Court No. - 34
Case :- WRIT - C No. - 31406 of 2019 Petitioner :- Gupta Hospital Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sumit Goyal,H.N. Singh (Sr.Adv.) Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard Shri H. N. Singh, learned Senior Counsel assisted by Shri Sumit Goyal, learned counsel for petitioner.
2. This writ petition has been filed by sole petitioner Gupta Hospital running near Thana Sadar, District Saharanpur through its partner Dr. S. K. Gupta. assailing alleged order dated 20.2.2017 passed by Ethical Committee, Uttar Pradesh Medical Council, Lucknow (Annexure-8 of petition), which is a report submitted by said Committee and has been titled as 'Recommendation'.
3. This writ petition has been filed after more than 2-1/2 years of the said report and undue and extraordinary laches have sought to be explained in para 19 to 25 of the writ petition, which are as under:
"19.That the Ethical Committee has passed an impugned order dated 20.2.2017 and not found any material against Dr. S. K. Gupta of professional misconduct violation of etiquette and code of ethics as provided in Regulations, 2002. But acting without jurisdiction has stated that the Ethical Committee feels that due lack of basic infrastructure for resuscitation, the situation led to hypoxemic brain injury of the patient, however,it is admitted by the Ethical Committee that the prompt action by staff and doctors was taken but the same could not help the patient. In this connection true copy of the impugned order dated 20.2.2017 passed by the Ethical Committee is being filed herewith and marked as Annexure No. 8 to this writ petition.
20. That the Ethical Committee under Regulations, 2002 is having no jurisdiction to determine the basic infrastructure of the hospital and no Regulation has been framed as yet either by the Medical Council or by the State Government providing for basic infrastructure required for a Hospital, Nursing Home, Pathology, etc.
21. That the petitioner has not been given any notice of charge of non availability of the alleged basic structure of resuscitation and he was not afforded any opportunity of hearing to reply the allege lack of basic infrastructure. The order impugned of the Ethical Committee is not only without jurisdiction but the same is without affording an opportunity of hearing to the petitioner.
22. That an appeal provided under Section 24 of the Act, 1956 or the Regulation 8.8 of the Regulations, 2002 is not available to the petitioner in the facts and circumstances of the case and against the order passed by the Ethical Committee providing that the hospital of the petitioner is lacking basic infrastructure of resuscitation.
23. That the complaint J.D. Gupta has lodged a first information report bearing Case Crime No. 504 of 2015, under Sections 269, 338 and 304A IPC on 21.5.2015 at Police Station Sadar Bazar, District Saharanpur in which, the final report was submitted on 6.11.2017, however, on the protest petition, the final report was rejected and further investigation was ordered by the learned Magistrate concerned by order dated 16.8.2017 and ultimately, charge sheet was submitted and criminal case is pending. In this connection true copy of the charge sheet submitted in Case Crime No. 504 of 2015 is being filed herewith and marked as Annexure-9 to this writ petition.
24. That the complainant J.D. Gupta has further filed a complaint before the State Consumer Commission against Dr. S. K. Gupta, relaying on the finding of the Ethical Committee.
25. That Dr. S. K. Gupta was in bonafide believe that the order of the Ethical Committee is not punishment against the petitioner and it is still true that no punishment has been awarded to the petitioner by the Ethical Committee against which, the petition may have filed an appeal under Section 24 of the Act, 1956 or Clause 8.8 of the Regulations, 2002 but the observation of Ethical Committee that the hospital is lacking the basic infrastructure of resuscitation is causing harm to the petitioner and he is being dragged for criminal prosecution as well as before the Consumer Commission."
4. Report admittedly was received by petitioner in February, 2017, but it chose not to challenge same on the ground that it was only a recommendation . Here we do not find this is a satisfactory explanation for undue delay and laches.
5. Undue delay and laches are relevant factors in exercising equitable jurisdiction under Article 226 of the Constitution of India. Following the cases of Government of West Bengal Vs. Tarun K. Roy and others 2004(1) SCC 347 and Chairman U.P. Jal Nigam and another Vs. Jaswant Singh and another 2006(11) SCC 464, the Apex Court in New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423.
6. Learned Senior Counsel for petitioner further submitted that observation, since made in above recommendation, would constitute an evidence in criminal case, but we do not find any substance in above submission.
7. He, thirdly submitted that petitioner hospital is well equipped with resuscitation unit as recommended by Committee and in this regard he has placed before us certificate issued by Chief Medical Officer, Saharanpur on 10.3.2017 which is kept on record. If that is correct, we do not find any cause of action for the reason that recommendation is only to the effect that petitioner must have adequate resuscitation unit and if petitioner unit already have the same then nothing further is required to be done. No cause of action, therefore, survives.
8. In view of above, we do not find any reason to interfere. Writ petition is dismissed.
Order Date :- 26.9.2019 Ravi Prakash