Dismissed

Dr.Gracykutty Mathew, v. State of Kerala

Kerala HC10 Jan 2020OP(KAT)/224/2019

Case brief

AI extract

What is this about?

A two-judge bench dismissed a petition challenging the Kerala Administrative Tribunal's dismissal of an appeal against the petitioner's removal from service due to unauthorized absence. The court upheld the department's decision to terminate her post without an enquiry under Article 311(3) and found the decision to reject reinstatement valid despite a prior tentative order.

What did the court decide?

Original petition dismissed; no interference with the well-reasoned order of the Tribunal.

Dr.Gracykutty Mathew, Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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OP(KAT).224/19

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941

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OP(KAT).No.224 OF 2019

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AGAINST THE ORDER/JUDGMENT IN OA 514/2017 DATED 20-05-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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DR.GRACYKUTTY MATHEW, AGED 61 YEARS D/O. G.E. MATHEW, (FORMER PROFESSOR AND HEAD OF THE DEPARTMENT OF NEUROLOGY, GOVERNMENT MEDIAL COLLEGE HOSPITAL, KOTTAYAM), RESIDING AT DEVAKRIPA, EDAYALIL, AMALAGIRI, KOTTAYAM, PIN-686036., MOB-9447159703.

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.SAJU JOHN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY SMT.K.N.REMYA

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RESPONDENT/S:

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STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.,PIN-695001.

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OTHER PRESENT:

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SR.GP SRI.,ANTONY MUKKATH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 10.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.VINOD CHANDRAN & V.G.ARUN, JJ.

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O.P.(KAT) No.224 of 2019

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Dated this the 10^th day of January, 2020

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JUDGMENT

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Arun, J.

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The petitioner had approached the Kerala Administrative Tribunal aggrieved by Annexure A4 G.O(MS).No.342/ 2011/H&FWD dated 24.5.2011, by which

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she was removed from service, as affirmed by Annexure A7 G.O(Rt).No.403/ 2017/H&FWD dated 15.2.2017. The short

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facts which led to the issuance of Annexures A4 and A7 orders are as under;

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The petitioner was appointed as Lecturer in Neurology in the Medical Education Department and had joined service on 15.1.1992. She was later promoted as Professor on 7.12.2004. While holding the post of Professor and Head of the Department of Neurology at the Medical College, Kottayam, the petitioner applied for leave for a period of 730 days with effect from 1.10.2009. The

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application for leave was rejected finding that absence of the petitioner would adversely affect the teaching of students as well as patient care at the Medical College. On her application being rejected, the petitioner reported for duty on 10.10.2009, upon which, based on her written expression of willingness, the petitioner was permitted to rejoin duty with effect from 10.10.2009. Again, as per application dated 12.11.2009, the petitioner applied for leave without allowance for 730 days from 16.11.2009. After submission of leave application, the petitioner did not attend duty from 16.11.2009 onwards, without permission and without the leave being sanctioned, in spite of repeated requests by her controlling officer.

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Finding that a large number of Doctors in the Medical Education Service were on unauthorised leave, and had either taken up employment abroad or in private hospitals or had set up private practice, the Government issued Annexure A1 show cause notice dated 29.7.2010 to 65 Doctors, including the petitioner, requiring the Doctors to report for duty within 15 days. The Doctors were also

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informed that failure to report for duty within the stipulated time will entail in their termination from service without further notice. In reply to Annexure A1, the petitioner put forth various reasons, including the reason that 472 days eligible leave was still available to her, which, if calculated from 16.11.2009, would expire only on 1.3.2011. The petitioner therefore requested to confirm her leave till 1.3.2011. On receipt of Annexure A2, the Government issued Annexure A3 notice dated 17.8.2010 informing the petitioner that she was on unauthorised leave from 16.11.2009 and that the Government had decided to dismiss her from service. By Annexure A3 communication the petitioner was informed that she had failed to execute an undertaking that she will not proceed on unauthorised absence agan. A further chance to execute the agreement

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was given and the petitioner put on notice that if she failed to rejoin duty and execute the agreement, the Government would go on with the disciplinary proceedings initiated as per the show cause

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OP(KAT).224/19 6 notice dated 29.7.2010. It was only thereafter that Annexure A4 was issued, deciding to confirm disciplinary action against the petitioner by invoking Article 311(3) of the Constitution of India and Rule 18(ii) of the KCS(CCA) Rules.

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On being served with Annexure A4, the petitioner submitted Annexure A5 review petition and followed it up by filing W.P(C).No.16234 of 2011 before this Court, which was later transferred and numbered as T.A.No.6440 of 2012 before the Kerala Administrative Tribunal. That original application was disposed under Annexure A6 order directing the Secretary, Health and Family Welfare Department to take a decision on Annexure A5 review petition. Accordingly, Annexure A7 order was issued rejecting the review petition, in spite of an earlier tentative decision to reinstate the petitioner in service, which was consented to by the Kerala Public Service Commission. Aggrieved, the petitioner approached the Kerala Administrative Tribunal seeking the following reliefs:

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“a) to set aside Annexures A4 and A7

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b) to direct the respondents to reinstate the applicant in service forthwith, with all consequential benefits.”

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On consideration of the rival pleadings and the

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arguments advanced, the Tribunal came to the conclusion that the petitioner's absence from service was willful. Noticing that 65 Doctors in the Medical Education Service were being proceeded against simultaneously pursuant to Annexure A1 show cause notice, the Tribunal found that the initiation of the disciplinary proceedings or enquiry in individual cases was not practical and therefore the invocation of Article 311(3) and Rule 18(ii) of the KCS(CC&A) Rules was justified. It was also held that the decision of the Government not to implement its tentative decision to reinstate the petitioner was well-founded, the Government having come to the conclusion that reinstatement of the petitioner would set a bad precedent and would also give rise to further litigations. Based on its findings the Tribunal dismissed the original application and rejected the claim for pensionary benefits.

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Heard Sri.S.P.Aravindakshan Pillay, learned counsel for the petitioner and Sri.Antony Mukkath, learned Senior Government Pleader appearing for the respondents.

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The main contention urged on behalf of the petitioner is that the Government had failed to consider the contentions put forth by the petitioner in her review petition. It is contended that having arrived at a tentative decision to reinstate the petitioner in service, the Government had retracted from that decision, swayed by the fact that her reinstatement would set a bad precedent. Learned counsel for the petitioner points out that Annexure A7 evidently indicates the biased manner in which petitioner's case was considered at the Government level. It is submitted that the decision of the petitioner to enter on leave was due to compelling circumstances. It is pointed out that in the year 2009, the Government had issued orders prohibiting private practice of Doctors in Government service. That, the petitioner had opposed the Government decision. This had caused animosity against her resulting in the DYFI activists restraining and threatening her inside the

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Medical College premises. This illegal action had forced the petitioner to file WP(C).No.27024 of 2009 before this Court seeking protection for her life. Even though police protection was granted as per judgment dated 9.10.2009, the petitioner found it impossible to perform her duties at the Medical College without fear and therefore she had sought leave for a period of 730 days. It is hence contended that the petitioner's absence from duty, under circumstances which were not attributable to her, cannot be termed as unauthorised absence, the sole reason for removing her from service.

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The fact that the petitioner had initially applied for leave for 730 days from 1.10.2009 and that on her application being rejected, the petitioner had rejoined on 10.10.2009, is not in dispute. The further fact that the petitioner had again submitted application for leave for a period of 730 days with effect from 16.11.2009 and had, without waiting for sanction of leave, absented herself from duty is also not disputed. As rightly contended by the learned Senior Government Pleader, Rule 65 of Part I

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KSR makes it clear that leave cannot be claimed as a matter of right and when exigencies of public service so require, discretion to refuse or to revoke leave of any description is reserved to the authority empowered to grant it.

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In such circumstances, the action of the petitioner in not attending duty, in spite of leave not being sanctioned to her, can be perceived only as unauthorised absence. The reasons stated by the petitioner for her absence from duty is also not convincing. The reasons stated being threat and intimidation from the youth wing of a political party, due to the petitioner's opposition to a Government order prohibiting private practice of Government Doctors, which forced her to approach this Court with W.P(C).No.27024 of 2009. We called for the judges papers and the judgment in that writ petition. A perusal of the pleading in W.P(C).No.27024 of 2009 shows that the petitioner was prevented from leaving the consultation room at the Medical College Hospital, Kottayam without completing the examination of all the out patients present on that day.

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The petitioner in that writ petition waxes eloquent about a dispute existing between the Government and the Doctors in the Medical Education Department, without specifying as to what exactly the dispute is. On the incident alleged of the petitioner being detained, there are two paper reports produced. One speaking of her detention in the O.P (Out Patient) while she had been scheduled for a teaching assignment, while the other speaks of her reluctance to tend to the out patients. Obviously the dispute arose on the private practice indulged in by the Doctors in Government service, which the Government sought to curb. The petitioner's contention in the writ petition is also that she had 'faith in her stand'. But the conduct of the petitioner which gave rise to the dispute and the protest by the youth wing of a political party has not been disclosed. Obviously the stand of the petitioner was her right to carry on private practice even at the expense of the patients approaching the Government medical centers for treatment, who are commoners from the marginalised sections of society. This resulted in reluctance to examine the patients

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approaching the Medical College; where no consultation fees could be separately claimed. The petitioner's letter to the Principal at Exhibit P4 in that case indicates the casual manner in which Out-Patient treatment was carried out. The petitioner asserts that there were 300 patients on that single day in the Neurology O.P and eight Doctors finished examining them in two hours. Out of the eight named Doctors two were Junior Residents in Medicine and Psychiatry who obviously were assisting the others with qualification in Neurology. Hence six Neurologists are said to have examined 300 patients within two hours.

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Be that as it may, apprehending repetition of such instances the writ petition was filed. By judgment dated 9.10.2009, WP(C).No.27024 of 2009 was disposed of by this Court recording the submission of the Government Pleader that the Police will render necessary protection to the petitioner, in the event of any complaint regarding obstruction or hindrance being received by the Police. This Court made it clear that in the unlikely event of any obstruction or hindrance caused by respondents 7 to 9 or

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others, the Police will take prompt action to protect the life and property of the petitioner and members of her family and ensure the smooth discharge of her official duties. After having obtained the judgment on 09.01.2009, directing grant of police protection, the petitioner cannot contend that she was forced to avail leave from 16.11.2009 onwards, apprehending danger to her life and limb. More so, in the absence of a pleading that any such threat or obstruction had occurred after the grant of police protection. There is also no allegation raised that she was not provided with sufficient protection or that a like incident recurred in the interregnum, ie: after the order of this Court and prior to availing of subsequent leave.

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As is evident from Annexures A1 and A3, in spite of the petitioner having been on unauthorised absence, she was afforded sufficient opportunity to report for duty after executing an agreement. Instead of rejoining duty immediately, petitioner had taken an obstinate stand that she would rejoin only after her eligible leave period is exhausted. The attitude of the petitioner amply

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demonstrate her lack of dedication, commitment and discipline. If allowed to continue in service she would have definitely set a bad example for others. In such circumstances, the Government was fully justified in terminating the petitioner from service, without enquiry in exercise of the power under Article 311(3) of the Constitution of India and Rule 18(ii) of the KCS(CC&A) Rules.

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The contention that the Government having taken a tentative decision to reinstate the petitioner in service and the PSC having concurred with that decision, the rejection of the petitioner's review petition as per Annexure A7 is illegal, is also unsustainable. The Government is not bound by any tentative decision, if at a later stage a different opinion is formed. In the instant case, the Government has stated the reasons for such variance. The reason being that re-entry of the petitioner in service will give rise to unnecessary claims and would set a bad precedent, forcing the Government to reopen the claims for re-entry of others removed from service for unauthorised absence. We find

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the reason to be tenable and the consequent rejection of

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the petitioner's review petition to be valid.

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In the result, we find no reason to interfere with the well reasoned order of the Tribunal and dismiss the original petition. No order as to costs.

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Sd/-

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K.VINOD CHANDRAN JUDGE

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Sd/- V.G.ARUN JUDGE

vgs x

OP(KAT).224/19

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE O.A(EKM) NO.514/2017 BEFORE THE KERALA ADMINISTRATE TRIBUNAL, THIRUVANANTHAPURAM.

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EXHIBIT P1(A1) TRUE COPY OF COVERING LETTER NO.1/22562/(1)/2009/DME DATED 28.07.2010 OF THE DIRECTOR OF MEDICAL EDUCATION ALONG WITH THE GOVERNMENT SHOW CAUSE NO.30906/S1/2010/H AND FWD. EXHIBIT P1(A2) TRUE COPY OF THE EXPLANATION DATED 07.08.2010 SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT. EXHIBIT P1(A3) TRUE COPY OF THE GOVERNMENT LETTER NO.30906/S1/2010/H AND FWD DATED 17.08.2016. EXHIBIT P1(A4) TRUE COPY OF THE GO(MS) NO.342/2011/H AND FWD DATED 24.05.2011. EXHIBIT P1(A5) TRUE COPY OF REVIEW PETITION DATED 23.11.2015 FILED BY THE APPLICANT BEFORE THE GOVERNMENT. EXHIBIT P1(A6) TRUE COPY OF THE ORDER DATED 10.12.2015 IN T.A.NO.6440 OF 2012 OF THIS HON'BLE TRIBUNAL. EXHIBIT P1(A7) TRUE COPY OF THE GO(RT) NO.403/2017/H AND FWD DATED 15.02.2017. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA(EKM) NO.514/2017 FILED BY THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 20.05.2019 IN OA(EKM) NO.514/2017 OF THE KAT.

Dr.Gracykutty Mathew, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.Gracykutty Mathew, v. State of Kerala

Case brief

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What did the court decide?

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