' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 read with section 2 of the Service Tribunals Act, 1973 against the impugded order dated 2-7-2004 whereby major penalty of dismissal from service was imposed on the appellant. The appellant referred departmental appeal vide his letter dated 10-7-2004 which having remained unresponded after expiry of the statutory period, the appellant has filed this appeal dated 5-10-2004 before this Tribunal.
2. Briefly, the facts of the case are that the appellant joined the Pakistan Railways as Telephone Attendant (B-3) w,e,f, 9-9-1979. He was promoted as T.C.R (B-5) in December, 1986 and was subsequently promoted as S.T.E. (B-11) on 28-11-2000. The appellant was last posted as S.T.E, Karachi City under the Divisional Inspector/Special Ticket Examiner, Karachi.
3. The appellant reported sick on 24-6-2003 through Station Master, Tando Jam and remained under treatment of Medical Officer Pakistan Railways, Mirpurkhas upto 23-7-2003. The Medical Officer, Pakistan Railways, Mirpurkhas, certified vide his certificate dated 23-7-2003 that the appellant was on sick leave w,e,f, 24-6-2003 and further certified that he was likely to be unfit to perform his duty for another 15 days from 20-7-2003. The medical certificate dated 23-7-2003 implied that the appellant would be fit for duty after 15 clays rest effective from 20-7-2003.
Thereafter, instead of reporting for duty on the expiry of the 15 days' period, the appellant approached a private doctor and remained under his treatment for a little over six months from 23-7-2003 to 27-1-2004. The appellant reported for duty in the office of respondent No,2 on 28-1- 2004. The, appellant awaited posting for about two months when he was directed to appear before the Divisional Medical Officer (D.M.O.), Pakistan Railways, Karachi. Thereafter, on 1-4-2004 the appellant was directed to report to the Medical. Board at Cairon Hospital Lahore as the period of absence of the appellant was for more than six months and the D.M.O. Pakistan Railways, Karachi was not competent to entertain such cases. The Medical Board vide its certificate dated 7-4-2004 gave opinion that the appellant was fit for duty, but it did not cover the period of the absence of the appellant during which he remained ostensibly under the treatment of a private doctor. The D.M.O., Pakistan Railways, Karachi forwarded the report/ finding of the medical Board held at Lahore, dated 7-4-2004 to the Divisional Personnel Officer, Pakistan, Railways, Karachi (respondent-3) for further action/disposal. Accordingly, the appellant reported to the office of respondent-3 for further order when he received a show-cause notice dated 31-5-2004 from respondent No,2 with the following statement of charges/allegations:-- "You reported sick on 24-6-2003 under M.O./M.P.S. And remained sick list upto 23-7-2003 and thereafter you remained absent from sick list as well as from duty without any intimation and permission of the competent authority.
' You have been awarded the following punishments:---
(i) Censured on 29-9-1987.
(ii) WIT 3 years on 18-11-1996.
(iii) WIT 3 years on 16-1-1997".
4. The appellant submitted his reply dated 5-6-2004 to the show-cause notice stating therein that he was suffering from Hepatitis 'B' and not having fully recovered despite the certificate dated 23- 7-2003 of the Medical Officer Railways, Mirpurkhas, approached a private doctor and remained under his care from 23-7-2003 to 27-1-2004. Thereafter, he reported to the department for duty when he was directed to appear before the D.M.O. And subsequently to the Medical Board after having been kept waiting for two months. It is observed that the appellant having reported for duty on 28-1-2004 was effectively absent without the cover of a medical certificate from an authorized official medical attendant for about five and a half months from 4-8-2003 to 27-1-2004 as the Medical Officer Pakistan Railways, Mirpurkhas, vide his certificate dated 23-7-2003 had recommended 15 days' rest effective from 20-7-2003. The appellant was informed vide Divisional Superintendent, Pakistan Railways, Karachi letter dated 9-6-2004 to appear in the office of D.S. Pakistan Railways, Karachi for personal hearing on any working day. Appellant states that he kept on visiting the office of the respondent No,2 for personal hearing and was ultimately called for the personal hearing and the same was afforded to him. Thereafter, the impugned order dated 2-7- 2004 was issued whereby the appellant was imposed upon the major penalty of dismissal from service. The appellant preferred a departmental appeal dated 10-7-2004 which having remained unresponded, he filed this appeal dated 5-10-2004 before this Tribunal.
5. The learned counsel for the appellant argued that major penalty has been imposed upon the appellant without recourse to a regular inquiry and as such the punishment is not tenable in law and is required to be set aside. He placed reliance on 2003 PLC (C.S.) 353, SBLR 2003 TR 164, 2001 SCMR 256 and 2001 PLC (C.S.) 296. He further stated that the inquiry was dispensed with under section 4 of the Removal from Service (Special Powers) Ordinance, 2000 but no reasons were given by the respondents in the show-cause notice for dispensing with such inquiry. He further stated that controversial facts were involved in the matter and therefore an inquiry was imperative. He averred that major penalty on the basis of show-cause notice without reasons for dispensing with inquiry is not sustainable in law and placed reliance on 1985 PLC (C.S.) 636 and 1114, 1997 TD (Service) 346, 2003 PLC (C.S.) 353 and 1996 PLC (C.S.) 868. The learned counsel for the appellant stated that the entire period of absence from 24-6-2003 to 27-1-2004 has been covered by medical certificate issued either by the departmental medical officer or private doctor. He argued that leave on medical ground cannot be refused and placed reliance on 1985 PLC (C.S.) 484; 1992 PLC (C.S.) 496 and 2004 PLC (C.S.) 1583. The learned counsel for the appellant further argued that the charges against the appellant on the basis of which major penalty of dismissal from service was imposed also included the earlier punishments awarded to the appellant in the years 1986, 1996 and 1997. He stated that fresh punishment cannot be awarded on the basis of past punishment and such fresh punishment would amount to double jeopardy. He placed reliance on 2004 PLC (C.S.) 959 and 2004 PLC (C.S.) 1583.
6. The learned counsel for the appellant summed up his arguments by stating that the impugned 'order of dismissal from service is liable to be set aside and the appellant reinstated in service with all back-benefits.
7. The learned counsel for the respondents argued that there was no requirement of holding a regular inquiry as the fact of unauthorized absence from 24-7-2003 to 27-1-2004 without certification from the departmental medical officer had been established and admitted by the appellant. He stated that the period from 24-7-2003 till the date of his reporting for duty i,e, 28-1- 2004 having not been covered by the medical board was taken as unauthorized absence from.
Duty. Consequently, the appellant was proceeded against under the Removal from Service (Special Powers) Ordinance, 2000 by the issuance of a show-cause notice. He further stated that the opportunity of personal hearing was duly afforded to the appellant. The learned counsel for the respondents further maintained that the appellant was awarded major penalty of dismissal from service after observing the necessary procedure under the Removal from Service (Special Powers)
Ordinance, 2000. The learned counsel for the respondents therefore argued that the appeal is liable to be dismissed as having no merit.
8. Heard the learned counsel for both the appellant as well as the respondents and also perused the record.,
9. It is to be noted that the total period of absence from duty of the appellant was from 24-6-2003 till 27-1-2004. The period from 24-6-2003 to 3-8-2003 has been duly covered by the medical officer of the Railways Department; Mirpurkhas in that the appellant was examined by the medical officer on 23-7-2003 and he was declared likely to be unfit for duty for 15 days w,e,f, 20-7-2003 thereby implying that he would be fit for duty after 15 days i,e, from 4-8-2003. After the expiry of the 15 days' period the appellant approached a private doctor for further treatment as according to him he was not completely restored to his normal health and was still under the effect of Hepatitis `B'. After having remained under the treatment of a private doctor from 23-7-2003 to 27-1-2004, the appellant reported for duty to the department on 28-1-2004. Therefore, it is further required to be noted that the period from 28-1-2004 till the date of his dismissal from service i,e, 2-7-2004 cannot be considered as absence from duty. The medical board which was convened to examine the appellant, vide its report dated 7-4-2004 certified that the appellant was fit for duty but it failed to cover the period during which the appellant reportedly remained under the treatment of private doctor i,e, from 23-7-2001' to 27-1-2004. This to our mind is a lapse on the part of the medical board which should have given its views on the status of the patient (appellant) vis-a-vis his medical condition for the period he remained under the treatment of a private doctor.
10. The medical board had observed with regard to the period of absence during the treatment by a private doctor as, "absent period not covered". In the circumstances, we feel it was required on the part of the departmental authorities to refer the case back to the medical board to give its clear finding with regard to the medical condition of the appellant for the period he remained under the treatment of a private medical practitioner and whether he was fit to resume duty during this period.
11. In view of the certificate submitted by the medical board wherein there is no adverse opinion recorded by the board with regard to the period of absence during which the appellant apparently remained under treatment of a private medical practitioner, we are of the view that the assumption that the appellant remained absent from duty without cogent medical ground is not substantiated by the facts. The appellant was suffering from a major ailment i,e, Hepatitis '13' and he chose to go for further treatment with a private medical doctor having not been satisfied with the certificate of the departmental Medical Officer Mirpurkhas that he could resume duties 15 days' after 20-7-2003. The appellant did make a mistake in that if he was not satisfied with the opinion of the Medical Officer, Pakistan Railways, Mirpurkhas that he would be fit for duty, after taking rest for 15 days which expired on 3-8-2003, he should have reported back to the departmental medical officer for further opinion and should have also intimated the department accordingly. This is a case of negligence on the part of the appellant even if his contention that he had not recovered from his ailment and felt necessity to approach .a private doctor is accepted.
12. We are however, of the view that for this negligence which resulted in absence from duty for about five and a half months without the cover of a certificate from the authorized departmental medical officer, the punishment of dismissal from service is too harsh. Also, the past punishments could not be made ground for further punishment and we are persuaded to agree with the contention of the learned counsel for the appellant that any fresh punishment on the ground of past punishment would amount to a person being vexed twice and hence double jeopardy. We are reinforced in our opinion by the dicta as laid down in 2004 PLC (C.S.) 1572 and 2004 PLC (C.S.) 959.
In the circumstances we are inclined to hold that for his negligence of not reporting back to the authorized Medical Officer or the department during the period from 4-8-2003 to 27-1-2004, a minor penalty of withholding of increments for three years without cumulative effect would suffice.
13. The appellant is therefore, reinstated in service from the date of his dismissal and the period of his absence from duty shall be adjusted against leave due to the appellant. No order as to costs.
14. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters under rule 21 of Service Tribunal-(Procedure) Rules, 1974.