Prem Prakash And National Accreditation Board for Testing and Calibration Laboratories (NABL) & Others

Case No. 12 of 2023 1 COMPETITION COMMISSION OF INDIA Case No. 12 of 2023 In Re: Prem Prakash Proprietor, Venus Testing and Research Laboratory, Plot No. 45, Industrial Area, Khurai Road, Bina, Distt. Sagar, Madhya Pradesh - 470113 Informant And National Accreditation Board for Testing and Calibration Laboratories (NABL), (constituent board of QCI), through its CEO, Plot No. 45, Sector- 44, Gurgaon - 122002 Opposite Party No. 1 The Secretary, Department of Science and Technology, Technology Bhawan, New Mehrauli Road, New Delhi -110067 Opposite Party No. 2 Anurag Jain, Secretary, Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Room No. 157, Udyog Bhavan, New Delhi -110011 Opposite Party No. 3 N. Ramesh, Then Director, Ministry of Commerce and Industry, Udyog Bhavan, New Delhi – 110011 Opposite Party No. 4 Yogesh Gupta, Then Under Secretary, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) (Consumer Industry Section), Udyog Bhavan, New Delhi – 110011 Opposite Party No. 5 CORAM: Ms. Ravneet Kaur Chairperson Ms. Sangeeta Verma Member Mr. Bhagwant Singh Bishnoi Member Case No. 12 of 2023 2 Order under Section 26(2) of the Competition Act, 2002 1. The present information has been filed by Mr. Prem Prakash (‘Informant’) under Section 19(1)(a) of the Competition Act, 2002 (‘Act’), alleging contravention of the provisions of Section 3 and Section 4 of the Act, against National Accreditation Board for Testing and Calibration Laboratories (NABL), (constituent board of QCI), through its CEO (hereinafter, referred to as ‘NABL’/‘OP-1’); the Secretary, Department of Science and Technology (hereinafter, referred to as ‘OP-2’); Mr. Anurag Jain, Secretary, Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry (hereinafter, referred to as ‘OP-3’); Mr. N. Ramesh, then Director, Ministry of Commerce and Industry (hereinafter, referred to as ‘OP-4’); Mr. Yogesh Gupta, then Under Secretary, Ministry of Commerce and Industry, (Department of Industrial Policy and Promotion), (Consumer Industry Section) (hereinafter, referred to as ‘OP-5’) (OP-1 to OP-5 are collectively referred to as ‘OPs’). Facts, as stated in the Information 2. The Informant is the proprietor of Venus Testing and Research Laboratory located at Industrial Area, Khurai Road, Bina, Madhya Pradesh and is providing engineering material testing laboratory services. 3. The Informant has submitted that International Organization for Standardisation (ISO) is a private foreign standard writing institute which has written many Standards, which are voluntary in India. ISO has published ISO 17025:2017 (General Requirement for the Competence of Testing and Calibration Laboratories), which is followed by most of the engineering material testing laboratories. 4. The Informant has further submitted that getting accreditation as per ISO 17025:2017 from an accreditation body is just a third-party inspection of the document as per the standard, but maintaining the quality, accuracy and faith of the customer is the sole responsibility of the laboratory and not that of the accreditation body from which a lab avails accreditation service. Case No. 12 of 2023 3 5. The Informant has relied upon the order of the Commission in Case No. 25 of 2020 [Prem Prakash vs. Chairman, Quality Council of India] wherein NABL has been held to be an ‘enterprise’ having a dominant position despite there being eight other accreditation bodies providing accreditation services in the relevant market in India. 6. The Informant has further submitted that NABL has become dominant primarily because of the preference accorded to it over the years by the departments of the government which specifically require in their tender documents that the material or service providers should have their material tested from a laboratory accredited by NABL. Further, NABL is alleged to have violated different provisions of the Act at different occasions, as elucidated in the ensuing paragraphs. 7. It has been alleged by the Informant that NABL has imposed many unfair conditions, which are not in accordance with ISO 17025:2017, on the laboratories which avail accreditation certification service as per the said ISO standard from NABL. The Informant has listed certain conditions, which are part of the NABL policy documents or have stemmed from the communication between NABL and laboratories inter-se, as follows: (a) NABL compels laboratories which avail its accreditation services to use NABL symbol/logo. NABL has published a document NABL 133, titled as ‘Policy for use of NABL Symbol/or Claim of Accreditation Conformity Assessment Body (CAB) and NABL accredited CAB Combined ILAC MRA Mark’. It is submitted that according to ISO 17025:2017, there is no such requirement of using the symbol of accreditation body. It is further submitted that Clause 6.2 of the NABL 133 mandates CAB not to use the symbols of other accreditation body if the report contains parameters accredited by NABL. Further, Clause 6.7 of NABL 133, provides that use of any other accreditation body’s symbol or mark is not permitted to be used along with NABL symbol. According to the Informant, these requirements create entry barriers for other accreditation bodies. (b) The Informant asserts that NABL policies regarding calibration of equipment are Case No. 12 of 2023 4 also unfair as it requires that the complete measuring instrument be calibrated at a calibration facility authorized by NABL if a laboratory desires a certificate of accreditation from NABL. However, it is argued that Clause 6.5 of ISO 17025:2017 only requires metrological traceability, which calls for all measuring equipment to be confirmed through a chain of suitable references. The Informant describes a chain of reference as follows: long chain traceability occurs if A calibrates its measuring tape at the NPL (National Reference), which calibrates the measuring tape of B, and then B calibrates the measuring tape of C, and so on. However, because of the NABL’s alleged unfair policies, laboratories are compelled to contact NABL recognised calibration laboratories, which helps NABL grow its clientele at the expense of consumers. The Informant has annexed a document titled ‘Non-Conformities Observed during Pre-Assessment’ dated 11.04.2015 wherein universal testing machines and impact testing machines in Informant’s laboratory were stated to be calibrated by non-NABL accredited calibration agency. (c) The Informant further asserts that NABL has issued a document NABL 100B titled ‘Accreditation Process and Procedure’ and that, in accordance with Clause 6.5 of the said document, NABL conducts unannounced assessments in order to harass the laboratory’s staff, despite ISO 17025:2017 not providing any such assessments. (d) Further, Clause 7.8.5, titled as ‘Reporting sampling’, of ISO 17025:2017 includes all the details for reporting the results of a sample including unique report number, but NABL through its letter dated 13.12.2021, compelled all laboratories to mention an additional unique laboratory report number, which caused an extra burden on the laboratory. (e) As per Clause 7.7 of ISO 17025:2017 titled as ‘Ensuring the validity of results’, the laboratory has to participate either in proficiency testing or participate in interlaboratory comparisons other than proficiency testing. However, NABL compels laboratories to purchase the service of proficiency testing provider, because it provides accreditation to proficiency testing provider as per ISO 17043 Case No. 12 of 2023 5 and charge money for such accreditation. Though, it is not mandatory to participate in the proficiency test, one has to participate in proficiency testing if one wants to get accreditation certificate from NABL. The Informant has further submitted that the application of the Informant’s laboratory for accreditation was not accepted by NABL because it had not participated in proficiency testing program. An email dated 22.08.2019 has been annexed in support of this allegation.