IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 5TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT PETITION NO.20182 OF 2015 (GM-KLA) BETWEEN:
DR. K. LALITHA WIFE OF SRI M C VENKATESH AGED ABOUT 47 YEARS WORKING AS PEDIATRICIAN HOSAHALLI REFERRAL HOSPITAL BRUHAT BENGALURU MAHANAGARA PALIKE BENGALURU -560 030.
(BY SRI. VIJAY KUMAR, ADVOCATE) ... PETITIONER AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA BENGALURU-560 001.
2. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N R SQUARE BENGALURU -560 002.
3. THE KARNATAKA LOKAYUKTA REPRESENTED BY ITS REGISTRAR DR. AMBEDKAR VEEDHI BENGALURU -560 001.
4. THE ADDITIONAL REGISTRAR ENQUIRIES-3 KARNATAKA LOKAYUKTA DR. AMBEDKAR VEEDHI BENGALURU -560 001.
... RESPONDENTS (BY SRI.B S GAUTHAM, ADVOCATE FOR RESPONDENT No.2 SMT. N ANITHA, HCGP FOR RESPONDENT No.1 SRI. G MALLIKARJUNAPPA, ADVOCATE FOR RESPONDENT Nos.3 AND 4-ABSENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS RELATING TO ISSUE OF THE IMPUGNED ORDER OF THE R-1 DATED 12.06.2013 [ANNEX-Q] IMPUGNED 12[3] REPORT SUBMITTED BY THE R-3 DATED 08.02.2013 VIDE ANNEX-P AFTER PERUSAL SET ASIDE THE SAME AND QUASH THE AND ARTICLES OF CHAREGES ISSUED BY THE R-4 DATED 14.08.2013 VIDE ANNEX-R.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT THIS DAY, S.G. PANDIT J., PASSED THE FOLLOWING:
ORDER Petitioner is before this Court under Article 226 of the Constitution of India, praying for the following reliefs:-
“(i) To call for records relating to issue of the impugned order of the 1st respondent bearing no.na.Aa.E 102 MNG 2013 dated 12.6.2013 (Annexure-Q); impugned 12(3) report submitted by the 3rd respondent bearing No.COMPT./UPLOK/BCD-279/2008/ARE-11 dated 8.2.2013, vide Annexure-P, after perusal set aside the same;
(ii) To quash the and Articles of charges issued by the 4th respondent bearing no.LOK/INQ/14- A/281/2013 dated 14.8.2013, vide Annexure-R.”
2. The petitioner is a General Duty Medical Officer in the 2nd respondent – Bruhat Bengaluru Mahanagara Palike (for short ‘the BBMP’). During the year 2006 the petitioner was working as Pediatrician in the Hosahalli Refferral Hospital. The petitioner was allotted quarters attached to the Rajajinagar Maternity Corporation Hospital with a condition that she has to attend the emergency cases during the night hours. It is stated that on 20.05.2008 at about 8.05 a.m. she received urgent call from the staff of Rajajinagar Maternity Corporation Hospital and she rushed to attend the patient - Mrs. Sangeetha in the said hospital. The said patient had just given birth to a female still born baby. On examination she found there was no heart beat and respiration, she made necessary entries in the Doctors call book and the same was informed to the relatives of Mrs. Sangeetha. Then the petitioner checked the condition of Mrs. Sangeetha and having found her condition stable, she handed over the charge of the patient to the Duty Doctor- Dr. Savitha at about 8.30 a.m. Subsequently, she received information that Mrs. Sangeetha also expired at about 10.30 a.m. The father of deceased Sangeetha made complaint to the BBMP alleging negligence on the part of the staff of the Hospital. The complaint dated 24.05.2008 is produced at Annexure- D to the writ petition. The complainant states that the relatives of Sangeetha requested the staff nurse to call the doctor, which the staff nurse refused. News papers had also reported the incident on 21.05.2008. Based on the complaint and the news paper reports investigation was ordered to be made by Chief Health Officer. On the basis of the investigation report, a show-cause notice was issued to the petitioner on 21.05.2008 as per Annexure-F. The show-cause notice issued by Chief Health Officer of BBMP would indicate that why action should not be initiated for the negligence in treating Mrs. Sangeetha on 20.05.2008. The petitioner submitted her reply as per Annexure-G dated 24.05.2008. Thereafter, the BBMP initiated enquiry against Smt. T.R. Lalitha, Junior Health Assistant. No enquiry was initiated against the petitioner being satisfied with the reply. The charge against the said Junior Health Assistant was that when it is a difficult case of delivery, instead of calling the Doctor who was available in the quarters, taken up the task of delivery and responsible for the death of the child. In the enquiry, the charges were held to be proved and the said Junior Health Assistant was inflicted with punishment of withholding of one increment without cumulative effect.
3. The petitioner states that based on the News Paper report, the Upa Lokayukta had taken cognizance and directed suo-moto investigation. The Upa Lokayukta by order dated 26.05.2008 (Annexure-L) directed Dr. Hanumanthappa, Chairman, Health Foundation, Bengaluru, to submit a preliminary enquiry report on or before 30.6.2008 investigating the negligence and dereliction of duty on the part of the doctors and members of the staff. The Chairman, Health Foundation, by covering letter dated 25.6.2008 submitted his report. In the report, it was observed that the petitioner herein was staying at the quarters and she was casual in attending to the emergency cases. The petitioner made a detailed reply to the 4th respondent. In her reply, she has stated that she was called at 8.05 a.m. and she immediately rushed to the labor room of Rajajinagar Maternity Corporation Hospital. By the time she went there, the staff had delivered a still born baby and informed her that there were three loops of cord tightly wound around the neck of the baby and found that there was no heart sound and respiration. Immediately, she started resuscitating the baby. The petitioner has also stated that Dr. Savitha was the regular duty doctor at Rajajinagar Maternity Corporation Hospital and the petitioner was a pediatrician at Hosalli Referral Hospital as she had to attend her duties, the petitioner handed over the patient to Dr.Savitha. The Upa Lokayukta under Section 12(3) of the Karnataka Lokayukta Act, 1984 (for short ‘the Act’), submitted his report dated 8.2.2013 to the Government recommending to initiate disciplinary proceeding against Smt. T.R. Lalithamma, Junior Lady Health Assistant, Smt. N. Dhanalakshmi, Staff Nurse and Dr. K. Lalitha, the petitioner herein. The Government passed an order dated 12.6.2013 entrusting the enquiry to the Lokayukta under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The 4th respondent framed the article of charges on 14.8.2013 against the petitioner and two others. The petitioner filed a detailed written statement of defence before the Enquiry Officer. The petitioner also filed an application to drop the enquiry against her contending that, for the negligence, she was issued notice earlier by the BBMP and separate enquiry was held against Smt. Lalithamma, the Junior Health Assistant punishing her with stoppage of increment. The 4th respondent by the order dated 31.7.2014 rejected the application. Aggrieved by the order of the Government dated 12.6.2013, the report dated 8.2.2013 under Section 12(3) of the Act and article of charges dated 14.8.2013, the petitioner is before this Court.
4. Respondent Nos.3 and 4 have filed statement of objections and contended that after due consideration of the reply by the petitioner, Section 12(3) report was submitted recommending initiation of enquiry against her. It is also stated that after investigation, notice was issued to the petitioner. Further proceedings were conducted. Earlier enquiry said to have been conducted was only against Smt. T.R. Lalitha, ANM, and not against the petitioner. Hence, holding a second enquiry against the petitioner has no basis.
5. Heard the learned counsel for the petitioner and learned counsel for the respondents.
6. The learned counsel for the petitioner submits that the report submitted by the 3rd respondent under Section 12(3) of the Act is the result of total non application of mind and material placed before it has not been looked into while submitting the report. Under Section 12(4) of the Act, the Government shall examine the report along with the material placed before it, which the Government has failed to examine. The learned counsel further submits that the 2nd respondent, as a disciplinary authority, had issued the show cause notice intending to initiate the disciplinary proceedings against the petitioner, but after submission of reply, the same was dropped.
7. Per contra, the learned counsel for respondent Nos.3 and 4 submits that the report under Section 12(3) of the Act has been submitted after due application of mind and on verification of the material. He further submits that no charge memo was issued to the petitioner on an earlier occasion in respect of the incident. Hence, it would not amount to second enquiry.
8. The petitioner at the relevant point of time was working as a Pediatrician in Hosalli Referral Hospital, but she was allotted the quarters at Rajajinagar Maternity Corporation Hospital with the condition that she should attend emergency cases during the night. Material on record would indicate that on 20.5.2008 around 8.05 a.m., the petitioner was called to Rajajinagar Maternity Corporation Hospital to attend one Mrs. Sangeetha. By the time, she went to attend the said patient, the staff nurse had already delivered a still born baby. The baby was found with three loops of cord around the neck and found that there was no heart sound and respiration. The petitioner has stated that, immediately, she started resuscitating the baby. It is to be noticed that one Dr.
Savitha was the regular doctor at Rajajinagar Maternity Corporation Hospital. The petitioner was the regular doctor at Hosalli Referral Hospital. As the regular Dr. Savitha had come to the hospital, the petitioner left to her regular duty at Hosalli Referral Hospital handing over charge to Dr.Savitha. Subsequently, she was informed that the patient Sangeetha had also died. The news paper media had reported the same and the relatives of the deceased Sangeetha had also complained against the staff of the hospital. Based on the report of the news paper as well as the complaint, the Chief Health Officer, BBMP, issued show cause notice to the petitioner and to all the staff of the Rajajingar Maternity Hospital. The petitioner submitted a detailed reply, but no further action was taken thereafter. On the other hand, a regular enquiry was held against Smt. T.R. Lalitha, Junior Health Assistant and punishment was imposed. In the meanwhile, the Upa Lokayukta had taken suo motu cognizance and ordered for investigation by the Chairman, Health Foundation Bengaluru. The Chairman, Health Foundation investigated the incident and submitted his report under the covering letter dated 25.6.2008 observing that the petitioner was casual in attending to the emergency cases and recommended departmental enquiry against the petitioner and two others. As per Annexure-N, the petitioner submitted a detailed reply to respondent Nos.3 and 4. Respondent No.3, on 8.2.2013, submitted a report under Section 12(3) of the Act. Sections 12(3) and 12(4) of the Act read as follows:
“12(3) If, after investigation of any action involving an allegation has been made, the Lokayukta or an Upa-lokayukta is satisfied that such allegation [is substantiated] either wholly or partly, he shall by report in writing communicate his findings and recommendation along with the relevant documents, materials and other evidence to the Competent Authority.
(4) The Competent Authority shall examine the report forwarded to it under sub- section (3) and within three months of the date of receipt of the report, intimate or cause to be intimated to the Lokayukta or the Upa-
lokayukta the action taken or proposed to be taken on the basis of the report.”
9. A reading of Sub-section (3) would make it clear that if Lokayukta or Upa Lokayukta is satisfied that allegation is substantiated either wholly or partly, he shall by report communicate his findings and recommendations along with the relevant documents and materials and other evidence to the Competent Authority. On receipt of such report, the competent authority under Sub-section (4) of Section 12 shall examine the report forwarded to it under Sub-section (3). Firstly, the Lokayukta or Upa Lokayukta shall be satisfied that there are material documents and other evidence to substantiate the allegation and thereafter, give his findings and make recommendations to the Competent Authority. Secondly, on receipt of such report, the Competent Authority shall examine the report forwarded to it under Sub-section (3) which means, the Competent Authority shall have to examine the relevant documents, materials and other evidence in relation to the allegations made.
10. In the case on hand, on going through the report under Section 12(3) of the Act, dated 8.2.2013 (Annexure- P), it is seen that no material appears to have been considered by the Upa Lokayukta while preparing the report. The report would not indicate the consideration of reply submitted by the delinquent officials including the petitioner. What are the materials on which Section 12(3) report is submitted is not forthcoming from the report.
11. Further, the perusal of the order passed by the State Government under Section 12(4) of the Act dated 12.6.2013 (Annexure-Q), it is clear that it is also as bald as Annexure-P report. Sub-section (4) of Section 12 makes it mandatory for the Competent Authority to examine the report forwarded to it by the Upa Lokayukta. The order would not indicate the consideration of material such as relevant documents, materials and other evidence forwarded to it under Sub-section (3) of Section 12 of the Act. The order would only state that the Government has received the report from the Upa Lokayukta recommending to initiate a departmental enquiry and hence, the Government is referring the matter under Rule 14-A of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 to Upa Lokayukta for enquiry. The order passed under Section 12(4) of the Act also would not indicate the consideration of materials.
12. Hence, we are of the view that the report dated 8.2.2013 submitted under Section 12(3) of the Act (Annexure-P) and the order passed by the 1st respondent dated 12.6.2013 under Section 12(4) of the Act (Annexure-Q), are liable to be quashed and they are accordingly quashed. Respondent Nos.3 and 4 shall consider the reply of the petitioner. On consideration of the materials on record and on being satisfied with the allegation, respondent Nos.3 and 4 shall submit the report under Section 12(3) of the Act. Thereafter, the 1st respondent-Government shall examine the report submitted under Section 12(3) of the Act and pass an appropriate order. All further proceedings in furtherance of Government order dated 12.6.2013 are also set aside with liberty to initiate action after the 1st respondent passing an appropriate order under Section 12(4) of the Act.
The writ petition is partly allowed.
Sd/- Sd/-
JUDGE JUDGE NG* / CS CT:bms