' NAIMUDDIN, J.--This appeal, by leave, is from the judgment of the Punjab Service Tribunal dated 29-10-1981.
2. The facts giving rise to this appeal, briefly stated, are that the respondent was serving as Executive Engineer at Muzzafargarh where he held the charge of Provincial Building Division from 14-1-1976 to 11-8-1979. He was transferred from the said post and ordered to take charge of the post of Executive Engineer in the Headquarter Office at Lahore. He relinquished the charge on 11-8-1979 and was required to report at Lahore on 20-8-1979. He, however, sent a telegram dated 16-8-1979 requesting for leave upto 30-8-1979, stating that medical certificate would follow. Later on he submitted an application on 27-8-1979 for extension of leave till 18-9-1979 on private affaiRs, He was asked by the Chief Engineer, Building Department, to apply for leave for the entire period on the prescribed pro forma and also to submit a medical certificate from a Government Hospital in support of his plea of illness. He submitted an application on prescribed pro forma for leave w,e,f.
11-8-1979 to 20-10-1979 supported by a certificate of a private medical practitioner instead of a Government Hospital. He continued to apply for leave on medical ground supported by medical certificates of a private medical practitioner.
3. The fact that the respondent was trying to avoid resuming his duty at Lahore and submitted several applications for leave up to 30-11-1979 on medical ground, except on one occasion, supported by certificates of private medical practitioner, was brought to the notice of the Government. Thereupon, a Medical Board for medical examination of the respondent before sanctioning leave in his favour was constituted and he was directed to appear-before it at Bahawalpur on 22-11-1979. The respondent, however, appeared before the Medical Board on 6-1- 1980 and was found fit for duty and "free from all abnormalities". He thereafter reported for duty at Lahore on 13-1-1980.
4. The respondent was however served with a notice on 4-5-1980 on the basis of alleged disregard of the Leave Rules to show cause as to why disciplinary action should not be taken against him under the Punjab Civil Servants (Efficiency and Disciplone) Rules, 1975. The respondent submitted his explanation and after affording him personal hearing he was found guilty of violation of the Rules and accordingly awarded the minor penalties of 'censure' and 'stoppage of two increments without cumulative effect' by the order dated 20-7-1980. The respondent applied for review of the order on 11-8-1980 but the Government rejected it by the order dated 15-9-1980.
5. Aggrieved by the order the respondent filed an appeal before the Punjab Service Tribunal, Lahore, which was allowed by it on 29-10-1981 by setting aside the orders dated 20-7-1980 and 15- 9-1980. This Order has given rise to the present appeal.
6. We have heard learned counsel for the parties. The learned Assistant Advocate General appearing for the appellant submitted that in accordance with Rules 8.8 and 8.9 of the Civil Services Leave Rules (Punjab) Volume I, the respondent when applying for leave or extension of leave on the basis of medical certificate, was required to obtain a certificate from the District Health Officer or the official medical attendant and the respondent persistently disregarded these Rules and avoided resuming his duty at Lahore by feigning sickness. He submitted that the Tribunal has not considered these Rules in its judgment. He further submitted that since the respondent applied for medical leave without complying with these Rules and avoided to join the post at Lahore on transfer by pretending sickness he misconducted himself, therefore the penalties awarded to him by the departmental orders were just and proper and lawful.
7. It is correct that the Tribunal has not considered in its judgment the Rules relied upon by the learned Assistant Advocate-General. Before proceeding further we may quote Rule 8.8 which reads as follows:-- "8.8. Before a gazetted Government servant can be granted leave or an extension of leave on medical certificate, he must obtain a certificate in the following form, or as nearly in that form as the circumstances permit:-- "Statement of the case ' Name................
' Appointment-Age- ' Total service- ' Previous periods of leave of absence on medical certificate.
' HabitsDisease- I, District Health Officer or ' Medical Officer at or of ' after careful personal examination of the case hereby certify that . Is in a bad state of health, and I solemnly and sincerely declare that, according to the best of my judgment, a period of absence from duty is essentially necessary for the recovery of his health, and recommend that he may be granted months' leave with effect from ' Dated the ' District Health Officer ' or Official Medical Attendant."
' So far as Rule 8.9 is concerned it requires the Government servant after having secured the certificate under Rule 8.8 except in cases covered by Rule 8.12, to obtain permission of the Head of his office or if he himself is the Head of the office, Head of his Department to appear before the Medical Committee or Board.
8. Admittedly the respondent did not comply with Rule 8.8 ibid. Indeed the Tribunal observed that "We notice that no serious objection was taken by the two officers to the Medical Certificates submitted by the appellant except to state that they should have been from a Government doctor or hospital," and placed reliance on Rule 3(iv) of the Leave Rules of 5-11-1978, but did not consider that respondent had failed to fulfil the requirement of Rule 8.8 which was necessary particularly when the appellant had asked him to do so. In support of the charge that the respondent intentionally and wilfully avoided to join the duty at Lahore the appellant in their parawise comments relied on paragraph 3 of the review petition a copy whereof was filed by the respondent himself before Tribunal which reads as follows:-- "Likewise, I do not see anything odd about a man trying to secure the posting of his liking. If an officer is posted at the choice station and in congenial conditions, he would give off much better than when posted under unfavourable conditions. So to secure a posting of one's choice is as much in the interest of Government as in one's own interest. Why should Government come down so severely on a person who though indirectly is assessory to her interest? In fact I am of the opinion that each Government Officer be asked to give 3 best desired posting stations, 3 worst feared places and every effort be made to accommodate the incumbent on one of the 3 former places or at least he should be kept away from 3 of the latter named places as far as possible which will not only reduce the string pulling in this regard but would result in better performance on the part of the officeRs,"
9. Dealing with this point the Tribunal observed that "In the parawise comments on the appeal it is stated that the appellant's wiflul absence was reflected from para. 3 of his review petition of August 1980 in which he has tried to justify his own (or any officer's for that matter) desire to secure a congenial post or station of posting. On principle we see nothing heretical or radical or mutinous in that observation. If such an attempt is made by a civil servant, but strictly in keeping with the demands of discipline and good behaviour, there should he nothing untoward in it."
10. It is submitted that these observations overlook the background in which para. 3 of the review petition was written i,e. The respondent was wilfully avoiding to join the new post on transfer by feigning sickness and therefore they were not justified. We agree that the contents of paragraph 3 of the review petition should have been looked in the background as stated by the learned Assistant Advocate-General and which if so, looked support the departmental action, moreso when the respondent was examined by Medical Board he was found 'free from all abnormalities' which means that the leave applied for was on a false ground of sickness. The Tribunal in our view was also not justified in observing that "in fact the Medical Board was an exercise in futility so far as its view about an old sickness was concerned; it merely served the purpose of establishing that on the day of the examination the appellant was fit to resume duty "" as it did not take into consideration that the respondent was required to appear before the Board on 22-11-1979 but in fact he appeared on 6-1-1980. If the sickness was genuine he would not have avoided to appear before the Board so long. He could not be allowed benefit of doubt and his own act of omission without a satisfactory explanation for the same. The action taken against him in our view was just and proper to maintain discipline in the service.
11. We, therefore, allow this appeal and set aside the order of Punjab Service Tribunal dated 29-10- 1981 and restore that of the department, leaving the parties to bear their own costs. These are the reasons for the short order passed earlier. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.