Judgment dismissed review petition filed by teachers challenging their dismissal due to sick leave abuse against writ court order on grounds of procedural irregularity and non-hearing, rejecting claims of error apparent on record.
Review petition and condonation of delay application dismissed; original judgment upholds dismissal of petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938
R.P.No. 891 of 2016 IN W.P(C)No.13750/2010-P
AGAINST THE JUDGMENT IN W.P.(C)NO.13750/2010 OF HIGH COURT OF KERALA DATED 16-12-2015.
REVIEW PETITIONER(S)/PETITIONERS :-
1. BHAVANA RAMESH, UPSA, NHANGATTUR A.U.P.SCHOOL, P.O.NHANGATTIRI, PALAKKAD DISTRICT.
2. NANDINI V.K., LPSA, NHANGATTUR A.U.P.SCHOOL, P.O.NHANGATTIRI, PALAKKAD DISTRICT.
3. JYOTHILAKSHMI P.G., LPSA, NHANGATTUR A.U.P.SCHOOL, P.O.NHANGATTIRI, PALAKKAD DISTRICT.
4. GEETHA C.,
5. BEENA S.K., LPSA, NHANGATTUR A.U.P.SCHOOL, P.O.NHANGATTIRI, PALAKKAD DISTRICT.
BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.SANTHEEP ANKARATH.
RESPONDENT(S)/RESPONDENTS :-
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION, THIRUVANANTHAPURAM-695 001.
2. THE ASSISTANT EDUCATIONAL OFFICER, THRITHALA, PALAKKAD DISTRICT-678 001.
3. MANAGER, NHANGATTUR A.U.P.SCHOOL, P.O.NHANGATTIRI, PALAKKAD DISTRICT,PIN - 679 303.
R1 & R2 BY SR.GOVERNMENT PLEADER SRI.RENIL ANTO KANDAMKULATHY.
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 02-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:-
R.P.NO.891 OF 2016 IN W.P.(C) NO.13750 OF 2010-P
APPENDIX
REVIEW PETITIONERS' ANNEXURE(S):-
ANNEXURE A1 TRUE COPY OF LETTER NO.D/4226/05 DATED 13.1.2006 ISSUED BY ASSISTANT EDUCATIONAL OFFICER, THRITHALA TO THE DIRECTOR OF HEALTH SERVICES.
RESPONDENTS' ANNEXURE(S):-
NIL.
Vku/[ true copy ]
K. Vinod Chandran, J
R.P.No.891 of 2016 in W.P. (C).No.13750 of 2010-P & C.M.Appln.No.449 of 2016 in R.P.No.891 of 2016
Dated this the 02nd day of November, 2016
ORDER
The petitioners have filed the review petition with a delay of 227 days on three grounds. The first and main ground urged is that the petitioners' Counsel was not heard and the writ petition was disposed of on a misunderstanding; albeit of the Court. It is contented that though the files directed to be produced, were on record, on 14.12.2015 the learned Counsel for the petitioners perused the files and informed the Court that many of the crucial documents are not available in the file and this Court had orally directed the Government Pleader to make available the entire files. The same being on the last week before X'mas vacations; the learned Counsel was under the impression that the matters were adjourned after vacations and had not turned up for the case which was in the hearing list and adjourned on Monday itself; ie: on the 14th of December 2015. The matter was taken up on 16.12.2015, on
which day this Court considered the issue without hearing the petitioners, argue learned Senior Counsel.
RP.891of 2016 in WPC.13750 of 2010-P
“The learned Government Pleader is directed to produce the files of the enquiry report, produced at Exhibit P7, and also specifically place on record whether the petitioners were issued with directions to re-join duty as is indicated in Exhibit P7.
Post after a week in the hearing list”.
JP's show the incorporation of the file by the GP by way of a Memo. On 07.12.2015 the case was posted in the hearing list as item number 803, on which date the learned Counsel was permitted to peruse the files (specifically noted by the Court Officer in the list maintained). On 07.12.2015 the matter was adjourned specifically to the next week for hearing in the 800 list. Though no orders for further production of files
RP.891of 2016 in - 3 - WPC.13750 of 2010-P
is seen, the contention of an oral direction, is vindicated by the endorsement of the Registry on 10.12.2015, of additional files having been produced by the learned Government Pleader.
RP.891of 2016 in WPC.13750 of 2010-P
disposed of on a particular day is available in the list maintained by the Court Officer; from which the learned Counsel and their Clerks normally collect such information, after the close of the day. This Court is constrained to make these observations since it is not left with much choice, as the main thrust in the memorandum of review, in black print allege a deliberate omission on the part of the Court to have disposed of the matter without hearing the petitioners; which, if at all, at the first instance could have been very well submitted across the Bar. The averments so made in the review petition are found to be quite contrary to the actual facts, going by the records of the Court. This Court restrains itself from further speaking on such ground raised.
“7. The enquiry report of the DPI was definitely furnished to the petitioners after Ext.P5
RP.891of 2016 in WPC.13750 of 2010-P
judgment and the petitioners were also heard before Ext.P6 order was passed. The conclusion of the enquiry report was extracted by the Government in Ext.P6 order and found that there was no reason why a notice of hearing should have been given to the petitioners at the time of the enquiry by the DPI. It was found that the DPI had conducted an enquiry, in the nature of a preliminary enquiry and that pursuant to the preliminary report show-cause notice has been issued to the petitioners, in which proceeding the petitioners would have the opportunity to represent their side and place their defence. Hence the Government found that there was no necessity of a notice before the report of the DPI”.
petitioners could have approached the District Medical Officer by themselves for a further medical certificate in support of the leave application especially since there was no direction issued from the Assistant Educational Officer. The petitioners also rely on Annexure A-1 to contend that they were issued with like letters but no
RP.891of 2016 in - 6 - WPC.13750 of 2010-P
examination was conducted. These contentions are mutually destructive. In the same breath they contend that they were not referred to the DMO and contend that after Annexure-I no examination was conducted. Based on the earlier report of the DMO the petitioners were directed to report for duty on 25.09.2005; which was not complied with and another leave application submitted. It is against the subsequent leave applied for, that Annexure-I dated 13.01.2006 was issued; which is in fact a reference made, on the strength of which the petitioners ought to have appeared before the DMO for examination.
RP.891of 2016 in WPC.13750 of 2010-P
the petitioners to report before the District Medical Officer; who examined each of the petitioners and advised them to take a further rest of one month and also opined that the petitioners could be directed to join duty after the said period. The AEO, based on the said report also directed the Headmaster to direct the petitioners to join duty on 25.09.2005. The petitioners, however, again made leave applications, in support of which medical certificates were produced from private practitioners. The contention raised that, without a direction from the AEO the petitioners could not have approached the DMO is also difficult to countenance. The AEO having directed the petitioners to report before the DMO and the said officer having examined each of the petitioners and issued certificates, there was no requirement for a further direction by the AEO to obtain a further medical certificate or fitness certificate from the DMO so as to enable them to join duty. All the same there was a subsequent reference made by Annexure-I which was not responded to by any of the petitioners by proffering themselves for examination before the DMO. This Court is not inclined to accept the said contentions which as noticed are mutually destructive.
RP.891of 2016 in WPC.13750 of 2010-P
termed as errors apparent on the face of the record; but this Court heard and considered the two, only since the petitioners at least, should not be left with the feeling that, for no fault of theirs, the Court had not heard their Counsel.
This Court does not find any reason to review the judgment. The review petition would stand dismissed and so would the application for condonation of delay; the reason stated having been found to be unsatisfactory.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]
3 issues framed by the court
Whether the review petitioners' counsel was heard before the original writ petition was disposed of.
Whether the impugned order was non-compliant with an earlier judgment regarding notice of the enquiry.
Whether the petitioners could approach the District Medical Officer without a specific direction for a further medical certificate.
Bhavana Ramesh
Nandini V.K.
Jyothilakshmi P.G.
Geetha C.
Beena S.K.
State of Kerala
K. Vinod Chandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
