2023 PLP 1672 (YLR)

SHAHID KARIM, J.

This constitutional petition challenges two orders passed by the Punjab Healthcare Commission (PHC) while exercising jurisdiction under the PHC Act, 2010. Respondent No.6 filed a complaint to PHC whose cognizance was taken in terms of section 4(7) and undertook investigation into allegations of malpractice etc. on the part of the healthcare service provider (petitioner). It is the case of PHC that the complaint is regulated by the Complaint Management Regulations, 2014 which has been duly notified and published in the official gazette on 08.07.2014 (Regulations). The regulations envisaged a complaint management system according to which the commission shall have an interior complaint management system under the Directorate of Complaints, for receiving, managing and resolving complaints submitted to it. After deciding on the maintainability of the complaint it is entrusted in terms of rule 8 for investigation and probe by the competent authority to Case Worker. In this case it is common ground that the PHC had entrusted the investigation of the complaint made by respondent No.6 to a case worker which has been defined as a competent authority or an officer of PHC who is authorized to investigate and/or process complaints. Learned counsel for PHC informs that the case worker in this matter is a Commission Panel comprising of Mubashar Nadeem and Ajmal Saeed. The first order to which a challenge has been brought is dated 7.1.2022 which has been passed by the Director Complaints. This challenge should receive a short shrift. Learned counsel for PHC has not been able to controvert the proposition that in cases which have been entrusted to a case worker as a competent authority, no other authority is competent to pass an order of interim nature which not only must be heard but also decided by the Commission Panel which has been constituted as the competent authority. It is also interesting to note that the Regulations, 2014 do not mention any competent authority by the nomenclature Commission Panel and from a reading of the Regulations the competent authority is either the Commission or the case worker to whom delegation may be made by the competent authority. Thus, the order dated 7.1.2022 is ultra vires and incompetent and has no basis in law. It must be set aside on this ground alone. It is reiterated that any interim orders to be passed on all questions arising during the investigation must be decided by the Commission Panel / Case Worker as the competent authority and none else. The second order has been passed on 17.3.2022 by the Commission Panel. The precise contention of the learned counsel for the petitioner is that the petitioner has been caught unaware and must be confronted with the list of witnesses which is sought to be produced by the complainant. This contention has its provenance in the rule of fairness and due process of law which requires an investigation and determination of rights to be made fairly and must be based on the primary principles governing rule of law. Firstly, any case worker/ Commission Panel investigating a complaint against a service provider must formulate the primary issues which arise out of the complaint and which are required to be confronted and responded by the healthcare service provider. Secondly, the parties must be obliged by the case worker/Commission Panel or the competent authority hearing said complaint to file a list of witnesses along with affidavits prior to commencement of the proceedings in the complaint. This will be in consonance with the principles of fairness and will not take any of the parties by surprise. Doubtless, any proceedings in the complaint and investigation against a healthcare service provider must be imbued with the basic rule of administrative law relating to rationality and reasonableness. It would be in the interest of fair proceedings and would work reasonably in favour of both the complainant and the healthcare service provider against whom the complaint has been made that issues are clearly identified and the parties are put to notice regarding witnesses and other evidence that is sought to be produced against each other. This Court in its constitutional jurisdiction does not intent to interfere in the regulatory authority of PHC but it is the duty of this Court to ensure the observance of fundamental principles of rule of law was that no one is treated unfairly and discriminately. Obviously the competent authority would have the power to call for further evidence if need be which must be done in terms of the Regulations, 2014 and after proper notice to the parties. This is of the essence of the due process of law. It is evident from the impugned order dated 17.3.2022 that the competent authority required the complainant to avoid the affidavits of the witnesses by a certain date and thereafter the petitioner has been granted an opportunity to cross-examine those witnesses. This course of action does not contravene the due process of law. However, in all future determinations and investigations in complaints brought before PHC it is directed that not only that issues shall be identified at the start of hearing of the complaint but the parties shall be required to submit their list of witnesses so that the parties may know the case against one another.

2. In view of the above, this petition is partly allowed. The order dated 07.01.2022 is set aside. The application submitted by the petitioner shall be deemed to be pending and may be decided by the competent authority / Commission Panel which will be decided in the light of the observations made above. SA/A-45/L Order accordingly.