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Case No. 460 of 1981, decided on 14th June, 1982.

‑‑ S. 5 (2) read with Civil Procedure Code (V of 1908), S. 114- Appeal heard by Full Bench‑Judgment delivered by two members without participation of third member‑Application for quashment of such judgment and proceeding de novo as if such judgment not in existence, accepted, in circumstances.

‑‑ Read with Punjab Police (Efficiency and Discipline) Rules, 1975, r. 6 (3)‑Police Constable proceeding on 3 days' casual leave‑ ' Falling sick and submitting applications for leave supported by medical certificate from Government Medical Officer, Rural Health Centre‑Charged of wilful absence without taking into consideration leave applications,‑Contention that constable having left without recording departure entry in Daily Diary could not validly be treated on leave‑Rejected‑Recording of such entry while proceeding on sanctioned leave, held, not essential under Rules‑Show‑cause notice served by pasting at place other than residential address recorded in service record‑Past service record unblemished and meritorious Order of 'dismissal from service for alleged wilful absence, in circumstances, held, not justified hence set aside with full back benefits by Service Tribunal‑Punjab Service Tribunals Act (IX of 1974), S. 4.

1981 P L C (C. S.) 281 and 1980 P L C (C. S.) 228 rel.

Riaz Anwar for Appellant.

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

.‑Muhammad Aslant ex‑Cons table has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, which was earlier heard by all the three Members of Service Tribunal; Lahore, including the Chairman. However, the judgment was passed on .19‑8‑1981, by which the appeal of the appellant was dismissed but the same was delivered, by two members of the Tribunal without participation of the third member i.e. the Chairman, who had heard the case alongwith them. The appellant moved a petition under section 5 (2) read with section 114 of C. P. C. with the prayer that as the judgment was not delivered by all the Members, therefore, the same was of no legal consequence. Reliance was placed in this matter on the case of Mr. Nooruz Zaman v. Government of the Punjab, in which the Supreme Court of Pakistan, had set aside the judgment so passed against Mr. Nooruz Zaman on the ground that the same was not signed by ail the Members who had heard the case. In view of the ruling of the Supreme Court of Pakistan, this Tribunal was pleased to quash the judgment and to proceed with this case de novo on merits as if the first judgment is not in existence.

2. The appellant has impleaded S. P., Mianwali and D. I.‑G., Sargodha Range as respondents. The appellant has prayed that the impugned order dated 30‑9‑1979, by which he was removed from service on wilful absence, be set aside and he be re‑instated in service with full benefits of pay and allowances.

3. Brief facts of the case are that the appellant who is Matriculate, joined the Police service as Constable and earned 45 commendable certificates of Class B and one from Mr. I.‑G. P. with cash award of Rs. 500 for the gallantry which he exhibited during the performance of his duty. The appellant was recommended for List A by D. S. P. who found his service record as well as performance exceptionally of high order.

4. On 19‑6‑1979, the appellant applied for 3 days casual leave which was granted by Line Officer and proceeded to avail the same. As ill‑luck to him, the appellant fell ill and sent an application duly certified by the Medical Officer, Rural Health Centre Jadanwala, District Mianwali, where in he has advised one month's rest. He also remained for some time as indoor patient. As the ailment persised he forwarded another application alongwith Medical Certificate from 20‑7‑1979 to 19‑8‑1979, duly certified by the same Medical Officer. He did not get any response to his first two medical leaves and on the understanding that the same had been approved he made another request for two months leave from 20‑8‑1979 to 30‑10‑1979, duly attested by a Registered Medical Doctor. However, during this period a show‑cause notice was served upon him and the same was pasted at his house at Ballukhel and not Jadanwala, which was original residence of the appellant on 12‑8‑1979. The appellant was proceeded against ex parte and was dismissed from service for wilful absence from duty with effect from 30‑9‑1979, by the S. P., Mianwali. He preferred appeal before the D. I.‑G. but the same did not find favour and was rejec ted. Hence this appeal.

5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the impugned order carefully with their assistance. The main basis of the impugned order in this case is that on 20‑6‑1979 at 7‑30 a. m. when First Armed Reserve Guard was required to fall in the Police Lines, the appellant was found absent without any leave or valid permission. The impugned order does not mention anything about the medical certificates which are alleged by the appellant, to have been sent by him to the competent authority. The competent authority proceeded on the assumption that the appellant bad absented himself for the period and despite show‑cause notice pasted at his doors, therefore, it was not necessitated to proceed against him under rule 6 (4) of the E & D Rules and his dismissal was ordered.

6. Learned counsel for the appellant has submitted that the impugned orders in this case are passed on misreading of evidence as well as hasty in nature wherein the appellant has been denied the right of personal hearing to which he was entitled under the fundamental principle of justice and audi alteram partem. It has been further argued that the D. W. Anwar Hussain has clearly stated that appellant did apply for leave and was granted he failed to get his departure noted into the daily diary. According to the learned counsel the appellant was not under obligation to get his departure recorded and was fully fortified under the Police Rules to avail the casual leave once the same was granted by the Line Officer. It has been argued that in the parawise comments it has been admitted by the respondent that the appellant did send Medical Certificates, therefore, the absence of reference to this important document has caused grave injustice to the case of the appellant. It has been vehemently urged that once the Medical leave is due the same cannot be refused if the illness is duly certified by Government Medical Officer. According to .the appellant the only course open to them was that they should call upon the appellant if they did not believe in his illness to get him medically examined by the Medical Superintendent. He has relied for this contention on 1981 P L C (C. S.) 281 and 1980 P L C (C. S.) 228, as well as Chapter 8 of Leave Procedure Police Rules. He has placed reliance on Chapter 22, rules 48, Police Rules, 1934 with regard to getting his departure recorded in the daily diary before proceeding on leave.

7. On the other hand learned District Attorney has submitted that the competent authority did not mention about the M. C. because M. C. was available at the time of when the impugned order was passed against the appellant and the same had been received late. He has also insisted that it was a must for the appellant to avail the leave only when he had got the entry made into the daily diary of Police Lines. With regard to the service record and the performance of the appellant, learned District Attorney had nothing to comment as the same were borne out from the service record of the appellants' case.

8. We have given our anxious thought to the arguments so raised before us and find that there is admission on the part of the respondents in his parawise comments that the M. Cs. were received by him from the appellant. While perusing the record we find that the latest M. C. along wtth mentioning of earlier two M. Cs. was received in the office of S. P. before the impugned order was passed. It is also on the record that the appellant originally belongs to Jadanwala and his official address was the same, therefore, the claim of pasting of the show‑cause notice at his house would not justify particularly when we find from the record that there are two versions about the same. One version is that the show‑cause notice was pasted at the doors of the appellant and the second version is that the same was delivered to his brother. As both these versions are not compatible with each other physically, therefore, the claim of the respondent in this matter becomes doubtful. If we accept that the show‑cause notice was pasted on the doors how can we accept that the same was delivered to the brother of the appellant. With regard to the claim of the respondent that it was must for the appellant to get his departure on leave entered before availing the same, we have carefully studied the Leave Procedure Rules of 1934 contained in Chapter 8 of the said Rules. These Rules do not mention anywhere that the appellant was und6r any obligation to get his leave entered before availing the same. 1n this matter we are in accord with the learned counsel for the appellant that there was no mandatory provision which could make liable to the appellant to perform the said act. Head Constable Anwar Hussain had clearly stated that the appellant got his leave sanctioned for 3 days from Line Officer.

9. As to the second aspect of the case whether the appellant was justified to submit his leave application or not, or whether the respondent was under obligation to sanction the same, we have to depend upon the law so settled in this behalf. The law cited on the subject that the learned counsel for the appellant clearly laid down that once a leave application submitted is duly certified by the Authorised Medical Officer, the competent authority is bound to accept the same. In case the said authority feels any apprehension that the request is not genuine the only course left upon him, is to call upon such civil servant to get himself further medically examined by the Medical Superintendent at the Headquarters. In the present case the first two certificates available on the record, are duly certified by the Medical Officer but the same were never considered. These certificates were submitted under the Postal Cover, a method which is fully permissible under the rules. The last certificate has been sent through Registered Post and no denial of the same can be accepted. Under these circumstances, before proceeding under rule 6 (3) of the E & D Rules, the S. P. was under obligation to call upon the appellant to get himself medically examin ed and there was no urgence or emergence to proceed against him in the manner in which he has been proceeded against. A civil servant like appellant, who has excellent record of service, as well as recipient of cash prizes for his gallantry performance and at one time was considered for List A on account of his meritorious service and excellent performance, should not have been dealt with in the manner in which he has been dealt with.

10. In the light of the above we are of the considered opinion that the impugned order against the appellant cannot be maintained. We, therefore, proceed to set aside the same and direct that the appellant be re‑instated in service from the date he was removed with all back benefits.

However there will be no order as to costs."

A. E. Appeal accepted.

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