IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 34868 of 2010(G) -------------------------- PETITIONER(S): --------------- LEEGIA.M.B., NURSING TUTOR, SCHOOL OF NURSING, ALAPPUZHA,R/AT.CHITTEDATH VEEDU SASTHAMANGALAM.P.O.,TVM.-695 010, REP.BY HER P/A HOLDER,SRI.G.SURESH KUMAR, AGED 46 YEARS, S/O. GOPALAKRISHNAN NAIR, CHITTEDATHU VEEDU, TC.9/1270, SASTHAMANGALAM.P.O., THIRUVANANTHAPURAM-695 010. BY ADV. SRI.T.P.DEYANANTHAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695 001. 3. THE DISTRICT MEDICAL OFFICER, ALAPPUZHA-688 001. GOVT. PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 34868 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 22nd day of November, 2010. J U D G M E N T The petitioner, while holding the post of Staff Nurse, was promoted as Nursing Tutor on 25.6.1990. On 9.9.2005, she applied for leave without allowance for seeking employment abroad for 5 years from 10.10.2005. Her application was recommended by the Principal of the School of Nursing and District Medical Officer, Alappuzha by Ext. P4. Anticipating sanction of leave, the petitioner proceeded on leave and went abroad. Subsequently, disciplinary proceedings were initiated against the petitioner for unauthorised absence without leave, which resulted in Ext. P8 order dated 5.5.2008, removing the petitioner from service. The petitioner challenges Ext. P8 in this writ petition seeking the following reliefs: “a) To issue a writ of certiorari or any other writ, order or direction quashing the show cause in Ext. P5 and removal order in Ext. P8 issued by the 1st respondent. b) Issue a writ of mandamus or any other appropriate writ, order or direction to permit the petitioner to rejoin duty forthwith and to grant leave commuting the leave she had applied for under rule 90A with ex-gratia allowance for 36 months from 17.10.2005 and the remaining period from 17.10.2008 to the date of rejoining duty as LWA on medical certificate under rule 76 and 89 of Part I KSR. c) To declare that the petitioner is entitled to be reinstated in service forthwith commuting leave she had applied for under appendix XII-A as Medical leave under rule 90 A with exgratia allowance for 36 months and the remaining period from 27.10.2008 to the date of re-joining duty as LWA on Medical Certificate or Appendix XII A/XII C part I KSR.” The contention of the petitioner is that Ext. P8 has been issued in violation of the procedure prescribed for disciplinary proceedings and therefore Ext. P8 is bad. 2. I have heard the learned Government Pleader who supports W.P.C. No. 34868/10 -: 2 :- Ext. P8 order. 3. I have considered rival contentions in detail. 4. From Ext. P8, I find that the same was issued as early as on 5.5.2008. The petitioner challenged the same by filing W.P(C) No. 23412/2009. On a specific question put by the court to the counsel for the petitioner, counsel for the petitioner admits that that writ petition was filed on 18.8.2009, one year and 3 months after passing Ext. P8 order. Apart from the same, from Ext. P8, I find that initially a consolidated show cause notice was published in all major Malayalam and English dailies to persons who were unauthorisedly absent for taking up employment abroad . Individual notices were also sent to all persons who were unauthorisedly absent. The petitioner was also issued with a show cause notice which was received by the petitioner and she requested for extension of time up to May, 2008 for re-joining duty on the ground that she is working under a contract. Her request was rejected and she was informed that she will be removed from service without further notice, despite which the petitioner did not care to re-join duty. As per Appendix XIIA of Part I of K.S.R, a person who applies for leave to take up abroad is not permitted to proceed on leave before sanctioning of the leave. Admittedly, the leave applied for by the petitioner was not sanctioned. Therefore, her proceeding on leave was against the rules. Despite a specific notice issued to the petitioner asking her to re-join duty to avoid disciplinary proceedings for unauthorised absence, the petitioner has not cared to re-join duty. The petitioner was therefore removed from service by Ext. P8 order dated 5.5.2008. The petitioner did not challenge the same within a W.P.C. No. 34868/10 -: 3 :- reasonable time also. For all these reasons, I am not inclined to exercise my discretionary jurisdiction under under Article 226 of the Constitution of India, in favour of the petitioner. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.