IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 20983 of 2005(W) ---------------------------------- PETITIONER: --------------- SIRAJUDEEN.S. O.ATHAR RAWTHER, SHAREF MANZIL, KARUVAPPARA, KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.H.BADARUDDIN RESPONDENT(S): --------------- 1. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 2. THE DISTRICT MEDICAL OFFICER, PALAKKAD. 3. THE MEDICAL OFFICER, SUBSIDIARY HEALTH CENTRE, OZHALAPPATHY. ADV. MR. ANTONY MUKKATH - GOVERNMENT PLEADER FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20983 of 2005(W) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF PROCEEDINGS OF THE OFFICE OF THE DIRECTOR OF HEALTH SERVICE, TVM WITH ORDER NO.EB2103605/89.DHS DTD 23.9.1989. EXT.P2: COPY OF PROCEEDINGS OF THE DMO, PALAKKAD WITH REF. NO.A4/13505/88 DATED 7.10.1989. EXT.P3: COPY OF JUDGMENT DTD 29.4.04 IN C.C.410/02 OF JFCM, CHITTUR. EXT.P4: COPY OF REPRESENTATION DTD 15.3.2002 MADE BY THE PETITIONER BEFORE THE RESPONDENTS. EXT.P5: COPY OF JUDGMENT IN O.P.NO.30529/02 DTD 26.11.02. EXT.P6: COPY OF COUNTER AFFIDAVIT DTD 15.2.2005 ALONG WITH ORDER NO.EG2/102838/04 DT. 25.12.2004. EXT.P7: COPY OF JUDGMENT DTD 17.2.2005 IN CONTEMPT CASE(CIVIL) NO.1627/2004 (S). TRUE COPY PA TO JUDGE. acd S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No. 20983 of 2005 ---------------------------------------------- Dated this the22nd day of August, 2011 JUDGMENT The petitioner was working on temporary basis as Leprosy Health Inspector (Leprosy Inspector) in the Health Services Department of the Government of Kerala. He did not attend duty for the period from 7.1.2002 to 27.1.2002. He approached this Court by filing O.P.No.30529/2002 complaining that when he reported for rejoining duty, he was not permitted to do so. In that writ petition, this Court passed Ext.P5 judgment, which reads as follows: “Petitioner was working on temporary basis as Leprosy Health Visitor (Leprosy Inspector). From 7-1-2002 onwards he did not attend the duty. Later on, it was understood that he was taken into custody in connection with a criminal case on 14-1-2002 and was in judicial custody till 16-1- 2002. Petitioner's version is that, he was not keeping well and therefore he had to avail leave without allowances on medical ground from 7-1- 2002 to 27-1-2002. His grievance is that the authorities did not permit him to join duty after that date. 2. The statement filed on behalf of the 2nd respondent reveals that the petitioner was unauthorisedly absent from 7-1-2002 and he being a person not regularly appointed has no W.P.(C)No.20983/05 2 right to apply for or avail leave without allowances. On being satisfied that a temporary employee is absent from duty, his services are liable to be terminated without issuing any notice, contends the respondents. 3. Heard the counsel for the petitioner and the Government Pleader for the respondents. 4. Petitioner has no case that he was appointed on regular basis. Since his appointment was only on temporary basis, he cannot claim that he is entitled to avail all those rights available to a regular employee. 5. It is submitted that the petitioner had filed Ext.P3 representation before the Director of Health Services respondent No.1 but no decision has been taken by the respondent with regard to his right to avail leave. The 1st respondent shall, therefore, take a decision on Ext.P3 and communicate the same to the petitioner without delay. This shall be done within two months from the date of receipt of a copy of this judgment. Petitioner shall be afforded an opportunity of being heard by the 1st respondent before taking final decision on Ext.P3. He will be free to take up all contentions before the 1st respondent while considering the claim made by him in Ext.P3. Petitioner shall produce a copy of this judgment along with a copy of the O.P. including exhibits before the 1st respondent for compliance. Original Petition is disposed of as above.” Pursuant to the same, the Additional Director of Health Services passed order dated 25.12.2004, which was appended to Ext.P6 affidavit filed by the Director of Health Services in C.C.(C)No.1627/2004 filed by the petitioner complaining of W.P.(C)No.20983/05 3 non-compliance with Ext.P5 judgment. That order reads as follows: “While disposing the O.P.No.30529/02 filed by Sri. S. Sirajudeen, Leprosy Inspector, P.H. Centre, Ozhalapathy, Palakkadu District, on 26/11/2002, the Hon'ble High Court has directed the 1st respondent (ie. Director of Health Services) to take a decision on Ext.P3 petition dtd. 15/03/2002 put in by the petitioner, after affording an opportunity of being heard. Accordingly, the petitioner has been heard in person on 3/09/2003 and his Ext.P3 has been examined in detail and found the following. The petitioner Sirajudeen was a provisional Leprosy Inspector appointed by this department, after imparting Leprosy Health Visitor training for 4 months. He will not be considered as probationer in the post of Leprosy Inspector Gr.II. He joined duty on 18/10/1989 F.N at P.H. Centre, Ozhalapathy, Palakkadu. The petitioner was unauthorisedly absented from duty from 7/01/2002 onwards. The Sub Inspector of Police, Kozhinjampara Police Station, Palakkad has reported as per Lr. No.15/2002/V/5420/PC that the petitioner, Sri. Sirajudeen, Leprosy Inspector of P.H.C., Ozhalapathy, who was arrested on 14/01/2002 and produced before the Hon'ble Judicial Magistrate, Chittoor has been remanded to Jail by the Hon'ble Court for his involvement in a Criminal Case. As he was detained in the Police custody in connection with Crime case No.15/2002./VS.420 IPC he cannot be permitted to continue in Govt. service as per existing rules. In the above circumstances, the Ext.P3 petition put in by Sri. S. Sirajudeen, Leprosy Inspector Gr.II, PHC, Ozhalapathy, Palakkad is rejected and he is terminated from his provisional service w.e.f. 7/01/2002, ie, the date on which he was on unauthorisedly absent from duty as reported by the District Medical Officer of Health, Palakkad. W.P.(C)No.20983/05 4 The directions contained in the judgment read above is complied with.” The petitioner challenges the said order. According to the petitioner, the order is unsustainable insofar as just because the petitioner abstained from duty for twenty days, the petitioner cannot be visited with the consequences of dismissal from service. The 2nd respondent has filed a counter affidavit justifying the order on the ground that the petitioner being an employee appointed under Rule 9 (a) (i) of KS & SSR, he has no legal right to continue. 2. I have considered the rival contentions in detail. It is now evident that during the period from 7.1.2002 to 27.1.2002, viz. the period of absence of the petitioner from duty, the petitioner was in police custody. A reading of Ext.P5 judgment would go to show that the petitioner had not disclosed the said fact to this Court, while passing Ext.P5 judgment. Therefore, the petitioner approached this Court earlier not with clean hands. That being so the petitioner is not entitled to the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. Even apart from that, admittedly, the petitioner was only a provisional employee. W.P.(C)No.20983/05 5 Provisional employees have no right to continue in service beyond the period of appointment or to be absorbed regularly. Even assuming that the petitioner could have been permitted to rejoin duty after 27.1.2002, he could not have continued in service except for 179 days. The petitioner ceased to be an employee as early as in January 2002. Therefore, at this point of time, none of the rights of the petitioner survives. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.20983/05 6 W.P.(C)No.20983/05 7