# **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.**
**MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 OP(KAT) NO. 9 OF 2018**
**AGAINST THE ORDER IN OA 1456/2013 OF KERALA ADMINISTRATIVE**
## **TRIBUNAL, THIRUVANANTHAPURAM**
## **PETITIONER/APPLICANT:**
SHEENA K. (FORMER L.D.CLERK, SOIL CONSERVATION DEPARTMENT)O/O.ASSISTANT DIRECTOR OF SOIL CONSERVATION, KARAKKAMALA, WAYANAD DISTRICT-670645, RESIDING AT SISTERS VILLA, NEAR FRIENDS INDUSTRIES, MANANTHAVADI, WAYANAD DISTRICT-670645.
BY ADV SRI.M.SASINDRAN
## **RESPONDENTS/RESPONDENTS:**
1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR DIRECTORATE OF SOIL CONSERVATION DEPARTMENT, THIRUVANANTHAPURAM-695033
BY GP: SRI BIJOY CHANDRAN
**THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ**
## **------------------------------------------------------------------**
OP(KAT)No.9 of 2018 -------------------------------------------Dated this the 13[th] day of June, 2022
## **JUDGMENT**
## Mohammed Nias.C.P, J.
The petitioner challenges the dismissal of original application preferred questioning her dismissal from service and the rejection of the appeal filed challenging the dismissal order by Annexure A8. The brief facts necessary for the disposal of the OP(KAT) are as follows:-
The petitioner was appointed as a Lower Division Clerk in the Soil Conservation Department on the basis that she is a person with 45% hearing disability relying on Annexure A1 disability certificate issued by the District Disability Board, Wayanad, in the quota earmarked for 3% vacancies reserved for the physically handicapped in the Wayand District. It is alleged that the disability was caused due to an accident occurred in the year 1998. She was appointed as LDC on 13.10.2003. While she was continuing as such, she was served with a charge memo alleging that the certificate which she produced at the time of appointment is found to be bogus and on that basis she was placed under suspension. Subsequently the petitioner was directed to undergo medical examination before the Medical Board,
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at the Medical College Hospital, Kozhikode, in which it was seen that the petitioner was feigning disability and that on the strength of the second certificate it was presumed that the first certificate given was not genuine. We notice that similar enquiries were initiated on the basis of complaints received about the appointments made in Wayanad District during that time and several persons were alleged to have got employment using such bogus certificates issued by the same Medical Board. The applicant replied to the show cause notice and by Annexure A5 order her services were terminated. The petitioner carried an appeal against the said order which stood rejected by Annexure A8. The dismissal and the rejection of the appeal by Annexure A8 order were challenged before the Tribunal.
2. The contention of the petitioner before the Tribunal was primarily that there was no enquiry conducted and that her rights were affected as the procedure prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rule 1960 (for short “KCS&A Rules”) were not followed. The petitioner also submitted that the certificate, Annexure A1 granted in the first instance was not found to be wrong nor it is not set aside and therefore that cannot be any warrant for holding that the said this certificate is not genuine.
3. The Government contended before the Tribunal that they were several similar cases where employments were obtained
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producing fake certificates and the second examination by the competent Medical Board showed that there is no disability. It was the further submission of the Government that such persons who got employment solely on the basis of the disability certificate as mentioned above cannot be allowed to continue in service. The Tribunal accepted the certificate issued by the Medical Board, Medical College Hospital, Kozhikode and found that her dismissal was justified as fraud was played for getting employment and in such cases where fraud has been played for obtaining benefits, termination can be resorted to without adhering to the procedure under the KCS&A Rules, 1960. The judgment of the supreme court in **R.Viswanatha Pillai v. State of Kerala** 2004(2) SCC 105 was also relied on for arriving at the said conclusion. The said dismissal of the original application is assailed before us.
4. The learned counsel for the petitioner, Sri.M.Sasindran submits that there is no finding anywhere that the original certificate granted by the Medical Board, Wayanad is forged and it is a case where the petitioner's hearing improved following a prolonged treatment. He also submits on the basis of the judgments in OP(KAT) 66 of 2021, WA No.1265 of 2011 and OP(KAT) 336 of 2015 that a reduction of disability subsequently cannot be used for holding that the first certificate granted is not accurate. It is relevant to note that in the reply to the show cause notice the petitioner specifically pleaded that she still had the disability and there was no case that it
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was cured by any subsequent treatment.
5. The learned Government Pleader submits that since the petitioner got the employment solely on the basis of the disability certificate which is found to be not genuine, the petitioner cannot be allowed to continue with her employment. The procedure contemplated under the KCS&A Rules also will have no application in cases where fraud is perpetrated.
6. We find that the case laws referred to by the learned counsel for the petitioner are clearly distinguishable. Going through the facts of the case it is seen that in all those cases there was a second examination which showed exactly the same disability as claimed in the original certificate though in those cases, there were reduction in the percentage of the disability. In such circumstances, it was held in those cases that there is no proof for doubting the genuineness of any of the certificates as the disability was still subsisting though the percentage had decreased. Thus we hold that the case law referred to by the learned counsel for the petitioner being distinguishable on facts.
7. In the instant case, the very show cause notice issued to the petitioner suggested that the certificate originally granted was false and she was feigning disability to which the petitioner responded by stating that she had the disability. The second
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examination at the Medical College Hospital, Kozhikode by the Medical Board also established the same. There was no case in the reply to the show cause notice that she has become better or that there is reduction in the disability following any treatment taken .
8. The very criteria for getting a job was the permanent disability and once it is proved that the certificate on the basis of which she got employment is bogus, there is nothing illegal in her services being terminated. Equally, since fraud was played at the time of getting employment there is no requirement for conducting any enquiry as mentioned in KCS&A Rules, 2019.
We do not find any merit in the contentions urged in support of this appeal. This OP(KAT) lacks merit and is accordingly dismissed.
Sd/-
## **A.K.JAYASANKARAN NAMBIAR,**
## **JUDGE**
Sd/-
**MOHAMMED NIAS C.P., JUDGE**
dlk 13.6.2022
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## **APPENDIX OF OP(KAT) 9/2018**
PETITIONER'S EXHIBITS & ANNEXURES
EXHIBIT P1 TRUE COPY OF ORDER DATED 11-08-2016 IN O.A.NO.1456 OF 2013. EXHIBIT P2 TRUE COPY OF O.A.NO.1456 OF 2013. ANNEXURE A1 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 09.07.2002 ANNEXURE A2 TRUE COPY OF MEMO CHANRGES DATED 29.10.2011 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A2A TRUE ENGLISH TRANSLATION OF ANNEXURE A2 ANNEXURE A3 TRUE COPY OF SHOW CAUSE NOTICE DATED 12.04.2012 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A4 TRUE COPY OF THE REPLY DATED 09.05.2012 SUBMITTED BY THE PETITIONER. ANNEXURE A5 TRUE COPY OF ORDER DATED 17.07.2012 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A5A TRUE ENGLISH TRANSPLATION OF ANNEXURE A5 ANNEXURE A6 TRUE COPY OF APPEAL DATED 21.08.2012 SUBMITTED BY THE APPLICANT BEFORE THE IST RESPONDENT. ANNEXURE A7 TRUE COPY OF ACKNOWLEDGEMENT DATED 24.08.2012 ISSUED BY THE 2ND RESPONDENT ANNEXURE A8 TRUE COPY OF ORDER DATED 08.03.2013 ISSUED BY THE IST RESPONDENT. ANNEXURE A8A TRUE ENGLISH TRANSLATION OF ANNEXURE A8 ANNEXURE A9 TRUE COPY OF ORDER DATED 09.04.2013 IN OA NO.537 OF 2013 EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT SUBMITTED BY THE 2ND RESPONDENT.
ANNEXURE R2A TRUE COPY OF LETTER NO.S1-31753/2012(7)
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DATED 20.03.2011
ANNEXURE R2A TRUE ENGLISH TRANSPALTION OF ANNEXURE R2A ANNEXURE R2B TRUE COPY OF LETTER DATED 28.01.2012 ANNEXURE R2B TRUE ENGLISH TRANSLATION OF ANNEXURE R2B ANNEXURE R2C TRUE COPY OF LETTER DATED 05.08.2011
ANNEXURE R2C TRUE ENGLISH TRANSLATION OF ANNEXURE R2C ANNEXURE R2D TRUE COPY OF LETTER DATED 15.03.2012
ANNEXURE R2D TRUE ENGLISH TRANSLATION OF ANNEXURE R2D ANNEXURE R2E TRUE COPY OF SOD DATED 04.01.2012
ANNEXURE R2E TRUE ENGLISH TRANSLATION OF ANNEXURE R2E
ANNEXURE R2F TRUE COPY OF PROCEEDINGS DATED 24.08.2011 AND CONNECTED ORDERS
ANNEXURE R2F TRUE ENGLISH TRANSLATION OF ANNEXURE R2F EXHIBIT P4 TRUE COPY OF REJOINDER SUBMITTED BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF M.A.NO.2232 OF 2016.
ANNEXURE MA1 TRUE COPY OF ORDER DATED 19.06.2013 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES
ANNEXURE MA2 TRUE COPY OF LETTER DATED 05.01.2013 ISSUED BY THE SECRETARY, DEPARTMENT OF COOPERATION.
EXHIBIT P6 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY M.RAJAN VAIDYAR, DRAVIDA HERBAL MEDICINES EACHOME, WAYANAD
EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 16/6/2017 IN OP (KAT) NO.336 OF 2015 EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE DISTRICT MEDICAL OFFICER, WAYANAD
## RESPONDENTS EXHIBITS
EXHIBIT TRUE COPY OF THE MEDICAL REPORT. R2(A)
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