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Petitioner: AAMIR LUTUF ALI ZARDARI VS Respondent: PROVINCE OF SINDH and others
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: AAMIR LUTUF ALI ZARDARI vs PROVINCE OF SINDH and others Case No.: Constitutional Petition D-1557 of 2015 Date of Judgment:2016-12-07 Reported As: 2019 CLC 224 Result: Order accordingly
Judgment ORDER SALAHUDDIN PANHWAR, J.---Through instant petition, the petitioner Aamir Lutuf Ali Zardari, while claiming to be working as a "social worker" in the name and style of Shaheed Benazir Bhutto Welfare Society Pakistan, at Hyderabad in the field of Blood Banking since 08 years; submitted an application to respondent No,3 for permission to open blood bank at Civil Hospital Hyderabad or in the premises for which the said respondent No,3 has issued N.O.C; had made an application for registration of blood bank to the Director Sindh Safe Blood Transaction Authority Disarmament of Health, Provisional Secretariat Shah Latif Hostel Sindh Medical College Campus NICVD Karachi which despite having been sent through TCS but could not reach for unavoidable reasons therefore petitioner personally appeared before the Director and got received such application; that due to good reputation and services provided by the blood bank of the petitioner he has been issued various performance certificates by the respondent No,3; that petitioner since 2008 is striving for the welfare of public in the field of health sciences and providing facilities to patients at the time of urgent need in order to save precious lives of the patients in serious conditions; that the petitioner has also approached respondents Nos,1 and 2 for redressal of his grievance but all the complaints of the petitioner were unheard; petitioner also alleged misuse of powers and designation by respondent No,5 who is running blood bank at Civil Hospital Hyderabad and that he (respondent No,5) intends not to allow the petitioner to open blood bank at Civil Hospital Hyderabad as he blackmails the poor persons for blood bags and for the medical tests of hepatitis B and C and that due to intentional negligence and corruption of the respondent No,5 -so many people lost their lives at the hand of respondent No,5; the administration of Civil Hospital Hyderabad also proved to be negligent in securing the needs of poor ill people; that the petitioner
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is serving to the nation in the field of Health Sciences besides Edhi and Saylani Welfare but only the society of the petitioner has got 3 best performance certificates and remaining two social welfare organizations have not got any such certificate for rendering services to the public; that due to undue harassm ent and mental torture created by the respondents, the petitioner society is facing hardship and troubles; that respondent No,4 has been graced with million of rupees to construct his new office in Civil Hospital Hyderabad and public money has been misused in foolish like activities and the budgets have been shown insufficient to meet the public needs and to purchase life saving medicines. Hence the petitioner has approached this Court with the following prayers:- "(A) That this Honourable Court may kindly be pleased to issue writ declaring that act of respondents Nos, 3, 4 and 5 is illegal, unlawful, ab-inito void and contrary to law. (B)That this Honourable Court may be pleased to direct the respondents Nos, 3, 4 and 5 not to create hurdles in the way of petitioner so also restrain from misusing their powers and designations. (C) That this Honourable Court may be pleased to direct the respondents Nos,1 and 2 to take legal and lawful action against the respondents Nos, 3, 4 and 5 while restraining them not to take law in their hands so also step issuing threats to the petitioner and his well wishers, workers and those persons who have joined the hands of petitioner voluntarily for the welfare of public. (D) That the respondents Nos, 3, 4 and 5 are playing tricks and using force against petitioner and other volunteer persons, if any unavoidable incident would happen then the respondents Nos, 3, 4 and 5 will be held sole responsible for the same and such statement may be kept on the record so that it could be used at the time of need." 2. The respondents, on service, filed their respective comments. In the comments filed by respondents Nos, 3 to 5, it is stated that petitioner is not social worker, he has illegally occupied the blood bank of the Liaquat University; petitioner has no any locus standi under Article 199 of the Constitution; on the complaint of Dr. Abdul Wahab, Incharge Blood Bank Liaquat Medical Hospital, Hyderabad against the petitioner and others that they are involved in illegal and unlawful activity in blood bank Liaquat Medical Hospital Hyderabad are misusing official blood bank facility and storage capacity upon that the respondent No,3 restrained the petitioner from interfering in the Blood Bank of the hospital. Thereafter, petitioner forwarded application dated 07.10.2015 to the respondent No,3 in respect of issuance of NOC to open blood bank in the hospital and the respondent No,3 directed the petitioner to get registration from Sindh Safe Blood Transaction Authority, besides the respondent No,3 issued letter dated 11.07.2015 to the petitioner to get registration of blood bank from the authority but no NOC was issued to the petitioner by the respondent No,3 as stated in the petition; that the petitioner filed application dated 13.07.2015 to the Director Sindh Safe Blood Transaction Authority requesting for registration of blood bank which is still pending and the petitioner is not entitled to open blood bank before the registration; that neither the petitioner possesses the qualification nor having any experience or affiliation for service of the blood bank; that no best performance certificate was ever issued to the petitioner; petitioner has managed all the bogus certificates; that the petitioner has been earning money from the poor persons through blood bank; that the petitioner is involved in criminal activities and has no role for welfare; that the petitioner's blood bank is not registered to the authority but he. has moved a n application with regard to registration which is still pending; that the respondents Nos, 4 and 5 are working under the administration of respondent No,3 hence they are responsible to inform all the illegal and unlawful activities carried out by the petitioner in the blood bank; that the respondent No,5 who is Assistant Medical Superintendent is runt ling the blood bank and not misusing the powers and designation as alleged by the petitioner; that the Civil Hospital maintained the blood bank in its premises for the poor patients under the administration of respondents Nos, 3, 4 and 5
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to avail healthy blood at the time of emergency; that respondents Nos, 3, 4 and 5 are performing their duties according to law and providing all the medical facilities including blood to the poor patients in the Civil Hospital, Hyderabad; that the petitioner is a notorious criminal and involved in many including 'FT Rs No,318/2009, 319/2009 and 91/2011 registered with P.S. Tando Jam and SITE Hyderabad; that the petitioner is also an absconder in some c ases and he forcibly carried out the so-called civil work of the hospital, that the petitioner is creating hurdles in the administration of the hospital and does not want to leave the illegal occupation of the blood bank in 1Liaquat Medical Hospital, Hyderabad by harassing and blackmailing the administration of the blood bank; that the petitioner has made fake performance certificates by showing the signatures of Medical Superintendent Liaquat University Hospital, Hyderabad in the name of Chairman, Shaheed Benazir Bhutto Welfare Society regarding continuation of blood bank in old burn ward, Civil Hospital, Hyderabad; that the respondents Nos,3 to 5 have neither issued any sort of harassment nor created any hurdle to the petitioner but attempting to save the poor patients from illegal activity of the petitioner supplying poor quality of blood and owing to which many patients have died due to reaction of the blood supplied; that as the petitioner is a criminal person and required in niany cases and he has approached this Court with unclean hands and has concealed real facts from this Honourable Court; that the petition is liable to be dismissed with cost. 3. At this juncture, it would be relevant to say that there can be no denial to the well established principle for exercising Constitutional Jurisdiction that 'in serving the interests of the community or public, at large, the inconvenience and loss to an individual or some shall not come in the way, particularly when it involves fundamental rights of community or public at large'. Reference, if any, can well be made to the case of Pakistan Muslim League (N) (PLD 2007 SC 642). Since, the issue involved in the instant petition, being directly and prima facie relating to the 'healthcare' in a government hospital which otherwise is ensured / guaranteed by the Article 9 of the Constitution itself and was/is meant for public at large therefore, status of 'Custodian' of fundamental rights of public at large, compelled to take a pause on individual grievance of petitioner, and to direct Mr. Asif Hyder Shah, Commissioner, Hyderabad Division to visit the hospital and to report so as to know whether matter, in fact, involves infringement of guaranteed fundamental rights or otherwise? The report had prima facie indicated poor rather miserable condition of hospital thereby denying such guarantee, with certain suggestions/recommendations with reference to admitted/acknowledged facts and positions i.e: i) the poor rather miserable condition of hospital thereby infringing guarantee, provided by Articles 9 and 14* of Constitution; ii) recommendations/suggestions from skilled persons for uplifting the health care within four corners of admitted/acknowledged facts and law; iii) pendency of financial schemes/projects, already recommended, before quarter concern; but was not being dressed up thereby resulting in denial to guarantee provided by Chapter-I of Part-II of Constitution. There can be no denial to the well established fact that 'health-care' does include the meaning of term 'life' because the term 'life' is not restricted to mere the vegetative or animal life or mere existence from conception to death but it (life) includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally, therefore, order dated 22.09.2015 was passed by this Court, which in fact was a hammer only to what was acknowledged and recommended by concerned and related persons i,e, Officials who otherwise are always under legal obligations and duty not only to perform their duties fairly but to accelerate that process which directly involves "guaranteed undamental rights". The picture shall become brighter and clearer from reproduction of the order dated 22.9.2015 which is: "In compliance of the orders passed on 29-07-2015 by this Court, Mr. Asif Hyder Shah,
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Commissioner, Hyderabad Division submitted an interim report dated 12.08.2015, in which it is stated as under: - "4. During a preliminary visit of the hospital by the undersigned it was also observed that the building needs major uplift and extension. The wards, especially Emergency Units, Gynae Ward and OPDs are overcrowded due to shortage of space. At the same time the approaches to Civil Hospital inside and outside the Hospital are too congested to cater for any emergency. Needless to submit that effective Operation Management is required to determine the bottle-necks in the entire process. 5. It is pertinent to submit that LUMHS is a tertiary care facility and such hospital is generally meant for handling patients requiring additional medical attention. However, due to poor condition of secondary care medical facilities within and outside District Hyderabad most of the burden is being shared by this hospital. 6. Regarding infrastructure it can very safely be maintained that the hospital requires major infrastructural uplift including repair of existing wards, water supply and drainage system and additional units specially the emergency ward and operation theaters. 7. It is brought to the notice of this Court that Secretary Health has prepared a development scheme regarding rehabilitation of the LUMHS which is under consideration in Planning and Development Department. It would be appropriate, if Secretaty Health is directed to pursue the said scheme and get it approved in the larger interest of the hospital and patients. The report/progress of work carried out during past years in civil side is enclosed (Annexure-D for perusal). 8. A team of four senior doctors headed by Professor Dr. Salma Shaikh, Dean, Medicines, LUMHS, Jamshoro was constituted to carry out a detailed inspection of Liaquat Medical Hospital Hyderabad and work out a proposal for technical shortcomings and lacuna in the hospital related to service delivery. 9. The above committee has pointed out a large number of short comings in terms of staff, equipments, training and capacity building. A detailed report of the committee along with requirements and recommendations for each unit is enclosed as (Annexure-E) for perusal. The committee in its conclusion has also suggested that the Medical Superintendents should be from amongst the senior professors rather than the executives, of the health department. 10. .................................... 11. .................................... 12. .................................... 13. .................................... 14. The undersigned has paid many overt and covert visits to the hospital, sometimes under disguise as a patient, to collect first hand information and to gauge the extent of pain and suffering of patients and their families. Being a responsible government officer I will be candid enough to admit that civil hospital Hyderabad is suffering from acute management issues apart from severe deficiency in terms of infrastructure, equipments, human recourse and hygiene. The Medical Superintendent and the health department have been informed at many occasions about irregularities in the hospital. 14.Accordingly, following recommendations are submitted for perusal of the Court: i. The Secretary Health Department may be directed to pursue and get the schemes approved in order to bridge infrastructural gaps especially water supply and sanitation. ii. The Secretary Health Department may also be directed to ensure provision of human resource as per sanctioned strength of hospital and according the patient load. iii. The report submitted by the Doctor's' Committee regarding equipment and allied facilities should be shared with Secretary Health for consideration and phase wise 'implementation as
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recommended by the Committee. iv. The draft audit report may be forwarded to Secretary Health Department for further necessary action after seeking explanation from responsible officers as per their tenure as Medical Superintendent. v. The Government of Sindh should also consider constituting a high powered Executive Board comprising senior doctors and reputable dignitaries from Hyderabad and oversee the management and affairs of the hospital. vi. The medical stores may be decentralized to the ward level, Professor Incharge of the Ward should be in full authority to grant and maintain storage and supply of medicine to indoor patients in his Ward. vii.The Medical Superintendent may ensure that no private medical store blood bank and laborato runs within remises o hospital. 2. We appreciate the manner in which the Commissioner not only probed into the matter but also came up with recommendations / suggestions based his personal visits, observations and facts couple with report of the Committee of Senior Medical Officers. The report prima facie speaks volume that there is:- i) need of major uplift and extension including repair of existing words, water supply and drainage system and additional units specially the emergency ward and operation theaters; ii) pending consideration .of development scheme regarding rehabilitation of LUMHS; iii) short-comings in terms of staff, equipments, training and capacity building; iv) corruption of huge amount; 3. Since the report is undeniably an outcome of the order of this Court which even resulted into pin- pointing a massive corruption of Rs,71.031 Millions in result of irregularities by officials concerned for which an FIR has been lodged. There can be no denial to the fact that:- i) The Secretary Health was there; ii) The hospital has its management and controlling authority; iii) The Anti-Corruption Establishment was also functioning; iv) The Commissioner office and other administrative official(s) were functioning; but the report in hand has made us to say that the existence- of office(s) and putting some one there alone shall not serve the purposes thereof unless the superiors ensure a watch over working of subordinates and necessary action as and when required without any hesitation of a single moment. Proper functioning of each department shall not only uplift its own functioning but shall bring material changes in all whether related directly or indirectly. Such, gross illegalities and irregularities in a single government hospital, which too for a specific period, is an alarming situation. Thus, brings a serious question mark not only over the function of said offices but also about objects of their existence even. The work of an official does not come to an end only be assuring his presence in the office but when situation demands he should mark his presence in the field too. The sense of existence is not depended to existence of a building but signs thereof which the people must feel. The negligence of an official to let an illegality or irregularity to continue is not worth ignoring but must be checked at corrected at its inception because ignoring a minor illegality or irregularity always opens room for a serious of illegalities/irregularities which some time can cost irreparable losses as might happen in such like institutions. 4. Since a scheme for rehabilitation of the hospital in question is already pending consideration, therefore, Government of Sindh is directed to expedite the matter and ensure immediate action, preferably within six months, in that respect. The progress report, is that regard shall be communicated to this, court on monthly basis. 5. Besides, the decentralization of the medical store at departmental level is also a good suggestion/recommendation because it shall make the inc'harge of such department
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accountable as arid when any malpractice is pointed out or complained by people. The Government of Sindh (Health Department) is required to frame a policy whereby decentralization the medical stores at department level under direct supervision of the incharge of department and should also ensure mechanism to encourage people to come forward to complain about any illegality, irregularity or even behavior and conduct of the staff towards the patients etc. 6. Further, this is also not a disputed position that hospital in question is over-burdened because of improper secondary medical facility in nearby districts, therefore, till such time level of secondary medical facilities in such districts is uplifted the Government of Sindh (Health Department) shall with consolation of senior professors of the hospital ensure provision of required equipment, medicines, staff e.t.c. This exercise shall be completed within a period of 30 days. 7. Since, these are in result of above report therefore, compliance of the above directives shall not lessen the burden of the Government of Sindh, Health Department to frame a policy whereby chalking out measures and actions so as to eliminate the grievance of the people or least restoring a sense of trust and faith in people that they shall have proper medication, treatment, medicine e.t.c. which otherwise is the ultimate guarantee, so provided by Constitution under Article 4 of the Constitution. It is not practicable for Health Secretary to make constant visits at each hospital though it is his duty, therefore, the Secretary Health should least ensure that Administrative functionaries like Commissioner and Deputy Commissioner are encouraged to become helping hand in pin pointing any illegality / irregularity in such institution as they remain available at such level. Thus, this aspect also shall be considered while framing policy. 8. At this juncture, the conclusion of Finance Audit of Liaquat University Medical Hospital, Hyderabad also needs to be referred which reads as:- Conclusion:- ................... In the office of Medical Superintendent Liaquat University Medical Hospital Hyderabad for the year 2014-15, it was noticed that huge liability of Rs,31.214 million on account of electricity charges was paid to the local office for the electric meters un-authorizedly being used for the officers / officials living in residential colony, without installing meters and justifying deduction charges from the salaries of officials. Further huge liability of Rs,12.121 million was cleared without having details, justification and reconciliation. ............................. ............................. In the office of Medical Superintendent Liaquat University Hospital Hyderabad for the year 2104-15, it was observed that an amount of Rs,3.996 million was incurred on account of consumables, but the bidding documents, dealership to supplier for particular product and accountal along with consumption needs to be provided. Further the consumables from Messrs M.A. Traders and Messrs My Enterprises were purchased without quoting rates of items in comparative statement. Hence purchase was made irregular and un-authorized. ............................. ............................. In the office of Medical Superintendent Liaquat University Hospital Hyderabad for the year 2014-15, it was noticed that income tax of Rs,686.338 as per rule was neither deducted nor deposited into government account. Hence government sustained the loss due to non-deduction of income tax. 9. The operative part above indicates gross illegalities, committed by the officials of the Hospitals in using the electric meters e.t.c. allowed for premises within the hospital, at other places whereby they indirectly misappropriated the official amount / fund of the hospital, meant for such purpose. Needless to say that all, attached with noble and respectable profession of medicine, regardless of their status should not make themselves as a symbol of illness of society by indulging in evil
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practices. Anti-corruption department shall also probe this aspect of the matter too. 10.While parting, it is made clear here that lodgment of FIR shall not exempt the guilty from departmental action in respect of illegalities or irregularities, if committed, therefore, the Secretary Health shall ensure proper action at departmental level whereby ensuring that not a single guilty escapes the punishment which the law demands. This exeicise shall be completed within two months with compliance report." 4. Needless to add here that the Secretary of Health department was otherwise legally obliged and required to remain coming forward with better rather best mechanism so as to improve the "healthcare services" not only for 'present' but keeping in view the massive increase in the population and future increase too. There is no denial that a considerable budget (67 BILLION) is kept / allocated for 'healthcare facilities' every year but mere allocation of amount cannot achieve the intended object and purpose of such allocation unless and until custodian thereof comes with a proper mechanism to use such amount so as to get maximum benefits without complaining over allocation but smart utilization thereof. A head of department alone cannot get maximum benefits unless he knows the ways of using all organs i,e, subordinates and ensures a good control and command over administration of its `department'. The help of skilled and experts should always be appreciated and one should not be reluctant to involve experienced, skilled and experts while forming some policy or mechanism which prima facie appeared to be lacking in such an important department i,e, `health department' which surfaced with a little tapping of this court to perhaps slept one by involving skilled officials from same stock already available for help to the Secretary, Health Department. 5. This was so, that Secretary, Health department responded to interim order while coming forward with open statement thereby acknowledging deficiencies; delay in release of funds of approved schemes even. Further, recommendations/suggestions, so made base of interim order of…
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