SYED MANSOOR ALI SHAH, J.---Brief facts of the case are that petitioner Commission initiated proceedings against respondent No.1 (a health service provider/health service establishment) and also sealed the establishment of the said respondent. The said action was challenged before District and Sessions Judge, Toba Tek Singh under Section 30 of the Punjab Healthcare Commission Act, 2010 ("Act") who vide impugned order dated 16.10.2015 set aside the sealing of the premises on the ground that there was no provision under the Act to seal the premises of respondent No.1 and directed the Commission to decide the matter regarding notice dated 03.09.2015 issued to the said respondent.
2. Learned counsel for the petitioner Commission, inter alia, submits that Standing Orders issued by the Commission under section 9(1)(i) of the Act provide for sealing of the healthcare establishment, therefore, the impugned order passed by the learned District and Sessions Judge Toba Tek Singh, is without lawful authority. He further submits that respondent No.1 has failed to approach the Anti-Quackery Cell constituted under the ,Standing Orders as a consequence he could not have approached the learned District and Sessions Judge directly under section 30 of the Act.
3. Learned counsel for respondent No.1 argued that the Act does not authorize sealing of the premises of respondent No.1 and therefore the same cannot be sealed under the Standing Orders of the Commission. He adds that Standing Orders [under section 9(1)(0] and Instructions or Directives [under section 4(2)(o) ] have no binding force on an individual or a third party and are non-binding instrument for the internal governance of the Commission. He submitted that Standing Orders or the Instructions and Directives cannot assume the same statutory status as that of subordinate legislation in the shape of Rules and Regulations under the Act.
4. Arguments of the opposing parties have been heard and the relevant law has been examined. In order to appreciate the contention raised in this petition, it is necessary to visit the legal architecture of the Act, the extent of the powers and functions of the Punjab Healthcare Commission ("Commission") and the Board under the Act, the nature and scope of subordinate legislation under the Act and the difference between subordinate legislation and executive directions/orders issued by the Commission.
5. Careful review of the Act reveals that the prime purpose of establishing the Commission under the Act is to improve the quality of healthcare services and to ban quackery in Punjab in all its forms and manifestations. The Commission is established through a notification under the Act and is a body corporate with all its allied attributes. The functions and powers of the Commission under section 4 of the Act are focused towards improving the quality of healthcare services, clinical governance and to ban quackery. Clinical governance, under the Act, is a systematic approach to maintaining and improving quality of patient care. The functions and powers of the Commission, inter alia, include the power to: impose and collect penalties on violations, breach or noncompliance of the provisions of the rules, regulations, standing orders and instructions issued under this Act. Or issue regulations, guidelines, instructions and directives to persons involved in the provision of Healthcare Services and to take necessary steps to ban quackery [section 4(2) (g), (o) & (q)]. Commission is to take into consideration the policy advice of the Technical Advisory Committee and also coordinate with the Government. The Commission may undertake investigation into allegations of maladministration, malpractice, or failure on the part of healthcare service provider or any employee of the healthcare service provider on a complaint of an aggrieved party or an aggrieved healthcare service provider or on a reference by the Government or the Provincial Assembly of Punjab or on the motion of the Supreme Court of Pakistan or the Lahore High Court, made during the course of any proceedings before it. The Commission for the purposes of investigation enjoys the powers vested in a civil court under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person and examining him on oath, compelling the production of documents, receiving evidence on affidavits and issuing Commission for the examination of witnesses. Procedure of investigation is provided under section 23 of the Act.
6. The general superintendence, direction and management of the affairs of the Commission and overall policy making in respect of its operation shall vest in the Board which may exercise all such powers and do all such acts deeds and things that may be exercised or done by the Commission under the Act. Functions and powers of the Board, for the purposes of this case, inter alia, include the powers to approve the standing orders of the Commission. The Board shall consist of nine Commissioners notified by the Government, who shall hold office for a term of three years.
7. A healthcare service provider shall not provide healthcare services unless registered with the Commission. An existing healthcare service provider shall within a period of 90 days of the coming into force of the Act apply for registration. A healthcare provider shall not provide healthcare services without being registered under this section and the regulations. The Commission shall issue a Certificate of Registration within 14 days or else the applicant shall be considered as having been provisionally registered. In addition to the registration of the healthcare service provider, the healthcare establishment has to be licensed and the establishment cannot be used except in accordance with the terms and conditions of the license.
8. The Commission may by order appoint an inspection team to inspect any healthcare establishment at the time of issuance or renewal of license or on receipt of a complaint. The inspection team can also inspect any apparatus, appliance, equipment, etc or any practice or1 2 3 4 5 6 7 8 procedure being carried out at the healthcare establishment and may also inquire if there has been any instance of maladministration or malpractice or failure in the healthcare services in a healthcare establishment. The Commission may impose fine upon a healthcare service provider for the contravention of the provisions of the Act which may extend to fifty thousand rupees. Where, in the opinion of the inspection team, the use of any apparatus, etc or the carrying out of any practice or procedure in a healthcare establishment is dangerous or detrimental to any person therein or otherwise unsuitable for the purpose for which it is used or carried out, he shall immediately report the matter, in writing, to the Commission. On receipt of the report the Commission may act according to the rules, regulations and the procedure prescribed by the Government. Notwithstanding any other provision of law, the Commission may for contravention of the provision of the Act, rules or regulations impose fine which may extend to five hundred thousand rupees.
9. The Court of District and Sessions Judge shall have exclusive jurisdiction to question the validity of any action taken or intended to be taken or order made or anything done or purporting to have been taken, made or done under this Act or for the grant of an injunction or stay or to make an interim order in relation to any proceeding before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Commission. In addition, any order of the Commission can be.Challenged within thirty days of the date of Communication of the order, through an appeal before the Court of the District and Sessions Judge and no other Court shall enjoy the jurisdiction to question the order or action of the Commission. The Commission is empowered to make Regulations for the Commission, while the Government ma), make Rules to give effect to the Act.
10. In addition to this statutory framework, the Commission under sections 4(2)(q) and 9(1)(i) has issued "Standing Orders of the Punjab Healthcare Commission for banning quackery in all its forms and manifestations and for dealing with quacks." Some of the salient features of these Standing Orders are that they create an Anti-Quackery Cell (Standing Order No. 2) and empower the officers of the Commission to seal the healthcare establishment if it does not have a valid registration to render the healthcare service (Standing Order No.6).
11. Architecture of the Act reveals that the stewardship of the Commission is in the hands of the Board as it exercises all the functions and powers of the Commission. Commission is, therefore, the legal entity which is run and managed by the Board. The Act only provides for penalties in the shape of monetary fine and there is no provision for sealing or passing an order for closing down a healthcare establishment under the Act. There are no Rules and Regulations in the field as yet, hence the current legislative landscape is bereft of any such power.
12. Before examining the legal status of the Standing Orders, it is important to understand the scope and meaning of delegated legislation and the difference between a legislative and an executive or an administrative instrument. Delegated legislation according to Salmond is "that which proceeds from any authority other than sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority:" Delegated legislation is also referred to as secondary legislation or subordinate legislation or subsidiary legislation and is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature's authority: There is a difference between administrative direction and delegated legislation. Delegated legislation is binding on both the administration and the individual and is enforceable through a court of law but a direction is not so binding and enforceable on an individual or third party. The foundational feature of subordinate legislation is that its source of power is the legislature itself, while the source of any administrative direction is the statutory authority or agency, established by the same legislature.9 10 11 12 13 14 Parent statute must clearly delegate the power of legislation to the authority in order to carry out the purposes of the Act.
13. Section 9(1)(i) states that the Board will approve the Standing Orders of the Commission. As the Board runs and operates the Commission, the Standing Orders are in fact framed and approved by the Board. The source of the Standing Orders is, therefore, the Board or the Commission, and in the absence of any specific power of delegation authorizing the Commission or the Board to issue Standing Orders in order to give effect to the purposes of the Act, the Standing Orders shall pass for administrative directions of the Commission which are not enforceable against an individual or third party. They, however, may deal with internal governance of the Commission or at best regulate the internal working of the Commission. Subordinate or delegated legislation, on the other hand, is authorized by the parent legislation and simply advances the purpose of primary legislation and, therefore, enjoys the force of law.
14. Article 4 of the Constitution states that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law and no person shall be prevented from or be hindered in doing that which is not prohibited by the law. Standing Orders do not pass for the law while Rules and Regulations under, the Act do. The distinction between law passed by the legislature or passed through delegation by the legislature and administrative or internal orders or directions issued by a statutory body or authority i.e., the Commission or the Board, has to be kept in mind. Under the Act, Regulations and the Rules under Sections 40 and 41 of the Act pass for subordinate legislation. The delegation is clear and explicit in sections 40 and 41, which are reproduced here under for reference:-- "Section 40 Regulations:--(1) The Commission may, by notification in the official Gazette, make regulations for carrying out the purposes of this Act.
(2) Without prejudice to the generality of subsection (1), the Commission may make regulations with respect to all or any of the following matters:-
(a) the forms, fees and registers for the purposes of this Act;
(b) the records of patients treated in a healthcare establishment are provided;
(c) the records of the staff of a healthcare establishment;
(d) the requirements as to the number and qualifications of nursing and other staff in a healthcare establishment;
(e) the apparatus, appliances, equipment and instruments to be provided and maintained in a healthcare establishment;
(f) the ambulances to be provided and maintained by healthcare establishment;
(g) the standards of accommodation, sanitation, and other amenities in a healthcare establishment;
(h) fix penalties according to offence;
(i) the cleanliness and hygiene in a healthcare establishment;
(j) the safety and welfare of patients in a healthcare establishment are provided;
(k) the management, control, superintendence and care of a healthcare establishment;
(1) the composition, procedures, duties and responsibilities of quality assurance committees of healthcare establishments; and
(m) the regulation and control of prices of the healthcare services.
(3) The power to make regulations conferred by this section shall be subject to the condition of previous publication and, before making any regulations, the draft thereof shall be published, in the official Gazette, two newspapers of wide circulation and on the website of the Commission, for eliciting public opinion thereon within a period of not less than fifteen days from the date of publication. Rule 41 Rules:--(1) The Government may, by notification in the official Gazette, make rules for giving effect to the provisions of this Act.
(2) The power to make rules conferred by this section shall be subject to the condition of previous publication and, before making any rule, the draft thereof shall be published in the official Gazette for eliciting public opinion thereon within a period of not less than fifteen days from the date of publication."
Both Rules and Regulations advance and carry out the purposes of the Act. They also undergo a legislative process of previous publication with draft thereof to be published in the official gazette for eliciting public opinion. Subordinate legislation like legislation must entail public participation and official publication through gazette notification. Administrative orders or directives of any authority including the Commission, on the other hand, are passed internally by the authority E and, therefore, have an internal application. They, at best, constitute guidelines or directions for the Commission itself but do not bind any individual or any third party, as they do not pass for a "law."
Therefore, Standing Orders laying down the process of sealing healthcare establishments and providing for the setting up of an Anti Quackery Cell have no legal force and cannot be pressed against any individual or third party.
15. Section 4(2)(q) states that the Commission shall take necessary steps to ban quackery. It has been argued that this authorizes the setting up of the Anti-Quackery Cell under the Standing Orders. The "necessary steps" can only be through subordinate or delegated legislation. The above section does not authorize the Commission to legislate a new regime to deal with quackery e.g. Setting up an Anti-Quackery Cell. Such an exercise can only be through a legislative instrument as explained above. Similarly, it has been argued by the learned Law Officers that section 13 read with section 31(1)(c) of the Act authorizes the Commission to seal or close down healthcare establishments. This argument is misconceived in as much as section 13 does not authorize sealing or closing down of healthcare establishment. Passing reference of an order closing down healthcare establishment in section 31 is of no consequence as there is no substantive power under the Act whereunder such an order can be passed. In fact section 31(1) (c) of the Act reflects poor legislative drafting.
16. While the court appreciates and acknowledges the good intentions and noble purpose of the Act, it is also true that road to hell is paved with good intentions. The absence of requisite statutory provisions or Rules and Regulations cannot be filled through administrative Standing Orders. The action of sealing the healthcare establishment of respondent No.1 is, therefore, without the backing of law, hence, without lawful authority. Impugned order passed by the learned District and Sessions Judge, Toba Tek Singh dated 16.10.2015 whereby the act of sealing was set aside is, therefore, upheld.
17. The Commission may explore the possibility of proposing amendments in the Act or framing necessary Rules and Regulations under the Act to achieve what has been provided in the Standing Orders. However, until such an exercise is completed, the Commission or the Board do not enjoy any power to seal any healthcare establishment or set up any Anti Quackery Cell that can deal with third party complaints.
18. Admittedly, notices issued to the respondent healthcare provider/establishment under the Act are still pending. It is also admitted position that the respondent healthcare provider/ healthcare establishment has not yet been registered or licensed under the Act. In the interest of public health and safety and in order to safeguard and protect the fundamental right to life of the people at large, the respondent healthcare provider and healthcare establishment (respondent No.1) will not render healthcare services unless and until the Commission registers the healthcare provider and issues license to the healthcare establishment. The Commission is directed to decide the notices regarding registration and license of respondent No.1 within a fortnight from the receipt of this judgment through a speaking order after granting a hearing to the respondent healthcare provider/establishment. This writ petition is decided in the above terms. Impugned order passed by the learned District and Sessions Judge, Toba Tek Singh dated 16.10.2015 is upheld and shall remain subject to the directions and observations made in this judgment.
19. This judgment will decide the instant petition, as well as, connected Writ Petition No.31831/2015 as both these cases raise common questions of law and facts. Preamble to the Act Section 2(vi). Section 4(4). Section 4(7). Section 4(10). Section 9(1)(i). Section 13. Section 14. Chapter V sections 22-28. Sections 30 and 31. Sections 40 and 41. M.P. Jain and S.N.Jain, Principles of Adminsitratie Law 6th Ed. p.42. The Free Dictionary by Farlex. Ref: M.P.Jain and S.N. Jain, Principles of Adminsitrative Law 6th Ed. p.189.