IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 WP(C).No. 7097 of 2007(T) -------------------------------------- PETITIONER: -------------------- M/S MEDI PLUS PHARMACEUTICAL DISTRIBUTORS, 44/926-A, L.F.C.ROAD, KALOOR,COCHIN-682 017. REPRESENTED BY ITS MANAGING PARTNER, E.K.HASSANKUTTY. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT. NISHA BOSE RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, GOVERNMENT GENERAL HOSPITAL, ERNAKULAM. *ADDL.R4 & R5 ARE IMPLEADED: R4. THE DRUGS CONTROLLER OF KERALA, THIRUVANANTHAPURAM. Kss ..2/- ...2..... WPC.NO.7097/2007 T R5. THE ASSISTANT DRUGS CONTROLLER, COLLECTORATE, ERNAKULAM. (*ADDL.R4 & R5 ARE IMPLEADED AS PER ORDER DT. 23/05/07 IN I.A.NO.5565/07) **ADDL.R6 IS IMPLEADED: R6. M/S. NEON LABORATORIES LIMITED., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT 140, DAMJI SHAMJI INDUSTRIAL COMPLEX, MAHAKALI CAVES ROAD, ANDHERI EAST, MUMBAI – 400 093, REPRESENTED BY ITS VICE PRESIDENT-MARKETING AND POWER OF ATTORNEY HOLDER SRI. RAKESH GUPTA. (**ADDL.R6 IS IMPLEADED AS PER ORDER DTD. 30/05/07 IN I.A.NO.6717/07) R1 TO R5 BY GOVERNMENT PLEADER SRI. M.R. SABU ADDL.R6 BY ADV. SRI.A.V.THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7097/2007 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF TENDER NOTIFICATION DTD. 3/02/2006. EXT.P2: COPY OF LETTER FROM 3RD RESPONDENT TO PETITIONER DTD. 31/03/2006. EXT.P3: COPY OF AGREEMENT DTD. 27/05/2006 BETWEEN PETITIONER AND GOVT. OF KERALA. EXT.P4: COPY OF THE REPRESENTATION DTD. 20/02/2007 FROM THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5: COPY OF TENDER NOTICE DTD. 27/02/2007 ISSUED BY THE 3RD RESPONDENT. EXT.P6: COPY OF 1ST PAGE OF TENDER. EXT.P7: COPY OF LETTER FROM SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM, DTD. 15/03/2007. EXT.P8: COPY OF PETITIONER'S REQUEST DTD. 3/3/2007. EXT.P9: COPY OF REPLY DTD. 21/03/207 FROM THE SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM. EXT.P10: COPY OF LETTER DTD. 27/03/2007 FROM THE SUPERINTENDENT, GENERAL HOSPITAL, TO THE PETITIONER. EXT.P11: COPY OF LETTER DTD. 29/03/2007 FROM THE PETITIONER TO SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM. EXT.P12: COPY OF THE LETTER DTD. 18/06/2007 TO SHRI. B.V.RAVEENDRAN PRESS REPORTER, SOUTHERN STAR DAILY. EXT.P13: COPY OF NEWS ITEM APPEARED IN DEEPIKA DTD. 7/06/2007. EXT.P14: COPY OF NEWS ITEM APPEARED IN MADHYAMAM DTD. 22/07/2007. Kss ..2/- ...2..... WPC.NO.7097/2007 T 3RD RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF LETTER FROM THE MEDICAL OFFICER IN CHARGE (ANESTHETIST) OPERATION THEATRE, GENERAL HOSPITAL, ERNAKULAM DTD. 27/03/2007. EXT.R3(B): COPY OF LETTER NO.20/06 DTD. 27/06/06 FROM THE STORE SUPERINTENDENT, GOVERNMENT HOSPITAL, ERNAKULAM TO THE SUPERINTENDENT, GOVERNMENT HOSPITAL, ERNAKULAM. EXT.R3(C): COPY OF LETTER FROM THE STORE SUPERINTENDENT, GOVERNMENT HOSPITAL, ERNAKULAM TO THE SUPERINTENDENT, GOVERNMENT HOSPITAL, ERNAKULAM DTD. 16/06/06. EXT.R3(D): COPY OF THE PROCEEDINGS OF THE DIRECTOR OF HEALTH SERVICE THIRUVANANTHAPURAM TO THE SUPERINTENDENT OF GOVERNMENT HOSPITAL, ERNAKULAM ORDER NO. CPC 1(MS P2)/34649/07/DHS (CPC) DTD. 7/04/07. 6TH RESPONDENT'S EXHIBITS: EXT.R6(A): COPY OF THE LETTER DTD. 27/03/2007 FROM THE SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM TO THE PETITIONER. EXT.R6(B): COPY OF THE LETTER DTD. 29/03/2007 SENT BY THE PETITIONER TO THE SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM. RESPONDENT'S ANNEXURE: ANNEXURE A: COPY OF THE LETTER DTD. 27/03/207 FROM THE SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM TO M/S. MEDIPLUS PHARMACEUTICAL DISTRIBUTORS, ERNAKULAM. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ----------------------------------------------- W.P.(C) No. 7097 OF 2007 ----------------------------------------------- Dated this the 24th day of March, 2008 JUDGMENT This writ petition was filed at a time when tenders for supply of medicines to General Hospital, Ernakulam for the period from 01.04.06 to 31.03.07 was due to be called for, but was delayed. It is therefore the petitioner prayed for a direction that the tenders be invited for supply of medicines for the aforesaid period and also in future. 2. It is seen that during the pendency of the writ petition, tenders were invited for the period up to 31.03.07 and the petitioner was the lowest tenderer. The petitioner now complains that the authorities did not issue purchase orders to the petitioner, but on the other hand, resorted to purchase from other sources, particularly from a Society by name Dhanwanthari Service Society. 3. The fact that the medicines were not purchased from the petitioner, in spite of it being the lowest tenderer is not disputed by the 3rd respondent in the statement filed. The 3rd respondent would submit that while the petitioner was the successful tenderer for previous years such as 2005-06 and 2006-07, there were complaints WPC : 7097 OF 2007 2 against the supply made by the petitioner and that the medicines supplied were inferior in quality. While the petitioner disputes the correctness of these averments petitioner also has a case that the 3rd respondent is not competent to judge on the quality of the medicines and that too without following the procedures laid down in Drugs and Cosmetics Act, 1940. The petitioner also contends that the Dhanwanthari Service Society did not have a license as contemplated in the said Act. 4. A reading of the statement would show that the complaint against the petitioner including the default that were committed by the petitioner in relation to the medicine supplied and the poor quality of the medicines are now projected, to justify the third party purchase that the 3rd respondent has effected, of course with the approval of the Director of Health Services. But, if as a matter of fact, there were complaint against the petitioner for any reason, the petitioner should have put on notice of such complaint and action ought to have been taken. Admittedly, this has not been done. Therefore, the reasons should now urged in the statement, in the absence of any notice or action having been taken at the appropriate time, does not appear to WPC : 7097 OF 2007 3 me to uphold the outside purchase that the respondents have done. 5. The 6th respondent has a complaint about the conclusion of the 3rd respondent regarding the inferior quality of the medicines supplied. However, the fact remains that the 6th respondent has not so far impugned the decisions that were taken by the 3rd respondent in this respect and it is up to them to do so. Be that as it may, now the contract period fixed is about to expire on 31.03.08, further proceedings for the aforesaid period is too late. Therefore, this Writ Petition is disposed of directing that as and when the tender is invited for the supply of medicines in future, it will be open to the petitioner to participate in the tender proceedings and if he is the successful contractor, necessary purchase orders, in the absence of adverse action that has taken against the petitioner, will be issued. ANTONY DOMINIC, JUDGE ttb WPC : 7097 OF 2007 4 WPC : 7097 OF 2007 5 ANTONY DOMINIC, JUDGE ttb WPC : 7097 OF 2007 6