Petitioner sought permission to use accumulated Indigent Patients Fund for replacing machinery to sustain free services. Court held funds must be utilized only for treatment of indigent/weaker sections. Writ petition dismissed.
No permission granted to use Indigent Patients Fund for replacing machinery; writ petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
.. 1 ..
WP-9751/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY . CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9751 OF 2012
JEEVAN VIKAS KENDRA Jeevan Vikas Kendra Marg, Off. S. Nityanand Marg, Andheri E, Mumbai 400 069 .
... Petitioner.
V/s.
1. THE GOVERNMENT OF MAHARASHTRA
Through Office of Govt. Pleader,
Bombay High Court, Mumbai.
2. The Joint Charity Commissioner (Hospitals),
83, Dr Annie Besant Road,
Worli, Mumbai 400 018.
3. The Chairman,
Monitoring Committee, Gr Mumbai, Office of Joint Charity Commissioner, 83, Annie Besant Road, Worli, Mumbai 400 018.
... Respondents.
Mr Rahul L. Nerlekar for Petitioner.
Ms Aparna Vhatkar, A.G.P. For Respondent Nos.1 and 2.
CORAM : A.S.OKA &
R.D.DHANUKA, JJ.
DATED : FEBRUARY 18, 2013.
JUDGMENT (PER R.D.DHANUKA, J.)
By this petition under Article 226 read with Article-21 of the
1/16
Asmita
.. 2 .. WP-9751/12
Constitution of India, petitioner seeks a Writ of Mandamus or any other Writ, direction or order for quashing and setting aside the impugned decision taken in meeting of the Monitoring Committee on 30th April 2012 and seeks permission to use the accumulated funds in the Indigent Patients Fund (for short 'IPF') maintained by the petitioner for the purpose of replacing dialysis machine and x- ray machine in its hospital. Petitioner also seeks a direction against the respondents to reconsider the application of the petitioner on merits under clause 19 of the Scheme framed by this Court in Writ Petition (PIL) No.3132 of 2004.
2/16
Asmita
.. 3 .. WP-9751/12
under Section 41AA for treatment of indigent patients and weaker section
patients. Some of the relevant provisions of the said scheme are as under :
2. The public Charitable Trust covered by aforesaid clause 1 shall be under legal obligation to reserve and earmark 10% of the total number of operational beds for indigent patients and provide medical treatment to the indigent patients free of cost and reserve and earmark 10% of the total number of operational beds at concessional rate to the weaker section patients as per the provisions of section 41AA of the B.P.T. Act.
3. In emergency, the Charitable Hospitals must admit the patient immediately and provides to the patient “Essential Medical Facilities” for all life saving emergency treatment and procedure till stabilization. Further transportation to the public hospital would be arranged by such Charitable Hospital, if necessary. The Charitable Hospitals shall not ask for any deposit in case of admission of emergency patients.
4. That each public charitable hospital shall create separate fund which may be called Indigent Patients' Fund (for the sake of brevity, hereinafter referred to as “IPF”) and shall credit two per cent of gross billing of all patients (other than indigent and weaker section patients) without any deduction.
5. Donations that may be received by the charitable hospitals from individuals or other charitable trusts or from any other source for providing medical treatment to the indigent and weaker section patients shall be credited to IPF Account.
6. The account of IPF shall have to be earmarked under the head of IPF and same shall be reflected under the earmarked fund in the annual balance Sheet (Schedule VIII Rules 7(1) of the B.P.T. Rules).
7. The amount credited to the IPF Account shall remain at the disposal of the respective Charitable Hospital and that amount shall be utilized only for providing medical treatment to the indigent and weaker section patients as provided herein after.
8. The Charitable Hospitals shall provide following non billable services free to the indigent patients as well as weaker section patients : -
3/16
Asmita
.. 4 ..
WP-9751/12
9. In case of indigent patients, the Charitable Hospitals shall provide medical examination and treatment in its each department totally free of cost. The indigent patient's bill of billable services shall be prepared at the rates applicable to the lowest class of the respective hospital. The medicines, consumables and implants are to be charged at the purchase price to the hospital. If Doctors forego their charges, then the same shall not be included in the final bill of the indigent patients. The bill so prepared shall be debited to IPF Account. The Charitable Hospitals shall not ask for any deposit in case of admission of indigent patients.
11. The Charitable Hospitals shall physically transfer 2% of the total patients' billing (excluding the bill of indigent and weaker section patients) in each month to IPF Account. The amount available in the IPF Account shall be spent to provide medical treatment to maximum number of indigent and weaker section patients. In case of surplus or shortfall in the IPF Account of the month, the same shall get adjusted in the subsequent months. In case there is imbalance in the credit of the IPF Account and the expenditure incurred in the treatment of indigent and weaker section patients for more than six months, such Charitable Hospital may bring this aspect to the notice of the Monitoring Committee who may issue appropriate directives to the concerned hospital.
14. The Charitable Hospitals shall admit indigent or weaker section patients coming to their hospitals from any source or through Government Hospitals, Municipal Hospitals, etc. The procedure for admission of patients shall be as provided in subsequent clauses.
15. The Charitable Hospitals shall admit indigent patients to the extent of 10% of their operational beds/average occupancy for medical examination and treatment. So also, the Charitable Hospitals shall
4/16
Asmita
.. 5 .. WP-9751/12
admit weaker section patients to the extent of 10% of their operational beds/average occupancy for medical examination and treatment coming to their hospitals from the sources referred to in clause 14. The Charitable Hospitals shall verify the economic status of the patients from their Medical Social Worker on the basis of scrutiny of any one of the following documents produced by the concerned patients: (I) Certificate from Tahsildar; (ii) Ration Card/Below Poverty Line Card.
18. In case of the breach of the Scheme and/or the terms and conditions of Section 41AA by any Charitable Hospitals, besides the penal action as is provided under Section 66 of the B.P.T. Act, the Charity Commissioner shall make report to the State Government recommending withdrawal of the exemption granted to the concerned hospitals during the next preceding year in payment of contribution towards P.T.A. Fund and the amount of contribution towards P.T.A. Fund be recovered from the said hospital. The Charity Commissioner may also request the Government to withdraw any other concessions/benefits given to the said hospital.
19. The Charitable Hospitals which face individual difficulties in meeting objectives/obligations under this Scheme shall be at liberty to apply to the Charity Commissioner with all supporting documents who may consider suitable modifications, if a case for relief is made out.
Section 41AA of the said Act reads as under :
41AA. Power of Charity Commissioner and State Government to issue directions in respect of hospitals, etc. to earmark certain beds etc., for poorer patients to be treated free of charge or at concenssional rates :- (i) Notwithstanding anything contained in any law for the time being in force or in any instrucment of trust or in any contract or in any judgment, decree or order of any Court, Tribunal, Charity Commissioner or other competent authority, in the case of any State aided public trust, whose annual expenditure exceeds five lakhs of rupees, or such other limit as the State Government may, from time to time, by notification in the Official Gazette, specify, with a view to making essential medical facilities available to the poorer classes of the people, either free of charge or at concessional rates, it shall be lawful for the Charity Commissioner, subject to such general or
5/16
Asmita
.. 6 .. WP-9751/12
special order as the State Government may, from time to time, issue in this behalf, to issue all or any of the following directions to the trustees of, or persons connected with, any such trust, which maintains a hospital (including any nursing home or maternity home), dispensary or any other centre for medical relief (hereinafter in this section referred to as “ the medical centre”) namely :-
Provided that while issuing any directions as aforesaid the Charity Commissioner shall take into consideration such facilities as are already made available by any such medical centre and having regard to the availability of such facilities may give appropriate directions if any, consistent with and subject to the percentage specified in clauses (b) and (c).
6/16
Asmita
.. 7 .. WP-9751/12
any medical centre, and for that purpose, visit, inspect and call for information and returns periodically or otherwise.
(b) It shall be the duty of every trustee of, or person connected with, such medical centre to comply with the directions issued under sub-section (1) and to afford all reasonable facilities and assistance required by the said officer or the Charity Commissioner or his representative for verification of the implementation of such directions under clause (a) and to comply with the requirements thereunder.
(c) In case there arises any dispute relating to the interpretation, implementation or any matter whatsoever in respect of any direction issued under sub-section (1), it shall be referred to the State Government, through the Charity Commissioner, for appropriate directions.
(3) Nothing in sub-sections (1) and (2) shall prejudicially affect any medical facilities of whatever nature which any such State-aided public trust has provided by virtue of any condition subject to which any grant, exemption, concession, etc. referred to in clause (a) of sub-section (4) has been granted or received by it or otherwise and such medical facilities which are in operation on the date of commencement of the Bombay Public Trusts (Amendment) Act, 1984 (Mah. VIII of 1985), shall continue as before if they exceed the percentage of reserved and earmarked category.
7/16
Asmita
.. 8 ..
WP-9751/12
1976); of
8/16
Asmita
.. 9 .. WP-9751/12
Scheme by this Court, petitioner also created IPF and offered free treatment to the economically backward patients. The petitioner accumulated balance amount of Rs.26.5 lacs in its IPF which is lying un-utilized. It is the case of the petitioner that in last six years, only 14 indigent patients sought admission in the petitioner hospital.
9/16
Asmita
.. 10 .. WP-9751/12
x-machine by new machines which would be used for treatment of economically backward patients. The Monitoring Committee, in its meeting held on 30th April 2012 rejected the said application made by the petitioner on the ground that under Clause 7 of the Scheme approved by this Court, the IPF could be used only for 'treatment' of indigent patients.
10/16
Asmita
.. 11 .. WP-9751/12
counsel submits that the permission sought by the petitioner for utilizing the amount in IPF for the purposes of replacing equipments and machines, was for the purposes of its use for treatment of indigent patients and the same was in harmony with the object and purpose of the said Scheme. The petitioner is ready to undertake that if they are allowed to use the said accumulated IPF to replace the dialysis machine and x-ray machines, no indigent patient shall be refused by the hospital on the ground of lack of funds and the indigent patients shall not be charged for the use of such machines. It is submitted that the impugned decision of the Monitoring Committee is in ignorance of the provisions of clause 19 of the Scheme approved by this Court and is contrary to the object and purpose of the Scheme. It is submitted that there was no complaint by any party against the petitioner for non compliance of the said Scheme.
11/16
Asmita
.. 12 .. WP-9751/12
recommendations and facilities available to reserve and total number of essential beds and 10% of total capacity of patients to be treated at such medical center free of charge, to reserve and/or total number of reserved bed for weaker sections of people seeking medical examination and treatment to be charged according to said rates as the Government may by general or special order determine. Section 41AA(ii) obligates the duty of every trustee or person connected with such medical centre to comply with directions issued by the Charity Commissioner under Section 41AA(i) and to offer all reasonable facilities and assistance required by the said officer or the Charity Commissioner. Section 41AA (iv)(b) defines 'indigent person'. Section 41AA (iii)(c) defines 'person belonging to weaker section'.
12/16
Asmita
.. 13 .. WP-9751/12
Charitable Hospital to create a separate fund 'Indigent Patient Fund' and directed to credit 2% of gross billing of all patients (other than indigent and weaker section patients) to such fund. The Charitable Hospitals have been directed to physically transfer 2% of the total patients' billing excluding the bill of indigent and weaker section patients in each month to IPF Account. It is categorically provided that the amount available in the IPF Account shall be spent to provide medical treatment to maximum number of indigent and weaker section patients and in case of surplus or shortfall in the IPF Account of the month, the same shall get adjusted in the subsequent months. It is further provided that in case there is inbalance in the credit of the IPF Account and the expenditure incurred in the treatment of indigent and weaker section patients for more than six months, such Charitable Hospital may bring this aspect to the notice of the Monitoring Committee who may issue appropriate directives to the concerned hospital. Clause 19 granted liberty to the Charitable Hospitals in case of any individual difficulties in meeting objectives/obligations to apply to the Charity Commissioner with all supporting documents who may consider suitable modifications if case for relief is made out. Clause 7 of the Scheme categorically provides that the amounts credited to the IPF Account shall remain at the disposal of the respective Charitable Hospital and that amount shall be utilized only for providing medical treatment to the indigent and weaker section
13/16
Asmita
.. 14 .. WP-9751/12
patients as provided in the said scheme. Clause 8 provides for various non billable services free to the indigent patients as well as weaker section patients. Clause 11 provides for transfer of 2% of the total patients' billing excluding the bill of indigent and weaker section patients in each month to IPF Account which shall be spent to provide medical treatment to maximum number of indigent and weaker section patients. Clause 18 provides for action to be taken by the Charity Commissioner under the provisions of Section 66 of the B.P.T. Act in case of breach of the Scheme and/or the terms and conditions of Section 41AA of the said Act. Clause-14 of the Scheme categorically provides that the human service for which they came into existence, each time they provide treatment and health services to the indigent and weaker section patients.
14/16
Asmita
WP-9751/12
.. 15 ..
out in Clause 8 of the Scheme.
15/16
Asmita
.. 16 .. WP-9751/12
In our view, the impugned order passed by the Monitoring Committee is right and is in conformity with the purpose and object of the Scheme framed by this Court and also in compliance to Section 41AA and no infirmity can be found with the impugned decision taken by the Monitoring Committee. Petitioner cannot be allowed to be deviated from the purpose of the approved Scheme and the provisions of Section 41AA. We do not find any merits in the submissions of the petitioner and therefore pass the following order.
( R.D.DHANUKA, J.) (A.S.OKA)
16/16
Asmita
3 issues framed by the court
Whether accumulated funds in the Indigent Patients Fund can be utilized for replacing medical equipment instead of providing immediate treatment.
Whether the Monitoring Committee was empowered to reject the petitioner’s application under Clause 19 of the Scheme.
Whether allowing the petitioner to use the fund for equipment would violate the object and purpose of Section 41AA and the approved Scheme.
5 provisions across 4 enactments
Jeevan Vikas Kendra
The Government of Maharashtra
The Joint Charity Commissioner (Hospitals)
The Chairman, Monitoring Committee
A.S.Oka
R.D.Dhanuka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
