Banga Khet Mazdoorsamity of Ors Vs. State of West Bengal & Anr  INSC
659 (6 May 1996)
Agrawal, S.C. (J) Agrawal, S.C. (J) Nanavati G.T. (J) S.C. Agrawal.
1996 SCC (4) 37 JT 1996 (6) 43 1996 SCALE (4)282
Paramanand Katara vs. Union of India & Ors., 1989 (4) SCC
286. this Court in the context of medico-legal cases. has emphasized the need
for rendering immediate medical aid to injured persons to preserve life and the
obligations of the State as well as doctors in that regard.
petition filed under Article 32 of the Constitution raises this issue in the
context of availability of facilities in Government-hospitals for treatment of
persons sustaining serious injuries.
[petitioner No. 2] who is a member of Paschim Banga Khet Mazdoor Samity
[petitioner No. 1], an organization of agricultural labourers, fell off a train
at Mathurapur Station in West Bengal at about 7.45 P.M. on July 8, 1992. As a
result of the said fall Hakim Seikh suffered serious head injuries and brain haemorrhage.
He was taken to the Primary Health Centre at Mathurapur. Since necessary
facilities for treatment were not available at the Primary Health Centre, the
medical officer in charge of the Centre referred him to the Diamond Harbour
Sub-Divisional Hospital or any other State hospital for better treatment. Hakim
Seikh was taken to N.R.S. Medical College Hospital near Sealdah Railway Station, Calcutta at about 11.45 P.M. on July 8, 1992.
The Emergency Medical Officer in the said Hospital, after examining him and
after taking two X-ray prints of his skull recommended immediate admission for
further treatment. But Hakim Seikh could not be admitted in the said hospital
as no vacant bed was available in the Surgical Emergency ward and the regular
Surgery Ward was also full. He was thereafter taken to Calcutta Medical College Hospital at about 12.20 A.M. on July 9, 1992 but there also he was not admitted
on the ground that no vacant bed was available. He was then taken to Shambhu Nath Pandit Hospital at about 1.00 A.M. on July 9, 1992. He was not admitted in that
hospital and referred to a teaching hospital in the ENT, Neuro Surgeon
Department on the ground that the hospital has no ENT Emergency or Neuro
Emergency Department. At about 2.00 A.M. on July 9, 1992 he was taken to the Calcutta National Medical College Hospital but there also he was not admitted
on account of non-availability of bed. At about 8.00 A.M. on July 9, 1992 he
was taken to the Bangur Institute of Neurology but on seeing the CT Scan (which
was got done at a private hospital on payment of Rs.1310/-) it was found that
there was haemorrhage condition in the frontal region of the head and that it
was an emergency case which could not be handled in the said Institute. At about
10.00 A.m. on July 9, 1992 he was taken to SSKM
Hospital but there also he was not admitted
on the ground that the hospital has no facility of neuro surgery.
he was admitted in Calcutta Medical Research Institute, a private hospital,
where he received treatment as an indoor patient from July 9, 1992 to July 22, 1992 and he had incurred an expenditure of approximately Rs.
17,000/- in his treatment.
aggrieved by the indifferent and callous attitude on the part of the medical
authorities at the various State run hospitals in Calcutta in providing
treatment for the serious injuries sustained by Hakim Seikh the petitioners
have filed this writ petition.
writ petition the petitioners have also assailed the decision of the National
Consumer Disputes Redressal Commission dated December 15, 1989 in Consumer Unity & Trust Society. Jaipur vs. State of
Rajasthan & Ors and it has been submitted that the expression 'consumer' as
defined in section 2(1)(d)(ii) of the Consumer Protection Act, 1986 includes
persons getting or eligible for medical treatment in Government hospitals and
that the expression 'services' as defined in section 2(1)(o) of the Act
includes services provided in the Government hospitals also. The said question
has been considered in the recent decision of this Court in Indian Medical
Association vs. V.P.Shantha, 1995 (6) SCC 651. In view of the said decision the
only question which needs to be considered is whether the non-availability of
facilities for treatment of the serious injuries sustained by Hakim Seikh in
the various Government hospitals in Calcutta has resulted in denial of his fundamental right guaranteed under
Article 21 of the Constitution.
is not much dispute on facts. In the affidavit of Ms. Lina Chakraborti, filed
on behalf of the State of West Bengal, respondent No. 1, it is stated that the
rural areas of the State are served by the Block Health Centres and by the
Subsidiary Health Centres since redesignated as "Primary Health Centres"
where primary and general treatment is provided but no specialist treatment is
available. Hakim Seikh was examined by the medical officer at the Block Health
Centre at Mathurapur and after giving him first-aid the Medical Officer
referred him to the Diamond Harbour Sub- Divisional Hospital or any State
hospital for better treatment. It is also admitted that Hakim Seikh was brought
to Neel Ratan Sircar Medical College Hospital at 11.45
P.M. on July 8, 1992 and there he was examined and two
skull X- rays were also taken. The medical officer who attended him at that
hospital recommended immediate admission for further treatment but he could not
be admitted in the particular Department, i.e., Surgery Department having
neurosurgery facilities as at the material point of time there was no vacant
bed in the Surgical Emergency Ward and the regular surgery ward was also full.
It is also admitted that Hakim Seikh was thereafter taken to the Calcutta Medical College Hospital, Calcutta National Medical College Hospital and Bangur Institute of Neurology
in the early morning of July
9, 1992 but he could
not be admitted in any of these hospitals because of non-availability of bed.
It was stated that Hakim Seikh could Not be admitted in all the hospitals
having facility of neuro surgery as all such beds were fully occupied on the
date/dates and that such a patient cannot be given proper treatment if he is
kept on the floor of a hospital or a trolley because such arrangement of
treatment is fraught with grave risks of cross infection and lack of facility
of proper post-operative care. In the said affidavit it is also stated that
total number of beds maintained by the State Government all over the State is
57,875, out of which 90% are free beds for treatment of poor and indigent
patients and all the beds in the concerned wings in the Government hospitals in
Calcutta where Hakim Seikh reported for treatment were occupied on the relevant
the pendency of this writ petition in this Court the State Government decided
to make a complete and thorough investigation of the incident and take suitable
departmental action against the persons responsible for the same and to take
suitable remedial measures in order to prevent recurrence of similar incidents.
The State Government appointed an Enquiry Committee headed by Shri Justice Lilamoy
Ghose, a retired Judge of the Calcutta High Court.
terms and reference of the said Committee were :
Enquiry into the circumstances under which the said Shri Hakim Seikh was denied
admission to the State Government hospitals.
Fixing responsibilities for dereliction of duties if any, on the part of any
Government official in this respect.
Recommendations on actions against the Government officials who have found
wanting in the discharge of their official duties in this respect.
Recommendations on actions that should be taken by the State Government to rule
out the recurrence of such incident in future and to ensure immediate medical
attention and treatment to patients in real need." The Committee submitted
its report dated March
21, 1995. In the said
report, the Committee, after examining the relevant record at the various
hospitals, has found :
Primary Health Centre at Mathurapur was not very much equipped to deal with
such types of serious patients and the nurses at the Centre attended on Hakim Seikh
and gave some treatment.
the N.R.S. Medical College Hospital Hakim Seikh was registered, Registration
No. 63649, but no time was mentioned. The admission register of the said
hospital shows that one patient was admitted at 12.15 A.M. on July
9, 1992 and another
patient was admitted at 4.20
A.M. on July 9, 1992. There could not have been any
discharge during the odd hours i.e. between the time when Hakim Seikh was taken
to the said hospital and 4.20
A.M. on July 9, 1992. If two other patients were
admitted after Hakim Seikh was taken there and it was not understandable why
Hakim Seikh was not admitted since it is not disputed that the condition of
Hakim Seikh was grave. Even in excess of the sanctioned beds some patients were
kept on the trolley beds in the morning and that even if it was dangerous to
keep a patient with head injuries on trolley bed he could very well be kept for
the time being on the floor and could be transferred to the cold ward, as the
situation demanded, temporarily. The Emergency Medical Officer concerned should
have taken some measure to admit Hakim Seikh and he is, therefore, responsible
for his non-admission in the said Hospital. The Superintendent of the hospital
should have taken some measures to give guidelines to the respective medical
officers so that a patient is not refused admission although his condition is
grave and the Superintendent of the N.R.S. Medical College is also, to some extent, responsible in a general way.
Hakim Seikh should not have been refused admission in the Medical College Hospital, Calcutta when the condition was so grave. In not accommodating Hakim
Seikh the Emergency medical Officer of the said Hospital is responsible. He
should have contacted the superior authority over the telephone if there was
any stringency as to the beds available and admit the patient inspite of total
sanctioned beds not having been available. The Superintendent should have given
guidelines to the respective medical officers for admitting serious cases under
any circumstances and thus in a way the Superintendent was responsible for this
At the National Medical College Hospital, Calcutta the relevant admission register was
missing and in the absence of the same the responsibility could not be fixed on
the Emergency Medical Officer concerned. The then Superintendent of the
Hospital must be held responsible for this general state of affairs that no
provision was made for admitting any patient even if his condition was serious.
The hospital authorities have submitted that Hakim Seikh did not attend the Shambhu Nath Pandit Hospital at all. From the out-door patient ticket it cannot be
definitely Said that Hakim Seikh was taken to the said Hospital.
No responsibility could be fixed on any officer of the Bangur Institute of
Neurology because the said Institute does not deal with neuro-surgery emergency
cases and it is meant for cold cases only.
At SSKM Hospital, no record is maintained as to the condition of the patient
and the steps taken with regard to his treatment. It is necessary that such
record is maintained. Even though the patients inside the ward were in excess
of the limit of the sanctioned beds but still some arrangements could be made
and admission should not have been refused when the condition was so grave. The
Emergency Medical Officer who attended Hakim Seikh should be held responsible
for not admitting the patient in the said Hospital and that the Surgeon Superintendent
is also in a general way responsible for this unhappy state of affairs and he
should have given specific guidelines in that regard.
Committee has suggested remedial measures to rule out recurrence of such
incidents in future and to ensure immediate medical attention and treatment to
patients in real need. We will advert to it later. We will first examine
whether the failure to provide medical treatment to Hakim Seikh by the
Government hospitals in Calcutta has resulted in violation of his
rights and, if so, to what relief he is entitled.
Constitution envisages the establishment of a welfare state at the federal
level as well as at the state level. In a welfare state the primary duty of the
Government is to secure the welfare of the people. Providing adequate medical
facilities for the people is an essential part of the obligations undertaken by
the Government in a welfare state. The Government discharges this obligation by
running hospitals and health centres which provide medical care to the person
seeking to avail those facilities. Article 21 imposes an obligation on the
State to safeguard the right to life of every person. Preservation of human
life is thus of paramount importance. The Government hospitals run by the State
and the medical officers employed therein are duty bound to extend medical
assistance for preserving human life. Failure on the part of a Government
hospital to provide timely medical treatment to a person in need of such
treatment results in violation of his right to life guaranteed under Article
21. In the present case there was breach of the said right of Hakim Seikh
guaranteed under Article 21 when he was denied treatment at the various
Government hospitals which were approached even though his condition was very
serious at that time and he was in need of immediate medical attention. Since
the said denial of the right of Hakim Seikh guaranteed under Article 21 was by
officers of the State in hospitals run by the State the State cannot avoid its
responsibility for such denial of the constitutional right of Hakim Seikh. In
respect of deprivation of the constitutional rights guaranteed under Part III
of the Constitution the position is well settled that adequate compensation can
be awarded by the court for such violation by way of redress in proceedings
under Articles 32 and 226 of the Constitution. [See : Rudal Sah v. State of Bihar, 1983 (3) SCR 508 Nilabati Behara
v. State of Orissa. 1993 (2) SCC 746: Consumer
Education and Research Centre v. Union
of India, 1995 (3) SCC 42]. Hakim Seikh
should, therefore, be suitably compensated for the breach of his right
guaranteed under Article 21 of the Constitution.
regard to the facts and circumstances of the case, we fix the amount of such
compensation at Rs. 25,000/-. A sum of Rs. 15,000/- was directed to be paid to
Hakim Seikh as interim compensation under the orders of this Court dated April 22, 1994. The balance amount should be paid
by respondent No. 1 to Hakim Seikh within one month.
now come to the remedial measures to rule out recurrence of such incidents in
future and to ensure immediate medical attention and treatment to persons in
real need. The Committee has made the following recommendations in this regard
The Primary Health Centres should attend the patient and give proper medical
aid, if equipped.
At the hospitals the emergency Medical Officer, in consultation with the
Specialist concerned on duty in the Emergency Department, should admit a
patient whose condition is moribund/serious. If necessary the patient concerned
may be kept on the floor or on the trolley beds and then loan can be taken from
the cold ward. Subsequent necessary adjustment should be made by the hospital
authorities by way of transfer/discharge.
A Central Bed Bureau should be set up which should be equipped with wireless or
other communication facilities to find out where a particular emergency patient
can be accommodated when a particular hospital finds itself absolutely helpless
to admit a patient because of physical limitations. In such cases the hospital
concerned should contact immediately the Central Bed Bureau which will
communicate with the other hospitals and decide in which hospital an emergency
moribund/serious patient is to be admitted.
Some casualty hospitals or Traumatology Units should be set up at some points
on regional basis.
The intermediate group of hospitals, viz., the district, the sub-division and
the State General Hospitals should be upgraded so that a patient in a serious
condition may get treatment locally.
recommendations of the Committee have been accepted by the State Government and
memorandum dated August
22, 1995 has been
issued wherein the following directions have been given for dealing with
patients approaching health centres/OPD/Emergency Departments of hospitals :
Proper medical aid within the scope of the equipments and facilities available
at Health Centres and Hospitals should be provided to such patients and proper
records of such aid provided should be preserved in office. The guiding
principle should be to see that no emergency patient is denied medical care.
All possibilities should be explored to accommodate emergency patients in
Emergency Medical Officers will get in touch with Superintendent/Deputy
Superintendent/ Specialist Medical Officer for taking beds on loans from cold
wards for accommodating such patients as Extra-temporary measures.
Superintendents of hospitals will issue regulatory guidelines for admitting
such patients on internal adjustments amongst various wards and different kinds
of beds including cold beds and Will hold regular weekly meetings for
monitoring and reviewing the situation. A model of such guidelines is enclosed
with this memorandum which may be suitably amended before issue according to
local arrangements prevailing in various establishments.
feasible, such patients should be accommodated in trolley- beds and, even, on
the floor when it is absolutely necessary during the exercise towards internal
adjustments as referred to at (3) above.
regard to the drawbacks in the system of maintenance of admission registers of
patients in the hospitals it has been directed that the Superintendents and
Medical Officers of the hospitals should take the following actions to
regularize the system with a view to avoiding confusion in respect of
Admission/Emergency Attendance Registers :
Clear recording of the name, age, sex, address, disease of the patient by the
attending medical officers;
Clear recording of date and time of attendance/examination/admission of the
Clear indication whether and where the patient has been admitted, transferred,
Safe custody of the Registers;
Periodical inspection of the arrangement by the Superintendent;
Fixing of responsibility of maintenance and safe custody of the
regard to identifying the individual medical officers attending to the
individual patient approaching Out Patients' Department/Emergency Department of
a hospital on the basis of consulting the hospital records, it has been
directed that the following procedure should be followed in future :
A copy of the Duty Roaster of Medical Officers should be preserved in the
office of the Superintendent incorporating the modifications done for
Each Department shall maintain a register for recording the signature of
attending medical officers denoting their arrival and departure time;
attending medical officer shall write his full name clearly and put his
signature in the treatment document;
Superintendent of the hospital shall keep all such records in safe custody;
copy of the ticket issued to the patient should be maintained or the relevant
data in this regard should be noted in an appropriate record for future
appreciated that Hospital Superintendent/Medical Officers-in-charge may have
difficulty in implementing these guidelines due to various constraints at the
ground level and, as such, feed back is vital to enable Government to refine
and modify the order as will ensure a valid working plan to regulate admission
on a just basis. Detailed comments and, therefore, requested with constructive
suggestions." Shri Muralidhar, the learned counsel appearing for the petitioners,
and Shri Rajeev Dhavan, the learned senior counsel appearing for the intervenors,
in the course of their submissions, have, however, made certain further
suggestions in this regard. Shri Dhavan has submitted that in order to have
proper and adequate emergency health services and to create infra-structure for
that purpose it is necessary to bear in mind the high risk occasions such as
festivals and high risk seasons when there is a greater need for such services.
It has also been submitted that the medical facilities available at the Primary
Health Centres should be upgraded and the hospitals at the district level
should be suitably provided to deal with serious cases and that the number of
beds in the hospitals should be increased to meet the growing needs of the
population. Shri Dhavan has also suggested that a centralized ambulance service
may be created for all the hospitals and that the ambulance should have all the
facilities necessary for giving primary medical aid and treatment to the
patient. Shri Dhavan has submitted that the emergency units at the hospital
should be fully equipped to manage all the emergency cases and the medical
officer should be available there round the clock. Shri Dhavan has urged that
the denial of treatment to a patient should be specifically made a cognizable
Offence and further it should also be made actionable as a tort. In this
context Shri Dhavan has invited our attention to the recent developments that
have taken place in this field in the United States. There it was found that private hospitals were turning
away uninsured indigent persons in need of urgent medical care and these
patients were often transferred to, or dumped on public hospitals and the
resulting delay or denial of treatment had sometimes disastrous consequences.
To meet this situation the U.S.Congress has enacted the Consolidated Omnibus
Budget Reconciliation Act of 1986 [for short 'COBRA'] to prevent this practice
of dumping of patients by private hospitals.
said Act all hospitals that receive medicare benefits and maintain emergency
rooms are required to perform two tasks before they may transfer or discharge
hospital must perform a medical screening examination of all prospective
patients, regardless of their ability to pay; (ii) if the hospital determines
that a patient suffers from an emergency condition. the law requires the
hospital to stabilized that condition and the hospital cannot transfer or
discharge an unstabilized patient unless the transfer or discharge an
appropriate as defined by the statute. Provision is made for imposing penalties
against hospitals or physicians that negligently violate COBRA. In addition the
individual who suffers personal harm as a direct result of a participating
hospital's violation can bring a civil suit for damages against that hospital.
According to Shri Dhavan the standard of care in emergency cases implies three
the patient's condition and
or discharge of the patient for better treatment. The submission of Shri Dhavan
is that emergency health services in our country must be provided keeping An
view these three requirements.
have considered the aforesaid submissions urged by Shri Dhavan. A part from the
recommendations made by the Committee in that regard and action taken by the
State Government in the memorandum dated August 22, 1995 on the basis of the recommendations
of the Committee, we are of the view that in order that proper medical
facilities are available for dealing with emergency cases it must be that :
Adequate facilities are available at the Primary Health Centres where the
patient can be given immediate primary treatment so as to stabilize his
Hospitals at the district level and Sub-Division level are upgraded so that
serious case can be treated there;
Facilities for giving specialist treatment are increased and are available at
the hospitals at District level and Sub-Division level having regard to the
order to ensure availability of bed in an emergency at State level hospitals
there is a centralized communication system so that the patient can be sent
immediately to the hospital where bed is available in respect of the treatment
which is required.
Proper arrangement of ambulance is made for transport of a patient from the
Primary Health Centre to the District hospital or Sub-Division hospital and
from the District hospital or Sub Division hospital to the State hospital.
ambulance is adequately provided with necessary equipment and medical
Health Centres and the hospitals and the medical personnel attached to these Centres
and hospitals are geared to deal with larger number of patients needing
emergency treatment on account of higher risk of accidents on certain occasions
and in certain seasons.
no doubt true that financial resources are needed for providing these
facilities. But at the same time it cannot be ignored that it is the
constitutional obligation of the State to provide adequate medical services to
the people. Whatever is necessary for this purpose has to be done. In the
context of the constitutional obligation to provide free legal aid to a poor
accused this Court has held that the State cannot avoid its constitutional
obligation in that regard on account of financial constraints. [See : Khatri
(II) v. State of Bihar, 1981 (1) SCC 627 at p. 631].
said observations would apply with equal, if not greater, force in the matter
of discharge of constitutional obligation of the State to provide medical aid
to preserve human life. In the matter of allocation of funds for medical
services the said constitutional obligation of the State has to be kept in
view. It is necessary that a time-bound plan for providing these services
should be chalked out keeping in view the recommendations of the Committee as
well as the requirements for ensuring availability of proper medical services
in this regard as indicated by us and steps should be taken to implement the
same. The State of West
Bengal alone is a
party to these proceedings. Other States, though not parties, should also take
necessary steps in the light of the recommendations made by the Committee, the
directions contained in the Memorandum of the Government of West Bengal dated August 22, 1995 and the further directions given
Union of India is a party to these proceedings.
it is the joint obligation of the Centre as well as the States to provide
medical services it is expected that the Union of India would render the
necessary assistance in the improvement of the medical services in the country
on these lines.
regards the medical officers who have been found to be responsible for the
lapse resulting in denial of immediate medical aid to Hakim Seikh it is
expected that the State Government will take appropriate administrative action
against those officers.
of this judgment be sent for taking necessary action to the Secretary Medical
and Health Department of the States.
writ petition is disposed of with these directions.
order as to costs.