- (1.) Civil Appeal No. 3925/1990. The appellant-M/s. Hindustan Antibiotics Ltd. , a Government of India Undertaking, is in appeal against the impugned judgment of the Madhya Pradesh High Court ano the principal grievance being a direction to the State Government to launch prosecution- against the officers of the appellant-company for supplying substandard I. V. Fluids. There exists no manner of doubt that I. V. Fluids being a life saving drug need to contain the specification and any foreign element found therein ought to be taken note of rather seriously and as such at the first blush this Court was of the view that no interference ought to be had, though Mr. Ganguli contended that the High Court has, in fact, transgressed its limits in the matter of exercise of jurisdiction and it is on this score further that the Court was invited to go into the matter in some greater detail.
(2.) Mr. Ganguli contended that as a matter of fact and admittedly the core question that fell for consideration before the High Court was whether Government possesses absolute. discretion to confer any benefit on any one or should that be regulated by some norms. Mr. Ganguli contended that question of sub-standard goods did not fall for consideration before the High Court neither the High Court was otherwise within its jurisdiction to express any opinion in regard thereto. The opinion so expressed cannot, thus, Mr. Ganguli contended, but be termed to be obiter. Mr. Ganguli further contended that in any event the direction as contained in the judgment under appeal, cannot be termed to be otherwise in accordance with the norms and principles of law and there is existing a definite violation of the principles of natural justice since no notice was issued neither any explanation was asked for and without any even submission beino made in regard thereto, an order has been passed by High Court condemning the supplies of the government undertaking.
(3.) From a perusal of the judgment we find some credence to Mr. Ganguli's submission since the judgment itself records the admitted set of facts to the effect that M/s. Parenteral Drugs (India) P. Ltd. being the writ petitioner is regular manufacturer of drugs and the respondent Nos. 1 to 3 purchased drugs, medicines and other items alike materials including intravenous fluids for consumption in various hospitals in the State. The State Government, however, in order to afford protection to small scale industries in the State issued a Circular dated 9.11.1976 granting 10% price preference to small scale industries in the State. The policy of the Government as depicted therein in the matter of purchase of drugs has been that the same ought to be purchased from the government undertakings and that being the issue and core question before the Court, it was in this sphere the arbitrariness had been recorded. After the hearing was concluded the Bench however, thought it fit to require the production of the files as regards the award of contract to Hindustan Antibiotics and it was on the perusal of the files that two letters were discovered in the files wherefrom it appeared that there was a supply of I. V. Fluids by Hindustan Antibiotics - appellant herein containing fungus and it was on the basis thereof the High Court felt that the officials of the government undertaking ought to be punished and prosecution ought to be launched. Severe criticism has been levelled against the government officials for swearing affidavits which are not true to its contents and prosecutions have been directed on that score as well.;