IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 4238 of 2006(D) ------------------------- PETITIONER: --------------- DR.MOHANDASS.P. ASSISTANT PROFESSOR OF SURGERY, MEDICAL COLLEGE, ALAPPUZHA. BY ADV. MR.C.S.ABDUL SAMMAD MR.V.D.BALAKRISHNA KARTHA MS.V.K.SHEMEENA RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MS. N. SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON 17/02/2009 DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 4238 OF 2006-D ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 17th day of February, 2009 JUDGMENT The grievance of the petitioner is against the refusal to reckon the period from 12.09.01 when he offered himself to rejoin duty to 12.8.04 when Ext.P6 order was passed enabling him to join duty in furtherance of Ext.P5 order passed by the first respondent/Government without prejudice to the disciplinary action initiated against him as qualifying service for all service benefits and for disbursement of all consequential benefits. 2. The petitioner, who is an Assistant Professor – Surgery, initially applied for leave without allowances for a period of 3 years from 7.1.1997 on expiry of which, he rejoined duty on 7.1.2000. Thereafter, petitioner submitted an application for leave without allowances for a period of 5 years from 10.1.2000 which, however, was rejected as per the orders issued by the second respondent on 9.3.2000. Though it is stated by the petitioner that he rejoined duty in June, 2001, he could not continue the same due to family problems (as put forth in Ext.P1) 3. The learned Government Pleader appearing for the respondents submits that the department, because of WP(C) No. 4238 of 2006 : 2 : unauthorised absence of the petitioner, was about to initiate disciplinary proceedings against him, particularly since the petitioner chose to remain absent, despite three opportunities given to him asking to rejoin duty. However, the undisputed facts reveal that the petitioner appeared himself before the concerned authority on 12.9.2001, requesting to permit him to rejoin duty. This, presumably, might have been consequent to the issuance of Ext.P9 memo of charges dated 8.3.2001 (served on the petitioner on 13.6.01) for which no reply was submitted from the part of the petitioner. Case of the petitioner is that despite offering himself seeking permission to rejoin duty on 12.9.2001, the respondents did not consider the matter and kept the issue in cold storage, in spite of several representations such as Exts.P2, P3 and P4. Finally, the first respondent/Government was pleased to pass favourable orders only on 27.7.04 as per Ext.P5 enabling the petitioner to rejoin duty without prejudice to the disciplinary action initiated against him. Pursuant to Ext.P5 order, the Principal of the concerned Medical College passed Ext.P6 consequential order and admittedly, the petitioner rejoined duty on the FN of 12.8.2004. The prayer of the petitioner is mainly to reckon the said period from 12.9.01 to 11.8.2004 when he was made to stand outside as qualifying service for all service benefits and for disbursing the WP(C) No. 4238 of 2006 : 3 : monetary benefits with interest. 4. The claim of the petitioner is resisted from the part of the respondents on many a reason as described in the counter affidavit filed by the first respondent. The various contentions put forth by the petitioner as to the circumstances which compelled him to be away from the service and as to the claim of reporting for duty in June, 2001, have categorically been rebutted by the first respondent. It is pointed out by the learned Government Pleader that pursuant to the finalisation of the disciplinary proceedings, a major punishment has been imposed on the petitioner vide Ext.P10 Government Order dated 7.8.06 (produced along with reply affidavit dt. 27.1.2007 filed by the petitioner) whereby one increment was barred with cumulative effect. It is further pointed out by the learned Government Pleader that there is a specific finding in Ext.P10 Government Order that the petitioner/delinquent officer was on unauthorised absence for the period from 7.1.2000 to 11.8.2004 and that the said finding and the punishment imposed have not been subjected to challenge by the petitioner, which prevents the petitioner from crossing the hurdles. 5. It is true that the petitioner has not chosen to challenge the finding and punishment imposed upon him vide WP(C) No. 4238 of 2006 : 4 : Ext.P10 order. As such Ext. 10 Government Order has become final and in turn, it will invite adverse consequence as to the pay and other monetary benefits claimed by the petitioner. However, the claim of the petitioner to reckon the period from 12.9.01 to 11.8.04 for granting the service benefits including promotion, seniority etc stands entirely on a different footing. 6. It is the specific contention of the petitioner, as raised in paragraph 4 of the writ petition, that there is clear infringement of paragraph 53 (6) of the Manual of Disciplinary Proceedings which is extracted as given below. “No absentee who returns to duty will be denied readmission to duty unless he has been, or is due to be placed under suspension pending disciplinary proceedings or final orders have already been issued dismissing or removing him from service” Relying on the said rule, the learned counsel for the petitioner submits that there was absolutely no justification for denying opportunity to rejoin duty when the petitioner admittedly presented himself in this regard on 12.9.2001. 7. The two circumstances contemplated under the rule 53 (6) as aforesaid to turn down the readmission to duty are; i. If the employee is due to be placed under suspension pending disciplinary proceedings WP(C) No. 4238 of 2006 : 5 : ii. Final orders have already been passed dismissing or removing the employee from the service 8. The sanctity of the above rule or the factual position involved in the present case is not disputed in the counter affidavit filed by the first respondent and obviously, the first respondent has no case that the petitioner was due to be placed under suspension when he offered himself seeking permission to rejoin duty on 12.9.01. So also, since the first respondent has no case that the disciplinary proceedings have been finalised imposing punishment of dismissal or removal of the petitioner, the second limit of the said rule is also not attracted to the case in hand. This being the position, there is considerable force in the contention put forth from the part of the petitioner that the respondents were not justified in not permitting him to rejoin duty on 12.9.01 or within a reasonable time thereafter. Obviously, several representations have been filed by the petitioner for redressal of his grievance and finally, the Government woke up granting necessary sanction by Ext.P5 order only on 27.7.2004 leading to the consequential order passed by the concerned Principal on 12.8.2004 (Ext.P6), pursuant to which alone the petitioner could succeed in getting the re-entry. The sequence of events suggests there is callous inaction on the part of the WP(C) No. 4238 of 2006 : 6 : respondents in considering the issue and the petitioner was made to wait for nearly 3 years without salary and no means for subsistence from his employer. Absolutely, no reason whatsoever has been stated in the counter affidavit for the delay in considering the request of the petitioner to permit him to rejoin duty, nor does it suggest any fault or lapse attributable to the petitioner in this regard. As such, it is highly essential that the first respondent considers the grievance of the petitioner as exposed in this writ petition, of course in accordance with law and with specific reference to the observations made herein before. 10. Petitioner is at liberty to file a detailed representation before the first respondent pointing out the relevant aspects within one month and on such an event the first respondent shall consider the same and pass appropriate orders after giving an opportunity of hearing to the petitioner within 3 months thereafter. The petitioner will produce a true copy of this judgment along with a copy of the writ petition before the first respondent. The writ petition is disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE kmd