MALIK MEDICAL HALL Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner.

(2.) THE first submission made by learned counsel is that under R. 59 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred as 'the Rules') the Director of Medical and Health Services, Rajasthan was appointed by the State Government as the Licensing Authority for the whole of (he State of Rajasthan for the purpose of Part VI and Part VII of the Rules and thereafter under R. 60 of the Rules the Licensing" Authority, with the approval of the State Government, by an order dated July 4, 1958 delegated the power to sign licenses and all other powers under Part VI of the Rules to the District Medical & Health Officer, Jaipur. By a subsequent notification dated September 11, 1959 the Licensing Authority delegated the very same powers to the Assistant Director of Health Officer, Jaipur. THE contention of the learned counsel for the petitioner is that the Licensing Authority having delegated "all other powers of the Licensing Authority under Part VI of the Rules," it could not thereafter itself exercise the powers under R. 66, regarding the cancellation of the license of the petitioner. I am unable to accept this contention of the learned counsel as by delegation of the powers under Part VI of the Rules, the Licensing Authority namely the Director did not completely divest itself of the powers relating to cancellation or suspension of licenses or other powers under Part VI of the Rules. It cannot be held that the delegation by the Licensing Authority amounted to a denudation of its authority. S. A. de Smith in judicial Review of Administrative Action, 2nd Ed. at p. 285 observed - "the general rule is that an authority which delegates its powers does not divest itself of them indeed, if it purports to abdicate it may be imposing a legally ineffective fetter on its own discretion - and can resume them. But if it has validly delegated an executive power to make decisions, it will normally be bound by a particular decision made in pursuance of the delegated power and will be incapable of rescinding or varying it, nor will it be competent to "ratify" with retroactive effect a decision encroaching on individual rights made by the delegate in excess of the powers so delegated, even though, the delegating authority could validly have made the decision itself in the first place. " It has been said by the learned Author that the delegator retains the power to take decisions in relation to matters comprised within the delegation and it can revoke the authority of a delegate. This opinion of the learned Author was cited with approval by a Bench of this Court in Ghasi Ram vs. State (l), wherein their Lordships further observed - "we are of opinion that when an authority delegates its power to another it does not follow that that authority thereby divests itself of such authority altogether. In other words, when the delegates its authority to the delegate, its authority by itself does not cease for, it may choose to revoke such authority which it could not do if it did not retain the authority itself In support of this view, we may refer to Huth vs. Clarke, 1890. 25 Q. B. D. 39, where it was held that the word "delegate" in its usual sense did not mean a parting with or denudation of power or authority by the person who grants the delegation, but rather the conferring of authority by him upon some one also so that the delegate may also do what otherwise he alone could do. " From the language employed in the notifications issued by the Licensing Authority delegating its power under Part VI of the Rules to the District Medical and Health Officer and the Assistant Director of Health Services, Jaipur it is impossible to conclude that the Director of Medical and Heatth Services completely divested himself of the powers of the Licensing Authority under Part VI of the Rules or that he completely defaced itself out of existence for that purpose. THErefore, in my view, the Director of Medical and Health Services, who was designated as the Licensing Authority under R. 59 of the Rules by the State Government was duly empowered to take action against the petitioner under R. 66 of the Rules.

(3.) THE next submission made by learned counsel was that R. 66 provides for two alternative penalties namely, cancellation or suspension of license and his grievance is that in some other cases the Health Minister in appeal merely passed an order of suspension of license till the decision of the appeal, but in the case of the petitioner he upheld the order of the Director cancelling the license. As learned counsel himself submitted that the proceedings before the Director under R. 66 as well as before the Health Minister in appeal were quasi-judicial in nature, it is not for this Court to interfere in the quantum of punishment awarded to the different licensees. As a matter of fact, the grounds on which action was taken against the various licensees were not exactly the same in each case. It has to be noticed that in case of all the licensees, whose orders have been filed by the petitioner, it appears that the Minister found that there was a breach of the conditions of the license as also the breach of the Rules. However, in some of the cases he thought that the extreme penalty of cancellation was not called for and, therefore, the order of the Drugs Controller and Licensing Authority was modified by the Minister and the License was merely suspended for some period. In the case of the petitioner, the Minister did not find any mitigating circumstance for taking a lenient view and, therefore, the order of the Licensing Authority cancelling the license of the petitioner was held to be just and proper. In these proceedings under Art. 226 of the Constitution it is not possible for me to interfere with the quantum of the punishment awarded to the other licensees who also committed breach of the Rules and the conditions of this licenses.