IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WP(C).No. 20595 of 2009(T) -------------------------- PETITIONER(S): -------------------- K.S.MUHAMMAD SHERIEF, SUB REGIONAL EMPLOYMENT OFFICER, SPECIAL EMPLOYMENT EXCHANGE FOR THE PHYSICALLY HANDICAPPED,KOLLAM,RESIDING AT VALAYIL HOUSE, NEAR K P A C,KAYAMKULAM. BY ADV. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY,LABOUR AND REHABILITATION DEPARTMENT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF EMPLOYMENT AND TRAINING,THIRUVANANTHAPURAM. 3. JAYACHANDRAN NAIR, DISTRICT EMPLOYMENT OFFICER, DISTRICT EMPLOYMENT EXCHANGE,KOLLAM. ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE FOR R3 SRI.P.SIVARAJ FOR R3 GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 20595/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A TRUE COPY OF THE GO(RT) NO.1004/2009 DATED 17.7.2009 ISSUED BY THE 1ST RESPONDENT. EXT.P2: A TRUE COPY OF THE PETITION DATED 20.7.09 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3: TRUE COPY OF THE REQUEST AND THE INFORMATION ISSUED UNDER THE RIGHT TO INFORMATION ACT. EXT.P4: TRUE COPY OF THE INFORMATION OBTAINED UNDER THE RIGHT TO INFORMATION ACT. EXTS. OF R1 EXT.R1(a): TRUE COPY OF THE CERTIFICATE ISSUED BY THE DOCTOR. EXT.R1(b): TRUE COPY OF THE GO(P) NO.12/04/P&ARD DT 10.9.04. EXTS. OF R3 EXT.R3(a): TRUE COPY OF THE ORDER GO(RT) NO.1663/06/LBR DT 20.7.06 ISSUED BY LABOUR AND REHABILITATION (G) DEPARTMENT. EXT.R3(b): TRUE COPY OF MEDICAL CERTIFICATE DATED 9.6.2009 ISSUED BY THE SENIOR CONSULTANT CARDIOLOGIST TO THE 3RD RESPONDENT. EXT.R3(c): TRUE COPY OF THE CM/D REGISTRATION ISSUED BY SREE CHITRA TIRNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM TO THE PETITIONER. EXT.R3(d): TRUE COPY OF THE ORDER NO.J1/17470/09/DE DATED 8.9.09 ISSUED BY THE EMPLOYMENT DIRECTOR, NATIONAL EMPLOYMENT SERVICES (KERALA). EXT.R3(e): TRUE COPY OF REQUEST SENT BY K.P.MEERADEVI DT 10.6.09 TO THE HON'MINISTER FOR LABOUR, KERALA. EXT.R3(f): TRUE COPY OF THE DISCHARGE CARD DT 8.8.09 ISSUED BY THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM DT 8.8.09. EXT.R3(g): TRUE COPY OF THE ORDER NO.J1/40787/08/DE DT 31.12.2008 ISSUED BY THE EMPLOYMENT DIRECTOR, NATIONAL EMPLOYMENT SERVICES (KERALA) //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 20595 OF 2009 (T) ===================== Dated this the 13th day of November, 2009 J U D G M E N T Petitioner is a Sub Regional Employment Officer, Special Employment Exchange for the Physically Handicapped, Kollam. In this writ petition, he is challenging Ext.P1 order by which the 3rd respondent was promoted and posted in his place. 2. The 3rd respondent was working as District Employment Officer, Wynad. By Ext.R3(g) order dated 31/12/2008, on the ground that he is undergoing treatment for brain stroke, he was transferred and posted as District Employment Officer, Kollam. Thereafter, by Ext.P1 order dated 17/7/09, the 3rd respondent was promoted to the cadre of Divisional Employment Officer and was posted as Sub Regional Employment Officer, Special Employment Exchange for Physically Handicapped, Kollam. By this order, petitioner who was holding the post at Kollam, has been transferred and posted as State Vocational Guidance Officer, Directorate of Employment, Trivandrum. The pleadings show that it was on compassionate grounds that the 3rd respondent was posted at Kollam. WPC 20595/09 :2 : 3. Counter affidavit filed by the 1st respondent and the 3rd respondent states that because of the illness, the certificate of which is Ext.R1(a) and Ext.R3(b), the 3rd respondent's wife submitted Ext.R3(e) representation to the Minister for Labour requesting to retain him at Kollam. Both the 1st respondent and the 3rd respondent states that it was on account of the illness as stated in the representation and as certified in the medical certificates referred to above that the 3rd respondent was posted. 4. However, petitioner relies on Ext.P3. Ext.P3 is a request made by one Advocate K.Vinu, invoking the provisions of the Right to Information Act. By this request, among others, he sought information as to whether the 3rd respondent had availed of any medical leave during the last two years since January 2007 and whether any medical reimbursement was accepted by him during the last two years including his period of service at Wynad. Answer to this was given on 9/9/09 and to both the questions, the answer is in the negative. 5. From this, what emerges is that if as stated by the 3rd respondent, he was such a seriously ailing person, it is quite unnatural that he would not have availed of medical leave on WPC 20595/09 :3 : even a single day in the previous two years. It is also against normal human conduct that he would not have availed of the benefit of medical reimbursement. 6. Learned Senior counsel for the 3rd respondent states that since he was transferred from Wynad to Kollam by Ext.R3(g) on compassionate ground, Government was fully conscious of his medical condition and it was therefore that the Government acted upon the representation enclosing the medical certificate. However, going by the counter affidavit filed by the Government, the only material available before the Government was Ext.R1(a), the medical certificate produced by the 3rd respondent's wife along with Ext.R3(e) representation made by her to the Minister for Labour. In the light of the information that has been disclosed as per Ext.P3, in my view, the matter needs to be reconsidered and the 1st respondent should enquire into the acceptability of the case of sickness claimed by the 3rd respondent. 7. Therefore, I dispose of this writ petition with the following directions: (1) That the 1st respondent shall reconsider the claim of the 3rd respondent for posting at Kollam duly adverting to the WPC 20595/09 :4 : medical records of the 3rd respondent, and on such examination, if the 1st respondent is satisfied that the 3rd respondent deserves to be given compassionate posting as per the guidelines, it will be open to the 1st respondent to post the 3rd respondent at Kollam as ordered in Ext.P1. (2) Until orders are passed as above, implementation of Ext.P1 will be deferred. (3) It will be open to the parties to make their representations to the 1st respondent and the 1st respondent shall consider the matter as above and pass fresh orders, as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp