IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
OP(KAT) NO. 548 OF 2019
AGAINST THE ORDER/JUDGMENT IN OA 316/2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
K.A.THOMAS, AGED 51 YEARS
SCPO 4742, SENIOR CIVIL POLICE OFFICER, OLLUR
POLICE STATION, THRISSUR - 680 306, RESIDING AT
PUNNAN HOUSE, ERAVU P. O., ARIMPUR, THRISSUR,
KERALA - 680 020.
BY ADVS.
REKHA VASUDEVAN, V.DEEPA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HOME, SECRETARIAT,
THIRUVANANTHAPURAM, KERALA - 695 001.
2 STATE POLICE CHIEF'
KERALA POLICE HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM - 695 014, KERALA.
3 THE INSPECTOR GENERAL OF POLICE
THRISSUR RANGE, THRISSUR - 680 001, KERALA.
4 THE DISTRICT POLICE CHIEF
THRISSUR CITY POLICE, THRISSUR - 680 003, KERALA.
OTHER PRESENT:
GP:- SRI. UNNIKRISHNA KAIMAL
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 29.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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O.P.(KAT) No.548/2019
A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
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O.P.(KAT) No.548 of 2019
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Dated this the 29th day of June, 2022
JUDGMENT
A.K.Jayasankaran Nambiar, J The applicant in O.A.No.316 of 2018 before the Administrative Tribunal, who is the petitioner in this O.P.(KAT), is aggrieved by the order dated 1/3/2019 of the Tribunal in the O.A. The facts necessary for disposal of the Original Petition are as follows:
2. The petitioner, while working as police constable, had sought medical leave and was accordingly issued with a passport to proceed on medical leave on 4/2/2003. The said passport sanctioned medical leave from 27/1/2003 for a period of 10 days and the petitioner was obliged to report back for duty on 6/2/2003. It is not in dispute that the petitioner reported back from medical leave only on 28/5/2004. Disciplinary proceedings were, therefore, initiated against him for unauthorised absence. Those proceedings were eventually finalised by Annexure A2 order dated 26/7/2004. By the said order, it was found that the petitioner had been on unauthorised absence between 6/2/2003 and 28/5/2004 and for the said misconduct, he was imposed with the :3: O.P.(KAT) No.548/2019 punishment of barring of one increment without cumulative effect. Thereafter, by Annexure A3 order dated 16/9/2004 the period of absence of the petitioner was regularised by treating it as eligible leave. Accordingly, the petitioner was granted 5 days Earned Leave, 55 days Leave Without Pay(without medical certificate) from 30/8/2002 to 28/10/2002, 7 days Earned Leave , 20 days HPL and 471 days Leave without pay (without medical certificate) for the period from 17/1/2003 to 28/5/2004.
3. Aggrieved by the orders of punishment, the petitioner preferred an appeal before the appellate authority who, vide Annexure A5 order dated 9/7/2008, dismissed the appeal as not sustainable in as much as the medical records were produced at a later date and the contentions raised by the petitioner were not sustainable. It is relevant to note at this stage that the appeal preferred by the petitioner was only on the aspect of treatment given to the period of 471 days which had been treated as Leave Without Pay (without medical certificate). In other words, there was no challenge by the petitioner to the finding of the lower appellate authority that the original period of absence of the petitioner was unauthorized. The review petition preferred by the petitioner before the Government also did not succeed and the same was dismissed. It was aggrieved by the said orders that the petitioner approached the Tribunal through the O.A. aforementioned.
4. The Tribunal, on a consideration of the matter, took note of the contention of the petitioner that on expiry of the first 10 days of leave, :4: O.P.(KAT) No.548/2019 he had submitted leave application without medical certificate to the Camp Head and that it was without considering the same that he was declared as a deserter. The specific case of the petitioner that, no notice was served on him and that after treatment was over when he reported for duty with fitness certificate he was allowed to join duty without any objection, was also taken note of by the Tribunal. The Tribunal, however, placing reliance on the statement filed by the respondents, as also the communications issued by the Government to the petitioner, that were handed over to the Tribunal at the time of hearing, found that there had been attempts made by the respondent to serve notice on the petitioner which were not successful and it was under those circumstances that he was declared as a deserter. The Tribunal also found that, the applicant had not produced any material to show that the leave application and the medical certificate were duly sent to the respondent. In the absence of material, therefore, the Tribunal proceeded to dismiss the O.A.
5. Before us, it is submitted by Smt.Rekha Vasudevan, learned counsel for the petitioner that, the Tribunal erred in arriving at the conclusion that the steps taken by the Government to serve notice on the petitioner were futile, and it was, therefore, that he was declared as deserter. It is her case that the Tribunal ought not to have relied on the materials that were handed over at the time of hearing while coming to any conclusion against the petitioner. Even as we hear the said submission of the learned counsel for the petitioner, we find that in as :5: O.P.(KAT) No.548/2019 much as there was no challenge by the petitioner to the finding of unauthorized absence rendered against him by the original authority, the regularisation of the period of absence as eligible leave sanctioned by the authority has to be seen as a lenient view taken by the authorities in the matter of punishment for proved misconduct. The appeal preferred by the petitioner was only as regards the treatment to the period of 471 days consequent to the regularisation of the period of absence. The said period of 471 days was treated as leave without pay(without medical certificate). In our view, in the absence of a challenge to the finding of unauthorised absence, the petitioner cannot raise any contention as regards the nature of leave sanctioned to him which was done to ensure a leniency in the punishment imposed on him. Thus for the reasons stated in the order of the Tribunal as supplemented by the reasons stated in this judgment, we find no reason to interfere with the order of the Tribunal.
The O.P.(KAT) is , accordingly, dismissed.
Sd/- A.K.JAYASANKARAN NAMBIAR, JUDGE Sd/- MOHAMMED NIAS C.P., JUDGE dpk /ani :6: O.P.(KAT) No.548/2019 APPENDIX OF OP(KAT) 548/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION (OA 316 OF 2018) FILED BY THE PETITIONER ON THE FILES OF THE HONOUBALE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ALONG WITH THE ANNEXURES.
EXHIBIT P1(A1) COPY OF THE ORDER NO.H2/PR/8/2004/R
ISSUED BY THE FOURTH RESPONDENT DATED
28.5.2004.
EXHIBIT P1(A2) COPY OF THE ORDER NO.H2/PR/8/2004/R
ISSUED BY THE FOURTH RESPONDENT.
EXHIBIT P1(A3) COPY OF THE D.O.NO.1050/04/R ISSUED BY
THE FOURTH RESPONDENT DATED 16.9.2004.
EXHIBIT P1(A4) COPY OF THE LEAVE ORDER NO.
A5(B)1297/2004/R ISSUED BY THE OFFICE OF THE FOURTH RESPONDENT DATED 15.10.2004.
EXHIBIT P1 (A5) COPY OF THE ORDER NO.A2/APL/22/08/TSR ISSUED BY THE THIRD RESPONDENT DATED 9.7.2008.
EXHIBIT P1(A6) COPY OF THE G.O.(RT) NO.3008/2017/HOME
ISSUED BY THE FIRST RESPONDENT DATED
14.11.2017.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 4TH RESPONDENT IN OA 316 OF 2018 ON
THE FILES OF THE HONOURABLE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE
PETITIONER TO THE REPLY STATEMENT OF THE
FOURTH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 1ST RESPONDENT IN OA 316 OF 2018 ON
THE FILES OF THE HONOURABLE TRINUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF THE M.A.NO.316 OF 2019 IN OA
316 OF 2018 ALONG WITH THE ANNEXURES ON
THE FILES OF THE HONOURABLE TRIBUNAL,
THIRUVANANTHAPURAM.
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O.P.(KAT) No.548/2019
EXHIBIT P5 (MA1) COPY OF THE PASSPORT DATED 4.2.2003
ISSUED BY THE COMMANDANT, D COY AR CAMP,
THRISSUR.
EXHIBIT P5(MA2) COPY OF THE CERTIFICATE OF FITNESS TO
RETURN TO DUTY ON 26.5.2004 ISSUED BY THE
MEDICAL OFFICER, GOVERNMENT AYURVEDA
DISPENSARY, NADATHARA, THRISSUR.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 1.3.2019 IN
OA 316 OF 2018 OF THE HONOURABLE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P7 TRUE COPY OF THE BIRTH CERTIFICATE DATED
23.4.2003 ISSUED BY THE REGISTRAR OF
BIRTH AND DEATH CORPORATION OF THRISSUR.
EXHIBIT P8 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED ON 17.3.2010 ISSUED BY THE GOVERNMENT MEDICAL COLLEGE HOSPITAL.