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2017 DIGILAW 1375 (GAU)

Munindra Mohan Deka v. State of Assam

2017-10-26

HRISHIKESH ROY

body2017
JUDGMENT : Hrishikesh Roy, J. 1. Heard Mr. G. Uzir, the learned Sr. counsel appearing for the petitioner in all 5 cases. The respondent No. 1 is represented by Mr. D. Nath, the learned Addl. Sr. Govt. advocate, while the learned standing counsel Health Mr. B. Gogoi, appears for the respondent Nos. 2 and 3. The Pollution Control Board and their member (respondent Nos. 4 and 5), are represented by the learned counsel Mr. H. Baruah. The common challenge in all these cases is to the order dated 27.05.2008, whereby, the Government has accorded prosecution sanction for all the writ petitioners, under Section 197 Cr.P.C. for the failure of the concerned Govt. Hospitals to comply with the Bio-Medical Waste (Management and Handling) Rules, 1998 (hereinafter referred to as the "Medical Waste Rules"). Such sanction was granted in pursuant to the direction issued by the Full Bench on 06.12.2007 in the WP (C) [Taken Up] No. 4146/2006. 2. The issue that requires Court's consideration is whether in respect of the Guwahati Medical College & Hospital, Guwahati; the Assam Medical College & Hospital, Dibrugarh; the Silchar Medical College & Hospital, Silchar; the Barpeta Medical College, Barpeta and the Mahendra Mohan Choudhury Hospital, Guwahati, the petitioners are the Heads of the Department for the concerned institutions, since only in this capacity, they can be prosecuted for the alleged failure of the Govt. Medical hospitals, to comply with the requirement of the Environment (Protection) Act, 1986 and the Medical Waste Rules. 3. The segregation of bio-medical waste and their disposal in hospitals is mandated by law and in the WP(C) No. 4146/2006 taken up by the Court, the Full Bench noted the lapses in the concerned Govt. Hospitals in the following manner:- "................... It is a taken up matter regarding the complaints of non-compliance with the requirement of the Environment (Protection) Act, 1986 and the Bio Medical Waste (Management and Handling) Rules, 1998 in so far as the three Medical Colleges run by the State of Assam and Mohendra Mohan Choudhury Hospital, once again, a Government Hospital at Guwahati. This Court recorded various orders from time to time. By the last order dated 27.9.2007, while recording the reasons, this court observed that the present writ petition be listed today i.e. 6.12.2007 "by which time the Court would expect the new machinery to be procured and installed in the concerned hospitals". This Court recorded various orders from time to time. By the last order dated 27.9.2007, while recording the reasons, this court observed that the present writ petition be listed today i.e. 6.12.2007 "by which time the Court would expect the new machinery to be procured and installed in the concerned hospitals". Today, when the matter is taken up, learned Addl. Senior Govt. Advocate appearing in the matter placed a bunch of papers before this Court. The substance of which is that the abovementioned order could not be complied with. The Environment (Protection) Act, 1986 is more than a decade old and the abovementioned Rules are almost a decade old. Section 15 of the Act prescribes penalty for contravention of the provisions of the Act and the Rules and the penalty prescribed is imprisonment of 5 years or with fine which extend to one lakh rupees, or with both and in case of continuing contravention, with additional fine which may extend to five thousand for every day during which such failure or contravention continues. In Section 17, it is stipulated that when an offence is committed by any Department of Government, Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against the punished. However, Section 19 stipulates that no court shall take cognizance of any offence except the complaint made either by the Central Government or any authority or officials authorised in this behalf by the Central Government or in the alternative if such a complaint is sought to be made by any other person such person has to give notice of not less than sixty days in the prescribed manner to the Central Government. The command of the sovereign is meant to be obeyed. Government is not an exception to the Rule. It is in the larger interest of the citizen that the Parliament thought it fit to make Environment (Protection) Act dealing with various aspects of environment protection, one of such protections happens to be the disposal of the Bio Medical Waste. Irrespective of the reasons, the fact remains that more than a decade elapsed after the law came into force it is just not implemented in so far as the abovementioned four Hospitals are concerned. Irrespective of the reasons, the fact remains that more than a decade elapsed after the law came into force it is just not implemented in so far as the abovementioned four Hospitals are concerned. Such a fact situation clearly attracts the operation of Section 15 of the Act demanding prosecution of the guilty persons and Section 17 leaves no scope for any further enquiry if the Department of the Government commits such an offence. The only hindrance appears to be with the Union of India, which is entrusted with the responsibility of implementing the law made by the Parliament. The Union of India was kind enough not to take any action against those, who are responsible in not implementing the provisions of the abovementioned Act and Rules in so far as the abovementioned four hospitals are concerned. We are afraid that such a situation cannot be allowed to continue any further. We deem it appropriate to direct the Union of India to initiate appropriate proceedings in accordance with the provisions of the Environment (Protection) Act, 1986 and Bio Medical Waste (Management and Handling) Rules, 1998 and report to this Court within eight weeks from today. ..............." 4. The Environment (Protection) Act, 1986, hereinafter referred to as the "Environment Act", was enacted to provide for protection and improvement of environment and for matters connected therewith, in pursuant to the decision taken at the June 1972 United Nations Conference on the Human Environment held at Stockholm. The statement of objects and reasons of the Act takes note of the decline in the environmental quality and the emergent measures needed for the protection of the environment. The inadequacy of the general laws to deal with environmental matters was considered and the need was felt for coordination of the activities of various agencies involved with protection, regulation and discharge of environmental pollutants and handling of hazardous substances, etc. 5. The Environment Act also provided for rules to regulate environmental pollution and to deal with the offenders. In exercise of powers conferred by Section 6, 8 and 25 of the Act, the Central Government notified the Bio-Medical Waste (Management and Handling) Rules, 1998 on 20.07.1998. The Rules provided, inter alia, on how bio-medical waste is to be treated and the operation of bio-medical waste facility in the hospitals. Segregation of bio-medical waste with other wastes was specified under the Rules. 6. The Rules provided, inter alia, on how bio-medical waste is to be treated and the operation of bio-medical waste facility in the hospitals. Segregation of bio-medical waste with other wastes was specified under the Rules. 6. The penalty for contravention of the Environment Act and the Bio-Medical Rules is prescribed under Section 15 of the Act. When the lapses are of a Govt. department, presumption of guilt is drawn against the Head of the Department, under Section 17 and he is made liable for infringement of the provisions of the Act and the Medical Waste Rules. 7. The concerned Principles of the Govt. Medical College & Hospitals, at Guwahati, Dibrugarh, Silchar and Barpeta and for the MMC Hospital, the Joint Director of Health Services, are respectively considered to be the Head of the Department, for these establishments and on that basis, under the impugned order of 27.05.2008, the prosecution sanction was accorded against the petitioners, as they were heading those institutions, at the relevant point of time. 8.1. Assailing the prosecution sanction granted against the petitioners, Mr. G. Uzir, the learned Sr. counsel submits that the Director of Health Services or alternately the Director of Medical Education, should be considered to be the Head of the Department for the purpose of prosecution sanction. He submits that the Principals are only administrative heads of the concerned hospitals and on account of their limited pecuniary power, the Principal should not be made responsible for the violation, if any, made by the Govt. hospitals. 8.2. In support of his submission, the Sr. counsel refers to Schedule-IV of the Delegation of Financial Powers Rules, 1999 of the Govt. of Assam, where the Director of Health Services, Assam is shown to be the Head of the Health Department. 9.1. On the other hand, Mr. B. Gogoi, the learned standing counsel for the Health Department refers to the counter affidavit filed on 22.8.08 to submit that the Government's stand is that the Heads of the Hospitals will be the Head of the Department, for the purpose of prosecution, under Section 17 of the Environment Act and this stand is taken on the basis of specific query posed by this Court on 04.06.2008. 9.2. The departmental lawyer submits that the Director of Health Services and the Director of Medical Education are not responsible for managing the day-to-day affairs of the Govt. 9.2. The departmental lawyer submits that the Director of Health Services and the Director of Medical Education are not responsible for managing the day-to-day affairs of the Govt. hospitals and therefore it is the Head of the Institute being the responsible authority, who should be held accountable, for infringement of the Environment Act or the Medical Waste Rules. 10. The power and functions of the Principals and Superintendent of the Govt. Hospitals are indicated in the notification dated 15.02.1991. Under this notification the hospital management is the responsibility of the Principals and Superintendent of the Establishment. He is also responsible for procurement of medicines and materials and for maintenance of the buildings. Under a previous notification of 29.10.1990, the post of Principal in the Govt. Medical Colleges is redesignated as the Principal-cum-Chief Superintendent of the Medical College & Hospitals. The scope and ambit of power of the Principal-cum-Chief Superintendent of the Medical Colleges, as can be seen from the two notifications suggest that the management of the hospital is the responsibility of the Principal and neither the Director of Health nor the Director of Medical Education, is involved in the day to day functioning of the Government hospitals. 11. The limit of pecuniary jurisdiction of the Principal may perhaps be a defence in the event of prosecution, under the proviso to Section 17(1) of the Environment Act. But such limits do not alter the position that the Principal-cum-Chief Superintendent, is the responsible authority for management of the hospital. Therefore in the event of any infringement, the answerable person for lapses would naturally be the Principal-cum-Chief Superintendent of the hospital. The same analogy would also apply for the Joint Director, who is the Head of the MMC Hospital, which currently, is not a teaching establishment. 12. The learned Sr. counsel for the petitioner has referred to the position of the Director of Health Services in the Delegation of Financial Powers Rules, 1999 for the Government of Assam. Here the Director is described as the Head of the Department. However the Director of Health is not involved with the day to day management of the Medical Colleges and Government Hospitals. Therefore, it would be illogical in my view to make them principally accountable, in the event of infringement of the Medical Waste Rules, merely because of the Financial Rules, 1999, read by Mr. Uzir. 13. However the Director of Health is not involved with the day to day management of the Medical Colleges and Government Hospitals. Therefore, it would be illogical in my view to make them principally accountable, in the event of infringement of the Medical Waste Rules, merely because of the Financial Rules, 1999, read by Mr. Uzir. 13. The Medical Waste Rules require the hospitals to provide for segregation and scientific disposal of medical waste and therefore, when the day to day management of the hospital is not the responsibility of the Director, he should not be roped in as the Head of the Department, under the Financial Rules, 1999 to answer for the lapses in the Government Hospitals, as these Rules are not applicable in the present case. 14. The respective Principal-cum-Chief Superintendent of the Medical Colleges and the Joint Director as the Head of the MMC Hospital, are responsible for the hospital management and also for procurement of medicines and other requirements as well as the maintenance of buildings. They are the Disciplinary Authority for the staff attached to the hospital. In such circumstances, it is difficult to accept the submission made from the petitioners' side that the Head of the Hospitals should be absolved from being held accountable, for the infringement committed in those establishment 15. The expression "Head of the Department" finding place in Section 17 of the Environment Act, in the context of a Government Medical College, should be understood to be the Institutions and placing the Director in such position will in my perception, will be illogical since the Director, at best, exercises general control and is not involved with day to day management of the Hospitals. 16. In view of the foregoing discussion, the challenge to the Government order of 27.05.2008 (Annexure-D) sanctioning prosecution of the petitioners, is found to be meritless and the same is accordingly dismissed. However in the event of prosecution, the petitioners are at liberty to avail the defence plea under the proviso to Section 17 of the Environment Act and the Court should deal with the cases on merit, in accordance with the Environment Act and the Bio-Medical Waste Rules, without however being influenced by this order. It is ordered accordingly. With the above order, the cases stand disposed of. No cost.