Dr Manju M S/O Muniyappa Vs the Principal Secretary

DR. MANJU M S/O MUNIYAPPA AGED ABOUT 37 YEARS MEDICAL OFFICER (NOW UNDER ORDERS OF DISMISSAL) PRIMARY HEALTH CENTRE, BELAKE, BHATKAL TALUK UTTAR KANNADA DISTIRCT RESIDING AT HOTEL ROAD K M DODDI POST-571422 C A KERE HOBLI, MADDUR TALUK MANDYA DISTRICT.

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Digitally signed by G SHREERAKSHA Location: HIGH COURT OF KARNATAKA

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(BY SRI. P M NAYAK, ADV.)

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…PETITIONER

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AND:

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THE PRINCIPAL SECRETARY GOVERNMENT OF KARNATAKA HEALTH AND FAMILY WELFARE DEPARTMENT, VIKASA SOUDHA BANGALORE-560001.

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THE COMMISSIONER HEALTH AND FAMILY WELFARE SERVICES DEPARTMENT GOVERNMENT OF KARNATAKA

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ANANDRAO CIRCLE BANGALORE-560009 NOW AT AROGYA SOWDHA LEPROSY HOSPITAL COMPOUND MAGADI ROAD, BANGALORE-560023.

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THE DISTRICT HEALTH AND FAMILY WELFARE OFFICER UTTARA KANNADA DISTRICT HEALTH AND FAMILY WELFARE SERVICES DEPARTMENT KARWAR-582101.

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…RESPONDENTS

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(BY SRI. HARISHA A.S., AGA FOR R1 TO R3)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) CALL FOR RECORDS FROM THE RESPONDENTS; B) ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT TO QUASH THE ORDER DATED 28/02/2022 PASSED IN A.NO.4461/2019 BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BENGALURU VIDE ANNEXURE-C TO THE WRIT PETITION AND ETC.

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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 S.G.PANDIT AND HON'BLE DR. JUSTICE K.MANMADHA RAO

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

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Unsuccessful applicant before the Karnataka State Administrative Tribunal at Bengaluru (for short “Tribunal”) is before this Court in this writ petition, aggrieved by the order dated 28.02.2022 in Application No.4461/2019 wherein petitioner’s prayer to quash the order of punishment dated 10.03.2017 (Annexure-A9) and also endorsement dated 29.04.2019 (Annexure-A12) rejecting petitioner’s representation seeking permission to join duty is dismissed.

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The brief facts of the case are that, the petitioner applied for the post of Medical Officer and under select list dated 17.06.2010 he was selected to the post of Medical Officer through Karnataka Public Service Commission. On his selection and appointment, he was given posting as Medical Officer at Primary Health Center, Belake, Bhatkal Taluk, Uttara Kannada District. He is said to have reported to duty on 01.10.2010. It is stated that

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in the year 2016, he wrote All India Level Examination to get admission to the Post Graduation Medical Course and he was qualified and became eligible for PG Medical seat. At counseling held on 28.04.2016, he got admission to Stanley Medical College, Chennai. It is stated that the petitioner joined the course on 06.05.2016 and duration of the PG course was two years. On his selection to the PG course, by letter dated 30.04.2016 which is produced before this Court along with memo dated 29.06.2026, he informed the District Health and Family Welfare Officer, Uttara Kannada and in the same letter, he had also sought permission to proceed to join PG Course.

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Learned AGA Sri.Harisha A S, on instruction

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submits that the said letter was forwarded by District Health and Family Welfare Officer, Uttara Kannada to the Commissioner, Health and Family Welfare Services, the second respondent herein and the same was received on 10.05.2016. Thereafter, treating the petitioner as

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unauthorized absentee, notices were issued to the petitioner and final notice dated 19.01.2017 was issued to the petitioner and 102 other Medical Officers, which was published in “Vijaya Karnataka” Kannada daily and “The Times of India” English daily newspapers. In the said notice, the doctors mentioned therein were given time till 31.01.2017 to report to duty at the office of the second respondent-Commissioner, Health and Family Welfare Services. The petitioner, under Annexure-A7/letter dated 30.01.2017 informed the second respondent that he has joined PG course at Stanley Medical College, Chennai and sought permission to continue his PG course, treating the said period of study as leave without pay. It is also stated that the said letter was also informed through e-mail to the second respondent.

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The first respondent on the proposal of the

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second respondent invoked Rule 14 of Karnataka Civil Services (Classification, Control and Appeals) Rules, 1957

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(for short “CCA Rules”) and by stating that it would not be possible to follow the procedure prescribed under CCA Rules and it would be difficult to communicate with the medical officers, dismissed the petitioner and other Medical Officers in terms of Rule 8(viii) of CCA Rules by order dated 10.03.2017. Thereafter, the petitioner on completion of his PG course sought permission to report to duty on 26.07.2018. However, he was informed that by order dated 10.03.2017, he has been dismissed from service. Thereafter, the petitioner is said to have filed a Review Petition before the first respondent and the first respondent under endorsement dated 29.04.2019 rejected his Review Petition. Questioning the order of dismissal as well as endorsement which communicated the dismissal of Review Petition, the petitioner was before the Tribunal. The Tribunal, under impugned order rejected petitioner’s prayer to quash the order of dismissal holding that there are no justifiable and valid grounds in the application to remain absent for such a long period. Questioning the

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impugned order passed by the Tribunal as well as the impugned order of dismissal, the petitioner is before this Court in this writ petition.

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Heard learned counsel Sri.P.M.Nayak for petitioner and learned AGA Sri.A.S.Harisha for

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respondents-State Authorities. Perused the entire Writ Petition papers as well as the original records relating to the impugned order of dismissal made available by the learned AGA during the course of hearing.

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6. Learned counsel for the petitioner would submit

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that the absence of the petitioner cannot be treated as unauthorised absence since the petitioner informed the respondents, that he has been selected to PG course and

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he would pursue PG course at Stanley Medical College, Chennai. Further, he submits that the respondents have not taken any decision on the representation dated 30.04.2016 wherein he has sought permission to pursue

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the PG course. It is also his submission that the

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respondents have not considered his representation dated 30.01.2017 in pursuance to the paper publication dated 19.01.2017 before passing the impugned order of dismissal. Learned counsel referring to Rule 14 of CCA Rules would submit that, in the facts and circumstance, the respondents could not have invoked Rule 14 of CCA Rules. It is his specific contention that the condition precedent to invoke Rule 14(ii) of CCA Rules is not complied to impose the punishment of dismissal on the petitioner. Thus, he would pray for allowing the petition and to direct the respondents to reinstate the petitioner .

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On the other hand, learned AGA Sri.Harish A S for respondents would submit that the petitioner without obtaining any permission and only by stating that he has been selected for PG course at Stanley Medical College at Chennai remained unauthorised absent, as such he would

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submit that the respondents rightly imposed the penalty of dismissal. Further, learned counsel would submit that,

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when he is not working at the place where he was posted, it would be difficult for the Department to communicate with the petitioner and, as such, rightly invoked Rule 14 of CCA Rules. It is further submitted that, as the petitioner could not be contacted at his work place, it was not practical to follow the procedure prescribed under CCA Rules to impose punishment prescribed under Rule 8(viii) of CCA Rules. Thus, he would support the order passed by the Disciplinary Authority as well as the Tribunal and prayed for dismissal of the Writ Petition.

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Having heard the learned counsel for the parties and on perusal of the entire Writ Petition papers including the records made available by the respondents/State, the following points would arise for consideration:

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1. Whether the respondents have complied the condition precedent under Rule 14(ii) of CCA Rules to invoke Rule 8(viii) of CCA Rules to impose penalty of dismissal?

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2. Whether the petitioner would be entitled for reinstatement?

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The answer to the above points would be in the

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negative and affirmative for the following reasons.

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Since both the above points are interlinked,

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both are taken up together for answering.

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The petitioner was selected as Medical Officer in the Department of Health and Family Welfare Services through the Karnataka Public Service Commission and he reported to duty as Medical Officer on 01.10.2010. In the year 2016, the petitioner who took up All India Level Examination for the purpose of pursuing Post Graduate Medical Course and was successful in the said examination. Pursuant to counseling, he was allotted seat for PG course in Stanley Medical College, Chennai and he is said to have reported or joined PG course at Stanley Medical College, Chennai on 06.05.2016. The fact of the

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petitioner obtaining seat for PG course at Stanley Medical College, Chennai and seeking permission to join for PG course was informed under representation dated 30.04.2016, which is placed on record along with memo dated 29.06.2026 before this Court. Further, the learned AGA Sri.Harish A S, on instruction, confirmed that the said representation was received by the second respondent on 10.05.2016. However, it is also fact that the respondents have not taken any action on the said representation of the petitioner dated 30.04.2016, which was received by them on 10.05.2016. The respondents could have either permitted the petitioner to pursue the PG Medical Course or they could have refused the permission to pursue the PG Medical Course immediately on receipt of the said letter. However, their silence on the said representation would amount to permitting the petitioner to pursue the PG Medical Course. It is not that the petitioner has not informed the respondents with regard to his admission to PG Medical Course. When the petitioner has informed with

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regard to his admission to PG Medical Course at Chennai,

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it cannot be said that the petitioner was unauthorisedly absent from duty. If the respondents/State Authorities had rejected the petitioner's request, then it could have been considered as unauthorised absent. Furthermore, to the

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paper publication taken out by the respondents on 19.01.2017, the answer by the petitioner on 30.01.2017 (Annexure - A7) which is also sent through E-Mail on 06.02.2017. The respondents have not taken into consideration the said representation also while proceeding under Rule 14 of CCA Rules.

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On proposal of the second respondent, the first respondent invoked Rule 14 of CCA Rules and passed impugned punishment order dated 10.03.2017 (Annexure - A9) recording that it would be difficult to follow the procedure prescribed under CCA Rules and also recording that it would be difficult to communicate with the Medical Officers. Rule 14 of CCA Rules reads as follows:

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" 14. Special procedure in certain cases .Notwithstanding anything contained in Rules 11 to 13.-

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(i) where a penalty is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge; or

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(ii) where the officer concerned has absconded, or where the officer concerned does not take part in the inquiry or where for any reasons to be recorded in writing it is impracticable to communicate with him, or where the Disciplinary Authority, for reasons to be recorded in writing, is, satisfied that it is not reasonably practicable to follow the procedure prescribed in the said rules; or

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(iii) where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow such procedure. The Disciplinary Authority may pass such orders thereon as it deems fit:

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Provided that the Commission shall be consulted before passing such an order in any case for which such consultation is necessary".

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Rule 14(ii) would be applicable to the facts of

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the present case. Under Rule 14 of CCA Rules, the Disciplinary Authority could dispense with the conducting of enquiry where the officer concerned has absconded or where the officer concerned does not take part in the enquiry or impracticable to communicate with the Government servant or for the reasons to be recorded by the Disciplinary Authority, that it is satisfied, that it is not

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reasonably practicable to follow the procedure prescribed

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in the said Rules. On examination of the material on record, we are of the considered opinion that, in the facts and circumstances of the present case, the respondents - Authorities could not have invoked Rule 14(ii) of CCA Rules. The first respondent under impugned order of dismissal has recorded that, as it was not practicable to communicate with the Medical Officers, it would not be possible to follow the procedure prescribed under the CCA Rules. Insofar as the petitioner is concerned, it is not so. The petitioner had communicated to the respondents that he had joined PG Medical Course at Stanley Medical College at Chennai and also to the paper publication by his representation dated 30.01.2017, informed the fact of he pursuing PG Medical Course at Stanley Medical College, Chennai. Unless the respondents demonstrate that it was impracticable to conduct enquiry as the Government servant, is absconding or his address cannot be traced, it could not invoke Rule 14 of CCA Rules. The Disciplinary

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Authority has not recorded any reason as to why it is not reasonably practicable to conduct enquiry except stating that petitioner was uncommunicable. As the petitioner had informed the respondents that he is pursuing his P.G.Course at Stanley Medical College, Chennai. The respondents could not have come to the conclusion that petitioner uncommunicable. In the instant case, the condition precedent to invoke Rule 14 of CCA Rules is not fulfilled. Therefore, the impugned order of dismissal dated 10.03.2017 is oppose to Rule 14 and requires to be interfered with.

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The Tribunal without noticing that the petitioner had replied to paper publication and earlier also had informed with regard to the selection and joining PG Medical Course at Stanley Medical College, Chennai proceeded to hold that the petitioner remained unauthorisedly absent.

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Since the petitioner was out of service from

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2017 till this date and since the petitioner being a professional, he would not be entitled to back wages from the date of dismissal till reinstatement.

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For the reasons recorded above, the following

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order:

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ORDER

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a) The Writ Petition is allowed .

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b) Impugned order passed by the Tribunal dated 28.02.2022 in Application No.4461/2019 is set aside. Consequently, the impugned order of dismissal bearing No. DPÀÄPÀ 243 JªÀiïJ¸ïJ 2016 dated

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10.03.2017 (Annexure - A9) is quashed insofar as the petitioner is concerned.

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c) The respondents are directed to reinstate the petitioner into service within six weeks from today. It is made clear that the petitioner would not be

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