IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 WP(C).No. 204 of 2011(A) ------------------------ PETITIONER(S): --------------- DR.P. MUHAMED MUSTAQUE, S/O. MOIDU, ASSISTANT SURGEON, DISTRICT HOSPITAL, KANNUR, RESIDING AT MARVA, NEAR KAMALIYA SCHOOL, IRIKKUR.P.O, KANNUR - 670 593. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) RESPONDENT(S): --------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, TRIVANDRUM - 695 001. 2. THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM - 695 001. 3. THE DISTRICT MEDICAL OFFICER (HEALTH), KANNUR - 670 001. GOVT. PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 204 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th day of January, 2011. J U D G M E N T The petitioner entered service of the Department of Health of the Government of Kerala as Assistant Surgeon on 1.10.1992. The petitioner was granted 5 years' leave without allowance for accepting employment abroad from 13.6.2002. The petitioner applied for extension of leave for a further period of 5 years on 12.3.2007. The petitioner was later served with a show cause notice directing him to join duty by a proceedings of the Government dated 19.6.2009, which is Ext. P4. The petitioner did not rejoin duty. Subsequently, by Ext. P5, the petitioner was directed to produce certificate of proof of date of birth in person before the Additional Secretary (Health) for considering his representation dated 11.8.2009. The petitioner filed Ext. P6 reply stating that since he is leaving India on 21.9.2009, he is not in a position to meet the Additional Secretary as directed in Ext. P5 and he forwarded an attested copy of his passport. He further stated that he can come only on 19.12.2009. His request for further time was rejected by Ext. P7. Subsequently, by order dated 29.4.2010, the petitioner was dismissed from service for unauthorized absence without leave. The petitioner is challenging the same seeking the following reliefs: “(i) Issue a writ of certiorari or such other writ quashing Ext. P 8. (ii) issue a writ of mandamus or such other writ directing the 1st respondent to permit the petitioner to rejoin in service.” 2. The contention of the petitioner is that the procedure prescribed by law imposing punishment of dismissal on the petitioner has not been complied with and therefore the punishment of dismissal W.P.C. No. 204/2011 -: 2 :- from service imposed by Ext. P8 order is clearly unsustainable. 2. I have heard the learned Government Pleader also. 3. Rules regarding grant of leave without allowances categorically stipulate that a Government servant shall proceed on leave only after getting the leave sanctioned. Here, admittedly, the request for extension of the leave sought for by the petitioner was not sanctioned. On the other hand, in Ext. P8, it is specifically stated that his request for extension of leave was rejected. As such, the petitioner had no right to be absent from duty after 13.6.2002. Ext. P8 categorically states that all unauthorized absentees who did not respond to the show cause notices were given time till 27.2.2010 to rejoin duty. Admittedly, the petitioner did not rejoin duty within that time also. Ext. P8 also shows that the petitioner was requested to execute a bond in connection with his foreign trip, which also the petitioner did not do. Ext. P8 shows that notices to the petitioner were published in leading dailies, to which the petitioner did not respond. As such, there does not appear to be any procedural lapses also. Admittedly, the petitioner's leave without allowance was not extended beyond 12.6.2007 and the petitioner did not rejoin duty after the expiry of the leave and therefore he was obviously unauthorisedly absent after 12.6.2007. He did not also rejoin duty despite specific direction issued to do so. His request for extension of time to rejoin duty was also rejected since he refused to execute a bond in connection with his foreign trip. As such, unauthorized absence and failure to rejoin duty despite specific direction to do so are beyond any dispute whatsoever. Therefore, insofar as the fact of unauthorized 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 W.P.C. No. 204/2011 -: 3 :- 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 under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [TRUE COPY] P.S TO JUDGE.