. at Government Medical College
and Civil Hospital at Jalgaon endangering lives of Covid-19 positive and
suspected patients.
2. The petitioners are seeking following directions :-
A. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
pay compensation to the family of late Malati Mehete to the
tune of Rs. 50 lacs and damages due to the negligence and
dereliction on the part of the Hospital and District administration
leading to the unfortunate demise of late Malati Nehete.
B. That this Hon'ble Court be pleased to call for the papers
and proceedings pertaining to the demise of late Malati Nehete
at Civil Hospital and initiate a high level enquiry under the
Chairmanship of the Chief Secretary, State of Maharashtra or
any other higth level officer as this Hon'ble Court may deem fit,
against the erstwhile Dean, Dr. Bhaskar Khaire, the
administrative head of the Civil Hospital and Dr. Kiran M. Patil,
the head of Operations of the Civil Hospital and all other
officers and staff responsible for the unfortunate death of late
Malati Nehete including the negligence on the part of the
concerned police officers who failed to locate the body of late
Malati Nehete even though the same was lying within the toilet
of Ward No. 7 itself.
4 PIL-25-2020 J
C. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ order or direction in
the nature of mandamus directing the Respondent police
authorities to include the erstwhile Dean, Dr. Bhaskar Khaire,
the administrative head of the Civil Hospital and Dr. Kiran M.
Patil, the head of Operations of the Civil Hospital as accused in
FIR No. 228 of 2020 lodged at Jilha Peth Police Station.
D. That this Hon'ble Court be pleased to initiate a high level
enquiry into the deaths caused in the Civil Hospital due to
negligence of the Civil Hospital Administration as well as
harassment caused to suspected patients who were negligently
admitted in COVID positive Ward by the hospital administration
and provide them with compensation and damages as deemed
fit by this Hon'ble Court.
E. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
set up a task force to guide the hospital administration in
treating the COVID 019 patients and follow the several
protocals and guidelines issued by ICMR and MOH&FW
including the 'Guidelines for Setting up a COVID Facility Ward'
annexed to this Petition as Exhibit "" so that proper care is
taken for isolation of the COVID wards and patients are
admitted in the designated wards (Positive and Suspected)
Wards after due diligence and application of mind and with a
view to ensure that Entry and Exit to the COVID wards is not
unregulated.
F. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
ensure that nurse patient ratio as prescribed in the Minimum
5 PIL-25-2020 J
standards for ICUS (intensive care units) to be adopted
throughout the country' prescribed by All India Institute of
Medical Sciences is scrupulously adhered to and provided in
the COVID wards of the Civil Hospital.
G. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
ensure sufficient and timely sanitization of the hospital premises
and that the toilets, floors and washrooms are well maintained,
cleaned and sanitized atleast twice in a day.
H. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
provide adequate number of wheelchairs, ventilators, portable
X-ray machines and set-up a Centralized Oxygen facility for
proper treatment and care of the COVID patients admitted in
the Civil Hospital.
I. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
set-up CCTV cameras and make them functional in every ward
of the hospital at a feasible place with a view to monitor the
movement and development of the patients as well as with a
view to maintain a record to increase accountability amongst
the medical and para-medical staff.
J. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
set-up a Centralized Common Counter in a Non-COVID area
where all formalities and documentation process for admission
6 PIL-25-2020 J
of a patient can be carried out and daily updates or other
information can be provided to the relatives or people
concerned with a view to dis-incentivize the relatives of the
patients to enter the COVID affected areas.
K. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
display a list of the attending doctors and nurses alongside the
wards wherein their duties have been assigned.
L. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
ensure that the Non COVID patients are not made to pay
inflated prices at Ulhas Patil Medical College & General
Hospital and same charges are levied as were being levied
earlier at the Civil Hospital and all benefits of the Government
schemes be extended to such Non-COVID patients undergoing
treatment at Ulhas Patil Medical College & General Hospital.
M. That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction in
the nature of mandamus directing the Respondent authorities to
take necessary steps by constructing bunds or otherwise so as
to prevent any further inundation of Ulhas Hospital.
7 PIL-25-2020 J
BB. This Hon'ble Court be pleased to pass such further
directions as this Hon'ble Court may deem fit in the interest of
justice.
3. The PIL on hand deals with following subjects -
- Mismanagement, negligence and dereliction of duties while treating
Covid-19 patients -
- The mismanagement, negligence, dereliction of duties and non-
provision of necessary health care at civil hospital and Government
Medical College, which is the only Government covid dedicated hospital at
Jalgaon. There was shocking increase in mortality rate of covid-19 patients
in the above said dedicated hospital. Even though Ganpati Hospital and
Ulhas Medical College, Godavari Hospital declared as covid hospitals,
maximum number of covid-19 patients are admitted in civil hospital.
Non-implementation of ICMR Guidelines -
- ICMR has issued guidelines to treat covid-19 patients. The
protocols were not adhered to. Minimum standard is not maintained while
treating covid-19 patients in the ICU.
Guidelines for quarantine facilities -
- The guidelines were issued by the ICMR to provide quarantine
facilities which mainly deals with isolation and segregation of covid
suspects from the confirmed cases at entry and exit points at the hospital.
8 PIL-25-2020 J
4. We have heard Ms Gayatri Singh, learned senior counsel
instructed by Mr Ankit Kulkarni, learned Counsel for the petitioners and
Mr P.S. Patil, the learned Additional Government Pleader for the
State/Respondent at length.
Argument of Petitioners Advocate -
5. Ms Gayatri Singh, learned senior counsel for the petitioners
invited our attention to a news item published in the Times of India.
Central team asks Jalgaon admin to lower death rate
TNN|Jun 21, 2020, 04.16 AM IST
Nashik: A two-member team of the Union ministry of health and
family welfare (MoHFW) has directed the Jalgaon
administration to conduct more tests and work overtime to bring
down the high Covid-19 mortality rate in the district. BJP MP
Raksha Khadse had requested the ministry to send the team to
handhold the local administration to deal with Covid-19 issues.
Subsequently, the ministry had sent the team to Jalgaon to
ascertain the reasons for the constant spike in Covid-19 cases
as well as high death rate.
The team, led by the ministry's senior regional director
Dr. Arvind Alone, held a meeting with the district administration
officials, elected representatives and Indian Medical Association
(MA) functionaries at the district collectorate office on Saturday.
The team visited some containment zones in Jalgaon city and
also inspected the Jalgaon medical college and hospital where
an elderly woman infected with Covid-19 had allegedly died in
the toilet block and body was recovered five days later.
9 PIL-25-2020 J
Khadse, who attended the deliberations, told TOI that the
district administration has been told to ensure that lab reports of
the swab tests should be made available at the earliest so that
treatment can start without any delay.
"I have observed that in several cases in the past, lab reports
came after 36 hours," Khadse said, adding that the patients
must get proper facilities at Covid hospitals.
According to Khadse, the administration has been directed to
undertake micro-level planning to prevent the spread of the
infection.
Jalgaon has emerged as one of the major coronavirus hotspots
in the state and has one of the highest Covid-related mortality
rate.
At present, the total number of Covid-19 patients in the district
stands at 2,149 with over 159 deaths. A total of over 1,250
patients have recovered from the illness.
(emphasis supplied)
6. Ms Gayatri Singh, learned senior counsel for the petitioners also
invited our attention to the guidelines issued by the ICMR. It is submitted
that Jalgaon Civil Hospital was declared as a covid-19 dedicated hospital.
There were guidelines and protocols which were required to adhere while
treating covid-19 patients. There was mismanagement, negligence and
dereliction of duties while providing medical treatment to covid-19 patients
at the civil hospital and Government Medical College, Jalgaon. It resulted
into increase in mortality rate. Even though two private hospitals namely,
Ganpati Hospital and Ulhas Medical College Godavari Hospital are
declared as covid hospitals, maximum number of patients are admitted to
10 PIL-25-2020 J
the civil hospital by virtue of it being the only Government covid-19
hospital. At the time of filing petition, there were 1540 covid-19 patients
whereas at present i.e. while making submissions, there are more than
35511 confirmed cases.
7. According to ICMR guidelines, a building for covid-19 dedicated
health facility sets out pre-requisits with regard to setting up of isolated
facilities, cleaning facilities, adequate floor space for beds, protective
environment measures, adequate ventilation. According to Ms Gayatri
Singh, learned senior counsel, the guidelines and protocol were not
adhered to while treating covid-19 patients and covid-19 suspects. It is
submitted that the authorities at the hospital have turned a complete blind
eye towards the guidelines and protocols issued by ICMR. Even though
advertisement for recruitment of doctors is issued, no adequate doctors
and staff is provided. No sufficient health workers are on duty simply
stating that ICMR guidelines have been complied with by the officials at
covid-19 civil hospital not any way help to the State authorities. Ms Gayatri
Singh, learned senior counsel invited our attention to specific instances
regarding malfastening of civil hospital particularly protocols of toilet at civil
hospital, Jalgaon, patients lying in the wards flooded with waters at Ulhas
Hospital at Jalgaon. The son of petitioner No. 2 feeding his father, a covid-
19 positive patient in the ward which is required to be in isolation. Wife of
petitioner No. 3 is covered under Surakshit Maitrithva Yojna under the
scheme of Adavasi of Talwi community was charged Rs.33,600/- towards
her delivery at Ulhas Hospital. Bhimrao Sonawane, belongs to Scheduled
Caste and eligible under the Antyodaya Govt. Health Scheme not
11 PIL-25-2020 J
extended benefits. Similar is the case of Jyoti Prlahad Gehi, who covered
under the scheme charged with exorbitant medical bill by Ulhas Hospital.
8. There was lack of wheel chairs, portable x-ray machines. No
sanitization and cleaning of toilets, no regular monitoring of patients, no
rounds of doctors, no waiting room for covid-19 patients, covid-19
suspects and confirmed covid-19 patients are being mixed-up for want of
isolation wards and restriction of entry, at entry and exit point.
9. Ms Gayatri Singh, learned senior counsel further invited our
attention to gross negligence while treating covid-19 patient Malati Nehete.
She was 82 years old and shifted from Railway Hospital, Bhusawal to
coivd-19 civil hospital Jalgaon on 01.06.2020. Her oxygen level was
below 70% at the time of admission. At the time of shifting from Bhusawal,
her medical reports were sent along with letter which shows she was
covid-19 positive patient. Being a serious case of covid-19, she was
required to be admitted in ICU ward, but she was admitted in general ward
No. 7 though beds in the ICU were available. No emergency services were
provided in the general ward. She went missing on 2 nd June, 2020, and
there were conflicting and misleading information given by the senior
officers to the relatives of late Malati Nehete. Missing report was filed
without conducting any search. Her dead body was found in decompose
state after 8 days i.e. on 10 th June, 2020 in a toilet of the same general
ward No. 7.
10. There was public outcry because of such unfortunate death of
a old aged lady suffering from covid-19. The Committee was set up under
12 PIL-25-2020 J
erstwhile Dean Dr. Bhaskar Khaire only on 6th June, 2020 after public
outrage. The FIR came to be lodged vide C.R. No.228/2020 on
10.06.2020. Instead of making senior doctors and high level officers
responsible and accountable, the junior doctors and health workers were
made a scapegoat. At the relevant time, erstwhile Dean Dr. Bhaskar
Khaire and Dr. Kiran M. Patil were administrative head of the operations.
Their names do not find place in the FIR, even though District Civil
Surgeon has given report to that effect dated 11.06.2020 holding them to
be prima facie guilty of negligence and dereliction of duties. No attempt
was made to conduct inquest on the dead body of Malati Nehete. No
enquiry was conducted under section 176(1) and section 174(1) and (4) of
Cr.P.C.
11. By relying upon aforesaid circumstances and specific instances,
Ms Gayatri Singh learned senior counsel for the petitioners vehemently
submitted that the family members of late Malati Nehete are entitled to get
compensation. A separate affidavit has been filed by Harshal Nehete, who
happens to be a grand son of late Malati Nehete. Erstwhile Dean
Dr. Bhaskar Khaire and Dr. Kiran M. Patil, the Administrative Head of the
Operations need to be arraigned as accused in FIR No. 228/2020 to
implement and complement recommendations made in the death audit
report. It is absolutely necessary to adhere to the guidelines issued by
ICMR to make applicable and implement benefits of government schemes
to the unprivileged class in the private hospitals acquired by the State
Government.
13 PIL-25-2020 J
12. While answering to the question of maintainability of this
petition, wherein compensation is sought, Ms Gayatri Singh, learned
senior counsel for the petitioners invited our attention to -
(i) Paschim Banga Khet Mazdoor Samity and others Vs. State
of W.B. and Anr. reported in (1996) 4 SCC 37,
(ii) Rudal Sah Vs. State of Bihar and Anr. reported in (1983) 4
SCC 141 and,
(iii) Court on its Own Motion Vs. Govt. of NCT of Delhi and
others reported in 2018 SCC online Del 10283.
13. By taking help of above set of citations, Ms Gayatri Singh,
learned senior counsel submitted that there is no legal impediment to
entertain this PIL wherein compensation is sought by the heir of late
Malati Nehete, a covid-19 patient died because of negligence of the
administration of civil hospital at Jalgaon.
14. Ms Gayatri Singh, learned senior counsel also placed her
reliance on following citations in support of her argument.
(i) Union of India Vs. Moolchand Kharaiti Ram Trust reported
in 2018 (8) SCC 321,
(ii) Citizen Forum for Equality Vs. The State of Maharashtra
and others, order dated 01.06.2020 passed by the Division
Bench at Nagpur in LD - VC - Public Interest Litigation No.
12 of 2020.
Argument of Additional Government Pleader -
14 PIL-25-2020 J
15. Mr P.S. Patil, learned Additional Government Pleader for the
State/Respondents per contra submitted that present PIL is not at all
maintainable. PIL is not in interest for public at large. The family members
of late Malati Nehete are well educated and they are very much able to
invoke legal remedy for compensation if they desire. The relatives/heirs of
late Malati Nehete are not parties just to make this PIL maintainable.
16. Mr Patil, learned Additional Government Pleader further
submitted that the State Government has already taken action against the
concerned persons in respect of alleged negligence and dereliction in
duty. The concerned persons have been suspended and departmental
enquiry has been initiated against them. The FIR has been registered.
Now, it is for the Police Officer to conduct investigation and add accused if
evidence is found during the investigation. As such, the prayer clause (B),
(C) and (D) made in the PIL could not be entertained in view of above
factual scenario.
17. Mr Patil, learned Additional Government Pleader further invited
our attention to the directions given in suo moto criminal PIL No. 1/2020
in the case of The Registrar (Judicial), High Court of Judicature of
Bombay, Bench at Aurangabad Vs. The Union of India and Citizen
Forum for Equality Vs. State of Maharashtra and Ors., Division Bench
at Nagpur, the order dated 1st June, 2020 and judgment delivered by the
Division Bench of this Court at Principal Seat in PIL-CJ-DC-VC-21/2020
Jan Swasthya Abhiyan and Ors. Vs. State of Maharashtra and others
connected matters and Suo Moto PIL No. 4 of 2020 and writ petition
15 PIL-25-2020 J
Stamp No. 8050 of 2020 in the case of Court on its own motion and
Ors. Vs. Union of India and Ors. Division Bench at Nagpur, the order
dated 28.10.2020.
18. By taking help of above said decisions of this Court, the
learned Additional Government Pleader submitted that practically all the
grievances have been considered in the above said decisions of this Court
and there is no need to issue any more directions. The State is
implementing those directions in letter and spirit. The guidelines and
protocol prescribed by the ICMR is also followed. Now, the graph of covid-
19 patients is coming down in view of the measures taken by the
authorities.
19. To buttress the argument, Mr Patil, learned Additional
Government Pleader has placed his reliance on following citations :-
(i) Dattaraj Nathuji Thaware Vs. State of Maharashtra reported
in (2005) 1 SCC 590
(ii) Ashok Kumar Pandey Vs. State of West Bengal reported in
(2004) 3 SCC 349.
(iii) Mrinall Shashi Shekhar Vs. Election Commission of India
reported in (2020) Mh.L.J. 402.
(iv) Suo moto criminal PIL No. 1/2020 (The Registrar Judicial,
High Court of Judicature at Bombay, Bench at Aurangabad
Vs. Union of India and others).
20. Mr Patil, learned Additional Government Pleader submitted that
death of Malati Nehete, a 82 years old patient of covid-19 at Government
Medical College and Hospital at Jalgaon is an unfortunate incident.
16 PIL-25-2020 J
Mr Patil, gave factual scenario as to how death of Malati Nehete took
place. He submitted that Malati Nehete was admitted at Government
Hospital at Jalgaon in highly critical condition. Even though medical papers
were received from Railway Hospital, Bhusawal, no report of infection of
covid-19 was attached. As soon as it is noticed by the hospital that
patient's oxygen SPO2 level is reducing, her bed was converted into ICU
bed for providing oxygen facility. Necessary medical treatment was
provided to the patient. On 02.06.2020 at 2.00 p.m. it is noticed by staff
nurse that patient was not on her bed and not even found in the ward after
taking search, the concerned employees were under bona fide impression
believed that patient might have left the ward without intimating any body
as such instances occurred in Jalgaon District at that time. The incident
was reported to Police Station on the very day. On 10.06.2020, dead body
of Malati Nehete was found in the toilet of the ward. The Dean directed to
Registrar FIR against the negligent persons and accordingly C.R. No.
228/2020 came to be registered at Zilla Peth Police Station. Three
Members Committee was constituted. The Committee has submitted its
report. The departmental enquiry has been initiated against the
responsible officer and in pursuance to that, two other persons have been
suspended and departmental enquiry has been initiated. Devidas Biradhe,
a 60 years old patient was admitted in critical condition. He was diabatic
and ischemic heart disease patient. The medical treatment was provided
to the patient and there was absolutely no negligence in providing medical
treatment. There is no substance in the allegations that ventilator was not
provided to the patient. The patient was put on ventilator on 28.10.2020 at
17 PIL-25-2020 J
2.30 p.m. but unfortunately he succumbed to death.
21. The death of Ayub Khan is also unfortunate. The enquiry has
been initiated under the Head of H.O.D. Dr M.P. Pote, who has submitted
the report.
22. Mr Patil, learned Additional Government Pleader submitted that
necessary steps have been taken by the district administration to to fill-up
the post of doctors, staff nurse and other para-medical staff and
advertisement came to be issued to that effect. One more step has been
taken and 16 doctors and 17 nurses/staff came to be transferred to other
medical colleges.
23. Mr Patil, learned Additional Government Pleader also invited
our attention to the affidavit and additional affidavit sworn in by the Chief
Administrative Officer, Government Medical College and Hospital, Jalgaon.
The affidavit sworn in by the District Collector, Jalgaon. He submitted that
district administration has taken all necessary steps to overcome the
lapses. The guidelines and protocol prescribed by ICMR are being
followed strictly and that is why graph of covid-19 patient has been
reduced.
24. We have considered the submissions of learned senior counsel
Ms Gayatri Singh for the petitioners and Mr P.S. Patil, Additional
Government Pleader for the State/Respondent. We have also perused the
affidavit sworn in by the District Collector, Jalgaon, Chief Administrative
Officer, Government Medical College and Hospital, Jalgaon and District
18 PIL-25-2020 J
Civil Surgeon, Jalgaon. We have perused the report submitted by the
three Members Enquiry Committee as well as other papers relied upon by
both the sides.
25. The legal position for entertaining the PIL is no more res-
intergra. In case of Dattaraj Vs. The State of Maharashtra (supra), it is
held by Hon'ble Supreme Court that PIL needs to be admitted with great a
care considering the factors involved therein. It is duty of Courts to
entertain PIL for redressal only of genuine public grounds or injury and
shall not entertain the petition for redressal of private, publicity oriented or
political dispute or another dispute not genuinely concerned with the public
interest. The Court has to be extremely careful that it does not encroach
upon sphere reserved by the Constitution for the executive and legislature.
A person acting bona fide and having sufficient interest in the proceeding
of PIL will alone have a locus-standi and can approach the Court to wipe
out violation of fundamental rights and genuine infraction of statutory
provisions, but not for personal gain or private profit or political motive or
any oblique consideration. In case of Ashok Kumar Pandey Vs. State of
West Bengal (supra), it is held by Hon'ble Supreme Court that Court has
to be satisfied about the -
(a) the credentials of the applicant,
(b) the prima facie correctness or nature of information given by
him; and
(c) the information being not vague and indefinite. The
information should show gravity and seriousness involved. It is
further held by the Hon'ble Supreme Court that PIL shall not be
entertained in service matters.
19 PIL-25-2020 J
26. In case of Mrinall Shashi Shekhar Vs. Election Commission
of India (supra), it is held by the Division Bench of this Court at Nagpur
that we cannot entertain the PIL styled as PIL questioning the
constitutionality or validity of the statute or statutory rule.
27. At the outset, it would be relevant and important to place on
record that the Division Bench of this Court at Principal Seat in case of
Jan Swasthya Abhiyan and Ors. Vs. State of Maharashtra and other
connected matters vide judgment dated 12.06.2020, the Division Bench
of this Court, Bench at Aurangabad in case of Registrar, Judicial (High
Court of Judicature at Bombay, Bench at Aurangabad) in suo moto
Criminal PIL No. 1/2020 and the Division Bench at Nagpur in the case of
Citizen Forum for Equality Vs. State of Maharashtra, Division Bench
at Nagpur, vide order dated 1 st June, 2020 have issued various
directions to the State and competent authorities to take certain
emergency measures to prevent the spread of covid-19 virus in view of
provisions of the Epidemic Diseases Act, 1897 and Disaster Management
Act, 2005. Most of the directions sought in this PIL have been covered by
the decisions of Division Benches referred to herein above. It would not
be only advantages but helpful while deciding the PIL on hand.
28. First, we shall deal with the question of maintainability of this
PIL in view of the serious objection raised by the Additional Government
Pleader. We have considered the submissions of both the sides on the
point of maintainability of the PIL as well as considered citations relied
upon by both the sides. The legal position is now well settled for
20 PIL-25-2020 J
entertaining the PIL. The PIL needs to maintain purity and sanctity.
Bonafide PIL is to be encouraged while PIL filed for extraneous
considerations is to be discouraged. The Hon'ble Supreme Court has laid
down guidelines in case of State of Uttaranchal Vs. Balwant Singh
Chaufal and others reported in (2010) 3 SCC 402, it is held by the
Hon'ble Supreme Court that PIL available only where larger public interest
is involved and matter is so great and urgent that it must take precedents
over other matters. The Court should prima facie verify the credentials of
the petitioner before entertaining a PIL. The Court should be fully satisfied
that substantial public interest is involved before entertaining the petition.
The cause in a PIL is aimed at redressal of genuine public harm or public
injury.
29. The PIL on hand relates to covid-19 pandemic. Many
grievances have been raised in this PIL regarding mismanagement,
negligence and shortcomings at Jalgaon Civil Hospital endangering the
lives of covid positive and suspected patients. Non-adherence of ICMR
guidelines while treating covid-19 patients and suspected patients. On
careful scrutiny of the PIL on hand, it appears to be genuine cause for
public at large, especially raising concern about medical treatment of
covid-19 patients at Jalgaon Civil Hospital. It seems to be a bona fide
public interest litigation focusing light on the insensitivity of doctors, staff
and para medical services at the Jalgaon Civil Hospital.
30. Mr Patil, learned Additional Government Pleader strenuously
argued that in the instant PIL, the compensation is sought on account of
21 PIL-25-2020 J
death of one covid-19 patient, Malati Nehete. According to Mr Patil,
compensation cannot be awarded in a PIL. It is for the legal heirs of late
Malati Nehete to prosecute the remedy for compensation and not by taking
help of this petition.
31. Right to life is guaranteed under Article 21 of the Constitution of
India. Right to health i.e. right to live in a clean, hygienic and safe
environment is a right flowing from Article 21 of the Constitution as held,
the Hon'ble Supreme Court in case of Occupational Health and Safety
Association Vs. Union of India reported in AIR 2014 SC 1469. It is the
duty of the Government Hospital to provide timely medical treatment to a
patient in a need of such treatment.
32. Failure on the part of the Government Medical Hospital to
provide immediate medical treatment to a patient amounts to violation of
Article 21 of the Constitution which relates to right to life. In case of Pt.
Permanand Katara Vs. Union of India reported in AIR 1989 SC 2039, it
is held by the Hon'ble Supreme Court that failure on the part of the
Government Hospital to provide timely medical treatment to a patient in
need of such treatment amounts to violation of right to life.
33. In case of Smt. Nilabati Behera alias Lalita Behera Vs. State
of Orissa and others reported in AIR 1993 SC 1960, it is held by the
Hon'ble Supreme Court as under :-
A claim in public law for compensation for
contravention of human rights and fundamental freedoms, the
protection of which is guaranteed in the Constitution is an
acknowledged remedy for enforcement and protection of such
22 PIL-25-2020 J
rights, and such a claim based on strict liability made by
resorting to a constitutional remedy provided for the
enforcement of a fundamental right is distinct from, and in
addition to, the remedy in private law for damages for the tort
resulting from the contravention of the fundamental right. The
defence of sovereign immunity being inapplicable, and alien to
the concept of guarantee of fundamental rights, there can be no
question of such a defence being available in the constitutional
remedy. It is this principle which justifies award of monetary
compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only
practicable mode of redress available for the contravention
made by the State or its servants in the purported exercise of
their powers, and enforcement of the fundamental right is
claimed by resort to the remedy in public law under the
Constitution by recourse to Arts. 32 and 226 of the Constitution.
The Supreme Court is not helpless and the wide
powers given to it by Art. 32, which itself is a fundamental right,
imposes a constitutional obligation on it to forge new tools,
which may be necessary for doing complete justice and
enforcing the fundamental rights guaranteed in the Constitution,
which enable the award of monetary compensation in
appropriate cases, where that is the only mode of redrerss
available. The power available to the Court under Art. 142 is
also an enabling provision in this behalf. The contrary view
would not merely render the court powerless and the
constitutional guarantee a mirage, but may, in certain
situations, be an incentive to extinguish life, if for the extreme
contravention the court is powerless to grant any relief against
the State, except by punishment of the wrongdoer for the
resulting offence, and recovery of damages under private law,
by the ordinary process. If the guarantee that deprivation of life
and personal liberty cannot be made except in accordance with
23 PIL-25-2020 J
law, is to be real, the enforcement of the right in case of every
contravention must also be possible in the constitutional
scheme, the mode of redress being that which is appropriate in
the facts of each case. This remedy in public law has to be
more readily available when invoked by the havenots, who are
not possessed of the wherewithal for enforcement of their rights
in private law, even though its exercise is to be tempered by
judicial restraint to avoid circumvention of private law remedies,
were more appropriate.
34. The Hon'ble Supreme Court has referred to various decisions
including the case of Rudal Sha Vs. State of Bihar reported in AIR 1983
SC 1086. In the case of Smt. Nilabati Behera (supra), the Hon'ble
Supreme Court was pleased to award compensation quantified at
Rs.1,50,000/- to the victim-claimant taking the proceeding.
35. Having regard to the legal position made clear by the Hon'ble
Supreme Court in the case of Smt. Nilabati Behera (supra), instant PIL is
certainly maintainable wherein compensation is sought on account of
death of covid-19 patient Malati Nehete. It was unfortunate death of Malati
Nehete in a Civil Hospital at Jalgaon when medical treatment was being
provided to her as a confirmed covid-19 patient. In case of the Court on
its Own Motion Vs. Govt. of NCT of Delhi and others reported in 2018
SCC online Del 10283, it is held by the Division Bench of the Delhi High
Court that it is obligatory on the part of the High Court to award
compensation for infringement of fundamental rights in exercising of
jurisdiction under Article 226 of the Constitution of India.
24 PIL-25-2020 J
36. The High Court being the protector of civil liberties of the
citizens, has not only the power and jurisdiction but also an obligation to
grant relief in exercising of its jurisdiction vested under Article 226 of the
Constitution of India to the victims or the heirs of the victim, whose
fundamental rights under Article 226 of the Constitution of India are
established to have a flagrantly infringed by calling upon the State to repair
damage done by its own officers to the fundamental rights of the citizens
irrespective of individual remedy by way of civil suit or criminal case
available to them.
37. Certainly, we do not find any defect in maintaining the present
PIL. We are not convinced by the argument advanced by the learned
Additional Government Pleader on the point of maintainability of this
petition.
38. Now, coming to various directions sought by the petitioners to
the State/Authorities, prayer clause (A) relates to compensation on
account of unfortunate death of Malati Nehete, a covind-19 patient that
prayer would be dealt with subsequently.
39. Prayer (B), (C) and (D) relate to initiate high level enquiry under
the Chairmanship of Chief Secretary or any other high level officer against
the erstwhile Dean Dr. Bhaskar Khaire, Dr. Kiran M. Patil, Administrative
Head of the Operations of Civil Hospital, Jalgaon and other officers and
staff responsible for the unfortunate death of late Malati Nehete including
negligence, FIR against the above said doctors and concerned default
officers and action against the hospital administration.
25 PIL-25-2020 J
40. Mr Gajendra Govindrao Dighavkar, presently working as Chief
Administrative Officer, Government Medical College and Hospital, Jalgaon
has sworn affidavit on behalf of respondent Nos. 4 and 5 and para No. 18
of his affidavit throws light on this which reads thus -
18. I say and submit that, as the New items were published in
news papers and cognizance of death of late Malti Nehte had
been taken by some news channels also. Therefore, the
Principal Secretary of Medical Education and Drugs
Department Mantralaya, Mumbai, by Order dated 11.06.2020
initiated departmental enquiry against the then Dean Dr. Khaire,
Assistant Professor Dr. Suyog Chaudhari and one Kalpana
Dhanakar, who is junior President Doctor. The copy of the
Order dated 11.06.2020 is annexed herewith and marked as
EXHIBIT 'R-10' to the present affidavit in reply. In pursuance to
the Order these persons came to be suspended and now
departmental enquiry is proposed against them for the alleged
incident of negligence and dereliction in the duty.
41. Mr Abhijit Rajendra Raut, presently working as District Collector
at Jalgaon has filed affidavit in the capacity of respondent No. 2. Para Nos.
13, 15 and 16 of affidavit which read thus -
13. I say and submit that, further then Dean of Government
Medical College, Jalgaon, Dr. Bhaskar Khaire appointed 3 man
enquiry committee of Heads of the various departments to
conduct the enquiry and thereafter the then Dean Dr. Khaire
directed to file another F.I.R. on 10.06.2020 which is registered
as F.I.R. No. 288/2020 at Zilla Peth Police Station.
15. I say and submit that, by taking serious cognizance of the
report submitted by then District Collector, Shri. Dr. Avinash
26 PIL-25-2020 J
Dhakane, along with the report of the Civil Surgeon of Jalgaon,
the Principal Secretary of Medical Education and Drug
Department Mantralaya, Mumbai, by its Order suspended the
then Dean Dr. Khaire, Assistant Professor Dr. Suyog Chaudhari
and one Kalpana Dhanakar, who is junior Doctor for their
negligence and dereliction in the duty. The copy of the
suspension order is annexed herewith and marked as EXHIBIT
'R-9' with the present affidavit in reply.
16. I say and submit that, from all the above mentioned fact, it
is crystal clear that, all the concerned authorities have taken
serious note of the unfortunate death of late Malti Nehte and
appropriate action has also been initiated and further the FIR
has been registered with the police to investigate the matter.
42. The copy of the FIR is placed on record along with the affidavit
sworn by the District Collector, Jalgaon. On perusing the same, it is
evident that Dr. Swapnil Chandrakant Kalaskar, Special Medical Officer
has filed FIR on 10.06.2020 at Zilla Peth Police Station, Jalgaon against
the doctors, staff nurses, health workers, ward boy, ward lady and staff,
which were on duty at ward No. 7 of Civil Hospital, Jalgaon at the relevant
dates and time under section 304-A of the IPC. Further, para Nos. 21 and
24 of the affidavit of the District Collector read as under :-
21. I say and submit that, all guide lines given by ICMR,
central government and state government has been strictly
followed. CCTV cameras have already been installed in each
and every Ward and these are in working condition, their daily
backup are been stored regularly; Map of hospital is also has
been displayed at various conspicuous places. Wide publicity
and awareness campaign is also being done through various
departments. I say and submit that, on admission of every
27 PIL-25-2020 J
patient (Covid Suspect as well as Covid Positive patient) they
are being treated according to standard protocol laid by the
ICMR.
24. I say and submit that, all protocol given by the ICMR are
being strictly is being followed and monitored regularly. It is
humbly submitted that, Government of Maharashtra has
appointed Zilha Parishad CEO as the administrator over the
Government Medical College, Jalgaon and various Incident
Commander along with various Nodal Officers has also been
appointed to monitor the overall situations of any Covid Care
Center, Government hospital as well as Government
undertaken hospitals. By my office order I have also appointed
a Special officer to manage the bed availability for Covid
Patients along with the ambulance service management for
Covid Positive as well as Covid Suspect patients too. The
orders of appointment of various officers have been annexed
herewith and it is marked as EXHIBIT 'R-11' to 'R-12' with the
present affidavit in reply.
43. The State has also produced a copy of suspension order dated
11th June, 2020. The departmental enquiry is initiated against the erstwhile
Dean Dr. Bhaskar Khaire, Assistant Professor Dr. Suyog Chaudhari,
Pharmacology and Dr. Kalpana Dhanakwar, Junior Resident Doctor.
44. Having regard to the affidavit sworn by the District Collector,
Jalgaon, it is very much clear that erstwhile Dean Dr. Bhaskar Khaire,
Dr. Kiran M. Patil, Administrative Head of Operations of Civil Hospital,
Jalgaon, Dr. Suyog Chaudhari, Assistant Professor, Pharmacology and
Dr. Kalpana Dhanakwar, Junior Resident Doctor have been suspended.
The departmental enquiry is being initiated against them.
28 PIL-25-2020 J
45. It is further evident from the affidavit sworn by the District
Collector, Jalgaon about enquiry in respect of negligence and dereliction in
duty. Three Members Committee who are heads of various departments to
conduct the enquiry has been set up by the then Dean of the Government
Medical College and Hospital at Jalgaon. The high level enquiry into death
caused in the civil hospital has already been set up. No need to issue
further directions in this regard.
46. So far as the adherence of ICMR guidelines and protocol are
concerned, it is stated in the affidavit sworn by the District Collector,
Jalgaon that they are now strictly adhering to the protocol and guidelines
issued by the ICMR and MOH & FW including the guidelines for setting up
a covid facility ward and non-covid facility ward. The proper care is being
taken for isolation of covid-19 wards and patients are admitted in the
designated wards (positive and suspected) wards after due diligence and
application with a view to restrict the entry and exit to the covid wards.
Further it is evident from the affidavit sworn by the District Collector that
sufficient ventilators, oxygen cylinders are stocked, CCTV cameras have
been installed in the covid-19 wards, the arrangement of ambulance is
made.
47. Having regard to the above discussion and in view of the
directions issued by the Division Bench of this Court, vide Suo Moto
Criminal PIL No. 1/2020 (Registrar, Judicial, High Court of Judicature
at Bombay, Bench at Aurangabad Vs. Union of India and ) dated 18 th
August, 2020, the Division Bench of this Court at Principal Seat in case of
29 PIL-25-2020 J
Jan Swasthya Abhiyan and Ors. Vs. State of Maharashtra and other
connected matters vide judgment dated 12.06.2020, and the Division
Bench at Nagpur in the case of Citizen Forum for Equality Vs. State
of Maharashtra, Division Bench at Nagpur, vide order dated 1 st June,
2020, we are of the considered view that no further directions are
necessary. In order to avoid repetition, we make it clear that directions in
the above PILs shall ipso facto applied to all the respondents in this PIL.
The important directions given by this Division Bench in Suo Moto Criminal
PIL No. 1/2020 are reproduced hereunder for the sake of convenience.
A) TASK FORCE:-
(a) The District Collectors of all districts shall establish a Task
Force, if not already established.
(b) A helpline be created by the District Task Force so as to be
functional 24 hours and enough staff be deployed to respond
to the calls made on such helpline.
(c) Wide publicity be given to the helpline numbers, which would
achieve the purpose of creating the helpline.
(d) Private hospitals, in addition to those already reined in for
treating Covid-19 patients, be requisitioned, by the Task
Force or the Divisional Commissioner or as may be provided
under the policy of the State or any enactment, if the need so
arises.
(e) The task force would endeavour to create parity in the slabs
of rates/ charges of private hospitals who are requisitioned
for extending the treatment to Covid-19 patients.
30 PIL-25-2020 J
(f) Ambulances be requisitioned and deployed in Covid-19 duty.
(g) The charges for utilizing the ambulances belonging to the
Government hospitals should be fixed and wide publicity
should be given so as to prevent instances of overcharging
the patients or their relatives.
(h) Private ambulances shall be requisitioned and the charges
for utilizing private ambulances should be fixed. Wide
publicity shall be given to such private ambulances with
cellphone numbers of those operating such ambulances and
the fixed charges to be paid by the patients/ relatives.
(i) The Task Force or it's Nodal Officers shall deal with the
complaints with regard to the excessive billings by the
private hospitals.
(j) Complaints with regard to force exerted by the private
hospitals on the patients for purchasing more medicines/
injections than the quantity required in the treatment, shall be
dealt with by such task force or the Committee formed for the
said purpose.
(k) Those private hospitals, which are requisitioned for Covid-19
treatment, should be intimated that the director or proprietor
or the head of such hospital, would be held liable for civil and
criminal action, if such hospital refuses to admit a covid-19
patient despite the availability of beds.
(l) Surprise visits to covid response centres be carried out by
the task force.
31 PIL-25-2020 J
(m) Nodal Officers be appointed and nodal points for prevention
of the spread of corona virus and for dissemination of
credible information in respect of availability of beds, etc. be
created.
(n) Maximum publicity be given to the list of private hospitals
and the number of beds earmarked for the treatment of
Covid-19 patients.
(o) Services of private practitioners, if the need so arises, be
requisitioned and they be supplied with PPE kits and
adequate protective gear while being deployed.
(p) The Task Force shall adopt special measures for extending
the facilities of medical counseling and accord wide publicity
so as to encourage citizens to undergo rapid antigen test
and endeavour to eliminate "fear psychosis" in the minds of
suspected patients.
(B) PERSONNEL/STAFF:-
(a) Adequate number of employees should be deployed by the
district administration/ Task Force on Covid-19 duty.
(b) Monthly salary payments of the employees and/or
contractual employees deployed on Covid-19 duty, should
be made on regular basis.
(c) Routine medical tests of the doctors and employees
deployed on Covid-19 duty, should be carried out so as to
safeguard their health in view of they being exposed to the
corona virus infection.
32 PIL-25-2020 J
(d) Absenteeism of and/or lame excuses by the doctors or
employees for evading Covid-19 duty, be dealt with strictly.
(e) Strict disciplinary action be initiated against ineffective, non
performing officials and work shirkers.
(C) INFRASTRUCTURE:-
(a) Sanitization of localities at regular intervals, as may be
desired by the task force, shall be strictly carried out.
(b) Lifting of garbage from the localities shall be carried out on
daily basis.
(c) List of private hospitals requisitioned for Covid-19 duty along
with their telephone numbers, should be given wide publicity.
(d) Besides Government laboratories, private laboratories may
be earmarked and the kits for carrying out rapid antigen test,
RT-PCR test (swab test), etc. shall be made available, as per
the policy of the State Government, for such private
laboratories.
(e) Wide publicity shall be given to the list of laboratories where
different types of corona virus tests are performed.
(f) As far as possible, CCTV systems be installed at the
quarantine centres, covid care centres and covid hospitals.
(g) Nodal officers be appointed at rural levels like villages and
talukas to monitor the prevention of spread of corona virus.
(h) Number of beds earmarked in private hospitals and the
Government hospitals for Covid-19 patients should be
widely publicized and it should be made imperative for
33 PIL-25-2020 J
private hospitals to disclose it's daily occupancy of Covid-19
patients and availability of beds, on it's website.
(i) Wide publicity be given to the websites of the private
hospitals which have been requisitioned for treatment of
Covid-19 patients.
(j) Private hospitals shall ensure that one Principal Officer is
appointed for dealing with Covid-19 wards and the beds
earmarked for treatment.
(k) Supply of oxygen in all parts of the State, naturally inclusive
of the rural areas and villages where public health centres
are available, shall be made in abundance and cases of lack
of oxygen cylinders should be eliminated.
(D) SUPPLY OF FOOD GRAINS:-
Wherever required, as per the policy of the Government:-
(a) Public Distribution System on the lines of the Fair Price Shop
be established or the Fair Price Shops presently available,
may be utilized so as to distribute food grains to the
residents of the containment zones and the weaker sections
of the society.
(b) Recording the details of beneficiaries, by such fair price shop
licencees shall be made mandatory for distribution of grains
in containment zones.
(E) GENERAL :-
(a) Primary health care services at the doorsteps of senior
citizens and people with co-morbidities, ought to be
34 PIL-25-2020 J
provided.
(b) The district administrations should issue press notes for the
correspondents of the newspapers on daily basis. Press
briefing is optional.
(c) Data of Covid-19 positive patients be preserved.
(d) CCTVs be installed at quarantine centres, covid care centres
and covid hospitals.
(e) The fleeing or run-away patients, who have tested corona
positive, be apprehended and be admitted for treatment. If
necessary, they be penalised with fine by way of a
reprimand.
(f) Wearing of masks in public place, observing physical
distancing and complying with lock-down restrictions, shall
be mandatory.
(g) RT-PCR test or any other appropriate test be conducted on
the bodies of those patients, who have died of suspected
corona virus, so as to alert the relatives and all those
persons who had come in contact with such patients, though
the identity of the deceased may not be disclosed.
(h) The Divisional Commissioner shall form committees at
district levels, which shall issue a press-note indicating the
status of the tests carried out, number of positive patients,
number of patients who have tested negative, cured patients,
availability of beds in the Government and private hospitals
(occupancy status), number of deaths due to Covid-19, etc..
35 PIL-25-2020 J
Such press-note may be issued on daily basis, if practicable,
and at least three times in a week.
(i) There shall be no direction to the district administration to
conduct a press-conference and it is left to the Divisional
Commissioner and the district administration to hold such
press conference, if they find it appropriate.
(j) Since the press-note would indicate the details as directed
above, any person, be he of any status, found to have
indulged in spreading rumours or painting a false picture of
the Covid-19 situation, should be dealt with strictly by the
district administration and if permissible in law, offences may
be registered against such individuals under the prevalent
laws including the Epidemic Diseases Act, 1897 and the
Disaster Management Act, 2005. If any employee is
involved, he should be subjected to disciplinary action as
well.
(k) Since Aurangabad has become a model for conducting of
rapid antigen tests on localites and shop/ establishment
owners, the stationed/earmarked laboratories shall be
utilised to enable the people to voluntarily subject
themselves to such a test.
(l) So also, the mobile laboratories for conducting such tests
should be established in order to make it convenient for the
public at large and especially the senior citizens or patients
with co-morbidities, to undergo tests.
36 PIL-25-2020 J
(m) The State and the Districts' Administration shall legally
ensure that doctors, para-medics, employees deployed/
Covid warriors are protected against aggression or
oppression or agitation by any individual or a group of
persons on the ground that they are involved in combating
Covid-19. Private hospitals and private medical practitioners,
pressed into such service, shall be adequately protected.
Rumour mongers claiming that Corona virus spreads due to
doctors/ para-medics or hospitals with Covid-19 wards and
hostilities, by any person howsoever high he may be,
towards Covid-19 warriors, shall be strictly dealt with and
action, permissible in law, shall be initiated.
(n) Notwithstanding all guidelines/ advisories set out
hereinabove, which are not exhaustive, the State/ District
Administrations would be at liberty to introduce such
measures as would be necessary for combating Covid-19.
48. The earlier directions given by this Court are sufficient enough
to take care of apprehensions raised by petitioners. It is also evident from
the affidavit sworn by the District Collector that advertisement has been
issued to appoint doctors, staff nurses and a para medical staff to fill-up
the vacancies and to overcome the shortfalls. All details find place in the
affidavit sworn by District Collector, Jalgaon.
49. Now, coming to unfortunate death of Malati Nehete, aged 82
years, she was suspected covid positive and admitted on 23.05.2020 in
37 PIL-25-2020 J
Railway Hospital at Bhusawal. Her health condition started deteriorating,
and therefore, she was referred to Government Medical College and
Hospital at Jalgaon on 01.06.2020. On 01.06.2020, at about 11.10 a.m.
she was admitted in Government Medical College and Hospital at Jalgaon.
Even though she was tested positive, the swab was collected at
Government Medical College and Hospital at Jalgaon and kept her with
non-covid patients. On 02.06.2020, at about 4.00 p.m. the swab report of
Malati Nehete received and she was confirmed patient of covid-19. At
about 3.30 p.m. the nurse on duty informed to C.M.O. Dr. Asif Shaikh that
patient Malati Nehete is missing. The missing report came to be lodged
with Zilla Peth Police Station. On 10.06.2020, Dr. Kiran Patil informed the
then District Collector of Jalgaon on phone at about 9.30 a.m. that one
dead body was found in the toilet of ward No. 7. In response to the call,
the then District Collector tried to make sure whether the body is of Malati
Nehete, but Dr. Kiran Patil informed that it was not of Malati Nehete. Later
on, at about 10.30 a.m. Dr. Kiran M. Patil again called the then District
Collector, Jalgaon and informed that dead body is of Malati Nehete. The
then District Collector Dr Avinash Dhakne set up a enquiry committee and
submitted report to the Divisional Commissioner, Nashik Division, Nashik
as well as the Chief Secretary, Medical Education and Drugs Department,
State of Maharashtra for taking strict departmental and penal action
against the persons involved and responsible for the negligence.
50. Dr. Nagorao S/o Shivaji Chavan is working as District Civil
Surgeon. He has filed affidavit-in-reply. Relevant part of his affidavit reads
thus -
38 PIL-25-2020 J
7. It is further brought to the attention of the Hon'ble High
Court that, when the unfortunate incident of Malati Nehate
happened, to find out the factual position and enquire in to the
matter, my office made enquiry and called the medical papers
of the patient Malati Nehate and based on the information and
documents supplied by the Dean, Government Medical
College, Jalgaon, I gave my medical opinion and submitted
the report to the Commissioner and Program Director Health
Service Department, Mumbai.
51. The District Civil Surgeon, Civil Hospital, Jalgaon seems to
have conducted the enquiry into the unfortunate death of covid-19 patient
Malati Nehete and submitted his report to the District Collector, Jalgaon
and District Collector, Jalgaon seems to have forwarded his enquiry report
to the Divisional Commissioner, Nashik Division, Nashik.
52. We have also perused the report submitted by the then
Collector, Jalgaon addressed to Divisional Commissioner on 11 th June,
2020. The relevant part of the report reads thus -
dS- ekyrh usgrs ;kauk nk[ky dsysY;k okMkZP;k yxr ,dw.k 05
'kkSpky;s vkgsr- ;k 'kkSpky;kiSdh 01 'kkSpky; gs xsY;k 08
fnolkiaklwu LoPN dsys xsys ukgh o can vkgs rj dk can
vkgs ;kckcr dq.khgh [kk=h dsyh ukgh] gh ckc dq.kkP;kgh
fun'kZukl vkyh ukgh] fdacgquk :X.kky; iz'kklukps ;kdMs
iq.kZr% nqyZ{k >kysys vkgs- dS- ekyrh usgrs ;kaps o; 82 o"ksZ
gksrs o R;kaph izd`rh LFkwy gksrh] R;kauk walker f'kok;
pkyrk ;sr uOgrs- v'kk fLFkrhr R;kauk pkyrk ;sr uOgrs- v'kk
39 PIL-25-2020 J
fLFkrhr R;kauk 'kkSpky;kr tk.;klkBh lgk¸; dj.ks vko';d
gksrs- vkt fn- 10 twu] 2020 jksth 'kkSpky;kpk njoktk rksMyk
rsOgk R;kapk e`rnsg dqtysY;k fLFkrhr feGwu vkyk- ;ko:u dS-
ekyrh usgrs ;kapk e`R;w 08 fnolkaiwohZ >kyk vlY;kps Li"V
gksrs-
rlsp lanfHkZ; i= Øekad 03 vUo;s fnukad 10 twu]
2020 jksth ?kMysY;k ?kVusP;k vuq"kaxkus ;k izdj.kkrhy
fu"dkGthi.kkckcr 'kkldh; oS|fd; egkfo|ky;kps izHkkjh
vf/k"Bkrk MkW- HkkLdj [kSjs] vf/k{kd MkW- fdj.k ikVhy] rlsp ;k
d{kkps izHkkjh MkWDVj lgk- izk/;kid MkW- lq;ksx pkS/kjh] CMO
MkW- vkflQ 'ks[k] T;qfu;j jsflMaV MkW- dYiuk /kudokj ;kapsoj
rkRdkG dBksj iz'kkldh; dkjokbZ dj.ksckcr ek- lfpo] oS|
dh; f'k{k.k o vkS"k/kh nzO;s foHkkx] ea=ky;] eqacbZ ;kauk voxr
dsysys vkgs- rjh lnjpk vgoky ekfgrhlkBh lknj dj.;kr ;sr
vkgs-
53. Having regard to the factual scenario, it is very much clear that
Malati Nehete, a 82 years covid-19 patient was admitted in civil hospital,
Jalgaon on 01.06.2020. Even though, she was covid-19 positive patient,
she was not admitted in the covid ward and she was kept with non-covid
patients. It is gross negligence on the part of the doctors and concerned
staff which were on duty on 01.06.2020. On 02.06.2020, the swab report
was found positive at about 4.00 p.m., by that time at about 3.30 p.m. staff
nurse on duty found that patient Malati Nehete is missing. The dead body
of Malati Nehete covid-19 patient was found on 10.06.2020 in toilet of
40 PIL-25-2020 J
ward No. 7 and that too in decomposed condition. Practically for about 8
days, patient was missing and nobody bothered to take it seriously. Simply
filing of missing report was not sufficient on the part of the hospital
administration. The doctor on duty, resident doctor on duty and staff nurse
were required to take every care of the patient when they had been
rendering medical services. They should be diligent. It is evident that
neither doctors on duty nor staff nurse were monitoring the patient Malati
Nehete covid positive patient. They admitted and kept the patient Malati
Nehete with non-covid patients in the same ward. It is a serious negligence
and violation of ICMR guidelines.
54. The report submitted by the then Collector Dr. Avinash Dhakne/
Chairman, District Disaster Management Committee has submitted report
to the Divisional Commissioner, Nashik Division, Nashik making
responsible erstwhile Dean Dr. Bhaskar Khaire, Dr. Kiran Patil,
Administrative Head of Operations, Dr. Suyog Chaudhari, Assistant
Professor, Pharmacology, Dr. Asif Shaikh, CMO and Dr. Kalpana
Dhanakwar, Junior Resident Doctor, in no ambiguous words, the then
Collector Dr. Avinash Dhakne has pointed finger towards the above said
persons responsible for the unfortunate death of Malati Nehete. It is a case
of negligence of the hospital administration. The above said doctors and
staff nurses on duty prima facie seem to be responsible for the unfortunate
death of Malati Nehete.
55. Having regard to the above factual scenario, we have no
hesitation to hold that it is because of culpable negligence of doctors, staff
41 PIL-25-2020 J
nurses and para medical staff on duty in providing medical treatment,
patient Malati Nehate, met with unfortunate death. The doctors, staff
nurses and para medical on duty failed in their duties to provide best
medical treatment to the patient Malati Nehete and to take care which the
hospital administration was required to.
56. It is needless to state that every doctor whether at government
hospital or private hospital has professional obligation to extend his
medical services with due expertise to protect human life. In a welfare
state, it is the primary duty of the Government to secure welfare of the
people. Providing adequate medical facilities for the people is an essential
part of obligation undertaken by the Government in a welfare State. The
Government discharges this obligation by running hospitals and health
centres, which provide medical care to the persons seeking avail of those
facilities. The preservation of human life is of paramount importance. The
government is duty bound to provide timely care of patients in serious
conditions. Medical facilities and treatment cannot circumvent at any cost.
The people coming to the Government hospital/civil hospitals are
generally from weaker sections of the society as they do not afford
expenses of medical treatment in private hospitals/corporate hospitals in
the background and by way of social obligation. Shortcomings and lapses
in providing medical treatment amounts to violation of right to life
guaranteed under Article 21 of the Constitution of India. The State cannot
avoid its constitutional obligation in that regard. In the case on hand,
patient Malati Nehete met with an unfortunate death because of culpable
negligence on the part of the doctors, staff nurses and para medical force
42 PIL-25-2020 J
on duty in providing care and best treatment. It is clear case of violation of
Article 21 of the Constitution of India and certainly, the heirs of patient
Malati Nehete are entitled to get compensation, since the State has failed
to provide adequaqte medical treatment to the patient Malati Nehete in
Civil Hospital at Jalgaon. There is no straight jacket formula for awarding
compensation. By taking into consideration the circumstances in totality
appearing on record, age of the patient and family background, we are of
the considered view to award the compensation and same is quantified at
Rs. 5.00 lakhs (Rupees Five Lakhs). The State Government is liable to pay
compensation of Rs. 5.00 lakhs (Rupees five lakhs) to the legal heirs of
Malati Nehete. Right to life being the most sacrosanct right takes
precedence over all other rights in a scenario like Covid-19.
57. Three Members Committee as well as the District Collector,
Jalgaon have submitted their enquiry report on the subject to the Principal
Secretary, Public Health Department, State of Maharashtra, Mantralaya,
Mumbai. It would be appropriate to issue certain directions in this regard.
58. With these reasons, we conclude and proceed to pass the
following order :-
ORDER
(i) The State of Maharashtra /Respondent No. 2 shall pay the
compensation of Rs. 5.00 lakhs (Rupees Five Lakhs) to the
legal heirs of patient Malati Nehete on account of violation of
Article 21 of the Constitution of India within a period of four
months from today.
43 PIL-25-2020 J
(ii) The respondent No.1/Principal Secretary, Public Health
Department, State of Maharashtra,Mantralaya, Mumbai shall
take appropriate action on the basis of report submitted by
Three Members Committee as well as on the report submitted
by the District Collector, Jalgaon as expeditiously as possible.
(iii) The directions given by the Division Bench of this Court at
Principal Seat in case of Jan Swasthya Abhiyan and Ors.
Vs. State of Maharashtra and others with connected
matters vide judgment dated 12.06.2020, in the case of
Citizen Forum for Equality Vs. The State of Maharashtra
and others vide order dated 1st June, 2020, and vide Suo
Moto Criminal PIL No. 1/2020 (Registrar, Judicial, High
Court of Judicature at Bombay, Bench at
Aurangabad Vs. Union of India and ) dated 18 th August,
2020, are already in place. The directions sought by the
petitioners in prayer clauses B to M in this petition would be
taken care of by the above said decisions of this Court. No
further directions are necessary. The State/Respondent
authorities shall follow the same scrupulously.
(iv) The Registrar (Judicial) is directed to forward copy of this
judgment to the Chief Secretary, Principal Secretary, Public
Health Department, Mantralaya, Mumbai, the District Collector,
Jalgaon, Chief Executive Officer & Administrator, Civil Hospital
and Government Medical College, Jalgaon and District Civil
44 PIL-25-2020 J
Surgeon, District Hospital, Jalgaon for information and
necessary compliance.
(v) With these directions, the Public Interest Litigation stands
disposed of.
(vi) No order as to costs.
[ SHRIKANT D. KULKARNI, J. ] [ S.V. GANGAPURWALA, J. ]
mta
