Kerala High Court
Arif K.P vs The District Medical Officer ... on 23 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
OP(KAT) NO.373 OF 2023
AGAINST THE ORDER IN OA (EKM)NO.1886/2022 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
ARIF K.P, AGED 35 YEARS, CLERK (UNDER SUSPENSION)
DISTRICT T.B. CENTRE, KANNUR - 670004 RESIDING AT VAYALIL
VEETIL, KUNJUMOITHEEN PEEDIKA KUTTIYATTOOR DESOM,
TALIPARAMBA VILLAGE, KANNUR DISTRICT, PIN - 670141
BY ADV C.K.SREEJITH
RESPONDENTS/RESPONDENTS IN O.A:
1 THE DISTRICT MEDICAL OFFICER (HEALTH), THE DISTRICT MEDICAL
OFFICE, CIVIL STATION P.O., KANNUR, PIN - 670002
2 STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF
HEALTH & FAMILY WELFARE GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 DIRECTOR OF HEALTH SERVICESDIRECTORATE OF HEALTH SERVICES,
GENERAL HOSPITAL JUNCTION, TRIVANDRUM, PIN - 695035
4 THE EXCISE INSPECTOREXCISE RANGE OFFICE, SREEKANDAPURAM
RANGE, KANNUR DISTRICT, PIN - 670631
SRI.SAIGI JACOBPALATTY, SR. GOVERNMENT PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ALEXANDER THOMAS & C.JAYACHANDRAN, JJ.
=================================
O.P.(KAT) No.373 of 2023
[arising out of the impugned order dated 19.05.2023 in O.A. (Ekm) No.1886/2022
on the files of the KAT, Ekm Bench]
=================================
Dated this the 23rd day of August, 2023
JUDGMENT
Alexander Thomas, J.
This Original Petition is directed against the impugned Ext.P2 final
order dated 19.05.2023 in O.A. (Ekm) No.1886/2022, rendered by the
Kerala Administrative Tribunal, Ernakulam Bench, dismissing O.A. (Ekm)
No.1886/2022 on the ground that the essential facts, regarding the filing
of the previous O.A. (Ekm) No.831/2022, has been suppressed by the
applicant in the latter O.A.
2. Heard Sri.C.K. Sreejith, learned counsel appearing for the
petitioner and Sri.Saigi Jacob Palatty, learned Senior Government
Pleader, appearing for the petitioner.
3. The petitioner has earlier filed O.A. (Ekm) No.831/2022 before
the Tribunal, seeking directions of the Tribunal, with the prayers that R-1
in the O.A. (DMO, Okkal), should reinstate the applicant in service,
pending finalisation of the disciplinary proceedings and pending
finalisation of the Sessions Case, S.C. No.201/2021 on the file of the
O.P(KAT) No.373 of 2023
Sessions Court, Kannur.
4. It appears that the said O.A. (Ekm) No.831/2022 was dismissed
for default by the Tribunal, as per order dated 10.08.2022. The petitioner
has not challenged the said dismissal, for default of the first O.A., by filing
any application for restoration or to recall the judgment, etc.
5. It is later, that the petitioner has filed the instant second round
of O.A., namely, O.A. (Ekm) No.1886/2022, before the Tribunal. The
prayer in the said second case, O.A. (Ekm) No.1886/2022 (Ext.P1), is for
directing R-3 in that O.A. (Director of Health Services-DHS) to reinstate
the applicant in service, pending finalisation of the disciplinary
proceedings and pending finalisation of Sessions Case, S.C. No.201/2021
on the file of the Sessions Court, Kannur, as requested in Anx.A6 therein.
Further order is also sought to direct R-3 in the O.A. (DHS) to dispose of
Anx.A6 representation dated 14.07.2022, wherein the plea made before the
departmental authority is to enable the petitioner to get an order of
reinstatement in service. Further prayer is also made to direct the
respondents to pay subsistence allowance from the date of the suspension,
i.e., with effect from 22.05.2020, etc.
6. When the second O.A. had come up for consideration, the
O.P(KAT) No.373 of 2023
Tribunal had rendered the impugned Ext.P2 final order dated 19.05.2023,
dismissing O.A. (Ekm) No.1886/2022, on the ground that even the basic
facts in relation to the filing of the first O.A., O.A.(Ekm) No.831/2022, has
been suppressed in the second O.A. Further, the Tribunal has also directed
that the applicant should pay cost of Rs.10,000/- (Rupees Ten thousand
only).
7. Later, the petitioner has preferred O.P.(KAT) No.283/2023
before this Court to challenge the verdict of the Tribunal at Ext.P2 herein in
O.A.(Ekm) No.1886/2022. When O.P.(KAT) No.283/2023 has come up
for consideration before this Court on 02.08.2023, the learned counsel
appearing for the petitioner submitted, on the basis of instructions, that
some mistakes have occurred in marking documents in the said O.P., since
what has been actually produced as Ext.P1 in that O.P is a copy of O.A.
(Ekm) No.831/2022, but it was wrongly marked as a copy of O.A.(Ekm)
No.1886/2022, and that a copy of the present O.A., O.A. (Ekm)
No.1886/2022 has been produced as Ext.P3 therein as an additional
document and that, in view of the said mistakes, the petitioner may be
permitted to withdraw the above O.P. and to file a fresh O.P., correcting
and producing all the documents, so as to avoid confusion and also to
O.P(KAT) No.373 of 2023
produce the final order of the Tribunal in O.A. (Ekm) No.831/2022, etc.
Hence, this Court has rendered judgment on 02.08.2023, rendered by this
Court, dismissing O.P.(KAT) No.283/2023, as withdrawn, with the said
liberty.
8. Now, the present O.P.(KAT) No.373/2023 has been filed mainly
seeking to impugn Ext.P2 verdict rendered by the Tribunal in O.A.(Ekm)
No.1886/2022.
9. The petitioner has made a one line averment, in para No.6 on
page 10 of this O.P,. that he has earlier filed O.P.(KAT) No.283/2023,
which was dismissed as withdrawn, with liberty to file a fresh O.P.(KAT),
since some mistakes occurred in the production of documents. However,
the petitioner has not produced even a copy of the judgment dated
02.08.2023, rendered by this Court, dismissing O.P.(KAT) No.283/2023 as
withdrawn with the said liberty.
10. Further, very crucially, despite the specific undertaking made
by the petitioner, as reflected in para No.2 of the judgment in O.P.(KAT)
No.283/2023, that in the fresh O.P. to be produced by him, he would
certainly produce a copy of the final order dated 10.08.2022 of the
Tribunal, dismissing O.A. (Ekm) No.831/2022 for default, the petitioner
O.P(KAT) No.373 of 2023
has not even cared to produce a copy of the said order dismissing the first
O.A.(Ekm) No.831/2022.
11. We cannot appreciate the abovesaid conduct of the petitioner.
It was mainly because the petitioner suppressed the fact, regarding the
filing of the first O.A. in the second O.A., that the Tribunal has dismissed
the second O.A. and that too with a cost of Rs.10,000/- As a matter of fact,
the first was dismissed for default.
12. Hence, we are not in a position to vacate the order passed by
the Tribunal in the impugned Ext.P2 verdict, directing the petitioner to pay
cost of Rs.10,000/-
13. However, seeing the plight of the original applicant, who has
now been filing successive O.As., in relation to the main grievance of
suspension from service and the alleged withholding of subsistence
allowance, we are inclined to direct the 3 rd respondent herein (Director of
Health Services-DHS) to consider the request of the petitioner in Anx.A6
representation dated 14.07.2022 and after affording reasonable
opportunity of being heard to the petitioner, may take a considered
decision on the plea of the petitioner for revocation of suspension and for
reinstatement into the service and also for payment of the subsistence
O.P(KAT) No.373 of 2023
allowances allegedly withheld, without much delay, preferably within a
period of five weeks from the date of receipt of a copy of this order. We
order so.
14. Further, the 3rd respondent-DHS, will immediately call for a
report from the competent subordinate officer concerned, like R1 DMO,
and may ascertain as to whether the subsistence allowances, admissible to
be paid to the petitioner, for the period from the date of the suspension,
i.e., 22.05.2020, has been paid or not and as to the reasons for the non-
payment, and in case the petitioner has to take such steps in that regard,
like production of non-employment declaration, etc., then the same may be
made by the petitioner and necessary action for payment of the admissible
subsistence allowance may be taken by the 3rd respondent, and in case such
amounts have not, so far been paid, the same shall be paid within the
abovesaid period of five weeks from the date of receipt of a copy of this
judgment. All other issues are left open. We make it clear that the
petitioner will have to pay the cost of Rs.10,000/- (Rupees Tenn thousand
only) as directed by the Tribunal in Ext.P2 judgment and produce receipt
of the same before the Tribunal, in case, he has to again approach the
Tribunal.
O.P(KAT) No.373 of 2023
With these observations and directions, the above O.P(KAT) will
stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
C.JAYACHANDRAN, JUDGE
vgd
O.P(KAT) No.373 of 2023
APPENDIX OF OP(KAT) 373/2023
PETITIONER'S ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE FINAL REPORT DT. 16/12/2020
FILED BEFORE THE HON'BLE JUDICIAL 1ST CLASS
MAGISTRATE NO.II KANNUR
ANNEXURE A2 THE TRUE COPY OF THE MEMO OF CHARGES ISSUED BY
DISTRICT MEDICAL OFFICER (HEALTH) KANNUR DT.
25/6/2021
ANNEXURE A3 THE TRUE COPY OF THE REPLY OF MEMO OF CHARGES
(ANNEXURE A2) FILED BY THE APPLICANT DT.
26/7/2021
ANNEXURE A4 THE TRUE COPY OF THE SUSPENSION ORDER NO.
A5/6143/2020 ON 22/5/2020 ISSUED BY THE 1ST
RESPONDENT
ANNEXURE A5 THE TRUE COPY OF THE APPLICATION DT. 10/2/2022
ADDRESSED TO THE 1ST RESPONDENT BY THE APPLICANT
ANNEXURE A6 THE TRUE COPY OF THE REPRESENTATION DT.
14/7/2022
EXHIBIT P1 THE TRUE COPY OF THE MEMORANDUM IN O.A. (EKM)
NO. 1886/2022 ON THE FILE OF ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM (ADDL. BENCH,
ERNAKULAM
EXHIBIT P2 THE TRUE COPY OF THE ORDER IN OA. (EKM) NO.
1886/2022 ON THE FILE OF KAT, THIRUVANANTHAPURAN
(ERNAKULAM) DT. 19/5/2023
EXHIBIT P3 THE TRUE COPY OF THE MEMORANDUM OF OA (EKM) NO.
831/2022 ON THE FILE OF KAT, THIRUVANANTHAPURAN
(ERNAKULAM)
