Rani Seva Sadan, Garhwa vs State of Jharkhand And Ors

Heard learned counsel for the appellant and the learned for the State.

The writ petitioner-appellant is aggrieved by the impugned Judgement dated 07.01.2019, passed by the Writ Court in W.P.(C) No. 5542 of 2018, dismissing the writ application, wherein the appellant establishment had challenged the order dated 09.10.2018, as contained in Annexure-16 to this memo of appeal, passed by the respondent No. 1, Principal Secretary, Health, Medical, Education & Family Welfare Department, Government of Jharkhand, imposing the penalty of Rs.50,000/- upon the petitioner establishment and also sealing its premises.

The appellant establishment is a medical clinic established by one Dr. R.L. Jaiswal, who was having MBBS degree. The certificate L.P.A. No. 82 of 2019 of provisional registration was granted to it on 22.09.2013 as a clinical establishment under Section 15 of The Clinical Establishments (Registration & Regulation) Act, 2010, (hereinafter referred to as the "Act"), for providing medical services as Hospital, Polyclinic and Pathology under Allopathic System of Medicine. The said certificate was valid for a period of one year from the date of its issuance. It appears that thereafter the certificate of registration was not renewed by the petitioner establishment, and there were also complaints against the petitioner establishment on the portal of the Hon'ble Chief Minister of the State. On 30.10.2017 an inspection team headed by Additional Chief Medical Officer, Garhwa, inspected the establishment. One Dr. D.D. Vishwakarma was found to be practicing in the clinic and it was informed that Dr. R.L. Jaiswal, in whose name the clinical establishment was registered, was not present there as he was residing in the State of Bihar. In the clinical establishment there was a name plate of Dr. D.D.Vishwakarma with his qualification showing as MBBS (Alternative Medicine) General Physician. This degree for Alternative Medicine in MBBS was not a valid MBBS degree. The said Dr. D.D.Vishwakarma was also found to run the pathology laboratory in the clinical establishment and he produced the Diploma in Medical Laboratory, issued by Central Kolkata Medical and Technological Research Institute.

The said institute was also not a recognized institute and as such, the said diploma was also found to be forged. Accordingly, finding that the petitioner establishment was being run on the basis of the forged degree and diploma by a person in whose name even the registration was not there, the establishment was sealed.

Against the said order an appeal was preferred before the State Council constituted under Section 8 of the Act, which gave a hearing to the appellant on 26.09.2018. After hearing both the sides, by the impugned order dated 09.10.2018 passed by the Appellate Authority, due to the aforesaid illegalities in the establishment, the penalty of Rs.50,000/- was imposed upon the establishment as provided under Section 40(1) of the Act, and it was also ordered that appropriate legal action be taken against the persons practicing in the clinic on the basis of forged degree and diploma. It was further ordered that the L.P.A. No. 82 of 2019 establishment be allowed to be opened only after fresh registration in accordance with law, and after realization of the penalty and the other legal action.

Against the order passed by the Appellate Authority, the petitioner establishment preferred the writ application before this Court, which was numbered as W.P. (C) No. 5542 of 2018. The writ application was dismissed after adjudication by the Hon'ble Single Judge by order dated

07.01.2019. The main ground of challenge to the order passed by the Appellate Authority was that the petitioner clinical establishment was sealed without giving an opportunity of being heard. In course of hearing of the writ application, the Court put a query upon the learned counsel for the petitioner, as to whether he was disputing the fact that the MBBS (Alternative Medicine) degree obtained from Central Kolkata Medical and Technological Research Institute, was from an unrecognized institute, which fact was not disputed by the learned counsel for the petitioner and accordingly, it was held that since the fact was not disputed, there was no question of remitting the matter before the authority for following the principles of natural justice as that would only lead to a futile exercise and empty formality. The Writ Court relied upon the decisions of the Hon'ble Apex Court in Escorts Farms Ltd. Vs. Commissioner, Kumaon Division, Nainital, U.P. & Others, reported in (2004) 4 SCC 281, and in Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati & Others, reported in (2015) 8 SCC 519, wherein the law has been laid down that the rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits, and that it is not required to be followed where it is felt that a fair hearing would make no difference, meaning that a hearing would not change the ultimate conclusion reached by the decision maker. In view of the fact that there was no dispute to the fact that the clinic was run by the person having forged or unrecognized degree and diploma, no useful purpose was going to be served by remitting the matter for following the principles of natural justice. The Writ Court also found that it is a settled principle of law that the writ of certiorari can be issued in case the order is passed by the authority L.P.A. No. 82 of 2019 having no jurisdiction, or it is contrary to statutory provision, or results in miscarriage of justice, and since these points were not involved in the writ application, there was no merit therein and the same was dismissed.

Aggrieved thereby, the present L.P.A. has been preferred by the petitioner-appellant.

During the pendency of the L.P.A., an Interlocutory Application No. 6514 of 2020 has been filed with a prayer for de-sealing the petitioner establishment on the ground, firstly that the sealing of the premises was not in accordance with law, and secondly, the premises could not be kept sealed for indefinite period.

Learned counsel for the appellant has submitted that the impugned Judgement passed by the Hon'ble Single Judge cannot be sustained in the eyes of law, in as much as, the Hon'ble Single Judge failed to appreciate that there was an express bar under Section 34 of the Act, for entering into the clinical establishment without giving any notice and since no notice was given to the petitioner by the respondent No. 5 before entering into the premises, all the subsequent actions are absolutely illegal. Learned counsel has also submitted that it is a well settled principle of law that the sealing of the immovable property cannot be done for indefinite period of time. In this connection, learned counsel has placed reliance upon the decision of this Court in S.R.P. Oil Pvt. Ltd. Vs. State of Jharkhand and Another, reported in 2020 SCC OnLine Jhar 813.

Learned counsel for the appellant has also submitted that the power of sealing of property carried civil consequences and a person can be deprived of the property only after following the procedure prescribed in accordance with law. In support of this contention learned counsel has placed reliance upon the decision of the Hon'ble Apex Court in M.C. Mehta Vs. Union of India & Ors., reported in 2020 SCC OnLine SC 648.

Learned counsel submitted that since there is no provision in the Act for sealing the property and there is express bar for entering into the property without giving any prior notice, the impugned action cannot be sustained in the eyes of law, and as such, the order dated 09.10.2018 passed by the Appellate Authority, respondent No. 1, L.P.A. No. 82 of 2019 as also the impugned Judgement dated 07.01.2019 passed by the Hon'ble Single Judge in W.P.(C) No. 5542 of 2018, cannot be sustained in the eyes of law.

Learned counsel for the State on the other hand has opposed the prayer, submitting that in the present case there is no dispute to the fact that the clinical establishment was being run by a person on the basis of forged and unrecognized degree and diploma, as there is no recognized degree of MBBS in Alternative Medicine and no such degree is recognized by the Government of India. Similarly, the Diploma in Medical Laboratory was also a forged and unrecognized degree. It has also been submitted by learned counsel that on the date of inspection of the medical establishment it was not having any certificate of registration and there is an express bar in the Act for running a clinical establishment without registration. Learned counsel also pointed out that Section 41 of the Act provides for penalty for non-registration and for first contravention the penalty is upto Rs.50,000/- and for second contravention the penalty prescribed is up to Rs.2,00,000/- and for any subsequent contravention the penalty may extend to Rs.5,00,000/-.

Learned counsel accordingly, submitted that there is no illegality in the impugned action whereby the penalty has been imposed and the clinical establishment has been sealed, as it was being run on the basis of forged diploma and degree.

Having heard learned counsels for both the sides and upon going through the record, we find that there is no dispute to the fact that on the date of inspection the appellant clinical establishment was not having a certificate of registration. There is an express bar under Section 11 of the Act providing that no person shall run a clinical establishment unless it has been duly registered in accordance with the provisions of the Act. Similarly, Section 20 of the Act provides that the certificate of registration shall be non-transferable and accordingly, if the clinical establishment was registered in the name of Dr. R.L. Jaiswal, it could not be run by D.D.Vishwakarma, that too, on the basis of forged and unrecognized degree and diploma.

It is also not in dispute, rather it is an admitted fact that the degree in MBBS (Alternative Medicine) is no degree in the eyes of law and as such displaying any such degree on the establishment L.P.A. No. 82 of 2019 amounts to running the establishment on the basis of the forged degree.

Similarly, it is not disputed that even the Diploma in Medical Laboratory issued by Central Kolkata Medical and Technological Research Institute was not a recognized diploma in the eyes of law and accordingly, this was also a forged diploma.

The Clinical Establishment (Registration & Regulation) Act, 2010, has been established with a definite object to provide for the registration and regulation of the clinical establishments with a view to prescribe minimum standards of facilities and services which may be provided by them so that mandate of Article 47 of the Constitution for improvement in public health may be achieved. Accordingly, if it was found that the clinical establishment was being run on the basis of forged and unrecognized degree and diploma, and still allowing the same to operate, shall certainly frustrate the very object of the Act for which it was enacted, and the same cannot be allowed to be continued. Accordingly, we find no force in the contention of the learned counsel for the appellant that the closure of the establishment was not in accordance with law.

The Appellate Authority, respondent No. 1, while disposing of the appeal of the writ petitioner appellant by order dated 09.11.2018 has passed three orders, (a) imposition of penalty of Rs.50,000/- under Section 40(1) of the Act, (b) proper legal action be taken against the person practicing medicine on the basis of the forged degree and diploma, and (c) upon the realization of penalty and the legal action, the establishment be allowed to be opened only after fresh registration in accordance with law.

We find that the penalty has been imposed in accordance with law as provided under Section 40(1) of the Act. The second order of appropriate legal action against the persons practicing medicine on the basis of forged degree and diploma also cannot be interfered with as there can be no illegality in the said order. Similarly, in view of the express prohibition under Section 11 of the Act the clinical establishment cannot be allowed to be run without being duly registered in accordance with law, and the Appellate Authority has stated that after fresh registration the establishment shall be allowed to be opened.

L.P.A. No. 82 of 2019

Accordingly, we do not find any merit in the submission of the learned counsel for the appellant that the appellant establishment has been closed or sealed for an indefinite period. The Appellate Authority has specifically stated that the clinical establishment shall be allowed to be opened only after fresh registration, which is the clear mandate of law under Section 11 of the Act.

Even otherwise, it is well settled principle of law that if setting aside any illegal order, gives rise to other illegal action, the Writ Court shall not exercise its jurisdiction. In the present case if the petitioner establishment is allowed to be de-sealed, this shall give rise to an illegal action of running the clinical establishment without there being any registration in accordance with law, which shall be in the teeth of Section 11 of the Act.

In view of the foregoing discussions, we do not find any illegality either in the Appellate Authority's order dated 09.10.2018 as contained in Annexure-16 of the memo of appeal, or in the impugned Judgement dated 07.01.2019, passed by the Hon'ble Single Judge, in W.P.(C) No. 5542 of 2018, worth any interference in exercise of Letters Patent Appellate jurisdiction.

There is no merit in this L.P.A. and the same is accordingly, dismissed. The Interlocutory Application for de-sealing the property also stands dismissed for the same reasons discussed above.