IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(C).No. 16012 of 2006(F) ------------------------ PETITIONER : --------------------- E.S.SANTHA GANGADHARAN, VELUKKAPPADY HOUSE, TRIPRAYAR, KIZHAKKENADA, NOW RESIDING AT E.S.USHA, ENKEKATTIL HOUSE, PERINGAVU P.O., PIN-680 018. (FORMERLY WORKING AS PT CLEANERS TRICHUR MENTAL HEALTH CENTRE) BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF HEALTH, THIRUVANANTHAPURAM. 2. DISTRICT MEDICAL OFFICER, DEPARTMENT OF HEALTH, TRICHUR. R1 & R2 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 16012 of 2006(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER NO. A3-67/89 DATED 12.6.1989 OF DISTRICT MEDICAL OFFICER OF HEALTH. EXT.P2 : COPY OF THE REPRESENTATION DATED 16.3.2006 PREPARED BY THE PETITIONER TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.16012 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of November, 2011 J U D G M E N T The petitioner was a Part-time Cleaner. By order dated 12.6.1989 she was transferred to Mental Health Centre, Trichur. While the petitioner was working so, the petitioner left India in 1993. According to the petitioner, the petitioner applied for leave through proper channel and the petitioner was assured that leave would be sanctioned in due course. The petitioner returned to India in 1994. But the petitioner was not permitted to join duty. The petitioner was informed that she was terminated from service since she did not obtain proper sanction before leaving India. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) issue a writ of certiorari or other appropriate writs or directions to call for the records leading upto the dismissal of the petitioner and quash the same; (ii) issue a writ of mandamus or other appropriate writ or direction directing the respondents 1 and 2 to disburse all the service benefits including the arrears of salary to the W.P.(C)No.16012 of 2006 -2- petitioner; (iii) issue a writ of mandamus or other appropriate writ or directions directing the respondents 1 and 2 to consider and pass appropriate orders on Exhibit P2 in accordance with law.” 2. According to the petitioner, the petitioner's termination from service is illegal in so far as the procedure prescribed for such termination from service has not been complied with. Therefore, the termination is unsustainable, is the contention raised. 3. A counter affidavit has been filed by the 1st respondent wherein the averments of the petitioner has been controverted in paragraphs 2 to 4 as follows: “2. Regarding the averments in paragraph 1 and 2, it is submitted that the petitioner was appointed as Part Time Cleaner as per order No.A3-67/89/DMOH/Thrissur dated 12.6.89. Subsequently she was transferred to Taluk Head Quarters Hospital, Kodungallur and she was joined duty there on 19.10.89. The petitioner was subsequently promoted as Dhobi by order of the 2nd respondent dated 24.8.90 and she joined duty there on 1.9.90. Then her cadre was changed as cook and she was posted to Government School of Nursing. Thrissur and she has joined duty on 22.4.91. Subsequent to that she was on unauthorised absence from duty with effect from 16.12.91. 3. Regarding the averment in para 3, it is submitted that with regard to unauthorised absence, a memo No.A3-2855/92, dated 4.2.92 by registered post has been sent to the petitioner to report for duty within 7 days on the receipt of the Memo along with the explanation for the unauthorised absence. The Memo was accepted by her on 14.2.92. But she has not reported for duty within the stipulated time. Then another Memo of Charges was W.P.(C)No.16012 of 2006 -3- issued to her on 24.3.92 by Lr. No.A6- 2855/92/DMOH/Thrissur stating the allegations that she was unauthorizedly absent from duty from 16.12.91 onwards. The Memo of Charges was issued by registered post with Acknowledgment Due. There was no response to the Memo dated 24.3.92. Then Show Cause notice in Lr. No.A6-2855/92/DMOH/Thrissur, dated 22.5.92 has been issued by registered post with Acknowledgment Due. In the Show Cause notice it was stated that she was unauthorizedly absent from 16.12.91 onwards. No reply was received for the Memo issued. Hence disciplinary action was initiated against her to remove her from service. In this connection she was directed to show cause if any within 30 days from the date of receipt of the notice, why the proposed punishment should not be imposed on her. If no reply is received within the stipulated time the matter will be proceeded with on the presumption that she has no explanation to offer. 4. It is respectfully submitted that the show cause notice also returned with the postal remarks as”unknown/not claimed”. Then Memo of Charges was published in the Express daily Newspaper on 24.6.92. In the charge memo it was directed that if no reply is received within 15 days from the publication of the memo of charge, the matter will be proceeded with on the assumption that she has no explanation to offer. Then she was summoned for a personal hearing on 18.11.92 at 11 A.M. She has not appeared for the personal hearing too. In the mean while show cause notice has been published ion the local newspapers. In the above circumstances she was removed from service as per order No.A6-2855/92, dated 18.12.92 of District Medical office of Health, Thrissur. Under the circumstances stated above, the petitioner is trying to mislead the Hon. High Court and the Government so as to gain the personal interest. Therefore the petition may be dismissed with costs. The Ext.P2 representation received to Government has been forwarded to the Director of Health Services on 24.4.06 for necessary action.” 4. I have considered the rival contentions. Admittedly, the petitioner was not granted any leave for leaving India. As such, evidently the petitioner's absence from duty is unauthorised. As is clear from the counter affidavit, since the petitioner was not available in India, the W.P.(C)No.16012 of 2006 -4- respondents did all they could practically do to comply with the procedure prescribed. As such, I am not inclined to interfere with the action taken by the respondents against the petitioner. Accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/