Partly allowed

Dr.P.v.Govindan Nair v. District Medical Officer

Kerala HC16 Dec 2021WP(C)/7595/2020

Case brief

AI extract

What is this about?

The court disposed of two connected writ petitions concerning alleged malpractice where a medical imaging machine contained patient data from a hospital. The petitioner sought directions for the District Medical Officer to consider representations regarding violations of the PCDT Act 1994. The court directed the authority to consider the representations and allow preliminary objections on maintain

What did the court decide?

Directed the 1st respondent (District Medical Officer) to consider Ext.P9 and Ext.P2 representations expeditiously and pass appropriate orders after hearing; respondents allowed to file preliminary ob

Dr.P.v.Govindan Nair Vs District… — Constitutional and Fundamental Rights | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

¶4

THURSDAY, THE 16^TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

¶5

WP(C) NO. 7595 OF 2020

¶6

PETITIONER:

¶7

DR.P.V.GOVINDAN NAIR AGED 72 YEARS S/O.MELOTHU KUNHAMBU NAIR, RESIDING AT 'GOPIKA', SASTHA NAGAR, AYYAPPANKAVU ROAD, THIRUVAMBADY.P.O., THRISSUR-680022. BY ADVS. T.C.SURESH MENON SRI.P.S.APPU

¶8

RESPONDENTS:

¶9

1 DISTRICT MEDICAL OFFICER, HEALTH DEPARTMENT, OFFICE OF THE DISTRICT MEDICAL OFFICER, THRISSUR-680001. 2 PHILIPS ELECTRONICS INDIA LIMITED (PHILIPS HEALTH CARE), SOUTHERN REGIONAL OFFICE. TEMPLE TOWERS, 5TH FLOOR, OLD NO.476, NEW NO.672, ANNA SALAI, NANDANAM, CHENNAI-600035. 3 JOSEPH SEBASTIAN, DEPUTY MANAGER, PHILIPS INDIA LIMITED (PHILIPS HEALTH CARE), 'KRISHNAKRIPA', XL/215A, LAYAM ROAD, KOCHI-682011. 4 K.RAMAKUMAR, TERRITORY MANAGER, PHILIPS INDIA LTD (PHILIPS HEALTH CARE), 'KRISHNAKRIPA', XL/215A,

¶10

WP(C) Nos. 7595 & 21808 of 2020

¶11

¶12

LAYAM ROAD, KOCHI-682011.

¶13

BY ADVS. SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER SRI.RAJIT

¶14

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2021, ALONG WITH WP(C).21808/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

WP(C) Nos. 7595 & 21808 of 2020

¶16

¶17

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶18

PRESENT

¶19

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 16^TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

¶20

WP(C) NO. 21808 OF 2020

¶21

PETITIONER:

¶22

GEO CHACKO AGED 43 YEARS S/O. CHACKO, CHALISSERY HOUSE NO.13, OMEGHA SQUARE APARTMENT, 5TH CROSS ROAD, AYYANTHOLE, THRISSUR 680 003.

¶23

BY ADV. ANJALI MENON

¶24

RESPONDENTS:

¶25

1 DISTRICT MEDICAL OFFICER HEALTH DEPARTMENT, OFFICE OF THE DISTRICT MEDICAL OFFICER, THRISSUR 680 001. 2 AMALA INSTITUTE OF MEDICAL SCIENCES, REP. BY MANAGING DIRECTOR, AMALA NAGAR, THRISSUR 680 555. 3 PHILIPS INDIA LTD, (PHILIPS HEALTH CARE), KRISHNAKRIPA XL/215A, LAYAM ROAD, COCHIN 682 011, REPRESENTED BY ITS DEPUTY MANAGER. 4 DR. P.V GOVINDAN NAIR, GOPIKA, SASTHA NAGAR, AYYAPPANAKAVU ROAD, THIRUVAMBADY P.O. THRISUR 680 022. BY ADVS. SRI.RAJIT SRI.T.C.SURESH MENON

¶26

WP(C) Nos. 7595 & 21808 of 2020

¶27

¶28

SRI.P.S.APPU

¶29

LAKSHMI V.PILLAI SMT.DEEPA NARAYANAN, SENIOR GP

¶30

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2021, ALONG WITH WP(C).7595/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶31

WP(C) Nos. 7595 & 21808 of 2020

¶32

¶33

P.V.KUNHIKRISHNAN, J

¶34

W.P.(C)Nos.7595 and 21808 of 2020

¶35

Dated this the 16^th day of December,2021

¶36

JUDGMENT

¶37

These two writ petitions are connected and

¶38

therefore I am disposing these two writ petitions by a common judgment. I will narrate the facts in W.P.(C)No.7595/2020:

¶39

2. The petitioner is a Radiologist who is conducting an Ultra Sound Scanning Center at Thrissur. The 2^nd respondent supplied an ultra sound scanning machine to the petitioner

¶40

in the year 2005. It is the case of the petitioner that, after the statutory warranty period was over, the petitioner has been maintaining an annual maintenance contract with the 2^nd respondent. According to the petitioner, in the year 2012, the machine broke down and the 2^nd respondent said that

¶41

¶42

WP(C) Nos. 7595 & 21808 of 2020

¶43

certain parts have to be brought down from USA to carry out the repairs. It is also the case of the petitioner that a stand by machine was provided in the meantime and after 6 months the petitioner was informed that the spare parts were ready and his machine was accordingly serviced. It is further stated by the petitioner that, while operating the machine, the petitioner was shocked to find that the same contained large amount of data and images in connection with the patients from Amala Institute of Medical Sciences which is a hospital nearby Thrissur. It is stated by the petitioner that he soon realized that the 2^nd respondent 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. It is the further case of the petitioner that the provisions under the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of

¶44

¶45

WP(C) Nos. 7595 & 21808 of 2020

¶46

Sex Selection) Act, 1994 (for short the Act 1994) cast a statutory obligation on respondents 2 to 4, the sellers to make intimations to the 1^st respondent before any sale, repairs, maintenance of scanning machines are carried out. According to the petitioners, such intimation was never given to the 1^st respondent by the 2^nd respondent. It is further stated in the writ petition that the personal data and nearly two lakh images of various patients are now in the open domain due to the malpractice of the 2^nd respondent. Hence a complaint was preferred before the 1^st respondent which led to an enquiry resulting in Ext.P8 communication affirming the violation of the provisions of the Act 1994. It is the case of the petitioner that, no follow up action is initiated by the 1^st respondent despite Ext.P9 was submitted to the 1^st respondent. Hence this writ petition is filed.

¶47

¶48

WP(C) Nos. 7595 & 21808 of 2020

¶49

3. Heard the learned counsel for the

¶50

petitioner, the learned Government Pleader and Adv.Sri.Rajit, who appeared for respondents 2 to 4.

¶51

4. The learned counsel for the petitioner submitted that, he will be

¶52

satisfied, if a direction is issued to the 1^st respondent to consider Ext.P9 representation in which his grievance is narrated. The

¶53

learned Government Pleader submitted that the 1^st respondent is the appropriate authority and the 1^st respondent will consider Ext.P9 representation in accordance to law, after

¶54

giving an opportunity of hearing to the petitioner and the other contesting respondents. But Adv.Sri.Rajit has got serious objection in issuing such a direction to the 1^st respondent. He submitted that Ext.P9 is not maintainable before the 1^st

¶55

respondent. The learned counsel submitted that ultimately, if the 1^st respondent found

¶56

¶57

WP(C) Nos. 7595 & 21808 of 2020

¶58

that the allegation is correct,they can only initiate prosecution which is now barred under Section 468 Cr.P.C. So it will be a futile exercise to direct the 1^st respondent to consider the representation. Adv.Sri.Rajit also takes me through the relevant Sections in the Act 1994 and submitted that the 1^st respondent has no authority to consider the issue involved in this case. The learned counsel for respondents 2 to 4 submitted that a detailed counter affidavit is filed narrating their case and submitted that the writ petition is to be dismissed with heavy cost.

¶59

5. I considered the contentions of the petitioner, the learned Government Pleader and the contesting respondents. According to the petitioner, he will be satisfied if a direction is issued to the 1^st respondent to consider Ext.P9. The learned Government Pleader conceded that the 1^st respondent is the

¶60

¶61

WP(C) Nos. 7595 & 21808 of 2020

¶62

appropriate authority as per the Act 1994 to consider these type of grievances and the 1^st respondent will consider the same and pass appropriate orders. But respondents 2 to 4 submitted that the 1^st respondent has no authority to consider the grievance raised by the petitioner in Ext.P9. According to me, this is a matter to be decided by the 1^st respondent itself and this Court need not go

¶63

to that issue. If respondents 2 to 4 has got a grievance that the 1^st respondent is not an authority to decide the issue involved in this

¶64

case, respondents 2 to 4 can raise a preliminary objection regarding the maintainability of Ext.P9 before the 1^st

¶65

respondent. If such a preliminary objection is filed by respondents 2 to 4, the 1^st respondent will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner and respondents 2 to 4. The order passed in the

¶66

¶67

WP(C) Nos. 7595 & 21808 of 2020

¶68

preliminary objection should be served to respondents 2 to 4. Thereafter, only the 1^st respondent can proceed, if any enquiry is necessary.

¶69

6. In W.P.(C)No.21808/2020 also the

¶70

petitioner limit his prayer for a consideration of Ext.P2 representation. There also, the learned Government Pleader submitted that, that also will be considered by the 1^st respondent.

¶71

Therefore these two writ petitions are disposed of in the following manner:

¶72

i) The 1^st respondent will consider Ext.P9 representation produced in W.P. (C)No.7595/2020 and Ext.P2 representation produced in W.P.(C)No.21808/2020, as

¶73

expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment, after giving an opportunity of hearing to the petitioner and respondents 2

¶74

to 4.

¶75

¶76

WP(C) Nos. 7595 & 21808 of 2020

¶77

ii) If a preliminary written objection is filed by respondents 2 to 4 alleging that these representations are not maintainable before the 1^st respondent, the 1^st respondent will decide the preliminary issue at first after giving an opportunity of hearing to the petitioners and respondents 2 to 4 and pass appropriate order in it. If respondents 2 to 4 want to file a preliminary objection, the same should be filed within two weeks from the date of receipt of a copy of this judgment.

¶78

iii) Once such a preliminary objection question is raised by respondents 2 to 4, the 1^st respondent will consider the same and pass appropriate orders in it, within one month from the date of receipt of the preliminary objection.

¶79

Sd/-

¶80

P.V.KUNHIKRISHNAN JUDGE

¶81

¶82

WP(C) Nos. 7595 & 21808 of 2020

¶83

¶84

APPENDIX OF WP(C) 21808/2020

¶85

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ULTRASOUND SCAN REPORT. EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED 7.4.2019 SUBMITTED BEFORE THE 1ST RESPONDENT. RESPONDENTS EXHIBITS : NIL

¶86

WP(C) Nos. 7595 & 21808 of 2020

¶87

¶88

APPENDIX OF WP(C) 7595/2020

¶89

PETITIONER EXHIBITS

¶90

EXHIBIT P1 TRUE COPY OF THE INSTALLATION COMPLETION AND ACCEPTANCE CERTIFICATE DATED 31.7.2005. EXHIBIT P2 TRUE COPY OF THE ANNUAL MAINTENANCE CONTRACT BETWEEN THE PETITIONER AND THE 2ND RESPONDENT DATED 19.7.2012. EXHIBIT P3 TRUE COPY OF THE INTIMATION LETTER SUBMITTED TO THE 1ST RESPONDENT DATED 2.12.2011. EXHIBIT P4 TRUE COPY OF THE SERVICE REPORT OBTAINED FROM RESPONDENTS 3 AND4 DATED 3.12.2011. EXHIBIT P5 TRUE COPY OF THE SERVICE REPORT ISSUED BY RESPONDENTS 3 AND 4 DATED 8.6.2012. EXHIBIT P6 TRUE COPY OF THE SERVICE REPORT ISSUED BY RESPONDENTS 3 AND 4 DATED 19.7.2012. EXHIBIT P7 TRUE COPY OF THE COMMISSION REPORT SUBMITTED BEFORE THE HON'BLE SUB COURT, THRISSUR BY THE EXPERT COMMISSIONER DATED 23.10.2017. EXHIBIT P8 TRUE COPY OF THE COMMUNICATION SERVED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 25.11.2019. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 4.3.2020.

¶91

RESPONDENTS EXHIBITS

¶92