IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 WA.No. 1521 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.12545/2003 Dated 11/02/2006 .................... APPELLANTS/ RESPONDENTS 1 TO 4 IN THE OP ------------------------------------------ 1. THE DIVISIONAL FOREST OFFICER, KALLARVALI TEAK PLANTATION DIVISION, ACHANKOVIL. 2. ASSISTANT CONSERVATOR OF FOREST SOCIAL FORESTRY DIVISION, THIRUVANANTHAPURAM. 3. THE CHIEF FOREST CONSERVATOR, FOREST DEPARTMENT, THIRUVANANTHAPURAM. 4. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. N.MANOJ KUMAR RESPONDENT/PETITIONER IN THE OP ----------------------------------- SRI.B.SUKUMARAN NAIR, S/O.K.BALAKRISHNA PILLAI, RESIDING AT G.S.VIHAR, ALANTHARA,VENJARAMOOD P.O., THIRUVANANTHAPURAM. ADV. SRI.P.A.ABDUL JABBAR FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. --------------------------- W.A. No. 1521 OF 2007 -------------------------- Dated this the 12th day of March, 2010 J U D G M E N T Balakrishnan Nair, J. The respondents in the original petition are the appellants. Respondent herein was the writ petitioner. The brief facts of the case are the following. The respondent/petitioner was appointed as Forest Guard in Kollam district and joined duty on 16.12.1977. While so, on the allegation of dereliction of duty, he was suspended from service on 5.6.1981. Later, he was reinstated in service, without prejudice to the disciplinary proceedings against him, on 14.1.1982. While working as Forest Guard in Konni, he applied for casual leave for two days by application dated 24.2.1982. Thereafter, he applied for leave on medical ground from 26.2.1982 to 1.7.1982. One after another, he filed five applications for leave to cover the above said period. But, after 1.7.1982, there was no information about him. He neither joined duty nor applied for leave. So the Divisional Forest Officer issued show cause notice to him on 17.12.1982 calling upon him to explain why disciplinary action should not be taken against him. Though the said notice was acknowledged on 27.12.1982, he did not file any reply. Therefore, a memo of charges was issued to him on 18.9.1984, which was received by him on 27.9.1984. WA No.1521/07 2 Later, on 30.9.1984, he produced medical certificate dated 2.7.1982 from an Ayurveda Doctor showing that he required prolonged treatment. Thereupon, he was called upon to produce medical certificate from a Civil Surgeon under the Government. There was no response. He was again called upon on two occasions, to produce the medical certificate in support of his applications for leave. But he did not produce the same. Finally on 30.4.1985, he appeared before the Divisional Forest Officer for personal hearing. After taking into account his submissions and the materials on record, the Divisional Forest Officer terminated him from service on 3.7.1985. The respondent appealed before the Conservator of Forest. The appellate authority allowed the appeal on 5.12.1989 and directed the disciplinary authority to conduct the proceedings denovo from the stage of issuing show cause notice to him. Thereafter a fresh memo of charges was served on him on 13.3.1990. He filed reply to the same. He was personally heard on 15.6.1990. At that time, he produced a medical certificate showing that he has become medically fit to join duty. The disciplinary authority having regard to the facts of the case, by Ext.P1 order dated 30.10.1990 closed the disciplinary proceedings against him. He was permitted to join duty. But, a condition was imposed to the effect that the period he was out of service from 24.2.1982 to 26.11.1990 will be treated as eligible leave. Pursuant to the said order, he joined duty on 26.11.1990. WA No.1521/07 3 After the lapse of about one year, he submitted Ext.P2 representation claiming that the period of his absence may be treated as either leave on medical ground or as duty for all purposes. The Government considered the said representation and rejected it by Ext.P3 order dated 18.11.2002. Challenging Exts.P1 and P2, the original petition was filed. 2. Appellants/respondents resisted the prayers in the original petition by filing a counter affidavit. The learned single Judge, after hearing both sides, disposed of the writ petition directing to treat the period he was absent from service as leave on medical ground, so that he can get pensionary benefits for the said period. Feeling aggrieved by the said direction of the learned Single Judge, this writ appeal is preferred. 3. Heard the leaned counsel appearing on both sides. It is evident from the records that the respondent/petitioner remained absent from duty without applying for leave with medical certificate or otherwise. It means, the absence was clearly unauthorised. But, the disciplinary authority took a lenient view and by Ext.P1 order he was allowed to rejoin duty, subject to the stipulation that the period he was out of service will be treated as eligible leave. 4. We notice the learned single Judge has not quashed that order. Its validity was also not considered but simply directed to treat the period as leave on medical ground. Leave on medical ground can be granted only WA No.1521/07 4 if leave is applied for with proper medical certificate. In the absence of such a leave application supported by medical certificate, the respondent/petitioner is not entitled to get leave on medical ground. If that be so, this Court was not justified in issuing a direction to grant him leave on medical ground. The said direction runs counter to the rules and orders governing grant of leave. The appellants/respondents do not have any duty to grant him leave in the absence of proper and timely application supported by medical certificate. So the judgment under appeal cannot be sustained. Accordingly, it is reversed and the original petition is dismissed. The writ appeal is allowed as above. K.BALAKRISHNAN NAIR, (JUDGE ) P.N.RAVINDRAN, (JUDGE) vps WA No.1521/07 5 K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. --------------------------- W.A. No. 1521 OF 2007 -------------------------- Dated this the 12th day of March, 2010 J U D G M E N T Balakrishnan Nair, J. The respondents in the original petition are the appellants. Respondent herein was the writ petitioner. The brief facts of the case are the following. The respondent/petitioner was appointed as Forest Guard in Kollam district and joined duty on 16.12.1977. While so, on the allegation of dereliction of duty, he was suspended from service on 5.6.1981. Later, he was reinstated in service without prejudice to the disciplinary proceedings against him on 14.1.1982. While working as Forest Guard in WA No.1521/07 6 Konni, he applied for casual leave of two days by application dated 24.2.1982. Thereafter, he applied for leave on medical ground from 26.2.1982 to 1.7.1982. One after another, he filed five applications for leave to cover the above said period. But, after 1.7.1982, there was no information about him. He neither joined duty nor applied for leave. So the Divisional Forest Officer issued show cause notice to him on 17.12.1982 calling upon him to explain why disciplinary action should not be taken against him. Though the said notice was acknowledged on 27.12.1982, he did not file any reply. Therefore, a memo of charges was issued to him on 18.9.1984, which was received by him on 27.9.1984. Later, on 30.9.1984, he produced medical certificate dated 2.7.1982 from an Ayurveda Doctor showing that he required prolonged treatment. Thereupon, he was called upon to produce medical certificate from a Civil Surgeon under the Government. There was no response. He was again called upon on two occasions too, to produce the medical certificate. But he did not produce the same. Finally on 30.4.1985, he appeared before the Divisional Forest Officer for personal hearing. After taking into account his submissions, the Divisional Forest Officer terminated him from service on 3.7.1985. The respondent appealed before the Conservator of Forest. The appellate authority allowed the appeal on 5.12.1989 and directed the disciplinary authority to call the proceedings denovo from the list of issuing show cause WA No.1521/07 7 notice to him. Thereafter a fresh memo of charges was served on him on 13.3.1990. He filed reply to the same. He was personally heard on 15.6.1990. At that time, he produced a medical certificate showing that he has become medically fit to join duty. The disciplinary authority having regard to the facts of the case, by Ext.P1 order dated 30.10.1990 closed the disciplinary proceedings against him. He was permitted to join duty. But, a condition was imposed to the effect that the period he was out of service from 24.2.1982 to 26.11.1990 will be treated as eligible leave. Pursuant to the said order, he joined duty on 26.11.1990. After a lapse of about one year, he submitted Ext.P2 representation claiming that the period of his absence may be treated as either leave on medical ground or as duty for all purposes. The Government considered the said representation and rejected it by Ext.P3 order dated 18.11.2002. Challenging Exts.P1 and P2, the original petition was filed. 2. Appellants/respondents resisted the prayers in the original petition by filing counter affidavit. The learned single Judge, after hearing both sides, disposed of the writ petition directing to treat the period he was absent from service as leave on medical ground so that he can get pensionary benefits for the said period. Feeling aggrieved by the said direction of the learned Single Judge, this writ appeal is preferred. 3. Heard the leaned counsel appearing on both sides. It is evident WA No.1521/07 8 from the records that the respondent/petitioner remained absent from duty without applying for leave with medical certificate or otherwise. It means, the absence was clearly unauthorised. But, the disciplinary authority took a lenient view and by Ext.P1 order he was allowed to rejoin duty, subject to the stipulation that the period he was out of service will be treated as eligible leave. 4. We notice the learned single Judge has not quashed that order. Its validity was also not considered but simply directed to treat the period as leave on medical ground. Leave on medical ground can be granted only if leave is applied for with proper medical certificate. In the absence of such a leave application supported by medical certificate, the respondent/petitioner is not entitled to get the leave on medical ground. If that be so, this Court was not justified in issuing a direction to grant him leave on medical ground. The said direction alone counter to the rules and orders governing grant of leave. The appellants/respondents do not have any duty to grant him leave in the absence of proper and timely application supported by medical certificate. So the judgment under appeal cannot be sustained. Accordingly, it is reversed and the original petition is dismissed. The writ appeal is allowed as above. WA No.1521/07 9 K.BALAKRISHNAN NAIR, (JUDGE ) P.N.RAVINDRAN, (JUDGE) vps