Bombay HC Rejects Petition By Pune Hospital To Utilize Money In 'Indigent Patient Fund' For Covid-19 Patients Not Falling Under EWS [Read Order]

Justice SJ Kathawalla heard the writ petition by a public charitable trust registered under the Bombay Public Trust Act, 1950 specializes in treating patients afflicted with cardiac, nephrology, neurology and cancer issues. While rejecting the plea, Court added that the petitioner Trust is always free to use the amounts lying in the "Indigent Patients Fund" to treat the indigent patients suffering from Covid-19 and/or from any other sickness.

In an order dated August 17, 2006, while hearing a writ petition, the High Court approved "The Scheme for treatment to indigent patients and weaker section patients for the purposes of Section 41AA of the Bombay Public Trust Act." The said scheme was later enforced and implemented as a scheme under Section 41AA of the Bombay Public Trust Act.

Salient features of the said scheme are-

1. The public charitable hospitals falling within the definition of "State aided public trust" are under a legal obligation to reserve and earmark 10% of the total operational beds for the indigent patients and provide free medical treatment to them. Also, 10% of the total operational beds are to be earmarked and reserved for the weaker section patients at concessional rates .

2. Every public charitable hospital shall create a separate fund to be named as "Indigent Patients Fund" (IPF) and shall credit 2% of gross billing of all patients (other than indigent and weaker section patients) without any deduction . The amount credited to this account shall be utilized only for providing medical treatment to the indigent and weaker section patients.

3. Following non-billable services are to be provided free of cost to the indigent as well as weaker section patients: (i) Bed (ii) RMO services (iii) Nursing care (iv) Food (if provided by the hospital) (v) Linen (vi) Water (vii) Electricity (vii) Routine Diagnostics for treatment of general specialties ; and (ix) Housekeeping services.

Advocate SR Nargolkar along with Advocate Arjun Kadam appeared on behalf of the petitioner and Advocate Shruti Vyas for the State.

It was argued on behalf of the trust that presently during the pandemic and consequent lockdown, no planned surgeries, procedures and operations in the nature of life saving or emergency procedures/surgeries/operations can be carried out. These are the surgeries, operations and procedures, which enable the petitioner trust to cross subsidize the costs of treating the patients covered by the said Scheme.

However, Nargolkar submitted that the Out Patient Department of the petitioner Trust is completely shut-down and income from this source is also not available. Though the income sources of the petitioner trust have dried up, the salaries of the staff and resident doctors running into lakhs of rupees have to be borne by the petitioner Trust. In addition, the Trust also has to bear the cost of fixed overheads such as electricity, maintenance of equipment, municipal charges towards water, sewerage and other municipal taxes and charges, Nargolkar said.

The Trust made a representation before the concerned Deputy Charity Commissioner to permit the administration of the Trust to utilize the money available in the "Indigent Patients Fund" for defraying the costs incurred for treatment of patients. The request was rejected and a further representation was made before the Chief minister and the State which is pending.

In an affidavit dated May 14, 2020, the Deputy Charity Commissioner, Pune, strongly opposed the urgent reliefs sought by the petitioner Trust on the grounds that no details whatsoever have been provided by the Trust about its financial status and that the Trust is bound to have its financial plan (IPF) for an emergency, like the present one.

After going through the material at hand, the Court noted that the petitioner has not made any mention about the specific amount of money lying in the said 'Indigent Patients Fund', also no details or particulars of the estimated expenditure required to be incurred, has been provided. Court is also not provided with any particulars such as the amounts lying in the current/savings and/or the fixed deposit accounts of the petitioner Trust with various banks.

In the hearing on May 15, Justice Kathawalla enquired from the petitioner's advocate about the above details. Nargolkar stated that approximately an amount of Rs. 3 crores is lying in the said 'Indigent Patients Fund', apart from this he had no other instructions.

Thereafter, written submissions were filed by Assistant Manager (Legal) for the petitioner. Referring to the same, Court observed-

"From the above particulars, I find that seen at this stage, the petitioner Trust is attempting to avoid providing specific particulars qua its income and expenses. Instead of making general statements, the Petitioner trust could clearly have set out in its written note, the amounts required to be paid/defrayed under various heads for the months of April-May 2020, and the amounts already paid so far."

Justice Kathawalla pointed out that the petitioner Trust did not utter a word about having fixed deposits to the tune of Rs.68 Crores until it was compelled to disclose its current financial status.

Court said-

"The petitioner Trust has shown reluctance to utilize the amount of Rs.68 Crores on the ground that the same is earmarked by it for meeting capital expenditure. However, the Petitioner Trust is seeking urgent permission of this Court to utilise a sum specifically earmarked for the indigent and weaker section of the patients under a Scheme formulated under Section 41AA of the Bombay Public Act, 1950."

Finally, rejecting the said petition, the Court added that the relief sought will require a detailed hearing and cannot be granted at this stage as an urgent relief. Justice Kathawalla opined that even if it is assumed that an amount of Rs.3 cr is lying in the said fund, the Trust can instead use the money from its fixed deposits running into Rs.68 Crores to tide over the financial difficulties claimed by them.

Court directed the State to decide the petitioner's representation within two weeks.

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