A dismissed ambulance attender challenged his penalty order by writ petition without assailing the appellate authority's order rejecting his appeal. The court held the petition not maintainable: the appellate order had attained finality and the penalty order merged into it, so the original order could not be attacked directly. Petition dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2024
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.50945 OF 2016 (S-DIS)
BETWEEN:
KALADURGAIAH S/O LATE THAMMAIANNA, AGED ABOUT 55 YEARS, AMBULANCE ATTENDER, OFFICE OF THE DIRECTOR, SANJAY GANDHI ACCIDENT HOSPITAL AND RESEARCH INSTITUTE, BYRASANDRA, BANGALORE-560 011.
AND ALSO NO.60, 1ST "A" CROSS ROAD, 6TH MAIN ROAD, GOWRAVA NAGAR, 7TH STAGE, J. P. NAGAR, BANGALORE-560 092.
...PETITIONER
(BY SMT. K.M.ROHINI, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO HEALTH AND FAMILY WELFARE DEPARTMENT, VIKASA SOUDHA, BANGALORE-560 001.
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2 . THE DIRECTOR SANJAY GANDHI TRAUMA AND ORTHOPEDIC CLINIC ORGANIZATION, BYRASANDRA, JAYANAGAR EAST, BANGALORE-560 001, BENGALURU CITY.
…RESPONDENTS
(BY SRI V.SHIVA REDDY, AGA FOR R1; SRI D.R.P. BABU, ADVOCATE FOR R2)
THIS W.P IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DTD 23.8.2016 AA.KU.KA.136 HPC 2016 ON THE FILE OF THE R-1 i.e., ANNEXURE-H TO THE W.P AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.03.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned petition is filed assailing the penalty
order thereby dismissing the petitioner from service as per Annexure-G and the consequent endorsement issued by the respondent No.1 declining to entertain the petitioner’s appeal on the ground that there is no provision to consider the appeal of Group ‘C’ and ‘D’ employees and that appeal
has to be presented before the Appeal Committee.
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2. The facts leading to the case are as under:
A show cause notice was issued on 12.03.2013 calling upon petitioner to show cause as to why action should not be taken for deliberately pasting newspaper within the premises of the respondent No.2 – Institution. Petitioner was also issued with show cause notice alleging that petitioner has entered the operation theatre wearing shoes. Petitioner was kept under suspension and having examined the explanation offered by the petitioner appointed an Enquiry Officer to look into the charges. The Enquiry Officer has submitted report as per Annexures-D and D1. Based on the report, the respondent No.2 issued a second show cause notice on 31.03.2016 and on receipt of explanation, respondent No.2 has passed penalty order thereby dismissing petitioner from service vide order dated 10.05.2016.
grounds would point out that petitioner was an Attender in
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Ambulance and belongs to Group ‘D’ and therefore, it is contended that there is no provision to dismiss a Group ‘D’ employee. She would point out that petitioner being a Group ‘D’ employee, only fine can be imposed.
respondents placing reliance on C & R Rules, would point out that the Ambulance Attender is in the cadre of Group ‘C’ and therefore, this ground is not available to the petitioner.
The second ground on which the respondents are seeking dismissal of the writ petition is that petitioner feeling aggrieved by the penalty order preferred an appeal before the Appeal Committee/Chairman/Secretary to Health and Family Welfare Department. Learned counsel for the respondents would point out that the Appeal Committee has rejected the appeal vide order dated 06.10.2016 and the copy of the proceedings of the committee as per AnnexureR2 is produced. Placing reliance on this order, counsel for respondents would contend that the petitioner having failed
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to question the order passed by the Appeal Committee
cannot maintain the writ petition.
AGA. Perused the records.
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the writ petition is maintainable in the light of the petitioner's failure to challenge the order of the Appellate Authority. It is settled law that the scope of judicial review through writ petitions is limited and subject to certain conditions. One such condition is the exhaustion of alternative remedies. In the case at hand, the petitioner availed appellate remedy provided by the relevant regulations, wherein the Appellate Authority duly considered the petitioner's contentions and dismissed the appeal.
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with cases that could have been resolved through other means.
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Group ’C’ employee, challenged the dismissal order before the Appellate Authority, the doctrine of merger assumes paramount importance. The dismissal order, being the original order, loses its independent significance upon the filing of the appeal. The appellate order, which was rendered subsequent to the appeal process, effectively supersedes the original dismissal order.
avoid conflicting decisions and ensure finality and certainty in legal proceedings. By merging the original order with the appellate order, the law seeks to prevent parties from challenging the same decision at multiple levels of adjudication. This not only streamlines the legal process but also promotes judicial economy and efficiency.
the importance of exhausting all available remedies within
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the administrative framework before seeking recourse through writ jurisdiction. Once an appeal is preferred and decided upon by the Appellate Authority, parties are expected to abide by the decision rendered therein. Failure to challenge the appellate order renders it final and binding, precluding any subsequent challenge to the original order through alternative means.
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dismissed as not maintainable. If the order passed by the Appellate Authority has attained finality, the petitioner without assailing the order passed by the Appellate Authority cannot maintain the captioned petition. The order of penalty has stood merged with the order passed by the Appellate Authority. Therefore, the writ petition is not maintainable on this ground also and the same cannot be entertained.
proceeds to pass the following:
ORDER
Writ petition is devoid of merits and accordingly,
stands dismissed.
Sd/- JUDGE
CA
2 issues framed by the court
Whether the writ petition is maintainable where the petitioner did not challenge the appellate order confirming the dismissal, in light of the doctrine of merger.
Whether the petitioner, as a Group 'D' employee, could be dismissed when only fine was allegedly permissible.
1 provisions across 1 enactments
Kaladurgaiah S/o Late Thammaianna
The State of Karnataka represented by its Secretary to Health and Family Welfare Department
The Director Sanjay Gandhi Trauma and Orthopedic Clinic Organization
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
