Kerala High Court

Philips India Limited vs Dr.P.V.Govindan Nair on 4 February, 2022

W.A. Nos. 112 & 118 of 2022          :1:



               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
         FRIDAY, THE 4TH DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943

                              WA NO. 112 OF 2022

 JUDGMENT DATED 16.12.2021 IN WP(C) 7595/2020 OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS 2 & 3:
     1     PHILIPS INDIA LIMITED
           SOUTHERN REGIONAL OFFICE, TEMPLE TOWERS, 5TH FLOOR, OLD
           NO.476, NEW NO.672, ANNA SALALI, NANDANAM,
           CHENNAI - 600 035, REPRESENTED BY DEPUTY MANAGER MR.JOSEPH
           SEBASTIAN.

     2     JOSEPH SEBASTIAN
           DEPUTY MANAGER, PHILIPS INDIA LTD., KRISHNAKRIPA, XL/215A,
           LAYAM ROAD, COCHIN -682 011.

           BY ADVS.
           RAJIT
           LAKSHMI V.PILLAI

RESPONDENTS/WRIT PETITIONERS & RESPONDENTS:
     1    DR.P.V.GOVINDAN NAIR
          AGED 72 YEARS
          S/O.MELOTHU KUNHAMBU NAIR, RESIDING AT 'GOPIKA' SASTHA
          NAGAR, AYYAPPANKAVU ROAD, THIRUVAMBADY P.O.,
          THRISSUR - 680 022.

     2     DISTRICT MEDICAL OFFICER, HEALTH DEPARTMENT
           OFFICE OF THE DISTRICT MEDICAL OFFICER, THRISSUR - 680 001.

     3     K.RAMKUMAR
           TERRITORY MANAGER, PHILIPS INDIA LTD., (PHILIPS HEALTH CARE),
           KRISHNAKRIPA, XL/215A, LAYAM ROAD, COCHIN - 682 011.

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2022,

     ALONG WITH WA.118/2022, THE COURT ON THE SAME DAY DELIVERED THE

     FOLLOWING:
 W.A. Nos. 112 & 118 of 2022       :2:



               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         FRIDAY, THE 4TH DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943

                           WA NO. 118 OF 2022

 JUDGMENT DATED 16.12.2021 IN WP(C) 21808/2020 OF HIGH COURT OF KERALA

APPELLANT/RESPONDENT NO.2:
           PHILIPS INDIA LTD.,
           (PHILIPS HEALTH CARE), KRISHNAKRIPA XI/215A, LAYAM ROAD,
           COCHIN-682 011, REPRESENTED BY ITS DEPUTY MANAGER,
           MR.JOSEPH SEBASTIAN.

           BY ADV. RAJIT

RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1, 2 & 4:
     1    GEO CHACKO,
          AGED 43 YEARS
          S/O.CHACKO, CALISSERY HOUSE NO.13, OMEGHA SQUARE
          APARTMENT, 5TH CROSS ROAD, AYYANTHOLE, THRISSUR-680 003.

     2     DISTRICT MEDICAL OFFICER HEALTH DEPARTMENT,
           OFFICE OF THE DISTRICT MEDICAL OFFICER, THRISSUR-680 001.

     3     AMALA INSTITUTE OF MEDICAL SCIENCES,
           REPRESENTED BY MANAGING DIRECTOR, AMALA NAGAR,
           THRISSUR-680 555.

     4     DR.P.V.GOVINDAN NAIR,
           GOPIKA, SASTHA NAGAR, AYYAPPANAKAVU ROAD, THIRUVAMBADY
           P.O., THRISSUR-680 022.

           R1 BY SMT. ANJALI MENON
           R2 BY SRI.K.P.HARISH, SR GOVERNMENT PLEADER
           R4 BY SRI. T.C.SURESH MENON FOR R4

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2022,

      ALONG WITH WA.112/2022, THE COURT ON THE SAME DAY DELIVERED THE

      FOLLOWING:
 W.A. Nos. 112 & 118 of 2022       :3:



                  Dated this the 4th day of February, 2022.

                                    JUDGMENT

SHAJI P. CHALY, J.

The captioned writ appeals are filed by the party respondents in

W.P.(C) NOS. 7595 of 2020 and 21808 of 2020 respectively, which

were disposed of by the learned single Judge directing the District

Medical Officer, Health Department, Thrissur, to consider Ext. P9 and

P2 representation/ complaint respectively produced in the writ

petitions, as expeditiously as possible and at any rate within four

months from the date of receipt of a copy of the judgment, after giving

an opportunity of hearing to the writ petitioners, the appellant

company incorporated under the Companies Act, and the officials of

the said company, and pass orders thereon.

2. It was further directed that if a preliminary written objection

is filed by the appellants within two weeks from the date of receipt of a

copy of the judgment, alleging that the representations are not

maintainable before the District Medical Officer, the said authority will

decide the preliminary issue with respect to the maintainability of the

representations, after giving an opportunity of hearing to the writ

petitioners and the appellants and pass appropriate orders thereon

within one month from the date of receipt of the preliminary objection.

It is, thus, challenging the legality and correctness of the judgment,

the appeals are preferred.

3. The subject issue arises under the Pre-conception and Pre-

natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

('Act, 1994' for short) and the Rules thereto of 1996.

4. The case of the writ petitioner in W.P.(C) No. 7595 of 2020 is

as follows:

The petitioner is a Radiologist, who is conducting an ultrasound

scanning centre at Thrissur. The appellant namely Philips India Limited

supplied an ultrasound scanning machine to the writ petitioner in the

year 2005, and after the statutory warranty period was over, the writ

petitioner was maintaining an annual maintenance contract with the

said company. While so, in the year 2012, the machine broke down

and the company has informed the petitioner that certain parts have to

be brought down from the USA to carry out the repairs, and

accordingly a stand by machine was provided in the meantime. After

6 months, the petitioner was informed that the spare parts were ready

and his machine was accordingly serviced.

5. The further case of the petitioner is that, while operating the

machine, he found that it contained a large amount of data and

images in connection with the patients from Amala Institute of Medical

Sciences, a hospital nearby Thrissur, and the petitioner soon realized

that the company has replaced the hard disk from the scanning

machine of Amala Institute of Medical Sciences after removing the

hard disk of the petitioner's machine. Therefore, the case projected by

the petitioner is that, under the Act, 1994, a statutory obligation is

cast upon appellants to make intimation to the District Medical Officer

before any sale and repairs, and maintenance of scanning machines is

carried out. However, in the instant case, no such intimation was given

to the appellants.

6. It is also contended that the personal data and nearly two

lakhs images of various patients are now in the open domain due to

the mal practice of the appellant company. It was, accordingly, that a

complaint was preferred before the District Medical Officer, which led

to an enquiry resulting in Ext.P8 communication affirming the violation

of the provisions of the Act 1994. But, no follow up action was

initiated, despite Ext.P9 reminder submitted to the said authority. It

was in the said backdrop that the said writ petition was filed.

7. Insofar as W.P.(C) No. 21808 of 2020 leading to W.A. No. 118

of 2020 is concerned, the basic contention advanced by the petitioner

is that, he fell ill and was suffering from severe abdominal pain and

blood in urine and based on the suggestion made by his doctor in

Amala Institute of Medical Sciences -- second respondent in the said

writ petition, ultrasound scan was taken for proper diagnosis in the

imaging centre run by the petitioner in the connected writ petition.

However, later, on 29.08.2018, he was summoned by the Sub

Inspector of East Police Station, Thrissur and informed that based on

the investigation conducted in a complaint filed by Dr. P. V Govindan

Nair, who is the petitioner in the connected writ petition, and the 4 th

respondent in the instant writ petition, against the appellant company,

it was found that numerous patient records were leaked from the

scanning machine of the second respondent hospital. According to the

said writ petitioner, he was informed that the said aspects would

constitute an offence punishable under the Act, 1994 and the Rules,

1996 thereto.

8. It was thereupon that Ext. P2 complaint was submitted by

the writ petitioner before the District Medical Officer and no action was

initiated, which persuaded him to approach the writ court.

9. The paramount contention advanced by the appellants in the

writ petition as well as the appeals are that the writ petitions are not

maintainable; and that the writ petitioners have not proved their locus

standi to approach the District Medical Officer by invoking the

provisions of the Act, 1994 and the Rules thereto. It is also contended

that there is no violation of any of the provisions of the Act, 1994 and

the Rules, 1996. It is also contended that Rule 3A of the Rules, 1996

cast responsibilities only when there is actual sale. But, in the instant

case, the scanning machine was given to Dr. P. V. Govindan Nair as a

stand by machine; and therefore, the responsibility cast under the

Rule is not applicable to the appellant company.

10. That apart, it is contended that there is no responsibility cast

on the manufacturer to report the factum of replacement of spare

parts to the District Medical Officer as per the provisions of the Act,

1994 and the Rules, 1996.

11. It is also submitted that the writ petitioners are baselessly

raising the contentions against the appellants with the only intention of

harassing the company and its employees. Various other contentions

are raised by the appellants, relying upon Sections 25, 26, 28 and 29

of the Act, 1994 dealing with, penalty for contravention of the

provisions of the Act or rules for which no specific punishment is

provided, offences by companies, cognizance of offences respectively.

12. Therefore, the basic contention of the appellants is that the

writ court was not correct in directing the District Medical Officer to

consider the representation and complaint submitted by the respective

writ petitioners. On the other hand, the learned counsel appearing for

the writ petitioners submitted that the arguments advanced by the

learned counsel for the appellants, relying upon the provisions of the

Act, 1994, cannot be sustained, since Rule 18A (7) of Rules, 1996

dealing with the mandate of the regulations contained thereunder to

be followed by the Appropriate Authorities including the State, District,

and Subdistrict, which reads thus:

"18A. Code of Conduct to be observed by Appropriate Authorities.--

...

(7) All the Appropriate Authorities including the State, District and Sub-district notified under the Act, inter alia, shall observe the-following regulation of ultrasound (I) monitor the sales and import of ultrasound machines including portable or buyback, assembled, gift, scrap or demo;

(ii) ensure regular quarterly reports from ultrasound manufacturers, dealers, wholesalers and retailers and any person dealing with the sales of ultrasound machines at the State level.

(iii) conduct periodical survey and audit of all the ultrasound machines sold and operating in the State or district to identify the unregistered machines;

(iv) file complaint against any owner of the unregistered ultrasound machine and against the seller of the unregistered ultrasound machine."

13. Therefore, according to the learned counsel for the

petitioners, the contention advanced by the appellants that the

complaint/representation is not maintainable before the District

Medical Officer, cannot be sustained under law. That apart, it is

pointed out that the learned single Judge has even directed the District

Medical Officer to conduct a preliminary enquiry in regard to the

maintainability of the complaint before the said statutory authority and

therefore, no manner of prejudice is caused to the appellants in the

matter of conduct of enquiry by the statutory authority; and further

that the appellant has not made out any case of jurisdictional error to

be interfered in an intra court appeal .

14. We have heard the learned counsel for the appellants Adv.

Rajit, learned counsel appearing for the writ petitioners/respondents

Sri. T.C. Suresh Menon and the learned Government Pleader for the

official respondents, and perused the pleadings and materials on

record.

15. Respective counsel have addressed arguments as is

deliberated above. Act, 1994 was brought into force to prohibit the

pre-natal techniques for determination of sex of the foetus leading to

female foeticide and to regulate the use of such techniques and to

provide deterrent punishment to stop such inhuman act, which inter

alia provides permission and regulation of the use of pre-natal

diagnostic techniques for the purpose of detection of specific genetic,

abnormalities or disorders; and permitting the use of such techniques

only under certain conditions by the registered institutions; and

punishment for violation of the provisions of the proposed legislation.

16. On a perusal of the representation/complaint filed by the

writ petitioners, it is seen that allegations are made with respect to the

replacement of the hard drive of the machine, by the appellant

company to Dr. P.V. Govindan Nair without information to the authority

under the Act 1994; and it is alleged that certain confidential

information of yet another hospital is available in the disk leading to a

conclusion that the replaced hardware was one attached to a different

hospital. Definitely, the contentions advanced by the writ petitioners

are stoutly opposed by the appellants raising various contentions,

including the one that the prosecution under the Act, 1994 is barred by

limitation, in view of Section 468 of the Code of Criminal Procedure,

since the maximum punishment prescribed under Sections 25 and 26

are three months and three years respectively or with fine, which may

extend to one thousand rupees or with both; and in the case of

continuing contravention under Section 25 with an additional fine

which may extend to five hundred rupees for every day during which

such contravention continues after conviction for the first such

contravention.

17. In that context, we are also reminded of the observation in

the judgment of the Apex Court in Voluntary Health Organisation

of Punjab v. Union of India and others [(2016) 10 SCC 265],

under the Act, 1994, at para 33 (e), which reads thus:

"If there has been violation of any of the provisions of the Act or the Rules, proper action has to be taken by the authorities under the Act so that the legally inapposite acts are immediately curbed."

18. Anyhow, these are all matters to be looked into by a

competent court of law/ the authority under the statute appropriately,

and not in a petition under Article 226 of the Constitution of India or in

an appeal filed therefrom. Moreover, the learned single Judge has

issued directions by granting liberty to the appellants to raise an

objection with respect to the maintainability of the

complaint/representation before the District Medical Officer and to

pass an order thereunder within a month, and it was subject to the

said direction only final disposal of the complaint/representation was

directed within a period of four months from the date of receipt of the

copy of the judgment.

19. On an appreciation of the facts and circumstances and the