2004 PLP (C (PLC(CS))

This appeal is directed against the order dated 4‑9‑2001 passed by respondent No.2 awarding minor penalty of "withholding of two annual increments" to the appellant w.e.f. December, 2001. He preferred departmental appeal to the Respondent No.1 and on receiving no response, appellant filed the instant appeal.

2. Facts which form the background of this appeal briefly are that on 9‑3‑2000 appellant while posted as Medico‑legal Officer. Abbasi Shaheed Hospital, Karachi examined one injured Syed Hakim Jan and issued provisional Medico‑legal Certificate reserving the nature of injury for want of Ex‑ray report/opinion. On receipt of report of Radiologist, appellant issued supplementary Medico‑legal Certificate on 14‑3‑2000 showing fracture on little finger of right hand. While posted as Senior Medical Officer, Mithi, he was served with a show‑cause notice dated 3‑8‑2000 issued by respondent. No.2/Authorized Officer, as under:‑ "The Medico Legal Certificate No.21280/2000 dated 9th March, 2000 issued by you in respect of injured Syed Hakim Jan son of Wali Jan was challenged in Standing Medical Board constituted on 25th March, 2000 at Services Hospital, Karachi and declared as incorrect. " In his reply, appellant refuted the allegation and explained his position, which reply was not found satisfactory. Thereafter, he was served with final show‑cause notice dated 12‑6‑2001, which too was replied by the appellant. Ultimately by an order dated 4‑9‑2001 he was awarded minor penalty of withholding of .one increment. His departmental appeal remained unresponded. Hence, this appeal.

3. Learned counsel for the appellant in support of the appeal argued that although in the show‑cause notice it is not mentioned as to why the said Medico‑legal Certificate was treated as 'incorrect' but subsequently thereto it transpired that the Medical Board said to have been constituted at the instance of opposite‑party remarked that, the injury suffered by injured Syed Hakim Jan was self‑suffered but the appellant deliberately not mentioned the said fact in the Medico‑legal Certificate. He submitted that injured was referred to the Appellant for examining his injury and to certify its nature, which the appellant examined and on the basis of Radiologist report, he declared the same as 'Jurh Ghair Jaifa Hashimah' showing fracture in the 5th little finger of right hand, thus the appellant committed no illegality or irregularity. He stated that Medical Board was constituted after 18 days of the certificate issued by the appellant and that appellant was not called on to join/participate in the meeting of Medical Board to explain his view point, thus the whole proceedings initiated against the appellant were illegal and cannot be made the basis for awarding any penalty. He forcefully argued that there is no dispute that there was fracture on the little finger of tight hand of appellant, thus the certificate issued by the appellant cannot be declared/treated as incorrect. Lastly he stated that the Authorized Officer without any valid grounds had imposed the impugned penalty upon the appellant, which being against the norms of justice may be set aside.

4. On the other hand learned Assistant Advocate‑General while referring to the letter dated 16‑2‑1989 containing directives to the Medical Officers dealing with medico‑legal cases, submitted that all the Medical Officers were specifically directed to give the positive opinion with regard to the injury whether it is self‑suffered or not irrespective of the fact that police authorities not enquired about it. He stated that after examining the injured and perusing the report of Radiologist it 'was incumbent upon the appellant to give his positive opinion if the injury was self‑suffered or otherwise, but the appellant in order to support the complainant party deliberately avoided to do so thus committed irregularity and violated the directive issued by the higher ups which amounts to misconduct, therefore, appellant was rightly awarded minor penalty.

5. We have considered the above submissions and have perused the case papers placed on the record. Appellant examined injured Syed Hakim Jan and for verification of any fracture, he referred the injured to Radiologist and on receipt of Ex‑ray film, the appellant gave opinion that there was fracture on little finger of right hand and in his supplementary Medico‑legal Certificate he stated so. The Medical Board in its remarks has nowhere stated that there was no fracture. They simply remarked that from the case history it appears that the injury so sustained by Syed Hakim Jan was self‑suffered, Be that as it may, the fact remains that was none of the business of the Medico‑legal Officer. It is for the concerned Court to determine whether the injury suffered by any of the injured would be self‑suffered and for arriving at such a conclusion the Court had to examine the concerned Doctor so also the Radiologist if need be. So far the directives contained in the letter dated 16‑2‑1989 referred to by the learned Asstt. A.‑G. suffice to say that the same has no legal sanctity in the eye of law. In the show‑cause notice issued to the appellant, it is mentioned that the certificate issued by the appellant was incorrect but surprisingly enough it is nowhere mentioned as how the said certificate was treated as incorrect by the Authorized Officer without mentioning the fact of constitution of Medical Board. The appellant admittedly was not called by the Members of the Bdard in order. to enable him to explain his position. The Medical Board as it appears have gone through the case papers of the said criminal case also in order to arrive at a decision that the injury so suffered by injured Syed Hakim Jan was self‑suffered. There is 'nothing on the record to indicate if the case history was also placed before the appellant at the time when the injured was referred to him. Even otherwise the Medical Officer has nothing to do with the case papers as he has to simply examine the injured and give his expert medical opinion which the appellant has given and as stated earlier there was no dispute that there was in fact fracture on the little finger of right hand of the injured Syed Hakim Jan. There was no mala fide on the part of the appellant, besides, there is noticing on the record to indicate if the appellant deliberately not mentioned in the certificate that injury on the person of Syed Hakim Jan was self‑suffered. In these circumstances, we are of the considered opinion that the penalty imposed against the appellant is neither legal nor proper nor justified.

6. Accordingly, the impugned order dated 4‑9‑2001 is set aside and the appeal is accepted. There will be no order as to cost. (Above are the reasons of our short order dated 26‑6‑2003 whereby the appeal was allowed.) Given under our hands and seal of the Tribunal, this 15th day of July, 2003. H.B.T./130/K.S.T. Appeal accepted.