P L D 2021 Lahore 843 (PLP)

ABID HUSSAIN CHATTHA, J.

The titled Petition is directed against the order dated 03.10.2018 passed by the Punjab Healthcare Commission (the "Commission") and Judgment dated 08.02.2019 passed by the District Judge, Sargodha.

2. At the outset, it is important to state that the Petitioner, who filed the titled Petition died on 27.04.2019 during the pendency of this Petition and through C. M. No. 1/2021, the Petition was allowed to be proceeded through his legal heir, namely, Zahoor Elahi.

3. The brief facts of the case are that the Petitioner was duly qualified and enrolled as Dispenser with the Punjab Medical Faculty, Lahore since 1987 who rented out a portion of his house (the "Property") to one Dr. Safdar Nawaz (the "Doctor"), a qualified and enrolled medical practitioner with the Punjab Medical and Dental Council (the "Council"). The Doctor was running a medical clinic at the Property of the Petitioner in the name and style of Gondal Health Clinic in Wagowal village, Tehsil Shahpur, District Sargodha (the "Clinic"). The Petitioner was also working as a Dispenser under his direct supervision. The Doctor submitted an application for registration of the Clinic as Healthcare Service Provider before the Commission on 02.05.2018 in which the name of the Petitioner was mentioned as Dispenser at Serial No. 1 of Appendix B, pertaining to information of part time staff. Further, in Appendix C of the said application, Electro-Medical Equipment used therein was also listed. On 09.05.2018, the Respondent No. 3 (the "Manager Enforcement") of the Commission visited and checked the Clinic at 03:47 P.M. and on account of certain alleged violations, sealed the Clinic on the spot. On 10.05.2018, the Doctor moved an application before the Commission for de-sealing the Clinic. However, on 25.05.2018, the Doctor submitted another affidavit before the Commission stating therein that he had left the Clinic with effect from 25.05.2018. It was submitted that the Property did not belong to the Doctor who left the sealed premises and the Petitioner as owner was made a scapegoat to deal with the issue pending before the Commission. Thereafter, one Dr. Ghaus Muhammad, another qualified doctor took over the charge of the Clinic as lessee.

4. Learned Law Officer and counsel for the Respondents, on the other hand, submitted that during the visit and inspection by the Manager Enforcement, the Petitioner was found practicing allopathy in contravention of the provisions of the Punjab Healthcare Commission Act, 2010 (the "Act") and the Punjab Healthcare Commission Regulations For Banning Quackery In All Its Forms And Manifestations And For Dealing with Quacks, 2016 notified vide Notification No. 167 of 2016 dated 26.10.2016 as amended vide Notification No. 50 of 2017 dated 16.03.2017 (the "Regulations"). In the report dated 09.05.2018 submitted by the Manager Enforcement, three fold allegations were levelled against the Petitioner. First, the Petitioner was unable to show his registration from the Council; Second, the Petitioner could not produce his registration certificate or a valid license issued by the Commission to establish, operate and run the Clinic; and third, confiscated medical equipment detailed in paragraph No. 7 of the said report proved that the Petitioner is a Quack. The report further stipulated that the Property has been sealed on the spot in view of the order of the Commission and matter was reported to the Commission for further necessary action under the Act. The report is stated to have been signed by the Petitioner and one witness as well as by the Manager Enforcement. The Respondents alleged that the Petitioner was running the said Clinic as he was owner of the Property. The Petitioner in his affidavit provided with his de-sealing request stated that the Clinic would be run only in the presence of the Doctor, whereas, at the time of inspection, the Clinic was operational and a patient was dealt with Ringer Lactate. Furthermore, the Petitioner had also failed to justify the allopathy items or equipment recovered during inspection. As such, the Commission and the Appellate Court had rightly concluded that the Petitioner is a non-qualified doctor as he failed to show his qualification or registration with the Council to practice allopathy and was also unable to produce registration or license issued by the Commission to establish, operate and run the Clinic for the purpose of rendering medical services. Hence, the Petitioner was rightly declared as a Quack in terms of section 2(xxix) of the Act.

5. Arguments heard, record perused.

6. The impugned order dated 03.10.2018 was passed by the Commission in the following terms:- "The premises shall be de-sealed subject to:- i. Payment of aforementioned amount of fine; ii. Submission of affidavit to the effect that the Petitioner shall not indulge himself in allopathic practice again; and iii. Submission of affidavit of the landlord (In case of rented premises) to the effect that no illegal healthcare service shall be provided in the said premises by the tenant / lessee in future and in case of failure, he shall be liable to be proceeded under the law." The perusal of the aforesaid impugned order indicates that the findings of the Commission are based on the reasons that the Petitioner admitted during the course of hearing that he was doing allopathic practice in the absence of the Doctor qualified for the same (without having requisite qualification and registration from the competent authority); In his de-sealing request, the Petitioner admitted the presence of patient under treatment in the absence of the Doctor qualified to treat him and the Petitioner submitted an undertaking that he would abide by law in future; and the recovery of multiple used syringes, injections and other medical equipment from the Clinic testify that the Petitioner was involved in allopathic practice since the Petitioner neither in his de-sealing request nor in his statement on affidavit, denied recovery of aforesaid items. Moreover, the Petitioner had failed to produce any documentary evidence which authorized him to practice allopathy, therefore, he was a Quack as defined in Section 2(xxix) of the Act. On account of the above reasons, the Petitioner was imposed with a fine of Rs. 330,000/- and it was ordered that the Property of the Petitioner shall be de-sealed subject to payment of the said fine and submission of affidavit to the effect that the Petitioner shall not indulge in allopathic practice again. The learned District Judge, Sargodha while deciding the appeal through the impugned Judgment dated 08.02.2019 also relied upon the same reasoning and dismissed the appeal of the Petitioner.

7. At this juncture, it is important to analyze the scheme of the Act in terms of its applicable provisions in the instant case. Section 2(xvii) defines "healthcare service provider" to mean an owner, manager or incharge of a healthcare establishment and includes a person registered by the Medical and Dental Council, Council for Tibb, Council for Homeopathy or Nursing Council. Similarly, Section 2(xviii) defines "inspection team" to mean a team comprising more than two medical experts having postgraduate qualification and not less than fifteen year's experience in the concerned field, and consisting of one employee of the Commission and others from public or private sector, to inspect any healthcare establishment under the Act. Section 4(2)(g) of the Act empowers the Commission to impose and collect penalties on violation, breach or non-compliance of the provisions of the rules, regulations, standing orders and instructions issued under the Act. However, importantly section 4(7) of the Act reads as under:- "Notwithstanding anything contained in any other law, the Commission may; (a) on a complaint by any aggrieved person; or (b) on a complaint by any aggrieved healthcare service provider; and shall- (c) on a reference by the Government or the Provincial Assembly of the Punjab; or (d) on a motion of the Supreme Court of Pakistan or the Lahore High Court made during the course of any proceedings before it, undertake investigation into allegations of mal-administration, malpractice or failures on the part of a healthcare service provider, or any employee of the healthcare service provider." Section 4(10) of the Act stipulates as under:- "The Commission may exercise the same power as are vested in a civil court under the Code of Civil Procedure, 1908 (V of 1908), in respect of the following matters:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) receiving evidence on affidavits; and (d) issuing Commission for the examination of witnesses." In terms of section 4(12) of the Act, the Commission may authorize members of the staff to administer oaths and to attest various affidavits, affirmations or declarations which shall be admitted in evidence in all proceedings under this Act without proof of the signature or seal or official character of such person. Section 13(1) of the Act deals with registration and provides that a Healthcare Service Provider shall not provide healthcare service without being registered under this Section and the regulations. Further, Section 13(5) of the Act states that the Commission may impose a fine which may extend to five hundred thousand rupees upon a Healthcare Service Provider or who pretends to be a Healthcare Service Provider without registration. Similarly, section 14 deals with licensing and envisages that a Healthcare Establishment shall not be used except in accordance with the terms and conditions of a license issued by the Commission and the unlicensed Healthcare Establishment can be burdened with a fine which may extend to five hundred thousand rupees.

8. Sections 22, 23 and 24 of Chapter V of the Act are most relevant with respect to provision of complete procedure of inspection, investigation or seizure of goods, hence, are reproduced as under:- "

22. Inspection.

(1) The Commission may, by order in writing, appoint an inspection team to perform the functions and exercise the powers of the Commission in relation to inspections under this Act, rules or regulations subject to such conditions and limitations as the Commission may specify in this behalf. (2) The inspection team may inspect a healthcare establishment: (a) at the time of issuance and renewal of license; or (b) on receipt of a complaint. (3) The inspecion team may inspect any apparatus, appliance, equipment, instrument, product, goods or item used or found in, or any practice or procedure being carried out at the healthcare establishment. (4) The inspection team may enquire any case if there has been any instance or allegation of maladministration, malpractice or failure in the provision of healthcare services against a healthcare establishment. (5) The Commission may impose a fine which may extend to fifty thousand rupees upon a healthcare service provider who

(a)refuses or fails, without reasonable cause, to furnish any information to the inspection team; or (b) gives any false or misleading information to the inspection team. (6) Except in the case of a prosecution for an offence under this Act, a member of the inspection team shall not be bound to give evidence in any proceedings in respect of, or to produce any document containing, any information which has been obtained from any healthcare establishment in the course of carrying out any investigation, inspection, enquiry or performing any duty or function under this Act. (7) A member of the inspection team shall not disclose any information at any forum which is contained in the medical record, or which relates to the condition, treatment or diagnosis, of any person, as may have come to his knowledge in the course of carrying out any investigation, inspection, enquiry or performing any duty or function under this Act unless allowed in writing by the Commission.

23. Procedure of investigation.

(1) The Commission shall prescribe the procedure for the conduct of investigation to be carried out by the Commission under this Act. (2) An aggrieved person may, within sixty days from the date of knowledge of the cause of action, file a complaint against a healthcare service provider or healthcare establishment by submitting an application in writing supported by an affidavit of the aggrieved person. (3) The Commission shall not entertain an anonymous or pseudonymous complaint against a healthcare service provider or healthcare establishment.

24. Directions as to apparatus, appliance, equipment or products.

Where, in the opinion of the inspection team: (a) the use of any apparatus, appliance, equipment, instrument, product, goods or item; or (b) the carrying out of any practice or procedure in a healthcare establishment, is dangerous or detrimental to any person therein or otherwise unsuitable for the purpose for which it is used or carried out, he shall immediately report, the matter in writing to the Commission along with the necessary details. On receipt of report, the Commission may act according to the rules, regulations and the procedure prescribed by the Government."

9. Perusal of the record and application of the above provisions of law to the facts and circumstances of the instant case leads to an irresistible conclusion that the mandatory provisions of law were blatantly violated both on the factual and legal plane. In the present case, the Petitioner was an owner of the Property rented by the Doctor. In addition, the Petitioner was employed by the Doctor as a Dispenser. As such, the primary responsibility with respect to the definition of the Healthcare Service Provider in the Act vested with the Doctor and not with the Petitioner because the Doctor was the in charge of the Clinic. Surprisingly, in the entire proceedings before the Commission, the Doctor was not proceeded against, although, it was the case of both the Petitioner as well as the Doctor that the latter was the in charge of the Clinic at the Property. The Doctor was simply and conveniently disassociated from the case by tendering an affidavit to the effect that he had left the Clinic after the date of inspection. The veracity of the facts that the Doctor had rented the Property and was running the Clinic, wherein, the Petitioner was employed by the Doctor as a Dispenser were never ascertained and examined by the Commission. The affidavit of the Doctor was available before the Commission but it was not given any weight to verify as to whether the Clinic was being run by the Doctor or the Petitioner. The Doctor was simply separated from the proceedings and the same were focused on the Petitioner to declare him as a Quack. Even the affidavit of another doctor, namely, Ghous Muhammad is on record who took the charge of the Clinic after the previous Doctor left the Clinic but the same was simply discarded on the ground that he took over the Clinic after the date of inspection of the Clinic. The fact that the Clinic was rented out to a new doctor after the previous Doctor left the Clinic itself indicates that the Clinic was in fact being run under the control and supervision of the Doctor at the time of inspection. The Commission is vested with ample powers under the Act to compel production of documents and to summon and enforce the attendance of any person and examine him on oath. Notwithstanding the same, the Doctor was not summoned and examined by the Commission in order to reach a just and proper decision. The witness of the report was never summoned and examined. Even the Manager Enforcement of the Commission, namely, Fawad Hamid, who visited and prepared the report was never summoned, examined or allowed to be cross-examined. Ironically, the affidavits obtained from the Petitioner with respect to de-sealing of the Property was treated as admission. Such affidavits which are obtained against the promise of de-sealing the Property or against the threat of refusal to de-seal the Property are like confessions of an accused person before the police and therefore, cannot be accorded any evidentiary value. The inspection report was considered as a gospel truth. All Inferences were drawn from the report without reference to the surrounding facts and circumstances of the case. For instance, in the presence of affidavit of the Doctor acknowledging to be the in charge of the Clinic, the recovery of items and medical equipment allegedly confiscated during inspection listed at paragraph number 7 of the report including multiple used syringes and injections, used injection tramadol, used injections dimenlydrinole, injection vitamin B-complex, used injection dexamethasone, drip stand, bed, X-ray unit and ultrasound machine were required to be verified if the same belonged to and were being used by the Doctor or by the Petitioner. This was all the more important since the confiscated medical equipment was listed in 'Appendix C' of the application for registration before the Commission filed by the Doctor which is prior in time than the alleged inspection. Similarly, the evidence to the effect that the Doctor had applied for registration of the Clinic or Healthcare Service Provider on 02.05.2018, prior to the date of alleged inspection in which he himself had mentioned the Petitioner as a Dispenser in Appendix B was not considered at all. The finding that the patient was administered with Ringer Lactate was also never examined or verified as to whether he was being treated by the Petitioner or by the Doctor. No statement of the patient was obtained. Hence, the conclusion that the confiscated equipment or the treatment of the patient as aforesaid as recorded in the report proved that the Petitioner was a Quack was drawn without any independent evidence and was not supported by any corroborative evidence to substantiate the findings of the report. The conclusions drawn by the Commission by solely relying upon inspection report, therefore, does not appeal to the judicial conscience of this Court.

10. There was no complaint of any aggrieved person regarding the Clinic or Healthcare Service Provider on record on the basis of which the inspection or investigation into allegations of maladministration, malpractice or failure on the part of Healthcare Service Provider was undertaken. The Doctor was never examined with respect to his registration or license under sections 13 and 14 of the Act. It was concluded that the Petitioner was not registered with the Council or the Commission, although he never claimed to be doctor or in charge of the Clinic. Section 22 of the Act mandates the appointment of an Inspection Team to perform the functions and exercise the powers of the Commission in relation to inspection under the Act, Rules or Regulations. However, importantly, in the present case, no such Inspection Team was appointed but admittedly the inspection had been undertaken by a single functionary of the Commission which in itself is illegal in terms of section 22(1) read with section 2(xviii) of the Act. There was no order in writing regarding the Inspection Team. The Inspection Team could have inspected the Clinic at the time of issuance of license or its renewal or on receipt of complaint in writing. None of the conditions were attracted in the present case. The alleged inspection was never followed by any investigation rather it fell the curtain spontaneously. The confiscation of medical equipment on the spot was also in violation of the procedure listed in section 24 of the Act and instead of reporting matter to the Commission, the equipment was confiscated straight away. The Act of confiscation and seizure of medical equipment by the Manager Enforcement was in blatant violation of section 24 of the Act as even the Inspection Team is only conferred the power to report the matter to the Commission which can then pass directions according to rules, regulations and the procedure prescribed by the Government. The power to impose fine is granted to the Commission under the various provisions of the Act but while passing the impugned order dated 03.10.2018, the Commission did not specify that which provision of the Act or the Regulations was invoked for imposition of alleged fine of Rs. 330,000/-. It is observed that under section 32(2)(d) of the Act the fees, penalties or other charges imposed under the Act are credited to the fund established under section 32 (1) of the Act. Therefore, the temptation of the Commission to impose heavy or unlawful fines is not ruled out. Hence, it is the duty of the Court to see whether the proceedings which are summary in nature and character under the Act withstand the test of judicial scrutiny on the touchstone of mandatory provisions of law embodied in the Act. In particular, the discretionary powers under the Act including but not limited to sealing of premises and imposition of fines by the Commission must be examined to see if the same were exercised with due care, reasonably, proportionately and in consonance with law.

11. It was also contended that the Regulations gave ample powers to the Commission to undertake drastic measures against Quacks. Perusal of the Regulations reveal that an Anti-quackery Cell was established by the Commission but by doing so certain Regulations were made which are beyond the scope and mandate of the Act. Regulation No. 5 deals with power of visit, seizure and sealing which stipulates that any authorized officer of the executive authorities or the law enforcement agency, or any other person authorized by the Commission in this regard, as the case may be, shall visit the relevant premises to check and verify, if the person(s) rendering healthcare service thereat has/have the requisite valid registration from any of the Councils, the required Certificate of Registration and the valid license from the Commission. The said officer(s) has been empowered to seize all or any relevant evidence, which he may deem necessary. The said officer has also been empowered to seal the said premises. Such powers are inconsistent with section 22 of the Act which requires that the Commission may, by order in writing, appoint an inspection team to perform the functions and exercise the powers of the Commission in relation to inspections under the Act, rules or regulations subject to such conditions and limitations as the Commission may specify in this behalf. Similarly, the power delegated to a single officer under the Regulations is directly in conflict with the definition of inspection team as stipulated under section 2(xviii) of the Act. Therefore, it can safely be concluded that the inspection of the Clinic was not sanctioned and conducted in accordance with the express provisions of the Act. Likewise, the Regulation No. 7(3) states that the Committee shall impose a fine, which may extend to five hundred thousand rupees, upon such a person who was found to be practicing quackery is also against the express provisions of the Act, wherein, section 4(g) declares that it is the sole prerogative of the Commission to impose and collect penalties on violation, breach or non-compliance of the provisions of the rules, regulations, standing orders and instructions issued under the Act. The same could not have been delegated to a Committee nominated by the Commission under Regulation 2(c) of the Regulations to undertake and perform functions which the Act has reserved for the Commission itself to perform. The provisions of the Act shall always override to anything inconsistent in the Regulations. The vires of the Regulations was not impugned through this Petition or argued before this Court. This Court, therefore, is inclined to show restraint regarding the constitutionality of the Regulations which may be examined in some other appropriate case. A few instances, however, are tentatively examined to the extent necessary to answer the arguments or reliance of the Respondents. Further, the observations made herein, are meant to emphasize and reiterate that it is trite law that the Regulations are made in furtherance of the purposes of the Act and any Regulation that is inconsistent with the express provisions of the Act cannot be enforced or sustained. Therefore, it is concluded that the facts and circumstances were twisted or ignored in a bid to simply declare the Petitioner as a Quack.

12. Before parting with this Judgment, it is acknowledged that quackery is a menace as well as a challenge for the society to eradicate. The Act is a beneficial legislation promulgated for the reformation and redressal of issues arising in the medical sphere and the Commission was established and tasked with the administrative and executive responsibility and authority in this regard under the Act. The issue was unequivocally highlighted by the August Supreme Court of Pakistan in Suo Motu Case No. 1 of 2020 and H.R.C. No. 27813-P of 2017. Nevertheless, this country is governed by the Constitution and the law. The Commission is bound by the provisions of the Act being the creature of the statute itself. The existence of a noble and humanitarian cause or emphasis and encouragement by the Honorable Supreme Court of Pakistan in the cause does not confer a license to the Commission to travel beyond the express provisions of the Act.

13. In view of the above discussion, the titled Petition is allowed, the impugned order and Judgment dated 03.10.2018 and 08.02.2019 passed by the Commission and the District Judge, Sargodha, respectively, are set aside. Consequently, the Property of the deceased Petitioner shall be de-sealed and the amount of fine, if recovered, shall be refunded in favour of the legal heirs of the Petitioner by the Commission. ZH/M-142/L Petition allowed.