IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 OP.No. 7589 of 2003(C) --------------------------------- PETITIONER: --------------------- DR.C.SASIDHARAN NAIR, ASSISTANT PROFESSOR ANAESTHESIA (REMOVED), MEDICAL COLLEGE, ALAPPUZHA, RESIDING AT OTTALIL RAECHAL VILLA, MATTAM NORTH, THATTARAMBALAM P.O., MAVELIKKARA. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU CHEMPAZHANTHIYIL SRI.MANOJ RAMASWAMY SMT.VIVEEJA RAVEENDRAN RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, HEALTH & FAMILY WELFARE (SPECIAL) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. T.B. RAMANI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/07/2007, THE COURT ON 18/01/2008 DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.13289/2003, I.A.NO.9886/2004, I.A.NO.7522/2005 & I.A.NO.11227/2006 IN O.P.NO.7589/2003 C DISMISSED 18/01/2008 SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF G.O.(RT) NO.1661/92/H*FWD DTD. 6/07/1992. EXT.P2: COPY OF ORDER NO.E1/4396/92/TDMC DTD. 10/06/192 OF THE VICE-PRINCIPAL T.D.MEDICAL COLLEGE, ALAPPUZHA. EXT.P3: COPY OF ORDER G.O.(RT) NO.216/95/H&FWD DTD. 21/01/1995. EXT.P4: COPY OF THE LETTER NO.F4-20314/95/DME DTD. 27/09/1995 OF THE 2ND RESPONDENT. EXT.P5: COPY OF THE REPRESENTATION DTD.11/10/1995 TO THE 2ND RESPONDENT. EXT.P6: COPY OF MEMO NO.64073/SPL. 2/95/H&FWD DTD. 26/02/1996 OF THE 1ST RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DTD. 10/05/1996 TO THE 1ST RESPONDENT. EXT.P8: COPY OF G.O.(RT) NO.2915/99/H&FWD DTD. 26/10/1999. EXT.P9: COPY OF G.O.(MS) NO.295/2000/H&FWD DTD. 9/11/2000. EXT.P10: COPY OF THE REPRESENTATION DTD. 7/04/2001 TO THE 1ST RESPONDENT. EXT.P11: COPY OF THE REPRESENTATION DTD. 6/06/2001 TO THE 1ST RESPONDENT. Kss ..2/- ...2..... O.P.NO.7589/2003 C EXT.P12: COPY OF THE JUDGMENT DTD. 3/04/2002 IN O.P.NO.8887/2002 OF THIS HON'BLE HIGH COURT. EXT.P13: COPY OF THE ARGUMENT NOTE FILED BY THE PETITIONER ON 31/07/2002. EXT.P14: COPY OF G.O.(RT) NO.467/2003/H&FWD DTD. 11/2/2003. 1ST RESPONDENT'S EXHIBITS: EXT.R1(B): GOVT.LTR.NO.64073/SP12/95 F&FWD DTD. 15/12/95. EXT.R1(C): APPLICATION FOR LEAVE DTD. 1/07/96. EXT.R1(D): REPRESENTATION OF THE PETITIONER DTD. 4/04/2000. /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = O.P.No.7589 of 2003-C = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of January, 2008. JUDGMENT 1.Petitioner while working as Assistant Professor in Anesthesia, Medical College Hospital, Alappuzha, was granted leave without allowance for two years in terms of Appendix XII-A to Part I Kerala Service Rules, hereinafter referred to as the “KSR”. By Ext.P3 dated 21.1.1995, he was given another lap of such leave from 10.7.1994. However, by Ext.P4 dated 27.9.1995, the petitioner was directed to report for duty following the cancellation of leave as per G.O. (Rt).No.3380/95/H&FWD. He made Ext.P5 request stating that the matter may be taken with the Government and he may be permitted to continue on leave granted as per Ext.P3. Though he also OP7589/2003 -: 2 :- stated in it that he was not served with a copy of G.O.(Rt).No.3380/95/H&FWD, Ext.P5 was essentially a plea against the decision taken in G.O.(Rt).No.3380/95/H&FWD and the consequential direction in Ext.P4, to report for duty. That request was not acceded to. Yet, he continued to remain absent by not reporting for duty. 2.Going by the counter affidavit, Ext.P5 was answered by the Government rejecting the request for permission to continue on leave. This is communicated as per Ext.R1(b). What followed thereafter, was issuance of Ext.P6 memo of charges with the following statement of allegations: “Dr.C.Sasidharan Nair was granted extension of leave without allowances as per G.O.(Rt).No.216/95/H&FWD dated 21.1.1995 for two years from 10.7.1995 and the same has been cancelled by government vide G.O.(Rt). No.3380/95/H&FWD dated 21.8.1995. OP7589/2003 -: 3 :- He was directed to report for duty as per this office letter No.F4/20315/95/DME dated 27.09.1995. As per representation dated 11.10.1995 he has requested to permit him to continue on leave. The same is rejected by government. Therefore he is unauthorisedly absenting from duty. His action in having absented from duty unauthorisedly with effect from 1.12.1995 is highly irregular which warrant disciplinary action. Hence the charges”. 3.The petitioner submitted Ext.P7 reply to Ext.P6 memo of charges. His explanation was not found to be acceptable and Ext.P8 Government Order was issued initiating enquiry under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, hereinafter referred to as the “CC&A Rules”. It appears from Ext.P9 Government Order that the petitioner appeared before the enquiry officer on 27.2.1997, and requested for further time to defend the case and that he did not respond to the further opportunities on 20.4.1997 and 5.9.1997. Under OP7589/2003 -: 4 :- such circumstances, the Government proceeded to invoke Rule 18 (ii) of CC&A Rules and dispense with the enquiry under Rule 15 of those Rules. The Government accordingly took a provisional decision to remove the petitioner from service with effect from 1.12.1995 on the ground of unauthorised absence. Show cause notice to that effect was issued. The explanation given by the petitioner was found to be not satisfactory. The Government accordingly took up the matter with the Kerala Public Service Commission for advice, to affirm the provisional decision. That was agreed to by the Commission. However, on further examination, the Government found that the petitioner had appeared before the enquiry officer and therefore, a report on the basis of the evidence is required. By that time, the officer who conducted the enquiry proceedings had retired and the Joint Director of Medical Education was appointed as the enquiry officer, as per G.O.(Rt).No.2195/95/H&FWD dated 26.10.1999. Though he acknowledged notice of that OP7589/2003 -: 5 :- enquiry officer, the petitioner did not appear on 14.12.1999. Another opportunity was given on 4.4.2000, on which date, he appeared. His statement before the enquiry officer on that day was that he was then working in a private hospital and his contractual obligation to serve that hospital was not over. Accordingly, the enquiry officer concluded that the petitioner's action of having absented from duty from 1.12.1995 and having entered into a contract with the private hospital without getting Government sanction are highly illegal. On the basis of that report, the provisional decision of the Government to remove the petitioner from service is issued as per Ext.P9. 4.Petitioner made Ext.P10, essentially an application for review, by stating that he was served with a copy of Ext.P9 Government Order only on 17.3.2001. By Ext.P11, he requested for a copy of the enquiry report. Ext.P12 judgment issued by this Court directed the Government to OP7589/2003 -: 6 :- consider Ext.P11. He submitted Ext.P13 notes of arguments. He was given an opportunity of making oral submissions. The Government concluded that the decision to terminate the service of the petitioner is sustainable. 5.From what has been stated above, it is clear that the petitioner disobeyed the directions contained in the statutory rules, namely, those in Appendix XII-A to rejoin duty as and when the period of leave granted in terms of those rules expired. The Government have the undisputed power to recall a person who has proceeded on leave. The Government had taken the decision to cancel the leave granted under Appendix XII-A and it was in consonance with such decision of the Government that the petitioner was directed to rejoin. The stand taken by him that his contract with a private hospital would expire only at a later point of time is only an assertion of his individual rights against a larger public interest to discharge the duties and OP7589/2003 -: 7 :- responsibilities attached to the public office of a doctor in Government service. Under such circumstances, on the undisputed facts, the petitioner cannot make out a grievance. In the result, the writ petition fails. The same is accordingly dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/ OP7589/2003 -: 8 :- THOTTATHIL B. RADHAKRISHNAN,J. = = = = = = = = = = = = = = = = = O.P.No.7589 of 2003-C = = = = = = = = = = = = = = = = = JUDGMENT Dated: 18th January, 2008.