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Appeal No. 15 (K) of 1981, decided on 2nd June, 1983.

‑‑S. 13 (ii) read with Provisional Constitution Order (1 of 1981), Art. 13 (1)‑Retirement on completion of 25 years' service qualifying for pension‑Interference by Service Tribunal‑Scope Civil servant ailing for some time himself applying for medical examination to determine his fitness for continuance in service or otherwise‑On recommendation of Medical Board granted leave but while on such leave order retiring him from service purportedly under S. 13 (ii) of Civil Servants Act, 1973 issued‑Department in circum stances held, should have waited for outcome of medical proceedings already set in motion which were to culminate either in invalidment or recovery and resumption of duty of official and Department could have very well retired him had he been declared medically fit‑Legi timate concession of invalid pension thus, held, denied by arbitrary and uncalled ,for action of Department‑Such action of Department, in circumstances, termed as done in bad faith whether or not so intended‑Official subsequently declared by Medical Board permanently unfit and invalid‑Retirement order under S. 13 (ii), in circumstances, set aside and appellant official directed to be considered for grant of invalidment pension‑Service Tribunals Act (LXX of 1973), S. 4.

Arif Hussain for Appellant.

Niaz Ahmad Khan, State Counsel for Respondents.

Date of hearing : 1st June, 1983.

The appellant, while serving as Accounts Supervisor (Grade 14) in the office of the Director‑General Supplies, Ministry of Industries, Karachi. was granted leave on full pay for 120 days from 1‑8‑1979 to 28‑11‑1979 on domestic grounds and leave on full pay for 61 days from 29‑11‑1979 to 28‑1‑1980 on medical certificate vide Director‑General Supplies office letter No. E‑II/30 (1317);79‑Part, dated 27‑1‑1980.

2. While on medical leave, the appellant vide his application dated 30‑12‑1979 addressed to the Assistant Director Admn. (E‑II Sec), stated that since he had developed tremors in his right hand and could not perform his official duties, he may be sent for medical examination immediately. As a result, the Department vide their letter dated 11‑2‑1980, requested the Civil Surgeon Central Government to do the needful. This letter is reproduced in full as under:

"Sub:

Sir,

The undersigned is directed to state that Mr. Mustafa Ali Siddiqi, Accounts Supervisor, of this Department has been on long leave with effect from 1‑8‑1979 (including leave on medical ground with effect from 29‑11‑1979) upto 28‑1‑1980.

2. From the medical certificate (Photostat copy of which enclosed) it may be seen that the causes of diseases diagonised by the physician are tremor in right hand fingers. Hypotension and general Asthema. In this connection Mr. Mustafa Ali Siddiqi has applied on 30‑12‑1979 copy thereof enclosed with the request to send him for medical examination as his right hand not been working properly and he was unable to attend official duties.

(3) Mr. Mustafa Ali Siddiqi, has not yet joined his duties and it is apprehended that he may not be able to attend his official duties in near future. Taking into view of the circumstances, it will be much appreciated if Mr. Siddiqi is medically examined so as to determine whether there is likelihood of improvement of his condition by continued treatment or in the opinion of medical authority he has been suffering from such ailment which renders him unfit for the proper and efficient discharge of his duties.

4. In case, Mr. Mustafa Ali Siddiqi is considered to be permanently incapacitated for service of any kind it may please be certified by a Medical Board in accordance with relevant rules.

5. Mr. Mustafa Ali Siddiqi is being directed to appear for medical examination before you immediately.

(Sd.)

(ABDUL WAHID)

Assistant Director (Administration)

for Director‑General; Supplies."

3. A medical board was held. Their proceedings letter dated 1‑4‑1980 is reproduced : ,

"We do hereby certify that according to the best of our professional judgment, after careful personal examination of the case we consider the health of Mr. Mustafa Ali Siddiqi (Accounts Supervisor whose signature is given below to be such as to render leave of absence for a period of three (3) months with effect from 1‑4‑1980 absolutely necessary for his recovery as he is suffering from Parkinsonism.

(Sd.)

President

(Sd.)

Member

4. While the appellant was on three months medical leave from 1st April, 1980, in accordance with the above‑quoted proceeding of the medical board, the Department of Supplies issued their letter No. E‑II/ Misc (Review), dated 6‑4‑1980 retiring the appellant and granting him 365 days leave from 6‑4‑1980, subject, of course, to title. Para. 1 of the said letter is reproduced below :

"On the recommendations of the Ad hoc Review Committee, set up in the Ministry of Industries in pursuance of the Establishment Division's letter No. 1/4/79‑ CV, dated 15‑11‑1979 and dated 6‑1‑1980 to review cases of Government servants of Grade‑16 'and below for further usefulness and retention in service beyond 25 years, the competent authority has decided to retire Mr. Mustafa Ali Siddiqi, Accounts Supervisor of the Department of Supplies from Government service."

5. The appellant preferred an appeal to the Director‑General Supplies fl, on 3‑5‑1980, pointing out that since he was on medical leave till 30‑6‑1980, it was not just on the part of the department to so retire him till he had resumed duty or, alternatively, till he had been invalided out of service. On 10‑5‑1980, the appellant preferred an appeal to the Secretary, Industries on the same grounds. This appeal was sent to the Department for disposal vide Industries Division letter dated 17‑5‑1980.

6. 'After he had availed of his medical leave, which had been allowed to him till 30‑6‑1980, the appellant appeared before a Medical Board on 8‑'7‑1980 on the basis of Department's letter dated 11‑2‑1980, reproduced at para. 2 above. The Medical board Certificate dated 8‑7‑1980, which has been placed on record, invalided the appellant on account of Parkin sonism and Depression: Para. (a) thereof with regard to attributability reads:

"(a) Completely and permanently incapacitated for further service of any kind. "

7. Appellant's representation, dated 10‑7‑1980, for the grant of invalidment pension was turned down, vide Department's letter dated 25‑9‑1980. Yet another application, dated 2‑2‑1981, by the appellant was rejected. vide Department of Supplies letter dated 11‑2‑1981 which is reproduced:

Sub:

With reference to his application dated 2‑2‑1981, regarding grant of invalid Pension as against his compulsory retirement on the recommendation of Review Committee, Mr. Mustafa Ali Siddiqi, a retired Accounts Supervisor, is informed that his request has been duly examined in consultation with the Government and the decision as already communicated to him vide this Department Memo. No. E‑II/Misc. (Review), dated 6‑4‑1980, is allowed to stand.

(Sd.)

Deputy Director (Administration)

for Director‑General, Supplies.

Mr. Mustafa Ali Siddiqi,

Quarter No. F‑38/12,

Federal Capital Area,

Karachi 19."

8. Thereafter, the appellant filed his present appeal before the Federal Service Tribunal on 10‑3‑1981 under section 4 of the Service Tribunal Act, 1973.

9. We heard the learned counsel from both sides. The learned counsel for the appellant, at the very outset, stated before us that he was not challenging the validity of the appellant's retirement under section 13 (ii) of the Civil Servants Act since the matter could not be interfered with by the Tribunal in view of the bar paced by Article 13 (1) of the P.C . O., 1981.

10. It is obvious that well before the appellant was actually retired under section 13 (H) with effect from 6‑4‑1980, he had already moved the authorities for his retirement on invalid pension vide his application dated 30‑12‑1979. As a result of the said application, the department, vide their letter dated 11‑2‑1980, had referred his case to the medical authorities. The Medical Board diagnosed the appellant's ailment as Parkinsonisrn and allowed him three months' medical leave with effect from 1‑4‑1980. To us, therefore, it does not appear appropriate or fair on the part of the depart ment to have retired the appellant under section 13(ii) w. e. f. 6‑4‑1980 when; he had just proceed on medical leave. The least we would have expected 4he department to do was to defer their retirement action till after the appellant's leave and then to await the outcome of the medical proceed ings, which they had themselves set in motion, and which were to culmi nate either in the invalidment of the appellant or in his recovery and resumption of normal work. In the latter case, the department could have, very well, retired the appellant under section 13 (ii). But in the case of his invalidment, of which there were greater chances, the appellant A would have had the benefit of invalidment pension. This legitimate concession has been denied him by the arbitrary and uncalled for action of the department in retiring the appellant under section 13 (ii) even before the outcome of his Medical proceedings. We could term this action of the department as an act done in bad faith whether or not it was so intended.

11. The Medical Board, not unexecptedly, declared the appellant "completely and permanently incapacitated for further service of any kind" vide their certificate dated 8‑7‑1980. On our part arid considering all the facts and circumstances of the case, we are fully satisfied that the appellant, who had been ailing for quite some time and had himself applied for medical examination to determine his fitness for continuance in service or otherwise (and whose case had been referred to the medical authority by the department) and who had been boarded out as an invalid, must be considered for the grant of an invalidment pension.

12. In view of the foregoing analysis we accept this appeal and order that the appellant's case for invalidment pension with effect from the date of his invalidment viz. 8‑7‑1980 shall be finalised at an early date.

13. No order as to costs.

14. Parties be informed.

Appeal accepted.

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