Kerala High Court
Kerala Private Hospitals ... vs Adv.Sabu P. Joseph on 10 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
Wednesday, the 10th day of May 2023 / 20th Vaisakha, 1945
RP NO. 379 OF 2021(S) IN WP(C) 10659/2021(S)
REVIEW PETITIONER/RESPONDENT NO.5:
KERALA PRIVATE HOSPITALS ASSOCIATION HAVING ITS REGISTERED
OFFICE AT KPHA HEAD QUARTERS,ASHIR BHAVAN ROAD,
KACHERIPPADY,ERNAKULAM,KOCHI-682018,
REPRESENTED BY ITS PRESIDENT,HUSSAIN KOYA THANGAL.
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4 & RESPONDENTS 6 TO
12 IN WP(C)No.10659/2021:
1.ADV.SABU P. JOSEPH ,AGED 46 YEARS,S/O.T.A.JOSEPH,
VICE-CHAIRMAN,LEGAL CELL,HUMAN RIGHTS FORUM,
REG.NO.186/IV/19,REGISTERED OFFICE AT
B NO:XX-638,CLASSIC TOWER,A M ROAD,PERUMBAVOOR-683542.
2.THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF
KERALA,SECRETARIAT,THIRUVANANTHAPURAM-695001.
3.DIRECTOR GENERAL OF HEALTH SERVICES,
DIRECTORATE OF HEALTH SERVICES,
GENERAL HOSPITAL JUNCTION,THIRUVANANTHAPURAM-695035.
4.INDIAN COUNCIL OF MEDICAL RESEARCH ,
V.RAMALINGASWAMI BHAVAN,
P O BOX NO.4911,ANSARI NAGAR,NEW DELHI-110029.
REPRESENTED BY ITS SECRETARY AND DIRECTOR GENERAL.
5.UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
HEALTH AND FAMILY WELFARE,NIRMAN BHAVAN,NEW DELHI-110011.
P.T.O
6.STATE HEALTH AGENCY, REPRESENTED BY EXECUTIVE DIRECTOR,
ARTECH MEENAKSHI PLAZA,5TH AND 8TH FLOOR,OPP.GOVT.WOMAN
AND CHILD HOSPITAL,THYCAUD,THIRUVANANTHAPURAM-695014.
7.NATIONAL HEALTH MISSION REPRESENTED BY THE EXECUTIVE
DIRECTOR, NRHM BUILDING,GENERAL HOSPITAL,DIRECTORATE
OF HEALTH SERVICE, JAI VIHAR,KANNUKUZHY,
THIRUVANANTHAPURAM-695035.
8.KERALA MEDICAL SERVICES CORPORATION LTD.
REPRESENTED BY EXECUTIVE DIRECTOR,C.V.RAMAN PILLAI ROAD,
WOMAN AND CHILDREN HOSPITAL,THYCAUD,
THIRUVANANTHAPURAM-695014.
9.THE INDIAN MEDICAL ASSOCIATION(IMA),KERALA
REPRESENTED BY PRESIDENT,HEADQUARTERS,ANAYARA.P.O,
THIRUVANANTHAPURAM-695029.
10.QUALIFIED PRIVATE MEDICAL PRACTITIONERS ASSOCIATION,
REPRESENTED BY ITS PRESIDENT,FLOOR-V-E/F,
VALLAMATTAM ESTATE, RAVIPURAM,M.G.ROAD,KOCHI-682015.
11.CATHOLIC HEALTH ASSOCIATION OF INDIA,
REPRESENTED BY THE EXECUTIVE DIRECTOR,PASTORAL
ORIENTATION CENTRE, CIVIL LINE ROAD,PALARIVATTOM,
KOCHI-682028.
12.MUSLIM EDUCATIONAL SOCIETY ,BANK ROAD,CALICUT-673011,
REPRESENTED BY ITS PRESIDENT DR.P.A.FAZAL GAFOOR.
*ADDL. R13 IMPLEADED
13.THE STATE POLICE CHIEF, KERALA
*ADDL R13 SUO MOTU IMPLEADED AS PER ORDER DATED 09.09.2021
IN RP 379/21 IN WPC 10659/21.
P.T.O.
ADDL. R14 IMPLEADED
14.DR.ARAVIND C.S., S/O.SREEDHARAN, AGED 50 YEARS,
RESIDING AT THIRUVANANTHAPURAM, GENERAL SECRETARY,
KERALA GOVERNMENT MEDICAL COLLEGE TEACHERS ASSOCIATION,
THIRUVANANTHAPURAM-695 011.
ADDL. R14 IS IMPLEADED AS PER ORDER DATED 19/01/2023 IN
IA.1/2023 IN RP 379/21 IN WPC 10659/21.
ADDL.R15 IMPLEADED
15. KERALA UNIVERSITY OF HEALTH SCIENCES
REPRESENTED BY REGISTRAR DR MANOJ KUMAR,
AGED 58 YEARS, S/O KUNJAN PILLAI,
MEDICAL COLLEGE P.O, THRISSUR, KERALA 680 596.
ADDL. R15 IS IMPLEADED AS PER ORDER DATED 10/05/2023 IN
IA 9/2023 IN RP 379/21 IN WPC 10659/21
Review petition praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to allow the above
the Review Petition, review the judgment dated 10/05/2021 in
WP(C)No.10659/2021, and to pass such other order or further orders as
this Honourable Court may deem fit and proper in the circumstances of
the case.
This petition again coming on for orders upon perusing the
petition, this Court's judgment dated 10/05/2021 in WP(C)10659/2021 &
order dated 30/03/2023 in RP.379/2021 and upon hearing the arguments
of SRI.SYAM DIVAN (SENIOR ADVOCATE) along with SRI.K. ANAND, Advocates
for the petitioner, ADVOCATE GENERAL & GOVERNMENT PLEADER for R2 & R3,
DEPUTY SOLICITOR GENERAL OF INDIA for R4 & R5, DR.S. GOPAKUMARAN NAIR
(SENIOR ADVOCATE) along with SRI.SURAJ T.ELENJIKKAL, Advocate for R9,
M/S.M.GOPIKRISHNAN NAMBIAR, K.JOHN MATHAI, JOSON MANAVALAN, KURYAN
THOMAS, PAULOSE C. ABRAHAM, JAI MOHAN & RAJA KANNAN, Advocates for
R10, SRI.S. KANNAN, SENIOR GOVERNMENT PLEADER for Addl.R13 and
of SRI.P.SREEKUMAR, ADVOCATE for Addl.R14 & STANDING COUNSEL for
Addl.R15, the court passed the following:
P.T.O.
DEVAN RAMACHANDRAN
&
DR.KAUSER EDAPPAGATH,JJ.
========================
I.A.NO.10/2023
in
R.P.No.379 of 2021
======================
Dated this the 10th day of May, 2023
O R D E R
DEVAN RAMACHANDRAN (J)
In a rather shocking turn of events, a
young House Surgeon has been killed while on
duty, by a person who was presented in the
hospital where she was working, for treatment.
2. We must say that what we see now is
something that we had always feared and had
been cautioning the stake holders persistently
and consistently, whenever these matters were
considered earlier.
IA 10/23 in RP No.379/21
3. The shocking incident may erode faith
in the system, particularly for the young
students and House Surgeons; and it is our duty
now to ensure that this does not happen.
4. The young lady - Vandana Das, was a
bright student, on the threshold of a brilliant
career as a medical professional. She was
serving the Taluk Hospital, Kottarakkara, as a
House Surgeon, being part of her curriculum,
when the afore incident happened, snuffing her
life and the aspirations of her parents
forever.
5. We are, like any other right thinking
citizen, shocked and distraught by the tragic
events and feel helpless for not having been
able to ensure that Dr.Vandana Das lived a full
life. The least we can do is to place on
IA 10/23 in RP No.379/21
record our deep felt condolences to the family,
friends, relatives, classmates and colleagues
of Dr.Vandana Das and assure them that her
sacrifice will not be forgotten easily.
6. Sri.P.Sreekumar - learned Standing
Counsel for the University, submitted that he
has been constrained to file the afore interim
application, because the student community now
feel unsure and unsafe to work as Interns and
House Surgeons in Government Hospitals. He
submitted that, therefore, unless urgent orders
are issued by this Court to assuage their
apprehensions, things may take a turn for the
worse in the days to come, particularly because
they are already on a path of strike.
7. Pertinently, the person who is accused
of the gruesome act was accompanied by police
IA 10/23 in RP No.379/21
men and other persons, including a Home Guard,
but none of them could avert the ghastly fate
of Dr.Vandana Das. The police could not protect
her and the reasons to this will certainly have
to be explored and found out. Of course, we are
cognizant that police men and others were also
injured when the accused attacked them with a
surgical knife.
8. Sri.S.Kannan - learned Senior
Government Pleader, did not justify the
incident in any manner whatsoever, but tried to
point out that the established protocols had
been followed.
9. We are afraid that we cannot accept
this immediately because, as we have already
recorded above, when Dr.Vandana Das was killed
in such a gruesome manner, it prima facie
IA 10/23 in RP No.379/21
establishes a breakdown of the protectional
system which was expected to take care of her.
This is more so because, the incident happened
in a Government Hospital, when it was the duty
of the persons in charge, particularly the
police and security personnel, to ensure that
doctors, Health Care Professionals, Nurses and
others, are protected to the maximum extent.
10. In the past, when this matter was
considered by us, the Government had been
promising that they would be considering
amendments to the Kerala Healthcare Service
Persons and Healthcare Service Institutions
(Prevention of Violence and Damage to Property)
Act, 2012 ("Act" for short).
11. However, no tangible results have been
brought to our notice and we are informed by
IA 10/23 in RP No.379/21
the learned counsel appearing for the parties
that, though some meetings were scheduled,
nothing has evolved out of them.
12. The answer to this by Sri.S.Kannan -
learned Senior Government Pleader, is that the
Government is actively considering the
amendments and that they will be brought into
effect at the earliest, albeit without
mentioning any specific time frame.
13. This Court has been passing orders one
after the other in the past, including that any
attack - be that minor or major - on any
doctor, healthcare professional, nurse or such
other, should be taken cognizance of by the
Police within a one hour period; as also that
the citizens are made aware of the consequences
of attack on such personnel through all
IA 10/23 in RP No.379/21
methods, including the Media. We are still not
aware whether these directions have been fully
implemented; but are sure that we have to be
told about it without any further delay.
14. Coming back to the incident presently
focused on, we deem it necessary to issue
certain preliminary directions today itself, so
that effective orders can be issued in the days
to come.
We thus order that
(a) The CCTV visuals of the rooms/places of
occurrence of the incident that led to the
unfortunate death of Vandana Das be preserved;
and the Superintendent of Taluk Hospital,
Kottarakkara, shall personally ensure it.
(b) We direct the Judicial First Class
Magistrate-I, Kottarakkara, to forthwith visit
IA 10/23 in RP No.379/21
the Taluk Hospital, Kottarakkara, and conduct
an inspection of the scene of incident and
report to us by tomorrow.
(c) Every order that we have passed in this
case, as also the provisions of the
aforementioned 'Act', shall apply in its full
force and warrant to every Intern, House
Surgeon, Post Graduate student and other
persons engaged in the Health Science
Education, without any reservation; and all our
orders shall be implemented in its letter and
spirit as far as such sections are also
concerned. We, however, leave liberty to
Sri.S.Kannan - learned Senior Government
Pleader, to seek any modification of this
particular direction, if needed in future.
IA 10/23 in RP No.379/21
15. Before we close, we had asked
Sri.S.Kannan - learned Senior Government
Pleader, as to the protocols the police follow
in presenting the accused/persons in their
custody before learned Magistrates. He
submitted that there may be such in force to
ensure that Magistrates are not attacked when
such persons are presented before them. Prima
facie, we would assume that such protocols or
similar ones will require to be put in place
even in the case of production of
accused/persons in the custody of the police
before doctors, nurses and healthcare
professionals; and we, therefore, direct
Sri.S.Kannan to obtain instructions in this
matter.
IA 10/23 in RP No.379/21
16. So as to ensure that the healthcare
system is sufficiently assured of being able to
work without attacks, we direct the State
Police Chief to appear before us online at 10
am tomorrow, when we propose to sit again on a
special sitting; and within that time, a report
from his side with respect to the incident
shall be filed or handed across the Bar, as the
case may be.
List on 11.05.2023 at 10 AM.
Sd/-
DEVAN RAMACHANDRAN, JUDGE
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
SAS
10-05-2023 /True Copy/ Assistant Registrar
