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Case No. 616/743 of 1980.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑----

‑‑‑R. 6‑‑Punjab Leave Rules, 1978, R. 3(iv)‑‑Civil servant‑‑Censure and stoppage of two annual increments‑‑Civil servant's behaviour in respect of obtaining leave by production of medical certificate from private practitioner and subsequently submitting to physical examination by Medical Board, held, would not amount to misconduct‑‑Acts of commission or omission attributed to civil servant having not been proved, would not justify punishment awarded to such Civil servant.

(b) Punjab Service Tribunals Act (IX of 1874)‑‑-----

-----‑‑S. 4‑‑Punjab Leave Rules, 1978, R. 3(iv)‑‑Appellate jurisdiction‑ Civil servant's behaviour in obtaining leave not amounting to misconduct‑‑Punishment awarded to such civil servant being not justified set aside by Service Tribunal in exercise of appellate jurisdiction‑‑Prayer that staying away from duty should be counted as proper leave instead of extraordinary leave was left to judgment of Authority to be dealt with as gesture of benevolence towards subordinate.

Masud Ahmad Riaz for Appellant:

Haroonur Rashid Cheema, District Attorney for Respondent.

S. HAFIZUR REHMAN (MEMBER).‑‑This is an appeal by Shaukat Jamil, Executive Engineer in the Buildings Department, against order, dated 20‑7‑1980 made by the Secretary to Government of Punjab, Communication 6 Works Department, awarding him penalty of censure and stoppage of two annual increments (without cumulative effect). A review petition made to the same authority was rejected on 15‑9‑1980.

2. As the facts go, the appellant was serving as XEN at Muzaffargarh when he was transferred as Design Engineer in the HQ Office at Lahore. tie handed over charge on 11‑8‑1979. After availing himself of the usual joining time he was due to report at Lahore on 20‑8‑1979, but he sent a telegram on 16‑8‑1979 requesting for leave up to 31‑8‑1979 stating that M.C. would follow. Subsequently he submitted an application on 27‑8‑1979 for extension of leave till 18‑9‑1979 for private affair. He was advised by the Chief Engineer, Buildings, to apply for leave for the entire period on the prescribed form and to submit M.C. from the Government Hospital. The appellant complied with the first part of the advice but his M.C. was from a private Doctor of Bahawalpur. This covered leave from 11‑8‑1979 to 20‑10‑1979. Thereafter, the appellant continued to apply for leave on medical certificates issued by the private doctor. Presuming that the appellant was feigning illness in order not to join his new posting, Government while in the meantime had been apprised of the position, requested the Director Health Services, Punjab, to arrange a Medical Board to examine the appellant before leave was formally granted. The appellant too was directed by the Chief Engineer on 22‑11‑1979 to appear before the Medical Board. Apparently the examination of the appellant by the Medical Board could not take place before 6‑1‑1980. On that date having been declared fit for duty

he reported to the respondent on 13‑1‑1980. About four months later a show‑cause notice, dated 4‑5‑1980 was issued to the appellant from the respondent, the charge being feigning illness, wilfully evading Government orders in regard to his transfer and submitting M.Cs from a doctor other than the "Authorised Medical Attendant". He submitted a reply‑ to the show cause notice, but it was found unsatisfactory and the impugned order was issued.

3. The parties were heard and the relevant documents gone through. It was contended by counsel appearing on behalf of the appellant that at the time of his first leave application the appellant had contacted flue, which later developed into jaundice. It is true that his M.Cs. were from a private medical practitioner but he was always willing to submit to any examination by any Government doctor. That is why when the direction about Medical Board was issued he approached the Director of Health Services himself. On being advised on 10‑12‑1979 to contact the Medical Superintendent BV Hospital Bahawalpur the appellant saw that officer on 16‑12‑1979 but was informed that the Board would convene in the first week of January, 1980. When the Board met, the appellant found that his MCs had not been placed before it, whereas the very purpose of the Board was to give a second medical opinion and not a mere certificate of the appellant's state of health on that day. According to the appellant, the Board informed him that the absence of the M.Cs. showed that the respondent did not doubt their authority and that perhaps the purpose of a medical examination by the Board was to ensure that the appellant was physically fit to work after his long illness. The Board gave its opinion about the appellant's physical condition but naturally how could it give its opinion about the appellant's illness of 4 months ago. it was contended by the appellant that leave was a civil servant's right and even if he had sought it on purely non‑medical grounds it could not be refused. Moreover, when the appellant was down with jaundice he did not want to trust himself for treatment in a Government Hospital, where conditions were too well known to bear repetition, and sought treatment from his family doctor, The appellant prayed that in addition to setting aside the two impugned orders the respondent be directed to grant him proper leave for the period he could not join duty instead of treating that period as extraordinary leave and thus depriving the appellant of his salary for that period.

4. On behalf of the respondent the learned D.A argued that whereas the M.C. was for full two months leave had been applied for by the appellant in bits and pieces when, if he was really seriously ill, he could easily apply for leave for that full period. The manner in which first leave was requested on medical ground and then sought for 'private affair' and then the reason 'personal ground. can't attend in Design Office' was put forward, showed that the motive was other than illness and rest and that the appellant was trying to put off joining duty as Design Officer in Lahore. In his application the appellant mentioned no ailment, nor was the date of commencement of leave given and ultimately the M.C. too was submitted in October. All these discrepancies pointed to the rightful assumption on the part of the authorities that the appellant was feigning illness in order to avoid taking over charge of his new post. The learned DA read out front the CSR to show that

leave was not a matter of right.

5. After hearing the parties and in particular after going through the relevant files of the C s W Department and the Building Department we are inclined to reach the conclusion that this matter and the consequent appeal are mere the result of lack of communication between the appellant at one end and the two offices (C&W Department and Building Department) on the other. For instance the two officers formed the opinion that the appellant was pretending illness in order to avoid taking over charge of the post of Design Engineer at Headquarters, but the first time that this suspicion about the appellant's behaviour was conveyed to him was through the show cause. notice. The files do not show anywhere that either of the two officers impressed upon the appellant the need to join the post of Design Officer at once and that by his not doing so the work there was being seriously affected. No such advice or direction or warning was conveyed to him. And if that post was not so important then what harm the appellant s remaining on leave for a few months was doing The only communication he received was advice to apply for leave on the proper form. It was presumed that he was malingering and proceedings under the E&D Rules were started. Had the appellant a tendency towards indiscipline he should have tried first of all not to hand over charge when he was transferred from the post of XEN in Muzaffargarh, as so many civil servants inclined towards indiscipline do. However, there is no such imputation. In the para-wise comments on the appeal it is stated that the appellant's wilful absence was reflected from pare 3 of his review petition of August 1980 in which he has tried to justify his own (or any officer's, for that matter) desire to secure a' congenial post or station of posting. On principle we see nothing heretical or radical or mutinous in that observation. If such an attempt is made by a civil servant, but strictly in keeping with the demands of discipline and good behaviour there should be nothing untoward in it. In the instant case it was presumed by the two officers that continuous leave was being sought merely as a cover to the appellant's anxiety to remain away from the post of Design Officer and that such an act was an act of indiscipline and gross misconduct. On his part the appellant too made no effort to convey to the Chief Engineer any details of lots physical conditions or his other problems and remained content with sending telegrams and applications of leave, thus accentuating the state of lack of communication between the parties.

We notice that no serious objection was taken by the two officers to the Medical Certificates submitted by the appellant except to state that they should have been from a Government doctor or hospital. The leave Rules of 5‑11‑1978 provide that:

3(iv) It shall not be necessary to specify the reasons for which leave has 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 direction secure a second medical opinion by requesting the Civil Surgeon/Medical Board to have the applicant medically examined. The Health Department was requested to arrange a Medical Board to examine the appellant but this Board was not furnished the M.Cs submitted by the appellant but merely asked to give its opinion about his state of health, which it did by opinion that 'no abnormality' had been found in him. The appellant has contended that this was not a second opinion as the Board did not have before it the previous M.Cs. We do not agree with his contention, firstly because a second opinion does not mean a review of the existing M.Cs. but a fresh opinion about a person's ailment, and secondly because even if the M.Cs were available to the Board what medical means did it have to give its opinion on an illness which was many months old and of which no trace was now left. In fact the Medical Board was an exercise in futility so far as its view about an old sickness was concerned; it however served the purpose of establishing that on the day, of the examination the appellant was fit to resume duty, which he is said to have done without further delay.

7. We also notice that there is no allegation in the para-wise comments or in the two files that the appellant approached either his Chief Engineer or the Secretary C t W to cancel his posting as Design Officer, which he should normally have done if his intention is feigning sickness was to evade transfer to Headquarters, as alleged in the show cause notice.

8. Whatever the real or supposed purpose for securing leave, the appellant appeared before the Medical Board and, on being declared fit for duty, immediately gave his joining report at Lahore. After going into the matter thoroughly we are not convinced that a case under the EAD Rules was made out against him. Nor can we bring ourselves about to believe that the appellant's conduct or behaviour or any act of commission or omission on his part called for the punishment awarded A to him. Moreover, rule 3(iv) of the Leave Rules of 1978, quoted by us in paragraph 6, does not help to impart to the appellant's behaviour in respect of obtaining leave that aura of indiscipline and gross misconduct which the show cause notice and the subsequent penalty have attributed to him.

9. In view of the above discussions and the conclusion drawn by us, we set aside the two impugned orders. Resultantly the appeal B stands accepted. There shall, however, be no order about costs.

10. As for the appellant's prayer that the period he was away from duty should be counted as proper leave instead of as extraordinary leave, we hope that in the light of this judgment the respondent can see his way to acceding to this request ,of the appellant as a gesture) of benevolence towards a subordinate.

A.A. Appeal accepted.

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