W.A. Nos. 112 & 118 of 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 4[TH] 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 4[TH] 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 4[th] 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. W.A. Nos. 112 & 118 of 2022 : 4 : 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 Prenatal 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 W.A. Nos. 112 & 118 of 2022 : 5 : 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 W.A. Nos. 112 & 118 of 2022 : 6 : 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 W.A. Nos. 112 & 118 of 2022 : 7 : 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 W.A. Nos. 112 & 118 of 2022 : 8 : 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 W.A. Nos. 112 & 118 of 2022 : 9 : 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. W.A. Nos. 112 & 118 of 2022 : 10 : 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], W.A. Nos. 112 & 118 of 2022 : 11 : ## 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 legal contentions raised by the rival parties, we are of the clear opinion that true facts and circumstances can only be elicited by a fact finding body in an appropriate enquiry as directed by the learned single Judge. 20. Taking note of the above aspects and legal situations discussed above, we are of the view that the appellants have not made W.A. Nos. 112 & 118 of 2022 : 12 : out a case of jurisdictional error or other legal infirmities for interference in an intra court appeal filed under Section 5 of the Kerala High Court Act. Needless to say, writ appeals fail and accordingly, they are dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_