JUDGMENT AND ORDER : Heard Mr. B. Banerjee, learned counsel appearing for the petitioner as well as Mr. B. Datta, learned counsel appearing for the respondents. 2. By means of this petition, the petitioner has challenged the memorandum No.F.6(02)PWD(E-II)/92(PTV-II)/3181-83 dated 30.04.2016 and the memorandum No.F.05(69)/EE-IED/AMB/2016-17/786-89 dated 15.06.2016 whereby the petitioner has been asked why the period from 19.01.2005 to 27.07.2005 (190 days) shall not be treated as unauthorized absence and the said period shall not be treated as dies-non for the petitioner’s unauthorized absence. The petitioner has additionally prayed for release of his pay and allowances of the said period. 3. Mr. B. Banerjee, learned counsel appearing for the petitioner has submitted that since the petitioner was suffering from lumbar spondylosis, he was compelled to be away from the duty on medical advice. He has submitted the illness certificates from the doctor who treated him during this period. The said doctor is a member of the Tripura Health Service. On filing of the fitness certificates, the petitioner had asked for regularization of the absence by leave on medical ground, but the said leave was not granted. Mr. Banerjee, learned counsel having referred to the communication of the Superintending Engineer dated 04.01.2006 [Annexure6 to the writ petition] has contended that the Superintending Engineer has clearly observed in the said communication as under: “But after lapse of 189(one hundred eighty nine) days i.e. up to 27.07.2005 he has submitted his joining report on 28.07.2005 to the I/E Section, Kailashahar alongwith a leave application praying for grant of 189 days Commuted leave and Earned leave in prescribed form on Medical ground for the period from 19.01.2005 to 27.07.2005 and Shri. Banik, Helper Gr.II also submitted 6(six) Nos. Medical illness certificate & 1(one) No. fitness certificate.” 4. Mr. B. Banerjee, learned counsel appearing for the petitioner has submitted that when a Government Medical Officer issued the illness certificates with medical advice for being confined to the bed and later on, on recuperation, issued by the certificate of fitness, it was the duty of the employer to sanction the leave against the leave credited in the leave account and release the pay and allowances for the said period of absence. But without doing that, the petitioner was sent to a medical board when the medical board has strangely observed that the certificates were not authenticated by ‘any supporting document’. 5. But without doing that, the petitioner was sent to a medical board when the medical board has strangely observed that the certificates were not authenticated by ‘any supporting document’. 5. The medical board sat on 27.01.2011 i.e. almost after 6(six) years of illness. The finding of the medical board is absolutely irrational as there is no observation whether the petitioner had suffered from that illness or he required the confinement as suggested by the Medical Officer or not. Simply on the ground that the illness certificates ‘are not authenticated by any supporting documents’ they held that the absence could not be justified. Even all the medical certificates as produced before the competent authority, as it appear from the report of the Medical Board dated 17.12.2012, were not considered by the Medical Board. Mr. B. Banerjee, learned counsel did not forget to mention that the observation of the Medical Board was not known to the petitioner till the petitioner received a copy of the reply filed by the respondents. According to Mr. Banerjee, learned counsel, the memorandum dated 30.04.2016 has been issued on an absolutely unsustainable premise. It has been observed in the memorandum dated 30.04.2016 that the petitioner has not appeared before the Standing Medical Board, GBP Hospital and the said nonappearance has been confirmed by the letter dated 04.12.2012 of the Executive Engineer, Internal Electrification Division, Dhalai Tripura. The said letter dated 04.12.2012 has also not been placed with the records. However, Mr. Banerjee, learned counsel has referred another communication dated 04.03.2006 written to the Chairman, Standing Medical Board, GBP Hospital by the Executive Engineer, Internal Electrification Division [Annexure7 to the writ petition] wherefrom it appears as under: “I am to inform you that one Sri Subash Ranjan Banik, Sr. Helper 1 under the control of this Division has availed 190(one hundred ninety) days Earned leave and commuted leave for the period from 19.01.2005 to 27.07.2005 on Medical ground and submitted Medical illness and fitness certificate in support of his illness alongwith joining report for granting the above mentioned leave. In view of the above, I am sending herewith photo copy of 1(one) No leave application 1(one) No. Fitness and 6(six) Nos. Medical illness certificate of Sri Subash Rn. Banik, Sr. In view of the above, I am sending herewith photo copy of 1(one) No leave application 1(one) No. Fitness and 6(six) Nos. Medical illness certificate of Sri Subash Rn. Banik, Sr. Helper with the request to kindly examine him in respect to his health after duly examination of Medical certificate as submitted by him and a report may please be sent to this office for regularization of his leave. An early action is therefore requested.” 6. Mr. Banerjee, learned counsel appearing for the petitioner has contended that all the 6(six) illness certificates were referred to the Standing Medical Board, but the board did not examine all the illness certificates as from the report it clearly transpires that only 3(three) illness certificates were considered by the Medical Board. Therefore, the opinion of the medical board is wholly unreasonable and a product of non-examination. The report of the medical board therefore cannot have any value. 7. Mr. Banerjee, learned counsel appearing for the petitioner has further asserted that even before issuing the impugned memorandum dated 30.04.2016, the Chief Engineer PWD (R & B) did not have the report of the medical board in his custody and the same would be apparent from the communication dated 08.11.2016 [Annexure-R/3 to the reply filed by the respondents]. Mr. Banerjee, learned counsel has further submitted that the premise on which the impugned memorandum dated 30.04.2016 has been issued can be located in the communication dated 15.06.2016 where the Executive Engineer has observed as under: “His reply regarding absent period in Govt. Service w.e.f 19-01-2005 to 27-07-2005 i.e. 190 (one hundred ninety) days remarked as unauthorized absent and has not appeared before the Medical Board is self explanatory.” This communication dated 15.06.2016 is also under challenge in this writ petition. 6. Mr. B. Datta, learned counsel appearing for the respondents has raised a preliminary objection as to the maintainability of the writ petition inasmuch as the memorandum dated 30.04.2016 is a mere notice and it is not a final order and as such the said action of the respondents cannot be challenged. However, Mr. Datta, learned counsel has fairly admitted that the memorandum dated 30.04.2016 is not sustainable inasmuch as the said premise is dehors the records. However, Mr. However, Mr. Datta, learned counsel has fairly admitted that the memorandum dated 30.04.2016 is not sustainable inasmuch as the said premise is dehors the records. However, Mr. Datta, learned counsel has also submitted that leave is not a right, it is subject to sanction by the competent authority in terms of Tripura Civil Services (Leave) Rules, 1986. As the petitioner has not been granted the leave, there is no scope of releasing his pay and allowances for the period of absence from 19.01.2005 to 27.07.2005. 7. Mr. Banerjee, learned counsel appearing for the petitioner in his reply has further submitted that mere absence cannot be termed as wilful absence for constituting unauthorized absence from the duty. In support of his contention, Mr. Banerjee, learned counsel has relied on a decision of the apex court in Krushnakant B. Parmar vs. Union of India & Anr. reported in 2012 AIR SCW 1633. In Krushnakant B. Parmar (supra), the apex court has observed that : “Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but is such case the employee cannot be held guilty of failure of devotion to duty or behavior becoming of a Government servant.” According to this court the principle of law as laid down in Krushnakant B. Parmar (supra) is not relevant in this case. 8. Having regard to the submissions made by the learned counsel for the parties and the records produced before this court, this court is confronted with the two pertinent questions, viz: (i) Whether the memorandum dated 30.04.2016 has been issued under a wrong premise which did not exist and whether in that event, the memorandum dated 30.04.2016 can be interfered by this court or not? and (ii) Whether the finding of the Medical Board is ex-faci-euntenable or not? 9. From the records particularly from the report of the Medical Board dated 17.02.2011, it clearly appears that the petitioner not only appeared before the Medical Board, but he was physically examined after 6(six) years of his illness to find out whether he was ill or not before 6(six) years. 9. From the records particularly from the report of the Medical Board dated 17.02.2011, it clearly appears that the petitioner not only appeared before the Medical Board, but he was physically examined after 6(six) years of his illness to find out whether he was ill or not before 6(six) years. Secondly, what is astonishingly found is that the illness certificates dated 03.04.2005, 15.05.2005 and 19.06.2005 denoting cause as lumbar spondylosis were not ‘authenticated by any supporting document’ and that is the reason why they held that the absence from 19.01.2005 to 19.03.2005 could not be justified. But regarding the remaining period i.e. from 20.03.2005 to 27.07.2005, the Standing Medical Board did not give any opinion whatsoever. This court is of the considered opinion that the memorandum dated 30.04.2016 therefore has been issued completely on a premise that did not exist and as such the said memorandum is liable to be interfered with. Accordingly the memorandum dated 30.04.2016 is interfered with and set aside. As already observed, the report of the Medical Board is not reliable as on the face of it, it is evident that Medical Board without applying its mind and without giving any attention to the substance of reference issued the report dated 17.02.2011 and as such the respondents are restrained from taking any cognizance of the said report dated 17.02.2011 of the Standing Medical Board. What has surprised this court most is that when the memorandum dated 30.04.2016 was issued, the Chief Engineer, Public Works Department (R & B) even did not have a copy of the report. Only after filing of this writ petition by the correspondence dated 08.11.2016, the Chairman, Standing Medical Board was requested to confirm whether the petitioner appeared before the Medical Board for examination. If yes, the observation of the Board be sent to the said authority. 10. On the face of it, this court is of the considered view that the petitioner has suffered injustice for the whimsical approach of the respondents. However, the court cannot ask the competent authority to regularize the absence of the petitioner. If yes, the observation of the Board be sent to the said authority. 10. On the face of it, this court is of the considered view that the petitioner has suffered injustice for the whimsical approach of the respondents. However, the court cannot ask the competent authority to regularize the absence of the petitioner. But what this court would observe is that as the petitioner had immediately after resuming his duties submitted the illness certificates and the fitness certificate, as is evident from the communication dated 04.03.2006 [Annexure7 to the writ petition] issued by the Executive Engineer, Internal Electrification Division, Agartala under whose control he was working and those should have been considered or delved. According to the Leave Rules, the illness certificate and the fitness certificate are essentially to be issued by a registered medical practitioner and on the basis of those certificates usually the leave is to be sanctioned by the competent authority, unless the contrary is proved by more dominating evidence. In this case there is no such dominating evidence. Therefore, the respondents are directed to regularize the absence of the petitioner within a period of 8(eight) weeks from today on the basis of the illness certificates and fitness certificates submitted by the petitioner on 28.07.2005. After regularizing the absence, the petitioner’s pay and allowance for that period of absence be released without delay. 11. Having observed thus, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs.