Dr. Jayakumar Karunakaran v. Sree Chitra Tirunal Institute for Medical Sciences and Technology (SCTIMST) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **OP (CAT).No. 2 of 2019** **OA 180/2018 of CENTRAL ADMINISTRATIVE TRIBUNAL,** ## **ERNAKULAM BENCH** ## **PETITIONER/APPLICANT:** **DR. JAYAKUMAR KARUNAKARAN AGED 62 YEARS S/O. LATE KARUNAKARAN, SENIOR GRADE PROFESSOR AND HEAD OF DEPARTMENT OF CARDIOVASCULAR AND THORACIC SURGERY, SREE CHITRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011, RESIDING AT CASTLE, 2/675 (3), RAJIV GANDHI NAGAR, THIRUVANANTHAPURAM - 695011.** **BY ADVS. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.H.VISHNUDAS** ## **RESPONDENTS/RESPONDENTS:** **1 SREE CHITRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY (SCTIMST) AND TECHNOLOGY (SCTIMST), REPRESENTED BY ITS DIRECTOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011.** - **2 GOVERNING BODY OF SREE CHITRA THIRUNAL** OP (CAT).No. 2 of 2019 -2- **FOR MEDICAL SCIENCES AND TECHNOLOGY, REPRESENTED BY ITS CHAIRMAN AND PRESIDENT OF THE INSTITUTE, SREE CHITRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011.** **3 DIRECTOR, SREE CHITRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011.** **4 DR. BAIJU S. DHARAN, PROFESSOR, DEPARTMENT OF CARDIO VASCULAR AND THORACIC SURGERY, SREE CHITRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011.** **R1 - R2 , SRI.T.R.RAVI, SC** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 04.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP (CAT).No. 2 of 2019 -3- ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** This original petition is directed against the interim order dated 31.12.2018 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.1052 of 2018. The petitioner who is the applicant therein, is aggrieved by the said order. In fact, he moved the original application mainly seeking quashment of Annexure A5 order dated 2.4.2018 and also for consequential appropriate direction. By way of an interim relief, the applicant/the petitioner herein sought for stay of operation of Annexure A6 order dated 12.12.2018, whereby the 4[th] respondent was nominated as the Acting HoD of Cardiovascular and Thoracic Surgery Department and to allow him to continue in the post of Senior Professor and Head of the said Department, pending the original application. The impugned interim -4- OP (CAT).No. 2 of 2019 order would reveal that the issue of the said interim relief was considered by the Tribunal and it declined to pass an interim relief in favour of the petitioner and at the same time, made the action of the respondents in making in such postings, subject to the final outcome of the original application. It is in the said circumstances that the captioned original petition has been filed. 2. Heard the learned counsel for the petitioner as also the learned counsel appearing for respondents 1 to 3. 3. The learned Senior Counsel appearing for the petitioner, at the outset, submitted that a bare perusal of the impugned order would reveal that the Tribunal had failed to comply with the provisions under Section 19(3) of the Kerala Administrative Tribunal Act, 1985 (for brevity 'the Act'). For a proper appreciation of the said contention, it is only apropos to extract the said provision and it reads thus: OP (CAT).No. 2 of 2019 -5- “ 19. **Applications to Tribunals** .(3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.” 4. The learned Senior Counsel contended that on receipt of an application, it is obligatory on the part of the Tribunal to apply its mind and on such application if it is satisfied that it is a fit case for adjudication or trial by it, it should admit such application. Needless to say, on such consideration, if it is not satisfied, then the application must be summarily rejected after recording the reasons. The contention of the petitioner is that the impugned order does not disclose whether the application is admitted or not. Without passing an order on the question of admission of the original application, the Tribunal, in deviation of the provisions of Section 19(3) of the Act, went on to consider the question of the feasibility of granting interim relief, it is OP (CAT).No. 2 of 2019 -6- submitted. For appreciating the aforesaid contentions, it is necessary to refer to Section 22 as also Section 24 of the Act. They read thus:- “ **22. Procedure and powers of Tribunals** .-(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. (2) A Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and [after hearing such oral arguments as may be advanced.] (3) A Tribunal shall have, for the purposes of [discharging its functions under this Act], the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence of affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) requisitioning any public record or document or copy of such record or document from any office; OP (CAT).No. 2 of 2019 -7- (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing a representation for default or deciding it _ex parte_ (h) setting aside any order of dismissal of any representation for default or any order passed by it _ex parte_ ; and (i) any other matter which may be prescribed by the Central Government. ## xxxxx **24. Conditions as to making of interim orders** .- Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless- (a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and (b) opportunity is given to such party to be heard in the matter: Provided that a Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have OP (CAT).No. 2 of 2019 -8- been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order. 5. A mere glance at Section 22 of the Act would reveal that the Tribunal is not bound by the procedures laid down in the Code of Civil Procedure except the provisions made applicable by the Act. But at the same time, by virtue of Section 22, it should be guided by the principles of natural justice and subject to the other provisions of the Act and of any Rules made by the Central Government, the Tribunal is empowered to regulate its own procedures including fixing of places and time of its enquiry and deciding whether to sit in public or in private. Thus, it is evident that in respect of a matter which is not regulated by the provisions of the Act or by the Rules made by the Central Government, the Tribunal is empowered to regulate its own procedures in the matter of consideration of an original application. Section 24 OP (CAT).No. 2 of 2019 -9- would reveal that notwithstanding anything contained in any other provisions of the Act or in any other law for the time being in force, the Tribunal shall not pass interim order (whether by way of injunction or stay or in any other manner) in any proceedings relating to an application unless further conditions made thereunder are specifically satisfied. We may hasten to act that we shall not be understood to have held that merely because an original application is admitted on getting satisfied regarding that the application concerned is a fit case for adjudication or trial, the Tribunal is under an obligation to pass an interim order. 6. Reverting to the question whether there is compliance with the provisions under Section 19(3), we are of the view that it is only appropriate to scan the impugned order. True that, a scrutiny of the same would reveal that OP (CAT).No. 2 of 2019 -10- nowhere in the order the Tribunal had employed any specific expression indicating that it admitted the original application. But at the same time, the mere failure to employ the expression 'admit' cannot vitiate an order of an Administrative Tribunal on the ground of non-compliance with the provisions under Section 19(3). The order has to be looked into in its entirety. The order carries a caption as follows:- “Order on interim relief.” Further, the opening sentence of the impugned order runs as follows: The issue of interim relief was considered today. The fact that the applicant in the O.A/the petitioner herein is aggrieved by being removed from the position of Head of Department as per Annexure A6 order, and his place being given to the fourth respondent Dr.Baiju S. Dharan, were also duly taken note of by the Tribunal, as is discernible from the OP (CAT).No. 2 of 2019 -11- impugned order. The Tribunal had also taken note of the fact that the applicant had been granted the position of the Head of the Department as per Annexure A2 order dated 27.9.2005 and going by the seniority in Annexure A3 is No.1. The issuance of Annexure A6 is admittedly the impact of implementation of a rotation policy approved by the governing body. The guidelines for the same have been framed in Annexure A5. The interim order also reveals that on behalf of respondents 1 to 3, Sri.T.R.Ravi, learned counsel entered appearance and submitted that the governing body which is the highest decision making authority in the first respondent organisation, had recommended for introduction of Rotating Head policy as early as in the year 2015. Going by the policy, the Head of the Department is to be rotated when the incumbent holding the same completes three year term or when she/he superannuates, whichever is earlier. -12- OP (CAT).No. 2 of 2019 The sum and substance of the contention made by the said counsel before the Tribunal, as is evident from the impugned order is that the 4th respondent is the second senior most Professor in the Department of Cardiovascular and Thoracic Surgery and that the petitioner/applicant had been functioning as Head of the Department for the last 13 years and therefore, in terms of the policy, he was liable to be displaced and the order impugned before the Tribunal was passed in the said circumstances. 7. The learned Senior Counsel appearing for the petitioner, at this juncture submitted that the 4th respondent is not actually an Associate Professor and that is why he was nominated only as Acting HoD. But at the same time, the fact that he is the second senior most personnel in the Department of Cardiovascular and Thoracic Surgery cannot be disputed. Taking into account the said submission, the OP (CAT).No. 2 of 2019 -13- Tribunal held that it found no reason to grant any interim relief at the present stage and at the same time, made the impugned action on the part of the respondents subject to final outcome of the original application. It is also to be noted that after holding so, the Tribunal proceeded to issue notice to respondent No.4 and ordered to post the matter on 21.1.2019. It is thus obvious that out of the four respondents in the original application, Sri.T.R.Ravi, the learned counsel entered on behalf of appearance respondents 1 to 3 and in respect of the 4th respondent for whom there was no appearance at that stage, the Tribunal had ordered notice. The question is whether the cumulative effect of making the impugned action subject to the final outcome of the original application and then issuing notice to the 4th respondent after taking note of appearance for respondents 1 to 3, could be taken as an action admitting the OP (CAT).No. 2 of 2019 -14- original application. In the said circumstances, we do not find any reason to hold otherwise. We are of the considered view that the interim order passed by the Tribunal, virtually reflects the fact that after applying the mind the Tribunal, virtually admitted the original application lest it would not have ordered that the impugned action would be subject to the final outcome of the original application. Indisputably, issuance of notice to the 4th respondent was ordered with a view to take a decision in the original application, after hearing the 4th respondent whose appointment is called in question in the original application. In such circumstances, in the case on hand, we do not find any reason to hold that there is non-compliance with the provisions under Section 19(3) of the Act. 8. We will, now consider the tenability of the contentions raised by the petitioner to mount challenge -15- OP (CAT).No. 2 of 2019 against Ext.P2, the interim order passed by the Tribunal in the aforesaid original application. The nature of the pleadings in the original application as also the original petition would reveal that the grievance of the petitioner is against Annexure A5 order dated 2.4.2018. The nub of the contentions is that Annexure A5 is ultra vires the Sree Chitra Tirunal Institute for Medical Sciences and Technology, Trivandrum Act, 1980 (No.52 of 1980). Evidently, the petitioner has taken various grounds in support of his contention that the 3rd respondent had stepped beyond his power in formulating Annexure A5 and therefore, according to the learned senior counsel, the fact that the governing body, the 2nd respondent approved it, would not validate the same or legitimize it. On a careful scanning of the contentions, both in the original application and in the original petition, we are of the view that, it is the main issue -16- OP (CAT).No. 2 of 2019 to be considered and decided in the original application. There can be no doubt that this Court cannot make any observation or enter into any finding on that pivotal issue which is ultimately, to be decided in the original application, at the first instance. The fact that as per the impugned order, the Tribunal made the impugned action viz; the nomination and the subsequent posting of the 4th respondent as Acting HoD of the Department of Cardiovascular and Thoracic Surgery subject to the final outcome of the original application itself would indicate that the Tribunal is destined to consider the original application on merits, essentially to consider the challenge against Annexure A5 on the ground of it being ultra vires the Sree Chitra Tirunal Institute for Medical Sciences and Technology, Trivandrum Act, 1980 (No.52 of 1980), as well. 9. In the said circumstances, the question is whether OP (CAT).No. 2 of 2019 -17- merely because the petitioner mounts challenge against Annexure A5, ignoring the disinclination shown by the Tribunal to grant an interim relief as sought for by the petitioner, this Court should grant stay of operation of Annexure A6 order so as to enable the applicant to continue in the post of Senior Professor and head of Department of Cardiovascular and Thoracic Surgery in the first respondent institution pending the original application. 10. Mounting challenge against Ext.P2 order, whereby the interim relief was declined, on the ground that the Tribunal had failed to consider the question of interim relief in terms of the principles laid down by the Hon'ble Apex Court in the matter of consideration of an interim relief, the learned Senior Counsel relied on the decisions of the Hon'ble Apex Court in **Morgan Stanley Mutual Fund** v. **Kartick Das ((1994) 4 SCC 225)** , **Bombay Dyeing & Manufacturing Co.** OP (CAT).No. 2 of 2019 -18- **Ltd.** v. **Bombay Environmental Action Group and Others** **((2005) 5 SCC 61)** and **State of Haryana and another** v. **Saraswati Sugar Mills Limited and others ((2007) 15 SCC 668)** . In paragraph 36 of the decision in **Morgan Stanley Mutual Fund** case the Hon'ble Apex Court after making an observation to the effect that an _ex parte_ injunction could be granted only under exceptional circumstances laid down the following broad principles on that issue:- “ **36** . As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are- (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve; (c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (d) the court will consider whether the plaintiff OP (CAT).No. 2 of 2019 -19- had acquiesced for sometime and in such circumstances it will not grant ex parte injunction; (e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application. (f) even if granted, the ex parte injunction would be for a limited period of time. (g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.” Paragraph 22 of the decision in **Bombay Dyeing & Manufacturing Co. Ltd.** case (supra) was also relied on by the petitioner to contend that the court is duty bound to consider the question as regards existence of a prima facie case, balance of convenience as also the question as to whether the writ petitioners would suffer an irreparable injury, if the injunction sought for is refused. Evidently, the Apex Court rendered the said decision after referring to its earlier decision in case **Morgan Stanley Mutual Fund** (supra). Paragraph 9 of the decision in **Saraswati Sugar** OP (CAT).No. 2 of 2019 -20- **Mills Limited** case (supra) was also referred to canvass the position that when an interim prayer is sought for, it is incumbent on the Court to consider the issues to satisfy itself as to whether the order sought to be stayed was passed without jurisdiction or whether it was based on an unreasonable appreciation of the facts. In the light of the decisions referred above, the learned Senior Counsel contended that a bare perusal of the impugned order would reveal total non-application of mind by the Tribunal while considering the question whether the petitioner is entitled to get the interim relief, as sought for. It is the contention that there is total absence of any consideration as regards existence of a prima case, balance of convenience as also the question as to whether an irreparable injury likely to be caused in case of refusal to pass an interim order, in the order impugned. It is also the contention that when the OP (CAT).No. 2 of 2019 -21- specific case of the petitioner is that Annexure-A5 was issued without any jurisdiction and respondents 2 and 3 virtually went beyond their powers in issuing the same the Tribunal ought to have considered it for the purpose of considering the interim relief of staying the implementation of the said order, especially taking into account the fact that the petitioner has been continuing in the said post for the past 13 years or thereabouts. True that, in the decisions referred supra, the Hon'ble Apex Court laid down the principles to be considered while considering an interim prayer. Certainly, the factors like existence of prima facie case, balance of convenience, irreparable injury likely to be caused in case of refusal of the interim prayer are matters for consideration. In the case on hand, the order nominating the 4[th] respondent as Acting HOD in the Department of Cardio Vascular Thoracic Surgery was issued pursuant to the OP (CAT).No. 2 of 2019 -22- introduction of `Rotating Headship Policy'. The contention of the petitioner is that it was, in fact, introduced only in 2018 and at the same time, the contention of the official respondents viz., respondents 1 to 3 is that it was recommended and introduced in the year 2015. In that context, the learned counsel for respondents 1 to 3 drew our attention to Annexure A4 which is the minutes of the 94[th] Governing Body Meeting held at 3 p.m. on 5[th] November, 2015. The relevant recital therein reads thus:- “.....In this context, the GB recommended implementation of the rotating headship policy that was successfully implemented in institutions such as NIMHANS Bangalore and to form a committee to recommend the guidelines. The current HODs can be on a 3-year term or until their superannuation, whichever is earlier, and will be followed by rotation of headship in the respective department if eligible faculty are available and as per guidelines.” True that, the validity of Annexure A5 is under challenge in the Original Application and as noticed hereinbefore, that exactly is the question to be decided in the Original Petition OP (CAT).No. 2 of 2019 -23- based on the contention that it is _ultra vires_ the Sree Chitra Thirunal Institute for Medical Sciences & Technology, Trivandrum Act, 1980. But, at the same time, merely because a challenge is made against the same, at this stage one cannot enter into a finding that Annexure A5 is invalid on the ground of being _ultra vires_ the Sree Chitra Thirunal Institute for Medical Sciences & Technology, Trivandrum Act, 1980. That essentially is the core issue to be decided. That apart, as can be seen from the impugned order itself, going by the case of respondents 1 to 3, the rotation policy was introduced as early as in the year 2015. But, at the same time, the case of the petitioner is that it was introduced only in 2018. When that factual issue under challenge is a disputatious one and to be resolved by the Tribunal, when an order is passed based on the rotation policy which was allegedly introduced in the year 2015 and taking into account the fact OP (CAT).No. 2 of 2019 -24- that the petitioner/applicant had been functioning as Head of the Department for the past 13 years or thereabouts and going by the rotation policy he is liable to be displaced by the second senior most personnel in the department, we are of the considered view that without finally deciding the questions referred hereinbefore, Annexure A5 cannot be stayed so as to disable the 4[th] respondent to assume the post and in other words, so as to enable the petitioner to continue in the service. If the contention that, pursuant to the recommendation for introduction of the rotation policy in the year 2015 the petitioner was permitted to be continued for three years despite the fact that he had been continuing in the post for about more than 9 years, we are of the view that the Tribunal cannot be found fault with in declining to grant an interim order as sought for by the petitioner as going by the afore-extracted portion from Annexure-A4 OP (CAT).No. 2 of 2019 -25- dated 5.11.2015 the current HODs should be permitted to continue for a 3 year term or until superannuation, whichever is earlier. At the same time, the impugned order would reveal that after taking into account the nature of the challenge made by the petitioner against Annexure A5 the impugned action of the respondents was made subject to the final outcome of the Original Application. We have no hesitation to hold that by such an order the Tribunal had virtually, safeguarded the interest of the petitioner. In view of the nature of the issues posed for consideration in the Original Application we can only hold that the order passed by the Tribunal, virtually refusing to grant interim order cannot be said to be infected with any illegality or perversity or infirmity, warranting an interference. We make it clear that we have not made any observation touching the merits of the rival contentions. OP (CAT).No. 2 of 2019 -26- In the light of the aforesaid discussion, this original petition must fail and consequentially, it is dismissed. Sd/- **C.T.RAVIKUMAR JUDGE sd/V.G.ARUN JUDGE** scl/TKS OP (CAT).No. 2 of 2019 -27- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE ORIGINAL APPLICATION NO. OA NO.180/01052/2018 DATED 20/12/2018.** **EXHIBIT P2 PHOTOCOPY OF THE INTERIM ORDER DATED 31/12/2018 IN OA NO.180/01052/2018 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.**