Leave Granting Authority Can Call For Second Medical Opinion Before Deciding On Genuineness Of Employee's Medical Leave: J&K High Court

Citing Rule 19 (III) of the Leave Rules, 1979 Justice Sanjay Dhar observed,

“From a perusal of the aforequoted Rule, it is clear that the competent authority to grant leave has an option of securing a second medical opinion by requesting a Government Medical Officer to have the applicant medically examined”.

Petitioner Bashir Ahmad Wani, serving as the I/C Range Manager, Pattan, in the J&K Forest Development Corporation, was transferred on April 20, 2020. Due to severe back pain, he consulted orthopedic doctors and was advised bed rest. Subsequently, he applied for leave from April 30, 2020, which was later extended until June 19, 2020.

Despite submitting medical records, his absence was treated as unauthorized by the respondents, leading to the impugned dies-non order on December 14, 2020.

Wani contended that his absence was medically justified and supported by medical records. He argued that the respondents neither conducted an inquiry nor provided him with an opportunity to be heard before issuing the dies-non order. Furthermore, he asserted that his application for leave was not properly considered and was arbitrarily rejected.

The respondents countered that Wani's application was submitted via WhatsApp, which they deemed improper. They argued that Wani failed to comply with the transfer order and did not hand over charge, thus warranting the dies-non order.

Court Observations and Judgment:

Justice Dhar after meticulously examining the factual matrix and legal provisions noted that Wani submitted his leave application during the peak of the COVID-19 pandemic, justifying the use of virtual communication.

“Even otherwise, the petitioner has specifically pleaded in his writ petition that he had also sent the application for grant of leave through speed post and in this regard, he has placed on record photocopy of the postal receipt”,the bench recorded.

Justice Dhar highlighted that the respondents could have sought a second medical opinion under Rule 19 (III) of the Leave Rules, 1979, which allows the competent authority to request a government medical officer to examine the applicant. The court found the respondents' failure to exercise this option unreasonable.

Justice Dhar opined,

"If at all the respondents doubted the authenticity of the medical prescriptions produced by the petitioner, they could have very well subjected the petitioner to a fresh medical examination. The respondents have simply denoted absence of the petitioner from duties as 'unauthorized' and without even rejecting his application for grant of leave proceeded to treat the period of his absence as 'dies-non'.”

Underscoring the serious consequences of treating the absence as dies-non, particularly the loss of seniority and other service benefits the court deemed the respondents' decision mechanical and contrary to the record, thereby causing grave prejudice to Wani's rights.

The court thus allowed the writ petition, quashing the dies-non order and directing the regularization of Wani's absence by sanctioning the appropriate leave. The respondents were also instructed to release all consequential service benefits in Wani's favor, thereby restoring his rights and entitlements.

Case Title: BASHIR AHMAD WANI Vs J&K FOREST DEVELOPMENT CORPORATION & OTHERS

Citation: 2024 LiveLaw (JKL) 209

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