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2025 Supreme(Ker) 793
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, P.
The State Of
Versus
Sreekantan. S.S., S/o P. Sivarajan - Respondents
OP(KAT) No. 305 of 2024
Decided on :
Advocate Appeared:
For the Appellant : SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE
For the Respondents: ADV M.SREEKUMAR
IMPORTANT POINT
The Government has discretion to impose reasonable conditions when retrospectively converting unauthorized absence into leave without allowance under Rule 88(iii) of the Kerala Service Rules.
Headnote:
(A) Kerala Service Rules - Rule 88(iii) - Conditions for retrospective conversion of unauthorized absence into leave without allowance - The Government's discretion to impose conditions while regularizing unauthorized absence is upheld, provided they are fair and reasonable. (Paras 1 , 10 )
(B) Absence from duty - The respondent's unauthorized absence for over five years was not properly documented as leave, and the Government's conditions for regularization were deemed lawful. (Paras 3 , 10 )
(C) Medical grounds for leave - The Tribunal's order to convert absence into leave without allowance on medical grounds was overturned due to failure to follow prescribed procedures. (Paras 4 , 10 )
Facts of the case:
The respondent, an Agricultural Assistant, was absent from duty for over five years and sought to convert this absence into leave without allowance on medical grounds, which the Government initially denied.
Findings of Court:
The Government's discretion to regularize the absence was upheld, but the rejection of benefits for the waiting period was deemed unjust.
Issues: The main issues were whether the Government could impose conditions on the conversion of absence to leave and the legality of the Tribunal's order.
Ratio Decidendi: The court ruled that the Government has the discretion to impose conditions when converting unauthorized absence into leave without allowance, provided they are reasonable and necessary.
Result: The original petition is allowed in part, modifying the Tribunal's order.
JUDGMENT :
P.Krishna Kumar, J.
The key question arising in this matter is whether the Government is entitled to impose conditions while retrospectively converting the period of unauthorised absence of an employee into leave without allowance, as per Rule 88(iii) of Part I of the Kerala Service Rules (‘KSR’, for short).
2. The respondent, while working as an Agricultural Assistant, had been in unauthorised absence for a period from 02.01.2008 to 18.02.2013. He appeared before the Director of Agriculture (second petitioner) on 19.02.2013 to rejoin duty. But he was permitted to rejoin duty only from 22.07.2014. Later, the respondent made a request to consider the period from 02.01.2008 to 18.02.2013 as leave without allowance on medical grounds and to treat the period between 19.02.2013 and 22.07.2014 as a waiting period for joining duty.
3. As per Annexure A15 order dated 01.08.2017, the Government regularised his service during the entire period as leave without allowance on the condition that the respondent would not be entitled to reckon the said period for Pension, Increment, Higher Grade or Earned Leave. However, the Government rejected the request for converting the said period as leave without allowance on medical grounds for the reason that the respondent did not follow the procedure prescribed in various Government orders for availing leave without allowance on medical grounds.
4. The respondent challenged Annexure A15 order before the Kerala Administrative Tribunal. While allowing the application made by the respondent, the Tribunal observed that he was suffering from a depressive disorder and was under the treatment of a Psychiatrist in the Government Medical Centre, Thiruvananthapuram and thus, the period of absence from 02.01.2008 to 18.02.2013 should be treated as leave without allowance on medical grounds. The Tribunal further directed the Government to treat the period of absence from 19.02.2013 to 21.02.2014 as a duty for all purposes.
5. The order of the Tribunal is challenged before us by the State on the ground that Rule 24 of Part I KSR empowers the Government to remove an officer from service if he is continuously absent from duty for a period of five years unless there are some special circumstances. It is also contended that as per Rule 88(iii) of Part I KSR, it is purely the discretion of the State Government to consider whether the period of absence is to be retrospectively converted into leave without allowance. The Government further contended that as per Circular No.36/96/Fin dated 14.06.1994, leave without allowance on medical grounds could be granted under Rule 88 of Part I KSR only if the procedure prescribed in the said Circular, including the condition to undergo a second round of medical examination, is scrupulously followed, but the Tribunal omitted to note the above aspects.
6. We have heard Sri. A.J. Varghese, the learned Senior Government Pleader appearing for the State and Sri.M.Sreekumar, the learned counsel appearing for the respondent.
7. After considering the records before us, in the light of the relevant statutory provisions mentioned above, we are of the view that there is substance in the contentions raised by the State. The respondent was absent from duty for a period of more than five years. According to the Government, he did not submit any application for leave during the said period. Though he later produced some medical records showing that he was suffering from some diseases, he did not follow the procedure to be complied with, including the second medical examination. In Annexure A15, it is further noted that even when the respondent was specifically asked to submit a proper application after complying with the mandatory procedures, he failed to do it. Thus, the Tribunal is not correct in directing the Government to convert the said period as leave without allowance on medical grounds. As the learned Tribunal has omitted to note this important distinction and proceeded to hold othe
