Court No. - 29
Case :- WRIT - C No. - 16187 of 2021 Petitioner :- Khushi Hospital Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Bishram Tiwari Counsel for Respondent :- C.S.C.,Avanish Mishra
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Vivek Agarwal,J.
Sri Bishram Tiwari, learned counsel for the petitioner, Sri Avanish Mishra, learned counsel for respondent no. 3 and Sri A.P. Paul, State Law Officer for respondent nos. 1,2,4,5.
The petitioner has challenged the order dated 6.11.2020 and 9.2.2021 with the prayer to allow the petitioner to run the Hospital.
It is submitted that respondent no. 4 made a spot inspection of Kushi Hospital, Garahiya Basantpur, post Barwa, Ratanpur, District Kushinagar (hereinafter referred as the hospital) on 6.11.2020 and prepared a report at his own without a notice to the petitioner. The report was sent to the authorities for further action. The Chief Medical Officer, Kushinagar (the CMO) has made favourable comments, yet Respondent no. 4 passed the order on 9.2.2021 to close the operation of the Hospital. It is said to have been passed without opportunity of hearing to the petitioner.
Counsel submits that hospital is run as per the Rules and Regulations. Adverse report was prepared showing unavailability of doctors. The CMO has made a report that though the doctor to run hospital was not available, but affidavit of other doctor has been given to show his engagement for running the hospital. Ignoring the aforesaid, impugned order has been passed on 9.2.2021. The prayer is accordingly to cause interference in the impugned order and permit the petitioner to operate the hospital.
The writ petition is opposed by the learned Standing Counsel appearing for the State. It is submitted that the hospital was run without doctors and other facilities required for the patients. It was found to be a case of illegal operation of the hospital. The petitioner, who has filed the writ petition, himself is not a qualified doctor but a Lab Technician. The petitioner was charging money from innocent persons in the name of treatment. When their condition becomes serious then to be sent to other hospital. Notice under section 133 Cr.P.C. was accordingly given to direct the petitioner to produce the relevant records of the Hospital. They failed to produce the record thus an order was passed by the Sub-Divisional Magistrate, Khadda, District Kushinagar (respondent no. 4) to stop of the operation of the hospital. The report of the CMO has been shown favourable to the petitioner where he took cognizance of the affidavit of Dr. Faisal Faizi, without physical verification of the Hospital.
We have considered the submission of the parties. It is a case where respondent took action against the illegal operation of the hospital and accordingly cause notice of the petitioner under section 133 Cr.P.C followed by inspection of the hospital on 6.11.2020 after expiry of the period of notice. During the course of inspection, no surgeon was found available. As against the permission for 10 beds, 14 beds were found beyond permissible limit. Doctors were not available. The hospital was otherwise not maintaining hygiene level and therefore it was found to be hazardous. It is also found that poor people are cheated by the hospital for treatment run unauthorizedly and when patients became serious, to be referred to other hospital.
It was thus found necessary to pass an order invoking section 133 Cr.P.C. A detailed order was passed on 9.2.2021, impugned in this writ petition. The explanation given by Proprietor of the hospital namely Sri Raju Kumar Srivastava was not found proper. It was after giving an opportunity of hearing before passing of the impugned order. It was found that registration of the hospital is in the name of one Girish Chandra. After his death, it is shown to be operated through Dr. Faizal Faizi, but he was not found available in the Hospital. On an inquiry from the patients, it is found that they are not being attended by doctors . For the detailed reasons, impugned order was passed. The proprietor of the Hospital is a Lab Technician. The impugned order shows unavailability of qualified surgeon, yet patients were admitted for surgery. Operation theatre was not otherwise equipped hence it was sealed. The Hospital was grabbing money in the name of surgery. In the same manner, drugs were sold without drugs licence. All the allegations remained unexplained.
There is nothing on record to show availability of required facility which includes a surgeon for operation theatre. The letter written by the CMO dos not deal with any substantial issue and seems to have written for extending undue favour to the petitioner. The conduct of the CMO, Kushinagar is writ large. The letter dated 2.12.2020 has been given without verifying condition of the Hospital. The CMO was required to dealt with condition of the Hospital running without qualified doctors and necessary facilities at the cost of patients.
Taking facts in totality, we do not find any illegality in the action of respondent in passing the impugned order. Accordingly, we are not inclined to accept the prayer made in the writ petition. The writ petition is accordingly dismissed. It is directed to the respondent and more especially disciplinary authority of C.M.O, Kushinagar, who had issued letters dated 2.12.2020, to take action in accordance with rules after holding preliminary inquiry. If the conduct of the CMO is found improper then disciplinary action would be taken against him as per Rules. Compliance of the last part of the order would be made through Secretary (Ministry of Health and Welfare Services) Government of UP, Lucknow.
For the reasons given above, writ petition is dismissed.
Order Date :- 23.9.2021 S.K.S.
(Vivek Agarwal, J.) (Munishwar Nath Bhandari, ACJ)