' Taj Ahmed, ex-Junior Clerk, office of the Deputy Commissioner, Muzaffargarh, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Deputy Commissioner, Muzaffargarh, Commissioner, D.G. Khan Division, D.G. Khan and the Secretary to Government of the Punjab, Revenue Department, Lahore as respondents.
2. By virtue of this appeal he has prayed that the impugned orders, dated 17-10-1982 and final order, dated 3-2-1983 be set aside and the appellant be reinstated in service with full benefits of service from the date of suspension/removal from service.
3. Brief facts of the case are that the appellant joined service in the Office of Deputy Commissioner, Muzaffargarh, in the year 1959. He was confirmed as such on the basis of his satisfactory record of service and good performance. He continued as such till he has been removed from service by final order, dated 3-2-1983. The appellant had developed blood pressure which resulted in hypertension. In view of his ailment he submitted application for two months leave which was duly supported by a medical certificate, dated 20-6-1982. As he was not getting any relief from the said disease, the appellant consulted Dr. Abdul Qadir, Medical Superintendent, Civil Hospital, Muzaffargarh, who prescribed medicines for his cure. The application of the appellant was forwarded by the Assistant Commissioner, Alipur in the following terms:- "Forwarded for necessary orders please. I feel that the applicant be examined ,by the Medical Superintendent and then necessary orders may be passed."
' On this the learned Deputy Commissioner, Muzaffargarh passed the following orders, dated 26-6- 1982:- "Leave rejected please proceed against him under E&D Rules for wilful absence."
' The appellant was informed of this action by the respondent vide letter, dated 30-6-1982. The appellant was served with a show-cause notice on 25-8-1982, in which allegation of absence from duty without leave was levelled against the appellant. However, the appellant recovered on 8-8- 1982 as per fitness certificate and immediately reported for duty on the same day. The appellant received the said show-cause notice while he was on duty. He submitted his explanation on 13-9- 1982, in which he denied the charges so levelled against him and submitted that he was really ill and never pretended illness. Appellant received further show-cause notice, dated 4-10-1982, alongwith a copy of the report of the Enquiry Officer/Authorised Officer, and vide order, dated 17-10- 1982, the Deputy Commissioner, Muzaffargarh, removed the appellant from service, on the ground that the appellant had failed to appear before the Medical Superintendent. The appellant filed an appeal to respondent No,2, which was rejected by his order, dated 3-2-1983 and his revision petition before respondent No,3, stood dismissed. Hence this appeal.
4. I have heard the 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 the leave application of the appellant for the grant of leave was fully supported by the medical certificate, therefore, under the Leave Rules of 1978, it was not open to the Deputy Commissioner to reject the leave straightway. According to the learned counsel for the appellant, the decision of the Deputy Commissioner Muzaffargarh, was contrary to law. It has been further argued that it was an exercise in futility on the part of the Deputy Commissioner to direct the appellant to appear before the Medical Superintendent as he had already rejected the leave summarily. It has also been urged that despite the situation as explained above, the direction given to the appellant for his appearance before the Medical Superintendent was not at all served upon him, a fact which had been duly brought by the appellant in his reply dated 13-9-1982, before the learned Deputy Commissioner. The appellant has taken a positive stand that no service was effected upon him and the reports of Tehsil Peon and Mumtaz Ahmad, alleged to be appellant's brother were fictitious therefore, it was obligatory on the part of the Deputy Commissioner to verify this fact by holding necessary enquiry and examining Tehsil Peon and Appellant's brother. While concluding his arguments learned counsel for the appellant has submitted that the appellant has put in 23 years service and never applied for such long leave and this was his first chance that he had applied for long leave even on medical ground. For this he has relied on rule 3 (iv) of the Leave Rules, 1978.
6. On the other hand learned District Attorney has adopted the parawise comments submitted by the Department and laid much stress on the plea that the appellant wifully avoided to appear before the Medical Superintendent and thus had disobeyed the order of his superior. Learned District Attorney has justified his removal from service.
7. I have given my anxious thought to the arguments so advanced before me by the parties and find that the appellant did fall ill and applied for medical leave to which he was entitled, a fact fully established on the record. It is also on the record that he did seek advice of Medical Superintendent during his illness, a fact which is fully proved by the prescription of the Medical Superintendent so placed on the record by the appellant. There is no denial of the fact in this case that the leave application of the appellant was recommended with a condition that he should be directed to appear before the Medical Superintendent. This was the direction of his immediate superior viz. A.C.
The respondents in this case have no alternative but to concede that the learned Deputy Commissioner without asking the appellant to appear before the Medical Superintendent summarily rejected his leave application. However, later on he became wise and asked the appellant to appear before the Medical Superintendent, but there is nothing on the record to show that the person about whom it has been said that the appellant was served with the said direction, was ever checked to justify for the same, particularly when the appellant has positively denied about the said happening. I have also seen rule 3 (iv) of Leave Rules, 1978 wherein it has been clearly laid down that leave applied on medical ground, cannot be rejected.
8. In view of the above analysis of the entire case and the conduct of the respondents as discussed above, I have no hesitation to set aside the impugned orders as both illegal as well as unjustified. It was incumbent upon the respondents before arriving at a positive decision against the appellant, to call upon the Process Server as well as brother to satisfy themselves, whether the claim of the appellant that the service was of fictitious nature was correct or not. In this way the golden principle of justice based on formula audi alteram partem is also fully attracted to the case of the appellant.
9. The result is, I accept the appeal, set aside the impugned orders as nullity in the eye of law and reinstate the appellant in service with all back benefits. There will be no order as to costs.