Dr. N.S. Harikishore v. State of Kerala and Director of Medical Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933** ## **WP(C).No. 3252 of 2007(K)** **-------------------------** **PETITIONER(S):** **-----------------------** **DR. N.S.HARIKISHORE, TC. IV/1696(1), D-1, BELHAVEN GARDENS, KOWDIAR, THIRUVANANTHAPURAM-695 003, (FORMERLY ASSISTANT PROFESSOR, DEPARTMENT OF ANAESTHESIA, MEDICAL COLLEGE, ALAPPUZHA.)** **BY ADVS. SRI.B.RAGUNATHAN SRI.V.V.MATHEW** **RESPONDENT(S):** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695 011.** **BY GOVT PLEADER SRI.ANTONY MUKKATH FOR R1 & 2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) No.3252 OF 2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : COPY OF THE GO(Rt)No.1152/97/H&FWD DT.23.4.97. EXT.P2 : COPY OF THE NOTICE No.SSI/7284/92/DME DT.19.5.97 EXT.P3 : COPY OF THE REPRESENTATION DT.27.5.1997. EXT.P4 : COPY OF THE LETTER DT.15.10.99 OF THE 2ND RESPONDENT. EXT.P5 : COPY OF THE LETTER DT. 14.5.2001 OF THE 1ST RESPONDENT. EXT.P6 : COPY OF THE REPRESENTATION DT. 1.6.2001. EXT.P7 : COPY OF THE GO DT.14.5.2001. EXT.P8 : COPY OF THE LETTER DT. 20.6.2001 EXT.P9 : COPY OF THE REPRESENTATION DT. 4.7.2001. EXT.P10 : COPY OF THE REPRESENTATION DT. 21.2.2005. EXT.P11 : COPY OF THE GO(MS) No.225/03/H&FWD DT. 6.11.03. EXT.P12 : COPY OF THE JUDGMENT DT. 3.6.2005 IN W.P(C) No.13098 OF 2005-H. EXT.P13 : COPY OF THE REPRESENTATION DT. 25.6.2005. EXT.P14 : COPY OF THE LETTER DTD. 27/7/2005 OF THE 1ST RESPONDENT. EXT.P15 : COPY OF THE REPRESENTATION DT.11.8.2005. EXT.P16 : COPY OF THE REPRESENTATION DT.12.8.2005. EXT.P17 : COPY OF THE JUDGMENT DTD.24.1.1986 IN W.A. No.262 OF 1980. EXT.P18 : COPY OF THE LAWYER'S NOTICE DTD.16.9.2006. EXT.P19 : COPY OF THE LETTER DTD. 28.9.2006 OF THE 1ST RESPONDENT. EXT.P20 : COPY OF THE G.O. DTD. 7.12.2006.** Contd....) ## **WPC No.3252 OF 2007** ## **RESPONDENT'S EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Kp** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.3252 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of July, 2011** ## **J U D G M E N T** The petitioner was an Assistant Professor in the discipline of Anesthesia in the Medical Education department of the Government of Kerala. He applied for leave without allowances for five years from 04.03.1987 to take up employment abroad. That was allowed. On 14.02.1992 the petitioner applied for extension of leave for a further period of 5 years from 04.03.1992. That application was rejected by order dated 23.09.1992. Memo of charges were issued to the petitioner for disciplinary action for unauthorized absence from 04.03.1992. The petitioner reported for duty on 27.09.1995 and he was allowed to rejoin duty on 18.01.1996 subject to disciplinary proceedings. Originally the punishment of barring of one increment for a period of two years with cumulative effect was proposed. The petitioner submitted a reply requesting ## W.P.(C)No.3252 of 2007 **-2-** to drop further proceedings. Thereafter it was decided to initiate disciplinary proceedings for imposing major punishment after complying with the provisions of Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules. An enquiry officer was appointed. The petitioner filed Ext.P3 representation before the Enquiry Officer that the Government may reconsider the decision and grant the leave applied for dropping the disciplinary action and requesting that if the request of the petitioner is not acceptable to the Government, the said representation may be treated as resignation from the post of Assistant Professor in the Medical Education Department. By Ext.P4 dated 15.10.1999 the Director of Medical Education informed the petitioner that the conditional resignation cannot be accepted. Thereafter by Ext.P5, the Government informed the petitioner that the Government has accepted his request for resignation from Medical Education Service with effect from 27.05.1997 and the Government have tentatively decided to treat the period of unauthorized W.P.(C)No.3252 of 2007 **-3-** absence from 04.03.1992 to 17.01.1996 and from 22.01.1996 to 27.05.1997 as leave without allowances as per Appendix XII A of Part I, K.S.R. The petitioner was requested to submit her written opinion in this regard within 15 days. The petitioner submitted Ext.P6 dated 1.6.2001 whereby the petitioner requested that his conditional resignation may be treated as withdrawn and to give posting to any of the Medical Colleges in the State. But in the meanwhile, by Ext.P7 dated 14.05.2001, the Government permitted the petitioner to resign from Medical Education Service with effect from 27.05.1997 as per the provisions of the Circular dated 03.10.1997 issued by the Government. The petitioner filed a petition against the same, which was rejected by Ext.P8. The petitioner filed Ext.P9 review petition and Ext.P10 representation dated 21.02.2005. The petitioner thereafter approached this court by filing W.P. (C) No.13098/2005 in which, by Ext.P12 judgment, this court directed the Government to consider Exts.P9 & P10. The petitioner filed Ext.P13 further W.P.(C)No.3252 of 2007 **-4-** representation and ultimately by Ext.P20 the petitioner's representations were rejected. The petitioner has filed this writ petition seeking the following reliefs: - “i) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exts.P5, P7, P8 and P20 and quash the same. - ii) issue a writ of mandamus or other appropriate writ, direction or order to the 1[st] respondent to grant all the benefits to the petitioner, taking into account Exts.P12, and P17 judgments and as if the petitioner had retired on superannuation from the service on 30.4.2005.” 2. The petitioner's contention is that the rejection of extension of leave was unreasonable and therefore the petitioner ought to have been granted the extension of leave applied for. He also submits that the conditional resignation was never submitted before the Government and it was a reply to the enquiry officer who conducted the enquiry in the disciplinary proceedings. It is further submitted that the conditional resignation was withdrawn even prior to acceptance of the same by the Government. It is also pointed out that after having issued Ext.P4 refusing to accept the conditional resignation there is no point in further telling the petitioner that it is accepted. The ## W.P.(C)No.3252 of 2007 **-5-** petitioner submits that with the threat of disciplinary proceedings, the petitioner was forced into submitting a resignation and since it was conditional, it cannot constitute a resignation at all. The petitioner relies on the decisions of the Hon'ble Supreme Court in **Dr. Prabha Atri v. State of U.P. and others [(2003) 1 SCC 701]** & **H.L. Trehan v. Union of India [(1989) 1 SCC 764]** in support of his contentions. The petitioner submits that in one of the above decisions the Hon'ble Supreme Court has categorically held that a conditional resignation on the threat of a disciplinary proceedings is not a resignation at all. 3. The learned Government Pleader seeks to sustain the impugned orders with the help of a counter affidavit filed by the 2[nd] respondent. 4. I have considered the rival contentions in detail. 5. I am of opinion that Ext.P3 cannot be regarded as a resignation letter at all, insofar as it was addressed to the Enquiry Officer and not to the head of the department or the Government who is the authority to accept the W.P.(C)No.3252 of 2007 **-6-** resignation. The same was also a conditional one when disciplinary proceedings were looming over him. Therefore the decision in Dr. Prabha Atri's case applies to the fact situation. Apart from that by Ext.P5, the petitioner was required to submit his written opinion on the acceptance of his resignation to which the petitioner has submitted Ext.P6 specifically stating that his representation dated 27.05.1997 containing the offer of conditional resignation may be treated as withdrawn and therefore the Government could not have accepted the resignation at all. The learned Government Pleader would point out that Ext.P6 was received after Ext.P7 which was passed on 14.05.2001. But after calling for the opinion of the petitioner on the proposal in Ext.P5 dated 14.5.2001, on the same date Ext.P7 was also issued which is totally unjust in so far as in Ext.P5 the petitioner was directed to submit his opinion within 15 days from the date of receipt of Ext.P5, which the petitioner did by Ext.P6 dated 1.6.2001, since Ext.P5 was received by him only on 28.5.2001. In the facts and circumstances of the ## W.P.(C)No.3252 of 2007 **-7-** case, I am of opinion that the documents produced would clearly show that the petitioner had all along expressed desire to withdraw the conditional resignation which any event was not a resignation letter at all before the Government but a reply to the Enquiry Officer. Therefore I am of opinion that, that resignation cannot be treated as a resignation at all. At any rate the petitioner had withdrawn the said conditional resignation within the time stipulated in Ext.P5 notice. Therefore the impugned orders are liable to be quashed. I do so. 6. The Government was goaded into passing these orders only because of Ext.P3 reply submitted by the petitioner before the enquiry officer in which he had offered to resign. The Government acted on the basis of Ext.P3 which was forwarded by the Enquiry officer to the government. That being so now that the impugned orders have been quashed the matter has to retraced to the stage when Ext.P3 was submitted by the petitioner. That means the disciplinary proceedings have to be redone as from the ## W.P.(C)No.3252 of 2007 **-8-** date of Ext.P3 namely 27.05.1997. Accordingly I dispose of this writ petition with a direction to the Government to continue the disciplinary proceedings against the petitioner from the date of Ext.P3 namely 27.05.1997 and take the same to its logical conclusion as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/