IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 OP.No. 31172 of 2002(J) ----------------------- PETITIONER(S): --------------- DR.C.J. ITTOOP, CHAKRAMAKKIL HOUSE, PALUVAI P.O., THRISSUR DISTRICT BY ADV. SRI.J.JULIAN XAVIER RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM BY SRI. RAJESH THOMAS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 31172/2002. ------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 27-10-1998. EXT.P2 REVIEW PETITION DT. 30-6-2001. EXT.P3 JUDGMENT IN O.P.NO. 25650/2001. EXT.P4 ORDER DT. 8-4-2002. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 31172 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd January, 2009. J U D G M E N T The petitioner entered service in the Department of Health Services of the Government of Kerala as an Assistant Surgeon on 14- 1-1997. He continuously applied for medical leave. Therefore, he was directed to appear before the District Medical Officer for medical examination. The District Medical Officer, after examining the petitioner, recommended absence from duty for a period of 90 days. Accordingly, leave was granted. However, the petitioner did not report for duty after the 90 days, but, instead, applied for leave again for 90 days, which was not granted. A show cause notice was issued to him on 25-5-1998 directing him to submit his written defence as to why his probation should not be terminated. Although, he acknowledged receipt of the notice on 30-5-1998, he did not file any reply to the same. Accordingly, by Ext. P1 order, the petitioner was discharged from duties because of the unsatisfactory conduct during the period of probation. Petitioner's appeal against that order failed. The petitioner filed Ext. P2 review petition. By Ext. P3 judgment this Court directed the Government to consider the review petition. The same was considered and by Ext. P4 order, the same was rejected. The petitioner is challenging Exts.P1 and P4 orders in this original petition. 2. The contention of the petitioner is that he was actually ill and therefore his services could not have been terminated on the ground of unsatisfactory performance during the period of probation. The petitioner also submits that in Ext. P4 order, petitioner's specific contentions in Grounds C and D in Ext. P2 review petition have not been properly considered by the Government. O.P. No. 31172/2002. -: 2 :- 3. I have heard the learned Government Pleader also. 4. Admittedly, the petitioner did not file any reply to the show cause notice dated 25-5-1998. The petitioner has not produced any material whatsoever in support of his contention that for the subsequent period of 90 days also he was genuinely ill. Therefore, I do not have any material to hold in favour of the petitioner that the order terminating his probation is in any way unsustainable. When the petitioner was continuously absent without leave having been sanctioned, the natural presumption is that the petitioner's conduct and performance during the period of probation was unsatisfactory. The Ground C raised in Ext. P2 is not relevant to decide that issue in so far as it applies to persons who have proceeded on leave without allowances for taking up employment abroad. There, there is no question of unsatisfactory completion of probation since those persons are not undergoing probation during the period of leave. Here, the petitioner was undergoing probation and his conduct during the period of probation was unsatisfactory. The Ground D in Ext. P2 was only that the Director of Health Services ought to have given the petitioner another opportunity. There is no such second opportunity contemplated by Rules. In fact, the petitioner has not cared to produce any material in support of his contention in this original petition also. If the petitioner was genuinely ill, he could have easily obtained medical certificates in support of his contention, which he has not chosen to do. In the above circumstances, I do not find any merit in the contentions of the petitioner against Exts.P1 and P4 orders. Accordingly, the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/