IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14773 of 2011 (O&M) Date of decision: 16.09.2011 Mr. Rohit Gupta son of Shri Vijay Gupta, Licensee M/s Aditya Medicos, Chemist Shop No.4, New Shopping Complex, Post Graduate Institute of Medical Education and Research (PGIMER), Sector 12, Chandigarh. ...Petitioner versus Post Graduate Institute of Medical Education and Research (PGIMER), Sector 12, Chandigarh, through its Director, and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Anand Chhibbar, Advocate, for the petitioner. Mr. Rajesh Garg, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. The petitioner challenges the issue of cancellation of licence to run a medical shop within the PGI Hospital complex on a decision taken by the Administration after enquiry into alleged serious misconduct of the petitioner as an authorized Chemist, having his shop within the premises. The misconduct attributed to him was that, he had sold a repacked plasma sterilized paediatric size aortic cannula to a patient meant to be used during surgery. The petitioner had responded to the charge of misconduct by stating that it was a new one and not an used, but sterilized one. In an enquiry conducted after gathering the Civil Writ Petition No.14773 of 2011 (O&M) - 2 - statements of a nurse and doctors among others, the Administration found the misconduct attributed to the petitioner as established and relying on the term of the contract of licence issued to the petitioner proceeded to terminate the licence and also initiated action for eviction under the Public Premises Act. The petitioner challenges the finding in the enquiry, the decision taken for cancellation of licence, and the consequential action directed for securing an eviction from the premises occupied by him. 2. The learned counsel appearing on behalf of the petitioner contends that it was false to state that the petitioner had supplied an used surgical item. On the contrary, on 17.04.2011, he had supplied several surgical items necessary for the surgery on a patient that included a cannula described as 'venacava cath 3446', but a replacement of the product was sought by the nurse, requiring him to supply 'cannula 34' instead, which was supplied on 18.04.2011 among other items. According to him, it was not an used plasma sterilized product. The counsel appearing on behalf of the petitioner would submit that the petitioner could never have had access to an used cannula to be re-circulated after plasma sterilization. On the other hand, only the PGI Hospital puts into circulation such used plasma sterilized cannula for extremely poor and indigent patients, who cannot afford to buy or in emergency situation. This argument was to impress upon the Court that there was nothing inherently dangerous about such use, as such. 3. As an alternative argument, the counsel would state that in any event, the report, on the basis of which the impugned action of Civil Writ Petition No.14773 of 2011 (O&M) - 3 - cancellation was done, did not itself reveal that he had been guilty of the misconduct. On the other hand, the Sub Committee comprising of doctors, who had perused the complaint, had merely concluded that it was of, “the unanimous opinion that the repack cannula in question appears to have been supplied by Aditya Medicos.” The contention, therefore, was there was no sure finding that the repacked cannula had been supplied only by the petitioner. A serious action, such as, termination of a contract, could not have been taken by the Administration, when there was no untoward incident reported on account of the alleged supply. The learned counsel would also argue that even as per the terms of the contract, the cancellation could arise only in the event of sale or supply of goods which are spurious, soiled, damaged post-dated and expired stocks. A supply of plasma sterilized cannot come within any of the descriptions to entail cancellation of the contract and forfeiture of the security deposit. 4. The learned counsel appearing on behalf of the PGI would argue that the case must be seen as a pure contractual issue of when a cancellation of licence cannot be challenged in a writ petition and the case has to be only tested on whether the authority had the power to cancel the licence. The case ought not to be examined as though there were a departmental proceeding where a Management is required to follow certain strict procedure, while taking action against its own employee; On the other hand, the petitioner was merely a licensee and if the licence had been cancelled for a valid and justifiable reason, no judicial intervention would be called for. Civil Writ Petition No.14773 of 2011 (O&M) - 4 - 5. The learned counsel for the respondents would try to justify their action by pointing out that the petitioner had originally supplied a cannula of a specification which the respondents did not require for the patient whose surgery had been undertaken and the nurse had sought for a replacement of 'venous cannula 20' for 'venous cannula 34'. The replacement had been made, but the nurse Mrs. Kanchan Ba immediately reported to the security in-charge that the product was not new but was plasma sterilized and she had informed Dr. Anand K.Mishra and Dr. Rana, the Chief Surgeon. The product had been returned and it was claimed by the respondents that the petitioner had immediately replaced it with the new one, but they had no occasion for its use and the surgery was completed uneventfully. It was not for the first time that the petitioner had committed such a serious mistake. The counsel would point out to an earlier occasion when 100 rubber gloves had been billed wrongly at a phenomenal price of Rs.31,428/- when the actual price was only Rs.314.28 and only after the mistake was pointed out, it was corrected. In yet another occasion, a product that was prescribed as polybion was dispensed to a client as polybron for higher price and when the mistake was noticed, the petitioner had also been fined Rs.10,000/- by invoking the provision for imposition of fine in the contract of licence. The learned counsel for the respondents would submit that the petitioner had definitely committed a serious misconduct of dishing out an used product by causing a plasma sterilization and repacking. Such an act would qualify for spurious, damaged item that could result in the cancellation of the licence. The learned counsel for the respondents Civil Writ Petition No.14773 of 2011 (O&M) - 5 - would refer to several decisions of the Hon'ble Supreme Court to state that the High Court will not interfere on purely contractual obligations or their enforcement when the State or its functionary was not doing any act which fell exclusively done within the domain of the State. It was a simple case of a contract of licence to establish a medical shop within the hospital premises and its cancellation cannot be a subject of challenge through a writ petition. 6. The counsel for the petitioner is not prepared to join issues of any error in procedure in conducting the enquiry. The learned counsel is prepared to concede that the petitioner had been served with a notice to show cause against cancellation and he had also been given a personal hearing in the enquiry constituted. He would only argue that even if the alleged misconduct were to be established, it was not so serious that they could take an action for cancellation. It was another way of saying that if the misconduct attributed itself is not assailable, the decision taken for cancellation was surely such as would shock the conscience of the Court to interfere with the serious consequences that flows out of the decision. 7. On the facts brought before the Court with statements recorded from 3 doctors and a nurse, it is clear fact that the product supplied by the petitioner was a repacked sterilized cannula. The issue can never be whether the act had caused any untoward incident. If the evidence brought through the enquiry secured proof of the misconduct, it means a much more serious act of peddling an used product as an unused one and pricing an expensive product of over Rs.1,000/- to a patient as though it was new. I cannot accept an argument that it was not a serious Civil Writ Petition No.14773 of 2011 (O&M) - 6 - misconduct, for, after all nothing serious had ensued to the patient. Nothing serious came about only, because there was no occasion to use the product. The nurse was vigilant to notice the spurious substitution and luckily for the patient, there was not even a need for using the same. It is brought through the report that when the false substitution was noticed, the petitioner had been called for and he had admitted to the mistake and substitute it with yet another new cannula. The petitioner denies that there was any admission, but I am convinced that there was enough and weighty evidence to support the finding that the petitioner was guilty of giving repacked plasma sterilized product. 8. If the misconduct was established, the petitioner cannot make any privilege to himself by saying that the Sub Committee's report that the product “only appeared” as having been supplied and not found as actually supplied by the petitioner. This is merely a manner of making an inference from the given set of facts. There was clear evidence of the fact that he had supplied a cannula on 17.04.2011 and it was sent back the following day at the time of surgery for substitution and such a substitution had also been made. The copy of the bill had been produced by the petitioner admitting that he had supplied cannula 34 for Rs.1,470/- among other items on 18.04.2011 and it was in substitution of an earlier supply made on 17.04.2011 for a cannula priced at Rs.2,100/-. If the cannula that was received was found to be defective, it can be clearly related to the transaction of replacement effected by the petitioner. The expression used in the Sub Committee's report, therefore, that it “appeared” to have been supplied by the petitioner must be seen in the Civil Writ Petition No.14773 of 2011 (O&M) - 7 - context that it had been supplied only by the petitioner. 9. The petitioner is aggrieved about the fact that they had blown out the past incident of a wrong billing for 100 gloves and an accidental excessive billing by dispensing a phonetically similar product polybron instead of polybion. They were taken wrongly as aggravating the misconduct to visit the petitioner with the serious consequence. If the misconduct was established, the issue of cancellation was surely a decision which the respondent was entitled to take. In the days where adverse media publicity brings serious disrepute for integrity of the organization, the fact that there were media reports that used surgical items were being circulated in the hospital and offered by sale in PGI could not have been taken lightly by the Administration. Therefore, if the respondent had taken a serious action for cancelling the contract itself, I cannot fault the same. It is surely not an incident where the Court should substitute its own judgment of what a party to the contract would do and there had been a breach which was serious. It involved not merely lack of integrity with the contracting party, namely, the respondent, but it attempted to cheat an ailing patient. It was serious enough for the respondent to take the decision that it did. I find no reason for interference. The writ petition is dismissed. (K. KANNAN) JUDGE 16.09.2011 sanjeev