1993 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑‑While he was attached with Income‑tax Officer, Special Circle, Lahore as Income‑tax Inspector, the appellant met with an accident in the year. 1986, as a result of which he received a back injury and remained on medical leave from time to time, under the treatment of Dr. Anwar Naeem, Assistant Professor Orthopaedic Surgery P.G.M.I. Mayo Hospital, Lahore from 18‑3‑1986.

2. On 15‑10‑1988 he applied for medical leave for a period of 120 days from 5‑10‑1988 to 1‑2‑1989. He stated in this application that he had been suffering from acute Prolope Interventable DISC (PID) since 18‑3‑1986.

3. On this application, medical leave up to 25‑11‑1988 was allowed to him by the Commissioner of Income‑tax Central Region, Lahore. A request was however made to the Orthopaedic Surgeon, Federal Dispensary, Lahore for his `check‑up' to ascertain whether he was fit to resume duty. He was directed to appear before the Surgeon on or before 26‑11‑1986.

4. It appears that Civil Surgeon concerned Mrs. Gulshan Ara Chohan referred him for examination to the aforementioned Dr. M. Anwar Naeem who had been treating him ever since the date of accident. The opinion conveyed by him to the Civil Surgeon through letter dated 27‑11‑1987 was that "with present situation it is not possible for him to sit even for a few hours to perform his official work and he should also completely give up motor‑cycle riding". He further said that "I feel he is unfit for further full time Government service".

5. Thereafter on 6‑2‑1989, an invalidation certificate was issued in prescribed pro forma to the effect that he was completely and permanently incapacitated for service and that his incapacitation did not appear to have been caused, aggravated or accelerated by the irregular or intemperate habits. This certificate purports to have been issued by the concerned Medical Board which cons1sted of two members and the Director, Health Services, Government of Pakistan.

6. The certificate resulted in the passage of order dated 26‑2‑1989 whereby the appellant was retired from Government service with effect from 28‑2‑1989 with all benefits admissible under the rules made on the ground that he had been declared completely and permanently incapacitated for service in the Income‑tax Department.

7. After having failed to get any relief from the Department, the appellant has challenged the validity of order dated 26‑2‑1989 in the present appeal under section 4 of the Service Tribunals Act, 1973.

8. The appellant's case is that no Medical Board was ever constituted and that he was never called upon to appear before any such Board. The report of Dr. Anwar Naeem, Assistant Professor was made a basis by the Federal Government's Physician for the certificate of invalidation. It is contended that he could not have been retired from service on the ground of invalidation on the strength of certificate which was not issued by the Medical Board.

9. The defence is that "respondent No. 2 did exercise his discretion to second medical opinion from the Authorised Medical Officer" in accordance with his competence. The Authorised Medical Officer referred the case to Dr. M. Anwar Naeem who had been treating the appellant ever since the time of accident and that his opinion regarding the appellant's complete and permanent incapacitation for service "was duly endorsed by the other members of the Board". It was further pleaded that the invalidation certificate bears the stamp and signatures of the three members of the Board and that all necessary formalities were fulfilled in this case.

10. As we have already noticed material facts are not in dispute. During the course of arguments the appellant's learned counsel placed on record, letter dated 31‑8‑1992 purporting to have been addressed by Dr. Gulshan Ara Chohan to the Assistant Director, Inspection and Audit, Lahore. It appears that the letter was in response to certain information sought by the Department. The averments of para (a) of the letter are reproduced as material: "(a) Whenever a patient is referred to us by his department for conduction of Medical Board, he is referred by us to the specialist of the Medical Board of Government Hospitals at Lahore for expert medical opinion. In case, patient is declared unfit for service "by the specialist, his invalidation certificate on pro forma supplied by Federal Government is duly completed and signed by President (Director Health Services and two members) and the same is forwarded to the department concerned on the basis of which he (patient) is retired from Government service on medical grounds."

11. If the invalidation certificate of 6‑2‑1989 be seen in the light of aforementioned averments, nothing remains in dispute in so far as the facts are concerned: 'this is what actually happened. A request was made by the Commissioner of Income‑tax through letter dated 21‑11‑1988 for the appellant's check‑up, to the Federal Government Civil Surgeon. On receipt of this request she in turn referred him to Dr. M. Anwar Naeem. On receipt of his opinion the Civil Surgeon prepared the invalidation certificate in the prescribed pro forma. In this certificate she recorded the same opinion as had been expressed by the Assistant Professor. Thereafter, the certificate thus prepared was put in circulation and signed by the Director, Health Services and two members of permanent Board. It is an admitted fact that the appellant was never examined by the Board and its President and Members appear to have signed the certificate in accordance with the prevalent practice.

12. Facts being there, the only question for determination is whether the invalidation certificate can be taken to have been duly issued by the Board and whether this could serve as a basis for the passage of impugned order of retirement from service on the ground of complete and permanent incapacitation. We feel no hesitation in holding that the certificate of 6‑2‑1989 can by no means be taken to have expressed the opinion of the Board. Such opinion could only be the result of an examination which has admittedly‑not been conducted by the Board in this case.

13. Reference may be made to para. 9.3(a) of the Hand Book of Drawing and Disbursing Officers. It lays down that "an invalid pension is awarded, on his retirement from the public service, to a Government servant who by bodily or mental infirmity is permanently incapacitated for the public service, or for the particular branch of it to which he belongs. The infirmity has, however, to be certified by a duly constituted Medical Board."

14. The provisions of Fundamental Rule 10‑A(a)(c)(d) are also in point. They are to the following effect: "F.R. 10‑A(a): ‑‑The authority competent to fill the post held by a Government servant may require him to appear before a medical authority for medical examination if, in the opinion of the competent authority, the Government servant is suffering from a disease which renders him unfit for the proper and efficient discharge of his duties or from a disease which is communicable and is likely to endanger the health of other Government servants. (c)(i) If the medical authority after examining the Government servant, certifies that the Government servant is permanently incapacitated for service, the findings of the medical authority shall be communicated to the Government servant immediately. The Government servant may, within seven days of the receipt by him of the official intimation of the findings of the medical authority apply to the Director‑General, Health for a review of his case by a second Medical Board. Such an application shall be accompanied by fee the amount of which shall be fixed by the Director‑General, Health. The Director‑General, Health, shall then arrange for the convening of reviewing Medical Board cons1sting of persons who were not members of the first Medical Board. If the reviewing Medical Board also certifies that the Government servant is permanently incapacitated for further service, the competent authority may require him to retire from service and may grant him such invalid pension and/or gratuity as may be admissible to him under the rules, and the competent authority may do so as if the Government servant had himself applied for an invalid pension. (ii) In case the reviewing medical Board holds that the Government servant is lit for Government service, he shall be reinstated, forthwith and the period of his absence will be treated as duty. If, however, the Board certifies that the Government servant is not fit but there is reasonable prospect of, his recovery, the case will be regulated under the provisions of clause (b) above. (iii) In case the Government servant concerned does not apply for a review of his case within seven days of the receipt by him of the official intimation of the findings of the first Medical Board, the competent authority may require him to retire from service and may grant him invalid pension and/or gratuity as provided for in sub‑clause (i) above. (d) The Central Government may make rules prescribing the form in which the medical certificate should be prepared and the medical officers by whom it should be signed."

15. We have already seen that in this case the appellant was neither summoned by the Board nor he was ever examined by them. They just endorsed the opinion of Dr. M. Anwar Naeem reproduced by the Federal Civil Surgeon in the certificate, apparently without as much as having had a look upon it. The deliberations of the Board, if at all any such name can be given to the certificate of invalidation, were clearly in violation of the provisions of Fundamental Rules 10‑A and the Federal Government's Financial Rules. This certificate could not make a basis for the appellant's retirement on the ground of invalidation and the impugned order of 26‑2‑1989 suffers from an inherent illegality

16. The respondents learned counsel referred us to the appellant's representation dated 28‑3‑1989 addressed to the next `higher authority' through the Commissioner of Income‑tax Central Region, Lahore. Its importance requires that it may be reproduced in detail: Sir, Respectfully I may submit that I have been retired from service because of the medical report whereas I am in a position to perform my duty. I may also be kept on duty against the quota of disabled persons. This is with reference to your letter No. 1472, dated 26‑2‑1989. Yours obediently (Sd.) (Muhammad Saleem Adil) Retired Inspector, 421‑‑IIA‑II, Township, Lahore." Dated: 28‑3‑1989.

17. The learned counsel's ‑argument was that the appellant not only accepted the fact of his retirement, he also made a request to be kept against the quota of disabled persons. It was contended that he cannot now turn round and say that the order of his retirement was illegal. We do not feel inclined to agree; which is for the main reason that the matter of his permanent incapacitation was primarily a subject for expert's opinion. After the Doctor's certificate, he might have thought that he does not have any remedy. Whatever be his line of thinking the principle of estoppel cannot be made to apply to the present situation where the appellant could not possibly be in a position to assess his ability or physical fitness. Therefore, he cannot be taken to have accepted the fact of his. retirement, merely because he made a request to be kept against the quota of disabled persons; more so if the representation of 28‑3‑1989 be seen in the light of the fact that "appeal against retirement" was mentioned as its subject.

18. Merits apart, the question of limitation is also there. The impugned order was passed on 26‑2‑1989. It was submitted at the Bar by the respondents' learned counsel that appeal against this order was made for the first time on 22‑8‑1989 which, being long after the expiry of 30 days of the communication of order dated 26‑2‑1989, was time‑barred. It was argued that since the appellant's representation was time‑barred the present appeal is also liable to dismissal on the ground of limitation.

19. As already noticed, the appellant made his first representation on 28‑3‑1989. Although his request was that he may be kept on duty against the quota of disabled persons, its subject indicates that he meant it to serve as an appeal against retirement. In any case, we feel that this representation should be regarded as departmental representation against the order of retirement, regardless of the fact that he did not ask for its cancellation. It was enough that he decided to have recourse to the next "higher authority" with a representation which was mentioned as "appeal against retirement".

20. When the earlier appeal was still pending, he addressed a representation on 22‑8‑1989 to the Commissioner of Income‑tax. The request was that he may be ordered to appear before any other Medical Board for examination, in order to ascertain whether he was fit to resume duty. It was also requested that the order of his retirement may be withdrawn. On 1‑9‑1990 another representation was addressed to the same Authority in continuation of the earlier representation of 22‑8‑1989, where the same request was made.

21. He was informed through letter dated 8‑9‑1990 by Administrative Officer of the Commissioner of Income‑tax, Central Region, Lahore that his representation had been rejected. We need not advert to the contents of this letter and it will be enough to point out that his representation does not appear to have been decided by the competent authority who was the Regional Commissioner of Income‑tax. In actual fact, the representation was never forwarded to him for a decision. Therefore, after having received letter dated 8‑9‑1990, the appellant again addressed a representation to the Commissioner of Income‑tax on 1‑10‑1990. This representation also met the same fate, but he was informed through letter dated 8‑10‑1990 that he may address an appeal to the next higher authority. Eventually on 30‑10‑1990 he made a representation to the Regional Commissioner of Income‑tax. This also failed to achieve any result and he was informed by letter dated 9‑3‑1991 that there was no such provision in the rules to empower any person to appoint a medically unfit person on any Government job. The present appeal was filed on 7‑4‑1991.

22. It is established from the aforementioned facts that the appellant has vigilantly been pursuing his remedy in the Department. In any case, it cannot possibly be said that he has been sleeping over his rights. He agitated the question of his retirement within one month of the passage of the impugned order. Thereafter he has been making representations to the Commissioner praying that the order of retirement may be withdrawn. He also requested in those representations that a Medical Board may be constituted for his examination to ascertain if he was fit to resume his duty. These representations should have been forwarded to the Regional Commissioner of Income‑tax for disposal. This was not done and the appellant was ultimately obliged to address a representation to him on 30‑101990. On obtaining information through letter dated 9‑3‑1991 about its rejection, he filed the present appeal. There is hardly any delay in this case, as could have attracted the provisions of the Limitation Act for a finding that the appeal was time‑barred. Even if it be assumed that there was some delay in filing the departmental appeal, the appellant should not be penalised for it, considering that the provisions regarding limitation have not been placed on the Statute Book to enable the Court to remain on the look out for an opportunity of non‑suiting an aggrieved person and that they are attracted ‑only by indolence, betraying a could not care less attitude.

23. For these reasons, the appeal is accepted and the impugned order of compulsory retirement dated 26‑2‑1989 is set aside. The case is remanded to the competent authority with the direction that a Medical Board be constituted for the examination of the appellant, for an authentic and definite opinion on whether he stands completely and permanently incapacitated for service in the Income‑tax Department. The Board shall be constituted in the light of observations made in this judgment and its opinion shall be relied upon by the competent authority as a basis for any order in accordance with law. Costs will not follow the event. H.B.T./808/Sr.F Case remanded.