IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI W.P. NO.31569 OF 2019 (EDN-REG [P]) BETWEEN:
KVG AYURVEDA MEDICAL COLLEGE (ESTD. BY ACADEMY OF LIBERAL EDUCATION (R.) SULLIA) SULLIA, DAKSHINA KANNADA KARNATAKA REP. BY ITS PRINCIPAL SRI N.S.SHETTAR S/O.S.K.SHETTAR AGED ABOUT 64 YEARS R/O AMBATEDKA, SULLIA TALUK DAKSHINA KANNADA … PETITIONER (BY SRI.OMKAR KAMBI, NAIK AND NAIK LAW FIRM, ADV.) AND:
1. GOVERNMENT OF INDIA REP. BY ITS SECRETARY MINISTRY OF AYURVEDA, YOGA AND NATUROPATHY UNANI, SIDDHA AND HOMEOPATHY AYUSH BHAWAN, “B” BLOCK GPO COMPLEX, INA NEW DELHI-110 023 2. CENTRAL COUNCIL OF INDIA MEDICINE 61-65, INSTITUTIONAL AREA OPP: ‘D’ BLOCK, JANAKAPURI NEW DELHI-110 058 REP. BY ITS SECRETARY 3. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES “T” BLOCK, JAYANAGAR BANGALORE-560 011 REP. BY ITS REGISTRAR (BY SRI.C.SHASHIKANTHA, ASG FOR C/R-1 SRI.MANASI KUMAR, ADV. FOR R-2 SRI.ASHOK N.NAYAK, ADV. FOR R-3) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE PROCEEDINGS INCLUDING ALL THE REPRESENTATIONS OF THE PETITIONERS HEREIN MADE TO THE FIRST AND SECOND RESPONDENTS AND ETC.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In this writ petition, the petitioner has sought for the following:
a) Issue a writ in the nature of certiorari or such other appropriate writ, order or direction, quashing the impugned order dated: 01.07.2019 made in proceedings no.F No.L.14014/296/2019-EP(1) issued by the 1st Respondent herein, which is produced marked as Annexure-A to the writ petition and;
b) Issue a writ of mandamus or such other writ, order or directions, directing the Respondents to restore the permission granted vide Ministry’s letter dated: 13.10.2016 (Annexure-E) and 02.12.2016 (Annexure-F) respectively and;
c) Issue a writ of mandamus or such other writ, order or directions, directing the Respondents to strictly abide by conditions of grant per order vide Ministry’s letter dated: 13.10.2016 (Annexure-E) and 02.12.2016 (Annexure-E) respectively and apply the Regulations that are indicated therein;
d) Issue such other writ, order or directions as may be deemed just and necessary in the interest of justice.
2. Learned counsel for the petitioner submitted that for the purpose of renewal for grant of permission for a period not exceeding five years to the petitioner – K V G Ayurveda Medical College and Hospital was granted during the period of from 2016-17 to the academic session 2020-21. In this regard, respondents proceeded to issue show cause notice on 30th April, 2019. Thereafter, two officials members’ committee was constituted for recording the petitioner’s submission and it was recorded and forwarded to respondent No.1. Respondent No.1 proceeded to pass orders while holding certain shortcomings, which has stated in Annexure-A dated 1.7.2019. Learned counsel further submitted that under Regulations called Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Ayurveda Colleges and attached Hospitals) Regulations, 2016 issued on 7.11.2016. as amended. Sub-Regulation 2 of Regulation 3 of the Regulations notified on 7.11.2016 reads as under:
“(2) Requirements of Minimum Standard to grant of permission for a period of five years.-
(a) After fulfillment of the requirement as per these regulations by the college, the permission shall be granted to undertake admissions for a period of five years. The college shall be randomly inspected within the said period on receipt of any complaint; or if form online Bio-metric attendance it is found that teaching, non- teaching staff, hospital staff not present regularly, or hospital is not properly functions, or otherwise as required by the Central Government of by the Central Council;
b) any deficiencies arising within the said period shall be fulfilled by the college within hundred-fifty days under intimation to the Central Council otherwise the permission for a period of five years deemed to be withdrawn;
c) colleges which ere permitted for a period not exceeding five years from the academic session 2014-15 to 2018-19 and 2015-16 to 2019-20 shall be maintain the requirements as specified under the regulations 4 to 11 otherwise the permission for a period of five years deemed to be withdrawn.”
Petitioner is entitled to 150 days to meet any deficiencies. 1st respondent has ignored the above mentioned mandate.
3. Further it was submitted that if the proceedings read with show cause notice issued to the petitioner is by two official members. Consequently, the order is required to be passed by such members who have heard the petitioner and not by the third party like 1st respondent. In this regard, he has cited decision or the Division Bench of this Court passed in WP No.111713/2019 (DD 15.72019). This Court relied on the Supreme Court decision in the case of Gullapalli Nageswara Rao and others –vs- Andhra Pradesh State Road Transport Corporation and another reported in AIR 1959 SC 308. The relevant extract of the Division Bench at paras-11 and 12 read thus:
11. It is pursuant to the proviso to sub- section 5 of section 13A, opportunity of hearing was extended to petitioner and there is no dispute to the fact that such hearing was held by the authority constituted by the 1st respondent who held the sitting or hearing on 18.05.2019, whereunder reply submitted by the petitioner to the compliance report has been noticed and questions also came to be posed to the petitioner and answer given or elicited has been incorporated in the said report. The said authority which heard the petitioner as well as representative of the petitioner having noted the contentions of the petitioner has drawn the minutes as per Annexure-J and forwarded the same to the 1st respondent. 1st respondent by impugned order dated 05.06.2019 has rejected or denied the permission for the academic year 52019-20 by reiterating the contents of the report submitted by 2nd respondent has not been complied with by the petitioner. This finding recorded by the 1st respondent under the impugned order is factually erroneous, at-least partially. We say so, because one of the deficiencies pointed out by 2nd respondent relates to quality testing laboratory not being available in Petitioner College. However, in its compliance report dated 17.05.2019 (Annexure-H) submitted by petitioner it has not only produced supporting documents like instruments, purchase of invoice bills, photographs and video of the existing quality testing laboratory but has also produced the bank statement for having paid the bills to the concerned staff who are working in said laboratory. This aspect has also been recorded by the hearing authority, it is proceeding dated: 18.05.2019 (Annexure-J). however, curiously under the impugned order there is no reference to this fact as to why purported deficiency pointed out by 2nd respondent which has said to have been complied by the petitioner as per its compliance report dated 17.05.2019 is being rejected or overlooked. In other words there is non-application of mind by the 1st respondent authority. This situation has obviously arisen on account of hearing authority being different from deciding authority. At this juncture itself, we are reminded by the judgment of the Hon’ble Apex Court in the case of Automotive Tyre Manufacturers Association vs. Designated Authority and others reported in (2011) 2 Supreme Court Cases 258, whereunder it has been held by the Hon’ble Apex Court that person who hears, if not deciding the matter then such personal hearing becomes empty formality. In the instant case of facts we have noticed that deciding authority namely authority which has passed impugned order was not part and parcel of hearing authority. In other words hearing authority was different and deciding authority was different. As such, authority which heard the matter was not in the how know of factual matrix. Whereas the deciding authority who did not have the benefit of the hearing, the petitioner or its authorized representative was not in the how know of factual matrix except teaching the minutes.
12. It is in this background, Hon’ble Apex Court in the case of Automotive Tire Manufacturing Association referred herein supra has referred to the judgment of the Hon’ble Apex Court in the case of Gullapalli Nageswara Rao and others Vs. Andhra Pradesh State Road Transport Corporation and another reported in AIR 1959 Supreme Court 308, whereunder it has been held, if one person hears and another decided, personal hearing becomes an empty formality. On this short ground itself, the impugned order would not stand the test of law and it has to be quashed. Though several other contentions are raised, we do not propose to examine the same and it is left at it for the present.”
In view of these aspects, the impugned order requires interference by this Court.
4. On the otherhand, learned counsel for the respondents supported the order at Annexure-A. Petitioner has been heard by two officials appointed for the purpose of drawing proceedings pursuant to show cause notice issued to the petitioner. Hence, no interference is called for.
5. Heard the learned counsel for the parties.
6. Perusal of documents, it is evident that respondents have ignored Sub-Regulation 2 of Regulation 3 of the Regulations notified on 7.11.2016. That apart, Division Bench of this Court in the cited supra at paras - 11 and 12, it is discussed with reference to the decision of the Supreme Court that the officials, who heard the matter, are required to pass final order/decision whereas in the present case, two officials members, who heard the petitioner, drawn the proceedings and forwarded to respondent No.1 for taking decision, who has taken a decision vide Annexure- A.
7. Preceding decision vide Annexure-A is in violation of the decision of the Division Bench of this Court and decision of the Supreme Court (cited supra). In the facts and circumstances of the case, Annexure-A is treated as show cause notice to the petitioner. Petitioner is hereby directed to furnish his explanation within a period of eight weeks before receipt of this copy of this order. After receipt of the explanation of the petitioner, two official members or single member are/is hereby directed to hear the petitioner by fixing the date and thereafter proceed to pass final order.
The aforesaid exercise shall be completed within a period of six months from the date of receipt of this order. Pursuant to Annexure-A, respondents are directed to not to precipitate the matter until final order is passed after hearing the petitioner.
Accordingly, writ petitions stands disposed of.
Sd/-
JUDGE Bkm