S.M. ISHAQ (MEMBER).--There are' two appeals on against the order dated 26-6-1986 whereby a penalty of stoppage of promotion for a period of four years and to debit against his leave account double the period of his absence from 12-1-1985 to 14-2-1986 was imposed upon the appellant and the other against the order dated 27-7-1987 whereby he was superseded in consideration of the penalty order dated 26-6-1986. Since the main issue involved in both the appeals is identical we propose to dispose of them by this consolidated order. However, Appeal No. 154(K)/87 is being decided ex parte as no one appeared on behalf of private respondents.
2. The facts leading to these appeals are that the appellant fell ill and he applied for four days casual leave with effect from 8-1-1985 to 11-1-1985 which was granted to him by the Divisional Engineer-III, International Gateway Exchange, Karachi. He did not report for duty, on expiry of his leave, but submitted an application for extension of leave alongwith a Medical Certificate from one Dr. Abdul Haque Rajpur. Who diagnosed that the appellant was suffering from infective hepatitis and advised him rest for a period of two months. The appellant was then referred to the Civil Surgeon, Hyderabad, for medical opinion. The said Surgeon refused to examine the appellant medically on the ground that he had received so direction from the Director, Health, Government of Sindh. Subsequently he contacted Dr. Zubair Ahmed, K.K. Tando Allah Yar, Sindh, on 13-3-1985 and he also diagnosed the same disease and recommended leave for a further period of two months with effect from 13-3-1985. The appellant again applied for extension in leave for a period of two months on medical ground whereupon the Director-General, Pakistan Telegraph and Telephone Department, Islamabad, addressed a letter to the Director, Health Services, Government of Sindh, requesting him to arrange a Medical Board for the examination of the appellant and in the meantime he was also directed to appear before the Medical Board. The appellant did not appear before the Medical Board on many occasions on the plea that he was out of station and that he had received no information for appearing before the said Board. The Secretary, Communication, however, served upon the appellant the following show-cause notice on 18-11-1985:--- "SHOW-CAUSE NOTICE: Whereas you Mr. Naseem Pervaiz Siddiqi, Assistant Divisional Engineer (BPS-17) while working as Assistant Divisional Engineer International Gateway Exchange under General Manager, Overseas Telecom. Region, Karachi, were granted four days casual leave from 8-1-1985 to 11-1-1985.
(2)And whereas you Mr. Naseem Pervaiz Siddiqi, Assistant Divisional Engineer, on 'receipt of your application for extension of leave on medical grounds for two months were directed to appear before the Civil Surgeon, Hyderabad by the General Manager, Overseas Telecom. Region, Karachi vide his Memo. No. DE. II/IGE/Q-0812, ''dated 20-1-1985. Also the T&T Directorate General, Islamabad, through its telegram S./N-99-XXT/1313/30, dated 30-5-1985 directed you to report to General Manager, Overseas Telecom. Region, Karachi within 10 days of the receipt of the telegram, failing which you were cautioned that disciplinary action would be taken against you under the Government Servants (Efficiency and Discipline) Rules, 1973. You did not appear before the Civil Surgeon, Hyderabad, nor did you report to the General Manager, Overseas Telecom. Region, Karachi in the stipulated period.
(3)And whereas, a notice was published in the Daily `Nawai-Waqt', Karachi directing you to report for duty by the 25th June, 1985 at the latest but you failed to comply.
(4)And whereas, you instead of reporting to the General Manager, Overseas Telecom. Region, Karachi, submitted an application dated nil alongwith photo copies of Medical Certificates in response to the telegram issued by Director-General, T&T for grant of leave on the basis of medical certificates.
(5)And whereas, you were directed to appear before the Medical Board arranged by the Director, Health Services, Hyderabad, on the request of Director-General, T&T vide Memo. No. S/N-99, dated 14-7-1985, but you persistently failed to appear before the Board which was arranged on 18th-19th August, 1985, 15th-16th September, 1985 and 20th-21st October, 1985.
(6)And whereas from the facts and circumstances stated above it appears that you are prima facie guilty of misconduct.
(7)Now, therefore, you the said Mr. Naseem Pervaiz Siddiqi are directed to show cause within 14 days of the receipt of this Notice as to why the penalty of `dismissal from service' should not be imposed upon you on the ground of misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973.
In case no written reply is received from you within the stipulated period the case will be decided ex parte."
3. The appellant replied to the above show-cause notice on 8-12-1985 and requested that the instructions be issued to the Assistant Director, Health Directorate, Hyderabad, to fix another date for his appearance before the Medical Board. The Medical Board was approached and consequently 16-12-1985 was fixed for the appellant's medical examination. The appellant, however, appeared before the Medical Board on 16-12-1985 and the said Board found that he was suffering from anxiety, nervousness and hyperacidity and thus the leave for a period of two months was recommended to him for restoration of his health with effect from 16-12-1985. On expiry of his leave the appellant reported for duty but no posting orders were issued till 28-5-1985. Thereafter, he was posted in the office of the General Manager, Overseas Telecommunication Region, Karachi, but on 26-6-1986 the impugned order was passed whereby the appellant was awarded punishment of stoppage of promotion for a period of four years and to debit against his leave account double the period of his absence from 12-1-1985 to 14-2-1986 under rule 23 of the Revised Leave Rules, 1980.
The appellant then filed a departmental appeal, which was rejected on 10-12-1987 after the filing of the present appeal before this Tribunal on 18-11-1986. A copy of the rejection letter has, however, been placed on record by the respondents.
4. The learned counsel for the appellant submitted that the appellant fell ill and he took leave initially for a period of four days i.e. With effect from 8-1-1985 to 11-1-1985 but when he did not recover he requested for extension of leave and produced medical certificate also. It was contended that, according to the directions of the respondent-Department, the appellant appeared before the Civil Surgeon for second medical opinion but he refused to examine him. The learned counsel further contended that the leave was not only necessary for the restoration of the appellant's health but was also in the interest of his other colleagues as the appellant was suffering from infective hepatitis which was a contagious disease. Even otherwise rule 20(2) of the Revised Leave Rules, 1980, provides that "leave applied for on medical certificate shall not be refused". He also maintained that the appellant was forced to leave the station as the Doctors under whose treatment he remained, had advised him to change the climate. It was, in these circumstance 'that he went to Murree and in his absence the correspondence for appearing before the Medical Board was made by the respondent-Department which never reached him. The learned counsel maintained that the appellant did not deliberately procrastinate to appear before the Board. He also pointed out procedural defects that no proper enquiry was held and no proper hearing was afforded. On the basis of the above assertions, the learned counsel maintained, that the respondents were not justified in imposing the said penalty
5. The Departmental Representatives who appeared on behalf of respondents Nos. 1 to 5, submitted that the appellant remained absent from duty wilfully and that when he was referred to the Medical Board on various dates i.e. 18th-19th August, 1985, 16th September, 1985 and 20th-21st October, 1985, he did not appear before the said Board. According to them, if he was advised for change of climate by the Doctor, he should have left the station after obtaining the proper permission from the competent authority and it was incumbent upon the appellant to have furnished his mail address to the respondent-Department before leaving the station. In his undated application for leave the appellant has stated that he was leaving Hyderabad for Murree within two or three days and the address of the place at Murree would be communicated shortly but thereafter the appellant did not communicate his address. It was contended that the medical leave cannot be granted as a privilege not` it can be claimed as a matter of right. The appellant was, therefore, not only guilty of leaving the station without obtaining leave but also he did not bother to furnish the address to the Department after leaving the station. Regarding the procedural defects it was maintained that under rule 5(1)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, if the authorised officer decides that it is not necessary to have an enquiry conducted then the shorter procedure of show-cause notice is to be adopted. It was contended that the appellant was rightly held guilty and was, therefore, punished.
(6) We have heard the learned counsel for the appellant as well as the Departmental Representatives. We find from the record that the appellant took leave initially for four days and thereafter he submitted applications for leave alongwith the medical certificates on the ground that he was suffering from infective hepatitis and the- Doctors had advised him complete bed rest.
Under the rules the respondent-Department was justified in referring him to the Medical Board for second medical opinion but he did not appear before them on the pretext that he had gone to Murree on the advice of the Doctor and, therefore, the correspondence relating to his appearance before the said Board never reached him. It is believed that the appellant might have gone to Murree for change of climate even then he should have furnished his mail address to the respondent-Department. In his undated application for leave the appellant had requested for leave till he recoupes which is not proper as rule 7 of the Revised Leave Rules, 1980, provides that the leave shall be applied for, expressed and sanctioned in terms of days. Ordinarily there is no bar for obtaining leave on medical ground and the same cannot be refused but the medical certificate should be from an authorised medical attendant. The authority competent to sanction leave can, however, at its discretion secure a second medical opinion from a Civil Surgeon or the Medical Board. We, however, feel that the appellant had no tendency towards indiscipline because he continued sending applications for leave alongwith the medical certificates. The learned counsel for the appellant has placed reliance on the case of Shaukat Jamil v. Secretary, Communication and Works Department (1986 PLC (C.S.) 923) wherein it was held by the Service Tribunal Punjab that a civil servant's behaviour in respect of obtaining leave by production of medical certificate from a private medical practitioner and subsequently submitting to physical examination by the Medical Board would not amount to misconduct. Keeping all the facts and circumstances into consideration we are of the view that it will be fair and reasonable if the impugned order dated 26- 6-1986 is converted to that of "censure" and we order accordingly.
7. As far as the appellant's objection regarding his seniority over respondents Nos. 6 to 34 (Appeal No. 154(K) of 1987) is concerned, we find from the Gradation List issued in 1982 that his name is appearing above the respondents mentioned in the memo of appeal. The learned counsel for the appellant maintained that the appellant, as per the inter se seniority list, is senior to respondents Nos. 6 to 34 but he was ignored and superseded when they were promoted to BPS-18 vide Notification No. S-5-2/86/PD,C, dated 27-7-1987. He contended that on his return from medical leave the appellant had requested the respondent-Department to allow him to appear in the test and interview which was initially accorded and even roll number was assigned but subsequently he was disallowed for appearing in the said test and his roll number was also cancelled. The Departmental Representative submitted that since the order for stoppage of the promotion of the appellant for a period of four years was passed vide Notification No. S/N-99, dated 26-8-1986 the respondents were justified in ignoring the appellant for promotion to BPS-18. As the impugned order on the basis of which the appellant was not considered for promotion, has been modified by us to that of "censure" and no longer holds the field it will be proper if the appellant is considered for promotion with effect from the date his juniors were considered/promoted subject to the passing of test/examination, if any. Order accordingly.
8. In the result both the appeals are disposed of accordingly.