D.K.SETH, J. - (1.) I have the privilege of going through the judgment and order of brother SINHA, J. I fully agree with the same. However, I would like to add a few words of mine. The order of dismissal of the petitioner/appellant from service was set aside by an order dated April 28, 1995 passed in C.O. No. 1888 (W) of 1993 with direction upon the disciplinary authority to consider the representation of the appellant/petitioner against the enquiry report and to pass an appropriate order. The representation having been rejected by the disciplinary authority after such consideration, another writ petition challenging the merit of the decision of the disciplinary authority and that of the appellate authority. This appeal is directed against the order dated April 11, 2002 passed by the learned single Judge in C. O. No. 18735 (W) of 1996 dismissing the said writ petition. Appellant's submission:
(2.) Mr. Moitra, learned counsel for the appellant, submits that the learned single Judge had failed to note the infirmities in the enquiry report and ought to have quashed the enquiry report itself. He had made his submission on various grounds. The charge-sheet was issued against the petitioner requiring him to show-cause on the following charges viz. unauthorised absence for more than seven consecutive days from April 20, 1991 without furnishing medical certificate from a panel doctor along with the petitioner's leave application and wilful absence and insubordination by absenting from duty since April 20, 2001 despite repeated advice from time to time which amounts to maligning or feigning illness as per clause 20. 03. 34 of the HMT Disciplinary and Appeal Rules. According to Mr. Moitra, the Rules permit treatment in case of necessity or emergency by doctors outside the panel. There is no bar in getting oneself treated by doctors other than the panel doctors.
(3.) The first ground of challenge was that the entire action and exercise of power by the respondents commencing from dealing with the petitioner's leave application supported by the medical certificate issued by a non-panel doctor; initiation of the disciplinary proceedings; conduct of the enquiry proceeding and the enquiry report made thereon as well as the order of dismissal passed by the disciplinary authority and the order of dismissal of the appeal were passed on the superseded Leave Rules vide Office Order No. 1/85 dated April 2, 1985, which requires the employees to avail of medical treatment from any panel doctor or specialist. The amended Leave Rule vide Office Order No. 45/88 dated January 28. 1989, which superseded the aforesaid Leave Rules was not taken into consideration by the respondent authorities under which it is not mandatory to apply for sick leave supported by medical certificate issued by the panel doctor.;