REGIONAL CANCER CENTRE Vs. M GOPALAN

JUDGEMENT

(1.) The appellants in this appeal are the Regional Cancer Centre, a Research Institute owned by the Government of Kerala and its Director. The question posed in this Writ Appeal is as to the scope of Section 36(2) of the Protection of Human Rights Act. 1993. The facts necessary for the disposal of this Writ Appeal are hereunder.

(2.) The original 1st respondent in the Writ Appeal was a cancer patient who complained of violation of human rights. He died during the pendency of this appeal and his son has been impleaded as the additional 10th respondent being a legal heir. The 1st respondent approached the appellants for expert treatment of cancer. He was registered as a patient on, 13-11-1999 and admitted in the cancer centre on 5-1-2000. Before the Human Rights Commission, he alleged that he was recruited for study called NDGA study without his consent or knowledge and that on 13-1-2000, 14-1-2000 and 15-1-2000, certain injections were administered on him and, thereafter, surgical removal of the cancer affected part was done on 18-1-2000. He was discharged on 20-1-2000. He was under regular follow up treatment and on 14-10-2000, the 1st respondent experienced foreign body sensation in the throat and a new tumour developed in the throat which, according to the 1st respondent, was the result of the injection of harmful chemicals. Alleging that the 1st respondent was denied timely and effective treatment and was subjected to experimental studies for making illegal and unethical monetary gains, on 1-8-2001, the 1st respondent filed a complaint before the State Commission for Human Rights, Trivandrum as HRMP.No. 2188/2001. On receipt of notice, the appellants herein entered appearance and filed a statement of objection refuting the allegations of the 1st respondent. Later, they raised a preliminary objection regarding the maintainability of the petition itself on three grounds, namely, (a) the petition is barred under Section 36(1) of the Protection of Human Rights Act in so far as an expert, namely, Dr. Pareek, was appointed by the Government to enquire into the allegations against the appellants. (b) that the petition is barred under Section 36(2) of the Protection of Human Rights Act in so far as the petition was filed beyond the period of one year prescribed under the said sub-section and (c) in so far as an original petition is pending before the High Court of Kerala as O.P.No. 21618/2001, the matter is sub judice and, therefore, an enquiry into the same by the State Human Rights Commission is barred. A member of the Human Rights Commission heard the preliminary objections and passed Ext.P4 order holding that the three preliminary objections are not sustainable and the petition is maintainable. Challenging the said order, the appellants filed O.P.No. 10174/2002 before this Court in which although all the three contentions were taken, only the contention regarding limitation under Section 36(2) was seen pressed into service. The learned single Judge, on a reasoning that since the 1st respondent could have experienced the adverse effect of administration of medicine only on 14-1-2000 when a new tumour was noticed, the starting point of computation of the period of one year mentioned in Section 36(2) is that date and in that view, upheld the order of the Commission with the rider that whether the formation of the new tumour is because of the administration of the drugs or because of the delayed surgery is a matter to be proved by the 1st respondent while prosecuting Ext.Pl claim. It is the said judgment, which is under challenge in this Writ Appeal at the instance of the petitioners in the Original Petition.

(3.) In this Writ Appeal also, although in the appeal memorandum, the appellants have reiterated the three objections, they have pressed into service only the contention on the basis of limitation under Section 36(2). Therefore, the question to be decided in this appeal is as to whether the Commission was right in entertaining the petition, rejecting the objection of the appellants, on the basis of Section 36(2) of the Act and whether the Single Judge was right in upholding the order of the Commission.