Abdul Kareem A.M. v. The Additional Chief Secretary, Health and Family Welfare Department, Secretariat, Thiruvananthapuram; The Superintendent, General Hospital, Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** ## **OP(KAT).No. 60 of 2019** **ORDER IN OA (EKM) 1202/2018 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (CAMP SITTING, ERNAKULAM) DATED 24-07-2018** ## **PETITIONER/APPLICANT:** **ABDUL KAREEM.A.M., AGED 62 YEARS AZHIVELIKAKATH HOUSE, KARA P.O., KODUNGALLUR, PIN- 680671.** **BY ADVS. SRI.A.S.DHEERAJ SRI.P.V.JEEVESH** ## **RESPONDENTS/RESPONDENTS:** - **1 THE ADDITIONAL CHIEF SECRETARY, H AND FWD, SECRETARIAT, THIRUVANANTHAPURAM695001.** **2 THE SUPERINTENDENT, GENERAL HOSPITAL, ERNAKULAM- 682011.** ## **OTHER PRESENT:** **GP- SRI ANTONY MUKKATH.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 26.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT) No.60 of 2019 -2- ## **JUDGMENT** ## **V.G.ARUN, J.** The original petition is filed challenging the order in O.A.(EKM) No.1202 of 2018 of the Kerala Administrative Tribunal. The petitioner had entered service as a Blood Bank Technician in the Health Services Department on 2.12.1976. Thereafter, he went abroad on 2.12.1983, after availing Leave Without Allowances. He continued abroad on the basis of the extension for his leave period granted by the Department from time to time. The leave period was thus extended for 20 years, which expired on 2.12.2003. Even though the Department specifically informed the petitioner that there would be no further extension of leave period and required the petitioner to report back for duty, he did not do so and on the other hand, chose to conveniently continue with his employment abroad. According to the petitioner, after his O.P.(KAT) No.60 of 2019 -3- employment abroad came to an end, he returned to India and thereafter, requested to permit him to rejoin duty in the year 2008. His request was rejected by the Department. The original application was thereafter filed in the year 2018 with the following prayers. “i) issue an order to the respondents to provide the service benefits, including the gratuity, to the applicant. ii) direct the respondents to provide the service records to the applicant. iii) direct the respondents to take decision on Annexure A1 and Annexure A2 applications/ representations.” 2. By the impugned order, the Tribunal found that even as per the pleadings in the original application, the petitioner had only a total service of 7 years and 9 months, which does not qualify for minimum pension. The Tribunal also took note of the fact that pleadings are lacking with regard to the details of the petitioner's leave period and also O.P.(KAT) No.60 of 2019 -4- as to whether the petitioner had rejoined service pursuant to his return from abroad. It was also noted that the relevant orders of appointment in service, as well as proceedings, if any, initiated against the petitioner for unauthorised absence are also not made available. Hence, the Tribunal held that the original application is bereft of the necessary details required for adjudication of the issue. It is found that based on the available materials, the petitioner had put in only 7 years and 9 months of service and had thereafter, gone abroad. That the petitioner had not rejoined service after expiry of the leave period and is therefore not entitled to the relief sought in the original application. 3. As far as the findings of the Tribunal with regard to lack of pleadings is concerned, we are of the firm opinion that the pleadings which are necessary for considering the grievances attempted to be highlighted by the petitioner, is O.P.(KAT) No.60 of 2019 -5- completely lacking. The grounds raised in the original ## application reads as follows: “A) The actions/ inactions of the respondents are highly arbitrary and illegal. The actions/ inactions of the respondents violate the fundamental rights of the petitioner. A. The petitioner is residing with family. They have no means of lively hood. Moreover, the petitioner is a cardiac patient. The petitioner did not get any service benefits. B. The petitioner's fundamental rights under article 21 of the constitution are being violated. C. The attitude of the respondents is very adamant and arbitrary.” 4. The prayers in the original application also indicate that the petitioner was not definite regarding the relief for which he was entitled. As such, the original application can only be considered as one filed on an experimental basis. As far as the contentions in the original O.P.(KAT) No.60 of 2019 -6- petition is concerned, we find that rather than reiteration of the contentions urged before the Tribunal, nothing further has been mooted. Even though the petitioner filed I.A.No.2 of 2019 and attempted to produce additional documents, the interlocutory application is dismissed for the reason that the documents that are attempted to be produced were very much available to the petitioner at the time when the original application was filed and also during its pendency. Having failed to produce the documents in the original application, the petitioner cannot attempt to improve his case before this Court on the strength of additional documents. Moreover, as has been held by this Court in the decision reported in **Ramakrishnan P. v. Union of India and others [2017 (1) KLT SN 114]** in which one of us (C.T.Ravikumar.J) was a party, the petitioner cannot be permitted to assail the correctness of the order passed by O.P.(KAT) No.60 of 2019 -7- the Tribunal, by placing reliance on documents which were not produced before the Tribunal. The findings of the Tribunal that the petitioner had been in service only for a period of 7 years and 9 months and therefore, was not entitled for pension, is unassailable. 5. From the totality of the facts and circumstances, it is evident that having conveniently continued in his employment abroad, even after the expiry of the period of Leave Without Allowances, which in the case of the petitioner was extended for a period of 20 years, the petitioner had raised a claim for pension and other benefits. The manner in which the petitioner had conducted himself, with respect to his employment in Government service, is illustrative of the fact he had virtually abandoned his employment for the sake of his employment abroad. We arrived at such a conclusion from the undisputed fact that O.P.(KAT) No.60 of 2019 -8- neither in the original application nor even in this original petition, the petitioner has got a case that he had made serious attempt to rejoin duty, prior to his superannuation. The document sought to be produced as Ext.P3, along with I.A.No.2 of 2019 is only a belated attempt to improve the case. In such circumstances, we do not find any illegality in the order under challenge. Consequently, the original petition is dismissed. **Sd/C.T.RAVIKUMAR JUDGE** Sd/- **V.G.ARUN JUDGE** Scl/26.02 O.P.(KAT) No.60 of 2019 -9- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE CERTIFIED COPY OF THE ORDER IN O.A.(EKM) NO.1202/2018.** **EXHIBIT P2** **THE TRUE COPY OF THE MEMORANDUM OF O.A.(EKM)NO.1202/2018.**