THRIVIKRAMAN NAMBOODIRI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner who is a Medical Officer in the Health services Department of the State Government has come up to this court for the third time seeking relief in respect of certain proceedings commenced against him by way of disciplinary action which culminated in an order dated 8 31967 removing him from service with effect from 12 51966 on which date he had been placed under suspension. THE petitioner challenged that order before this Court in O. P. No. 1295 of 1967 and by judgment dated 20-3-1969 this Court quashed the impugned order holding that the allegation of misconduct levelled against the petitioner was without any foundation whatever and that the proceedings which culminated in the order of removal from service had been taken in violation of R. 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 and in contravention of the principles of natural justice.

(2.) THE petitioner had originally been appointed as an assistant Surgeon or. a provisional basis as per an order dated 3 61965. Subsequently, that provisional appointment was regularised with effect from 16 9 1965 as per an order dated 15101966 passed by the Director of Health Services. It was on 18 31967 that the Government passed the order impugned in O. P. No. 1295 of 1967 purporting to remove the petitioner from service. Notwithstanding the judgment of this court declaring the said order to be illegal and void, the petitioner was not reinstated into service on the basis of hi? original appointment as Assistant Surgeon which was regularised with effect from 16-9-1965. Instead, the Government issued an order dated 7 3 1970 directing that the proceedings dated 15101966 regularising the appointment of the petitioner with effect from 16 91965 will stand cancelled and that the Director of Health Services should issue a fresh order appointing the petitioner as Assistant Surgeon in pursuance of the advice of the Public service Commission in their letter dated 16 91965. THE effect of this government Order was clearly to deny to the petitioner the fruits of the decision rendered in his favour by this court in the judgment in O. P. No. 1295 of 1967. Aggrieved by the said order passed by the government the petitioner again came up to this court by filing O. P. No. 1619 of 1970. That writ petition was allowed by this court as per judgment dated 10th March, 1972 whereby the impugned Government order dated 7-3-1970 was quashed and it was held that there was no valid ground justifying the action taken by the Government to obliterate the prior order dated 15-10-1966 passed by the Director of Health Services regularising the appointment of the petitioner with effect from 16 9 1965; in other words, this court held that on the strength of the decision rendered on O. P. No. 1295 of 1967 the petitioner was entitled to be restored to the position which he had occupied prior to his wrongful removal from service, namely, that of a regular assistant Surgeon having been appointed as such with effect from 16-9-1965 as per the proceedings of the Director of Health Services dated 12-10-1956.

(3.) EXT. R-1 is in following terms: "dr. C. N. Thrivikraman Namboodiri was placed under suspension by Director of health Services on and with effect from 12 51966. He was removed from service with effect from that date by G. O. MS. I62/67/hld dt. 18-3-67. In O. P. No. 1295 of 1967, the High Court quashed the order of removal. Ing. O. HS.No. 82/70 Health dt. 7-3-70 the Government directed the Director of Health Service to issue fresh orders reinstating Dr. Namboodiri in service. In O. P. No. 1619 of 1970 the High court quashed the above order holding that the order of the Director of Health services dt. 1510 66 regularising the service of Dr. Namboodiri with effect from 16 9 65 still stands. In theg. O. read above, Dr. Namboodiri has been reinstated in service. The question as to how the period of his absence from the date of his removal from service till his reinstatement in service has to be treated was not considered at that lime. From the report of the Director of Health services it is seen that Dr. Namboodiri had been working in the following institutions during the period of his absence from state service. 2. Govt. have examined the question in detail and are pleased to order that the period of his absence from the date of his removal from service till the date of his reinstatement will be treated as duty. But for the periods during which he was under employment in the institutions mentioned above, he will be granted leave with permission to undertake employment under r. 69 Part I K. S. R.3. The Director of Health Services is requested to obtain and forward formal leave application from the Medical Officer. " I find there is force in the contention advanced by the learned advocate appearing for the writ petitioner. Under R. 56 of the Kerala Service Rules (Part I) when a Government servant who has been dismissed or removed from service is reinstated into service after his having been fully exonerated of the charges levelled against him the authority competent to order the reinstatement is bound to direct that the Government servant concerned should be paid the full salary to which he would have been entitled had he not been dismissed or removed. In the judgment rendered by this Court in O. P. No. 1295 of 1967 the order of removal passed against the writ petitioner was set aside by this Court on the ground that the allegation of misconduct levelled against him was without any foundation whatever. The petitioner having been thus fully exonerated it was incumbent on the authority which ordered his reinstatement into service, namely, the State Government, to direct that the petitioner should be paid the full salary and allowances for the whole of the period during which he had been wrongfully kept out of service. There is nothing in r. 56 which warrants any departure from the principle laid down therein on the ground that the officer had taken some private employment during some portion of the period between his dismissal or removal from service and the date of his reinstatement. No other provision contained in the Keral a Service Rules which operates as an exception to the aforesaid principle laid down in R. 56 has been brought to my notice.