Kerala High Court
M/S.Unicure (India) Limited vs Kerala Medical Services Corporation ...
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939
WP(C).No. 30415 of 2016 (B)
----------------------------
PETITIONER :
----------------------
M/S.UNICURE (INDIA) LIMITED,
AN ISO 9000-2008 CERTIFIED COMPANY,
C-22 & 23, SECTOR-3, NOIDA-201 301 (UTTAR PRADESH),
REPRESENTED BY ITS MANAGING DIRECTOR ABDUL MATEEN.
BY SRI.P.RAVINDRAN,SENIOR ADVOCATE
ADV.SRI.SREEDHAR RAVINDRAN
RESPONDENT(S):
---------------------------
1. KERALA MEDICAL SERVICES CORPORATION LIMITED,
THYCAUD P.O., THIRUVANANTHAPURAM-695 014,
REPRESENTED BY ITS MANAGING DIRECTOR.
2. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
THIRUVANANTHAPURAM-695 001.
R1 BY SRI.M.AJAY,SC,KERALA MEDICAL SERV.CORPN
R2 BY GOVERNMENT PLEADER SRI.S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 07-07-2017,ALONG WITH WP(C).NO.21351 OF 2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 30415 of 2016 (B)
----------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
----------------------------------------
EXHIBIT P1 RELEVANT EXTRACT OF THE TENDER NOTIFICATION FOR THE YEAR
2014-15.
EXHIBIT P1(A) TRUE COPY OF THE LETTER FOR INTENT ISSUED BY THE 1ST
RESPONDENT DATED 24-9-14.
EXHIBIT P2 TRUE COPY OF COMMUNICATION ISSUED BY THE DRUGS INSPECTOR
ZONE II ERNAKULAM DATED 20-01-2016.
EXHIBIT P2(A) TRUE COPY OF THE CERTIFICATE OF TEST OF THE GOVERNMENT
ANALYST DTD 3-12-15.
EXHIBIT P2(B) TRUE COPY OF THE LABORATORY PROTOCOL REPORT DATED
1-12-2015.
EXHIBIT P3 TRUE COPY OF THE LABEL OF GLIMEPIRIDE TABLETS I.P. 2MG.
EXHIBIT P4 RELEVANT EXTRACT OF THE INDIAN PHARMACOPOEIA DEALING WITH
GLIMEPIRIDE TABLETS.
EXHIBIT P5 TRUE COPY OF THE LETTER SUBMITTED BEFORE THE DRUGS
INSPECTOR ZONE-II, EKM DATED 16-02-2016.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE DRUGS
INSPECTOR ZONE III, THRISSUR DATED 01-04-2016.
EXHIBIT P6(A) TRUE COPY OF THE CERTIFICATE OF TEST OF THE GOVERNMENT
ANALYST DTD. 5-3-16.
EXHIBIT P6(B) TRUE COPY OF THE LABORATORY PROTOCOL REPORT
DATED 5-3-2016.
EXHIBIT P7 TRUE COPY OF THE LETTER SUBMITTED BEFORE THE DRUGS
INSPECTOR ZONE-III, THRISSUR DATED 2-5-2016.
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION OF THE 1ST RESPONDENT
DATED 2-6-16.
EXHIBIT P9 TRUE COPY OF THE LETTER SUBMITTED BEFORE THE 1ST
RESPONDENT DATED 18-6-16.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION OF THE 1ST RESPONDENT
DATED 18-7-16.
EXHIBIT P11 TRUE COPY OF THE LETTER SUBMITTED BEFORE THE 1ST
RESPONDENT DATED 22-07-2016.
2/-
-2-
WP(C).No. 30415 of 2016 (B)
EXHIBIT P12 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT
DATED 27-7-2016.
EXHIBIT P13 TRUE COPY OF THE LETTER SUBMITTED BEFORE THE 1ST
RESPONDENT DATED 17-8-16.
EXHIBIT P13(A) TRUE COPY OF THE LETTER SUBMITTED BEFORE THE 1ST
RESPONDENT DATED 07-09-16.
RESPONDENT(S)' EXHIBITS: NIL
-------------------------------------------
/TRUE COPY/
P.S.TO JUDGE
sts
P.B.SURESH KUMAR, J.
-----------------------------------------------
W.P.(C) Nos.30415 of 2016 & 21351 of 2017
-----------------------------------------------
Dated 7th July, 2017.
J U D G M E N T
As the issue arising for consideration in both the writ petitions is common, they are disposed of by this common judgment. The petitioner in these writ petitions is one and the same. Parties and exhibits are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.21351 of 2017.
2. The petitioner is a company engaged in manufacturing drugs and pharmaceuticals. The first respondent is the body constituted by the Government for procurement and distribution of medicines to Government hospitals. The first respondent used to procure medicines from manufacturers by inviting tenders. The petitioner has been supplying some of the medicines manufactured by them to the first respondent. Glimepiride Tablet IP 2 mg. is one of the medicines supplied by WPC Nos.30415/16 & 21351/17 2 the petitioner to the first respondent. A sample of the said drug was found to be not conforming to the standards prescribed under the Drugs and Cosmetics Act (the Act). The office of the Drugs Controller, in the circumstances, issued notice to the petitioner directing them to take back the balance stock of the drug from their supply ends. Ext.P5 is the communication issued by the Drugs Inspector concerned in this connection. The petitioner disputed the allegation levelled against the drug by the Drugs Controller. While so, the first respondent issued Ext.P11 notice to the petitioner directing them to show cause why Glimepiride Tab IP 2 mg. manufactured and supplied by them shall not be blacklisted as provided for in clause 6.28.8 of the tender document. Ext.P11 was challenged by the petitioner in W.P.(C) No.30415 of 2016. Ext.P12 is the interim order passed in the said case. As per Ext.P12, it was directed that the first respondent shall not take any decision on Ext.P11 without affording the petitioner an opportunity of hearing. It is seen that pursuant to Ext.P12 interim order, a hearing was conducted by the General Manager of the first respondent WPC Nos.30415/16 & 21351/17 3 Corporation. Ext.P13 is the communication issued to the petitioner thereafter stating that the explanation offered by the petitioner to Ext.P11 show cause notice is not acceptable. Ext.P13 is under challenge in this writ petition.
3. Heard the learned Senior Counsel for the petitioner as also the learned Standing Counsel for the first respondent.
4. As noted above, Ext.P11 notice, which is under challenge in W.P.(C) No.30415 of 2016 is only a show cause notice. The said writ petition was entertained and Ext.P12 interim order was passed as the petitioner apprehended that their product will be blacklisted without affording them an opportunity of hearing. It is seen that a final decision has not been taken by the first respondent on the issue of blacklisting the drug referred to in Ext.P11 notice. At the time of hearing, the learned Standing Counsel for the first respondent submitted that a decision on the said aspect will be taken by the Managing Director, having regard to the facts and circumstances of the case.
WPC Nos.30415/16 & 21351/17 4
In the facts and circumstances, I deem it appropriate to dispose of the writ petitions directing the Managing Director of the first respondent Corporation to take a final decision on Ext.P11 show cause notice after affording the petitioner an effective opportunity of hearing and after considering Ext.P10 explanation offered by them, untrammelled by the findings rendered by the General Manager of the first respondent in Ext.P13 order. This shall be done within one month from the date of receipt of a copy of the judgment. Ordered accordingly. Needless to say that until a decision as directed above is taken by the Managing Director of the first respondent Corporation, further proceedings pursuant to Ext.P11 shall be deferred.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs (true copy)