Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench comprising of Ravindra V. Ghughe and B. U. Debadwar, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,

We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.

Whether the Ventilators Supplied through PM Cares Fund dysfunctional?

Regarding the use of the 113 ventilators supplied through PM Cares Fund a report was prepared by the Committee of eight doctors of the GMCH who deal with ICU and the utilization of ventilators. The said report indicated that the ventilators developed errors from day one. About 25 ventilators were installed in the Medicine Department and 25 ventilators were distributed to the District and private hospitals. All such 25 ventilators were returned by the ICU departments of the concerned hospitals, as they were not functioning properly and patients had started complaining about breathlessness and associated symptoms within hours of the ventilators having been switched on. The report suggested that Private hospitals also returned the ventilators stating that they were not working properly. Although, a Team of three technicians of the Manufacturer visited the GMCH, and a Company Service Engineer joined the Team and calibrated `in-put oxygen’ regulators of two ventilators, they worked well overnight and next day by afternoon patients complained about poor oxygen and showed signs of restlessness.

The Committee noted that even after major repairs, the results indicate the failure of the ventilators. In the final conclusion, the Committee opined that these machines are unsafe for patients use and it was decided not to test any of these machines on patients, henceforth.

Stand Taken by the Central Government  

The ASGI contended that the alleged 150 ventilators were never supplied through the P.M. Cares Funds thereby, completely denying that these ventilators were funded through the P.M. Cares Funds, as was earlier announced. However, to defend the same, ASGI submitted that the ventilators manufactured by M/s Jyoti CNC Automation Limited, were modern ventilators, which were highly complex and sophisticated medical equipments. Shifting the blame on the Hospitals the ASGI contended that Doctors and paramedics were not properly trained to operate such ventilators at Aurangabad. It was also submitted that after the Dean of the Government Medical College submitted a report, the MoHFW sought an explanation from the Manufacturer and as per the said explanation there was no material before the MoHFW to conclude that the ventilators were not working satisfactorily.

Explanation Given by the Manufacturer

On the other hand, the Manufacturer alleged that the Government Medical College, Aurangabad was non-cooperative right from the acceptance of the delivery and the local District Collector had to direct the GMCH for unloading and accepting the ventilators. It was submitted that there was nothing on record to demonstrate that the ventilators were malfunctioning. Applying the same scheme as that of Central government, the Manufacturers contended that the user manual and training videos were not followed by the operators and that the infrastructure available at the GMCH is inadequate hence, the ventilators were not being used properly. Lastly, it was argued that 300 ventilators were performing satisfactorily in other States of India and other regions of Maharashtra and Aurangabad, therefore, there was no fault on the part of the manufacturer and it could not be held responsible for inadequacies on the part of the GMCH.

Observations and Findings of the Court

The Amicus curiae highlighted before the Court that not a single hospital/institution which was delivered with such ventilators had submitted that even one ventilator was operating satisfactorily. Noticing that the subject “Public Health and Hospitals” is at entry-6 in the State list and the legislative powers as well as executive and administrative powers of the State Government pertaining to the said subject are covered by Article 162, the Bench opined that it is the State Government which would be answerable on this subject. Hence, before accepting or acquiring such medical equipments/instruments by any medical facility/hospital, the State Government should make it mandatory for the Manufacturer to undertake fullest cooperation and assistance in the event of the equipment becoming dysfunctional. The Bench slammed the Center Government stating that,

We are unable to appreciate the contention of the ASGI that the ventilators are in perfect operating conditions and it is the hospitals who do not have trained personnel to operate the said ventilators properly. We find that such statements demonstrate insensitivity on the part of Ministry of Health and Family Welfare (MoHFW).

The Bench opined that instead of expressing whole hearted support to ensure that such costly instruments are put to optimum utilization in the interest of the lives of the patients, the affiant found it advantageous to contend that there was no merit in the report of the Dean of the Government Medical College. Hence, the tenor of the Center government was that the ventilators were in working condition and the deficiencies were with the hospitals and the doctors/paramedics/technicians. On such submissions made by ASGI, the Bench expressed,

We find that he (ASGI) is questioning the report of the Dean, and does not even remotely refer to the six reasons as regards the malfunctioning of the ventilators cited by the GMCH. The ASGI has addressed us as if he is holding the brief for the Manufacturer.

In the backdrop of the above, the Bench directed the MoHFW to take all remedial steps and ensure that the ventilators would operate normally and all defects, if any, would be removed. The Bench warned the MoHFW to refrain from questioning the reports of the Medical Experts and respect the same in the larger interest of the society and concentrate on rectifying the ventilators.

Overcharging by Ambulance Operators

On the issue of ambulance operators openly demanding multi-fold times of the approved rates of Ambulances as disclosed by an sting operation carried out by a local reporter, the Bench held that since the District Collector of every district is the authority under the Disaster Management Act, all aggrieved patients/relatives of patients would be at liberty to complain to the District Collector, if they had suffered such overcharging of Ambulance fare and the District Collector would deal with such complaints in accordance with the procedure as is laid down.[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 761, Order dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Case BriefsCOVID 19High Courts

Delhi High Court: A Division bench of Manmohan and Sanjeev Narula, JJ. while addressing the present petition stated that,

wouldn’t a ‘stone hearted person’ only challenge the decision to deduct one day’s salary for a pandemic?

In the present appeal, Order dated 12th May, 2020 by Single Judge of the Court has been challenged wherein the appellant’s petition challenging the deduction of one day salary by the respondent-University for contributing to the PM CARES Fund to combat COVID-19 pandemic was dismissed.

Appellant’s Counsel, stated that respondent-University did not give all its employees adequate notice of the the deduction and further it proceeded to deduct one day’s salary even in respect of those employees who had expressed their desire not to make a contribution.

In view of his submission he emphasised on the aspect that voluntary contribution cannot be deducted without anyone’s consent.

High Court while placing its opinion stated that the present petition had not been filed in the prescribed format of PIL, further adding to the said, bench also stated that the teachers and staff of Delhi University are neither financially weak nor suppressed to such an extent that they cannot approach the Court directly.

While noting the fact that appeals were issued Chairman UGC as well as Registrar of respondent-University in the month of March, 2020 to voluntarily contribute to support the cause of COVID-19 pandemic.

Court takes judicial notice of the fact that we live in the ‘internet age’ wherein all people are active on social media.

Bench with regard to the deduction stated that in view of the severity and the spread of the pandemic, the deduction of one day’s salary of the appellant (i.e. Rs.7,500/-) cannot be said to be contrary to public interest or harsh or inequitable.

Present PIL is not in the interest of the public and thus in view of the above it is to be dismissed. [Shreekant Gupta v. University of Delhi, 2020 SCC OnLine Del 651 , decided on 16-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N.Patel, CJ and Prateek Jalan, J. dismissed the petition seeking information on PM CARES Fund while reserving liberty to the petitioner to prefer fresh proceedings before appropriate forum.

Present petition was filed seeking direction to the respondent to disclose any information sought by the petitioner or any other citizen of the country with respect to the source of funds and the details of expenses made from he funds of PM Cares Fund.

Petitioners’ counsel Senior Advocate Narender Hooda with Advocate, Aditya Hooda submitted that data regarding receipt and disbursement of funds in PM Cares Fund be uploaded on the PM Cares Fund website. 

Another submission made was that the prayers made in the petition had no application for seeking information under RTI Act, 2005 from the respondents.

In view of the above, Court found no reason to entertain the petition.

Accordingly, the petition was dismissed. [Dr Surendra Singh Hooda v. Prime Minister’s Citizen Assistance and Relief in Emergency Situation Fund, 2020 SCC OnLine Del 641, decided on 10-06-2020]

COVID 19Hot Off The PressNews

An RTI application was filed with regard to the PM Cares Fund, wherein following details were sought:

  •  Total amount deposited in the PM Cares account till date
  • Total amount deposited in the Fund in the last 2 months
  • PAN details give to open PM Cares account
  • Details of the amount spent from the PM Cares Fund till date
  • Details of the person who has deposited the highest amount till date in the PM Care Fund

To the above, following was the reply:

“PM Cares Fund is not a Public Authority under the ambit of Section 2 (h) of the RTI Act, 2005. However, relevant information in respect of PM Cares Fund may be seen on the Website- pmcares.gov.in”

Thus, in view of the above response, no citizen can seek any details with regard to the PM Cares fund.


Image credits of the RTI application: @SuryaHarshaTeja –> Twitter

Also read:

Section 2(h) of RTI Act, 2005

“public authority” means any authority or body or institution of self-government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government,

and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government;

COVID 19Legislation UpdatesNotifications

Centre makes amendment to Schedule VII of Companies Act, 2013 to include “PM CARES Fund” as a Corporate Social responsibility.

Thus, any contribution made to the PM-CARES Fund shall qualify as CSR expenditure.


G.S.R. 313(E).—In exercise of the powers conferred by sub-section (1) of section 467 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following further amendment to Schedule VII of the said Act, namely:—

In Schedule VII, item (viii), after the words “Prime Minister’s National Relief Fund”, the words “or Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)” shall be inserted.

2. This notification shall be deemed to have come into force on 28th March, 2020.


Ministry of Corporate Affairs

[Notification dt. 26-05-2020]

COVID 19Hot Off The PressNews

PM CARES (Prime Minister’s Citizen Assistance and Relief in Emergency Situations) Fund Trust today decided to allocate Rs. 3100 Crore for fight against COVID-19. Out of Rs 3100 crore, a sum of approximately Rs 2000 crore will be earmarked for the purchase of ventilators, Rs 1000 crores will be used for care of migrant labourers and Rs 100 crores will be given to support vaccine development.

The trust formed on 27th March 2020 is headed by Prime Minister (ex-Officio) and other ex-officio Members of the trust are Defence Minister, Home Minister and Finance Minister. While announcing this package, the Prime Minister has thanked all the donors for their generosity in contributing to the PM CARES Fund which will support India’s fight against COVID-19

a) 50,000 Ventilators

For augmenting the infrastructure to tackle COVID-19 cases across the country, 50000 ‘Made-in-India’ ventilators will be purchased from PM CARES Fund at a cost of approximately Rs 2000 Crores. These ventilators will be provided to government run COVID hospitals in all States/UTs, for better treatment of the critical COVID-19 cases.

b) Relief Measures for Migrants

For strengthening the existing measures being taken for the welfare of the migrants and poor, the States/UTs will be given a lump sum assistance of totalRs. 1000 Crore from PM CARES Fund. This amount would be provided to the State Governments/UTs to place it at the disposal of the District Collectors/Municipal Commissioners for strengthening their efforts in providing accommodation facilities, making food arrangements, providing medical treatment and making transportation arrangements of the migrants. State/UT-wise funds will be released on the weightage of (a) Population of the State/UT as per 2011 Census – 50%, weightage (b) Number of positive COVID-19 cases as on date – 40% weightage and (c) Equal share (10% weightage) for all states/UTs to ensure basic minimum sum for all states. The fund will be released to the District Collector/District Magistrate/Municipal Commissioner through the State Disaster Relief Commissioner of the States/UTs concerned.

c) Vaccine Development

A vaccine against COVID-19 is the most pressing need and Indian academia, start-ups and industry have come together in cutting-edge vaccine design and development.To support the COVID-19 vaccine designers and developers, an amount of Rs. 100 Crore will be given from PM CARES Fund as a helping hand to catalyse vaccine development, which will be utilized under the supervision of Principal Scientific Advisor.


Prime Minister’s Office

[Press Release dt. 13-05-2020]

[Source: PIB]

COVID 19Legislation UpdatesNotifications

The Ministry of Corporate Affairs (MCA) has been receiving several references/ representations from various stakeholders seeking clarifications on eligibility of CSR expenditure related to COVID-19 activities.

In this regard, a set of Frequently Asked Questions (FAQs) along with clarifications are provided below for better understanding of the stakeholders.

S. No.

Frequently Asked Questions (FAQs)

Reply

Whether contribution made to ‘PM CARES Fund’ shall qualify as CSR expenditure? Contribution made to ‘PM CARES Fund’ shall qualify as CSR expenditure under item no (viii) of Schedule VII of the Companies Act, 2013 and it has been further clarified vide Office memorandum F. No. CSR-05/1/2020-CSR-MCA dated 28th March, 2020.
Whether contribution made to ‘Chief  Minister’s Relief Funds’ or ‘State Relief Fund for COVID-19’ shall qualify as CSR expenditure? Chief Minister’s Relief Fund’ or ‘State Relief Fund for COVID-19’ is not included in Schedule VII of the Companies Act, 2013 and therefore any contribution to such funds shall not qualify as admissible CSR expenditure.
Whether contribution made to State Disaster Management Authority shall qualify as CSR expenditure? Contribution made to State Disaster Management Authority to combat COVID-19 shall qualify as CSR expenditure under item no (xii) of Schedule VII of the 2013 and clarified vide general circular No. 10/2020 dated 23rd March, 2020.
Whether spending of CSR funds for COVID-19 related activities shall qualify as CSR expenditure? Ministry vide general circular No. 10/2020 dated 23rd March, 2020 has clarified that spending CSR funds for COVID-19 related activities shall qualify as CSR expenditure. It is further clarified that funds may be spent for various activities related to COVID-19 under items nos. (i) and (xii) of Schedule VII relating to promotion of health care including preventive health care and sanitation, and disaster management. Further, as per general circular No. 21/2014 dated 18.06.2014, items in Schedule VII are broad based and may be interpreted liberally for this purpose.
Whether payment of salary/wages to employees and workers, including contract labour, during the lockdown period can be adjusted against the CSR expenditure of the companies? Payment of salary/ wages in normal circumstances is a contractual and statutory obligation of the company. Similarly, payment of salary/ wages to employees and workers even during the lockdown period is a moral obligation of the employers, as they have no alternative source of employment or livelihood during this period. Thus, payment of salary/ wages to employees and workers during the lockdown period (including imposition of other social distancing requirements) shall not qualify as admissible CSR expenditure.
Whether payment of wages made to casual /daily wage workers during the lockdown period can be adjusted against the CSR expenditure of the companies? Payment of wages to temporary or casual or daily wage workers during the lockdown period is part of the moral/ humanitarian/ contractual obligations of the company and is applicable to all companies irrespective of whether they have any legal obligation for CSR contribution under section 135 of the Companies Act 2013. Hence, payment of wages to temporary or casual or daily wage workers during the lockdown period shall not count towards CSR expenditure.
Whether payment of ex-gratia to temporary /casual /daily wage workers shall qualify as CSR expenditure? If any ex-gratia payment is made to temporary / casual workers/ daily wage workers over and above the disbursement of wages, specifically for the purpose of fighting COVID 19, the same shall be admissible towards CSR expenditure as a onetime exception provided there is an explicit declaration to that effect by the Board of the company, which is duly certified by the statutory auditor.

Ministry of Corporate Affairs

[Press Release dt. 11-04-2020]

[Source: PIB]