IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 WA.No. 696 of 2011() -------------------- AGAINST THE JUDGEMENT IN WPC.204/2011 Dated 05/01/2011 .................... APPELLANT(S): PETITIONER ------------------------------- DR.P.MUHAMED MUSTAQUE, S/O.MOIDU, ASSISTANT SURGEON, DISTRICT HOSPITAL, KANNUR RESIDING AT 'MARVA', NEAR KAMALIYA SCHOOL, IRIKKUR P.O., KANNUR - 670593. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) RESPONDENT(S): RESPONDENTS -------------------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, TRIVANDRUM - 695001. 2. THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM - 695001. 3. THE DISTRICT MEDICAL OFFICER (HEALTH), KANNUR - 670001. BY SR.GOVT.PLEADER SRI.BENNY GERVACIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & ANTONY DOMINIC, J. ---------------------------------------------- W.A.No. 696 of 2011 ---------------------------------------------- Dated this the 10th day of June, 2011 JUDGMENT J.Chelameswar, CJ. The unsuccessful petitioner in W.P(C).No.204 of 2011 is the appellant. He is aggrieved by the judgment dated 5th January, 2011 in the abovementioned Writ Petition. 2. The appellant entered the service of the State of Kerala as Assistant Surgeon on 1.10.1996. While the appellant was in service, he secured an employment abroad and therefore, he made an application to the State of Kerala to permit him to go on leave for a period of five years for the abovementioned purpose. Such permission was accorded and the appellant was permitted to accept employment abroad with effect from 13.6.2002 for a period of five years. However, on 12th March, 2007, the appellant made an application for extension of the leave by another five years. His application was not granted. But, the appellant did not rejoin duty on the expiry of the originally sanctioned leave. 3. On 19.6.2009, the State of Kerala issued a show cause notice to a large number of doctors, who are similarly situated as the appellant herein, calling upon them to rejoin duty within a WA.696/11 2 period of 15 days from the date of publication of the said notice. It appears from Exhibit P8 that individual notices were also served on all the doctors covered by the said notice. The appellant did not join duty, in spite of the abovementioned notice. However, he made a representation dated 11.8.2009. Copy of the said representation is not available, but upon the said representation, the Government of Kerala passed a further order (Exhibit P5) dated 29.8.2009. The relevant portion of the said order reads as follows: “I am to invite your attention to the references cited. Government is considering your request for rejoining duty. In this connection, I am to request you to meet Sri.G.Suresh Kumar, Additional Secretary (Health) in person with the certificate in proof of date of birth within a fortnight in his office Room No.654, South Block (Phone No.0471-2518436), Government Secretariat, Thiruvananthapuram.” 4. In response to the said order, admittedly, the appellant sent a further communication, which is marked as Exhibit P6 in the Writ Petition, expressing his inability to appear before the Additional Secretary (Health) as directed in Exhibit P5 order and more specifically on the ground that he is leaving India on 21.9.2009 for three months. He further categorically stated in the said letter that he would come back only on 20.12.2009. It does WA.696/11 3 not appear from the records that the appellant made any further correspondence, nor did he ever appear before the Additional Secretary (Health) in compliance with the direction referred to earlier. 5. In the abovementioned background, it appears that the Government of Kerala issued a notice dated 6.2.2010 to those doctors, who did not respond to the notice, Exhibit P4 referred to earlier. A second notice dated 6.2.2010 was also published in “dealing dailies”. As the appellant did not even respond to the said notices, by order No.G.O(MS) No.165/10/H&FWD dated 29th April, 2010, the appellant was dismissed from service with effect from 13.6.2007 invoking Article 311(3) of the Constitution of India and Rule 18(ii) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Hence the appeal. 6. By the judgment under appeal the Writ Petition was dismissed. While dismissing the Writ Petition, a learned Judge of this Court recorded that the fact of unauthorised absence is not in dispute. Therefore, the learned Judge held that the appellant is not entitled for any relief in exercising discretionary jurisdiction under Article 226 of the Constitution. The operative portion of the said judgment reads as follows: WA.696/11 4 “Therefore, insofar as the fact of unauthorised absence cannot be disputed by the petitioner for which alone he has been dismissed from service, I do not think that, even assuming that there is any procedural flaw, the petitioner can succeed in this writ petition. As is clear from Ext.P8 itself, the Government is finding it difficult to run Health Department for want of sufficient number of doctors. Therefore, it is perfectly lawful for the Government to insist that all doctors on leave shall rejoin duty after the expiry of the leave period sanctioned. Admittedly, the petitioner did not join duty after the period of leave was over and even within the further time granted by the Government. Therefore, the petitioner is not entitled to invoke the discretionary jurisdiction of this court under Article 226 of the Constitution of India.” 7. Learned counsel for the appellant Sri.A.Mohamed Mustaque submitted that though he is unauthorisedly absent from service, the order by which he was permitted to go on leave in the year 2002 (Exhibit P2) indicated that the permission was subject to the conditions laid down in Appendix XIIA of Part I of the Kerala Service Rules. The relevant portion of Exhibit P2 order reads as follows: “Dr.Muhammed Mushthaque.P., Assistant Surgeon, District Hospital, Kannur is granted leave without allowance for 5 years from the date of avail after the issuance of this order to take up private employment subject to the terms and conditions laid down in WA.696/11 5 Appendix XIIA, Part I, Kerala Service Rules and also on condition that he will be relieved only after substitute joins duty. 2) The leave granted as per this Government Order will stand cancelled automatically if not availed of within a period of six months from the date of issuance of this order.” The relevant clause in the abovementioned Appendix is clause 9, which reads as follows: “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.” 8. In other words, even if a person, who is sanctioned leave without allowance for a specified period unauthorisedly absent himself from service even after expiry of the sanctioned leave, his service could be terminated only after following the procedure laid down in the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Since such a procedure was not followed in the case of the appellant, the decision of the Government to dismiss the appellant from service is contrary to the abovementioned requirement of law and therefore, illegal. WA.696/11 6 9. On the other hand, the learned Senior Government Pleader Sri.Benny Gervacis brought to the notice of this Court that the Government resorted to the power available to the State under sub-clause (b) of second proviso to Article 311(2) of the Constitution of India read with clause (3) thereof, as it is reasonably impractical to hold enquiry as the one contemplated under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. 10. Admittedly, the appellant was absent from duty unauthorisedly beyond 13.6.2007. When he was called upon to appear before the Additional Secretary (Health) by Exhibit P5 order dated 29.8.2009 referred to earlier, he not only did not appear, but informed the Government that he was leaving India on 21.9.2009 without disclosing the details of his destination. Though he stated in the said letter that he would come back only after 19th December, 2009, there is no material on record to establish that he ever made any attempt to appear before the Additional Secretary (Health) even after the said date. In such circumstances, conducting an enquiry would certainly be impracticable as the whereabouts of the appellant are not known to the Government. Apart from that, he did not even respond to WA.696/11 7 the notice dated 6.2.2010 calling upon the appellant to report to duty. 11. In the circumstances, we do not see any illegality in the decision of the Government to dismiss the appellant from its service invoking the extraordinary jurisdiction under Article 311 clauses (2) and (3) of the Constitution of India. We see no error in the judgment under appeal. The Writ Appeal is, therefore dismissed. J.CHELAMESWAR, CHIEF JUSTICE ANTONY DOMINIC, JUDGE vgs