IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 03RD DAY OF APRIL, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT PETITION No.6402/2019 (S-KSAT) BETWEEN:
DR. RAVINDRA B GOWDA S/O. K. BORAIAH, AGED ABOUT 46 YEARS, R/AT NO.103, DOCTORS QUARTERS, GENERAL HOSPITAL CAMPUS, MANDYA. ... PETITIONER (BY SRI G. KRISHNA MURTHY, SENIOR COUNSEL A/W SRI G.B. SHARATH GOWDA, ADVOCATES) AND:
1. MANDYA INSTITUTE OF MEDICAL SCIENCES, AUTONOMOUS MEDICAL INSTITUTION, GOVERNMENT OF KARNATAKA, MANDYA – 571 401.
REP. BY ITS CHIEF EXECUTIVE OFFICER.
2. THE DIRECTOR, MANDYA INSTITUTE OF MEDIAL SCIENCES, AUTONOMOUS MEDICAL INSTITUTION, GOVERNMENT OF KARNATAKA, MANDYA – 571 401.
3. THE ADDL. CHIEF SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU – 560 001.
4. THE COMMISSIONER, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF KARNATAKA, ANANDRAO CIRCLE, BENGALURU – 560 009. ... RESPONDENTS (BY SRI H.C. SHIVARAMU, ADVOCATE FOR C/R-1 AND R-2; SRI I. TARANATH POOJARY, AGA FOR R-3 AND R-4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN APPLICATION NO.7365/2018 ON THE FILE OF THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU AND QUASH THE ORDER DATED 19.01.2019 PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION NO.7365/2018 VIDE ANNEXURE-A AND ETC., THIS PETITION COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:
O R D E R Though this writ petition is listed for hearing I.A.No.2/19, which is an application filed seeking production additional documents, with the consent of learned counsel on both sides, it is heard finally.
2. Petitioner has assailed the legality and correctness of order dated 19/01/2019, passed by the Karnataka State Administrative Tribunal at Bengaluru (hereinafter referred to as “the Tribunal” for the sake of convenience) on Application No.7365/2018.
3. By the said order, the Tribunal has dismissed the application filed by the petitioner herein and has directed him to obey the Official Memorandum dated 21/12/2018, passed by respondent No.4 and to report to duty at General Hospital, Nagamangala, with immediate effect.
4. Briefly stated, the facts are that the petitioner had assailed order dated 17/09/2018, passed by respondent No.2 herein, a copy of which is at Annexure – X. By the said order, petitioner, who was deputed as Resident Medical Officer of respondent Nos.1 and 2 institute herein, was repatriated to his parent department namely, Department of Health and Family Welfare, where he was working as an ENT Specialist. Being aggrieved by the same, petitioner assailed the said order before the Tribunal. However, the Tribunal has dismissed the said application. Hence, this writ petition has been preferred.
5. We have heard learned senior counsel for the petitioner, learned Additional Government Advocate for respondent Nos.3 and 4 and learned counsel for respondent Nos.1 and 2 and perused the material on record.
6. Learned senior counsel appearing for the petitioner contended that the impugned order of repatriation is illegal and not in accordance with law. That the said order has been passed on the premise that there was a criminal complaint filed against the petitioner, but in fact, the said complaint has resulted in filing of ‘B’ report and hence the basis of order of repatriation no longer subsists. Hence, on that short ground alone the order dated 17/09/2018 (Annexure – X) has to be quashed, but the Tribunal has not appreciated the said fact and has dismissed the said application filed by the Tribunal.
7. Learned senior counsel appearing for the petitioner also contended that the order at Annexure – X has been made on the basis of a telephonic call made by respondent No.3 to respondent No.2 on 17/09/2018 and the said order has been made on the basis that there was a criminal complaint filed against the petitioner. That respondent No.2 could not have passed the order of repatriation on the basis of a telephonic call made by respondent No.3 herein. He contended that respondent No.2 could not have acted on the basis of the instruction issued by respondent No.3. That respondent No.2, if at all wanted to repatriate petitioner from the services of respondent No.1/institute, had to state the reasons for doing so and could have only recommended for repatriation and it was for respondent No.3, which is the parent department to have considered the said recommendation and passed the order. That respondent No.2, by the impugned order dated 17/09/2018 could not have suo moto or unilaterally repatriated the services of the petitioner to the parent department. That such an order of repatriation could be made only by respondent No.3 on the basis of a recommendation made by respondent No.2 or having regard to the exigencies of administration.
8. He submitted that the reasons for repatriation are also not true and that the petitioner has been victimized in the matter. He contended that the impugned order of the Tribunal at Annexure – X dated 17/09/2018 may be quashed.
9. Per contra, learned counsel for respondent Nos.1 and 2 drew our attention to the fact that a criminal contempt has been filed against the petitioner herein and bearing in mind that fact and having an apprehension that tampering of evidence may occur at the instance of the petitioner he was repatriated to the parent department. That the Additional Chief Secretary has also passed an order approving the repatriation and therefore, there is no illegality in passing order dated 17/09/2018. That the Tribunal has rightly appreciated the case of respondent Nos.1 and 2 herein and has dismissed the application and there is no merit in the writ petition.
10. Learned counsel for respondent Nos.1 and 2 also drew our attention to various averments made in the statement of objections and the annexures appended thereto.
11. Learned Addl. Government Advocate appearing for respondent Nos.3 and 4 submitted that petitioner’s parent department is respondent Nos.3 and 4/department and that his services were deputed as the Resident Medical Officer of respondent No.1/institution on 22/07/2017.
That on coming to know the allegations made against the petitioner, respondent No.2 has repatriated his services to his parent department and there is no illegality in the order. The impugned order dated 17/09/2018 reads as under:
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(As no English translation of the impugned order has been furnished the order in Kannada is reproduced above.) On a reading of the same, it is evident that the said impugned order of repatriation is made by respondent No.2 based on a telephonic call received from the Additional Chief Secretary on 17/09/2018. At the outset, we may say that respondent No.2 has no power to repatriate the petitioner who has been deputed to respondent No.1/institution by respondent No.4/department. It is only respondent No.4/department, which could withdraw the deputed officer to its department. On that short ground alone, the impugned order has to be quashed as the said order is passed without having necessary competency to do so.
12. It is next noted that the said order of repatriation is made on the basis of a telephonic call received from respondent No.3 herein. There is an express reference to that in the impugned order. If at all respondent No.2 had reasons to repatriate petitioner to the parent department, the same must emanate from respondent No.2. A repatriation order could not have been made by respondent No.2 on the basis of telephonic instructions received from respondent No.3. Even if it is to be held that there has been a consultation between the said authorities, nevertheless, the order of repatriation has to be made only by respondent No.3 and not by respondent No.2. Instead, a reading of the impugned order dated 17/09/2018 gives an impression that respondent No.2, on the basis of telephonic call received from respondent No.3, has passed the said order and that respondent No.2 was acting on the direction of respondent No.3. Be that as it may, the fact remains that respondent No.2 was not competent to repatriate the services of the petitioner to the parent department, which could be done only by respondent No.3 in consultation with respondent No.2. Therefore, on these grounds, the impugned order and the Official Memorandum dated 21/12/2018, passed by respondent No.4 are also quashed. Consequently, the order of the Tribunal, which has not appreciated these aspects of the matter is also quashed.
13. Respondent Nos.1 and 2 are directed to continue the services of petitioner in the institution pursuant to quashing of the impugned order at Annexure – X and to act in accordance with law and in accordance with the aforesaid observations. Writ petition is disposed off.
In view of disposal of the writ petition, I.A.No.2/2019 also stands disposed.
Sd/- JUDGE Sd/-
JUDGE S*