In the absence of specific provisions, conditions regarding the regularisation of absence without counting for any service benefits including pension cannot be imposed.

Arijit Pasayat, C.J.

1. The Judgment of the Court was delivered by Pasayat, C. J.- Heard. In the appeal filed by the State challenge is to the order passed by the learned Single Judge holding that the regularisation of period of absence, subject to the rider that it "will not count for any service benefits including pension" is illegal.

2. A brief reference to the factual aspects would suffice. Respondent while working as an Assistant Professor of Anatomy in the Medical College, Thrissur, availed of leave on medical grounds. During the period of her leave, her husband was granted Commonwealth Medical Fellowship and as per the teems of the Fellowship, the grantee was to take along with him, his fatally. To satisfy that condition, she accompanied her husband to the United Kingdom. Before proceeding there, she applied for eligible leave till her return. She came back in February, 1985 and reported for duty. She was allowed to join duty on 15th May 1985. Thereafter action was taken against he: for alleged unauthorised absence and the Joint Director of Medical Education was appointed as enquiry officer to enquire into the charges of unauthorised absence and her travel abroad without sanction from the Government. The enquiry officer found her guilty of both the charges. Thereupon, a punishment of barring of one. increment without cumulative effect was imposed upon her. Against the order of punishment, she preferred a review petition.

3. Meanwhile, she moved the Government for transfer to the Medical College, Trivandrum. When no order on that request was passed, she moved this Court by filing O.P. No. 23 of 1986 and this Court by Judgment dated 1.3th March 1986 directed the Government to consider her representation and pass final order within three weeks from the date of Judgment. She was then transferred to the Medical College, Trivandrum. While she was working there, she had to avail of leave on medical grounds for the period from 4th July 1985 to 8th July 1986. But the leave applied for was not granted. Meanwhile, the Government as per order, G.O. (Rt.) 2690/87/H and F.W.D. dated 8th September 1987 regularised her absence in the following manner:

"1. Earned leave for 15 days from 21th March 1983 to 4th April 1983.

2. Leave without allowance on medical grounds for 35 days from 4th May 1983 to 9th May 1983.

3. Maternity leave (under R.103, Part i K.S.Rs.) for 42 days from 10th May 1983 to 20th June 1983.

4. Leave without allowance from 21st June 1983 to 15th May 1985 and from 4th July 1985 to 8th July 1986, which will not count for any service benefits including pension."

She moved a review petition before the Government against the stipulation made in the Government order referred to above. The review petition was rejected and thereafter, she filed O.P. No. 1437 of 1989. Learned Single Judge held the view that after having imposed a punishment of barring of one increment, a second punishment was not permissible in the absence of any rules.

4. The main ground of challenge in this appeal by the State is that the condition that the period of absence will not be counted for any service benefits including pension was intended to control the employee from availing of advantageous and benefit during unauthorised absence. As per R.88 of Part I of the Kerala Service Rules, (in short "the Rules"), the period of leave was dealt with and it was directed that the said period would be without allowance. With reference to Appendix XII A (referred to in Exception 2 to R.88 and R.110 b of Part I K.S.Rs.) which deals with rules for grant of leave without allowances for taking up employment abroad or within India, it is submitted that the person who is granted leave has to forego certain benefits, and in case of unauthorised absence a more advantageous position cannot be conceived.

5. Learned counsel for the respondent employee, on the other hand, submitted that in the absence of any rule in that regard, the condition was clearly not legal and the lear