Kerala High Court
K.A.Thomas vs State Of Kerala on 29 June, 2022
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:
:2:
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
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,
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
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
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.
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.
