Dr. B.Usha Vs Government of Karnataka

DR. B.USHA WIFE OF DR P C JAGDEESH AGED 40 YEARS WORKING AS MEDICAL OFFICER GOVERNMENT HOSPITAL JUMMA MASJID ROAD MOHAMAD SAB PALYA VIDYARANYAPURA BENGALURU-560097.

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…PETITIONER

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Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA

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(BY SRI. SWAMY N B N., AND SMT. N.B. LAKSHMI, ADVOCATES)

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AND:

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GOVERNMENT OF KARNATAKA

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BY ITS CHIEF SECRETARY VIDHANA SOUDHA DR AMBEDKAR VEEDHI BENGALURU-560001.

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THE PRINCIPAL SECRETARY GOVERNMENT OF KARNATAKA DEPARTMENT OF MEDICAL EDUCATION 6^TH FLOOR, M S BUILDING

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4^TH STAGE,

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HC-KAR

DR AMBEDKAR VEEDHI

BENGALURU-560027.

THE PRINCIPAL DIRECTOR KARNATAKA STATE AUDIT AND ACCOUNTS DEPARTMENT TTMC BUILDING A BLOCK, 3^RD FLOOR BMTC, SHANTINAGARA BENGALURU-560027.

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THE REGISTRAR (ADMINISTRATION) RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES 4^TH T BLOCK JAYANAGAR BENGALURU-560041.

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PRINCIPAL ACCOUNTANT GENERAL (A AND E) IN KARNATAKA OFFICE OF THE ACCOUNTANT GENERAL (ACCOUNTS AND ENTITLEMENTS) MAIN BUILDING PARK HOUSE ROAD BANGALORE-560001.

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MRS ZOHRA JABEEN FINANCE OFFICER RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES 4^TH T BLOCK JAYANAGAR BENGALURU-560041.

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…RESPONDENTS

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(BY SRI. B.J. ESHWARAPPA, AGA FOR R1 TO R3, & R5 SRI. RAJESH, ADVOCATE FOR R4 SRI. SHANTHARAJU, ADVOCATE FOR R6)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-E TO THE IMPUGNED DEMAND NOTICE DTD. 28.4.2020 ISSUED BY THE R-4 AND DIRECT THE R-4 TO

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PAY HER THE TOTAL SUM OF RS.21,01,985/- (RUPEES TWENTY ONE LAKHS ONE THOUSAND NINE HUNDRED AND EIGHTY FIVE) i.e BEING THE AMOUNT OF RS.13,74,200/- (RUPEES THIRTEEN LAKHS SEVENTY FOUR THOUSAND AND TWO HUNDRED) TOWARDS SPECIAL ALLOWANCE SHORT PAID INTEREST OVER THE SAME AMOUNTING TO RS.2,27,785/(RUPEES TWO LAKHS TWENTY SEVEN THOUSAND SEVEN HUNDRED AND EIGHTY GIVE) AND ALSO A FURTHER SUM OF RS.5,00,000/- (RUPEES GIVE LAKHS) TOWARDS DAMAGES AS INTEREST OVER SHORT PAID SPECIAL ALLOWANCE AND LOSS OF INTEREST OVER THE DEDUCTED AND INORDINATELY DEPOSITED PENSION AMOUNTS AS WELL AS INTEREST OVER THE DEDUCTED AMOUNT AND NOT YET DEPOSITED AS ON DATE FROM THE DATE OF DEDUCTION TILL THE DATE OF DEPOSIT TOWARDS PENSION SCHEME AMOUNTS AS WELL AS THE EMPLOYEES CONTRIBUTION FOR THE PERIOD APRIL 209 TO 7TH JANUARY 2020. CONSEQUENTLY DIRECT OR ORDERING THE R-3 TO INITIATE DISCIPLINARY PROCEEDINGS AGAINST THE R-6 FINANCE OFFICER MRS./ZOHRA JABEEN WHO IS DEPUTED TO THE R-4 RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES BENGLAURU AS WELL AS THE AUDITOR WHO RAISED OBJECTION IN VIOLATION OF ANENXURE-A, B, C.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioner filed this writ petition seeking for the following prayers:

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a) issue a Writ of Certiorari or any appropriate Writ, direction or Order quashing Annexure E' the impugned demand No.RGU/EST/73/2014-15 dated

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HC-KAR

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28.04.2020 issued by notice the fourth Respondent University, The Registrar (Administration), Rajiv Gandhi University of Health Sciences, Bengaluru;

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b) Consequentially to issue a Writ of Mandamus or any appropriate Writ, direction or Order, directing the fourth Respondent University, The Registrar (Administration), Rajiv Gandhi University of Health Sciences, Bengaluru to pay her the total sum of Rs. 21,01,985/-(Rupees Twenty one Lakhs one thousand nine hundred and eighty five) i.e being the amount of Rs. 13,74,200/- (Rupees Thirteen Lakhs Seventy four thousand and two hundred) towards Special Allowance short paid; interest over the same amounting to Rs. 2,27,785/- (Rupees Two Lakhs Twenty Seven thousand seven hundred and eighty five) and also a further sum of Rs.5,00,000/(Rupees Five Lakhs) towards damages as interest over short paid Special Allowance and loss of interest over the deducted and inordinately deposited pension amounts as well as interest over the deducted amounts and not yet deposited as on date from the date of deduction till the date of deposit towards pension scheme amounts as well as the employer's contribution for the period April 2019 to 7th January 2020;

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c) Also Consequentially to issue a Writ of Mandamus or any other appropriate Writ, direction or Order, ordering the third Respondent -The Principal Director, Karnataka State Audit & Accounts Department, Bengaluru to initiate disciplinary proceedings against the sixth Respondent, Finance officer Mrs. Zohra Jabeen, who is deputed to th fourth Respondent Rajiv Gandhi University of Health Science Bengaluru; as well as the auditor who raised objection in violation Annexures A, B and C.

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HC-KAR

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Brief facts leading rise to the filing of this petition are as follows:

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The petitioner was deputed to the fourth respondent university i.e., the Rajiv Gandhi University of Health Sciences, Bengaluru, as an Assistant Registrar (Planning) on 29.01.2015 and she worked in the said post from 29.01.2015 to 07.01.2020.

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The Principal Accountant General (A & E), Karnataka, Bangalore, i.e., fifth respondent authorised the Drawing and Disbursing officer of the fourth respondent university to draw and disburse the special allowances of the petitioner as she is entitled for the post of Graduate Diploma Qualification she possesses, a sum of ₹17,600/- per month from 29.01.2015 to 05.07.2015; ₹42,600/- per month from 06.07.2015 to 08.03.2018 and on completion of 6 years of service from 09.03.2018 to 07.01.2020 at ₹ 43,700/- per month.

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HC-KAR

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Government order dated 30.05.2017 of the Health

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and Family Welfare Department, stipulates that doctors also working in administrative posts, are entitled to special allowance. The fourth respondent university paid ₹17,600/- per month as a special allowance during her entire service of 5 years in the fourth respondent university and thereby she was short paid special allowance of ₹13,74,200/-.

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The fourth respondent university issued a notice dated 28.04.2020 vide Annexure-E stating that the auditor in the audit report had raised an objection to

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the payment of total special allowance of ₹6,70,503/- paid to the petitioner during the deputation towards special allowances when, she was not entitled for the same as per the Rules as she has not rendered service in the emergency department, but rendered the service to the University in the Administrative capacity and called to refund the amount of ₹6,70,503/-.

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HC-KAR

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The petitioner replied to the said notice vide Annexure-F dated 13.05.2020. The fourth respondent has not passed any order on the reply submitted by the petitioner. Thus, the petitioner aggrieved by the demand notice dated 28.04.2020 vide Annexure-E, filed this writ petition.

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Respondent No.6 filed a statement of objections denying the averments made in the memorandum of writ petition and contended that the petitioner is not entitled for the special allowances as per the Government Order. The said Government Order is applicable only to the doctors, who have rendered their service in the emergency department and the said Government Order does not apply to the persons who have worked in the administrative capacity. It is contended that the petitioner had worked in the administrative capacity. Hence, the petitioner is not entitled for special allowances.

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HC-KAR

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The auditor has raised the objections in the audit report stating that the petitioner is not entitled for the special allowances. Pursuant to the objection raised in the audit report, the fourth respondent issued the demand notice vide Annexure-E. The action of the fourth respondent, in initiating recovery proceedings, is in accordance with law. Hence, prays to dismiss the writ petition.

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Heard the learned counsel for the petitioner and the learned counsel for the respondents.

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Learned counsel for the petitioner submits that the fourth respondent has issued a notice calling upon the petitioner to refund the amount of ₹6,70,503/-. He submits that without holding an enquiry or without determining whether the government order is applicable to the employees who worked in the administrative capacity, the 4^th respondent has issued an impugned demand notice dated 28.04.2020. He also submitted that the petitioner

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has replied to the said notice vide Annexure- F on 13.05.2020. The respondents without considering the reply submitted by the petitioner, insisting the petitioner to refund the said amount. The action of the fourth respondent, insisting the petitioner to refund the amount, is arbitrary and erroneous. Hence, on these grounds, he prays to allow the writ petition.

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Per contra , learned counsel for the respondents submits that, if reasonable time is granted, the fourth respondent would consider the reply submitted by the petitioner and pass the appropriate order in accordance with law.

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Perused the records and considered the submissions of the learned counsel for the parties.

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It is an undisputed fact that the petitioner was deputed to the fourth respondent university as an Assistant Registrar (Planning) on 29.01.2015 and she

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HC-KAR

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worked from 29.01.2015 to 07.01.2020. The

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Principal Accountant General (A & E) has raised objections regarding the audit report, stating that the special allowances paid to the petitioner, as the petitioner is not entitled for special allowances as per the Government Order dated 30.05.2017. The said Government Order is applicable to the doctors. The Government Order stipulates that the doctors also working in the administrative post are not entitled to the special allowances. The respondent university paid special allowances to the petitioner. The respondent issued a notice on 28.04.2020 calling upon the petitioner to refund the said amount. The petitioner replied to the said notice vide reply dated 13.05.2020.

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Admittedly, the fourth respondent did not conduct any enquiry to determine whether the petitioner is entitled for the special allowances as per the Government Order dated 30.05.2017, and without

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holding any enquiry and without providing any opportunity to the petitioner to put forth her case, the respondents are insisting the petitioner to refund the said amount. However, the fourth respondent has not passed any order directing the petitioner to refund the said amount. The petitioner has challenged the demand notice.

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The Hon'ble Apex Court in the case of Commissioner of Central Excise, Haldia vs. Mrs. Krishna Wax Private Limited reported in (2020) 12 SCC 572 , and referring to the judgment of the Hon’ble Apex Court in the case of Malladi Drugs and Pharma Ltd Vs. Union of India reported in (2020) 12 SCC 808, it was observed that “the High Court has, by the impugned judgment held that appellant should first raise all the objections before the Authority who have issued the show cause notice and in case any adverse order is passed against the appellant, then liberty has been granted to approach

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the High Court. Further, also observed .... In our

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view the High Court was absolutely right in dismissing the writ petition against a mere show cause notice.” Admittedly, the petitioner has challenged the demand notice and the respondent has not passed any order on the said notice. The petitioner without waiting for the final order approached this Court.

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Learned counsel for the fourth respondent submits that if reasonable time is granted, the fourth respondent would consider the reply submitted by the petitioner vide Annexure-F and pass the appropriate order in accordance with law.

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In view of the above discussion, I proceed to pass the following order:

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ORDER

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i. The writ petition is disposed of directing the

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fourth respondent to consider the reply vide

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HC-KAR

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Annexure-F and provide an opportunity of

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personal hearing to the petitioner and thereafter pass the appropriate order in accordance with law within 8 weeks from the date of receipt of the copy of this order and communicate the same to the petitioner.

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ii. In view of disposal of the main petition, pending IAs, if any, do not survive for consideration and they are disposed of accordingly.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS CT:KHV

Dr. B.Usha v. Government of Karnataka

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Dr. B.Usha v. Government of Karnataka

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