M. SALEEM CHAUDHRY (CHAIRMAN).-----This is an appeal by Nazir Ahmad Shah, son of Syed Jiwan Shah, who was working as Colony Clerk, Lodhran, and was dismissed by the Deputy Commissioner, Multan, on 1 of March, 1976, and on an appeal the Commissioner, Multan Division, reduced his punishment to removal from service by an order dated 14th April, 1976. The appellant impugns both these order.
2. Mr. Nazir Ahmad Shah appellant was transferred by the. Assistant Commissioner, Lodhran, by an order, dated 5th of March, 1975,' from the post of Colony Clerk, Lodhran, to be post of Reader to Naib-Tehsildar, Lodhran. The appellant applied for medical leave from 11th March, 1975 to 16th March, 1975, on the ground that he was suffering from dysentery. In support of his application he submitted medical certificate issued by Medical Officer, Civil Hospital, Lodhran. However, the Assistant Commissioner, proceeding on the assumption that the appellant was evading his transfer did not allow the leave and directed the appellant to attend Office and hand over charge as Colony Clerk on 11 March, 1975. The peon, who took this order to the appellant reported that he was not available at his residence and had gone to Lahore, and therefore this order was not conveyed to him. The appellant again applied for leave from 16th March, 1975, to 22nd March, 1975, and then from 23rd March, 1975 to 6th April, 1975. This request was supported by a medical certificate by a private medical practi--tioner of Multan. The District authorities again presumed that the appellant had wilfully evaded his obligation to join his new assignment of Reader to Naib- Tehsildar Lodhran and in consequence thereof treated the period from 11 March, 1975 to 6th April, 1975, as wilful absence of duty, which was tantamount to misconduct under the Efficiency and Discipline Rules.st th th
3. Accordingly the appellant was served with charge sheet on the basis of the allegations that he wilfully evaded official orders and was guilty of wilful absence of duty which amounted to misconduct. In his reply the appellant denied the charges and stated that he had actually been sick and had not wilfully evaded his official obligations. A departmental enquiry was instituted against the appellant and the Enquiry Officer made his report on 1 October, 1975, holding the appellant guilty of misconduct. A show-cause notice was served on him on 29th October, 1975, and on 1st March, 1975, the Deputy Commissioner, Multan, dismissed him from service forthwith. The appellant preferred an appeal to the Commissioner, Multan, who held that the Deputy Commissioner had acted rightly but taking a lenient view converted the punishment of dismissal into removal from service.
4. We have perused the record and heard the parties. In his reply the Deputy Commissioner, Multan, respondent No. 1 has narrated the history of the case. The Respondent No. 1 states that the appellant was transferred as Reader to Naib-Tehsildar, Lodhran, but that he did not like the new assignment. According to the written comments "The accused official did not like the new assignment and adopted other means to avoid to join that posting so much so that he resorted to applying for leave on medical grounds, "It is admitted that the appellant's application for leave from 11th March, 1975, to 16th March, 1975, was supported by a medical certificate issued by the Medical Officer, Civil Hospital Lodhran.
5. Under these circumstances we are constrained to observe that the respondent has not made out a logical case for adopting the view that the appellant was not actually suffering from dysentery but was only malingering. Assistant Commissioner, who did not allow the leave, substituted his own view for the opinion of the competent Medical Officer without making out any grounds based on any evidence for doing so. Similarly the subsequent leave A applications made by the appellant with the corroboration of a qualified medical practitioner, Multan, were also turned down without advancing any cogent reasons for disbelieving the evidence of the medical expert.
6. The Enquiry Officer in his report has stated that the appellant had taken the plea that he had gone to attend the Office of the Revenue, Punjab, Lahore, in his official capacity and had again attended the office of Assistant Commissioner, Lodhran, on 10th March, 1975. The Enquiry Officer observed that it was doubtful whether he attended the Courts of the Board of Revenue, Punjab, Lahore. The appellant has produced a duplicate copy of the attendance certificate issued by the Reader to the Member (Colonies) in the Board of Revenue, Punjab, which states that Mr. Nazir Hussain Shah, Colony Clerk, Lodhran, attended the Court of the Member, Board of Revenue, on 7th and 8th March, 1975. The genuineness of this certificate is not denied by the respondents. Under the circumstances the doubts entertained by the Enquiry Officer do not seen to be justified.
7. In the course of the enquiry the appellant produced Mr. Khalil Ahmad in his defence. The witness deposed that he accompanied the appellant from his medical store to the Civil Hospital, Lodhran, and then to his house at Multan, and thereafter he visted him at Multan, when he was sick. The Enquiry Officer comments in his report: "The witness is not known previously to the accused and his unusual sympathy with the accused is not intelligible."
We are obliged to come to the conclusion that the Enquiry Officer was so pre-occupied with the presumptions and surmises against the appellant that he failed to draw obvious inference that the appellant was genuinely ill and the witness evinced normal sympathy and concern for a person who was obviously suffering from his ailment.
8. The upshot of the above discussion is that the respondents have tailed to make out a case in defence of the pleas taken by them. The contention of the appellant that he was genuinely ill is borne out by medical opinion and no evidence has been produced by the respondents to controvert it. In this view of the case we accept the appeal and quash the order of the Deputyst Commissioner, Multan, dated 1st of March, 1976, by which the appellant was dismissed from service.
The order of the Commissioner, Multan, dated 14th April, 1976, is also set aside.
9. We order as above leaving the parties to bear their own costs.