SALMAN ANSARI, MEMBER --- This appeal under Section 4 of the Service Tribunals Act, 1973 was filed by the appellant against the order of his dismissal dated 20.07.2011. After preferring a departmental appeal dated 20.06.2011 against his said dismissal from service, which having been rejected on 17.07.2012, appellant approached this Tribunal on 27.12.2012 through the instant appeal, which appears to be time-barred?
As the appeal appeared to be barred by time, an application for condonation of delay was also filed alongwith the appeal praying for condonation of the delay, duly supported by an affidavit.
2. Brief facts of the case are that the appellant joined respondent Intelligence Bureau as Sub- Inspector on 27.07.1994. He had applied for 30 days earned leave due to marriage of his daughter, which was duly sanctioned and then proceeded on leave on 09.04.2011. After availing such leave w.e.f. 11,04.2011 to 10.05.2011 he became seriously and remained treatment of JMPC from 11.05.2011 to 11.06.2011 and produced such medical certificate issued by Medical Officer in Jinnah Post-graduate Medical Centre (JPMC) to the respondents-2 & 3 for grant of leave on medical grounds. Thereafter, he further remained under treatment w.e.f.
12.06.2011 to 10 )8.2011. Medical Certificate was again sent by post to the respondents-2 & 3 for grant of leave on medical grounds through proper application.
3. It is stated that the appellant had been continuously and regularly apprising the authority regarding his ailment and treatment of JPMC w.e.f.
11.05.2011 to 10.08.2011 and had been requesting for grant of leave on medical grounds, there was no response from the respondents-2 & 3. The appellant after declaring fit by the Doctors, reported for duty on 10.08.2011 with medical certificate and submitted his joining report, where he was handed down copy of the order of his dismissal from service dated 20.07.2011.
4. Feeling thereby aggrieved, the appellant sent his representation on 20.08.2011 for setting aside the penalty and treating/regularizing the leave period on medical grounds w.e.f.
11.05.2011 to 10.08.2011. Thereafter, the said representation was rejected vide order dated 17.07.2012 conveyed on 19.07.2012. It has been stated in the memo. Of appeal that the appellant was out of Pakistan from 15.07.2012 to 15.12.2012, as such, he could not approach this Tribunal within 30 days of the receipt of appellate rejection order dated 19.07.2012 and after returning back to Pakistan on 15.12.2012, without any further loss of time, has filed the appeal.
5.
5. In the written comments filed by the respondents, point of limitation has been specifically raised.
With regard to record of appellant, it has been stated that service record of the appellant contains show-cause notice, explanations, warnings due to his irregularities, non-punctuality and indiscretion towards official duties. It was further stated that prior to his dismissal in question, he was earlier dismissed from service on 02.08.2001 and was reinstated in service vide FST's judgment dated 14.09.2006. Again minor of stoppage of three years annual increments (non-recurring) was imposed on 12.12.2006 on account of unauthorized absence from duty. On 30.05.2001, he was awarded another minor penalty of censure. Regarding the instant appeal, it was submitted that after availing 30 days earned leave, he was bound to resume duty on 11.05.2011, but he failed and kept on applying for leave on one pretext or the other, which reflects his casual attitude towards official duties. The competent authority issued a show-cause notice to the appellant on 18.05 2011 which he did not submit any reply, despite several reminders and an ex parte decision had to be taken for awarding major penalty of dismissal from service for remaining absent from duty without prior permission.
6. Heard learned counsel for the appellant, who has also submitted his written synopsis. Learned Standing Counsel has also relied upon the comments filed by the respondents. We have also gone through the available record/documents carefully and minutely.
7. It has been forcefully contended by the learned counsel for the appellant that major penalty has been imposed upon the appellant without holding regular departmental inquiry into the matter and in support of his contention has placed reliance on the judgment of this Tribunal reported in SBLR 2004 Tribunal 273", where it was held that "Holding of regular inquiry, before imposition of major penalty, is mandatory - held, that where facts involved were disputed and controversial in nature, needed in-depth probe, by means of a regular enquiry". The Hon'ble Supreme Court in a case reported in 2010 SCMR 1546 has also been pleased to hold that:- "8. In view of the allegations levelled against the appellant and several applications for leave on medical grounds as also medical certificates submitted by him before the Competent Authority in the Department and the realization of the Department itself that he needed to be examined by a Board regarding his health, it was imperative and in the interest of justice that a regular departmental inquiry should have been conducted. This Court more than once, has reiterated the view that for awarding a major penalty of dismissal from service and in case where documentary evidence was lacking, a regular inquiry is called for. Following judgments of this Court reflects this view:---
(1) Alamgir v. Divisional Forest Officer 1993 SCMR 603 (2) Province of Punjab v. Muhammad Siddique Khan 2000 SCMR 1321 (3) Zahoor Ahmed v. WAPDA 2001 SCMR 1566 (4) Rashid Mehmood v.
Additional Inspector-General of Police 2002 SCR 57."
8. It is pertinent to mention here that the appellant had stated in para-12 of his memo. Of appeal that "the Respondent No. 1 considered and rejected the Appeal/representation of the appellant on 17.07.2012 and onveyed such letter to the respondent No. 3 above and, Thereafter, the respondent No. 3 through his office memo. Dated 19.07.2012, conveyed the information to the appellant 3arding rejection of appeal of the appellant. Whereas, in para-13, it was stated that, "the appellant was out of Pakistan from 15.07.2012 to 15.12.2012 as such could not approach the Honourable Court within 30 days of the receipt of the appellant rejection order dated 19.07.2012." It is not understandable when the appellant was out of station from 15.07.2012 then how had he received the communication dated 19.07.201,2. The reason does not appear to be plausible and satisfactory. Further the reason that on arrival in Pakistan on 15.12.2012, without any further loss of time, the appellant has approached this Tribunal also appears to be not convincing because the appeal has been filed in this Tribunal on 27.12.2012, after about 11 days and cannot be said to be without further loss of time.
He has consumed the time of about 11 days. The appellant also does not have unblemished record of service, as is claimed by him in his appeal.
9. Be that as it may, it is settled principle of law that leaves on medical grounds cannot be refused.
Section 5 of the Revised Leave Rules, 1980 stipulates that the maximum period of leave on full pay that may be granted at one time shall be as follows:--- "(a) Without medical certificate ............... 120 days.
(b) With medical certificate.................... 180 days.
(c) On medical certificate from Leave Account in entire service 365 days."
10. In the instant appeal, total period of appellant's over stay is about three months, and in- between had twice informed and sent medical certificate duly issued by Medical Officer; JPMC for extenstion of leave on one month's initially and for another, period of two months subsequent thereto. After that he reported for duty on 10.08.2011. Instead of allowing joining him duty, he was handed down dismissal order from service and the said decision was ex parte. It is pertinent to add here that if the respondent-organization was or had any doubts about his absence on medical grounds on the subterfuge of illness, the appellant should have been referred to Medial Board to ascertain genuineness of the statement of appellant about his illness and consequently the veracity of medical certificate issued by the Medical Officer, JPMC. There are rulings of the Supreme Court reported in 1981 PLC (CS) 443, 1985 PLC (CS) 484, 2007 PLC (CS) 27, 2007 PLC (CS) 1122, 2008 SCMR 1546 and 2008 PLC (CS) 267. In one of the above cases i.e. 1985 PLC (CS) 484, it was held that:--- "---Leave---On medical grounds-- Cannot be refused---Appellant proceeding on sanctioned leave and not joining on expiry---Sending application for extension of leave on grounds of illness duly supported by certificate of Medical Superintendent, District Headquarter Hospital describing disease and advising rest---Competent authority instead of sanctioning leave treating same as without pay and imposing penalty of censure on plea that appellant had broken a gentleman's promise and request for extension was not genuine---Competent authority, in circumstances, Held, could not refuse leave and could at the most direct appellant to appear before Medical Board "
Same view was taken in 1985 PLC (CS) 484 and 2007 PLC (CS)
27. In 2010 SCMR 1546, it was observed by the Hon'ble Supreme Court that:- " ---In view of allegations leveled against civil servant and several applications for leave on medical grounds as also medical certificates submitted by him before competent authority department and realization of department itself that he needed to be examined by a Board regarding his health, it was imperative and in the interest of justice that a. Regular inquiry should have been conducted .......................................................
11. We are of the considered view that since the procedure as established under the law and the rules framed thereunder, had not been observed for imposing major penalty, coupled with the refusal of leave on medical grounds without referring to the Medical Board, imposition of major penalty is not warranted, for the gravity or offence is not such as to award it, on the contrary refusal of leave on medical grounds without ascertaining the genuineness or the veracity of the medical certificate, is in contravention of the rules ibid. The major penalty is, therefore, converted into minor penalty of censure in terms of Section 4(1)(a)(i) of the Government Servants (Efficiency & Discipline) Rules, 1973. The appellant shall be entitled to the back benefits in view of the dictum laid down by the Hon'ble Supreme Court in a case reported in 2015 SCMR 77 where it was observed that:- " ----Service Tribunal allowed payment of back benefits to the police official for the period during which he remain out of service---Validity---Grant of back benefits to an employee who was reinstated by a Court/Tribunal or the department was a rule and, denial of such benefits was an exception on the proof that such person had remained gainfully employed during such period--- Entitlement of back benefits of a person had to be determined on the basis of facts of each case independently---Police official could not be held responsible for the period during which his revision petition was kept pending due to the F.I.R. And civil suit, because such pendency was on account the act of the police department---Revision petition filed by the police official was kept pending till the decision of the criminal case as well as civil case, which had no relevance because unless he had been found guilty by the Court, he was not debarred from performing his duty--- Police official was entitled to back benefits, as it was the police department, which on the basis of a wrong opinion kept him away from performing his duty---Policy official was entitled to back benefits from the date of filing revision till his reinstatement in service...."
In the instant appeal, appellant has stated in prayer clause of his appeal that he did not remain in gainful employment during the intervening period, which fact has not been disputed by the respondents in their comments/written objections to the appeal. No order as to costs.
12. Parties be informed accordingly.