IMPORTANT POINTS
No circumstances contemplated in Article 311(2) of the Constitution or under Rule 18(ii) of the KCS(CC&A) Rules, arise in this case. The Government found it not feasible to follow the disciplinary proceedings laid down in KCS (CC&A) Rules against a large number of unauthorised absentees on individual basis, which according to the Government was time consuming and a herculean task. The decision in State of Kerala v. Gopakumar, 2012 (2) KLT 932 (SC) pressed into service by the learned Government Pleader cannot be applied to the case in hand because the facts in that decision defers to the instant case. In Gopakumar's case (supra) the Doctor in question had already accepted another employment without permission and therefore the Honourable Supreme Court endorsed the view taken by the Government that holding an enquiry would be an empty formality.

JUDGMENT :

Ashok Menon, J.

The Government of Kerala was reviewing absenteeism in Medical Education Services of more than 75 Doctors. Could the Doctors bound by the Hippocratic Oath, unauthorisedly absent themselves from duty and serve the private institutions offering more lucrative pay packages be terminated from service with the great objective of public health sector by the Government by initiating disciplinary action collectively against all the unauthorised absentees, is the precise question that arises before us.

2. Dr.P.Gopinathan, an Associate Professor on Orthopaedics, Government Medical College, Kozhikode, was one among them, who is alleged to have been unauthorisedly absent with effect from 20.02.2010 stating that he was suffering from severe irritable bowel disease with post cholecystectomy syndrome and being confined and bedridden at his home without mobility, on the basis of a certificate issued by another Doctor, named Dr.Jayachandran M.V. on 29.09.2009; applied for 89 days leave vide Annexure A5 application. The Principal of the College asked him to appear before a Medical Board. Vide Annexure A6 letter dated 19.10.2009 he detailed his illness and bedridden situation and stated that he cannot physically attend before the Medical Board in the Chamber of the Superintendent, Medical College Hospital, Kozhikode on 21.10.2009 as directed by the Principal. He also stated that he had already applied for voluntary retirement due to health reasons because of his inability to work for prolonged time and travel. He also referred to the pendency of W.P.(C) No.27431/2009 before this Court regarding his plea for retirement.

3. Conceding to his inability in attending the Medical Board at the Medical College Hospital as a patient completely confined to bed, the Principal constituted a Medical Board consisting of three Doctors and directed them to examine him at his residence. He was examined by the Medical Board on 30.11.2009 and they submitted a report stating that Dr. Gopinathan has clinical evidence of having undergone cholecystectomy and is having symptomatology suggestive of irritable bowel syndrome and post cholecystectomy syndrome and that the certificate produced by Dr.Gopinathan is genuine.

4. Dr. Gopinathan thereafter continued to apply for leave incessantly vide Annexures A8, A9, A10 and A11. No action was taken on those applications for leave.

5. Following his continued absence, the Government published a show cause notice No.30906/S1/10/H&FWD in the news papers informing that the services of the Doctors, who are on unauthorised absence, would be terminated if they failed to rejoin duty immediately. The Government was apprehensive about Doctors who were availing leave for employment abroad and failing to return even after expiry of the period of leave.

6. Dr.Gopinathan intimated the Government that he is not on unauthorised leave, but the absence is on medical ground for which he has also submitted leave applications throughout. He also informed that he was ready and willing to rejoin duty as and when he is fit to discharge the duties.

7. Consequent to that, the Government issued Annexure A 12 order on 16.08.2010 asking him to join duty at the Government Medical College, Kozhikode, where he was reposted pending disciplinary action for his unauthorised absence. He did not join duty. However, on 03.12.2010, when Dr.Gopinathan ultimately reported before the Principal for joining duty, he was informed that he should get specific permission from the Government and he approached the Government vide letter dated 03.12.2010 at Annexure A13 expressing his willingness to join as Associate Professor in Orthopaedics. On 04.04.2011 he sent another letter at Annexure A14 expressing his willingness to join duty. But he was kept waiting.

8. While so, he received Annexure A15 order of the Government dated 21.05.2011 stating that the Government has decided to confirm the disciplinary action against him by invoking Article 311(2) of the Const