Health Inspectors and Food Safety Officers:
Stop tug of war between the departments;
Joint action is the need of the hour.
Adv Sherry J Thomas @
9447200500
1.
It
has been under discussions for a long while that subsequent to the introduction
of the food safety and standard Act 2006, Chapter XII of Travancore – Cochin
public Health Act is repealed and therefore the Health inspectors working under
the Health Department in Kerala have no authority to conduct Inspection at all
in any of the hotel premises or any other places where the food items are
stored and the same is under the purview of food safety officers alone. Even
when the Health Inspectors in Kerala acted as per the direction given by the
Director of Health Department as part of “Safe Kerala Program”, these
challenges were faced by them.
2.
Altogether there are 4699 Health
Inspectors in Kerala having the Authority under the provisions of
Travancore-Cochin public Health 1955 and The Madras-Public Health 1939. Whereas there are only 112 food Inspectors in
the food safety Department (as per the unofficial report). The provision of repeal regarding some of the
sections of Travancore-Cochin public Health 1955 and The Madras-Public Health
1939 are interpreted in a such a way, seeking a total ban over the official activities of the
Health inspectors in Kerala regarding food items.
3.
Admittedly
the Sec. 97 of Food Safety Act 2006 vide its 2nd schedule repeals
certain legislations which are directly covered by the newly introduced Food
Safety Section Act. The 2nd
schedule of Food Safety Section Act contains the repeal of eight acts. The Section 97(2) of The Food Safety and
Standards Act 2006 read so:
If
there is any other law for the time being in force in any State corresponding
to this Act, the same shall upon the commencement of this Act, stand repealed
and in such case the provisions of section 6 of the General Clauses Act, 1897
(10 to 1897) shall apply as if such provisions of the State law had been
repealed.
By
extracting the said provision, the Food Safety Authorities issued a Circular. It read so:
….So
the following state laws were stand repealed basic on the above provisions
under FSS Act.
Chapter
XII Food control (section 144 to 121) under Travancore Cochin Public Health Act
1955.
Chapter
XII Food control (Section 108 to 115) Madras Public Health Act 1939. The Kerala Edibile oils, Vegetable oils,
Vanspathi and baby food dealers license order 1975.
The
Kerala Pulses dealers license order 1972.
The
Health Officers appointed under Travancore Cochin Public Health Act and Madras
Public Health Act and Health inspectors working under them have no authority
for food inspections in hotels or any food business establishment from 5th
August 2011 based on the above mentioned provisions under FSS Act. The
authority is now fully vested with the Commissioner of Food Safety and officers
under him, appointed under Food Safety &Standards Act 2006.
4.
It
is a question whether the Food Safety Authorities are having power to issue
such a circular. As per the provisions, only Chapter XII (food control) of the
Travancore-Cochin Public Health Act, 1955, and Madras 1939 is seen repealed. It
has been noted that, certain notices issued by the Health Inspectors, even
though it will not come under the Chapter XII of Travancore-Cochin Public Health
Act, were put to challenge without any reasons.
Obviously, the Health Inspector has the power to issue notice under the
provisions of Sec. 63 of the Travancore-Cochin Public Health Act, 1955. Which is a provision under chapter VII of the
Act. The chapter 7 of the Act deals with
prevention, notification and treatment of diseases. Sec. 50 to 87 will come
under this heading. The Section 63 read
so:
Section
63- The Travancore –Cochin Public Health Act 1955.
63.Power
of entry of local officers to take preventive measures- (1)The Health Officer
or an officer not below the rank of a Sanitary Inspector authorized by him in
this behalf may-
(a)
at all reasonable hours, inspect with or without assistance any place in which
any notified disease is reported or suspected to exist, without notice in the
case of factories, workshops, workplaces, offices, business places and the like
and after giving such notice as may appear to him reasonable in other cases
including dwelling houses and
(b)
take such measures as he may consider necessary to prevent the spread of such
disease beyond such place.
5.
The
Health inspectors in Kerala are directed by the director of Health Department
vide proceedings, dated 16.07.2014 to implement ‘Safe Kerala’ program as part
of control the contagious diseases.
There is specific instructions by the Director of Health Department to
all Health Inspectors to conduct inspection on Hotel, Tea Shops Catering Centers,
Cool bars, Bakeries etc.in state wide
manner.
6.
The
Travancore-Cochin Public Health Act, 1955 and Madras-Public -1939 are enacted
with an intention to protect public health in the state of Kerala. The officers appointed under this Act are
having authority to abate nuisances, prevention of infectious diseases,
Mosquito controls, sanitation and building, lodging, food control,
fairsand festivals under the provisions
of various chapters. Only Chapter XII-
food control is claimed to be repeal by the circular of Food Safety
Authorities. It is the Health Inspectors who have to conduct the Site
Inspections for renewal of D&O license,
and the Local Self Government of Kerala has issued a specific Circular
pointing out about the authority of Health Inspectors.
7.
The
Right of Health Inspectors to inspect the premises are given under various provisions
of Travancore-Cochin Public Health 1955. It specifically gives powers to Health
Inspectors to abate nuisance and prevent infectious diseases. The existence of different statutes aiming to
protect the public in the aspect of the Public Health is not barred by law. Like
the Police Department and the Motor Vehicles Department act jointly and
severally to implement the law in connection with use of vehicles, the Health
Department and Food Safety Department may jointly and severally work for the
protection of public health. Any circular issued by the food safety authorities
ought not takes away the power enshrined by the legislation to the officers
under the Health Department in Kerala.
8.
The projected ‘Kerala Health Model’ is well
appreciated by the world Nations. The efforts being taken by the Health
Inspectors in Kerala under guidance of Health Department to prevent contagious
diseases are mainly divided in to five categories. Early detection and
Treatment (Surveillance), Control Measures based on the mode of transmission,
IEC- Information, Education and Communication; Vaccination etc; Regulatory
approach are the modus operandi of the Health Department which is executed
through the Health Inspectors. All these positive activism are on the basis of
the legislative power given under the Travancore-Cochin Public Health Act 1955
and Madras Public Health Act 1939 (in force in old Malabar area).
However, the overlapping powers regarding the implementation
of provision of The Food Safety and Standards Act 2006 and Travancore-Cochin
Public Health Act 1955 and Madras Public Health Act 1939 may not curtail the
existing powers of the Health Inspectors to the extent of non repealed
provisions. In fact, they ought to have work together with a common intention to
preserve the public health.