IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WA.No. 2809 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.6195/1999 Dated 07/02/2007 .................... APPELLANT(S)/RESPONDENTS: -------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (SPL) DEPARTMENT, THIRUVANANTHAPURAM 2. THE DIRECTOR, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM BY GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENT/PETITIONER: --------------- DR.A.D.DHARMARATNAM, ASSISTANT PROFESSOR OF DERMATOLOGY AND VENEROLOGY, DHANWANTHARY BHAVAN, PALACE ROAD, ALAPPUZHA ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON 28/07/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.2809 of 2007 ----------------------------------------- Dated this the 28th day of July, 2010 JUDGMENT Ravindran. J. The appellants are the respondents in O.P.No.6195 of 1999 and the sole respondent is the petitioner therein. The brief facts of the case are as follows. 2. The respondent who was working as Assistant Professor in Dermatology and Venereology was granted leave without allowances for a period of three years to take up employment abroad in terms of the stipulations in Appendix 12A of Part I KSR, by Government order dated 19.8.1988. The period of leave was extended upto 9.4.1993 by Government order dated 2.5.1992. Even before the expiry of the leave, the respondent reported before the Director of Medical Education on 21.1.1993. An order posting the respondent was not immediately issued. He was however, given a posting as Assistant Professor in Government Medical College, Kozhikode only on 28.10.1993. He had on 1-7-1983 instituted a suit, O.S.No.488 of 1993 in the Court of the Munsiff of Alappuzha, seeking the following reliefs: a) The court be pleased to declare that the plaintiff is entitled to be considered for promotion as Professor of Dermatology and Venereology in any of the W.A.No.2809 of 2007 -:2:- Medical Colleges under the control and administration of the defendants and further declare that the plaintiff is entitled to be promoted to the vacancy that has already fallen due in the post of Professor of Dermatology and Venereology giving due credit to his seniority and the Court be pleased to further declare that the plaintiff is not bound to rejoin duty unless he is promoted as Professor. b) Consequent upon the grant of declaration prayed for in 'a' relief, a decree of perpetual injunction be passed restraining the defendants and persons, agents and servants claiming under them from passing any orders to the disadvantage of the plaintiff or affecting his service conditions and also restrain them from compel the plaintiff to rejoin duty before passing any order promoting him to the post of Professor.” It was after O.S.No.488 of 1993 was instituted that the respondent was posted as Assistant Professor in Dermatology and Venereology in Medical College, Kozhikode. The respondent did not join duty in that post. He took the stand that his posting as Assistant Professor of Dermatology and Venereology is illegal and that he should be allowed to join duty as Associate Professor to which post he claimed he was entitled to be promoted. 3. When the respondent did not join duty, Ext.P1(a) memo of charges dated 13.4.1994 was served on him along with W.A.No.2809 of 2007 -:3:- Ext.P1(b) statement of allegations alleging that he was unauthorizedly absent from duty notwithstanding the posting order issued on 28.10.1993. The respondent was called upon to show cause why disciplinary action should not be taken against him. He was also given 15 days’ time to submit his written statement of defence. The respondent thereupon submitted Ext.P2 written statement of defence wherein he virtually admitted the fact that he had not joined duty as Assistant Professor notwithstanding the receipt of the posting order dated 28.10.1993. In the written statement, he claimed that he was entitled to be posted as Associate Professor. He also sought an opportunity to prove his innocence at an oral enquiry. 4. After the written statement of defence was received the Government appointed Dr.B.Umadathan, Joint Director of Medical Education as the enquiry officer. The enquiry officer, after enquiry, submitted Annexure A report dated 4-10-1995 wherein the enquiry officer came to the conclusion that though the respondent had reported for duty before the Director of Medical Education on 21.1.1993, the posting order was issued only on 28.10.1993 and therefore, there was no unauthorized absence during the said period. The enquiry officer however found that though there was administrative delay in issuing the posting order till 28.10.1993, the W.A.No.2809 of 2007 -:4:- respondent ought to have joined duty and should have thereafter represented for promotion. In other words, the enquiry officer found that there was unauthorized absence after 21.10.1993. The enquiry officer strangely however, recommended as follows:- “For no fault of the doctor there was much delay in issuing reposting orders to him is none of his fault. Had he been reposted in time, he would have become eligible for promotion as Associate Professor and Professor. He lost his opportunity due to administrative delay. He may be compensated by giving an opportunity to join back in service and his seniority over others may also be restored. For not complying with the earlier Government Order, a minor punishment is recommended if he joins service now.” 5. After Annexure A report was submitted, the Government issued Ext.P3 order dated 20.8.1996 again posting the respondent as Assistant Professor in Medical College, Kozhikode. The respondent did not however join duty even thereafter. The Government thereupon issued Ext.P4 show cause notice dated 27.12.1996 referring to Ext.P3 order. It was stated therein that it was considering the enquiry report that the Government had issued Ext.P3 order dated 20.8.1996 posting the respondent as Assistant Professor in Medical College, Kozhikode, that he has even thereafter failed to W.A.No.2809 of 2007 -:5:- report for duty and that the Government have therefore provisionally decided to remove him from service. By Ext.P4 notice the respondent was called upon to show cause why he should not be removed from service. The respondent thereupon submitted Ext.P5 reply dated 8.5.1997 wherein he contended that as he was not promoted as Associate Professor, the charge against him is unsustainable. He did not however deny the allegation that he had not joined duty as Assistant Professor notwithstanding the issuance of the order dated 28.10.1993 or Ext.P3 order dated 20.8.1996. The Government considered Ext.P5 reply submitted by the respondent and thereafter passed Ext.P6 order removing him from service with effect from 10.4.1993. The instant writ petition was thereupon filed challenging Ext.P6 and seeking the following reliefs:- a) call for the records leading to Ext.P4 and P6 and issue a writ of certiorari quashing the same; b) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to issue appropriate posting order to the petitioner and thereby permit him to rejoin duty. 6. The respondent contended that Ext.P6 order is one issued in clear violation of the provisions contained in Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 W.A.No.2809 of 2007 -:6:- and that it is liable to be set aside on that short ground. He also contended that the various contentions raised by him in Ext.P2 and Ext.P5 statements have not been considered and that the order is therefore, liable to be set aside for non-application of mind. The respondent did not however deny the charge against him that he had not joined duty notwithstanding the orders dated 28.10.1993 and 20.8.1996. 7. The appellants resisted the writ petition by filing a counter affidavit. Relying on Annexure A enquiry report wherein the enquiry officer had found that the respondent had not joined duty notwithstanding the fact that a posting order had been issued to him though belatedly on 28.10.1993, it was contended that Ext.P4 memo was issued in continuation of the enquiry, taking note of the fact that though by Ext.P3 order passed on 20.8.1996 after receipt of the enquiry report the respondent was again given a posting at Medical College, Kozhikode, he did not join duty and that as the respondent continued to be unauthorisedly absent and had admitted the factum of his absence, he was removed from service. By the judgment under challenge, the learned single Judge held that Ext.P6 order has not been passed after complying with the procedure prescribed in rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules. W.A.No.2809 of 2007 -:7:- Ext.P6 was accordingly quashed and the writ petition was disposed of with a direction that though the respondent will not be entitled to backwages, his retirement benefits shall be computed taking into account the period upto the date when he attained the age of superannuation, as service qualifying for retirement benefits. The learned single Judge also directed computation and disbursal of terminal benefits within three months from the date of receipt of a copy of the judgment. Aggrieved thereby the respondents in the writ petition have filed this writ appeal. 8. We heard Sri.Benny Gervasis, leaned Senior Government Pleader appearing for the appellants and Sri.Millu Dandapani, learned counsel appearing for the respondent. We have also gone through the pleadings and the materials on record. From Ext.P1(a) memo of charges, Ext.P1(b) statement of allegations of misconduct and Ext.P2 reply submitted by the respondent it is evident that the respondent did not join duty as Assistant Professor notwithstanding the fact that the Government had issued orders on 28.10.1993 posting him as Assistant Professor in Government Medical College, Kozhikode. The explanation offered by the respondent is that he ought to have been promoted and posted as Associate Professor. The pleadings and the materials on record also disclose that though W.A.No.2809 of 2007 -:8:- the respondent had reported before the Director of Medical Education on 21-1-1993 he was given a posting order only on 28.10.1993. Therefore, the period from 21.1.1993 to 28.10.1993 cannot be said to be unauthorised absence. The Government did not also accuse him of being unauthorisedly absent till 28.10.1993. The charge against the respondent in Ext.P1(a) memo of charges dated 13.4.1994 was that though a posting order has been issued vide G.O(Rt) No.2872/93/H&FWD dated 28.10.1993 the respondent has not till the date of issuance of the memo of charges (13.4.1994) complied with the said order and rejoined duty and therefore, he is unauthorisedly absent from duty. A reading of Ext.P2 written statement of defence submitted by the respondent discloses that he admits having received the Government order dated 28.10.1993 and that he did not join duty as Assistant Professor pursuant to the said order. In Ext.P2 written statement of defence he had stated as follows:- “I would submit that I have made a representation to the Government after the receipt of the order dated 28.10.1993 that I may be allowed to join in the post of Associate Professor. It was a legal entitlement for me but the Government did not consider the same. I was awaiting the Government order promoting me as an Associate Professor and bonafide believed the Government will not deny my right of W.A.No.2809 of 2007 -:9:- promotion as a civil servant. I am victimised and the promotion legally due was withheld. The action of the Government is biased and tainted my malafides as could be seen from the written statement filed in O.S.No.488/1993. I am prepared to join duty in the post of Associate Professor and the Government may be pleased to issue an order on this matter as is now issued but the conditions of my service may not be varied to my disadvantage till the final disposal of O.S.No.488/1993 of the Munsiff's Court, Alappuzha. So the delay caused in posting me is not due to any fault on my part. The delay was deliberate on the part of the Government and the cause for the same is unknown.” (emphasis supplied) 9. A reading of Ext.P2 written statement of defence submitted by the respondent discloses that he has admitted the charge that he was unauthorisedly absent from 28.10.1993. The Government was not satisfied with Ext.P2 written statement of defence. The Government accordingly appointed Dr.B.Umadathan, Joint Director, Directorate of Medical Education, Trivandrum as the enquiry officer. The enquiry officer also found that the respondent should have joined duty and thereafter represented for promotion. The relevant portion of the finding in Annexure A report is as follows:- “Government have issued orders on 28.10.1993 only posting the doctor in the vacancy of Assistant Professor at Medical College Kozhikode. The doctor had W.A.No.2809 of 2007 -:10:- not joined duty and thereby did not obey the Government orders. This amounts to insubordination and dereliction of duty. Though there was administrative delay in issuing the reposting order, the doctor should have joined duty. Thereafter he should have represented for promotions.” (emphasis supplied) The enquiry officer thereafter made the following recommendation:- “For no fault of the doctor there was much delay in issuing reposting orders to him is none of his fault. Had he been reposted in time, he would have become eligible for promotion as Associate Professor and Professor. He lost his opportunity due to administrative delay. He may be compensated by giving an opportunity to join back in service and his seniority over others may also be restored. For not complying with the earlier Government Order, a minor punishment is recommended if he joins service now.” (emphasis supplied) 10. The said recommendation in our opinion was beyond the competence of the enquiry officer. The enquiry officer had only a duty to decide whether the charge against the delinquent employee has been proved. He can at best give reasons in support of his conclusions. What the punishment should be or whether any punishment should be imposed at all, is a matter exclusively within the jurisdiction of the disciplinary authority, which in the instant case is the Government. After Annexure A enquiry report was received, W.A.No.2809 of 2007 -:11:- evidently having regard to the recommendations of the enquiry officer the Government issued Ext.P3 order dated 20.8.1996 posting the respondent as Assistant Professor of Dermatology and Venereology in Medical College, Kozhikode. The respondent did not admittedly join duty even thereafter. He continued to be absent. In other words, he stuck to his stand in Ext.P2 written statement of defence that he would join duty only as Associate Professor, to which post he claimed he was legitimately entitled to be promoted. When the respondent did not join duty, the Government issued Ext.P4 show cause notice informing him that the Government have, based on the findings in the enquiry report and his conduct in not joining duty even after receipt of Ext.P3 posting order, provisionally decided to remove him from service as he continues to be unauthorisedly absent. The respondent was called upon to submit his reply to the show cause notice. The respondent submitted Ext.P5 reply. Even in Ext.P5 reply he had no case that he had joined duty or that he was willing to join duty. In Ext.P5 also, his contention was that no opportunity was given to him to join a post which he is entitled to get. The relevant portion of Ext.P5 reads as follows:- “Dr.B.Umadathan, Joint Director, Directorate of Medical Education, Trivandrum, was appointed as the W.A.No.2809 of 2007 -:12:- Enquiry Officer, who conducted enquiry and submitted his report finding that I a not guilty of the charge made against me. Pursuant to that, I was again asked to rejoin duty. Even though I was physically present before the Director of Health Services to join duty, no posting was given to me. I waited for several months to get a posting order. In the meantime, the Department was filling up the temporary vacancies by way of giving promotions to persons who are juniors to me. No opportunity was given to me to join in a post which I am entitled to hold. Therefore, the charge made against me that even though I was appointed on 20.08.1996 in Medical College, Kozhikode I have not joined duty and therefore, I am liable to be removed from service with effect from 10.04.1993 is unsustainable, hence denied. Since in the earlier enquiry, charges leveled against me were found incorrect, the Government is not at all justified in issuing the present show cause notice to impose a punishment of removal from service w.e.f. 10.04.1993. The above notice is issued against the mandatory provisions of the Kerala Civil Service (Classification, Control & Appeal) Rules and the same is against the principles of natural justice.” 11. A reading of Ext.P5 reply would lead to the following conclusions. The respondent did not admittedly join duty even though the Government had issued an order on 28.10.1993 posting him as W.A.No.2809 of 2007 -:13:- Assistant Professor in Medical College, Kozhikode. Ext.P5 also discloses that even after Ext.P3 Government order dated 20.8.1996 was issued, the respondent did not join duty and that the only reason given by the respondent for not joining duty is that no opportunity was given to him to join a post which according to him he was entitled to hold. This indicates that he was willing to join duty only as Associate Professor. Ext.P5 also discloses that though the respondent was aware of the findings of the enquiry officer, he contended that the enquiry officer had found him not guilty of the charge and therefore, Ext.P4 notice is contrary to the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules. 12. The respondent had no case either in Ext.P5 or in the writ petition that a copy of the enquiry report was not served on him. The only ground on which Ext.P6 order was challenged was that it is passed in clear violation of the principles of natural justice and the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules. Even in the writ petition the respondent had no case that a copy of the enquiry report (Annexure A) was not furnished to him. The only defence put forward by him in Ext.P5 reply to Ext.P4 show cause notice was that no opportunity was given to him to join a post which he is entitled to hold. In other words, a reading of Ext.P5 W.A.No.2809 of 2007 -:14:- would indicate that the respondent had admitted the fact that he continues to be absent without leave ever since 28.10.1993. 13. As stated above, the enquiry officer had come to the categoric finding that the conduct of the respondent in not joining duty amounts to insubordination and dereliction of duty. The enquiry officer had also opined that the respondent ought to have joined duty and thereafter moved for promotion. It was taking a lenient view that the Government once again offered the respondent an opportunity to join duty by issuing Ext.P3 order dated 20.8.1996 posting him as Assistant Professor in Medical College, Kozhikode. The respondent did not accept that offer. He continued to stay away from duty. It was in such circumstances that the Government issued Ext.P4 show cause notice with specific reference to Annexure A enquiry report and the findings therein and also the charges leveled against him in Ext.P1(a) memo of charges. A reading of Ext.P4 show cause notice conclusively establishes that it was one issued in continuation of the enquiry held against the respondent. The show cause notice refers to Ext.P1(a) memo of charges, Ext.P2 written statement of defence submitted by the respondent, the order appointing the enquiry officer, Ext.P3 Government order posting the respondent for the second time as Assistant Professor of Dermatology and Venereology and also the W.A.No.2809 of 2007 -:15:- findings and observations in Annexure A enquiry report. Ext.P4 also conclusively establishes that it was taking note of the admitted fact that the respondent was unauthorisedly absent from 28.10.1993, even after a posting order was issued and his continued absence even after the second posting order (Ext.P3 dated 20.8.1996) and the finding in the enquiry report that the respondent has disobeyed the Government order and thereby committed insubordination and dereliction of duty, that the Government decided provisionally to remove him from service. A reading of Ext.P5 reply submitted by the respondent to the show cause notice indicates and establishes conclusively that the respondent had admittedly not joined duty even after Ext.P3 order dated 20.8.1996 was issued. Ext.P2 written statement of defence and the finding in Annexure A enquiry report would indicate that the respondent had admittedly not joined duty after 28.10.1993. The respondent has no case that he had applied for leave after 28.10.1993. In such circumstances it cannot be said that the respondent is not unauthorisedly absent since 28.10.1993 or that the Government had no reason to initiate action against him or to remove him from service. The learned single Judge has interfered with Ext.P6 order on the short ground that the procedure contemplated under rule 15 of the Kerala Civil Services (Classification, Control and Appeal) W.A.No.2809 of 2007 -:16:- Rules was not followed before the said order was passed. We are afraid the said finding cannot be sustained. 14. As noticed earlier, it was after a memo of charges was issued and the respondent was afforded an opportunity to file a written statement of defence and after an enquiry was held and after again affording the respondent an opportunity to report for duty notwithstanding the finding of the enquiry officer that he is guilty of insubordination and dereliction of duty, that the Government thought it fit to proceed further with the enquiry report and to remove the respondent from service. Ext.P4 show cause notice, according to us, is not the initiation of a fresh disciplinary action. It is one issued in continuation of Ext.P1(a) memo of charges, based on the findings in Annexure A enquiry report and the continued absence of the respondent though after taking a lenient view, the Government had on 20-8-1996 issued Ext.P3 order posting him as Assistant Professor. From the admitted facts and the recitals in Exts.P3 and P4 it is evident that Ext.P4 show cause notice is one issued in continuation of the proceedings initiated by the Government under rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules. 15. The respondent was admittedly guilty of unauthorised absence from 28-10-1993. He has no explanation for his absence W.A.No.2809 of 2007 -:17:- from 28.10.1993. On the other hand it is evident from his conduct and the admissions made in Ext.P2 written statement of defence and Ext.P5 reply that he was not prepared to join duty as Assistant Professor. He was adamant that he will join duty only in the post of Associate Professor. The Government removed the respondent from service only after an enquiry was held and based on the findings in the enquiry report and that too after affording the respondent an opportunity to mend his ways. We are therefore, of the considered opinion that the challenge to Ext.P6 is without any merit. We accordingly allow the writ appeal, reverse the judgment of the learned single Judge and dismiss the writ petition. The parties shall bear their respective costs. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.2809 of 2007 ---------------------------- JUDGMENT 28th July, 2010