The Karnataka High Court allowed a writ petition filed under Articles 226 and 227 of the Constitution of India, praying to set aside the inquiry report as the inquiry has not been done in accordance with the procedure laid down, and is in violation of rule 12 of the K.C.S.(CCA) rules, 1957. The Court observed that in a case where the order of appointment itself permitted a doctor to practice outside the place of her main employment till objections were raised, it is clear that, that particular doctor was granted permission to practice outside the place where the Institute was situated.
Brief Facts:
The petitioner was appointed as a Professor and the Head of the Department of Microbiology at Mandya Institute of Medical Sciences, on 17.01.2006. The petitioner could not undertake outside professional work unless she had obtained the permission of the Director. On 01.02.2006, the Director, who had appointed the petitioner, granted permission to the petitioner to practice outside the Institute. The petitioner was specifically granted permission as per her own request to work outside Mandya after working hours of the Institute, without hampering the work of the Institute and it is stated that she should stop working in the future if any objections were raised in this regard.
On 31.08.2009, a show-cause notice was issued to her stating that she was drawing Non-Practicing Allowance right from the date of her joining the Institute which was against the Rules. An order came to be passed directing that her Non-Practicing Allowance should be withheld.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that once there was a provision in the Appointment Order itself that granted permission to the petitioner to practice outside the Institute and once this permission was granted, the question of the petitioner committing an illegality and acting in contravention of the Rules would not arise and therefore, drawing up of Non-Practicing Allowance on this score cannot be found fault with.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that once the petitioner admitted that she had practiced outside the Institute, her drawing up of Non-Practicing Allowance would be improper, and therefore, the order impugned cannot be found fault with.
The Court noted that a Non-Practicing Allowance is granted if a doctor sacrifices the opportunity to earn extra income and therefore, if a doctor does practice apart from his/her main employment with an Institute, consequently, he/she would not be entitled to draw a Non-Practicing Allowance. The Cout observed that in a case where the order of appointment itself permitted a doctor to practice outside the place of her main employment till objections were raised, it is clear that, that particular doctor was granted permission to practice outside the place where the Institute was situated.
The Court said that in this case, the permission granted to the petitioner was to practice outside Mandya and it is, therefore, clear that she was not permitted to practice within Mandya—the place of her employment. Consequently, her drawing of the Non-Practicing Allowance cannot be found fault with and there cannot be an order directing recovery of the said Non-Practicing Allowance drawn by the petitioner.
The decision of the Court:
The Karnataka High Court, allowing the petition, held that the impugned orders are quashed and the respondents are directed to return whatever sums that were recovered from the petitioner as Non-Practicing Allowance for the period from 2006 to 2009, within two months from the date of receipt of a copy of this order.
Case Title: B. Sumangala v The State of Karnataka & Ors.
Coram: Hon’ble Justice N S Sanjay Gowda
Case no.: WRIT PETITION NO. 6372 OF 2012 (S-RES)
Advocate for the Petitioner: Mr. K. Sreeram
Advocate for the Respondents: Ms. Prathibha R.K. and Ms. Sumana Baliga
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