1988 PLP (C (PLC(CS))

CH. A. RAHMAN KHAN (MEMBER).‑‑Mr. M. M. Sadiq, the appellant has come in appeal against his compulsory retirement from service vide impugned order dated 5th June, 1986. The appellant filed a departmental appeal against the impugned order on 3‑7‑1986 but has received no reply till to date. Hence this appeal to the Tribunal.

2. The facts of the case are that the appellant was serving as a Tele-printer Messenger in the P.I. A at Rawalpindi when he was transferred to Karachi vide order dated 16‑9‑1985. However, he was released from Rawalpindi Office vide order dated 22‑9‑1985 to report on duty at Karachi.

3. The learned counsel for the appellant submitted that on 22‑9‑1985 the appellant applied for one day's Casual Leave as his cousin had died and so left the office in a hurry. Next day due to some fatigue the appellant felt shooting pain in his chest and reported to P.I.A. Medical Officer but was refused treatment on the plea that the appellant was under transfer. He, therefore, rushed to Military Hospital Rawalpindi. He was attended there by Col. Masudul Hasan Nuri, Classified Specialist in Medicines and Cardiology. The specialist advised the appellant rest for four weeks. The appellant applied for four weeks sick leave supported by the medical certificate vide application dated 24‑9‑1985, a copy of which was also handed over to the Enquiry Officer. The appellant joined at Karachi after the expiry of his sick leave of four weeks.

4. It was submitted by the learned counsel for the appellant that a show‑cause notice dated 13‑10‑1985 was issued to the appellant, extract of which is reproduced below:- Show‑Cause Notice dated 13th Oct. 1985. xxxx xxxx xxxx Section‑II Clause 75 (ah): Leaving place of duty without permission of the Officer Incharge.

2. On 23‑9‑1985 when asked to receive your release Order mentioned in the first charge, you left your place of duty without permission of your Officer Incharge. Section‑II Clause 75(h): Absence from duty without leave

3. You are absent from duty without leave w.e.f. 23‑9‑1985 as intimated to you vide our registered Ac‑due letter No.PER/P‑14166/112/85/170, dated 1‑10‑1985 (copy attached herewith), which was duly received by you on 6‑10‑1985 as per the Acknowledgement Receipt. Section‑II Clause 75 (s): Wilful disobedience to any lawful and reasonable order of a superior employee. "

5. It was strongly contended by the learned counsel for the appellant that it was an undeniable fact that the appellant was suffering from Heart Disease even prior to his latest Heart Attack on 23‑9‑1985. The appellant had been admitted in the National Institute of. Cardiovascular Disease at Karachi from 1‑10‑84 to 9‑10‑84 when he was serving there. He was advised rest from 9‑10‑84 to 8‑11‑84 and not to travel for three months. The appellant was declared medically fit only on 21‑3‑85 by the Medical Officer P.I.A. Karachi Airport. All these facts are available with the P.I.A. Administration. The appellant was transferred from Karachi to Rawalpindi on medical grounds vide order 21‑3‑

85. It was contended by the learned counsel for the appellant that only within a period of six months, he was transferred back to Karachi. At that time it was well known that the appellant had earlier been transferred from Karachi to Rawalpindi on medical grounds. It was contended that it was because of this sudden shock of transfer to Karachi within a period of six months that the appellant suffered another Heart Attack on 23‑9‑

85. It was further submitted that the appellant has 24 years of unblemished service to his credit during which he had neither absented nor penalised on any account. It was a pity that in spite of his long service and known Heart Disease which was in the knowledge of the authorities, the appellant was not being treated justly. He was being transferred back and forth without any regard to his serious illness, even when it was supported by medical certificates from Heart Specialists. Mere technicality of not having the medical certificate countersigned by the medical officer of PIA should not deprive him of his right to get himself treated in emergency from a Heart Specialist. If there was any doubt, then medical certificate could have been challenged or else the appellant got re‑examined by another Specialist to have a second opinion. The certificate could also be got countersigned by the P.I.A. Medical Officer unless he had some other objections. All this is, in fact, frivolous which should not have stood in the way of justice and fairplay. The impugned order is, therefore, harsh, unjust and may be set aside.

6. The learned counsel for the respondent contended that the appellant was transferred from Rawalpindi to Karachi vide order 16‑9‑85 but he refused to accept the transfer order and left the office without permission on 22‑9‑

85. He thereafter absented himself from duty. The appellant was called upon to report for duty vide order dated 29‑9‑85 but remained absent. Consequently disciplinary proceedings were set afoot against the appellant and he was served with a show‑cause notice on 13‑10‑

85. The enquiry was conducted by the Enquiry Officer who held the appellant guilty of the charges mentioned in the show‑cause notice: It was submitted that the appellant could not submit his leave application alongwith the medical certificate, unless it was countersigned by the medical officer of P.I.A. Therefore, leave of the appellant was not sanctioned. The appellant had applied for retirement on medical grounds during the pendency of this enquiry vide his application dated 27‑4‑1986 which request was subsequently abandoned by him. It was only in view of the medical certificate and his ailment that the appellant was compulsorily retired with full permissible benefits. The impugned order is, therefore, legal and valid.

7. We have heard both the parties and in view of the above discussion we are of the opinion that the appellant is an old heart patient and had been hospitalised previously on account of this disease at Karachi. Besides, there are a number of medical opinions/ prescriptions by heart Specialists on record to prove the contention of the appellant in this respect. Since the appellant was previously transferred from Karachi to Rawalpindi on medical grounds, in our opinion, it was not fair to post him back to Karachi within a period of six months only. As regards the medical certificate produced by the appellant on account of his heart attack on 23‑9‑85, the medical certificate given by the Heart Specialist should have sufficed under the normal circumstances not to declare him absent from duty. However, A in this case, the P.I.A. did not accept the medical certificate from an outsider, but it could have been got countersigned by the P.I.A. Medical Officer officially. As an alternative, in our opinion, the appellant should have been examined by the P.I.A. Medical Officer when he joined the duty at Karachi on the expiry of four weeks leave. Since the appellant is a known case of heart disease even these formalities are not considered so necessary. No one can predict the timings for the next heart attack. Another Specialist could be asked to give his opinion, if considered, necessary.

8. In view of the foregoing, we are of the considered view that, the impugned order of compulsory retirement of the appellant is rather harsh. He has 24 years of unblemished service to his credit and‑his, heart disease is well known. He deserves better deal. We, therefore, accept the appeal and reinstate the appellant in service with full benefits. Ordered accordingly.

9. Parties to be informed. A.A. /390/Sr.F Appeal accepted.