Arun Mishra, J.
1. The main question has arisen in the instant case is to the entitlement of the 'Laboratory Technician' to run the Pathology Laboratory and also about the 'qualifications' to be possessed by Laboratory Technician, Question is also whether visiting pathologist can be allowed to make the visit occasionally in the pathological laboratory and whether such laboratories can be said to be run by pathologist and can be allowed to be run.
2. The question involved in the writ petition is of utmost importance for the health of human being, detection of ailments, curative process including medicinal treatment to be imparted depends on the various investigation reports to be furnished on laboratory tests by the pathological laboratories.
3. Finding that the laboratory in question 'Maruti Clinical Pathology' has being run by non-qualified person. Prohibitory order Under Section 133 of the Cr. P.C. was passed by SDM restraining the running of laboratory. The S.D.M. Jabalpur took the cognizance against the laboratory run by petitioner as petitioner Smt. Kamla Patel did not possess the recognized qualification to run the laboratory. The S.D.M. was of the opinion that the reports prepared by non-qualified person may 'adversely affect' the health of human. Final order was passed on 24-4-99 to the effect that petitioner Smt. Kamla Patel cannot run the pathological laboratory, She can work only under a qualified pathologist and with respect to the Diploma claimed to be possessed by the petitioner Smt. Kamla Patel the correspondence was made with the State Govt. In case she is not qualified, her qualification is not recognized, she would not be able to run the laboratory. The order passed Under Section 133(1) Cr: P.C. was made absolute. The order sheet dated 19-4-99 of the Court of S.D.M. in proceedings Under Section 133, Cr, P.C. indicates that petitioner had filed Diploma in Medical Laboratory Technology obtained from Institute for continuing Medical and Career Making Education (hereinafter referred to as 'ICME'). It is recorded that she has obtained the Diploma training in Janki Raman College situated at Jabalpur and appeared in the examination at Mumbai and used to go every Sunday to Mumbai.
4. Chief Medical & Health Officer (CHMO), Jabalpur, as per letter P.S. dated 29-6-2002 directed the laboratory to be closed forthwith as the same was found to be run by the petitioner illegally. In case the same is not stopped, action in accordance with law shall be initiated.
5. Petitioner filed writ petition on 16-7-2002 praying for the relief that the order P. 5 dated 29-6-2002 be quashed and petitioner be allowed to run her clinical pathology and such other orders which may be deemed fit by this Court under the circumstances be passed. Petitioner has made the averment in the petition that petitioner is running the pathology laboratory. Petitioner is having Diploma (P. 1) in Medical Laboratory Technology (For short 'DMLT') issued by registered Institute for Continuing Medical and Career Making Education (ICME). The said Institute is registered with Govt. of Maharashtra under Mumbai Public Trust Act, 1950, Diploma was issued in the year 1998. Petitioner established the said pathology under the name of Maruti Pathology Lab' in Panagar, District Jabalpur for the purpose of test of routine blood, urine and biochemical examination. The petitioner started the said pathology under the guidance of Senior Doctor, Dr. B. M. Agrawal who is a retired Pathologist. Document (P. 2) in this regard has been filed. The said certificate (P. 2) is granted by Dr. B. M. Agrawal certifying that Smt. Kamla Patel is working as a laboratory technician under his guidance and supervision.
6. Further averment made by the petitioner is that some local anti-social elements tried to harass the petitioner with intention -to snatch money from her and complaint was lodged by them. The anti-social elements are being politically influenced. Report was made to the Collector and Collector made the inquiry against the petitioner Under Section 133, Cr. P.C. through S.D.O. Nothing was found against her. Petitioner is running pathology laboratory under the guidance of senior most Doctor and Pathologist Dr. A. S. Makheeja (M.B.B.S., M.D.) as apparent from certificate (P.W. 4) issued by Doctor concerned. Despite of all these facts without assigning any reason, without conducting any inquiry and without giving any opportunity of being heard, respondent No. 3 issued an order P.5. Petitioner further submits that in Panagar there are several pathological labs which are running smoothly and the respondents are not taking any action against them. Petitioner is running the pathology lab legally. Respondent No. 3 has no jurisdiction to close the lab of the petitioner. The order is without issuing show cause notice, without reason and petitioner has been discriminated with other pathological laboratories which are being run similarly.
7. An application for amendment was filed on 26-7-2002 which was allowed. By way of amendment, it is further alleged that petitioner has obtained Diploma for running Para Medical Laboratory/Institute. It is not necessary to get any kind of recognition or N.O.C. from any of the body or Government etc. There are no rules and provisions for running the said Para Medical Course. In all India, all the pathology laboratories are running on the basis of the said Diploma i.e. DMLT. All the pathologies are run by technicians having Diploma i.e. DMLT are having similar circumstances like the case of petitioner as no institute has any recognition from any body or Govt. or any institute, as it is not necessary to get any recognition because there are no rules & provisions in this respect. In the impugned order it is nowhere mentioned that the pathology lab has been closed on the ground of having no recognition. Petitioner is running her pathology lab under the guidance & supervision of expert Doctors i.e. Dr. A. S. Makheeja and Dr. Sadan Lal Yadav. The qualifications for Doctor Incharge were shown of Dr. B. M. Agrawal as M.B.B.S., D.C.P. The application mentions that facilities available with the unit are for tests of routine blood, urine and microscopic routine blood, blood sugar. Technician i.e. petitioner Smt. Kamla Patel is having M.A. DMLT.
8. A rejoinder has been filed by the petitioner on 25-9-2002 contending that the order dated 26-6-2002 has been recalled on 5-8-2002. In view of above development, there is nothing to contest in the petition. Therefore, suitable order may be passed. The order dated 5-8-2002 has also been placed on record passed by the CHMO, Jabalpur. On the basis of certificate P. 2 dated 1-7-2002 submitted by Dr. B. M. Agrawal, temporary permission was accorded to run 'Maruti Clinical Lab' and it was directed that only routine urine and blood sugar routine tests be performed under the guidance of a pathologist and no reporting be made by the petitioner.
9. Return has been filed by the respondents on 23-9-2002. In the return it is contended that the petitioner who is holder of diploma in Medical Laboratory Technology from the Institute of Technical Medical and Career Making Education, Bombay, Maharashtra has no power or authority under the provisions of law to establish or run the pathology lab. The pathology is a branch of modern scientific medicine and the course of study as well as the conferral of degree in this branch is made by recognized university after due recognition of the degree or diploma in pathology is recognized under the Indian Medical Council Act, 1956. It is also contended that the M.P. Ayurvigyan Parishad Adhiniyam defines 'medicine' as a branch of modern scientific medicine and defines 'recognized medical qualification' to mean those included in the Schedule to the Indian Medical Council Act, 1956 and any of the qualification specified in the Schedule to the Act. Section 21 of the M.P. Ayurvigyan Parishad lays down that no person can practice or hold himself out whether directly or indirectly as practicing medicine within the State. The issue of unqualified person running the pathology lab, came up before the M.P. Medical Council constituted under the provisions of M.P. Ayurvigyan Parishad Adhiniyam and on query being raised by the Indian Medical Association Indore Branch the council has clearly specified that only those persons can be termed as qualified pathologist who possess a duly recognized degree/diploma in pathology and duly registered with the M.P. Medical Council Bhopal under Section 13 of the M.P. Ayurvigyan Parishad Adhiniyam. The council has also informed that persons holding any other degree for example M.Sc. Microbiology and Biochemistry cannot run pathology lab. The council has further clarified that no migrated doctor can practice in the State of M.P. unless and until he gets himself registered with the M.P. Medical Council, Bhopal, The council has specifically stated that diploma in medical lab. Technology is the qualification of lab. Technician and therefore such person cannot practice as pathologist and run clinical pathology lab. Letter (R. 1) was issued by the M.P. Medical Council on 27-4-2001. Another letter R. 2 was issued on 6-12-2000, on receiving several complaints regarding the illegal functioning of the Maruti pathology lab. By the petitioner who is only a lab technician the premises was inspected by the Chief Medical and Health Officer, Jabalpur on 29-6-2002 and it was found that the lab was being run by the petitioner who is only a lab technician and there was no qualified doctor pathologist in the lab. It was also stated by the petitioner that one Dr. Makheeja who was attached to her lab, was not attending the lab since last one and half months. On the said basis the impugned order (P. 5) dated 29-6-2002 was issued. Subsequently the petitioner has produced a certificate of Dr. B. M. Agrawal, resident of Jabalpur who has certified that the petitioner is working under his 'supervision' at Maruti Lab. Petitioner's husband is working as Lab Technician in Government Hospital at Panagar. Petitioner is student of Arts and has procured DMLT certificate. The facts speak for themselves. Petitioner is habitual of using intimidatory tactics. In view of the certificate issued by Dr. B. M. Agrawal the order (P. 5) dated 29-6-2002 has been recalled as per order (R. 4) dated 5-8-2002.
10. Considering the various documents on record, correspondence and the order passed Under Section 133, Cr. P.C. and various important questions involved with respect to the running of pathological laboratory, this Court has declined the prayer made by the petitioner not to pursue the writ petition in view of order (Rule 4) which is illegal as discussed hereafter passed by respondent No. 3, as that has been passed during the pendency of the writ petition and time was taken time & again to produce the relevant Rules by the petitioner, however, as petitioner failed to produce the relevant Rules, direction was given to the CHMO to be kept present to explain the position about running of pathology labs,
11. An application for intervention has also been filed by the interveners Dr. P.G. Najpande and Shri Sarvesh Mishra. The same was filed on 3-10-2002. Intervention application was allowed by this Court on 7-10-2002 considering the serious allegations meted out and importance of question involved. The tests reports issued by the pathology centre run by Smt. Kamla Patel have been placed on record in which there is no mention of any qualified pathologist. The interveners contended that the signature made below the reports for pathologist and technologist are the same signatures which are being made by the same and one person. Even on the reports of this particular laboratory there is no mention of qualified pathologist. It is further contended that husband of the petitioner Shri Sharda Prasad Patel is working as Laboratory Technician in the Govt. Hospital, Panagar. He is misusing his position at hospital and is sending the patients who are coming to the hospital for investigation to the laboratory run by his wife and carrying out various pathological tests. In this way they are earning illegal huge amount from the poor patients who are coming to the Govt. Hospital to receive treatment free of charge. It is further contended that in Jabalpur city there are more than '40' such laboratories which are being run by the persons who are not qualified as pathologist. Letter of the Collector, Jabalpur, addressed to the CHMO dated 6-6-2002 has also been placed on record by the intervenors requiring CHMO to take action against illegally run pathology centers and it was directed that the pathology centre which was illegally run by petitioner be stopped and CHMO was required to explain why he had not taken any action into the several irregularities at Health Centre, Panagar. Thereafter the order (P.5) was passed by the CHMO which has been impugned in the instant writ petition, Intervenor has also filed objections before the Block Medical Officer regarding the running of pathology lab in illegal manner.
12. Reply has been filed by the petitioner to the application for Intervention. It is contended that the allegations have no relevance. There is no bar that wife of technician cannot run such type of lab if she is eligible for running the same. Petitioner can legally run the pathology lab under the supervision of a doctor in accordance with the permission. The intention of the intervenor is to harass the petitioner and is an exploitative device. The husband of the petitioner is not helping her in running the laboratory.
13. The Intervenor in the reply contends that Dr. B. M. Agrawal although has given the certificate that Smt. Kamla Patel is working as lab technician under his guidance and supervision at Maruti Clinical Lab at Panagar. The order issued by the respondents on 5-8-2002 is not justified since Dr. B. M. Agrawal never attends Maruti Clinical Lab. The respondents in this particular case should have made the verification, whether Dr. B. M. Agrawal is attending this particular laboratory before issuing the order (R. 4) dated 5-8-2002. Dr. A.S. Makheeja never attended this lab and only then the impugned order (P.5) was issued on 29-6-2002. The affidavits of two residents of Panagar have been filed showing that Dr. Agrawal or any other Doctor are not attending the Maruti Lab for Pathological investigation. Affidavit of Shri Shyam Tiwari has been filed who has deposed that he resides in front of the laboratory and no Doctor makes the visit. Tests are performed by Smt. Kamla Patel and she gives the results. Sharda Patel used to sit throughout day in the laboratory. To the same effect affidavit has been filed by Shri Vijay Yadav.
14. Further affidavit has been filed by the petitioner Smt. Kamla Patel to the effect that Shyam Tiwari is having ill will with her husband and Shyam Tiwari had lodged the report on 15-2-2002. The affidavit of Shri Vijay Yadav is also false as he did not complete the work under the agreement entered into on 10-12-2001 between the petitioner and Shri Vijay Yadav. Notice was also issued. There is no ring of truth in the affidavit filed.
15. Additional documents have been filed by the Intervenor on 31-10-2002 in which letter of Dr. Anil Grover dated 24-10-2002 addressed to Dr. B. M. Agrawal has been placed on record. Intervenor contends that Dr. B. M. Agrawal is working as a full time pathologist in Grover Pathology Lab. Shyam Talkies, Jabalpur from June, 2002. As such it is not possible for Dr. B. M. Agrawal to work as pathologist in Maruti Pathology Lab at Panagar on the same day in person, since Panagar is 14 k.m. away from Jabalpur. Dr. Anil Grover submitted this information of working of Dr. B. M. Agrawal in Grover Pathology as Pathologist to the C.H.M.O., Jabalpur.
16. Considering the factual disputes and various other circumstances, this Court thought it apposite to record the statements of petitioner Smt. Kamla Patel, Dr. B. M. Agrawal and that of Chief Medical and Health Officer. Dr. A. H. Khan.
17. Smt. Kamla Patel was examined by this Court on 26-11-2002 and stated that :
'In my Laboratory urine and blood tests are performed. ESR, HB, TLC, total count & differential count, malaria parasite test and Widal test are performed in my laboratory. SGOT and SGPT tests are also performed. Report dated 21-4-2002 is relating to enzymes and is from my laboratory. Every day I am preparing 2-3 reports. 70-80 reports are prepared in a month. 1 charge for hemoglobin report Rs. 30/-. My maximum charge for the report is Rs. 30/-. I am saving for myself sum of Rs. 23,000/- every month, I am incurring an expenditure of about Rs. 2,000/- every month. I am paying maximum of Rs. 2,000/-. Sometimes it happens only Rs. 1,000/- 1,500/- are saved. Accordingly we have to apportion the amount between myself and Doctor. We also have to pay to the servant and rent also. Doctor is not regularly sitting with us. He makes the visit only after one or two days. Doctor is not visiting the laboratory regularly.'
18. Dr. B. M. Agrawal was also examined on 26-11-2002. Statement is to following effect:
'Dr. B. M. Agrawal states that he is working in the Laboratory concerned w.e.f. 1st July, 2002. He is residing at 229, Jai Nagar, Garha Road, Jabalpur. He is not regularly attending the laboratory, whenever the reports are to be made he makes the visit twice or thrice in a week. He remains in laboratory only for one or two hours on his visits. It is not that I am signing the report in my house. Technician performs the test not I. One third share I obtain. I am obtaining Rs. 23.000/- every month. My signatures are not there on the report filed as Annexure IA-2. In blood test total differential count is included. Haemoglobin count is also counted. Widal test is also performed in the laboratory. Blood grouping tests are also performed in the laboratory. I see the slides and then I make the report. I receive the amount by cash. I cannot say how much amount I have obtained in the last month. Rs. 23,000/- is average amount. When C.M.O. allowed and gave the permission thereafter only I have started attending to the Laboratory. After seeing the document dated 5-8-2002 states; I started working in the laboratory after this permission. Earlier I was not attending to it. I have received a copy of this permission. On the date of furnishing the certificate P. 2 on 1-7-2002 petitioner 'Kamla Patel' was not working under my guidance and supervision. Only on my visit to the laboratory I have mentioned in the certificate that Kamla Patel is working as Lab Technician under my guidance and supervision at Maruti Pathology Laboratory at Panagar, Jabalpur and as a matter of fact she was not working under my guidance and supervision as on that date.
Question : Is it correct to suggest that you have given the false certificate?
Answer : I have given the certificate.
On 29-6-2002 the date of application I was not working in the laboratory.'
19. The Statement of Dr. A. H. Khan, CHMO was recorded on 3-12-2002. Dr. A. H. Khan has stated that :
'I visited Panagar laboratory in question and found that it was illegally run, hence I ordered its closure on 29-8-2002. On 5-8-2002 I granted permission on the basis of letter dated 1-7-2002. After 29-6-2002, I did not visit the laboratory in question to verity whether Dr. B. M. Agarwal was actually working in laboratory as mentioned by him in his certificate dated 1-7-2002. I did not verify this fact personally whether Dr. Smt. Kamla Patel was functioning under the supervision of Dr. B. M. Agarwal. I cannot say how many laboratories are functioning in Jabalpur and I cannot say as to whether they are working under the Pathologist as I have not verified. I have not made any visit to any laboratory at Jabalpur so as to verify whether they are actually working under the supervision of Pathologist, I without actual verification relied upon the letter of Dr. Agrawal dated 1-7-2002. In four weeks time, I can submit the report to this Court on actual verification of the laboratories verifying whether they are working under supervision of Pathologist. The actual reading has to be done of the reports by an MD/DCP Pathologist who is registered with the Medical Council of M.P. can give such reports.''
20. Shri Rajendra Tiwari, learned Senior counsel with Shri V. Tiwari, appearing for the petitioner, has contended that petitioner is having the right to run the laboratory as she is possessing the qualification of master of Arts & DMLT and she is working under the supervision of Dr. B. M. Agrawal. Though Doctor may be visiting the laboratory as & when required, it is not necessary that the laboratory should be owned by Pathologist, the same can be established by Technician who is duly qualified and Doctor can supervise the laboratory and the tests can be performed under the supervision of qualified pathologist and qualified pathologist gives the report on personal verification of the tests performed. There is nothing on record to show that petitioner is not possessing the requisite qualification for running of such laboratory within the State of M. P. No permission from any of the authority is necessary. Petitioner has attended the classes run in 'Janki Raman College'. Jabalpur and appeared in 'examination' in 'Mumbai' and used to go to Mumbai on Sunday for attending the practical. There is nothing on record to show that the State Govt.'s permission is required. The trust in question which imparted education of DMLT is registered under Mumbai Public Trust Act, 1950. There is no violation of the order passed under Section 133, Cr. P.C. Dr. B. M. Agrawal is working in the pathological laboratory. Thus, the impugned order (P. 5) has been rightly recalled by the CHMO as per order (R. 4) dated 5-8-2002. Learned Sr. counsel, for the petitioner further submitted in the programme of the State relating to Tubectomy operation, LTT/CTT operation Female Sterilisation Programme report is obtained from laboratory technician and he has placed printed pro forma for consideration.
21. Ms. Seema Agrawal, learned counsel appearing for the respondent/State, has placed reliance on the letters issued by the M.P. Medical Council on 27-4-2001 and 6-12-2002. Letter R. 2 dated 6-12-2002 indicates that only the person possessing M.D. in pathology or Diploma in Clinical Pathology (DCP), can run the pathology lab and can only give the report and is authorised to give the report. The qualifications are required to be registered Under Sections 13 and 24 of the M.P. Ayurvigyan Parishad Adhiniyam, 1987 (hereinafter referred to as 'the Adhiniyam') and no person can run pathological laboratory on the basis of diploma and can only work as technician in an established laboratory. Such qualification has to be obtained from authorised institute. Laboratory Technician cannot run the pathology lab independently and can work as lab technician in the laboratory. Learned counsel for the respondents has also referred to the letter dated 27-4-2001 which shows that no person can run pathological laboratory independently merely on the basis of the academic qualification of M.Sc. (Microbiology & Biochemistry). To work as a qualified pathologist, the person must possess the Medical qualifications; degree/diploma, M.D. Pathology or D.C.P. (Diploma in Clinical Pathology) and person must be duly registered with the M.P. Medical Council, Bhopal Under Section 13 of the Adhiniyam. No migrant Doctor can practise in the State of Madhya Pradesh only on the basis of their medical registration certificate issued by their parent States. DMLS (Diploma in Medical Laboratory Sciences) and DMLT (Diploma in Medical Laboratory Technology) are only the Lab Technician qualifications in case if such diplomas are awarded by a recognised institutions. The person possessing DMLS and DMLT, diploma cannot practise as a Pathologist and run a clinical pathology laboratory independently in the State.
22. Intervenor Shri P. G. Najpande submits that Lab Technician has no right to run the pathological laboratory. Petitioner alleges to have obtained diploma by attending the classes in Janki Raman College, Jabalpur. The said para medical course is not recognised and it is improbable that theory classes were attended at Jabalpur and for practical every Sunday petitioner used to go to Mumbai and the examination was conducted at Mumbai. In the petitioner's laboratory various tests are performed such as enzymes, SGOT/SGPT which are sensitive in nature of tests. They are not performing routine urine and blood sugar only. Widal test is also performed and several other tests for which laboratory in question is not equipped. As a matter of fact CHMO has granted the permission without verifying and as admitted by Dr. B. M. Agrawal that he was not working on the date; he gave the certificate P. 2. Thus, the permission has been obtained on certificate which is false. Thus, the order R. 4 is bad in law. He has further submitted that within the State of M.P. no such courses can be conducted within the framework of law. Same is not recognized qualification under the Adhiniyam. The CHMO has failed to discharge the duty and to check the illegally running of the laboratories which are hazardous and creating havoc to the human life and health. If the reports are given by nonqualified person 'quacks' the human life is endangered and order (R. 4) passed during the pendency of writ petition is bad in law and shows lack of application of mind. He has further submitted that only pathologist can run the laboratory and pathologist must run it on full time basis and technician can work in such laboratories not vice versa.
23. Various questions arise for consideration in the instant writ petition. Question for consideration is whether petitioner being laboratory technician has a right to run pathology laboratory and whether petitioner is having the recognized qualification of DMLT to work in the pathological laboratory. Whether the order (R. 4) passed by the CHMO is valid. Whether the Institute for Continuing Medical and Career Making Education can run the college for DMLT course at Jabalpur which is a trust under Mumbai Public Trust Act. What are the parameters to be observed while giving permission for running the pathological laboratories and to ensure that they are run in accordance with law.
24. The case of the petitioner is that the order P. 5 dated 29-6-2002 passed by the CHMO be quashed for the reasons that petitioner is running the pathological laboratory under the guidance & supervision of Dr. B. M. Agrawal who has given the certificate P. 2 on 1-7-2002. In para 5.1 it is mentioned that petitioner started the laboratory under guidance of Senior Doctor who is M.B.B.S. and retired pathologist and in para Section 3 it has been wrongly mentioned that she is 'running' pathological laboratory under guidance of senior most Doctor and Pathologist Dr. A. S. Makheeja as evinced from report P. 4. Dr. B. M. Agrawal has been examined in this Court on 26-11-2002. Though he has stated that he is working in the laboratory w.e.f. Ist July, 2002, however, he admitted that he is not regularly attending the laboratory. He makes the visit twice or thrice in a week. He remains in the laboratory only for one or two hours on his visits. Technician performs the tests not he. He has further stated that when CHMO allowed and gave the permission thereafter only he has started attending to the Laboratory. After seeing the document R. 4 dated 5-8-2002 he stated that he started working in the laboratory after this permission. Earlier he was not attending the laboratory. He has received a copy of this permission. On the date of furnishing the certificate P. 2 dated 1-7-2002 petitioner Smt. Kamla Patel was not working under his guidance and supervision. Only on his visits to the laboratory he has mentioned in the certificate that Kamla Patel is working as Lab Technician under his guidance & supervision at Maruti Pathology Laboratory at Panagar, Jabalpur and as a matter of fact she was not working under his guidance & supervision as on that date, it is clear from the statement made by Dr. B. M. Agrawal that he has given false certificate to the CHMO and CHMO has acted on the basis of the said certificate without actually verifying the fact whether Dr. B. M. Agrawal is working in the laboratory in question and whether Smt. Kamla Patel was working under his guidance and supervision.
25. Dr. A. H. Khan, Chief Medical & Health Officer stated before this Court on 3-12-2002 that when he visited Panagar laboratory in question, he found that it was illegally run, hence, he ordered its closure on 29-6-2002. On 5-8-2002 he granted permission on the basis of letter P. 2dated 1-7-2002. After 29-6-2002 he did not visit the laboratory in question to verify whether Dr. B. M. Agrawal was actually working in laboratory as mentioned by him in his certificate dated 1-7-2002. He did not verify this fact personally whether Smt. Kamla Patel was functioning under the supervision of Dr. B. M. Agrawal. He could not say how many laboratories are functioning in Jabalpur and as to whether they are working under the pathologist as he has not verified the said fact. He stated that without actual verification he relied upon the letter of Dr. B. M. Agrawal dated 1-7-2002. He further stated that he can make verification of the various laboratories at Jabalpur and submit the report in four weeks whether they are working under supervision of pathologist. The actual reading has to be done by pathologist and pathologist can give the reports. Smt. Kamla Patel stated before this Court on 26-10-2002 that Doctor is not regularly sitting with her. He makes the visit only after one or two days. Doctor is not visiting the laboratory regularly. Every day she is preparing 2-3 reports. 70-80 reports are prepared in a month. Thus, it is established beyond pale of doubt that petitioner has obtained the permission R. 4 on the basis of false documents P. 2 which is a certificate granted by Dr. B. M. Agrawal on 1-7-2002 to the effect that he was working in the said laboratory though he was not actually working in the laboratory, in the application filed by the petitioner to the CHMO it was wrongly mentioned that Dr. B. M. Agrawal was working in the pathological laboratory. CHMO did not verify the fact and acted upon the false certificate P. 2. Thus, the permission granted as per order R. 4 on 5-8-2002 is ex facie illegal and is based on inexistent fact.
26. For yet another reason the order R. 4 passed on 5-8-2002 by CHMO, Jabalpur is bad in law as the order sheet dated 19-4-1999 in the proceedings Under Section 133, Cr. P.C. indicates that petitioner had filed the certificate of diploma, obtained by her from Institute for Continuing Medical and Career Making Education (ICME) of DMLT. She has stated before the S.D.M. that she obtained the diploma training from Janki Raman College, Jabalpur and appeared in examination in Mumbai. She used to go to Mumbai 'every Sunday'. S.D.M. has written a letter to the CHMO regarding the validity of said diploma. The order-sheet dated 24-4-1999 of the SDM Court to proceedings Under Section 133, Cr. P.C. collectively (P. 3) filed by the petitioner indicates that CHMO has opined that petitioner could not run the pathological laboratory at her own and could work only with the qualified pathologist and with respect to the qualification of diploma in question CHMO was making correspondence with the State Govt. The CHMO has ignored and overlooked the material fact recorded in the order-sheet P. 3 dated 19-4-99 and 24-4-99 that whether the petitioner could obtain the diploma from ICME which is run by Public Trust of Mumbai in the method & matter suggested and whether petitioner could obtain the training at Jabalpur in Janki Raman College, Jabalpur and without even caring for obtaining the report from the State Govt. whether such qualification possessed by petitioner is recognized one or not, has issued the order (R. 4) on 5-8-2002 that too during the pendency of this petition, when this Court was already in seisin of the matter. The fact whether petitioner is having recognized diploma ought to have been ascertained by CHMO before allowing the petitioner to run the pathological laboratory. Thus, CHMO has failed in discharge of the duty in proper manner.
27. Madhya Pradesh Sah Chikitsiy Parishad Adhiniyam, 2000 (hereinafter referred to as 'the Act of 2000') has been framed by the State of M. P. which is an Act to provide for establishment of Para Medical Council in the State and to regulate the practice by Para Medical practitioners and paramedical education. 'Paramedical' is defined under Section 2(b)(i) of the Act. 'Paramedical' means any personnel qualified in paramedical subject and who helps in teaching or practice of medicine within the meaning of Clause (i) of Section 2 of the Indian Medical Council Act, 1956 with which we are concerned in the instant case. Section 2(c) defines 'Paramedical subject' to mean the subject mentioned in the Schedule. Schedule as mentioned in Section 2(c) provides for 'laboratory technicians' (various types) and other technicians required for other works are also mentioned. In all there are 31 entries. Laboratory Technician (various types) of Item No. 4 with which we are concerned in the instant case as pathological laboratory technician is covered by Item No. 4 of the Schedule. 'Recognised paramedical qualification' is defined Under Section 2(d) of the Act to mean a degree, diploma or certificate in any paramedical subject, granted by any University established by law or any other institution recognised by the State Government in this behalf. It is not shown that ICME is a recognised institute and Govt. has authorised ICME registered under Mumbai Public Trust Act to run the classes in Janki Raman College, Jabalpur and in any case said institute is not shown to be recognised by the State Govt. It is not shown that ICME was allowed to run the course at Jabalpur in Janki Raman College and moreover is not shown to be an institute recognised one. Section 2(d) of the Act of 2000 is quoted below :
'2(d) 'Recognised paramedical qualification' means a degree, diploma or certificate in any paramedical subject, granted by any University established by law or any other institution recognised by the State Government in this behalf.'
28. Section 28 of the Act of 2000 deals with the Recognition of paramedical qualification granted by University or Paramedical Institution in India. Section 26 of the Act is quoted below :
'26. Recognition of paramedical qualification granted by University or Paramedical Institution in India.
The paramedical qualifications granted by Indian Medical Institutions, which are included in the Schedules to the Medical Council Act, 1956 shall be recognised paramedical qualifications for the purpose of this Act.'
29. 'ICME' is not mentioned in the Schedule to the Medical Council Act, 1956. Thus, it cannot be said that qualifications obtained from ICME is to be treated as recognised qualification for the purpose of the Act of 2000. Section 26 provides for recognition of paramedical qualification outside India shall be recognised in that case where there is a scheme of reciprocity. Section 28 of the Act deals with the Recognition of Paramedical qualification granted by certain Paramedical institutions whose qualification are not included in the Schedule. Any paramedical institution in India, which desires a paramedical qualification granted by it, to be included in the Schedule, may apply to the State Government with such application fee as may be fixed by regulation to have such qualification recognised and the State Government, after consulting the council, may by notification in the Official Gazette, amend the Schedule as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of Schedule against such paramedical qualification declaring that it shall be recognised paramedical qualification only when granted after a specified date. Section 29 of the Act deals with power to require information as to courses of study and examinations. Every University or Paramedical Institution in India which grants a recognised paramedical qualification, shall furnish such information as the Council, may, from time to time, require as to the courses of study and examinations to be undergone in order to obtain such qualification, as to the ages at which such courses of study and examinations are required to be undergone and such qualifications conferred and generally as to the requisites for obtaining such qualification. Section 30 of the Act requires Inspection of Paramedical Institution. The Council shall cause all paramedical Institution to be inspected as and when deemed necessary. Section 31 of the Act deals with withdrawal of recognition. Section 32 of the Act provides for Minimum standards of Paramedical Education. It is not shown that the qualification is recognised one under the Act nor is included as recognised qualification Under Section 28 of the Act. Thus, in my opinion, petitioner is not having the right to run the pathological laboratory in view of the provisions of the said Act as qualification is not shown to be recognised under the said Act.
30. It is extremely doubtful that petitioner has obtained any instructions of diploma training run by ICME, Mumbai, registered under Mumbai Public Trust Act, 1950 with the Govt. of Maharashtra. On facts it is unbelievable that petitioner used to go on every Sunday to Mumbai for the practical classes and theory class was attended by her at Janki Raman College, Jabalpur. Firstly, duty was cast upon the CHMO to ascertain whether ICME which is trust registered under Mumbai Public Trust Act is recognized by the State Govt. and qualification of DMLT granted by ICME even for laboratory technician is recognized by State of M.P. or not. This fact has not been ascertained by the CHMO. M.P. Medical Council in its letter dated 27-4-2001 filed along with letter R. 1 has clearly mentioned that diploma in Medical laboratory Sciences, DMLS and diploma in Medical Laboratory Technology, DMLT are only the laboratory technicians qualifications in case if such diplomas are awarded by a 'recognized' institute. It was clearly mentioned in the letter that person possessing DMLS and DMLT diploma 'cannot practise as pathologist' and 'run' a clinical pathology laboratory 'independently' in the State. Another letter R. 2 of M.P. Medical Council dated 6-12-2000 makes it clear that only the 'pathologists' who are possessing M.D./Diploma in clinical pathology, can 'run' pathological laboratory and are 'authorised' to give the reports and they should be 'registered' Under Section 13 and 24 of the Adhiniyam. It was further made clear that on the basis of diploma DMLT possessed by person an incumbent, pathological laboratory cannot be run. They can 'work' as technician in an 'established laboratory'. They cannot run the pathological laboratory independently and can only work as laboratory technicians. There is nothing on record to show that CHMO made any endeavour to see that petitioner possesses the recognized qualification nor CHMO made any endeavour to ascertain whether petitioner can run the laboratory.
31. Integrally connected with the above question is whether a laboratory can be allowed to be run by laboratory technician and pathologist may be allowed to make the visit twice or thrice in a week and to sign the reports. The tests being performed by laboratory technician without his supervision, in my opinion, letter R. 2 dated 6-12-2000 of M.P. Medical Council in Para 3 mentions that oh the basis of diploma of laboratory technician, pathological laboratory cannot be run and such technicians can work in an established laboratory. Even if a technician is possessing the recognized qualification, such technicians cannot run the pathological laboratory independently and can only work as laboratory technician. In the instant case, it clearly emerges out from the facts that laboratory is being run by Smt. Kamla Patel who is not shown to be possessing recognised diploma qualification and so called Doctor B. M. Agrawal makes visit for one or two hours after one or two days i.e. twice or thrice in a week though which claim itself is doubtful. Such laboratories cannot be said to be 'run by pathologist' but 'run' by 'laboratory technician' for all the purposes and, in my opinion, in order to weed out quakes it is necessary to draw a line between a laboratory run by pathologist and run by technician. The pathologist must attend the laboratory regularly and should perform the reading and should get the tests performed under his supervision and only thereafter can sign the reports. Same is necessary to wee out the quackery from the field of pathological laboratories. The laboratories which are not being run by pathologist, cannot be, in my opinion, allowed to run by State. Pathologist should run the laboratory on regular basis and must have the deep and real interest in running of the laboratory. There is ring of truth around the allegation made by the Intervenor that Dr. B.M. Agrawal is not attending to the laboratory in question and had given the false certificate P. 2. Panagar is located at 14 K.M. away from Jabalpur and Dr. B. M. Agrawal was working in another pathological laboratory at Jabalpur. Dr. B. M. Agrawal was working under Dr. Anil Grover who has objected to Dr. B. M. Agrawal on issuing the certificate (P.2) which was issued by Dr. B. M. Agrawal which on the basis of tacit admission made by Dr. B. M. Agrawal is shown to be false. Dr. B. M. Agrawal mentioned in the certificate P.2 that Smt. Kamla Patel is working as lab technician under 'my guidance and supervision' at 'Maruti Pathology Laboratory', Panagar at Jabalpur. This certificate was given on 1-7-2002. She was not at all working under his guidance and supervision. It is also extremely doubtful that Dr. B. M. Agrawal is making the visits after one or two days as claimed by him in the instant case. In any case such laboratories in which pathologist is not on regular basis, cannot be allowed to run at all. There are serious complaints of wrong analysis reports all around by pathological laboratories and the fact is writ large as submitted by CHMO that he has not verified whether Dr. B. M. Agrawal is working and whether the pathological laboratories at Jabalpur are being run by the technicians or by pathologists. Situation is grim and if the laboratories which are not run by pathologists are allowed to dispense with, perform tests without being equipped as to give the various reports relating to the sensitive tests which is so vital for human health and follow up treatment may jeopardize health and is hazardous to the diagnosis and curative thereby.
32. M.P. Ayurvigyan Parishad Adhiniyam, 1987 prescribed a qualification for pathologist and registration under Sections 13 and 24. Same is required to be observed. When requirement is for a pathologist to supervise the tests making the reading and then give the reports technician can be allowed to render the help in performing the tests not beyond that and cannot be allowed to run the laboratory independently; for drawing the distinction and draw a line between the pathology run by pathologist and pathological laboratory run by technician, in my opinion, as discussed above, there should be a regular pathologist in the laboratory available at the time when tests are performed, reading is done and reports prepared which is absolutely missing in the instant case.
33. Yet another disturbing feature which is reflected in the order-sheet P.3 dated 19-4-99 of the S.D.M. which was filed in the proceedings instituted against the petitioner Under Section 133 Cr.P.C. The stand of the petitioner was that ICME run the course in the premises of Janki Raman College, Jabalpur. The claim appears to be doubtful and enquiry is directed to be made and whether training can be imparted by ICME at Jabalpur in Janki Raman College and under what authority within the framework o law. If the institution is not recognised by the State Govt., can it run the course in State of M.P. Let this enquiry be conducted by the Council constituted under the Act of 2000 and Council constituted under the Act to take remedial measures against such institutes. It is also the duty of State to ensure that only recognised institutes impart training.
34. Perusal of order (R.4) dated 5-8-2002 indicates that petitioner was allowed to do routine urine and blood sugar tests considering the facilities available in the laboratory, however, in the laboratory Widal test, SGPT, SGOT and enzymes tests are also performed as admitted by Smt. Kamla Patel for which she has no authority. Such tests cannot be said to be routine tests and require sensitive handling,
35. Another important facet is safeguards to be observed while granting permission to run pathology lab and whether it can be limited to the kinds of test which can be performed in laboratory. Intervenor contended that Maruti Pathological Laboratory is being illegally run and it has no proper equipments/permission for performing sensitive tests which it is performing. Thus, the running of laboratory is hazardous to the human life and was rightly set at naught in proceedings Under Section 133 Cr.P.C. Thereafter permission has been illegally accorded after closing it down as per order (P.5) on 29-6-2002 on actual verification of the spot and thereafter without caring for actual verification and visit, permission was granted on the false certificate (P.2) is apparent. CHMO ought not to have dealt with the matter so lightly and cursorily -as has been done in the instant case, particularly when matter is concerned with the health and any laxity may be hazardous and running of illegal pathological laboratories which are unequipped and not properly manned are serious risk to the human health, treatment and life itself. When it was found by the S.D.M. that pathological laboratory was running illegally and certain correspondence was pending with the State Govt. to ascertain that qualification of petitioner is recognised. CHMO ought not to have acted in undue haste. CHMO took the action of closure on 29-6-2002 only after he was asked to do so by the Collector, Jabalpur as per letter dated 6-6-2002. CHMO is expected not to grant permission in mechanical manner; duty is cast on the CHMO to safeguard the health and lives of general public and also to supervise that the laboratories which are run are having proper equipments for the kind of tests, they are performing. In case laboratories are not equipped with the proper instruments for performing the kind of test, they are performing. CHMO cannot grant the permission for performance of such tests in the pathological laboratories and has to restrict functioning. Thus, it is imperative that CHMO must mention in each of the permission that laboratory in question is equipped for which kind of test which are performed and in laboratory only such tests can be performed for which it is equipped and allowed. Thus, the duty is enjoined upon the CHMO not to grant the blanket permission but the permission for the kind of test for which laboratory is equipped instrumentwise and only in case the same is having services of regular qualified pathologist within the framework of the Adhiniyam of 1987 and if any technician working as technician within the framework of law prescribed in the Act of 2000. The reasonable restrictions on the right to practise of pathological laboratories are envisaged under the said Adhiniyam and Act and petitioner cannot complain that any unreasonable restriction will be put by not allowing technician to run pathology lab when the pathology is not being run by pathologist. The laboratory technician who is not qualified one, cannot work as technician in a laboratory. The right to run the laboratories is not unfettered and has to be in tune with the right to life itself of human which is jeopardized on furnishing of wrong report. Laboratory cannot be allowed to be run by unqualified person who is not a pathologist. Laboratory technician can 'work' in an 'established laboratory' which is to be run by pathologist not vice versa.
36. Right to carrying occupation trade or business-under Article 19(1)(g) of the Constitution of India is not unfettered and is subjected to the restrictions imposed under the Adhiniyam and Act. There is duty cast on the State to see that improvement of public health takes place. Right to have the proper report for treatment of the ailments is implicit in the right to life itself which is enshrined under Article 21 of the Constitution of India and cannot be allowed to be dealt with arbitrarily.
37. It appears from the statement of CHMO that state of affairs with respect to running of pathological laboratory is not happy. CHMO has stated that he cannot say how many laboratories are functioning in Jabalpur and cannot say whether they are working under pathologist as he has not verified. He has not made any visit to any laboratory at Jabalpur so as to verify whether they are working under supervision of pathologist and he granted the permission in question without verification. It is high time when directions are issued to the State authorities and CHMO to ensure that running of unequipped and illegally run pathological laboratories is put to halt forthwith; all the laboratories are checked.
38. The following directions are issued :
1. That pathology labs are run by pathologist who is qualified under M.P Ayurvigyan Parishad Adhiniyam, 1987 and fulfills the requirement of Sections 13 and 24 of the said Act.
2. No laboratory technician is allowed to run the laboratory. Laboratory technician can only work in laboratory which is actually run by qualified pathologist.
3. Laboratory technician possesses the recognised qualification and has the right to do so under the M.P. Chiktisiy Parishad Adhiniyam, 2000.
4. The only those tests are allowed to be performed in the laboratories for which they are equipped; blanket permission to run the laboratory be not given.
5. There should be periodical inspection of the pathological laboratories to ensure that they are being properly run by pathologist and they are equipped, for the kind of tests they are performing and have the due permission for that.
6. Pathological laboratories in which pathologist is not working should be verified and functioning be stopped forthwith on inspection being made.
39. Let the report about the various pathological laboratories be furnished within a month from the date of this decision before this Court. The State may take action and direct the concerned CHMO of the various Districts to make the verification of the laboratories in the terms mentioned above and to obtain the report. Secretary, Public Health and Family Welfare, is directed to ensure that pathological laboratories are run properly in the State and to ensure the compliance of the directions made in this order, CHMO, Jabalpur is also to make verifications of all laboratories in Jabalpur and submit report as directed.
40. The order R. 4 dated 5-8-2002 is quashed. Let compliance reports on being filed be registered as MCC as and when the same is filed. Let copy of this order be also forwarded to the council under M. P. Sahchiktisty Parishad Adhiniyam for taking action in terms of this order and also to look into the matter. Costs on parties.