IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WA.No. 216 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.15748/2004 Dated 24/08/2007 .................... APPELLANT: PETITIONER IN WPC ---------------------------- P.K.MATHAI VAIDYAN, S/O.KUNJANDI VAIDYAN, JUNIOR HEALTH INSPECTOR GRADE-II, (RETIRED FROM PRIMARY HEALTH CENTRE, THAZHAVA), RESIDING AT PUTHENPURAKKAL, KADAPPA, THOTTUMMUGHAM P.O., MYNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: RESPONDENTS IN WPC ------------------------------- 1. THE MEDICAL OFFICER-IN-CHARGE, PUBLIC HEALTH CENTRE, THAZHAVA, KOLLAM DISTRICT. 2. THE DISTRICT MEDICAL OFFICER, KOLLAM. 3. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER SRI.SANDESH RAJA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.A.No.216 of 2008 ======================== Dated this the 29th day of January, 2008. JUDGMENT Balakrishnan Nair,J. The petitioner is the appellant. He has approached this Court challenging Exts. P3, P4, P7 and P10 orders. He has sought a declaration that he is entitled to pensionary benefits for the period of service rendered by him from 1.4.1963 to 18.1.1996. Alternatively it was prayed that he may be granted pensionary benefits for the period of 21 years service rendered by him. The brief facts of the case are as follows: 2. The petitioner joined Government service as Basic Health Worker on provisional basis with effect from 1.4.1962. Later he was regularised in service. While continuing in the redesignated post of Junior Health Inspector, he applied for leave without allowance to take up employment abroad. The leave was granted for a period of five years from 1.2.1978 to 31.1.1983. It was further extended twice for spells of five years each. The leave expired on 31.1.1993. He joined duty on 1.2.1993. Again he went on leave for 12 days from 4.2.1993. Thereafter, he applied for half pay leave with effect from 16.2.1993 to 29.3.1993. WA 216/08 2 3. While so, he submitted Ext.P1 application for voluntary retirement on 1.3.1993. The application was considered by the competent authority and rejected by Ext.P3 order dated 7.7.1993 for the reason that he did not give three months notice for the voluntary retirement. On receipt of the said order, the petitioner submitted Ext.P4 request dated 22.12.1993 stating that due to certain personal inconveniences, he was not able to rejoin duty on 30.3.1993 and he was unaware of the requirement of three months' notice for voluntary retirement. He also submitted that he was not in a position to rejoin duty. Therefore, he requested for reconsideration of his application for retirement. Later disciplinary proceedings were initiated against him for unauthorised absence, which finally ended in Ext.P7 order dated 22.6.1997. He was removed from service with effect from 30.3.1993, the date from which he was remaining unauthorisedly absent. Ext.P7 order was sent to him by registered post. The same was returned with the endorsement "The addressee left India". So the said order was published in the newspapers. WA 216/08 3 4. Against Ext.P7, the petitioner filed an appeal along an application to condone the delay in filing the appeal on 31.1.2004 and thereafter he moved this Court by filing W.P.(C)No.4813 of 2004 praying for an early disposal of the appeal. The writ petition was disposed of directing the authorities to pass orders on Ext.P8 appeal and Ext.P8(a) application for condonation of delay. The appellate authority, by Ext.P10 rejected the application for condonation of delay and thereafter dismissed the appeal also. In the above background, this writ petition was filed seeking the aforementioned reliefs. The learned single Judge dismissed the writ petition rejecting all the contentions raised by the writ petitioner. Hence, this writ appeal. 5. The learned counsel for the appellant submitted that the dismissal of the petitioner from service by Ext.P7 on 22.6.1997 after his superannuation on 28.2.1996 is void. The learned Judge held that the petitioner was terminated from service in 1997. He has chosen not to challenge the said order before the appropriate forum within the prescribed time limit. Therefore, the said order attained finality and even assuming that the order was void, since it was not challenged in time, it should be treated as WA 216/08 4 remaining valid. To arrive at the said finding, the learned single Judge relied on a decision of the Apex Court in State of Rajasthan v. D.R. Laxmi - 1996(6) S.C.C. 445. We are of the view that the stand of the learned single Judge is perfectly legal and valid. Even assuming that the order dismissing the appellant from service is void, for all practical purposes it is only voidable and if it is not set aside in appropriate proceedings, the same will remain valid. So, the belated challenge to the order made by the petitioner was rightly repelled by the learned Judge. Secondly, it was contended that there was no enquiry held against the petitioner. The petitioner did not reply to the charge sheet nor participated in the enquiry. Therefore, based on the charge sheet, if the Enquiry Officer files report stating that he is guilty of the charges, we find that there is nothing wrong in that. The learned counsel for the petitioner pointed out that the Enquiry Officer has stated that he has dispensed with the enquiry. The said statement of the Enquiry Officer has been rightly explained by the learned Judge. It only meant that further taking of evidence is dispensed with in view of the absence of the appellant before the Enquiry Officer and in the absence of any contest to WA 216/08 5 the charge sheet. In the absence of any contra evidence if the appellant is found guilty based on the charges, we find nothing wrong in it. Thirdly, the learned counsel for the petitioner submitted that the application of the petitioner for voluntary retirement should have been accepted and he should have been granted pension for the service rendered by him. We find that the application for voluntary retirement was rejected as early as in 1993. The correctness of that decision cannot be canvassed or challenged at this distance of time. Since the appellant is not a retired employee he is not entitled to get pension. Since the removal from service was rightly held to be valid, we find nothing wrong in the denial of pension to him. In the result, the writ appeal fails and it is dismissed. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 30/1