STATE OF PUNJAB Vs. O C MALHOTRA

JUDGEMENT

(1.) RESPONDENT-plaintiff had filed this suit seeking declaration to the effect that the order sanctioning her leave without pay from 3.5.1976 to 30.5.1976 and refusing her leave from 31.5.1976 to 15.6.1976 was illegal and so too the adverse Annual Confidential Report for the year 1975-76. She appears to have challenged the charge sheet dated 19.4.1978 issued to her being illegal and ultra vires. Plea was that the leave was refused to the respondent-plaintiff, who was working as A.N.M. in Public Health Centre, Dudan Sadan due to malafides. The reasons for this was that father-in-law of the respondent-plaintiff had filed a complaint against Dr. Assa Singh accusing him for charging false T.A. bill for travelling First Class compartment from Faridkot, whereas no First Class ticket had been issued on the said date. Because of this, the impugned order was passed against the respondent-plaintiff.

(2.) THE State contested the suit vehemently denying all the allegations of mala fide attributed to Dr. Assa Singh. On the basis of pleadings, the following issues were famed: 1. Whether the order sanctioning the leave of the plaintiff without pay from 3.5.76 to 30.5.76 and refusing the leave from 31.5.76 to 15.6.76 is illegal, null and void, malafide and against the principles of natural justice and service rules? OPP. 2. Whether the adverse confidential report for the year 1975-76 is illegal, null and void? OPP 3.Whether the charge sheet dated 19.4.76 is illegal, ultravires, null and void? OPP 4. Whether the plaintiff has no cause of action? OPD. 5.Relief.

(3.) IT appears that the appellate Court has passed the impugned order without properly adverting to the provisions in the leave rules. Rule 8.15 of Punjab Civil Service Rules Vol. I Part I Chapter VIII specifically provide that leave cannot be claimed as of right. IT also provides that when the exigencies of the public service so require, discretion to refuse leave of any description is reserved to the authority empowered to grant it. As per Rule 8.16 of the rules, a grant of medical certificate under Rules 8.13 or 8.14 do not confer upon Government employee any right to leave. How to exercise such discretion to an extent is regulated by Rule 8.17 of the leave rules. Rule 8.13 is in the following terms: 8.13. (a) Every application for leave on medical grounds made by a Government employee shall be accompanied by a medical certificate given by a registered medical practitioner or a Valid or Hakim or a Homoeopathic Practitioner defining as nearly as possible the nature and probable duration of the Regular Second Appeal No. 2052 of 1987 4 illness or by a request for the issue of a requisition for examination by a medical officer of the Government : Provided that the authority competent to sanction leave may, at its discretion, waive the condition of producing a medical certificate in the case of a gazetted Government employee if the leave applied for does not exceed three days at a time and such leave shall not be treated as leave on medical certificate and shall be debited against leave due other than the leave on medical grounds. (b) The authority competent to sanction leave may at its discretion, secure a second medical opinion by requesting the Principal Medical Officer or Assistant to the Civil Surgeon to have the applicant examined. If it decides to do so, it must arrange for the second examination to be made at the earliest possible date after the date on which the first medical opinion was given. (c ) The Principal Medical Officer or Assistant to the Civil Surgeon shall express his opinion both as regards the facts of the illness and as regards the necessity for the amount of leave recommended, and for this purpose he may require the applicant for leave to appear either before himself or before a medical officer nominated by him. Note (1) Underneath the rule lays down that the possession of a certificate as prescribed in this rule does not itself confer upon and the Government servant any right to leave. Rule 8.15 as noticed above unequivocally provides that leave cannot be claimed as of right and when the exigencies of public service so require, discretion of refuse or revoke leave of any description (emphasis mine) is reserved to the authority empowered to grant it. Rule 8.16 would make the position further clearer by providing that the grant of certificate under Rule 8.13 does not in itself confer upon a public servant concerned any right to leave. This would be enough to repel the contention that the leave could not be denied if the condition for revocation or refusal are absent. Of course, this discretion, like any other discretion left under statute, has to be exercised legally and cannot be exercised arbitrary. As would be noticed below, the respondent has not been able to establish the allegations of malice. In the cases of P.D. Shakir versus State of Haryana and others 1968 SLR 235 also it is held that competent authority will always have a discretion to refuse or revoke leave of any description. This Court in State of Punjab versus Krishan Murari Lal 1966 Cur.L.J. 968 viewed that Government employee has no right to have leave. The First Appellate Court has relied upon on the deposition of the respondent-plaintiff where she simply stated that the leave was wrongly refused to her. The allegations against Dr. Assa Singh advanced as reason to allege malafide were made in the year 1952 whereas leave issue arose in 1976. IT is too far fetched.