IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 OP.No. 10405 of 2002(L) ------------------------------ PETITIONER(S): ------------------ K.ISHA BEEVI, MAMMOOTTIL THEKKETHIL, CHARUMMOODU. P.O., ALAPPUZHA DISTRICT. (STAFF NURSE - WOMEN AND CHILDREN HOSPITAL, ALAPPUZHA - UNDER REMOVAL FROM SERVICE) BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): -------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. DISTRICT MEDICAL OFFICER, ALAPPUZHA. 4. SUPERINTENDENT, WOMEN AND CHILDREN HOSPITAL, ALAPPUZHA. GOVERNMENT PLEADER MS. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 10405 of 2002 ORDER ON C.M.P.NO.18405 OF 2002 IN O.P.NO.10405 OF 2002 CLOSED. 26.3.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF APPOINTMENT ORDER OF THE PETITIONER DTD 13-12-84 ISSUED BY R2. EXT.P2: COPY OF REPRESENTATION DTD 27-6-94 ADDRESSED BY THE PETITIONER TO R1. EXT.P3: COPY OF APPLICATION FOR LEAVE IN PRESCRIBED FORMAT DATED 27-6-94. EXT.P4: COPY OF NOTICE DATE 1-2-95 ISSUED BY R3. EXT.P5: COPY OF THE PROCEEDINGS DATED 25-8-95 ISSUED BY R3 – DISTRICT MEDICAL OFFICER, ALAPUZHA. EXT.P6: COPY OF THE REPRESENTATION DTD 15-1-96 FORWARDED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER. EXT.P7: COPY OF THE REPRESENTATION DATED 10-7-2001 PREFERRED BY THE PETITIONER BEFORE THE HON'BLE MINISTER OF HEALTH, KERALA STATE. EXT.P8: COPY OF THE G.O.M.S.NO.81/86/H&FND DTD 26.4.86. EXT.P9: COPY OF JUDGMENT DTD 13-9-01 IN O.P.NO.27028/01. EXT.P10: COPY OF NOTICE DATED 29-10-2001 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT TO THE PETITIONER. EXT.P11: COPY OF THE ORDER NO.40654/C3/96/H&FWD DTD 9-1-02 PASSED BY R1. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.10405 OF 2002 ---------------------------------------- Dated this the 26th day of March, 2009 JUDGMENT The petitioner entered the service of the Government of Kerala as a Staff Nurse in the Health Services Department pursuant to advice by the Kerala Public Service Commission on 13.12.1984 by Ext.P1 order. While she was working as such in the Alleppey Women and Children Hospital, she availed of commuted leave for the period from 9.9.1993 to 30.9.1993. This was followed by half pay leave for the period from 1.10.1993 to 21.10.1993. Thereafter, since the petitioner got an opportunity for employment abroad, she left India. Thereafter, the petitioner submitted Ext.P2 representation dated 27.6.1994 along with Ext.P3 application for leave of the same date. According to the petitioner, as is clear from Ext.P3 application, the leave was recommended by the Superintendent of the Hospital. According to her that leave application was not rejected and she did not hear anything in respect of either leave or her service for a long time. Later on, the petitioner came to know that Ext.P4 show O.P.No.10405/02 2 cause notice was issued to her in her address at Alleppey, which was followed by Ext.P5 order of punishment of removal the petitioner from service for unauthorised absence with effect from 22.10.1993. The petitioner filed a review petition before the Government and pursuant to direction in Ext.P9 judgment of this Court, after a hearing by a Deputy Secretary by name Smt. Amritha Kumari, the Principal Secretary of Health and Family Welfare Department, Sri.N. Chandrasekharan Nair passed Ext.P11 order rejecting the application for review. The petitioner is challenging Exts.P4, P5 and P11 in this original petition on the following grounds: 2. First is that under Article 311 of the Constitution of India, a person can be removed from service only after conducting an enquiry. In this case, no enquiry was conducted and therefore, for that reason alone, the punishment order is liable to be set aside. Second contention is that under Rule 6 of the Kerala Public Service Commission (Consultation) Regulations 1957, the punishment of removal from service cannot be imposed on an employee without consulting the Commission. In this case, there was no consultation with the Commission. Thirdly, she submits that this review application O.P.No.10405/02 3 was heard by one person and dismissed by another person which violates the principles of natural justice. The petitioner relies on the decision of the Supreme Court in INDIAN RAILWAY CONSTRUCTION CO.LTD V. AJAY KUMAR [(2003) 4 Supreme Court Cases 579] in support of her contention that she could not have been removed from service without conducting an enquiry. The petitioner also relies on the decision of this Court in Saseendran Nair V. State Bank of Travancore [2002(2) KLT SN 96 (Case No.114)] in support of her contention that in disciplinary action, punishment cannot be imposed by a person, after a hearing by another. The petitioner also contends that since the Director of Health Services was the appointing authority of the petitioner, the petitioner could not have been removed from service except by the Director of Health Services whereas Ext.P5 order of punishment has been passed by the District Medical Officer. 3. The learned Government Pleader opposes the contentions of the petitioner. 4. I have considered the rival contentions in detail. 5. Admittedly, the petitioner left India without applying O.P.No.10405/02 4 for leave or without getting the leave sanctioned in accordance with Appendix XII-A of the Kerala Service Rules. In paragraph 9 of Appendix XII-A, it is specifically stated thus: “9. Those officers who absent themselves unauthorisedly without getting the leave sanctioned under these rules shall be proceeded against and his service terminated after following the procedure laid down in the Kerala Civil Services (Classification Control and Appeal) Rules 1960. Requests for re- entertainment in Government service in such cases as well as in cases covered by Rule 6 above, will be summarily rejected”. 6. The petitioner having left India without applying for leave or without getting the leave sanctioned, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner, who admittedly abandoned her service by leaving India. Even otherwise, I am not inclined to accept the contention of the petitioner on the basis of Article 311 of the Constitution of India. First of all, Article 311 of the Constitution of India itself contemplates removal from service without conducting an enquiry where it is not reasonably practicable to hold such an enquiry. In this case, admittedly, the petitioner was abroad. The petitioner has no case that the petitioner furnished the whereabouts of the petitioner to her superior officer. The petitioner could not be served with any O.P.No.10405/02 5 communication. The memo issued to her directing to join duty immediately was returned with the endorsement 'addressee left India' and the charge memo had to be published in the newspapers. That being so, conducting of a formal enquiry for which it was necessary to ensure the presence of the petitioner which was certainly not reasonably practicable, in view of the above facts. 7. Apart from that in fact an enquiry was conducted. The show cause notice was issued which is Ext.P4. A memo of charges was issued which was not served on the petitioner because she was not in India. The same was published in daily newspapers and thereafter only Ext.P5 order of punishment was imposed. Enquiry does not necessarily require examination of witnesses in all cases. If in the enquiry, the documents available are sufficient to return a verdict of guilty that would be sufficient, that too when no reply to the show cause notice or charge sheet has been filed by the delinquent. In this case, the petitioner has not filed any reply to the show cause notice or the charge sheet. Admittedly, she left India without even applying for leave. The first time, she applied for leave by Ext.P3 was only on 27.6.1994, more than eight O.P.No.10405/02 6 months after she left India, which itself is sufficient to infer abandoning of the service. Therefore, the admitted facts themselves are sufficient to hold the petitioner guilty of unauthorised absence. The finding of guilt is based on those admitted facts which would constitute an enquiry as contemplated under the Rules. Therefore, it cannot be said that there was no enquiry at all. In such circumstances, I do not find any merit in the contentions of the petitioner that the removal from service of the petitioner is against the provisions of Article 311 of the Constitution of India. 8. The second contention of the petitioner that she was removed from service by a person other than the appointing authority also does not find favour with me. The petitioner herself has produced Ext.P8 order of the Government, whereby in cases of district-wise recruitments instead of Director of Health Services, the concerned District Medical Officer was delegated with the powers of appointing authority. Ext.P8 order was passed on 26.4.1986. Therefore, after 26.4.1986, the DMO is the appointing authority of the petitioner who only has passed Ext.P5 order. Therefore, on that ground the removal of the petitioner from service cannot be challenged. O.P.No.10405/02 7 9. The next contention of the petitioner is that the Public Service Commission has not been consulted before imposing the punishment. Perhaps the petitioner may have a technical case regarding non-consultation by the PSC. I am not inclined to interfere with the impugned orders on that ground, since in this case it is certainly a mere formality and the petitioner is challenging her removal from service after several years. I particularly note that after leaving India in 1993, the petitioner complained about her removal from service only in 1996 and then in 2001, which itself shows that the petitioner had no intention whatsoever to rejoin service and she had abandoned her service. Therefore I am not inclined to consider that purely technical contention raised by the petitioner, which she has not raised in the review petition and is raising for the first time in this original petition, in exercise of my discretionary jurisdiction under Article 226 of the Constitution of India. 10. For the same reason, I am not inclined to consider her last contention that she was heard by one person and Ext.P11 order was passed by another. It is settled law that mere violation of principles of natural justice alone cannot be a O.P.No.10405/02 8 ground for interference unless real prejudice is shown to have been caused to the delinquent. Even otherwise, since I have considered all the contentions of the petitioner on merits, it is not necessary to interfere with Ext.P11 on that technical ground to merely remand the matter which would not serve any real purpose. For all the above reasons, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner who admittedly left her job without even applying for leave which leads to the irresistible conclusion that she voluntarily abandoned her job in search of greener pastures. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.10405/02 9