Kerala High Court
State Of Kerala vs B. R. Remadevi on 10 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
OP(KAT).No.47 OF 2021
AGAINST THE ORDER IN OA NO.74/2014 DATED 22.10.2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
2 THE DIRECTOR
DIRECTORATE OF HEALTH SERVICES,
GENERAL HOSPITAL JUNCTION, VANCHIYOOR P. O.,
THIRUVANANTHAPURAM, PIN - 695 035.
BY GOVERNMENT PLEADER
RESPONDENTS:
B. R. REMADEVI
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.
SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No.47 OF 2021 2
ALEXANDER THOMAS & T. R. RAVI, JJ.
----------------------------------------------------
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]
----------------------------------------------
Dated this the 10th day of February, 2021
JUDGMENT
Alexander Thomas, J.
The prayers in the aforecaptioned original petition (KAT) ,
filed under Article 226 & 227 of the Constitution of India, read
as follows (see page No.12 of this paper book):-
"1. To set aside the Exhibit P5 Impugned Order of the
Kerala Administrative Tribunal in O.A. 74/2014.
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.
3. Any other order or direction as this Honourable Court
may deem fit and proper in the facts and circumstances of the case."
2. Heard Sri.B.Unnikrishna Kaimal, the learned
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.
3. 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):-
"In view of the facts mentioned in paragraphs 4 and 5 above the
applicant prays for the following relief(s):-
A) Direct the 1st Respondent to grant the applicant leave on
medical ground or to count leave period for increment,
Higher Grade, Pension and accumulation of earned leave.
B) Such other reliefs this Honourable Tribunal deems fit and
proper."
4. The amended prayers in O.A. No.74/2014, filed by
the respondent herein, reads as follows (see page No.46 of this
paper book):-
"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.
'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'
5. 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
by the original applicant was duly forwarded by the Medical
Officer along with necessary certificates to the Director of
Health Services (2nd respondent in the O.A./2nd petitioner
herein).
6. Further, it is also common ground that the same
was duly forwarded to the Government (1st respondent in the
O.A./1st petitioner herein)by the Director of Health Services (2 nd
respondent in the O.A./2nd 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
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:-
"നമർ.എഫ.ഡബ യ.എ 4-84644/10/ആ.വ.ഡ.
ആര ഗ വകപ ഡയറകറട ക ലയ ,
ത രവനനപ , ത യത : 14.7.2011.
രപഷതൻ
ആര ഗ വകപ ഡയറകർ
സസസകർത വ
ഗവർട)ന ടസകടറ ,
ആര ഗ കട ബ ര/മ വകപ,
ത രവനനപ .
സർ,
വഷയ :- ആ.വ.ഡ.-ജസവനക -ശസമത ബ .ആർ. മ ര4വ , ജന യർ,
പ .എച.എൻ-ടമഡ കൽ സർടഫകറൻരമൽ അവധ അനവ4 കനത-
സ ബനച-
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.
.........
സചനയ രലയ സർക ടന ശദ /ണ കന. രകശവപ കമHണ റ ടIൽത
ടസനറടല ജന യർ പബ ക ടIൽത രനഴ- ആയ ശസമത ബ .ആർ. മ ര4വ 26.2.2001
മതൽ 31.12.2001 വട ടമഡ കൽ സർടഫകറടന അ സ നത ൽ ലസവ അരപ/ നല
ലസവൽ രപ യ രന. അരപ/ സചന (1) പക സർക രലയ സമർപ ചരന . ആയത
സചന (2) പക ഫറനസ സർടഫകറ, ത ടക രജ ല യ ൽ പരവശ ചത ടന റരപ ർട
എനവയ യ സർക ർ അരപ/ ത ചയചരന.
പസത അരപ/യ ഒറജനൽ സർടഫകറകള ത ച ക ട തവണ
നഷമ യ കകയ ണ. ആയത ന ൽ സർക ർ ആവശ ടപട പക മള വശ4 ശങൾ അ ക
അസൽ അരപ/ സർക രലയ പന:സമർപ ക ൻ കഴയ ത സ Iച ത ൽ ശസമത
ബ .ആർ. മ ര4വ രമൽ ക ലയളവടലടത അവധ അനവ4 ച ക ടനത രലയ യ സമർപ ചരന
അവധ അരപ/കളട യ അനബന ര ഖകളട യ പകർപകൾ ജല ടമഡ കൾ ആഫസസർ
മഖ ന വസണ അയച തന കനത ഇരത ട പ സർക ടന തസരമ നത ന യ ഉള ക
ടചയ അയയന."
7. Later as per the impugned Annexure A-6 order
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.
8. 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
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.
9. 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.
10. Indeed, there is no dispute that even the
Government had responded to the first time only after the long
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
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 shall 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.
11. 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
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.
12. 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
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.
13. The Registry will also forward copy of this judgment
to the sole respondent herein/original applicant, for necessary
information.
With these observations and directions the above original
petition (KAT) will stand dismissed.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
T.R.RAVI,
JUDGE
Skk//16022021
APPENDIX
PETITIONERS' EXHIBITS:
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.
ANNEXURE A9 TRUE COPY OF THE PETITION DATED
22.08.2013 FILED BY THE HUSBAND OF
THE RESPONDENT.
ANNEXURE A9(a) THE TRUE ENGLISH TRANSLATION OF
ANNEXURE A9.
ANNEXURE A10 TRUE COPY OF THE LETTER
NO.17321/C1/2013/H AND FWD DATED
19.10.2013.
EXHIBIT P2 TRUE COPY OF THE MISCELLANEOUS
APPLICATION FOR AMENDMENT THE
ORIGINAL APPLICATION ON 03.02.2014.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT
FILED BY THE FIRST PETITIONER DATED
12.05.2014.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR
NO.36/94/FIN DATED 14.06.1994.
EXHIBIT P5 TRUE COPY OF THE IMPUGNED ORDER
PASSED BY THE TRIBUNAL ON
22.10.2019.
RESPONDENTS' EXHIBITS: NIL
