IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 WA.No. 316 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.7033/1998 Dated 23/05/2007 .................... APPELLANT: APPELLANT/PETITIONER ------------------- A.FRANCIS,VAYALIKADA KIZHAKKETHIL, VELLIMON WEST(P.O.) KUNDARA,KOLLAM. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: RESPONDENTS/RESPONDENTS ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT HEALTH AND FAMILY WELFARE (J) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DEPARTMENT OF HOMEO, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER, HOMOEO, KOLLAM. BY GOVERNMENT PLEADER SRI.BENNY GERVACIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR P.N.RAVINDRAN, JJ. ----------------------------------------- W.A.NO. 316 OF 2008 ----------------------------------------- Dated 11th February, 2008. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. He was a Part Time Sweeper, appointed in the Department of Homoeopathy on 26.12.1992 in Kollam district. On 2.11.1993 he applied for leave without allowance for five years, for taking up employment abroad under Appendix XII A of Part I, K.S.R. While the said application was pending, he applied for 120 days' leave, which was granted. While on leave, he went abroad in 1995. Later, the Government rejected his application for leave for five years, by order dated 9.2.1996. Since the appellant was remaining absent even after the expiry of the leave for 120 days, a notice dated 28.6.1996 was issued to him. The same was returned unserved. Later, the Government by order dated 9.9.1996 dismissed him from service for unauthorised absence. A copy of that order is Annexure-I. The appellant submits, on coming to know of that order, he filed Ext.P3 petition dated 10.11.1997 before the Government. WA 316/2008 2 This Court by Ext.P4 judgment dated 19.11.1997, directed the Government to consider that representation. Later, by Ext.P5 order, the Government rejected his representation on 10.3.1998. The Original Petition was filed, challenging Ext.P5 and also seeking consequential reliefs. The appellant submits, Annexure-I order was never served on him. When it was received, he filed an I.A to amend the O.P., in December, 2005. The learned single Judge did not allow the application and dismissed the O.P. 2. In the O.P., the official respondents filed a counter affidavit, stating that the appellant did not join duty on the expiry of 120 days' leave and therefore, after issuing show cause notice on him and following the due procedure, he was dismissed from service. The show cause notice as well as the termination order were sent to his address. They were returned unserved, it was submitted 3. The learned counsel for the appellant challenge the judgment of the learned single Judge, contending that the appellant was never served with any show cause notice nor any termination order. As soon as he came to know of the termination order, he submitted Ext.P3 representation, praying for permission to rejoin duty. He has also submitted that when he received the copy of the termination order, he immediately moved this Court, seeking to amend the O.P and there was no delay in challenging the WA 316/2008 3 impugned order. 4. The appellant was, admittedly, unauthorisedly absent from the day the leave of 120 days granted to him expired. Knowing fully well the consequences, he continued to be absent and returned only in 1997. When the first writ petition which led to the rendering of Ext.P4 judgment was filed, the appellant was aware of his termination order. This is evident from Ext.P3 representation. If he wanted, he could have procured a copy of that order and challenged it. So, we agree with the learned single Judge in taking the view that there is inordinate delay in challenging that order. He has chosen to challenge the said order only in 2005. Apart from that there is admitted commission of misconduct in deserting the job before the leave application was considered by the competent authority. Further, a Part Time Contingent employee is not entitled to get leave without allowance under Appendix XII A of Part I, K.S.R. The provisions of K.S.R are not applicable as such to Part Time Contingent employees. They are meant for only regular Government servants. In view of the admitted misconduct of unauthorised absence of the appellant, we are not inclined to go into the contentions raised by him regarding the non-service of the dismissal WA 316/2008 4 order in time etc. In the result, the Writ Appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/