1989 PLP (C (PLC(CS))

5. I have heard the counsel for the appellant, who has raised the following points in support of his appeal: ‑ (i) Firstly, that the appellant was genuinely sick and the medical certificate produced by him was neither challenged nor appellant was referred for second opinion, therefore, the whole proceedings are without basis; (ii) Secondly, that as per rule 14.17(2) of the Police Rules the medical certificate issued by Medical Superintendent, D.H.Q. Faisalabad was binding and the respondent No. 1 had no authority to ignore or brush aside the same; (iii) Thirdly, that the extreme punishment of dismissal from service can only be ordered in case of gravest act of misconduct. Learned counsel for the appellant in this behalf 4as referred to Rule 16.2 of Police Rules; and (iv) Lastly, it was argued that the action is mala fide and the respondents were looking for an opportunity to teach him a lesson as he earlier impugned remarks and exposed his superiors.

6. On the other hand learned District Attorney has submitted that no leave application, whatsoever, was received by respondent No. 1 after 24‑12‑1985, therefore, the appellant was rightly treated as absent. It is argued that actually the appellant was avoiding to proceed for training and he was not suffering from any ailment. The allegations of mala fide action were vehemently denied.

7. I have considered the arguments of both sides and gone through the record. The admitted position on record is that the appellant was proceeded on the ground of `misconduct' and not `unauthorised absence'. The fact that the allegation of unauthorised absence was not one of the charges coupled with fact that the respondent No. 1 at no point of time called upon the appellant to appear before the Board for second opinion are sufficient for me to conclude that the appellant was genuinely ill or in any case his illness was not disputed or questioned by the respondents at any point of time.

8. The appellant submitted reply to the show‑cause notice and was sent for orderly room hearing on 15‑3‑1986. The appellant did appear but the respondent No. 1 proceeded to `advise' him to report at Sihala within one week. The order is clearly illogical, arbitrary and unjustified. The respondent No. 1 before rendering such `advice' was under legal obligation to decide whether the appellant was genuinely ill or not. Anyhow with this advice or order the show‑cause notice stood discharged. The same could not have been pressed into service once again or any further. The respondent No. 1 in fact has taken up subsequent events and developments in the case in considerations without observing legal formalities of show‑cause notice etc. This fact alone is sufficient to render whole proceedings void and without jurisdiction. The respondent No. 1 after non‑compliance of his order dated 15‑3‑1988, should have started the disciplinary proceedings afresh.

9. The first two points raised by the learned counsel for the appellant do not call for any determination. It seems that both the parties were under misapprehension as to the real/actual allegations, which were basis of the disciplinary proceedings. The appellant is not accused of unauthorised absence from duty but of misconduct/inefficiency as is clear from the portion of the show cause notice reproduced in the opening part of this judgment. 10. 1 can see the anxiety of the respondents, who daily come across leave applications on lame excuses but this does not mean that even the genuine requests for leave supported by medical certificates are to be ignored and officials really suffering from ailment are to be denied their legal right of leave. It is the legal duty of the respondents to sift the grain from the chaff.

11. It passes one's comprehension how the respondents legally could have proceeded against the appellant without first treating him absent. He could have only been proceeded for misconduct after he had assumed the duty and orders made during the period he was on medical leave were to be held in abeyance till he had recovered from illness and resumed duty. This is putting the cart before the horse. There was no basis to prove the charge of misconduct. The appellant in fact assured the respondent No. 1 to join the training college, the moment he was declared fit for duty.

12. The respondent No. 2 laid emphasis on the medical certificates. This part of his order is irrelevant and beyond the scope of issue for the following reasons: ‑ (i) The certificates were never challenged and disputed by the respondent No. 1; (ii) The appellant was not treated absent throughout this period; and (iii) In case these certificates were bogus or in violation of some instructions it was again the duty of respondent No. 1 to have insisted and pointed out to the appellant to submit the certificates in accordance with the instructions. I have my doubts as to the vires of these instructions in the face of Rule 14.17(2) of the Police Rules but since this point was not argued, therefore, I leave it for some other occasion.

13. The result is that I allow this appeal with costs and set aside the impugned order dated 28‑4‑1986 of the respondent No.

1. The appellant is re‑instated m service and is entitled to all back benefits. A./237/Sr.P Appeal allowed.