IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 WP(C).No. 18498 of 2010(J) -------------------------- PETITIONER: --------------- DR.M.K. VALSAN, AGED 54 YEARS, S/O. KUNJITTY, EARLIER WORKING AS ASSISTANT PROFESSOR IN O & G, MEDICAL COLLEGE,KOZHIKODE, RESIDING AT KOLAYATHAZHAM, KARANTHOOR, KOZHIKODE DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, MEDICAL COLLEGE, CALICUT. BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.18498/10 PETITIONER'S EXTS: EXT.P1: COPY OF G.O.(MS)NO. 4577/94/H&FWD DT.14.12.94. EXT.P2: COPY OF APPLICATION SUBMITTED BY THE PETITIONER REQUESTING TO GRANT EXEMPTION FROM TURN DUTY. EXT.P3: COPY OF APPLICATION SUBMITTED BY THE PETITIONER ON 12.6.06 FOR LWA FROM 1.7.06. EXT.P4: COPY OF APPLICATION FOR LEAVE ON MEDICAL GROUND SUBMITTED BY THE PETITIONER ON 29.8.06. EXT.P4(A): COPY OF MEDICAL CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY. EXT.P5: COPY OF RESIGNATION LETTER DT.27.12.06 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P6: COPY OF FORWARDING LETTER DT.2.1.07 OF THE 3RD RESPONDENT. EXT.P7: COPY OF SHOW CAUSE NOTICE WITH COVERING LETTER DT.3.4.07 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P8: COPY OF REMINDER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P9: COPY OF REPLY LETTER DT.24.5.07 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P10: COPY OF ORDER G.O.(MS)NO.359/2007/H&FWD ISSUED BY THE 1ST RESPONDENT DT.10.8.07. EXT.P11: COPY OF REVIEW PETITION FILED BY THE PETITIONER. EXT.P12: COPY OF JUDGMENT DT.5.8.09 IN W.P.(C)NO.22120/09. EXT.P13: COPY OF ORDER DT.20.11.09 ISSUED BY THE 1ST RESPONDENT. RESPONDENTS' EXTS: EXT.R1(A): COPY OF GO(RT)NO.2190/03/H& FWD DT.22.7.03. TRUE COPY P.A.TO JUDGE dsn T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.18498 OF 2010 --------------------------------------- Dated this the 26th day of September, 2011. J U D G M E N T This writ petition is filed by the petitioner aggrieved by the order of termination Ext.P10 and the subsequent order passed as per Ext.P13 rejecting the application for review. 2. The petitioner was working as Assistant Professor in Obstetrics & Gynecology, in the Medical College, Kozhikode. He entered service as Assistant Surgeon on 15.02.1996. It is the case of the petitioner that the petitioner completed 50 years of age in the year 2006 and thereby he became eligible for turn duty exemption by virtue of Ext.P1 Government Order. The petitioner had submitted an application for exemption from turn duty mainly due to the fact that the physical condition of the petitioner did not permit him to undertake the same. Because of these factors, he applied for Leave Without Allowance for a period of five years from 01.07.2006 as per application dated 12.06.2006. Ext.P3 is the copy of the said application. W.P.(C) No.18498/2010 2 3. It is submitted that the petitioner had availed leave on account of illness and in the meanwhile, application for leave on medical ground was submitted on 29.08.2006. At that point of time, he was having sufficient leave to his credit also. Ext.P4 is the application and Ext.P4(a) is the medical certificate. It is pointed out in paragraph 5 of the writ petition that his physical condition has not improved and finally it is submitted that he was constrained to submit resignation from service on 27.12.2006 (Ext.P5). Ext.P6 is the copy of the letter dated 02.01.2007 by which the 3rd respondent has forwarded the resignation letter. Ext.P6 shows that there were no liabilities to the Government outstanding against the petitioner. 4. After four months, the petitioner received a show cause notice as per Ext.P7 proposing disciplinary action. The petitioner submitted Ext.P8 reply stating that he had submitted his resignation much prior to that. Ext.P9 is a further reply given by the petitioner. It is stated therein that the petitioner applied for Leave Without Allowance for personal reasons and his request is 100% genuine and since no disciplinary action or enquiry was W.P.(C) No.18498/2010 3 pending, there is no reason not to accept the resignation. 5. Thereafter, Ext.P10 order was passed and the petitioner filed a review petition as per Ext.P11 which also stands rejected by Ext.P13. Learned counsel for the petitioner submitted that the show cause notice issued is of a general nature applicable to so many doctors. But, the petitioner's case stood on a different footing. The petitioner had the right to submit resignation which was recommended by Ext.P6. There were no liabilities outstanding against him also. It is pointed out that the initiation of disciplinary action against various doctors was only after four months. But, in Ext.P10, the main reason stated is that the doctors in spite of the receipt of show case notice did not join duty. It is submitted that the inclusion of the petitioner along with other doctors in the list for termination therefore cannot be accepted. It is submitted that he has got a right to resign from service and there is no valid reason not to accept the same. 6. My attention was invited to Ext.P13 order wherein the view taken is that in the light of the disciplinary action against the petitioner, the resignation could not have been accepted. W.P.(C) No.18498/2010 4 Learned counsel for the petitioner submitted that at the time of submission of resignation on 27.12.2006 as evident from Ext.P5 letter, no disciplinary action was pending against him. The same was initiated after the expiry of nearly four months. It is, therefore, submitted that the reason stated in Ext.P13 cannot be supported. It is further pointed out that the order of termination will deprive the petitioner of any opportunity for any future employment also. He has already attained the age of superannuation. Therefore, it is contended that there is no legal embargo to accept the resignation as the petitioner will be deprived of the service benefits in such cases also. 7. Learned Government Pleader submitted that Leave Without Allowance could not have been granted as the Department namely, Obstetrics and Gynaecology was declared as a scarce category. 8. My attention was invited to various averments in the counter affidavit. Evidently, in Ext.P13 as well as in the counter affidavit, the stand taken is that the resignation cannot be accepted from a delinquent when disciplinary action was already W.P.(C) No.18498/2010 5 initiated against him. It is a case where in spite of submission of resignation letter and in spite of forwarding of the same by the Principal, no reply was given to him even with regard to a decision if any to reject the resignation. Apart from that, the fact that the petitioner had the right to resign from service cannot be disputed. Of course, it depends upon the acceptance of the same by the employer herein being the Government. But, what is projected as the reason for rejecting the review petition is that the disciplinary action was already initiated and, therefore, the resignation could not have been acted upon. Evidently, at the time of submission of resignation letter, no disciplinary action was there. It was initiated only about four months thereafter. 9. Learned counsel for the petitioner further submitted that even though show cause notice was received, he did not choose to rejoin since he has already submitted resignation letter and was expecting its acceptance also. 10. Evidently, it is a case where disciplinary action was not there at the time when resignation was submitted. As far as the petitioner is concerned whether it is a termination from service W.P.(C) No.18498/2010 6 or of his leaving the service on acceptance of resignation, the consequence will be the same, regarding the benefits if any payable by the Government, since the petitioner will not be entitled for anything. What is sought for is therefore conversion of termination to one of acceptance of resignation. In that view of the matter, the Government will reconsider Exts.P10 and P13 and appropriate orders will be passed afresh after hearing the petitioner within a period of two months from the date of receipt of a copy of this judgment. The plea raised by the petitioner will be considered in the light of the observations made by this Court as above. To enable the Government to reconsider the review petition, Ext.P13 is quashed. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp