Karnataka High Court
Sri Abhinand V vs Bangalore Medical College on 10 January, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.16509/2016 (S-RES)
BETWEEN:
SRI. ABHINAND V.
S/O. VINOD KUMAR G,
AGED ABOUT 30 YEARS,
STAFF NURSE (MALE),
OFFICE OF THE SUPER SPECIALTY
(PMSSY), VICTORIA HOSPITAL CAMPUS,
BANGALORE-560 002.
...PETITIONER
(BY: SRI. SHAILENDRA M.R., ADV.)
AND:
1. BANGALORE MEDICAL COLLEGE &
RESEARCH INSTITUTE (BMCRI),
REPRESENTED BY ITS
DIRECTOR AND DEAN,
K.R. ROAD, FORT,
BANGALORE-560 002.
2. THE SPECIAL OFFICER,
SUPER SPECIALTY HOSPITAL
(PMSSY), VICTORIA HOSPITAL CAMPUS,
BANGALORE-560 002.
...RESPONDENTS
(BY SMT. SUMANA BALIGA M. ADV. FOR R-1,
SMT. LAKSHMI S. HOLLA, ADV. FOR R-2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECT THE RESPONDENTS TO TAKE BACK THE
PETITIONER TO DUTY IMMEDIATELY WITH A FURTHER
DIRECTION DIRECTING THE RESPONDENTS TO TREAT THE
PERIOD FROM 1.7.2015 TILL THE DATE THE PETITIONER
IS TAKEN BACK TO DUTY AS COMPULSORY WAITING WITH
ALL CONSEQUENTIAL BENEFITS INCLUDING MONETARY
BENEFITS.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri M.R.Shailendra, learned counsel appearing for petitioner, Smt. Sumana Baliga M., learned counsel appearing for Respondent No.1 and Smt. Lakshmi S. Holla, learned counsel appearing for Respondent No.2. Perused the records.
2. Petitioner came to be appointed as a staff nurse (male) on 20.07.2012 and reported to duty. On 16.02.2015 he applied for medical leave from 16.02.2015 to 12.04.2015 on account of ill-health. Said leave was extended up to 30.06.2015. On reporting to duty on 01.07.2015 along with medical certificates issued by the designated Medical Officer and the fitness certificate at 3 Annexures B, C and D. Petitioner was not taken to duty. Second respondent called upon the petitioner to undergo medical examination and obtain certificate from the Medical Board of Victoria Hospital, Bengaluru. On such direction being issued, petitioner appeared before the Board and underwent a medical examination conducted by the Medical board consisting of the Chairman and three members viz., heads of various departments who examined the petitioner and submitted their report on 10.08.2015 at Annexure 'E' opining thereunder that petitioner had suffered `viral arthralgia with urinary tract infection and viral hepatitis'. The Medical Board also recommended the said period to be treated as leave on medical ground.
3. Petitioner submitted his duty report on 20.08.2015 at Annexure 'F' enclosing the report of the Medical Board, Victoria Hospital, Bangalore. However, petitioner was not taken to duty by the second respondent. Hence, petitioner got issued a legal notice 4 through his advocate on 04.11.2015 and also requested to treat the period from 01.07.2015 till petitioner is taken back to duty as 'compulsory waiting period' vide Annexure 'G'. A reply came to be issued by 2nd respondent on 17.11.2015 at Annexure 'H' informing the petitioner that medical reports furnished by petitioner is not sufficient and his period of absence will be treated as unauthorized absence under Rule 108 of Karnataka Civil Service Rules, 1977 and again called upon the petitioner to subject himself for examination by Medical Board for 2nd time. Accordingly, petitioner appeared before Medical Board on 04.02.2016 and Medical Board after examining the entire records and on clinical evaluation of the petitioner, Medical Board concluded that petitioner was suffering the ailment/disease as certified earlier by the Medical Board and hence second Medical Board opined that petitioner was entitled for medical leave for the said period as per its report dated 19.02.2016 at Annexure 'J'.
5
4. Without considering these facts, petitioner has not been taken on duty by second respondent. Hence, petitioner is before this court seeking for a direction in the nature of mandamus to the respondents to take him back to duty with a further direction to treat the period from 01.07.2015 till the date petitioner is taken to duty as 'compulsory waiting period' with all consequential benefits including monetary benefits.
5. Respondent No.2, on service of notice, has filed its statement of objections and admitted that the petitioner was appointed as a staff nurse on 20.07.2012. However, it is contended that at the time of joining the services, doctors, staff and nurse should compulsorily undergo vaccination against virus A and Virus B to prevent the said communicable disease and as such, it was necessary for the doctor who had treated the petitioner for alleged jaundice, as stated in his report, about detection of IGM antibodies, HAB test conducted for detection of Hepatitis A virus and HAB for antibody 6 test or CBC test to find out the jaundice. On account of non-production of these certificates, respondent No.2 has doubted the medical reports submitted by the petitioner. It was further contended that one of the report namely report dated 16.06.2015, though contains the signatures of the doctor, date is not affixed below the signature and as such, said report cannot be believed. It is also contended that petitioner has not produced valid medical reports/documents and his period of absence is required to be treated as unauthorized absence. As such 2nd respondent has prayed for dismissing the writ petition and it is also contended that if any direction is issued to take back petitioner for duty, it will be set a precedent for other staff who would be taking leave for one or other reason.
6. Having heard the learned advocates appearing for the parties and on perusal of the records, it requires to be noticed at the outset that 2nd respondent is attempting to keep away the petitioner from reporting 7 to duty on the ground of ailment stated by the petitioner is not supported by proper Medical records and to treat said period as unauthorised absence. If it is unauthorized absence, it is needless to state that the 2nd respondent is entitled to proceed against petitioner in accordance with law by issuing charge sheet or imputation of charges and conducting enquiry in that regard. However, without taking such recourse, it called upon the petitioner to produce certificate or reports issued by the Medical Board certifying that petitioner was suffering from the ailments which petitioner has pleaded in his application for leave of absence. In due compliance to directions issued by the 2nd respondent, petitioner appeared before the Medical Board, Victoria Hospital, Bengaluru which board, after carefully examining the petitioner clinically and after verifying all the previous medical records, has opined as under ;
"Medical Board of Victoria Hospital, Bangalore after careful clinical examination and verification of previous records is of the 8 opinion that Mr. Abhinandan V. aged about 30 years has taken leave for joint pains, jaundice and Urinary Infection from 16.02.2015 to 30.06.2015. Old records are available. After going through the records and examination he could have had viral arthralgia with urinary tract infection and viral hepatitis. He is advised to continue treatment from his regular doctor. At present he is fit for the duty of staff nurse.
Hence Medical Board, Victoria Hospital, Bangalore recommends to consider above said period as leave on medical grounds."
(emphasis supplied) Said report was submitted by the petitioner along with his duty report on 20.08.2015 at Annexure 'F'. However, petitioner was not taken on duty and as such he got issued legal notice on 04.11.2015 - Annexure 'G' through his advocate and thereafter 2nd respondent replied to the said notice on 17.11.2015 vide Annexure 'H' and called upon the petitioner to appear before the Medical Board once again for being examined since it was not satisfied with the 1st report of the Medical Board. 9 As per the direction issued by 2nd respondent, petitioner again appeared before the 2nd Medical Board on 04.02.2016 for clinical examination and after verifying the records, the Medical Board reiterated its earlier reports and recommended that period of absence from 16.02.2015 to 30.06.2015 be treated as leave on medical grounds as per Annexure 'J'. Despite second medical report of the Medical Board furnished by petitioner for reasons best known, 2nd respondent did not take the petitioner on duty and as such, he is before this court.
7. As noticed herein above, when the Medical Board constituted by the 2nd respondent themselves before whom the petitioner has appeared having certified that petitioner's absence for the aforesaid period was on account of the ailment/disease as indicated in the reports of the respective Medical Boards, 2nd respondent was not justified in refusing to take petitioner to duty. As such this court is of the considered view that the objections raised by the 2nd respondent which has been 10 reiterated by the learned counsel appearing for the 2nd respondent cannot be accepted and it stands rejected.
8. For the reasons aforestated, I proceed to pass the following ;
ORDER
(i) Writ Petition is hereby allowed.
(ii) Direction is issued to the 2nd respondent in
the nature of writ of mandamus to take the petitioner to duty forthwith and the petitioner shall appear in person before the 2nd respondent for reporting to duty by submitting a duty report forthwith.
(iii) The respondents would be at liberty to examine the records furnished by the petitioner and take a decision with regard to treating the period of leave of absence in accordance with law and as provided under KCS Rules and in the event of any adverse 11 order is issued by 2nd respondent, petitioner would be at liberty to challenge the same before the appropriate authority for such reliefs as he may be advised.
(iv) No order as to costs.
Ordered accordingly.
SD/-
JUDGE snc