1990 PLP 193 (SCMR)

Name

Appointment‑ Age Total service Previous periods of leave of absence on medical certificate. Habits Disease‑ District Health Officer or Medical Officer at or of after careful personal examination of the case hereby certify that‑‑‑‑‑‑‑‑‑‑ is in a bad state of health, and I solemnly and sincerely declare that, according to the best of my judgment, a period of absence from duty is essentially necessary for the recovery of his health, and recommend that he may be granted‑‑‑‑‑‑‑months' leave with effect from ‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Dated the District Health Officer or Official Medical Attendant." So far as Rule 8.9 is concerned it requires the Government servant after having secured the certificate under Rule 8.8 except in cases covered by Rule 8.12, to obtain permission of the Head of his office or if he himself is the Head of the office, Head of his Department to appear before the Medical Committee or Board.

8. Admittedly the respondent did not comply with Rule 8.8 ibid. Indeed the Tribunal observed that "We notice that no serious objection was taken by the two so officers to the Medical Certificates submitted by the appellant except to state that they should have been from a Government doctor or hospital," and placed reliance on Rule 3(iv) of the Leave Rules of 5‑11‑1978, but did not consider that respondent had failed to fulfil the requirement of Rule 8.8 which was necessary particularly when the appellant had asked him to do so. In support of the charge that the respondent intentionally and wilfully avoided to join the duty at Lahore the appellant in their parawise comments relied on paragraph 3 of the review petition a copy whereof was filed by the respondent himself before Tribunal which reads as follows:‑‑ "Likewise, I do not see anything odd about a man trying to secure the posting of his liking. If an officer is posted at the choice station and in congenial conditions, he would give off much better than when posted under unfavourable conditions. So to secure a posting of one's choice is as much in the interest of Government as in one's own interest. Why should Government come down so severely on a person who though indirectly is assessor to her interest? In fact I am of the opinion that each Government Officer be asked to give 3 best desired posting stations, 3 worst feared places and every effort be made to accommodate the incumbent on one of the 3 former places or at least he should be kept away from 3 of the latter named places as far as possible which will not only reduce the string pulling in this regard but would result in better performance on the part of the officers."

9. Dealing with this point the Tribunal observed that "In the parawise comments on the appeal it is stated that the appellant's wiflul absence was reflected from para. 3 of his review petition of August 1980 in which he has tried to justify his own (or any officer's for that matter) desire to secure a congenial post or station of posting. On principle we see nothing heretical or radical or mutinous in that observation. If such an attempt is made by a civil servant, but strictly in keeping with the demands of discipline and good behavior, there should be nothing untoward in it."

10. It is submitted that these observations overlook the background in which para. 3 of the review petition was written i.e. the respondent was wilfully avoiding to join the new post on transfer by feigning sickness and therefore they were not justified. We agree that the contents of paragraph 3 of the review petition should' have been looked in the background as stated by the learned Assistant Advocate General and which if so, looked support the departmental action, moreso when the respondent was examined by Medical Board he was found `free from all abnormalities' which means that the leave applied for was on a false ground of sickness. The Tribunal in our view was also not justified in observing that "in fact the Medical Board was an exercise in futility so far as its view about an old sickness was concerned; it merely served the purpose of establishing that on the day of the examination the appellant was fit to resume duty as it did not take into consideration that the respondent was required to appear before the Board on 22‑11‑1979 but in fact he appeared on 6‑1‑1980. If the sickness was genuine he would not have avoided to appear before the Board so long. He could not be allowed benefit of doubt and his own act of omission without a satisfactory explanation for the same. The action taken against him in our view was just and proper to maintain discipline in the service.

11. We, therefore, allow this appeal and set aside the order of Punjab Service Tribunal dated 29‑10‑1981 and restore that of the department, leaving the parties to bear their own costs. These are the reasons for the short order passed earlier. AA./S‑445/S Appeal allowed.