State of Kerala v. Sreekantan S.S.

Citation : 2025 (4) KLR 202 : 2025 KER 29537
Case Number : O.P. (KAT) No. 305 of 2024; 7 April 2025
Court : High Court of Kerala
Judges : A. Muhamed Mustaque, J.; P. Krishna Kumar, J.
Parties : State of Kerala v. Sreekantan S.S.

Kerala Service Rules – Rule 88(iii), Part I – Unauthorized Absence – Retrospective Conversion to Leave Without Allowance – Imposition of Conditions.

Government has discretion under Rule 88(iii) to retrospectively convert unauthorized absence into leave without allowance and impose conditions (e.g., excluding period from pension, increment, higher grade, or earned leave), provided they are fair, reasonable, and necessary to protect public interest. Conditions upheld for absence exceeding five years, distinguishing State of Kerala v. Dr. V.M. Kurshid (ILR 2000(1) Ker. 535) where Rule 88(iii) was not in effect.

Kerala Service Rules – Rule 24, Part I – Termination for Prolonged Absence: Absence exceeding five years may justify termination unless exceptional circumstances exist; regularization with conditions is a valid exercise of discretion to avoid extreme measures.

Leave Without Allowance on Medical Grounds – Procedural Compliance: Leave without allowance on medical grounds requires strict adherence to procedures, including second medical examination as per Circular No.36/96/Fin; non-compliance justifies denial despite medical evidence.

Waiting Period After Unauthorized Absence – Treatment as Duty: Departmental delay in posting an employee after reporting may warrant treating waiting period as duty under Rule 12(7), Part I KSR, despite prior unauthorized absence.

Held: Tribunal’s order modified; Government’s conditions on leave without allowance upheld; absence period (02.01.2008–18.02.2013) not treated as medical leave due to procedural lapses; waiting period (19.02.2013–21.07.2014) treated as duty due to departmental delay.

Procedural History

The case arose from an appeal by the State of Kerala against the order dated 25.10.2019 by the Kerala Administrative Tribunal in O.A. No. 502 of 2018, which directed the regularization of the respondent’s unauthorized absence as leave without allowance on medical grounds and treated a subsequent waiting period as duty.

Facts

  • The respondent, an Agricultural Assistant, was absent without authorization from 02.01.2008 to 18.02.2013.
  • He reported to rejoin duty on 19.02.2013 but was permitted to resume only on 22.07.2014.
  • The respondent requested that the absence period (02.01.2008–18.02.2013) be treated as leave without allowance on medical grounds and the period from 19.02.2013 to 22.07.2014 as a waiting period for duty.
  • The Government, via Annexure A15 order dated 01.08.2017, regularized the absence as leave without allowance (not on medical grounds) with the condition that the period would not count for pension, increment, higher grade, or earned leave. The request for medical grounds was rejected due to non-compliance with procedural requirements, including a mandatory second medical examination.
  • The Tribunal overturned Annexure A15, directing the absence period to be treated as leave without allowance on medical grounds (due to the respondent’s depressive disorder) and the waiting period (19.02.2013–21.02.2014) as duty for all purposes.
  • The State challenged the Tribunal’s order, citing Rule 24 and Rule 88(iii) of Part I Kerala Service Rules (KSR) and Circular No.36/96/Fin, which require procedural compliance for medical leave.

Issues

  1. Can the Government impose conditions (e.g., excluding the period from pension, increment, etc.) when retrospectively converting unauthorized absence into leave without allowance under Rule 88(iii) of Part I KSR?
  2. Was the Tribunal correct in directing the Government to treat the absence period (02.01.2008–18.02.2013) as leave without allowance on medical grounds despite non-compliance with procedural requirements?
  3. Should the waiting period (19.02.2013–22.07.2014) be treated as duty, given the respondent’s prior unauthorized absence?

Holding

  • The High Court allowed the petition in part, modifying the Tribunal’s order.
  • The Government is entitled to impose conditions under Rule 88(iii) when regularizing unauthorized absence as leave without allowance, and such conditions were upheld as fair and necessary.
  • The Tribunal erred in directing the absence period to be treated as leave without allowance on medical grounds due to the respondent’s failure to comply with mandatory procedures.
  • The waiting period (19.02.2013–21.07.2014) was to be treated favorably to the respondent as duty due to the department’s unusual delay in posting him.

Reasoning

  • Issue 1: Imposition of Conditions
    • Rule 88(iii) of Part I KSR, added in 2002, grants the Government discretion to retrospectively convert unauthorized absence into leave without allowance, even without a prior application. The court distinguished this case from State of Kerala v. Dr. V.M. Kurshid (ILR 2000(1) Ker. 535), where Rule 88(iii) was not in effect, and the absence was shorter (two years). In Kurshid, conditions were deemed illegal due to the lack of specific provisions, but Rule 88(iii) now permits conditions to prevent rewarding inaction.
    • The conditions imposed (excluding pension, increment, etc.) were upheld as fair, reasonable, and necessary to protect public interest, especially given the respondent’s absence exceeded five years, which could justify termination under Rule 24.
  • Issue 2: Leave on Medical Grounds
    • The respondent failed to comply with procedural requirements for leave without allowance on medical grounds, as outlined in Circular No.36/96/Fin, including a second medical examination. Despite medical records indicating a depressive disorder, the absence of proper application and compliance justified the Government’s rejection.
    • The Tribunal’s directive to treat the absence as medical leave was incorrect, as it overlooked these procedural lapses.
  • Issue 3: Waiting Period
    • Although Rule 12(7) of Part I KSR does not automatically treat a waiting period as duty following unauthorized absence, the department’s delay in posting the respondent after he reported on 19.02.2013 was deemed unusual.
    • The court upheld the Tribunal’s finding for this period, treating it favorably to the respondent as duty due to the department’s delay.

Disposition

The original petition was allowed in part. The Tribunal’s order was modified to:

  • Uphold the Government’s conditions in Annexure A15 for the absence period (02.01.2008–18.02.2013).
  • Deny leave without allowance on medical grounds due to procedural non-compliance.
  • Treat the waiting period (19.02.2013–21.07.2014) as duty due to departmental delay.

Key Legal Principles

  • Rule 88(iii) of Part I KSR allows the Government to impose conditions when regularizing unauthorized absence as leave without allowance.
  • Procedural compliance, such as a second medical examination, is mandatory for leave without allowance on medical grounds.
  • Departmental delays in posting an employee may justify treating a waiting period as duty, even after unauthorized absence.

Petitioners by Sr. Government Pleader A.J. Varghese
Respondent by Adv M. Sreekumar

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