IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WP(C).No. 13288 of 2009(E) -------------------------------------- PETITIONER: ------------------- DR.P.K.RAJAN BABU, T.C.36/1867(1), "MANGALASSERY", SANGAMAM NAGAR 42-A, PUTHANPALAM, VALLAKKADAVU P.O., THIRUVANANTHAPURAM-8. BY ADV. SRI.KALEESWARAM RAJ. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13288/2009-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 14/05/2004 ISSUED BY THE R.2. EXT.P.2: COPY OF THE REPLY DTD. 02/07/2004 ALONG WITH COVERING LETTER DTD. 02/07/2004 AND APPLICATION FOR LEAVE. EXT.P.3: COPY OF THE APPLICATION DTD. 11/12/2006. EXT.P.4: COPY OF THE REPRESENTATION DTD 15/11/2006 TOGETHER WITH APPLICATION FORM. EXT.P.5: COPY OF THE ORDER DT. 30/11/2006. EXT.P.6: COPY OF THE LETTER DTD. 22/12/2006 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.7: COPY OF THE COVERING LETTER DTD. 24/02/2007 TOGETHER WITH SHOW CAUSE NOTICE DTD. 19/02/2007. EXT.P.8: COPY OF THE REPRESENTATION DTD. 01/03/2007 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.9: COPY OF THE LETTER DTD. 13/04/2007 ISSUED BY THE R.1. EXT.P.10: COPY OF THE REPRESENTATION DTD. 08/05/2007 SUBMITTED BY THE PETITIONER TOGETHER WITH COPY OF THE BOND. EXT.P.11: COPY OF THE G.O.(MS).NO.193/2007/H& FWD DTD. 17/07/2007. EXT.P.12: COPY OF THE SUBMISSION GIVEN BY THE PETITIONER FOR REPORTING DUTY. EXT.P.13: COPY OF THE APPLICATION DTD 05/09/2007 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.14: COPY OF THE REPRESENTATION DTD. 31/08/2007 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.15: COPY OF THE LETTER DTD. 01/09/2007 FORWARDED BY THE R.3. TO THE R.1. TOGETHER WITH COPY TO THE PETITIONER. EXT.P.16: COPY OF THE PRESENTATION DTD. 21/06/2008 SUBMITTED BY THE PETITIONER. EXT.P.17: COPY OF THE LETTER DTD. 15/10/2008 ISSUED BY THE R.1. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.13288 OF 2009 --------------------------------------- Dated this the 2nd day of June, 2011. J U D G M E N T The petitioner challenges the order Ext.P11 issued by the Government whereby his service has been terminated and also Ext.P17 letter informing him that the review petition filed by him is rejected. 2. Learned counsel for the petitioner submitted that the steps taken for termination was a general one in respect of various doctors. But, as far as the petitioner is concerned, Ext.P9 communication was issued by the Government directing him to execute a bond agreeing to join duty before 01.09.2007 and he had executed it also. It is pointed out that even before the said period was over, by Ext.P11 dated 17.07.2007, the petitioner was terminated from service. It is further pointed out that even though the petitioner submitted a representation to consider the matter, that was also rejected without considering anything on the merits of the contentions raised by him. W.P.(C) No.13288/2009 2 3. The facts of the case show the following: The proceedings against the petitioner started by issuance of Ext.P1 memo of charges dated 03.04.2004. The main allegation therein is that the petitioner availed half pay leave from 06.11.2002 to 30.11.2002 and thereafter sought further extension of time for 62 days with effect from 01.12.2002. Stating that he is on unauthorized absence, disciplinary action was initiated. Ext.P2 is the copy of the reply submitted by the petitioner. Exts.P3 and P4 are the applications said to have been submitted by the petitioner seeking for grant of further leave. By Ext.P5, the Government appointed the Principal of the Medical College, Thiruvananthapuram as the Enquiry Officer. Before the Enquiry Officer, the petitioner submitted a request as per Ext.P6. It is during this period that the petitioner was served with Ext.P7 notice afresh from the Director of Medical Education. The same is a common one addressed to several doctors including him. The petitioner and the other doctors were granted 15 days time to rejoin duty from the date of its publication to avoid termination from service. The petitioner is serial No.30 therein. W.P.(C) No.13288/2009 3 4. It is thereafter the petitioner submitted a representation as per Ext.P8 seeking time till 01.09.2007 and that too after reporting for duty before the Director of Medical Education on 22.12.2006. By Ext.P9, the Government gave a reply to the said representation directing the petitioner to execute a bond within seven days by agreeing to rejoin duty before 01.09.2007 and serve the Government for the remaining period. Ext.P9 is dated 13.04.2007 and it is averred in paragraph 8 of the writ petition that the same was received only during the first week of May 2007. Ext.P10 dated 08.05.2007 is a consent conveyed by the petitioner and Ext.P10(2) is the copy of the bond executed by him. But, without any further communication in the matter, by Ext.P11 he was informed that he is dismissed from service. 5. The 1st respondent has filed a counter affidavit supporting their action. 6. The order Ext.P11 by which the petitioner was dismissed from service does not mention about the communication Ext.P9 by which he was granted time to execute a bond and report for duty. Evidently, Ext.P11 is an order of a general nature whereby W.P.(C) No.13288/2009 4 all the doctors who were continuing on unauthorized absence were dismissed from service by invoking Article 311(3) of the Constitution of India and Rule 18(ii) of KCS & CCA Rules. Thereafter the petitioner submitted Ext.P13 petition for reconsideration of the matter. But by Ext.P17 it was informed to him that even though ample opportunities were given to him for rejoining duty, he has not obeyed Government directions in the matter and therefore, the review petition was rejected. 7. Learned counsel for the petitioner submitted that the proceedings suffer from total non application of mind. Even though a common show cause notice was issued as per Ext.P7, a reading of the same will show that the doctors were granted 15 days time to rejoin duty by condoning the unauthorized absence. It is in response to the same, the petitioner reported for duty before the Director of Medical Education and sought further time upto 01.09.2007. Evidently, that was acted upon by the Government as seen from Ext.P9. These aspects have not been considered while dismissing him from service as per Ext.P11 order which is dated 17.07.2007 even before the expiry of the W.P.(C) No.13288/2009 5 time granted to him to rejoin. On issuance of Ext.P9, the other grounds on which show cause notice was issued to the petitioner no longer survive and what was involved is only granting time for rejoining. On the Government accepting the said request and allowing him time upto 01.09.2007 on execution of a bond with certain other conditions, the alleged failure of the petitioner to report for joining duty as sought for in the show cause notice cannot be attributed against him. This aspect has not been considered while issuing Ext.P11 and P17 proceedings. 8. It is the case of the petitioner that within seven days time from the date of receipt of Ext.P9, the petitioner had submitted a reply agreeing for execution of the bond, a copy of which has been produced as Ext.P10. But, none of these aspects have been considered while passing Ext.P17. The counter affidavit filed also doesn't answer these points. Since the petitioner was granted time upto 01.09.2007, the order Ext.P11 which is dated 17.07.2007 could not have been issued also. In Ext.P11, the finding is that in spite of the show cause notice published in leading dailies, he has not joined duty. Hence there W.P.(C) No.13288/2009 6 is clear non application of mind and non consideration of relevant materials. Therefore, Exts.P11 and P17 are quashed. There will be a direction to the Government to reconsider the matter and pass appropriate orders, after hearing the petitioner. All the aspects will be considered in the light of the documents relied upon by the petitioner also. Final orders will be passed within a period of three months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp