Dismissed

State of Kerala v. B. R. Remadevi

Kerala HC10 Feb 2021OP(KAT)/47/2021

Case brief

AI extract

What is this about?

In a writ petition, the Kerala High Court reviewed an Administrative Tribunal order granting a public health nurse benefits for 19-month medical leave. The Tribunal ruled that document loss by authorities invalidated conditions denying pension, increment, and grade benefits. The HC dismissed the State's challenge and extended the compliance deadline.

What did the court decide?

Extension of compliance deadline for the Director of Health Services to issue orders granting medical leave benefits within six weeks.

State of Kerala Vs B. R. Remadevi — Pension and Retirement Benefits | Kerala HC (2021)

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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 ALEXANDER THOMAS

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THE HONOURABLE MR. JUSTICE T.R.RAVI

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WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

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OP(KAT).No.47 OF 2021

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AGAINST THE ORDER IN OA NO.74/2014 DATED 22.10.2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONERS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2 THE DIRECTOR DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, VANCHIYOOR P. O., THIRUVANANTHAPURAM, PIN - 695 035.

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BY GOVERNMENT PLEADER

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RESPONDENTS:

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B. R. REMADEVI

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AGED 55 YEARS, W/O. RADHAKRISHNA PILLAI, RESIDING AT 'KRISHNAGIRI', AMBIPOYKA P. O., KOLLAM, PIN - 691 501, WORKING AS PUBLIC HEALTH NURSE, OFFICE OF THE COMMUNITY HEALTH CENTER, AGALI, AGALI P. O., PALAKKAD, PIN - 678 581.

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SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).No.47 OF 2021

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ALEXANDER THOMAS & T. R. RAVI, JJ.

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O.P.(KAT) No.47 of 2021 [arising out of order dated 22.10.2019 in O.A. No.74/20140 of K.A.T., TVPM Bench]

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Dated this the 10^th day of February, 2021

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JUDGMENT

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Alexander Thomas, J.

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The prayers in the aforecaptioned original petition (KAT) , filed under Article 226 & 227 of the Constitution of India, read

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as follows (see page No.12 of this paper book):-

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“1. To set aside the Exhibit P5 Impugned Order of the Kerala Administrative Tribunal in O.A. 74/2014.

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2. To declare that the Respondent is not all entitled to get any declaration of eligibility of Leave Without Allowance on Medical grounds which can be considered for all purposes of her service.

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3. Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”

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2. Heard Sri.B.Unnikrishna Kaimal, the learned

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Government Pleader appearing for the petitioners (State of Kerala and the Director of Health Services) in the original petition (KAT)/respondents in the O.A. In the nature of the orders proposed to be passed by this Court in the abovesaid original petition notice to the sole respondent in this original petition will stand dispensed with.

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OP(KAT).No.47 OF 2021

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The prayers in Ext.P-1 O.A. No.74/2014, filed by the respondent herein, reads as follows (see page No.24 of this paper book):-

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“In view of the facts mentioned in paragraphs 4 and 5 above the applicant prays for the following relief(s):-

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A) Direct the 1^st Respondent to grant the applicant leave on medical ground or to count leave period for increment, Higher Grade, Pension and accumulation of earned leave.

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B) Such other reliefs this Honourable Tribunal deems fit and proper.”

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The amended prayers in O.A. No.74/2014, filed by

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the respondent herein, reads as follows (see page No.46 of this paper book):-

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“This Honourable Tribunal may please to allow the applicant to amend the A Prayer in Relief portion in the original application and to add the following before the first word 'Direct' in the A Prayer, in the interest of justice.

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' Call for all records connecting to Annexure A6 order dated 09/12/2011 and Annexure A10 order/communication dated 19/10/2013, and quash/set-aside Annexure A6 order and Annexure A10 order/communication and'

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From the pleadings and materials on record it appears that the original applicant/the sole respondent herein had worked as a Public Health Nurse in the Health Services Department and she had applied for Medical Leave for the period from 26.02.2001 to 31.12.2001. It is also the common ground that after availing leave she had joined duty on 01.01.2002 and had produced medical certificate, fitness certificate and joining report. The said application submitted

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OP(KAT).No.47 OF 2021

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by the original applicant was duly forwarded by the Medical Officer along with necessary certificates to the Director of Health Services (2^nd respondent in the O.A./2^nd petitioner herein).

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Further, it is also common ground that the same was duly forwarded to the Government (1^st respondent in the O.A./1^st petitioner herein)by the Director of Health Services (2^nd respondent in the O.A./2^nd petitioner herein) for necessary sanction. It appears that the said application was duly returned by the Government to the Director of Health Services stating that the fitness certificate and joining report were not forwarded along with the application and it was directed to re-submit the same with necessary certificates. This was so done by Annexure A-3 letter dated 29.04.2004, issued by the Government addressed to the Director of Health Services. Further it appears that the applicant had, thereafter submitted the requisite application along with photocopies of the medical certificate and joining report. By Annexure A-5 letter dated 14.07.2011, issued by the Director of Health Services, it is admitted that the said certificates have been irrecoverably lost from the office of the authorities concerned. In that context it

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OP(KAT).No.47 OF 2021

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will be profitable to refer to the contents of Annexure A-5 letter dated 14.07.2011, issued by the Director of Health Services (see page No.32 of this paper book) addressed to the Secretary to Government in the Health & Family Welfare Department, which reads as follows:-

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“ നമർ . എഫ� . ഡബ�യ . എ 4-84644/10/ ആ . വ . ഡ .

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ആര��ഗ� വകപ� ഡയറകറട� ക��ലയ� , ത�രവനനപ�� , ത�യത� : 14.7.2011.

രപഷ�തൻ

ആര��ഗ� വകപ� ഡയറകർ

സസസകർത�വ�

ഗവർട)ന� ടസകടറ� , ആര��ഗ� കട�ബ ര/മ വകപ� , ത�രവനനപ�� .

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സർ ,

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വ�ഷയ� :- ആ . വ . ഡ .- ജസവനക�� - ശസമത� ബ� . ആർ . �മ�ര4വ� , ജന�യർ , പ� . എച� . എൻ - ടമഡ�കൽ സർട�ഫ�കറ�ൻരമൽ അവധ� അനവ4�കനത� - സ�ബന�ച� - സചന :(1) എഫ� . ഡബ�യ . എ 4-30102/2001/ ആ . വ . ഡ . ത�യത� : 11.4.2001 (2) സർക�ർ കത� നമർ .17238/ സ� 1/2001/ ആ . ക . വ ത�യത� 29.4.2004.

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സചനയ�രലയ� സർക��ടന ശദ /ണ�കന . രകശവപ�� കമHണ�റ� ടIൽത� ടസനറ�ടല ജന�യർ പബ�ക� ടIൽത� രനഴ� - ആയ ശസമത� ബ� . ആർ . �മ�ര4വ� 26.2.2001 മതൽ 31.12.2001 വട� ടമഡ�കൽ സർട�ഫ�കറ�ടന അ��സ�നത�ൽ ലസവ� അരപ/ നല� ലസവ�ൽ രപ�യ�രന . �� അരപ/ സചന (1) പക�� സർക��രലയ� സമർപ�ച�രന . ആയത� സചന (2) പക�� ഫ�റ�നസ� സർട�ഫ�കറ� , ത��ടക രജ�ല�യ�ൽ പരവശ�ചത�ടന റ�രപ�ർട� എന�വയ�യ� സർക�ർ അരപ/ ത��ചയച�രന .

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പസത അരപ/യ� ഒറ�ജ�നൽ സർട�ഫ�കറകള� ത��ച� ക�ട�തവണ� നഷമ�യ��കകയ�ണ� . ആയത�ന�ൽ സർക�ർ ആവശ�ടപട പക��മള വ�ശ4��ശങൾ അ�ക� അസൽ അരപ/ സർക��രലയ� പന : സമർപ�ക�ൻ കഴ�യ�ത സ�Iച��ത�ൽ ശസമത� ബ� . ആർ . �മ�ര4വ� രമൽ ക�ലയളവ�ടലടത അവധ� അനവ4�ച� ക�ടനത�രലയ�യ� സമർപ�ച�രന അവധ� അരപ/കളട�യ� അനബന ര�ഖകളട�യ� പകർപകൾ ജ�ല� ടമഡ�കൾ ആഫസസർ മഖ�ന�� വസണ� അയച� തന��കനത� ഇരത�ട��പ� സർക��ടന തസരമ�നത�ന�യ� ഉള�ക� ടചയ� അയയന .”

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7. Later as per the impugned Annexure A-6 order

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OP(KAT).No.47 OF 2021

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dated 09.12.2011 the competent authority of the Government in the Health & Family Welfare Department has ordered that leave applied for Leave Without Allowance on medical grounds is to be treated under Rule 88, Part I KSRs and on condition that the said Leave Period will not count for increment, Higher Grade, Pension and accumulation of earned leave, etc. thereupon, the original applicant was constrained to submit Annexure A-7 representation before the Government impugning those conditions and the same was rejected by the Government as per a single line order contained in Annexure A-10 stating that there is no need to modify the conditions in Annexure A-6 order. Being aggrieved by these impugned proceedings that the original applicant has approached the Tribunal with the aforementioned prayers.

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From the pleadings and materials on record the Tribunal has found that the original applicant had duly applied for leave on medical ground and had submitted all the required certificates for sanctioning the said leave. Further that the said application along with requisite certificates had been submitted to the Director of Health Services, who in turn has forwarded the same to the Government. Further, it is the admitted case of

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OP(KAT).No.47 OF 2021

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the respondents in the O.A. that there was undue delay on the part of the Government in the Health & Family Welfare Department in taking up of the application for consideration and it was only after the lapse of long 2¹ /4 years that the application was responded stating that the same was not accompanied by medical certificate and joining report, as can be seen from Annexure A-3 letter dated 29.04.2004. However, the Tribunal found that the matter of controversy is to be resolved in favour of the applicant on the basis of the contents of Annexure A-5 letter dated 14.07.2011 as it is extracted above.

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A reading of Annexure A-5 letter dated 14.07.2011, would make it clear like day light that the Director of Health Services (DHS) has indeed stated therein that the original applicant had submitted the application in question along with all the supporting documents initially, therefore the only reasonable conclusion is that those documents would have been lost in transit from the office of the DHS department or later would have been lost irrecoverably from the office of the Governmental authorities concerned.

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Indeed, there is no dispute that even the Government had responded to the first time only after the long

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OP(KAT).No.47 OF 2021

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2¹ /4 years after the submission of the initial application by the original applicant, much earlier. Hence the Tribunal has found that the non-availability of the records are not on account of any fault of the applicant and has happened only on account of reasons totally beyond the control of the applicant and could have happened only on account of it being lost in the offices of any of the respondents in the O.A. The Tribunal has noted that it is mandated as per the Note appended to Rule 65 of Part I KSR that the nature of the leave due and applied for by an officer cannot be altered at the option of the sanctioning authority. Admittedly what has been applied for by the applicant is leave on medical ground and the Government has now sanctioned LWA other than on medical certificate on condition that the period of leave applied will not count for increment, higher grade, pension and accumulation of earned leave, etc. Further, the original applicant had applied for medical leave for the period from 26.02.2001 to 31.12.2001 submitting the requisite application and after availing leave she had joined duty later on 01.01.2002 and had produced the necessary medical certificate, fitness certificate and joining report. The said application and certificates would have been

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OP(KAT).No.47 OF 2021

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lost either transit or somewhere in either of the offices in question. It could merely on account of the non-availability of the records in the offices of the authorities concerned that not only the nature of the leave has been detrimentally altered but that it has also been ordered that the said leave s hall not be counted for increment, higher grade, pension and accumulation of earned leave, etc. Therefore, the abovesaid impugned decision now sought to be supported by the petitioners would be not against the statutory mandate contained in Rule 65 of Part I KSR and would also amount to an oppressive and capricious action in making the applicant suffer for more adverse civil consequences and while the fact of the matter is that the default could be only account of the documents being lost in either of the offices in question. In other words, the impugned decision now imposed on the original applicant at the instance of the Government is nothing but arbitrary and capricious apart from being illegal and ultravires.

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It is all the more clear from a mere reading of Annexure A-6 order dated 09.12.2011 issued by the Government that the sole ground of rejection is that the application was not accompanied by medical certificate and

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OP(KAT).No.47 OF 2021

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joining report, etc. It is in the light of these aspects that the Tribunal has taken the view that the impugned orders would require interdiction and has thereupon quashed the impugned decisions referred to in Annexures A-6 & A-10 and has declared that the original applicant is entitled to the admissible benefits as if the leave during the period from 26.02.2001 to 31.12.2001 has been granted as leave on medical ground and to ensure that the Director of Health Services should issue necessary orders in that regard within a period of 3 months from the date of receipt of a copy of the order. In the light of these aspects, we find no ground to interfere with the well considered verdict rendered by the Tribunal in the instant case, which resulted in the impugned Ext.P-5 final order dated 22.10.2019 in O.A. No.74/2014.

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The time limit stipulated for compliance of the directions in Ext.P-5 final order was 3 months. The said period has expired long ago. The above OP(KAT) has been filed before this Court on 02.02.2021. Having regard to these aspects it is ordered that the time limit for compliance of the directions issued by the Tribunal as per Ext.P-5 order dated 22.10.2019 will stand extended by a further period of 6 weeks from the date of production of a certified copy of this judgment. Necessary

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OP(KAT).No.47 OF 2021

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orders should be issued by the Director of Health Services in compliance with the abovesaid directions issued by the Tribunal within the said time limit. The Secretary to the office of the Advocate General will ensure that certified copies of this judgment are duly forwarded to the petitioners by registered speed post with acknowledgment due without any further delay.

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The Registry will also forward copy of this judgment to the sole respondent herein/original applicant, for necessary information.

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With these observations and directions the above original petition (KAT) will stand dismissed.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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Sd/- T.R.RAVI, JUDGE

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Skk//16022021

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OP(KAT).No.47 OF 2021

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE O.A.NO.74/2014 ALONG WITH ANNEXURES.
ANNEXURE A1	TRUE COPY OF THE MEDICAL FITNESS CERTIFICATE DATED 30.12.2001.
ANNEXURE A2	TRUE COPY OF THE JOINING REPORT DATED 01.01.2002.
ANNEXURE A3	TRUE COPY OF THE LETTER DATED 29.04.2004 FOR RESUBMISSION OF FITNESS CERTIFICATE AND JOINING REPORT.
ANNEXURE A4	TRUE COPY OF THE LETTER NO.AE 183/2001 DATED 29.10.2007 BY MEDICAL OFFICE TO DISTRICT MEDICAL OFFICER FOR GRANT LEAVE.
ANNEXURE A4(a)	THE TRUE ENGLISH TRANSLATION OF ANNEXURE A4.
ANNEXURE A5	TRUE COPY OF THE LETTER NO.FWA4- 84644/2010/DHS STATING THE RECORDS ARE LOST.
ANNEXURE A5(a)	THE TRUE ENGLISH TRANSLATION OF ANNEXURE A5.
ANNEXURE A6	TRUE COPY OF THE G.O.(RT) NO.4245/2011/H AND FWD DATED 09.12.2011.
ANNEXURE A7	TRUE COPY OF THE REVIEW PETITION FILED BY THE RESPONDENT.
ANNEXURE A7(a)	THE TRUE ENGLISH TRANSLATION OF ANNEXURE A7.
ANNEXURE A8	TRUE COPY OF THE LETTER NO.MWA4- 84644/08/DHS DATED 08.04.2013.
ANNEXURE A8(a)	THE TRUE ENGLISH TRANSLATION OF ANNEXURE A8.

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OP(KAT).No.47 OF 2021

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ANNEXURE A9 TRUE COPY OF THE PETITION DATED 22.08.2013 FILED BY THE HUSBAND OF THE RESPONDENT.

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ANNEXURE A9(a) THE TRUE ENGLISH TRANSLATION OF ANNEXURE A9.

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ANNEXURE A10 TRUE COPY OF THE LETTER NO.17321/C1/2013/H AND FWD DATED 19.10.2013.

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EXHIBIT P2 TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR AMENDMENT THE ORIGINAL APPLICATION ON 03.02.2014.

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EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER DATED 12.05.2014.

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EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.36/94/FIN DATED 14.06.1994.

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EXHIBIT P5 TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL ON 22.10.2019.

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RESPONDENTS' EXHIBITS: NIL

State of Kerala v. B. R. Remadevi

Case brief

What is this about?

What did the court decide?

State of Kerala v. B. R. Remadevi

Case brief

What is this about?

What did the court decide?

What the court decided

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