Dismissed

L.R.Vijayasoonan v. Director of Health Services

Kerala HC2 Mar 2020WP(C)/249/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging the termination of a scanning contract awarded to the petitioner under the Janani Shisu Suraksha Karyakaram scheme, holding that the action complied with contractual terms and procedural requirements despite an underlying FIR.

What did the court decide?

Writ petition dismissed as the cancellation of the contract was lawful and complied with statutory and contractual procedures.

L.R.Vijayasoonan Vs Director of Health… — Contract and Commercial Disputes | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶4

MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941

¶5

WP(C).No.249 OF 2020(E)

¶6

PETITIONER :-

¶7

L.R.VIJAYASOONAN, AGED 61 YEARS S/O.LAKSHMANAN, VINEES, POOVATHOOR, KARAKKONAM.P.O., THIRUVANANTHAPURAM - 695 504.

¶8

BY ADVS.SRI.R.T.PRADEEP

SMT.M.BINDUDAS

SRI.K.C.HARISH

RESPONDENTS :-

1 DIRECTOR OF HEALTH SERVICES DIRECTORATE OF HEALTH SERVICES,

¶13

PALAYAM - AIRPORT ROAD, NEAR GENERAL HOSPITAL ROAD JUNCTION, THIRUVANANTHAPURAM - 695 035.

¶14

2 DISTRICT PROGRAMME MEDICAL OFFICER

¶15

AROGYAKERALAM(NRHM), W AND C HOSPITAL COMPOUND, THYCAUDU.P.O., THIRUVANANTHAPURAM, PIN - 695 014

¶16

3 DISTRICT MEDICAL OFFICER, OFFICE OF DISTRICT MEDICAL OFFICER, PALAYAM-AIRPORT ROAD, NEAR GOVERNMENT HOSPITAL JUNCTION, RISHIMANGALAM, VANCHIYOOR, THIRUVANANTHAPURAM - 695 035.

¶17

4 SUPERINTENDENT

¶18

TALUK HEADQUARTERS HOSPITAL, PARASSALA, PARASSALA.P.O, THIRUVANANTHAPURAM - 695 502.

¶19

5 SP MULTI-SPECIALTY HOSPITAL REPRESENTED BY ITS MANAGING DIRECTOR, DR.ROBERT RAJ, PARASSALA, PARASSALA POST OFFICE JUNCTION, PARASSALA P.O,

¶20

THIRUVANANTHAPURAM - 695 502.

¶21

6 HIND LAB

¶22

HLL, TALUK HEADQUARTERS HOSPITAL, PARASSALA, PARASSALA.P.O, THIRUVANANTHAPURAM - 695 502.

¶23

BY SMT.PRINCY XAVIER, GOVERNMENT PLEADER

¶24

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2020, THE COURT ON 02-03-2020 DELIVERED THE FOLLOWING:

¶25

WP(C).No.249 OF 2020(E)

¶26

-: 2 :-

¶27

JUDGMENT

¶28

Dated this the 2nd day of March 2020

¶29

This writ petition is filed seeking the following reliefs :-

¶30

“i. To issue a writ of certiorari or any other appropriate writ, order or calling upon the records pertaining to Exhibits - P3, P5, P7, P12 and P13 and quash the same.

¶31

ii. To issue a writ of mandamus or any other appropriate writ, order or direction to 4^th respondent to resume the contract with the petitioner in terms of Exhibit P1 forthwith dehors Exhibits - P3, P5, P7, P12 and P13.”

¶32

Heard the learned counsel for the petitioner and the

¶33

learned Government Pleader.

¶34

The petitioner had been awarded a contract for conducting scan procedures of patients of Taluk Headquarters Hospital, Parassala for a period of one year from 1.4.2019 to 31.3.2020. Ext.P1 is a communication accepting the tender of the petitioner. It is stated that the contract was under the Janani Shisu Suraksha Karyakaram of the National Health Mission. It is stated that a pre natal scan was conducted under the Scheme on a patient named Nisha on 4.3.2019. The said scan was at 7 weeks of gestation. A second scan was carried out at 11 weeks on 4.4.2019. However, the doctor, who was examining the patient required a third scan to be conducted at 19 weeks of pregnancy at another scan centre, which revealed that the pregnancy was a twin

¶35

WP(C).No.249 OF 2020(E)

¶36

-: 3 :-

¶37

pregnancy and one foetus did not have heartbeat. The patient was immediately referred to the SAT Hospital and on foetal heartbeat not being detected, the pregnancy had to be terminated on 7.6.2019.

¶38

Pursuant to this, a complaint was lodged by the family of the patient and Ext.P2 FIR was registered. On the basis of the same, Ext.P3 communication was issued to the petitioner suspending the contract of the petitioner. It is contended by the petitioner that the 4^th respondent engaged the 5^th respondent for scan procedures at double the rate quoted by the petitioner, thereby causing pecuniary loss to the Government. The petitioner submitted Ext.P4 representation on 19.6.2019. However, Ext.P5 reply was received stating that the matter is under investigation and that final decision would be taken after receiving the report. Further representations also evoked the same response. It is stated that by Ext.P8 dated 30.7.2019 a refer report was submitted in Crime No.725/2019 of Parassala Police Station and it was mentioned in the refer report that the pregnancy was a hidden twin pregnancy and that it would not have been visible in the 7^th and 11^th weeks' scans.

¶39

The petitioner again approached the respondents seeking revocation of the suspension of contract and continuation

¶40

WP(C).No.249 OF 2020(E)

¶41

-: 4 :-

¶42

thereof. Thereafter he filed W.P.(C) No.28540/2019 seeking resumption of the contract. An interim order was passed therein requiring the consideration of the representation preferred by the petitioner. However, by Ext.P12 order dated 17.12.2019, the 1^st respondent directed the 4^th respondent to terminate the contract by invoking Clause 5 of Ext.P1. Pursuant thereto, Ext.P13 order was passed on 19.12.2019 terminating the contract. Exts.P12 and P13 are under challenge in this writ petition.

¶43

The learned counsel for the petitioner submits that the terms of contract provided for cancellation of an agreement on the grounds mentioned in Ext.P1 on a notice of 15 days. It is submitted that the direction in Ext.P11 interim order of this Court was for a consideration of the representation preferred by the petitioner to withdraw the suspension of the contract and therefore, the action of the respondents in having directed the cancellation of the contract and the subsequent cancellation are completely illegal and are violative of the principles of natural justice. The learned counsel also contends that the action is violative of the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution of India.

¶44

A statement has been placed on record by the 4^th respondent. It is submitted therein that the scan of the patient was

¶45

WP(C).No.249 OF 2020(E)

¶46

-: 5 :-

¶47

carried out on the 7^th and 11^th week of pregnancy in the petitioner's scan centre and Exts.R4(a) and R4(b) reports confirming a single live intra uterine gestation had been generated by the petitioner. However, on physical examination, the gynaecologist examining the patient advised an ultra sound scan from another scan centre and it was found that the pregnancy was a twin pregnancy and that due to the fact that cardiac activity was not detected, the pregnancy had to be terminated. It is submitted that complaints have been raised before the hospital and the police and a decision was taken to suspend the contract pending report on the matter. It is stated that a report was called for by the 1^st respondent and the 4^th respondent submitted Ext.R4(c) report and the District Medical Officer (Health) submitted Ext.R4(d) report. It is further stated that there was discrepancy in the names of the radiologist mentioned in the petitioner's licence and the person who had conducted the scan as is evident from Exts.R4(a) and R4(b). It is stated at paragraph 7 of the statement of the 4^th respondent as follows :-

¶48

“7. It is further submitted that an external and internal committee of this hospital including Superintendent, RMO, Consultant, Gynaecologist has examined both the results given by petitioner's scanning centre on the 7^th and 11^th week of pregnancy. The medical committee found that the dual foetal developments should be very clearly mentioned in the 11^th

¶49

WP(C).No.249 OF 2020(E)

¶50

-: 6 :-

¶51

week USG scan but this has not been mentioned in the report of the petitioner's scanning centre and the expert committee has stated that this is due to the technical mistake on the part of the Radiologist.”

¶52

It is further stated that the reputation of the hospital stood damaged due to the negligent act of the petitioner and that Exts.P12 and P13 had been issued after putting the petitioner on notice.

¶53

I have considered the contentions advanced on either side. The petitioner's contention that his rights under Article 19(1) (g) of the Constitution are violated by the action of the respondents is a completely untenable and a fallacious contention which is not liable to be countenanced by this Court. What is under challenge is an order of cancellation of a contract awarded to the petitioner for conducting scans under a specified scheme by the Superintendent of the Taluk Headquarters Hospital. The petitioner's right to carry on his profession is no way affected by the impugned orders and the cancellation of the contract cannot have the effect of violation of the petitioner's fundamental right to carry out his trade or profession.

¶54

The petitioner's contract had been suspended on the specific ground that an FIR had been registered against him in connection with erroneous scan reports generated by him. The

¶55

WP(C).No.249 OF 2020(E)

¶56

-: 7 :-

¶57

petitioner was fully aware of the details of the allegations against him. Ext.R4(c) and R4(d) reports also implicated the petitioner. In view of the fact that the decision to cancel the contract was taken on the basis of the reports and on consideration of the relevant factual aspects of the matter, I am of the opinion that the contentions raised by the petitioner are untenable. Ext.P1 specifically provides for cancellation of contract on issuance of 15 days notice. The petitioner has no case that he was in any way unaware of the complaints raised against the scan centre and the steps taken subsequent thereto.

¶58

In view of the fact that the action for termination of the contract was taken after putting the petitioner on notice and considering his contentions as well, I am of the opinion that the prayers raised in this writ petition cannot be allowed. The writ petition fails and the same is accordingly dismissed.

¶59

Sd/ANU SIVARAMAN JUDGE

¶60

Jvt/24.2.2020

¶61

WP(C).No.249 OF 2020(E)

¶62

-: 8 :-

¶63

APPENDIX

¶64

PETITIONER'S EXHIBITS:

¶65

EXHIBIT P1	TRUE COPY OF COMM AWARDING THE CONT PROCEDURES AT SUC	UNICATION DATED 18.3.2019 RACT TO PETITIONER FOR THE SCAN H RATES SPECIFIED THEREIN.
EXHIBIT P2	TRUE COPY OF THE NO.725/2019 OF PA	FIR DATED 12.06.2019 IN CRIME RASSALA POLICE STATION.
EXHIBIT P3	TRUE COPY OF THE THE CONTRACT WAS	NOTICE DATED 11.6.2019 BY WHICH SUSPENDED FOR THE TIME BEING.
EXHIBIT P4	TRUE COPY OF THE BY PETITIONER TO	REPRESENTATION DATED 19.06.2019 4TH RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE RESPONDENT.	REPLY DATED 26.06.2019 OF 4TH
EXHIBIT P6	TRUE COPY OF THE BY THE PETITIONER	REPRESENTATION DATED 28.09.2019 TO 4TH RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE RESPONDENT.	REPLY DATED 16.10.2019 BY 4TH
EXHIBIT P8	TRUE COPY OF THE CRIME NO.725/2019	REFER REPORT DATED 30.07.2019 IN OF PARASSALA POLICE STATION.
EXHIBIT P9	TRUE COPY OF THE IN THE REGARD BEF	REPRESENTATION DATED 19.10.2019 ORE 4TH RESPONDENT.
EXHIBIT P10	TRUE COPY OF THE (C) No.28540/2019	ORDER DATED 31.10.2019 IN W.P. .
EXHIBIT P11	TRUE COPY OF THE (C)No.28540/2019.	ORDER DATED 20.11.2019 IN W.P.
EXHIBIT P12	TRUE COPY OF THE RESPONDENT.	ORDER DATED 17.12.2019 BY 1ST
EXHIBIT P13	TRUE COPY OF THE RESPONDENT.	ORDER DATED 19.12.2019 BY 4TH
ANNEXURE 1	TRUE COPY OF THE AS RADIOLOGIST IN WITH EFFECT FROM	REGISTRATION OF DR.EDWIN MATHEW THE LABORATORY OF PETITIONER 17.03.2018.

¶66

WP(C).No.249 OF 2020(E)

¶67

-: 9 :-

¶68

RESPONDENTS' EXHIBITS:

¶69

ANNEXURE R4(a) : TRUE COPY OF THE SCAN REPORT OF 7TH WEEK DATED 04.03.2019.

¶70

ANNEXURE R4(b) : TRUE COPY OF THE SCAN REPORT OF 11TH WEEK DATED 05.04.2019.

¶71

ANNEXURE R4(c) : TRUE COPY OF THE REPORT DATED 07.12.2019. ANNEXURE R4(d) : TRUE COPY OF THE REPORT DATED 13.12.2019 BY THE DISTRICT MEDICAL OFFICER (HEALTH). ANNEXURE R4(e) : TRUE COPY OF THE NOTICE DATED 17.10.2019 ISSUED BY THE DISTRICT MEDICAL OFFICER (HEALTH).

¶72

//TRUE COPY//

¶73

P.A. TO JUDGE

L.R.Vijayasoonan v. Director of Health Services

Case brief

What is this about?

What did the court decide?

L.R.Vijayasoonan v. Director of Health Services

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Abdul Rafeeque, Vs State of Kerala

M/S.Coastal Engineering Vs the Chief Engineer (Construction)

Marymatha Infrastructure Pvt. Ltd. Vs Kerala Water Authority

C.K.Jarly Vs M.P.Dinesh

Mohammed Saiban.M Vs Central Board of Secondary Education

Revive Construction Company (India) Pvt. Ltd. Vs State of Kerala