[Cites 8, Cited by 0]
Kerala High Court
Joy P.A vs State Of Kerala on 3 February, 2026
Author: Anil K.Narendran
Bench: Anil K.Narendran
2026:KER:7927
1
OP(KAT)No.22 of 2026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 3RD DAY OF FEBRUARY 2026 / 14TH MAGHA, 1947
OP(KAT) NO. 22 OF 2026
AGAINST THE JUDGMENT DATED 28.10.2024 IN OA NO.53 OF 2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
JOY P.A,AGED 56 YEARS,ASSISTANT SUB INSPECTOR(RTD),
DISTRICT HEAD QUARTER, KOTTAYAM RESIDING AT BERINGTON
MANNER, WEXCO APARTMENT,THANIKKAPADY,VADAVATHOOR
P.O.KOTTAYAM, PIN - 686010
BY ADVS.
SRI.JINSON OUSEPH
SMT.CHITRA VIJAYAN
SHRI.BASIL MECHERY
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF
SECRETARY IN-CHARGE OF HOME & VIGILANCE, GOVERNMENT OF
KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 DISTRICT POLICE CHIEF / SUPERINTENDENT OF POLICE, KOTTAYAM,
OFFICE OF THE DISTRICT POLICE CHIEF, KOTTAYAM, CIVIL
STATION, KOTTAYAM, PIN - 686001
3 CIRCLE INSPECTOR OF POLICE, KANJIRAPPALLI POLICE STATION,
KANJIRAPPALLI POLICE SUB DIVISION, KOTTAYAM, PIN - 686507
SMT.PRINCY XAVIER, SR.G.P
THIS OP KERALA ADMINISTRATIVE TRIBUNAL WAS FINALLY HEARD ON
27.01.2026, THE COURT ON 3.2.2026 PASSED THE FOLLOWING:
2026:KER:7927
2
OP(KAT)No.22 of 2026
JUDGMENT
Muralee Krishna, J.
The applicant in O.A.No.53 of 2019 on the file of the Kerala
Administrative Tribunal, Thiruvananthapuram (the 'Tribunal' for
short), filed this original petition, invoking the supervisory
jurisdiction of this Court under Article 227 of the Constitution of
India, challenging the order dated 28.10.2024 passed by the
Tribunal in that original application.
2. Going by the averments in the original application, the
petitioner was enlisted into service as a Police Constable of the
Kerala Armed Police Battalion V (KAP V) on 01.02.1993 through
the Kerala Public Service Commission. The petitioner suffered
swelling and pain in his both knee joints which rendered him
incapable of performing his official functions and was constrained
to go on medical leave as per Annexure A8 Leave Rolls from
06.11.2004 to 13.06.2005 and further medical certificates were
not accepted based on the report of One Man Medical Board
consisting of an Ayurveda Doctor disregarding the Medical Records
of Doctors of Government Hospitals who had treated the
petitioner. Consequently, the petitioner was declared as a Deserter
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as per Annexure A1 order dated 22.11.2005 of the 2nd respondent
issued in violation of Rule 19 of the Kerala Police Departmental
Inquiries, Punishment & Appeal Rules, 1958 ('KPDIP & A Rules' in
short). An Oral Enquiry was subsequently ordered, resulting
Annexure A2 PR Minutes dated 10.10.2007 which eventually
ended up in the finalisation of the disciplinary proceedings as per
Annexure A3 order dated 21.05.2008 of the 2nd respondent,
imposing major punishment of withholding of increments for 2
years, with cumulative effect. The petitioner joined the service,
and his period of absence on medical grounds was regularised as
eligible leave otherwise than on medical grounds. Being
aggrieved, the petitioner submitted Annexure A5 review before
the 1st respondent as per Rule 36A of KPDIP & A Rules, praying for
reviewing Annexure A3 punishment and for regularisation of leave
period as LWP on medical grounds and for the purpose of
increments, pension, DCRG, etc., and moved the Tribunal through
O.A.No.25 of 2018. The Tribunal by Annexure A6 order dated
05.01.2018 directed to consider Annexure A5 within a period of 3
months which was not complied and therefore the petitioner was
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constrained to move C.P.No.100 of 2018 before the Tribunal and
during the pendency of the said C.P., the 1st respondent by
Annexure A7 order dated 20.07.2018 rejected the review petition
of the petitioner and by Annexure A9 order dated 23.10.2018
granted 2nd Higher Grade by stating that the punishment of 2 year
increment bar with cumulative effect and 2267 days will not be
reckoned as qualifying service. Being aggrieved, the petitioner-
applicant approached the Tribunal with the original application
filed under Section 19 of the Administrative Tribunals Act, 1985,
seeking the following reliefs:
"(i) To call for the records leading to Annexure A1, Annexure
A2, Annexure A3, Annexure A7 & Annexure A9 and set aside
the same.
(ii) To declare that the leave availed by the applicant for the
period from 06.11.2004 to 26.06.2005 as LWA on Medical
Grounds and shall be reckoned as qualifying service for the
purpose of Increments, Higher Grade, Pension, and Gratuity
and to issue direction to the 2nd respondent to Grand 2nd
Higher Grade and arrears of increments forthwith.
(iii) To regularize the period from 27.06.2005 to 28.05.2008
roughly around 2 years and 11 months as qualifying service
for duty purpose as LWP since the declaration of deserter
under Rule 19 of KPDIP & A Rules and keeping the applicant
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out of service is illegal, arbitrary and violation of principle of
natural justice".
3. In the original application on behalf of the 1st
respondent, a reply statement dated 17.10.2019 was filed
opposing the reliefs sought by the petitioner. Paragraphs 6 to 11
of that reply statement read thus:
"6. The applicant was on medical leave continuously from
09.09.2002 to 26.09.2004 and again applied for leave on
medical ground from 06.11.2004 to 13.06.2005 producing
medical certificates for various ailments. As per rule, leave
applications to be submitted to immediate superiors and it
will be forwarded to District Police Chief through proper
channel for processing and sanction, if eligible. It is not the
duty of the controlling officer to verify the genuineness of
the medical certificate, but can only forward the
applications to the leave sanctioning authority.
7. The leave applications were dismissed as per the
certificate of fitness issued by the DMO (ISM) on
27.06.2005. But he again submitted leave applications with
medical certificate even after issuing notices to join duty.
He has not joined duty even after rejecting his leave
applications. In the above circumstances the contention
raised by him that he was on medical leave could not be
taken into consideration.
8. It is submitted that the period of service not counted for
granting increment is not considered as qualifying service
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for sanctioning Time Bound Higher Grade. The applicant was
awarded 2 years of Increment Bar with Cumulative Effect
vide KDO 435/08 dated 21/05/08. Also 2090 days of
(753+233+1082+12+10) LWA without Medical Certificate
and 177 days (106+71) period under suspension is treated
as non qualifying service. He was sanctioned 2nd TBHG on
completion of 15 years of Qualifying Service excluding these
non-qualifying days as stated in KDO -739/2018 dated
23.10.2018. There is no irregularity in the fixation. As such,
he was sanctioned 2nd Time Bound Higher Grade on
completion of 15 years of qualifying service on 17.04.16,
excluding the days of non qualifying service. Hence there is
no irregularity in this fixation.
9. For grade promotion as ASI, he need 22 years of
qualifying service. Though he has completed 25 years of
service he is not eligible for the same excluding the above
periods.
10. It is submitted that disciplinary proceedings were
initiated against the applicant for his unauthorized absence
from duty and an Oral Enquiry was ordered. The enquiry
officer had submitted Punishment Roll Minutes and based on
the findings the District Police Chief, Kottayam decided to
remove him from service and show cause notice was issued.
Even though there were no merits in the explanation
submitted by him to make any changes in the decision, the
proposed punishment of removal from service was reduced
to increment bar for 2 years with cumulative effect, taking
a lenient view and the period of unauthorised absence from
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27.06.2005 was treated as eligible leave while disposing the
disciplinary proceedings.
11. It is submitted that when it was found on medical
examination that he was fit to join duty, he was directed to
report for duty, but he did not do so or submit any
explanation for his inability, if any, in joining duty. He was
declared a deserter as he did not join duty by neglecting the
orders of his superiors There is grave misconduct and
indiscipline on the part of the applicant".
4. To the reply statement filed by the 1st respondent, the
petitioner filed a rejoinder dated 16.08.2022. After hearing both
sides and on appreciation of materials on record, the Tribunal
dismissed the Original Application by the impugned Ext.P4 order
dated 28.10.2024, which is under challenge in this original
petition. Paragraph 7 of that order reads thus:
"7. The departmental action initiated against the applicant
is under challenge. The applicant has no complaint against
the way in which the departmental enquiry was conducted.
He had participated in the enquiry. No allegation of
procedural infirmity or irregularity is attributed to the
departmental enquiry. The main contention is regarding
Annexure A1 order whereby he was declared deserter. It is
contended that Medical Board was not constituted in
accordance with law. According to him, it was constituted
in total violation of the statutory rules that govern
2026:KER:7927
constitution of Medical Board. We find that examination of
the applicant by the Medical Board was on 27.6.2005 and
this Original Application is filed in 2019. Even after
Annexure A1 order dated 27.6.2005 declaring the applicant
as a deserter, he had not approached any of the authorities
challenging the above order. Instead, he had participated
in the oral enquiry which followed and he has no complaint
that it was done in violation of any statutory provisions or
in violation of any principles of natural justice. We also find
that originally a decision was taken to remove the applicant
from service. But the above tentative decision was later
modified and it was reduced to one of barring of 2
increments with cumulative effect. The medical records
relied on by the applicant are not before this Tribunal and
we are not in a position to examine the genuineness or
otherwise of the grounds on which he availed leave. We find
that the proceedings which preceded awarding of major
penalty of barring of increment for 2 years was conducted
in accordance with KPDIP & A Rules and it is perfectly in
order. The applicant has placed reliance on the judgment
reported in Pushpangadan v. State of Kerala [2002 (3)
KLT 519] to contend that the applicant had applied for
leave on medical grounds and the Government had no
authority to treat it as a leave which is not applied for. He
has also relied on the judgment of the Hon'ble Supreme
Court reported in Krushnakant. B Parmar v. Union of
India and another [2012 (3) SCC 178] to contend that
when an allegation of unauthorised absence of duty is made
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it has to be proved that the absence was willful. In the
present case, a perusal of the enquiry report shows that
the applicant had wilfully absented from attending duty
even after finding him fit by a Medical Officer. In the
absence of any documents or other evidence before us we
do not propose to enter into the genuineness or otherwise
of the medical examination conducted., though arguments
are raised by the learned counsel in this regard. We find
that the impugned orders are perfectly legal and we
therefore dismiss the Original Application as devoid of
merit".
5. Heard the learned counsel for the petitioner - applicant
and the learned Senior Government Pleader.
6. The learned counsel for the petitioner would submit
that the petitioner was constrained to avail medical leave from the
year 2002 onwards due to serious health issues. He had produced
valid medical certificates and had forwarded leave rolls through
proper channel. However, he was declared a deserter under Rule
19 of KPDIP & A Rules solely on the basis of the opinion of a
Single-member Medical Board, of the Indian System of Medicine
(Ayurveda), rendered without any clinical examination. The
disciplinary authority subsequently regularised the period of
absence as eligible leave, and hence, the imposition of a major
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punishment for the very same period is illegal. The Tribunal failed
to examine these aspects and mechanically accepted the
contentions of the respondents. In support of this argument that
leave duly applied for on medical grounds cannot be treated as
unauthorised absence, the learned counsel relied on the judgment
of this Court in Pushpangadan v. State of Kerala [2002 (3)
KLT 519] and that of the Apex Court in Krushnakant. B Parmar
v. Union of India [2012 (3) SCC 178], which he relied before the
Tribunal also, as evident from the impugned order.
7. On the other hand, the learned Senior Government
Pleader would submit that the medical certificates produced by the
petitioner to claim illness were issued by the Ayurvedic doctors.
Therefore, the Medical Board was constituted by making a request
to the District Medical Officer (ISM). On finding that he is fit to
rejoin duty, notice was issued to the petitioner to rejoin duty.
However, he did not rejoin duty and instead submitted a leave
application with similar medical certificate. He did not produce a
single medical certificate before the Tribunal. In Annexure A3
order imposing punishment of withholding of two annual
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increments and permitting him to rejoin duty, it was taking a
lenient view, the unauthorised absence period was ordered to be
treated as entitled leave. The Tribunal passed the impugned order
appreciating rival contentions in a proper perspective, and hence
no interference is needed by this Court.
8. Article 227 of the Constitution of India deals with the
power of superintendence over all courts by the High Court. Under
clause (1) of Article 227 of the Constitution, every High Court shall
have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
9. In Shalini Shyam Shetty v. Rajendra Shankar Patil
[(2010) 8 SCC 329] the Apex Court, while analysing the scope
and ambit of the power of superintendence under Article 227 of
the Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
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remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and courts
subordinate to the High Court.
10. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of
the powers under Article 227 of the Constitution of India, the Apex
Court held that, undoubtedly the High Court, under Article 227 of
the Constitution, has the jurisdiction to ensure that all subordinate
courts, as well as statutory or quasi-judicial tribunals exercise the
powers vested in them, within the bounds of their authority. The
High Court has the power and the jurisdiction to ensure that they
act in accordance with the well-established principles of law. The
exercise of jurisdiction must be within the well-recognised
constraints. It cannot be exercised like a 'bull in a china shop', to
correct all errors of the judgment of a court or tribunal, acting
within the limits of its jurisdiction. This correctional jurisdiction can
be exercised in cases where orders have been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice.
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11. In K.V.S. Ram v. Bangalore Metropolitan Transport
Corporation [(2015) 12 SCC 39] the Apex Court held that, in
exercise of the power of superintendence under Article 227 of the
Constitution of India, the High Court can interfere with the order
of the court or tribunal only when there has been a patent
perversity in the orders of the tribunal and courts subordinate to
it or where there has been gross and manifest failure of justice or
the basic principles of natural justice have been flouted.
12. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)
KHC 1] a Division Bench of this Court held that, the law is well
settled by a catena of decisions of the Apex Court that in
proceedings under Article 227 of the Constitution of India, this
Court cannot sit in appeal over the findings recorded by the lower
court or tribunal and the jurisdiction of this Court is only
supervisory in nature and not that of an appellate court.
Therefore, no interference under Article 227 of the Constitution is
called for, unless this Court finds that the lower court or tribunal
has committed manifest error, or the reasoning is palpably
perverse or patently unreasonable, or the decision of the lower
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court or tribunal is in direct conflict with settled principles of law.
13. In view of the law laid down in the decisions referred
to supra, the High Court in exercise of its supervisory jurisdiction
under Article 227 of the Constitution of India, cannot sit in appeal
over the findings recorded by a lower court or tribunal. The
supervisory jurisdiction cannot be exercised to correct all errors of
the order or judgment of a lower court or tribunal, acting within
the limits of its jurisdiction. The correctional jurisdiction under
Article 227 can be exercised only in a case where the order or
judgment of a lower court or tribunal has been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice. Therefore, no interference under Article 227 is
called for, unless the High Court finds that the lower court or
tribunal has committed manifest error, or the reasoning is palpably
perverse or patently unreasonable, or the decision of the lower
court or tribunal is in direct conflict with settled principles of law
or where there has been gross and manifest failure of justice or
the basic principles of natural justice have been flouted.
14. The petitioner entered service as a Police Constable in
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KAP Battalion V on 01.02.1993. In the year 1997, he was
transferred to the District Armed Reserve, Kottayam. From
09.09.2002 till 26.09.2004 he was on medical leave. Again, he
applied for medical leave from 06.11.2004 till 26.06.2005. The
leave sanctioning officer, doubting the genuineness of the medical
certificate, decided to seek a second medical opinion and
requested the DMO (ISM) to conduct a medical examination of
the petitioner and submit a report. Accordingly, after examination,
the DMO (ISM) submitted a report stating that the petitioner is
physically fit for duty. Thereafter, the leave applications submitted
by the petitioner were dismissed on the basis of the aforesaid
report of the DMO. Despite giving notice to the petitioner to rejoin
duty, he did not rejoin, and hence the subsequent period of his
absence was treated as unauthorised absence. Accordingly,
disciplinary proceedings were initiated against him, and the
District Police Chief decided to remove him from service. A show-
cause notice was also issued to him. However, even after finding
that there were no merits in the explanation offered by the
petitioner, the punishment was reduced to barring of two advance
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increments with cumulative effect, taking a lenient view. The
period of unauthorised absence was treated as eligible leave.
15. In Krushnakant. B Parmar [2012 (3) SCC 178],
the Apex Court held that in departmental proceedings, if allegation
of unauthorised absence from duty is made, the disciplinary
authority is required to prove that the absence is wilful. In the
absence of such a finding, the absence will not amount to
misconduct.
16. In the instant case, the disciplinary proceedings were
initiated against the petitioner, and it reached its natural
culmination. The petitioner has no case that there is procedural
violation or irregularity in the departmental enquiry. Though the
petitioner challenged the findings in the disciplinary proceedings
before the Tribunal; he has not produced any supporting material,
especially the medical records relied by him. The said fact is noted
by the Tribunal in the above extracted portion of the impugned
order. The Tribunal found that the perusal of the enquiry report
shows that the petitioner was wilfully absent from duty even after
being found fit by a medical officer. Therefore, the judgment in
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Krushnakant. B Parmar [2012 (3) SCC 178] is not applicable
to the case of the petitioner.
17. Similarly, in Pushpangadan [2002 (3) KLT 519], the
point considered by this Court was whether the combined leave
applied for on medical grounds and on a regular basis
accompanied by only one medical certificate, can be bifurcated.
The dictum laid down in that judgment is also not applicable to the
case of the petitioner.
18. Having considered the pleadings and materials on
record and the submissions made at the Bar, we find no illegality
or impropriety in the impugned order of the Tribunal.
In the result, the original petition stands dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
sks MURALEE KRISHNA S., JUDGE
2026:KER:7927
APPENDIX OF OP(KAT) NO. 22 OF 2026
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER NO. A5 (A) 788/AR/04
K DATED 22/11/2005 ISSUED BY THE 2ND
RESPONDENT DECLARING THE APPLICANT AS A
DESERTER WITH EFFECT FROM 27/06/2005
Annexure A2 TRUE COPY OF THE PR MINUTES DATED 10/10/2007
SUBMITTED BY THE 3RD RESPONDENT.
Annexure A3 TRUE COPY OF THE K.D.O. NO. 435/2008 K, DATED
21/05/2008 OF THE 2ND RESPONDENT IMPOSING A
MAJOR PUNISHMENT OF 2YR IB WITH CUMULATIVE
EFFECT AND ALSO REGULARISING THE PERIOD OF
ABSENCE AS ELIGIBLE LEAVE ALONG WITH RETYPED
COPY
Annexure A4 TRUE COPY OF THE LETTER OF COMMUNICATION
NO.G3/27236/2017 FROM THE STATE POLICE CHIEF
REJECTING THE REVIEW PETITION OF THE
APPLICANT ON TECHNICAL GROUNDS
Annexure A5 TRUE COPY OF THE REVIEW PETITION DATED
02/12/2017 SUBMITTED BY THE APPLICANT BEFORE
THE 1ST RESPONDENT
Annexure A6 TRUE COPY OF THE ORDER DATED 05/01/2018 IN
OA 25 OF 2018 OF THIS HON'BLE TRIBUNAL.
Annexure A7 TRUE COPY OF THE GO (RT.) NO: 2089/2018/HOME
DATED 20/07/2018 ISSUED BY THE 1ST RESPONDENT
Annexure A8 TRUE COPY OF THE LEAVE ROLLS FROM 06/11/2004
TO 13/06/2005 DULY FORWARDED TO THE 2ND
RESPONDENT BY THE OFFICERS OF DAR UNDER 2ND
RESPONDENT
Annexure A9 TRUE COPY OF THE KDO NO. 739/2018 DATED
23/10/2018 IN FILE NO. A4(A) 113/2018/K
ISSUED BY THE 2ND RESPONDENT SANCTIONING 2ND
TBHG TO THE APPLICANT
Annexure A1(a) RETYPED COPY OF ANNEXURE A1
Annexure A2(a) RETYPED COPY OF ANNEXURE A2
Annexure A10 RETYPED COPY OF ANNEXURE A3
Exhibit P1 A TRUE COPY OF O.A. NO.53 OF 2019 ALONG WITH
ANNEXURES A1 TO A9
Exhibit P1(a) TRUE COPY OF THE MA 2431/2022 ALONG WITH
ANNEXURE A1(A) AND A2(A)
Exhibit P1(b) TRUE COPY OF THE MA 883/2024 ALONG WITH
ANNEXURE A10
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Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE
1ST RESPONDENT
Exhibit P3 TRUE COPY OF THE REJOINDER SUBMITTED BY THE
APPLICANT
Exhibit P4 TRUE COPY OF THE FINAL ORDER DATED 28.10.2024
