1981 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).‑The appellant is aggrieved by the order of S. P., Jhelum dated 22‑11‑1978 dismissing him from service on account of unauthorised absence from duty. He is also aggrieved by the orders of D. I. G., Police, Rawalpindi, dated 28‑3‑1979 and the order dated 31‑12‑1979 passed by the I. G., Police Punjab rejecting his appeal respectively, 2. Briefly the facts so far as relevant and material to this appeal are that in the year 1977 the appellant was posted as Jhelum vide order dated 12‑11‑1977. He was transferred to Special Branch Rawalpindi and was relieved of his duties on 23‑11‑1977. However, instead of taking over his new assignment in Rawalpindi he applied for leave on the basis of certificate issued by the Medical Officer, Mayo Hospital Lahore, dated 26‑11‑1977. In the certificate received from the appellant, the appellant was shown to be suffering from ulcer ‑and the M. O. advised complete bed rest for a period of one month. The appellant applied for leave and he remained off duty till 8‑8‑1978. His leave was not sanctioned but instead he was called upon to show‑cause notice on 8‑5‑1978 by the S. P. In the notice the appellant was required to show cause as to why major penalty including dismissal should not be imposed upon him. Before the issuance of the show -cause notice to verify the plea of the ailment of the appellant, a Police Sub‑Inspector was detailed by the S. P. Special Branch, Rawalpindi to contact the appellant at his home address in District Gujranwala. According to the report of the aforesaid officer, the appellant's face was pale and he apparently appeared sick and he might have been suffering from some internal disease. It is also conceded that the Department did not ask for competent second medical opinion in terms of the Leave Rules, 1978 applicable to the appellant. After the receipt of the reply of appellant and granting him personal hearing the competent authority i.e. S. P. Jhelum held that the appellant was absent from duty. He was accordingly dismissed from service. His appeal to the D. I.‑G. against the aforesaid order and the revision/mercy petition to the I.‑G. Police, Punjab also failed. Hence this appeal was filed before this Tribunal on 2‑2‑1980. 3. In support of this appeal the learned counsel for the appellant contended that the Department was bound to sanction leave on medical ground. However the Department was empowered to seek second medical opinion. The absence of the same, did not entitle the Department to ignore the medical advice given to the appellant. It is thus submitted that the Departmental authorities had no powers to reject the leave. In this connection reliance was placed on In re: Nazir Ahmad v. D. C., Multan (1980 P L C (C. S.) 228) in which this Tribunal observed as under "5. Under these circumstances we are constrained to observe that the respondent has not made out a logical case for adopting the view that the appellant was not actually suffering from dysentry but was only malingering. Assistant Commissioner, who did not allow the leave, substituted his own view for the opinion of the competent Medical Officer without making out any grounds based on any evidence for doing so. Similarly the subsequent leave applications made by the appellant with the corroboration of a qualified medical practi tioner, Multan, were also turned down without advancing any cogent reasons for disbelieving the evidence of the medical expert. We are obliged to come to the conclusion that the Enquiry Officer was so preoccupied with the presumptions and surmises against the appellant that he failed to draw obvious inference that the appellant was genuinely ill and the witness evinced normal sympathy and concern for a person who was obviously suffering from his ailment." The learned counsel also argued that in fact the impugned decisions are purportedly based on the report of the Sub‑inspector who was sent to enquire into the matter by the S. P. Special Branch, Rawalpindi. In the report the aforesaid officer had clearly stated that the appellant was certainly suffering from some ailment. The nature of the ailment could be determined or diagnosed by the qualified Medical Expert only. But the Departmental authorities misreading the report observed that the appellant was not suffering from any ailment which finding was misconceived and contrary to the aforesaid report. With these submissions the learned counsel pressed for acceptance of this appeal. 4. The learned Government Pleader on the other hand argued that if the appellant could visit Lahore in connection with his treatment he could have more conveniently availed himself of the facilities at Jhelum or Rawalpindi where similar medical facilities are available. It is also submitted that the Medical Officer, Mayo Hospital, Lahore was not empowered to issue any medical certificate unless so requested by the Department concerned. However, he has not disputed the contention of the appellant that no second medical advice was obtained in terms of the Leave Rules, 1978 applicable to the employees of the Police Department. With these submis sions he submitted that the appellant was not suffering and failed to attend to his duties and for that reason the Department was justified to reject his request for leave. He also pointed out that the appellant did not make any application for the grant of leave from 26‑11‑1977 to 25‑2‑1978 and from 25‑1‑1578 to 24‑2‑1978 for which period he simply sent medical certificate only. 5. After hearing both the parties and going through the record we are rather inclined to hold that the appellant in fact had been suffering from ailment as suggested in the certificate issued by the Medical Officer, Mayo Hospital, Lahore. The objection as to the competence of Medical Officer, Mayo Hospital to issue the medical certificate may be considered as irregular but it could not possibly detract from his competent to determine or diagnose the ailment from which the appellant was suffering. We are also inclined to depart from the view already expressed by us in the ruling cited by the learned counsel for the appellant that it is for the medical expert to determine the nature and the gravity of the ailment suffered by the civil servant concerned. The Departmental authorities if they doubted the medical opinion were empowered to seek second medical opinion in terms of the Leave Rules; 1978. In the absence of any such attempt on the part of the Departmental authorities we cannot uphold the stance of the Department that the appellant was not suffering from any ailment or that he did not require bed rest as advised by the Medical expert. As regards the lack of application for some period the mere submission of Medical Certificate advising him complete bed rest for the period specified therein was, in our view, self‑evident. If need be a fresh application could be obtained from the appellant for the aforesaid period. , In view of the above this appeal is accepted and the orders passed by the Departmental authorities are set aside. The period of absence of the appellant will be treated as leave due on medical grounds and the appellant will be accordingly entitled to the salary admissible to him for the period in question. As regards the period after his dismissal till the date of acceptance of this appeal the same may be treated at spent on duty. Announced in the presence of the parties.