IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 OP.No. 29564 of 2002(T) ----------------------- PETITIONER(S): --------------- T.S. OMANA, W/O. HARIHARAN, AGED 51 YEARS, HEAD NURSE, COMMUNITY HEALTH CENTRE, VAIKOM, RESIDING AT UNNIRAN THARAYIL HOUSE, UDAYANAPURAM P.O., VAIKOM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH SERVICES, KERALA STATE, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, KERALA STATE, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, KOTTAYAM. 4. THE SUPERINTENDENT, GOVERNMENT HOSPITAL, VAIKOM. GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 29564/2002. ----------------------------------------------------------------- EXT.P1 TRUE COPY OF MEMO OF CHARGES DT.17-10-1996. EXT.P2 WRITTEN STATEMENT DT. 27-1-1998. EXT.P3 SHOW CAUSE NOTICE DT. 3-7-1998. EXT.P4 REPLY DT. 8-8-1998. EXT.P5 ORDER DT. 29-9-1998. EXT.P6 APPEAL DT. 6-11-1998. EXT.P7 ORDER DT. 8-1-2002. [TRUE COPY] P.S. TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 29564 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 1st April, 2009. J U D G M E N T The petitioner is a Head Nurse in the Community Health Centre, Vaikom. She was promoted while working as a staff nurse in the Government Hospital, Vaikom. There was some dispute as to the post to which the petitioner should be assigned work in respect of which there were litigations before this Court. Subsequently, the petitioner was proceeded against for the misconduct of absence without leave for a period of ten years from 24-11-1987, which resulted in Ext. P1 memo of charges. The petitioner filed Ext. P2 reply. By Ext. P3 show cause notice, the petitioner was informed that the reply to the charge memo was unsatisfactory and she was further directed to show cause why the punishment of barring one increment without cumulative effect should not be imposed on the petitioner. The petitioner again filed Ext. P4 reply. However, by Ext. P5 order, the Director of Health Services confirmed the punishment. The petitioner's appeal was also dismissed by Ext. P7 order. The petitioner challenges Exts.P.5 and P7 orders in this original petition. 2. According to the petitioner, the petitioner was not absent without leave as alleged. She was present for duty every day and she could not do her work only because she was not assigned duty to the post to which she was posted. For that, the petitioner cannot be blamed, is the contention. Therefore, according to the petitioner, the impugned orders are totally unsustainable and liable to be quashed. 3. The learned Government Pleader opposes the contentions. According to the learned Government Pleader, the petitioner was permitted to work as a Head Nurse. But, she took an adamant stand that she will work only in the post of her liking. The learned Government Pleader would submit that the petitioner was liable to discharge the duties assigned by her superiors and after having not O.P.. No. 29564/02 -: 2 :- done the work, she cannot come and say that since she was not assigned duty in another post, she will not work. Having done so, that amounts to absence without leave and even dereliction of duty. 4. I have considered the rival contentions in detail. 5. The petitioner had earlier approached this Court by filing O.P.No. 1012/1988 claiming for following reliefs: “i) To issue a writ of mandamus directing the respondents to permit the petitioner to resume duty immediately as operation theater nurse in the postpartum unit of the Government hospital, Vaikom and permit her to mark attendance as such. ii) to issue a writ of mandamus directing the respondents to permit the petitioner to discharge her duties as operation theater nurse in accordance with the job specifications without any restraints or hindrance and not assign any duties to her unconnected with her post. iii) to issue such order writ orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.” The very same set of facts led to Ext. P1 memo of charges and punishment. In that original petition, this Court passed the following judgment: “Petitioner is a nurse attached to the Government hospital, Vaikom. She was transferred and posted at that hospital as per Ext. P1 order dated 30-9-1986. The said order of posting is claimed to be one posting her in the operation theater of post partum unit. Her complaint is that she is not allowed to discharge the duties as nurse in the operation theater but she is being posted to do the ordinary duties as a nurse. According to her, she should be posted only in the post partum unit and for that purpose she has approached this court. 2. A copy of this petition was served on the learned Government Pleader. He was also heard. 3. Ext. P 1 order by which the petitioner was posted in the Government hospital, Vaikom reads as follows: O.P.. No. 29564/02 -: 3 :- “Smt. T.S. Omana, Staff Nurse, Govt. Hospital, Tykkattussery who stands transferred and posted to Govt. Hospital, Vaikom will join duty at Govt. Hospital, Vaikom in the vacancy of S.R. Pavithra.” This order does not bring out the particular post to which she was transferred. The petitioner's contention that she should be allowed to work as nurse in the operation theater of the post partum unit cannot be spelled out from Ext. P1. 4. On an earlier occasion the petitioner approached this Court with identical relief by filing O.P.No. 2681/87. That was dismissed on 30.3.87. That decision was challenged in W.A.398/87. Division Bench dismissed that appeal observing: “The appellant is very unreasonable in approaching this Court for the type of relief which has been sought vis. that she should be posted to do work in the operation theater of the Government Hospital. She has already been posted as a nurse in the Government hospital where she is working. It is for the officers in charge to allocate the appellant depending upon exigencies of the circumstances and it is not for this court to interfere with such matters.” There has been no change in the situation warranting interference by this Court under Article 226 of the Constitution. This court is not to pass orders posting the nurse in the hospital. It is the duty of the Superintendent of the hospital to attend to such responsibilities. 5. From the averments it appears that the petitioner is allergic to the work of a nurse outside the operation theater. The petitioner, so long as she holds the post of nurse, cannot be allowed to pick and choose a particular type of work alone. The allotment of work will depend on the exigencies of circumstances in the hospital. The Superintendent is the authority competent to make arrangements regarding the allotment of work. 6. In the original petition it is stated: “It is therefore clear that the operation theater nurse appointed specifically to that post is not required to attend to any duties other than as an operation theater nurse except in connection with such operations performed during family planning camps. xx xx xx The order of the Superintendent therefore directing the O.P.. No. 29564/02 -: 4 :- petitioner also to attend to other duties in the hospital is clearly outside his jurisdiction. The operation theater itself is not strictly under the control of the Medical Superintendent but under the Medical Officer post partum unit. This averments lead to the inference that the petitioner is bent upon disobeying the directions given by the Superintendent of the hospital who is the controlling officer. The petitioner is not prepared to discharge the duties as a nurse if she is not given permission to work in the operation theater where family planning operations are being done. This callous indifference on the part of the petitioner is not to be supported by this court in exercise of its power under article 226 of the Constitution. The original petition fails. It is accordingly dismissed.” I am of opinion that the said judgment is a complete answer to all the contentions of the petitioner. I am of opinion not only that she is guilty of the misconduct and that for 10 years of unauthorised absence from duty, the petitioner was let off very lightly. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. Accordingly, the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/