' S. ABDUL JABBAR KHAN (CHAIRMAN).-- Ghulam Mohyuddin, Assistant Accounts Officer (MP) has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded, Ch. Shaukat Ali, Settlement Commissioner (Land), Lahore, Ch. M.H. Akhtar, Secretary (Admn.) to the Member, Board of Revenue (S&R), Lahore, and S. Asad Ali Shah, Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the order, dated 6-2-1982, passed by respondent No, 3 on the basis of the note of respondent No,1 acting on behalf of respondent No, 2 (on leave) be set aside as being illegal and unwarranted and uncalled for, without any justification. He has further prayed that respondents Nos, 2 & 3 may be directed to sanction medical leave for the period from 18-4-1981 to 21-8-1981, as recommended by the Medical Superintendent, Services Hospital, Lahore.
3. Brief facts of the case are that the appellant was serving in the Settlement and Rehabilitation Department since September, 1949, who fell ill and remained under medical treatment for some time. But as the illness gradually developed the appellant proceeded on leave on 18-4-1981, and was not able to resume duties uptil 27-8-1981. The appellant during the period of his illness submitted applications supported by Medical Certificates from the Registered Medical Practitioner, placed on the record as Annexure B 1 to 16. The Medical Superintendent also confirmed his illness through a regular certificate. Ultimately the appellant resumed his duties on the basis of fitness certificate issued by the said Medical Superintendent. However, he was conveyed the order of respondent No,3 through respondent No,1 that he was absent from duties from 18-4-1981 and failed to appear before the Medical Superintendent, Services Hospital, Lahore, therefore, his absence from duties from 18-4-1981 to 21-8-1981, would be treated as leave without pay. The appellant made a representation on 22-2-1982, to respondent No,3 against his order vide Annexure F/1, but despite lapse of statutory period of 3 months he did not receive any reply. Hence this appeal.
4. We have heard Learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned Counsel for the appellant has submitted that despite the fact the appellant's leave application was on prescribed form, on medical grounds, and was duly forwarded to respondent No,2 as a Controlling Authority to the Audit Officer for verification of entitlement of leave but the same was rejected without any justification, therefore, the impugned order cannot be sustained. It has been further pointed out that the Audit Officer communicated the admissibility of leave vide its Memo No, GAD VI-Sett/EM/335, dated 20-12-1981, but the impugned order was manoeuvred by misrepresenting the facts by the subordinate staff. It has been argued that the appellant was always considered an efficient officer, indispensible to the Department that even during his sickness, files and fresh receipts were sent to him at his residence and the appellant used to dispose of the same. It has been further argued that even the appellant was called from his residence to Headquarters by his next officer as well as respondent No,2 during the period of his leave for discussing the case and to accompany with Additional Settlement Commissioner (MP) at various times. According to learned counsel even the appellant attended meetings at the Headquarters office between the Settlement Department and the Central Government. It has been further alleged that in none of the communications addressed to the appellant in connection with his leave, was ever mentioned as absence. In view of the above learned counsel for the appellant has urged that the impuged order was unjustified as leave was due to the appellant and the same was claimed on the basis of Medical Certificates.
6. On the other hand learned District Attorney has adopted the comments of the Department as submitted.By Ch. Muhammad Nazir Ahmed, Legal Adviser on behalf of the respondents and has submitted that the appellant was required, on receipt of medical certificate from a Private Medical Practitioner, to appear before the Medical Superintendent, Services Hospital, Lahore, on 2-5-1981, 16-5-1981, 21-5-1981, 10-6-1981, 8-7-1981, 28-7-1981 and 9-8-1981. The appellant did not comply with the directions so given to him and the so-called medical certificates, produced by him did not contain any thing to support that he was sick and unable to attend to his official functions.
According to the learned District Attorney all this means that he could easily attend to his duty but he remained absent from duty without any just cause. According to the learned District Attorney the grant of leave or its refusal was within the discretion of the competent authority and no Government servant can claim grant of leave as a matter of right. It was argued that the case of the appellant was not maintainable and the impugned order was passed with full justification.
7. We have given our anxious thought to the arguments so advanced by the parties and find that the appellant while working on 18-4-1981, left the office when he felt himself indisposed and on the same date applied for medical leave. His application for medical leave was duly supported by a certificate of the same date issued by Dr. Iqbal Hussain Randhawa, which verified that the appellant was ill and needed complete rest from 18-4-1981 to 21-4-1981. There is another certificate of the same Doctor who examined the appellant and found that he needed a complete rest for a further period upto 12-5-1981. This certificate was appended with the application of the appellant, dated 13-5-1981 addressed to the Secretary (Admn.), Board of Revenue, Punjab, requesting for extension of leave for the said period. On 20-5-1981, the appellant submitted another application informing the said Secretary that he had not yet fully recovered from his illness and was in continuous medical treatment of various medical officers. He requested that medical leave be extended for another period of 15 days w,e,f, 28-5-1981 to 11-6-1981. This application was also certified by the same medical practitioner Capt. Dr. Iqbal Hussain Randhawa, recommending him complete rest for the said period. There is on record an application, dated 12-6-1981 submitted by the appellant in which he had asked for further extension of 15 days leave w,e,f, 12-6-1981 to 26-6- 1981. This is also supported by the Medical Certificate of the same Dr. Capt. Iqbal Hussain Randhawa. The record of this case further reveals that the appellant filed another application on 27-6-1981, in which he informed the Secretary (Admn.), Board of Revenue, Punjab that he was still under treatment of the Authorised Medical Attendants of Services Hospital, Lahore, who have prescribed medicines and requested for extension of the said leave f9r another period of 19 days from 27-6-1981 to 15-7-1981. The appellant filed another application on 16-7-1981 addressed to the same authority that in view of his physical condition he may be allowed further extension in medical leave for another 16 days w,e,f, 16-7-1981 to 31-7-1981. On 1-8-1981, there is on record another application for medical leave by the appellant for extension of further 15 days leave from 1- 8-1981 to 15-8-1981. On the expiry of the said period the appellant filed another application, dated 16-8-1981 in which he applied extension of said leave from 16-8-1981 to 31-8-1981. All these applications are duly supported by the certificates of the Registered Medical Practitioners and clearly mentioned that during this period he was under medical treatment of the Authorised Medical Attendants. The appellant also attached prescriptions etc. With his previous applications. It is on the record that on 15-8-1981, the Medical Superintendent, Services Hospital, Lahore, wrote a letter to the Secretary Admn., Board of Revenue, in reply to a reference so made to him on 8-7-1981 and certified that the appellant had been under examination and treatment since 28-3-1981, on account of suffering from fever pain in chest due to Bronchitis. It was further confirmed with the said letter that the appellant had been attending the hospital periodically and was advised medicines according to his condition of health and was still under the treatment of a responsible Medical Officer and has not fully recovered as yet. The Medical Superintendent ultimately observed that the fitness certificate will be issued as soon as his health is improved. It was on 22-8-1981, that the Medical Superintendent informed the Secretary, SR, Board of Revenue, that the appellant was examined by him on 21-8-1981 and was found medically fit to join duty.
8. In view of the above history of the case supported by the medical certificates of the registered Medical Practitioner as well as the certificate of Medical Superintendent, Services Hospital, the case boils down to this that the appellant throughout his period of illness was under the treatment of Capt. Dr. Lqbal Hussain Randhawa as well as Authorised Medical Attendant of the Services Hospital, Lahore, therefore, it cannot be said that the appellant was in any way a malingerer or was malingering. We have also seen the service record of the appellant and find that appellant has never availed any long medical leave earlier throughout his career, except 15 days leave to which was never taken exception to.
9. According to Leave Rules of 1978, an officer who is entitled to medical leave cannot be refused the same if the same is supported by the Medical Certificate (s). However the rules do permit the authority to cross check the claim of the appellant if it is suspected that the claimant is malingering and is suffering from no genuine illness. In the present ease what we find is that when the case was referred to Medical Superintendent, Services Hospital, Lahore by the Secretary (Admn.), Board of Revenue, the said authority in no manner declared that the appellant was suffering from any diseases or he has never attended the hospital earlier. The appellant's claimed in his application, dated 27-6-1981, he has been attending the Services Hospital throughout the period and was duly treated by the Authorised Medical Attendant of the said hospital, has no where been refuted by the Medical superintendent or from any other source.
10. It is also interesting to note that the appellant has filed a number of documents to show that even during his period of medical leave he has been signing papers and attending to important official work at his residence at the request of his superiors. It is also on the record that this officer was many a time called upon to attend the meetings of important nature and he willingly came forward to participate despite his illness. These documents go to show that the appellant was a zealous officer who even performed Government duty at the risk of his health. We have also examined a number of documents placed on the record which proved that the appellant was always considered diligent and honest and hard worker by his superiors and his services were appreciated in writing by them. In view of the above and keeping in view the mandatory provisions of Leave Rules, 1978 we do not find any justification for the impugned order so passed against the appellant. If there would have been a positive opinion of the Medical Superintendent that the medical certificates so issued by Dr. Capt. Iqbal Hussain Randhawa were not genuine or that the appellant was never treated by the staff of the Services Hospital for treatment of Bronchitis, the matter would have been different. As already discussed above in detail, the case of the appellant does not suffer from any legal defect and a Government servant with long service fully entitles to medical leave of more than four months, we proceed to accept his appeal and direct , that the period of his absence which has been treated as leave without pay, may be treated as leave of the kind due.
' However, there will be no order as to costs.