' This appeal is directed against the judgment and decree of Additional District Judge, Karachi, dated 25-9-1975 in Suit No, 177 of 1972 filed by the respondent for the declaration that his removal from service on 20-8-1968 was illegal and he continued to be in service of the railway till 30-9-1968 when he was to retire.
2. The relevant facts are that the plaintiff-respondent was Guard, Grade-I. On 21-7-1967 the respondent obtained Form G-92 from Station Superintendent, K.Y.C., for reporting to the Assistant Surgeon, for treatment. On 2-8-1967 the respondent wrote to D.P.O., K.Y.C., that he was enable to attend the Railway Hospital, Karachi, because he was living at Korangi. On 17-8-1967 D.P.O. Advised respondent to attend Railway Hospital or send guide to D.M.O., so that he may arrange a Doctor at his house otherwise he would be treated unauthorized absent. On 24-8-1967 respondent asked for a loan of Rs, 300 from the railways to send a guide as he was penniless. On 6-11-1967 show-cause notice was issued to respondent for absence from duty. On 6-11-1967 the respondent was required to submit his explanation within ten days for the charge that he had remained absent with effect from 21-7-1967 after obtaining Form G-92 to attend the railway Doctor. On 11-11-1967 respondent replied that he had reported for sickness on 2-8-1967 and again on 24-8-1967. In December, 1967 the D.P.O., wrote to respondent that it was inconceivable that he was so sick and bedridden as to be unable to move to present himself before Railway doctor for ascertaining the genuineness of his plea or otherwise. He was directed to avoid evasive and adamant attitude and reply to the charge.
' On 16-2-1968 the respondent was informed that enquiry has been ordered into charge against him which was fixed on 26-2-1968. On 26-2-1968 the respondent wrote to the D.P.O. That he had attended the D.S. Office and the papers have been handed over to his Advocate but some other day may be fixed as the Advocate had no time on that day. The respondent was informed on 21-3- 1968 that the enquiry had been fixed on 23-6-1968. On 23-6-1968 the respondent informed the Enquiry Officer that there was no need for any enquiry when the case is running in the Court and the Court will decide this case.
' It may be explained here that the reference by the respondent to the running of a case was not in respect of the enquiry into charge of absence but that was a case filed by the respondent against his reversion from Guard, Grade-I, to the post of Trains-Clerk, being Suit No, 2200 of 1967.
3. However, in spite of the above letter, the respondent appeared before the Enquiry Officer and he stated that he had fallen sick on 21-6-1967 and obtained G-92 from Station Superintendent, K.Y.C., and attended Assistant Surgeon, Keamari, for treatment instead of Assistant Surgeon, K.Y.C., as he was residing at Keamari in those days. He was thereafter, transferred for treatment to A.S., K.Y.C., but he did not go to him as he took the treatment of a private doctor at Korangi where he was residing at that time and he was under that treatment upto 26-3-1968. In respect of his non- attendance to A.S., K.Y.C., the respondent stated that it was late on 31-7-1967 and, therefore, he went home and had an intention to attend A.S. K.Y.C., the next day on 1-8-1967 but he was taken ill very seriously and he could not attend A.S., K.Y.C., on 1-8-1967 and 12-8-1967. He advised D.P.O., K.Y.C., about his illness. In respect of a question put to him as to where from he got the money to send registered letters to D.P.O. When he had nothing to send a guide to A.M.O., K.Y.C., for free medical treatment, the respondent had no answer. He had also stated that he was holding sick certificate but did not send it to the office as he intended to send the sickness and fitness certificates both when he was declared fit by his private doctor.
4. The Enquiry Officer found that Babu Khan was responsible for unauthorised absence from 21-7- 1967 and also for not keeping Railway advised if he was under the treatment of a private doctor.
5. Consequent, thereupon, on 25-5-1968 second show-cause notice was issued to respondent for removal from service. On 7-6-1968 respondent replied to the same stating that he was 40 years in permanent service and he was to retire on 30th September, 1967 and was on extension upto 30-9- 1968 and that the Railway administration was malicious against him and reverted him to post of Guard, Grade-I. Further he stated that he had attended Railway Hospital, Keamari from 21-7-1967 to 31-7-1967 and then was transferred to A.S., K.Y.C., for further treatment but he could not go to A.S., K.Y.C., and took the treatment of a private doctor because he resided at Korangi which was 15 miles from Railway Hospital, Karachi and that under the rules a person who resides within 3 miles of the hospital has to attend the hospital and that expenses involved from Korangi to Karachi was Re.1 per day for travelling by bus. He submitted that he was producing a sick certificate from Assistant Surgeon, Keamari, and he will produce certificate from his doctor duly authenticated by A.S. K.Y.C., when he was fit to resume duty. On 5-9-1968 the respondent was removed from his service as his explanation was not found satisfactory.
' The appeal filed by the respondent was not considered as the matter was considered to be sub judice and he was informed of the same on 19-6-1969. On 5-11-1969 the respondent filed the suit in question.
6. In written statement the appellant took up the position that although the respondent had reported sick on 21-7-1967 but he did not intimate anything either to the Superintendent, Keamari, or to D.O. Karachi=, upto 2-8-1967. It was stressed that the respondent had remained absent without any authority and that he had been issued show cause and that enquiry had been made into those allegations and the Enquiry Officer had found him absent from duty and that second show-cause notice for removal was issued to him and after considering his explanation he was dismissed from service rightly.
7. Issues were framed of which the most important issue is whether the order of removal from service, dated 20-8-1968 was illegal. No oral evidence was led, by any of the parties and the matter was decided on the basis of documents which I have referred to above without giving their exhibits numbers.
8. The Additional District Judge decreed the suit on the basis that the burden had been wrongly placed upon the respondent by the Enquiry Officer as after the position had been admitted that the respondent had reported sick on 21-7-1967 and had attended before A.S. Keamari, for treatment then thereafter, it was for the department to prove that the respondent was guilty of the charge and that the Enquiry Officer was not justified to presume that the respondent was required under the law to prove that he was not guilty. The Additional District Judge was of the view that once the respondent had fallen sick and had attended for treatment then it could not be said that he was unauthorisedly absent from duty until it was proved that the plaintiff had actually not fallen ill and had obtained G-92 by misrepresentation but on this point no evidence was recorded by the Enquiry Officer.
I must express that the learned Additional District Judge has failed to appreciate the necessary facts in this case. The Enquiry Officer had taken into account the statement made by the respondent and once the position had been admitted by the respondent that he had not reported for sickness to A.S.. K.Y.C., on 31-7-1967 then it was his duty to explain as to how he had remained sick after that A period.
' The respondent had not even filed a certificate from a private Doctor showing his sickness from 1- 8-1967 onwards till the day that he was issued a show-cause notice in November, 1967. This was a long period and the respondent could not take shelter behind the plea that he was penniless and, therefore, he could not even send a guide who could guide the A.M.O. So as to visit the respondent at his house in Korangi.
The Enquiry Officer had not presumed anything. A. Person who says that he was sick, it is his responsibility to prove his sickness and it is not the responsibility of the employer to prove that an employee who had reported sick for duty for only a week, thereafter he had not recovered. In all fairness the illness, if any, was within the knowledge of the respondent and, therefore, it had to be proved by the respondent himself and his failure to prove his illness between 1-8-1967 to February, 1968 positively proves that he was really not sick. The respondent was very energetic in sending the registered letters to the D.P.O. But he neither sent a guide, in spite of demand, nor did he even intimate the name of the Doctor, from whom he was getting a private treatment. In these circumstances, the Enquiry Officer was justified in the finding that the respondent was absent unauthorisedly.
10. In this matter Instruction No, 733 of Railways Manual is relevant which provides that a Railway servant who applies for leave of sickness, is himself to produce a proper sick certificate from the competent Railway Doctor. It is further provided in the said instruction that a Railway servant residing beyond jurisdiction of a Railway Doctor must submit a certificate from his medical attendant and the competent authority may at its discretion accept the certificate or refer the case to the D.M.O. Therefore, the submission of certificate from the private Doctor to the effect that the respondent was sick was a must and respondent's failure to do so shows that he was not really sick and, therefore, his absence for such a long period could not be condoned.
11. The learned Additional District Judge has also relied upon Rule 8 of the Railways Service (Efficiency and Discipline) Rules, 1961, to the effect that proper procedure as prescribed under rule 8 was not followed by the Enquiry Officer. The learned Additional District Judge has found fault with the examination of the respondent by the Enquiry Officer without the examination of any person from the Railways who could prove the guilt of the respondent. The Additional District Judge has come to the conclusion that since Enquiry Officer examined Babu Khan in the first instance without formal proof of the charge against him by the Railway authorities, therefore, Enquiry Officer had presumed that Babu Khan was guilty.
Here again the learned Additional District Judge has failed to correctly appreciate the impact of rule 8. Rule 8(1)(d) which is relevant rule requires that the Enquiry Officer will hold an oral enquiry at which oral evidence shall be heard as to such of the allegations as are not admitted and the accused shall be entitled to cross-examine the witness against him. Therefore, the Enquiry Officer has to see as to what are the allegations which are admitted and if there is a clear case in which the allegation in respect of the charge is admitted or any fact stated which shows that the basic part of the allegation is admitted but only an explanation is offered to explain away that charge then in such circumstances, the formal proof of charge by the prosecution is hardly required under rule 8(2) and it is only the defendant who has to prove the explanation which he is giving in respect of the charge after admitting the basic allegation.
12. In the present case, the basic charge against the respondent was that he had remained absent unatithorisedly with effect from 21-7-1967. The absence from the duty was clearly admitted in the various letters which the respondent had written to the Railways and he had alleged that he was sick, therefore, the absence from duty was clearly admitted but an explanation of sickness had been offered by the respondent and, therefore, it was not for the Railway to establish that the respondent had become fit and yet he was not attending the duty but it was on the other hand incumbent upon the respondent to prove his sickness in order to take away the charge of unauthorised absence from him. And it is quite clear from the record, that I have referred to above, that the respondent had completely failed to establish any sickness from at least 1-8-1967 to 6-11- 1967, when the show-cause notice was issued to him or even till 26-3-1968 when the enquiry was made from him.
13. I am surprised that even on 7-6-1968 in his explanation against removal from service the respondent had taken up the position that he will produce the certificate from the private Doctor when he was fit to resume duty. This shows that he was claiming to be sick from 1-8-1967 till 7-6- 1968 almost for one year and yet he could not produce any certificate from a private Doctor alongwith his explanation. And it is interesting to note that he had already appeared personally twice in the D.S. Office on 16-2-1968 and 26-3-1968 and even had got his statement recorded on 26-3-1968. This was a very important fact to consider, and if the learned Additional District Judge had taken this into consideration, I am quite sure he would have reached the same conclusion to which I have reached that it was the respondent who was bound to explain the cause of his absence by producing the relevant medical certificate but he had miserably failed to do so and, therefore, his suit for declaration should have been dismissed.
14. Consequently, this appeal was allowed on 2-12-1985 by a short order. The result being that the judgment and decree impugned is set aside and the suit for declaration and injunction is dismissed.