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Case No. 171/1700 of 1982, decided on 21st March, 1983.

----R. 3 (iv)‑Leave applied for on medical ‑ certificate‑Cannot be refused ‑ Sanctioning authority ;bound either to sanction leave or refer for second medical opinion to Civil Surgeon or Medical Board ‑ Leave applied for on medical certificate ‑ Not sanctioned on grounds that official was seen roaming in office in quite healthy condition and also secret information contradicted his sickness ‑ Dismissed for alleged misconduct of wilful absence after show‑cause notice ‑ Competent authority, in circumstances, held, without holding proper inquiry by examining hospital record, Medical Officer by whom certificate issued and person giving adverse information could not hold official not actually sick and guilty of wilful absence‑Impugned dismissal order set aside by Service Tribunal and intervening period treated as leave extraordinary without pay‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, r. 6 (3) and Punjab Service Tribunals Act (IX of 1974), S. 4.

Masud Ahmed Riaz for Appellant.

Haroon‑ur‑Rashid Cheema, District Attorney for Respondents.

.‑Muhammad Shafique, ex- Additional Patwari, office of the Assistant Commissioner (Saddar) Collector, Lahore has filed this appeal under section 4 of the Punjab. Service Tribunal Act, 1974 in which he has impleaded the Assistant Com missioner (Saddar)/Collector and the Commissioner, Lahore Division, Lahore as respondents. By virtue of this appeal he has prayed that the impugned orders dated 13‑9‑1981 anti .2Q‑3‑1982 passed by the respondents Nos. 1 and 2 respectively be set aside and he be re‑instated in service with all back benefits.

2. Brief facts of the case are that while the appellant was working as Additional Patwari in the office of the Assistant Commissioner (Saddar), Lahore, he was served with a show‑cause notice under rule 6 (3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 to show cause as to why one of the major penalty including dismissal from service be not imposed upon him on the allegations of misconduct. The allegations con tained in the show‑cause notice are re‑produced hereunder for the sake of convenience and ready reference : ‑

(1) "That on 26‑5‑1981 you sent application under a pre‑planned scheme, for leave w.e.f. 26‑5‑1981 to 31‑5‑1981 on medical grounds where as on 25‑5‑1981 you were present in the office and you were quite sound and healthy. This leave application was not sanctioned and was kept pending.

(2) That you sent another application dated 31‑5‑1981 alongwith medical certificate for leave w.e.f. 31‑5‑1981 to 30‑6‑1981. The enquiry made through reliable sources indicated that actually you were not sick. Your absence from duty was wilful only to get yourself transferred from the present job in the office and posted as Patwari in some circle. Your application for one month's leave was rejected on 1‑6‑1981 and you were directed to attend the office on 2‑6‑1981, through Naib‑Qasid (Din Muhammad) of this office. The Naib‑Qasid reported that he visited your original residence as well as the residence of your in‑laws but you here not available at both the places. Your whereabouts could not be found from your relatives at both places. Another written letter No. ACS/810, dated 2‑6‑1981 directing you to attend the office was also received back. Your brother made endorsement on this letter that you are sick, therefore, you cannot attend the office. Your brother too did not give your whereabouts. You have already been placed under suspension vide endst. No. ACS/946, dated 9‑6‑1981. Your absence from duty is wilful. Leave application is merely excuse because you are neither available at your house nor admitted in any hospital."

The appellant sent his reply dated 22‑7‑1981, explaining that he was sincerely suffering from 'Enteritis and that is why he would not be able to attend to personal hearing. He also sent a medical certificate dated 1‑6‑1981 issued by Dr. Muhammad Afzal, Senior Medical Officer (Police) Headquarters Police Hospital, Lahore recommending him rest for two months. The appellant did not appear for personal hearing ; so the respondent No. 1 examined the entire case and held the appellant guilty of wilful absence from duty. Therefore, he dismissed him from service vide his order dated 26‑8‑1981; issued vide endst. No. ACS/1389, dated 13‑9‑1981. The appellant preferred an a peal before the Commissioner, Lahore Division, Lahore which too was rejected vide order dated 20‑3‑1982. Hence this appeal.

3. We have heard the parties. It has been argued on behalf of the appellant that on 25‑5‑1981 when he returned home after performing his official duty in the office he felt serious pain in his abdomen and was removed to the clinic of Dr. A. Rashid Khan, Registered Medical Practitioner Lahore for treatment. The said Private Medical Practitioner informed him that he was suffering from Acute Enteritis and recommended him a complete rest for one week from 25‑5‑1981 to 31‑5‑1981. As the appellant did not recover from the ailment he appeared before Dr. Muhammad Afzal, Senior Medical Officer (Police), Headquarters Police Hospital, Lahore for treatment. The said Doctor certified that he was suffering from Enteritis and advised him a complete bed rest for one month w.e.f. 31‑5‑1981. It has further been submitted that the appellant continued getting the treatment but could not recover, so the said Dr. Muhammad Afzal again issued him a certificate dated 30‑6‑1981 recommending him further treatment and complete bed rust for one month. The appellant has concluded his arguments by submitting that the entire period of his alleged absence from 26‑5‑1981 to 30‑6‑1981 and even from 30‑6‑1981 to 30‑7‑1981 is covered by medical certificates issued by a Private Medical Practitioner as well as by a Senior Medical Officer of the Police Hospital Lahore, as such the respondent No. 1 has violated the rule 3 (iv) of the Revised Leave Rules for Civil Servants issued by the Finance Depart ment vide its notification No. S. R. 111‑1/85/78, dated 5‑I1‑1978 by refusing to grant him leave on medical ground. It has further been argued that according to the said rules the Assistant Commissioner had no discretion to refuse the leave ; at the most he could secure a second medical opinion by requesting the Civil Surgeon/Medical Board to have the appellant medically examined. Thus, the impugned order is claimed to be illegal. On the other hand the learned District Attorney has argued that the appellant was posted as Additional Patwari in the Office of the Assistant Commis sioner (Saddar) and he wanted his transfer to some circle and in order to avoid his posting on his new place against his own choice he had man oeuvred fake certificate from the Medical Officer of the Police Hospital which Hospital is not meant for public or civil servants as it is only reserved for Police employees. It has further been argued that the appellant has not filed the prescription alongwith the appeal to prove that he had been continuously getting the treatment of the said hospital. Regarding leave rules it has been argued by the learned District Attorney that the appellant was called upon by service of notice through post as well as through a special messenger to appear before the Assistant Commissioner and if he was actually sick, he could have been allowed leave . As he was not suffering from any ailment that is why he avoided to appear before the respondent No.1 so much so that be did not avail the personal hearing although he was specifically served for this purpose. Thus it has been argued that there was no alternative left with respondent No.1 but to treat the period of the absence as wilful absent from duty and to dismiss him accordingly.

4. We have given our anxious thoughts to the arguments of the parties and have also perused the record. The precise allegation against the appel lant is that he remained absent from office from 25‑5‑1981 to 30‑6‑1981 and to justify his absence from duty, he submitted the medical certificates issued by Dr. Muhammad Afzal, Senior Medical Officer of Police Hospital, District Police Lines, Lahore, which were not considered to be authentic certificates and thus was held to be guilty of the wilful absence. Now the issue before us is whether the leave applied for on the medical ground could be rejected by the respondent No. 1 of his own accord and the appellant could be dismissed from service summarily on that account.

It is conceded in the impugned order as well as in the parawise comments that the appellant was not actually ill and the leave was applied on lame excuse of sickness. To adjudicate the issue, it would be in the interest of justice to reproduce rule 3 (iv) of the Revised Leave Rules of 1978 referred to above for the sake of ready reference :‑

3 (iv).‑‑It shall not be necessary to specify the reasons for which leave hiss been applied so long as the leave is due and admissible to a civil servant. Leave applied for on medical certificate shall not be refused. The authority competent to sanction leave may however, at its discretion secure a second medical opinion by requesting the Civil Surgeon/Medical Board to have the appellant medically examined."

5. From the perusal of rules quoted above it is crystal clear that the Assistant Commissioner could only secure the second medical opinion by requesting the Medical Superintendent of the Medical Board to have the appellant medically examined to verify his sickness and there was no other option left with him. Since the respondent No. 1 has refused to sanction the leave in favour of the appellant without referring him to the Medical Superintendent for medical examination, so it cannot be safely concluded that the appellant was not actually sick and he was only pretending sickness. The only reason given by respondent No. 1 for refusal on his leave is that the appellant was found roaming about in the premises of the office in quite healthy and sound condition and that although he had been submitting application for leave on medical grounds, yet he was neither found available at his residence nor was admitted in any hospital and his whereabout was not known to his mother or brothers. The learned Assistant Commissioner has also observed that according to the information from the confidential sources, the appellant was not sick. We are afraid that these are not justified legal grounds to summarily reject the leave application of the appellant. If the respondent No. 1 was doubtful about the sickness and was of the view that the appellant was a malingerer, he could have referred him to the Medical Superintendent of the Service Hospital, Lahore to verify his sickness. This mandatory pro vision as laid down in the leave rules has not been followed. Alternatively the Assistant Commissioner could have got the controversy resolved by appointment of an Enquiry Officer, who could have examined the hospital record, the Medical Officer and the persons giving him information adverse to the appellant. Since this procedure has also not been followed, so it cannot be held that the appellant was guilty of wilful absence. So we hold that the impugned orders are illegal.

6. In view of the above analysis, we set aside the impugned orders and accept the appeal. The period from 26‑5‑1981 to 30‑6‑1981 shall be treated as leave of the kind due. Since the conduct of the appellant is also not free from blemish, so the period out of service shall be treated as extraordinary leave without pay.

The judgment be communicated to the parties.

Appeal accepted.

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