1985 PLP (C (PLC(CS))

MUHAMMAD IBRAHIM LAKHIAR (MEMBER).‑This appeal is directed against the order, passed by Secretary, Health Department, Government of Sind, withholding two annual increments with cumulative effect of the appellant Dr. Bashir Ahmad Ghoto, Medical Officer, Taluka Hospital, Ghotki. After exhausting the remedies, available to him departmentally, the appellant has preferred this appeal under section 4 of the Sind Service Tribunals Act, 1973 praying for restoration of increments and payment of salary for the period, he remained absent from the duties. Facts, constituting background of the appeal, shortly stated, are that the appellant, who initially joined as Medical Officer in Liaquat Medical Hospital, Hyderabad on 24th October, 1972, proceeded on medical leave for 4 weeks from 21st February, 1983, while .he stood posted at Taluka Hospital, Ghotki. In support of his request for leave, he produced medical certificate, issued by Dr. Abdul Karim Siddiqui, Professor Dow Medical College, Karachi. Thereafter, he applied for extension of leave on the same ground for another 4 weeks from 21st March to 21st April, 1983. He again produced the Medical Certificate of the same Dr. Siddiqui who also advised him to shift to his native place Ghotki on the reasons of his health. He accordingly moved to Ghotki and remained under the medical treatment of local Doctor Mr. Ghulam Hussain Quresbi from 22nd April to 22nd November, 1983. On 8th August, 1983, a show‑cause notice was served on the appel lant. He was called upon by Secretary, Health Department to explain, why major penalty of the dismissal from service may not be imposed upon him for want of his positive response to resume duties forthwith and to remain absent unauthorisedly from duty from 22nd March, 1983. In his reply dated 6th August, 1983, the appellant denied the allegations that he had ever remained absent unauthorisedly and that he merely requested extension in the sanctioned leave on medical grounds. He also submitted that if his leave applied for could not be sanctioned further then he may be allowed to retire prematurely as a last resort as the circumstances/problems, warranting his retirement, remained 4n‑altered. On 22nd November, 1983. the appellant offered to resume duties and requested for withdrawal of his proposal for premature retirement. He submitted that on his being declared physically fit by a local Doctor Mr. Ghulam Hussain Qureshi, he was ready to resume duties on clinical advice. In the meanwhile an order, dated 29th December, 1983 was passed by Secretary, Health Department withholding two annual incre ments of the appellant with cumulative effect and treating the period of his absence from 22nd March to 29th December, 1983 as extraordinary leave (without pay). Mr. Arbab Khan Ghoto, learned counsel for the appellant initiated his arguments by putting reliance on rule 13 of Revised Leave Rules, 1979 and said that the leave applied by Civil Servant on medical grounds cannot be refused to him. He, however, contended that if the com petent authority had any reservations, it could have, at the most, directed the appellant to be examined by a Medical Board, constituted for the purpose. On the other hand, the counsel said that neither a reference was made to the Medical Board nor was the genuineness or otherwise of the Medical certificate questioned/communicated to the appellant. The counsel also rebutted the surmise that the appellant, being 42 years of age, wanted to avail the leave to seek lucrative employment abroad and that he sought to resume duties on the aborting of his endea vours to attain this objective. In support of his contention, the counsel re‑counted a number of case laws which go forth to strengthen the appellant's request for grant of leave on medical grounds. He cited 1984 P L C 739, wherein Punjab Service Tribunal held that leave sought on medical grounds and duly supported by relevant certificate cannot be refused. The counsel drew our attention to another case disposed of by Sind Labour Appellate Tribunal Karachi, wherein it was held that a medical certificate filed later could be validly accepted for the purpose of sanctioning leave sought on medical grounds 1983 P L C

782. In support of appellant's decision to withdraw request for premature retirement, the counsel relied on 1984 P L C 1192 in which it was held that appellant was entitled to retrieve his request for premature retirement if the decision on the same was not finally taken by the competent authority. Mr. A. A. Mohommedally, A. A.‑G. for the Government preface his arguments with the production that the appellant could be regarded to be an insubordinate civil servant, not amenable to discipline and ethics of service as he persisted in continuing to thwart the assertions of the Department for 9 months or so to resume duties forthwith. He, however, conceded on the basis of law and rules on the subject that leave sought on medical grounds and duly supported by a relevant certificate cannot be refused to a civil servant. Considering facts of the instant case and the unblemished record of the appellant, duly attested by the Director, Health Services, Hyderabad in his letter, dated 26th October, 1983, stating therein nothing adverse against the appellant as verified from the appellants' personal file and Annual Confidential Reports, the A.A.‑G. conceded that the withholding of two annual increments was too harsh a penalty to be imposed upon the appellant. We have accorded our anxious thought to the arguments advanced on both sides. .It has been made amply evident before us that the Health Department was in no circumstances obliged to deny leave sought on medical grounds which was duly supported by two medical certificates issued by the same Doctor Abdul Karim Siddiqui, Professor Dow Medical College, Karachi under whom the appellant was reported to have received medical treatment in the first instance. This was followed by and there certificate issued by a private practitioner Dr. Ghulam Hussain Qureshi at Ghotki, the native place of the appellant where he was advised by his first medical counsel to shift. In the face of rule 13. of Revised Leave Rules, 1979 (reproduced below) there does not appear any cogent ground for refusing medical leave sought on the basis of a certificate by a Pro fessor of the Medical College whose certificate ,to the same effect does not seem to have been contested for the purpose of granting leave from 22nd February, 1983 to 2,lst March, 1983. "It shall not be necessary to specify the reasons for which as that leave has been applied, so long as that leave is due and admissible to a civil servant, Leave applied for on medical certificate shall not be refused. The authority competent to sanction leave may, however, at its discretion secure a second medical opinion by requesting the Civil Surgeon/Medical Board to have the applicant medically examined." In the event of any doubt about the genuineness or otherwise of the medical certificate, appropriate course for the authorities was to have directed the appellant to appear before the Medical Board, constituted for the purpose. Keeping the aforesaid analysis in view, we are constrained to hold that the impugned Order No. SOI (H) 2‑635/81, dated 27th December, 1983 has not been validly and lawfully passed and is accordingly set aside allowing the drawal of two annual increments to the appellant. The nature of the intervening period from the date of refusal of leave to him to the resump tion of duties by the appellant will be treated as leave of the kind due. There will be no order as to costs. A. E. Appeal accepted.