1984 PLP (C (PLC(CS))

2. By virtue of this appeal the appellant has prayed that the impugned order of his removal from service, dated 26th December, 1981 be declared to be void, without jurisdiction and mala fide and he be re‑instate in service w. e. f the date of his removal.

3. Brief facts of the case are that the appellant, Mr. Saleem Azi Khan, was working as Draftsman in the office of Conservator of Forests Multan Circle, Multan, in September, 1981. The appellant requested o 13th September, 1981 and 23rd September, 1981 to respondent No. 1 for issue of docket to Medical Superintendent, Multan, for medical examination being sick. As no docket was issued to the appellant, the appellant who needed medical treatment, got himself examined from the Medical Superintendent, Civil Hospital, Multan on 28th September, 1981, who recommended him leave from 29th September, 1981 for one month. The appellant applied for leave vide his application, dated 1st October, 1981 on the basis of this medical certificate. In the meanwhile, the appellant on 3rd October, 1981 received his transfer order transferring him from Multan to Rawalpindi. Respondent No. 1 did not entertain his application for leave, dated 1st October, 1981 and the appellant was advised to proceed to Rawalpindi, as he was under transfer. The appellant could not do so as he was sick and made requests for the leave from 29th September, 1981 to 28th October, 1981 on the basis of the certificate issued by the Medical Superintendent, Civil Hospital, Multan and from 29th October, 1981 to 27th November, 1981 on the basis of a certificate issued by a private Doctor M. Y. Azhar from Lahore and also asked for a docket in the name of the Medical Superintendent, Services Hospital, Lahore, from respondent No. 1, Conservator of Forests, Multan Circle, Multan. No such docket was issued by the Conservator of Forests, Multan Circle, Multan, in spite of the fact, that the said officer was directed by Chief Conservator of Forests, Punjab, Lahore, vide his order, dated 19th December, 1981 to do so. In the meanwhile, the appellant was served with a show‑cause notice vide respondent No. 1 letter, dated 25th November, 1981 directing him to submit his written defence, for not complying with the transfer order and being on leave without sanction, within 10 days of the receipt of show cause notice and also to appear before him on 15th November, 1981 for personal hearing. The explanation submitted by the appellant was consi dered by respondent No. 1 and found unsatisfactory. The appellant, however, could not avail the opportunity of personal hearing. He was removed from service w. e. f. 29th September, 1981 by respondent No. 1 vide his order, dated 26th December, 1981. He made an appeal on 25th January, 1982 to his department which is still pending. Hence this appeal.

4. The appellant has argued his case and has submitted that he was sick and was granted medical leave in the month of July, 1981 and August, 1981 by respondent No. 1 himself (Annexure `C'). He again .fell ill in the month of September, 1981 and he requested for a docket for medical examination to be done by Medical Superintendent, Civil Hospital, Multan from respondent No. 1 which was refused. As he had no alternative, he went to the Medical Superintendent, Civil Hospital, Multan himself, got him examined and he was recommended leave for one month w. e, f. 29th September, 1981 by Medical Superintendent, Civil Hospital, Multan (Annexure `K'). He requested for sanction of leave by respondent No. 1 accordingly. He being sick and needed further treatment, he came to Lahore and sent another medical certificate of private Doctor from Lahore and applied for sanction of further leave. He also requested for a docket for Medical Superintendent, Services Hospital, Lahore from respondent No.

1. All these facts are well‑supported by the documents attached with his application. Thus, it is clear that he was a sick man and the action of the respondent . No. 1 in serving upon him a show‑cause notice was prejudiced and not justified. He did not disobey any order of Respondent No. 1 as he was actually sick and was not in a position to perform the duties. He further submitted that he applied for leave alongwith the medical certificates and as such he could not be refused the leave as per Advised Leave Rules, 1978 and was entitled for the same. The appellant submitted that the impugned order of his removal from service was thus uncalled for, void ab initio and prayed for its quashment. On the other hand, the learned District Attorney argued that the appellant absented himself from duty knowing fully well that he was transferred from Multan to Rawalpindi and was avoiding wilfully to comply with the transfer orders under the cover of medical leave. Thus the appellant has been removed from service correctly and lawfully as the charge of misconduct of wilful absence from duty stand proved against him.

5. We have given our anxious thought to the arguments of the parties and have also consulted the material put by the appellant on the record. The record shows that the appellant was a sick man and he was granted leave on medical grounds during the month of July and August, 1981, by Conservator or Forests, Multan Circle, Multan, respondent No. 1 who has passed the impugned order of his removal from service. The medical certificate of Medical Superintendent, Civil Hospital, Multan dated 28th September, 1981 recommending the appellant's leave from 29th September, 1981 for one month shows that the appellant was sick and not able to perform the duty. Later on another certificate was also issued by a doctor from Lahore. This all proved and confirmed that the appellant was not pretending but on the other hand he was actually sick. The impugned order, dated 26th December, 1981 by which the appellant was removed from service is also contradictory. It has been mentioned that the appellant did not obey the transfer orders issued by the Chief Conser vator of Forests, endorsed on 30th September, 1981 by the respondent No.

1. Thus, leave could not be granted to him as he was under order of transfer. The respondent No. 1 who has passed the impugned order has himself mentioned in this order that Medical Superintendent, Civil Hospi tal, Multan has recommended him the leave on 28th September, 1981 for the period from 29th September, 1981 to 28th October, 1981. It, thus, proves that the appellant was recommended for leave by Medical Superin tendent, Civil Hospital, Multan on 28th September, 1981 when the transfer order was endorsed by respondent No. 1 himself to the appellant on 30th September, 1981. It is also clear from the letter of respondent No. 1, dated 7th October, 1981 addressed to the appellant (Annexure 'N') that these transfer orders were received by the appellant on 3rd October, 1981 while he applied for leave on 1st October, 1981. Thus, a genuine request had been made by the appellant for medical leave before the receipt of his transfer orders. It is, thus, clear that the Respondent No. 1 while passing the impugned order dated 26th December, 1981 had not applied his mind fully and had not gone carefully into the facts of this case. He had him self given the appellant medical leave during the months of July and August, 1981, and it was in his knowledge that the appellant was not keeping good health and was a sick man. Even he ignored the orders of the Chief Conservator of Forests, Punjab, dated 19th December, 1981, wherein he was directed to issue the appellant a docket for medical exami nation by Medical Superintendent, Services Hospital, Lahore to find out the truth of the case (Annexure `BB'). Instead of issuing a docket as directed above, the Respondent No. 1 hastely passed his order, dated 26th December, 1981 without complying with the orders of the Chief Conserva tor of Forests and also without considering the fact that the appellant was not pretending to obey his orders but was actually a sick person. The appellant was also not heard in person. No doubt the appellant did not appear for personal hearing on a given date, but under the circumstances of the case it was necessary to give him another opportunity to be heard in person so that this matter could have been thrashed out properly before passing the impugned order. Thus it is proved beyond doubts that the respondent No. 1 has passed the impugned order in haste, without going into the facts of the case. He also did not care to look into the medical leave entitlement to a civil servant as per Revised Leave Rules, 1978 which are reproduced below: ‑ GOVERNMENT OF THE PUNJAB FINANCE DEPARTMENT Dated Lahore, the 5th November, 1978. Subject: REVISION OF LEAVE RULES FOR CIVIL SERVANTS. 3. (iv) Leave applied for on medical certificate should not be refused. The competent authority 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."

7. A perusal of the above Leave Rules would show that the appellant was entitled to the medical leave applied by him under the circumstances, when he had supplied the medical certificates alongwith the leave applica tions and leave should not had been refused to him. He had supplied a medical certificate from Medical Superintendent, Civil Hospital, Multan for the period from 29th September, 1981 to 28th October, 1981. The appellant also submitted another medical certificate from another doctor from Lahore. Furthermore, the respondent No. 1 could have got him examined from Medical Superintendent. Services Hospital, Lahore, if' he wanted so but he did not do so even though ne was directed by Chief Conser vator of Forests to do so. Thus, it is clear that the impugned order passed by respondent No. 1, dated 26th December, 1981 is not a valid order as itl has not been passed by him after applying proper mind in accordance with the actual facts.

8. Keeping the above analysis in view, we hold that the impugned order No. 114/CFM, dated 26th December, 1981 of Conservator of Forests, Multan Circle, Multan has not been validly and lawfully passed and is set aside. The appellant is directed to be re‑instated in service from the date of his removal i. e., 29th September, 1981. The period, from the date of his removal from service to that of re‑instatement, will be treated as leave of kind due. There will be no orders as to costs. Judgment be communicated to the parties. Appeal accepted.