ABDUL HAMID CHAUDFIRY (MEMBER).-Muhammad Sarwar has made this appeal to the Punjab Service Tribunal wherein he has impleaded Assistant Commissioner/Collector, Tehsil Ferozewala, District Sheikhupura, Commissioner Lahore Division, Lahore and Member, Board of Revenue, Punjab, Lahore, as respondents.
2. By virtue of this appeal the appellant has prayed that impugned orders dated 30-6-1979, 8-9- 1979 and 27-3-1982 of the respondents be set aside and the appellant be restored to service with all the benefits in the interest of the justice.
3. Brief facts of the case are that appellant Muhammad Sarwar, ex---Patwari was posted in an officiating capacity at Circle Jetrika, Tehsil Ferozewala. He was allowed casual leave for one day i.e: 1.3-1976, by the Halka Revenue Officer subject to the condition that he would report for duty on 2-3- 1976 as the work regarding preparation of register Assamiwar was pending in his circle. The said Patwari fell sick and. Sent a medical certificate for one month's leave w.e.f. 1-3-1976 (afternoon).
The appel--lant was found guilty of misconduct of wilful absence from duty and Assistant Commissioner/Collector, Ferozewala terminated the services of the appellant. The appellant filed an appeal before the Commissioner who vide his order dated 12-7-1976 remanded the case for giving personal hearing to the appellant and for passing fresh order after going through the procedural requirements of the rules. The Assistant Commissioner/ Collector, Ferozewala again found the appellant guilty of misconduct, re--moved the appellant from service w.e.f. 2-3-1976, vide order dated 30-6-1979. The appellant made an appeal before the Commissioner, Lahore Division, Lahore which was dismissed vide order dated 8-9-1979. The appellant made a revision petition before the Member, Board of Revenue, Punjab, Lahore, which was also dismissed by Mr. Nasim, Member (Revenue), Board of Revenue, Punjab, Lahore, vide order dated 27-3-1982. Hence this appeal.
4. We have heard the parties. Learned counsel for the appellant has argued that the appellant went on on day's casual leave for 1-3-1976 with prior permission. The appellant fell ill on the afternoon of 1-3-1976 and was forced to apply for leave as per advice of the doctor -for one month from 1-3-1976 (afternoon). The appellant's counsel produced a photo copy of the medical certificate so issued on- 1-3-1976 by Dr. Iqbal Hussain Randhawa to the Tribunal for ready reference and also to prove that the appellant was validly sick and it .Was not a lame excuse put up by the appellant when he applied for leave on medical grounds enclosing this very medical certificate. It has been argued by the learned counsel for the appellant that as per leave rules for civil servants, the leave applied for on medical ground cannot be refused by the competent authority. The competent authority could, however, use its discretion for securing the second medical opinion by requesting the medical authorities to have the appellant medically examined. In this case the competent authority, Assistant Commissioner/Collector, Ferozewala, did not take any action to refer the case to the Medical Superintendent, District Headquarters Hospital, Sheikhupura, but on the other hand he passed the impugned order removing the appellant from the service. While passing the impugned order of removal from service dated 10-6-1979 he remarked that "had he been sick, he should have applied to the Collector for examination by the Medical Superintendent, District Headquarters Hospital, Sheikhupura for his medical examination and grant of leave". Thus, it was argued by the learned counsel for the appellant that it was the competent authority who had to refer the matter to the Medical Superintendent if he was not satisfied with the medical certificate so produced by the appellant. The leave rules have been misinterpreted/ misconceived by the competent authority. As the appellant had produced a medical certificate which showed his valid sickness and it was incumbent on the competent, authority under the Rules to allow him the leave on medical ground and thus, holding the appellant guilty of misconduct for wilful absence was not correct and justified. Concluded his arguments the learned counsel for the appellant has submitted that the appellant has been punished unnecessarily and without his fault. Rebutting these arguments the learned District Attorney has submitted that is 'a clear cut case of wilful absence by the appellant. The casual leave for one day was granted to the appellant on the clear cut understanding that he would not ask for extension in leave as important official work was pending and was to be completed by the appellant. But, instead of resuming the duty after availing of casual leave, the appellant absented himself from duty on the excuse of medical certificate that too recom--mended by a private medical practitioner and not by the Medical Superintendent, District Headquarters Hospital, Sheikhupura. This misconduct of wilful absence from duty stood proved and the appellant has been removed from service. Correctly and lawfully.
5. We have given our anxious thought to the arguments of the parties and also have gone through the record of this case. It is clear from the documents attached with the appeal that the appellant went on casual leave for 1-3-1976 which was duly sanctioned by the Halqa Revenue Officer. The photo copy of the medical certificate so produced before us by the learned counsel for the appellant proves that the appellant fell ill on the. Afternoon of 1-3-1976 and this was a valid reason for applying for leave on medical grounds by the appellant. If the competent authority was not satisfied with this medical certificate, the matter should have been referred to the Medical Superintendent for second medical opinion. It may be appropriate to reproduce the relevant Leave Rule as conveyed vide Finance Department No. BR-III-1/85/78,IA dated 5-11-1978. The relevant para. Is as follows :- "3. (iv) it should not be necessary to specify the reasons for which the leave is applied for so long 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 his discretion secure a second medical opinion by requesting the Civil Surgeon/Medical Board to have the appellant medically examined."
The above rule is quite clear and if Assistant Commissioner/ Collector, Ferozewala, was not satisfied with the medical certificate so submitted by the appellant, he should have used his discretion for securing a second medical opinion. It is implied that in the absence of any opinion being sought from the Medical Superintendent, it was clear that the medical certificate so produced by the appellant was a valid certificate to prove his sickness.
6. Thus, we agree with the learned counsel for the appellant that the refusal for sanction of the medical leave to the appellant was not on valid grounds and the punishment so awarded on account of wilful absence from duty is not in order. The appellant had every right, to be granted the leave on medical basis on submitting of medical certificate and the competent authority i.e. Assistant Commissioner/Collector, Ferozewala, could not refuse the leave to the appellant as per leave rule enumerated above.
7. Keeping the above analysis in view, the impugned orders are set aside. We direct that the appellant be reinstated in service. The period of the absence from duty i.e. From the date of removal from service to that of resuming the duty shall be treated on leave of the kind due.
There will be no order as to costs.