# Dr. Pramod Kishore Sharma v. State of U.P

- **Citation:** (2014) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-02
- **Case number:** Service Bench No. 1699 of 2008
- **Bench:** Devi Prasad Singh, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-pramod-kishore-sharma-v-state-of-u-p-42962
- **Pages:** 5

## Headnote

C.S.C.

Financial Hand Book-Volume II to IVRule 81-B-(2)- Grant of medical leave-for
exceeding 12 month-through out service
carrier-medical
board
already
recommended
for
medical
leave-not
open for government to sit over on
opinion of medical board-taking different
view contrary to provisions of financial
hand book-not sustainable-direction for
fresh consideration issued.

Held: Para-10
It is well settled proposition of law that
the proviso contained in statutes are the
exceptions to main provisions and in
1 All] Dr. Pramod Kishore Sharma Vs. State of U.P.
165
appropriate cases, the benefits available
to the government employees in terms of
the said proviso should be provided after
considering the material on record. In
the present case, since the Medical
Board has recommended for grant of
medical leave, it is not open for the State
Government to take a different view
without assigning any reason.

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses namely, Bechu and one Kamlesh
and a general statement to the effect that
witnesses helped him to extinguish the fire.
The learned Magistrate examined three
witnesses before passing the impugned order.
Apparently, only Kamlesh was not produced.

(7) Learned revisionist has claimed
that non examination of Kamlesh would
vitiate the summoning order. I am afraid that
the learned counsel for revisionist is giving
too much emphasis to the word 'shall'
employed in proviso 202 (2) Cr.P.C. because
the proviso entails that Magistrate shall call
upon the complainant to produce all his
witnesses and examine them on oath. The
word
'his
witnesses'
is
not
without
significance. It denotes that complainant can
choose his witnesses and can adduce the
testimony of only those witnesses upon
whom he intends to rely.

(8) The Apex Court in Shivjee Singh
Vs. Nagendra Tiwary reported in 2010 7
SCC 578 has further clarified the legal
position. The Apex Court has held that
examination of all witnesses cited in the
complaint is not a condition precedent for
issuance of process against the persons
named as accused in the complaint. The
Apex Court has held thus:

As a sequel to the above discussions,
we hold that examination of all the
witnesses cited in the complaint or whose
names are disclosed by the complainant
in furtherance of the direction given by
the Magistrate in terms of proviso to
Section 202(2) is not a condition
precedent for taking cognizance and issue
of process against the persons named as
accused in the complaint and the High
Court
committed
serious
error
in
directing the Chief Judicial Magistrate to
conduct further inquiry and pass fresh
order in the light of proviso to Section
202 (2).

(9) In view of the aforesaid
judgment of the Apex Court, present
revision is not sustainable and liable to be
rejected.
The
criminal
revision
is
accordingly dismissed.

(10) Let a copy of this order be sent
to the concerned trial court within fifteen
days for compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHOK PAL SINGH, J.

Service Bench No. 1699 of 2008

Dr. Pramod Kishore Sharma... Petitioner
Versus
State of U.P. .... Respondent

Counsel for the Petitioner:
Sri Anil Kumar Tiwari, Sri I.P. Singh
Sri V.S. Tripathi

Counsel for the Respondents:
C.S.C.

Financial Hand Book-Volume II to IVRule 81-B-(2)- Grant of medical leave-for
exceeding 12 month-through out service
carrier-medical
board
already
recommended
for
medical
leave-not
open for government to sit over on
opinion of medical board-taking different
view contrary to provisions of financial
hand book-not sustainable-direction for
fresh consideration issued.

Held: Para-10
It is well settled proposition of law that
the proviso contained in statutes are the
exceptions to main provisions and in
1 All] Dr. Pramod Kishore Sharma Vs. State of U.P.
165
appropriate cases, the benefits available
to the government employees in terms of
the said proviso should be provided after
considering the material on record. In
the present case, since the Medical
Board has recommended for grant of
medical leave, it is not open for the State
Government to take a different view
without assigning any reason.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
parties and perused the record.

2. The present writ petition under
Article 226 of the Constitution of India
has been preferred by the petitioner
feeling aggrieved with the impugned
order dated 19th April, 1999 by which the
opposite parties have declined to grant
medical leave to the petitioner for the
period from 17th April, 1997 to 13th
October,
1997
inspite
of
opinion
expressed by the Medical Board for grant
of medical leave. The petitioner has
further prayed for issuance of a writ, order
or direction in the nature of mandamus
commanding the opposite parties to
release the amount of Rs. 1,48,218.40/- in
lieu of medical expenses incurred in his
treatment.

3. The petitioner, a P.H.M.S. Doctor
was assaulted by the anti social elements on
6th June, 1996 while discharging his duties
at Primary Health Centre, Amawan, districtRaebareli. On account of murderous assault
by the anti social elements, the petitioner
suffered with the fractures of his both legs
and right hand alongwith other grievous
injuries. In consequence thereof, the
petitioner had undergone the medical
treatment in different hospitals from 6th
June, 1996 to 13th October, 1997. For the
period during which the petitioner had
undergone medical treatment, he had
applied for medical leave. The Medical
Board vide its opinion dated 25th October,
1997 has recommended for grant of medical
leave to petitioner from 7th June, 1996 to
13th October, 1997. The petitioner has also
moved an application for reimbursement of
medical expenses to the tune of Rs.
1,48,218.40/-. However, the government
has sanctioned the leave to the petitioner
without pay for the period from 17th April,
1997 to 13th October, 1997 vide its order
dated 19th April, 1999, as contained in
Annexure No. 6 to the writ petition. Feeling
aggrieved with the order dated 19th April,
1999 (Annexure No. 6 to the writ petition)
and also non reimbursement of medical
expenses, the petitioner has approached this
court by filing the instant writ petition.

4. During the pendency of instant
writ petition, the State Government has
reimbursed an amount to the tune of Rs.
1,39,962.00/- on 15th February, 2010 to
the
petitioner.
Accordingly,
the
substantial amount with regard to medical
expenses has been reimbursed to the
petitioner by the State Government in the
year
2010
(Supra).
However,
the
grievance remains with regard to leave
sanctioned by the State Government
without salary by the impugned order
dated 19th April, 1999.

5. Attention of this court has been
invited by learned counsel for the
petitioner towards Rule 81-B (2) of the
Financial Hand Book Volume-II (Parts II
to IV). For convenience, relevant portion
of Rule 81-B (2) of the Financial Hand
Book Volume-II (Parts-II to IV) is
reproduced as under :-

"(2) Leave on medical certificate.(i)
A Government servant to whom these
166 INDIAN LAW REPORTS ALLAHABAD SERIES
rules apply may be granted leave on
medical certificate not exceeding twelve
months in all during his entire service.
Such leave shall be given only on
production of a certificate from such
medical authority as the Governor may,
by general or special order, specify in this
behalf and for a period not exceeding that
recommended by such medical authority :

Provided that when the maximum
period of twelve months is exhausted,
further leave on medical certificate not
exceeding six months in all during entire
service may be granted, in exceptional
cases on the recommendations of a
medical board:

Provided further that in all cases in
which Government servants may have
before the date of application of these
rules to them availed of leave on medical
certificate under Fundamental Rule 81-B
and Subsidiary Rules 157 or 157-A, as the
case may be, the period of such leave
availed of, under Fundamental Rule 81-B
and Subsidiary Rule 157-A, as the case
may be, and half the period of such leave
availed of under Subsidiary Rule 157,
shall be taken into account in calculating
the leave due to them under this rule.

(ii) Under this rule, leave upto sixty
days may be granted by the competent
authority on recommendation of the
authorised
medical
authority.
Leave
exceeding this period may not be granted
unless the competent authority is satisfied
that there is a reasonable probability that
the Government servant will be fit to
return to duty on the expiry of the leave
applied for :

Provided that when a Government
servant dies during the treatment of his
illness and the medical leave is otherwise
due to such Government servant, the
authority competent to grant leave shall
sanction the medical leave."

6. From a plain reading of the
aforesaid provisions contained in the
Financial Hand book, it appears that
under the said rules, medical leave can be
granted not exceeding 12 months during
the entire service period. However, under
the proviso, an additional medical leave
of six months may also be granted during
the entire service period in exceptional
cases on the recommendation of the
Medical Board. Accordingly, the medical
leave may be sanctioned by the State
Government for the period of 18 months
subject to recommendation of the Medical
Board.

7. In the present case, it is not
disputed that the petitioner was assaulted
by the anti social elements while he was
discharging his duties in the Primary
Health Centre, Amawan, Raebareli and he
suffered with the fractures of his both legs
and right hand alongwith other grievous
injuries and had undergone for prolonged
treatment in different medical hospitals.
Keeping in view the injuries caused and
the question with regard to injuries
suffered by the petitioner and the
treatment provided thereon was the
subject matter for consideration by the
Medical Board. The Medical Board on
25th October, 1997, recommended for
grant of medical leave in accordance to
rules for the period from 17th June, 1996
to 13th October, 1997. The opinion of the
Medical Board as contained in Annexure
No. 3 to the writ petition, in its totality is
reproduced as under :-

eq[; fpfdRlk vf/kdkjh] y[kuÅ ds dk;kZy;
esa fnukad 22-10-97 dks vk;ksftr e.Myh; fpfdRlk
ifj"kn y[kuÅ] m0 iz0 dh cSBd dh dk;Zokgh Jh
Mk0 ih0 ds0 'kekZ fpfdRlk vf/kdkjh] tuin
jk;cjsyh ds laca/k esaA
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
&&&&&&&&&&&&&&&
1 All] Dr. Pramod Kishore Sharma Vs. State of U.P.
167

eq[; fpfdRlk vf/kdkjh jk;cjsyh ds i=
la[;k - 9995-2 fnukad 17-10-97 ds lanHZk esa Mk0
ih0 ds0 'kekZ fpfdRlkf/kdkjh vius LokLF; ijh{k.k
gsrq eaMyh; fpfdRlh; ifj"kn m0 iz0] y[kuÅ ds
le{k mifLFkr gq;s ifj"kn }kjk Mk0 ih0 ds0 'kekZ
dk LokLF; ijh{k.k ,oa fpfdRlk vfHkys[kksa dk
fujh{k.k fd;k x;kA Mk0 ih0 ds 'kekZ vius dk;Z gsrq
LoLF; ik;s x;s] fpfdRlk vfHkys[kksa ds vk/kkj ij
e.Myh; fpfdRlk ifj"kn y[kuÅ }kjk Mk0 ih0 ds0
'kekZ dks fnukad 7-6-96 ls fnukad 13-10-97 rd ds
fu;ekuqlkj vuqeU; fpfdRlk vodk'k dh laLrqfr
dh tkrh gSA

g0 viBuh; g0 viBuh;
 25-10-97
lnL; ,oa lfpo ,oa eq[; fpfd0
foHkkxk/;{k us= foHkkx y[kuÅ g0 viBuh;

esfMdy dkWyst y[kuÅ v?;{k ,oa vij
funs'kd

fp0 Lok0 y[kuÅ e.My y[kuÅ

dk;kZy; eq[; fpfdRlkf/kdkjh] y[kuÅA

la[;k ch&7@8&97&5767 fnukad 22-1097@3-11-97

ewy :i esa eq[; fpfdRlkf/kdkjh jk;cjsyh dks
muds i= la[;k 9995&2 fnukad 17-2-97 ds lanHkZ esa
mDr Ik= ds LkaYkXUdks lfgr vko';d vfxze
dk;Zokgh gsrq izsf"krA mijksDrkuqlkj

mi eq[; fpfdRlkf/kdkjh

d`rs eq[; fpfdRlkf/kdkjh] y[kuÅ

8. A plain reading of the opinion of
the Medial Board seems to make out a case
for grant of medical leave under the terms
of provisions contained in Clause-2 of Rule
81-B of the Financial Hand-Book (Supra).
The provisions contained in the said
Financial Hand-Book (Supra) entitles a
government servant to obtain medical leave
ordinarily for the period of 12 months in all
during his entire service only on production
of a certificate from such Medical Authority
as the Governor may, in general or by
special order, specify in this behalf.
However, an additional medical leave for a
period of six months may also be granted in
the case after a period of 12 months is
exhausted on the recommendation of the
Medical Board. The Legislature to their
wisdom under the Proviso has used the
words " Further leave on medical certificate
not exceeding six months". It means that an
additional medical leave of six months may
be granted to a government servant during
the entire period of his service on the
recommendation of the Medical Board.
Accordingly, when the petitioner suffered
with the injuries caused by the assailants on
6th June, 1996 and undergone for a
prolonged medical treatment in different
hospitals, then, after expiry of period of 12
months, an additional leave upto six months
could have been granted to the petitioner
keeping in view the unfortunate incident in
which he suffered grievous injuries. Only
rider imposed by the Financial Hand-Book
is that an additional leave of six months
shall be exceptional that too on the
recommendation of the Medical Board. In
the present case, admittedly, the Medical
Board has recommended for grant of
medical leave from 7th June, 1996 to 13th
October, 1997. The members of the
Medical Board are the experts of the field
and ordinarily, it is not open for the State
Government to take a different view than
what has been expressed and recommended
by the Medical Board. In case, the State
Government wants to take a different view
than what has been expressed by the
Medical Board, then, it must give justifiable
reasons for doing so. The provisions
contained
in
the
Financial
HandBook(Supra) are the financial provisions
and ordinarily its benefits must be given to
government employees in case, they have
undergone a prolonged medical treatment
for their ailments or injuries. Once, the
injuries have not been disputed followed by
the prolonged medical treatment, there
appears no reason for the State Government
to sanction the leave without pay in
contravention of the recommendation of the
Medical Board.
168 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The impugned order passed by the
State Government seems to suffer from
non application of mind to the statutory
rights available to the petitioner in terms
of the provisions contained in Financial
Hand-Book (Supra).

10. It is well settled proposition of
law that the proviso contained in statutes
are the exceptions to main provisions and
in appropriate cases, the benefits available
to the government employees in terms of
the said proviso should be provided after
considering the material on record. In the
present case, since the Medical Board has
recommended for grant of medical leave,
it is not open for the State Government to
take a different view without assigning
any reason.

11. Accordingly, the impugned
order seems to have been passed
arbitrarily without keeping in view the
true spirit of the provisions contained in
the Financial Hand-Book. Hence, not
sustainable in law.

12. Since, the petitioner has been
paid the outstanding dues with regard to
medical reimbursement, no further order
is required to be passed by this court.
However, the impugned order being not
sustainable, as held hereinabove, the writ
petition
deserves
to
be
allowed.
Accordingly, the writ petition is allowed.

13. A writ in the nature of certiorari
is issued quashing the order dated 19th
April, 1999 as contained in Annexure No.
6
to
sthe
writ
petition,
with
all
consequential benefits.

14. A writ in the nature of
mandamus is also issued directing the
State Government to pass a fresh order
with regard to medical leave of the
petitioner
keeping
in
view
the
observations made in the present order
expeditiously say preferably within a
period of two months from the date of
receipt of a certified copy of the present
order.

15. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2014

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Consolidation No. 1901 of 1983

Saeeduddin... .Petitioner
Versus
D.D.C and Ors.... Respondents

Counsel for the Petitioner:
Sri K.P. Singh, Sri A.S. Chaudhary, Sri P.V.
Chaudhary

Counsel for the Respondents:
C.S.C., Sri Om Nam Shukla, Sri P.S.
Chaudhary, Sri Rajendra Prasad Yadav,
Sri Sampurnanand, Sri V.R. Singh

C.P.C.
Section-11-Resjudicata-filing
of
plaint of earlier suit not-required-even exparte decree-under order 9 rule 9 CPCbinding-between
the
parties
unlesschallenged otherwise-consolidation officer
as well D.D.C-rightly held the bar of section
11 C.P.C.-petition dismissed.

Held: Para-7
The burden to establish that summon
was not served upon him was on
defendant of that suit which could not be
shifted on the plaintiff while determining
as to whether an ex parte decree would
operate as res judicata against him or
not. In this division bench authority, it
has also been held that it is not