State of Kerala & others v. Sreekantan S.S.

OP(KAT)No.305 of 2024 1 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR** **MONDAY, THE 7[TH] DAY OF APRIL 2025 / 17TH CHAITHRA, 1947** **OP(KAT) NO. 305 OF 2024** **AGAINST THE ORDER DATED 25.10.2019 IN OA NO.502 OF 2018** **OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN O.A.:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT AGRICULTURE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DIRECTOR OF AGRICULTURE, VIKAS BHAVAN.P.O,THIRUVANANTHAPURAM ,KERALA, PIN - 695033** - **3 THE PRINCIPAL AGRICULTURAL OFFICER, DISTRICT AGRICULTURE OFFICE, CIVIL STATION, KUDAPPANAKUNNU,THIRUVANANTHAPURAM ,KERALA, PIN - 695043** ## **BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE** ## **RESPONDENT/APPLICANT IN O.A.:** **SREEKANTAN. S.S, AGED 48 YEARS** **S/O P. SIVARAJAN, WORKING AS AGRICULTURE** OP(KAT)No.305 of 2024 2 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29537 **ASSISTANT,KRISHI BHAVAN, ELAKAMON, VARKALA, THIRUVANANTHAPURAM-695141,RESIDING AT SURESH BHAVAN,MULLANKALLU, PARANDODE. P.O, THIRUVANANTHAPURAM, KERALA, PIN - 695542** **BY ADV M.SREEKUMAR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR HEARING ON 01.04.2025, THE COURT ON 07.04.2025 DELIVERED THE FOLLOWING:** OP(KAT)No.305 of 2024 3 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** ## **CR** ## **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 OP(KAT)No.305 of 2024 4 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** 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 OP(KAT)No.305 of 2024 5 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** 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, OP(KAT)No.305 of 2024 6 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** 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 OP(KAT)No.305 of 2024 7 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** 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 otherwise, we deem it appropriate to interfere with the said order, despite the fact that the original petition is preferred after about five years from the date of the impugned order. 8. However, the Government, by applying its discretion in a liberal manner, has regularised the service of the respondent by converting it as leave without allowance not on medical grounds, on the condition that the said period would not be counted OP(KAT)No.305 of 2024 8 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** for benefits such as pension, increment, Higher Grade or Earned Leave. The learned counsel appearing for the respondent contended that imposition of the said condition is illegal in view of the law laid down in **State of Kerala v. Dr.V.M.Kurshid** (ILR 2000(1) Ker. 535). In the above case, the factual and legal premise was entirely different from the present case. There, Rule 24 of Part I KSR had no application, as the unauthorised absence of the employee concerned was only for a period of two years and odd days. In the case at hand, the respondent had been continuously absent for more than five years. If an employee has been continuously absent for more than five years, Rule 24 of the KSR empowers the Government to terminate such an absentee from service, unless there are exceptional circumstances. Instead of resorting to such an extreme measure, the Government regularised the unauthorised absence of the respondent for more than five years by exercising the discretion vested in OP(KAT)No.305 of 2024 9 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** it, but by imposing certain conditions. This was not the situation in **State of Kerala v. Dr.V.M. Kurshid** (supra). 9. That apart, when this court decided **State of** **Kerala v. Dr.V.M. Kurshid** (supra), sub-clause (iii) was not inserted in Rule 88 of Part I KSR. (It was added to Rule 88 as per G.O. (P)99/2002/Fin. dated 31.01.2002). Sub-clause (iii) reads as follows: “(iii) When the period of absence of any officer is without proper application for leave, Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence.” Obviously, it is the discretion of the Government to retrospectively convert a period of absence in the above manner. 10. Let us now consider the circumstances in which this court held in **State of Kerala v. Dr.V.M. Kurshid** OP(KAT)No.305 of 2024 10 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** (supra) that imposition of conditions is illegal while regularising unauthorised absence into leave without allowance. It is held: “In order to appreciate the rival submissions, R.88 of Part I of the Rules needs to be noted. The same reads as follows: “Leave without allowance. (i) Leave without allowances may be granted to any officer in special, circumstances: (a) when no other leave is by rule admissible, or (b) when other leave is admissible but the officer concerned applies in writing for the grant of leave without allowances. (ii) Except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion." **It is fairly accepted that there is nothing in R.88** **which has application to the case at hand** . It is however, the stand that on equitable ground and not to put the employee at an advantageous position after unauthorised absence, such a condition was stipulated. Whatever be the intention, in the absence of any specific provision, the condition could not have been imposed. _In fact if the authorities desired, they could have imposed this as a condition while imposing the punishment of barring of one increment_ . That admittedly has not been done. The provisions of Appendix XII A have clearly no application to the facts of this case. That being the position, we find nothing infirm to interfere with OP(KAT)No.305 of 2024 11 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** the order of the learned Single Judge.” (emphasis supplied) From the above, it is obvious that in **State of Kerala v. Dr.V.M. Kurshid** (supra), the court had no occasion to consider the legality of imposing conditions under Rule 88(iii) of Part I KSR when the Government retrospectively converts the period of absence into leave without allowance. Sub-clause (iii) was not in existence at that time. Where the Government has the discretion either to penalize an employee or, alternatively, to show leniency, the Government is certainly entitled to impose appropriate conditions while exercising such discretion in favour of the employee, but those conditions must be fair, reasonable, and necessary to protect the public interest. As per Appendix XII A, XII B and XII C of the KSR, which are supplementary to Rule 88, the Government can impose conditions of the above nature when the employees are permitted to avail long-term OP(KAT)No.305 of 2024 12 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** leaves without allowance. Thus, when the Government retrospectively converts the period of absence into leave without allowance by exercising its discretionary powers under clause (iii) of Rule 88 in favour of an employee who did not even apply for such leave previously, it is permissible for the Government to impose such conditions. Otherwise, it would amount to a premium on the inaction of the erring employee. Hence, we uphold the conditions imposed by the Government while passing Annexure A15 order. 11. However, there is no such justification for rejecting the request made by the respondent to give him benefits during the period from 19.02.2013 to 21.07.2014. Admittedly, he was not given a posting during the said period, even when he had reported before the petitioner No. 2 on 19.02.2013. It is true that such a waiting period need not always be considered a “duty” within the meaning of Rule 12(7) of Part I KSR when the employee was unauthorisedly OP(KAT)No.305 of 2024 13 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** absent prior to his reporting. However, in this case, an unusual delay occurred on the part of the department in posting the respondent after he reported before petitioner No.2. In the above peculiar situation, it is only just and proper to treat the said period in a manner favourable to the respondent. To the above extent, we agree with the findings of the Tribunal. In the result, the original petition is allowed in part. The order passed by the Tribunal is modified as stated above. Sd/- ## **A.MUHAMED MUSTAQUE** **JUDGE** Sd/- ## **P.KRISHNA KUMAR** **JUDGE** sv OP(KAT)No.305 of 2024 14 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** ## **APPENDIX OF OP(KAT) 305/2024** ## **PETITIONER'S ANNEXURES** |**AnnexureA1**|**PHOTO COPY OF THE LEAVE APPLICATION**| |---|---| ||**SUBMITTED IN FORM NUMBER 13 ON 19.2.2013**| |**AnnexureA2**|**PHOTO COPY OF THE FIRST MEDICAL**| ||**CERTIFICATE DATED 2.1.2008**| |**AnnexureA3**|**A PHOTO COPY OF THE LAST MEDICAL**| ||**CERTIFICATE DATED 02.01.2013.**| |**AnnexureA4**|**A PHOTO COPY OF THE FITNESS CERTIFICATE**| ||**DATED 18.2.2013**| |**AnnexureA5**|**A PHOTO COPY OF THE LETTER NO.E(1)1536/13**| ||**DATED 23.9.2013 ISSUED BY THE THIRD**| ||**PETITIONER TO THE SECOND PETITIONER**| |**AnnexureA6**|**A PHOTO COPY OF THE LETTER WITH NUMBER**| ||**E(1) 1536/13 DATED 10.12.13 ISSUED BY THE**| ||**THIRD PETITIONER TO THE SECOND PETITIONER**| |**AnnexureA7**|**A PHOTO COPY OF ORDER NO.S.E(1)8152/13**| ||**DATED 19.5.2014 ISSUED BY THE SECOND**| ||**PETITIONER**| |**AnnexureA8**|**A PHOTO COPY OF THE LETTER**| ||**NO.S.E(1)8152/13 DATED 26.12.2014**| |**AnnexureA9**|**A PHOTO COPY OF THE REPLY GIVEN BY THE**| ||**RESPONDENT DATED 08.01.2015.**| |**AnnexureA10**|**A PHOTO COPY OF THE LETTER S.E (1) 8152/13**| ||**DATED 21.4.2015 ISSUED BY THE 2ND**| ||**PETITIONER TO THE 1ST PETITIONER**| |**AnnexureA11**|**A PHOTO COPY OF THE LETTER WITH NUMBER**| ||**E(1) 1536/13 DATED 6.8.2015 ISSUED BY THE**| OP(KAT)No.305 of 2024 15 2025:KER:29537 **==> picture [58 x 57] intentionally omitted <==** ## **THIRD PETITIONER** **AnnexureA12 A PHOTO COPY OF THE LETTER E(1) 1536/13 DATED 11.09.2015 ISSUED BY THE THIRD PETITIONER TO THE SECOND PETITIONER. AnnexureA13 A PHOTO COPY OF THE ORDER NUMBER E.A 2/99/2015/AGRI ISSUED BY THE FIRST PETITIONER TO THE SECOND PETITIONER. AnnexureA14 A PHOTO COPY OF THE ORDER OF THIS HONOURABLE TRIBUNAL IN O.A.139/2017 DATED 24.1.2017 AnnexureA15 A PHOTO COPY OF THE ORDER G.O(RT) NO.768/2017/AGRI DATED 01.08.2017. ExhibitP1 PHOTO COPY OF THE O.A NO.502/2018 ExhibitP2 PHOTO COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER ON 16.08.2019 ExhibitP3 PHOTO COPY OF THE ORDER OF THE TRIBUNAL OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 25.10.2019 IN THE AFORESAID ORIGINAL APPLICATION OA 502/2018**