Partly allowed

Dr Usha a R v. the State of Karnataka

Karnataka HC13 Mar 2024WP/8853/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dealt with a writ petition challenging the suspension order against a gynecologist. The Court found the suspension perverse as it ignored the petitioner's reply and lacked prima facie evidence. Citing the specific case, the Court quashed the suspension exceeding six months while permitting further departmental inquiry.

What did the court decide?

The suspension order dated 03.11.2022 is quashed. The Tribunal order is set aside. respondents are at liberty to conduct inquiry proceedings.

Dr Usha a R Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:10574-DB WP No. 8853 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2024

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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WRIT PETITION NO. 8853 OF 2023 (S-KSAT)

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BETWEEN:

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DR. USHA A.R, W/O DR. NAGARAJ.G., AGED ABOUT 45 YEARS, WAS WORKING AS OBSTETRICIAN AND GYNAECOLOGIST, DISTRICT HOSPITAL, TUMKUR - 572 101.

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…PETITIONER

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(BY SRI. SATISH K, ADVOCATE)

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AND:

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Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA, DEPARTMENT OF HEALTH AND FAMILY WELFARE, REPRESENTED BY ITS SECRETARY, VIKASA SOUDHA, BANGALORE - 560 001.

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THE COMMISSIONER, DEPARTMENT OF HEALTH AND FAMILY WELFARE, AROGYA SOUDHA, MAGADI ROAD, BANGALORE - 560 023.

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THE DISRTICT SURGEON, DISTRICT HOSPITAL, B. H. ROAD, TUMKUR - 572 101. …RESPONDENTS

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(BY SRI. VIKAS ROJIPURA, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) CALL FOR THE RECORDS FROM THE HONBLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BANGALORE IN RESPECT OF THE IMPUGNED ORDER DATED 21/12/2022 PASSED IN APPLICATION No. 5438/2022 (ANNEXURE-A) AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, RAJESH RAI K, J., MADE THE FOLLOWING:

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ORDER

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The petitioner, in this writ petition, challenged the legality and validity of the order passed in A.No.5438/2022 dated 21.12.2022 by the Karnataka State Administrative Tribunal at Bengaluru, (for short 'the Tribunal'), wherein the Tribunal has dismissed the application filed by the petitioner.

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The facts that are apposite for consideration as borne out from the pleadings are as follows:

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The petitioner is in the cadre of Senior Specialist and was posted to the third respondent hospital as Obstetrician and Gynaecologist vide order dated 18.10.2021. The petitioner has maintained unblemished service record, right from inception. Things stood thus, on 02.11.2022, she visited the hospital at 9:00 a.m. and attended out-patient till 4:30 p.m. Thereafter, she was in operation theatre from 06:00 p.m. to 9:30 p.m., she

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has conducted eight surgeries on that day. Later, at about 9:30 p.m., one Smt. Kasturi visited the hospital who was at the advanced stage of pregnancy. When the petitioner was in operation theatre, the said Kasturi had conversation with the staff nurse. The staff nurse was present at the relevant point of time formally asked, Aadhaar Card to admit her in the hospital. However, the said Kasturi, did not given her consent to take treatment in a hospital and went back to her residence. Due to misfortune, the said Kasturi died late night on 02.11.2022 along with her twin babies. As such, the Electronic Medias have published the news that the doctors and staffs of the hospital have refused the admission of the said Kasturi for want to Thaayi and Aadhaar Card. Based on the said information/media report, a show cause notice was issued to the petitioner on 03.11.2022. However, on the same day, the petitioner gave a reply by narrating the facts that she was in the operation theatre. Without considering the same, the second respondent placed the petitioner under suspension vide order dated 03.11.2022, on the ground that, the alleged incident was telecasted in private news channels and the act of the petitioner amounts to misconduct. The legality of the said

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suspension order has challenged by the petitioner before the Tribunal in A.No.5438/2022 and the Tribunal after assessment of oral arguments advanced by the learned counsel so also the documents placed before it, passed the impugned order by dismissing the application filed by the petitioner vide order dated 21.12.2022 as stated supra . Aggrieved by the same, the petitioner approached this Court by filing writ petition.

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We have heard the learned counsel Sri. Satish K for petitioner so also the learned AGA Sri. Vikas Rojipura for respondents.

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The learned counsel for the petitioner would vehemently contends that, the order passed by the Tribunal in A.No.5438/2022 is wholly illegal and without application of mind for the reason that, the Tribunal has failed to appreciate

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the fact that the alleged incident has taken place on 02.11.2022 at about 9:30 p.m., during that time, the petitioner was in the operation theatre. However, the staff nurse advised the said Kasturi to admit in the hospital for treatment, since she was in her advance stage of pregnancy. In spite of that, she refused to get admit and left the hospital. In such

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circumstance, the petitioner is no way connected for the said unfortunate incident. Viewed from any angle, the petitioner did not commit any misconduct as alleged by the respondent. The said aspect was very much brought into the notice to the respondents by the petitioner by way of her reply to the show cause notice issued by the respondent. However, without considering her reply, the second respondent suspended her from service only based on the media report. The such order of suspension does not have any legal sanctity since the same is contrary to Rule 10(3) of the Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957. Accordingly, he prays to allow the writ petition.

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Per contra , learned AGA by supporting the impugned order passed by the Tribunal would contend that, the Tribunal has rightly dismissed the application after considering the facts and circumstances of the case in a well reasoned order, which does not call for any interference. According to the learned AGA, the Hon’ble Apex Court, time and again held that the scope of interference by the Court with the order of suspension is very limited and it is the exclusive domain of the competent authority who can always review its order of

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suspension, being an inherent power conferred upon them by the provision of Article 21 of the General Clauses Act, 1897. The learned AGA would also contend that the petitioner being the Senior Gynaecologist is duty bound to take the responsibility of all the patients who have visited the hospital for treatment. Hence, the respondent rightly issued the show caused notice and suspended the petitioner. As such, the order of the Tribunal does not call for any interference.

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Having heard the learned counsel for the parties so also on perusal of the documents placed before us including the impugned order passed by the Tribunal, the only point that would arise for our consideration is:

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"Whether the impugned order passed by the Tribunal in A.No.5438/2022 is suffers from perversity and call for interference by this Court?"

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It could be seen from the records that, the petitioner being the Senior Gynaecologist in the hospital and on 02.11.2022, she was conducting surgery from 06:00 p.m. to 9:30 p.m. in the hospital. Thereafter, while she was visiting the labour room, she heard the conversation of the patient-

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Kasturi with the staff nurse with respect of her admission in the hospital and though the staff nurse insisted her to admit in the hospital, she refused to do so and left the hospital against the advice of staff nurse. The said aspect is forthcoming in the reply submitted by the petitioner dated 03.11.2022 for the show cause notice issued against her. Further, the proceedings of the Government dated 03.11.2022 also depicts the same. Additionally, the report submitted by the Divisional Assistant Director, Arogya Soudha, Bengaluru based on the statements of the Doctors so also after perusal of the CCTV footages obtained from the hospital clearly reveals that, there is no such misconduct on the part of the petitioner or other hospital employees. Per contra, patient herself refused to take treatment and left the hospital. In such circumstance, there is no prima facie material placed by the respondent Nos.1 and 2 against the petitioner to conclude her misconduct. On careful perusal, there is nil evidence/materials placed against this petitioner by the respondent-authority. In such circumstance, the suspension of the petitioner amounts to violative of the principles of natural justice.

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Moreover, the Hon’ble Apex Court in the case of

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Ajay Kumar Choudhary vs. Union of India Through its Secretary and Another reported in AIR 2015 SC 2389, held that, the suspension order should not extend beyond 3 months, if within this period if the memorandum of charges is served, a reasoned order must be passed for the extension of the suspension. In this case, we find that the petitioner was placed under suspension nearly six long months before passing the interim order by this Court dated 19.04.2023. In such circumstance, we are of the view that the suspension order shall not continue further and accordingly, the same is liable to be quashed. However, the enquiry proceedings initiated by the respondent-authority against the petitioner, if any, shall continue in accordance with law. It is needless to observe that the departmental enquiry against the petitioner shall proceed without influencing the observation made in this writ petition. Accordingly, we answer the point raised above in the affirmative and proceed to pass the following:

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ORDER

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i. Writ petition is a llowed-in-part ;

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