The Management Of Ndmc vs V.P. Kalra And Anr.
2006 Latest Caselaw 1982 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 28.11.1997 passed by the Industrial Tribunal No. I, whereby the Tribunal held that punishment awarded to the respondent No. 2/workman was unjustified.

2. Briefly the facts are that the respondent was working as a peon with the Child Welfare Centre Kidwai Nagar. While on duty, he disobeyed the orders of the doctor and refused to carry on the instructions. He was told that vaccines should be carried by him in vaccines bags and not in open. Instead of complying with the instructions, he told the doctor that it was not his job to bring vaccines and he would continue to handle the vacancies as before otherwise he would prefer that he be transferred. He was suspended on 6.1.1992. He was served with a charge sheet about this misconduct on 6.3.1992. His reply being unsatisfactory. A penalty of stoppage of two increments for a period of two years was imposed on him vide order dated 4.6.1992 without holding an enquiry. The workman raised an industrial dispute which was referred for adjudication to the Industrial Tribunal in following terms:

Whether the penalty imposed on Shri Akbar Ali vide order dated 4.6.1992 reducing his pay by two stages for a period of two years; period of suspension being treated as not on duty and restricting his pay to the subsistance allowance drawn during the period of suspension is illegal and/or unjustified and is so, what directions are necessary in this respect?

3. Before the Tribunal, the management led evidence to prove the misconduct of the workman. It was argued by the management that the punishment awarded to the workman was minor punishment and holding of an enquiry under Rule 16 of CCS & CCA Rules, was not necessary. The Tribunal observed that the disciplinary authority could dispense with the holding of an enquiry only after giving reasons as to why the holding of an inquiry was not necessary. Since no reasons were recorded as to why it was not necessary to hold an inquiry, there was no proper application of mind. Therefore, awarding of punishment without holding an inquiry was bad. The Tribunal further held that the order of punishment was also bad on the ground that the punishing authority failed to examine the question whether the workman's plea that it was not a part of his job to bring vacancies, was correct or not. The Tribunal found that one of the witnesses had stated that it was the job of a pharmacist to handle the medicines. The Tribunal, therefore, held that the punishment awarded to the workman, withholding his two increments, was bad and unjust.

4. It has not been disputed by the respondent that he was being governed by CCS & CCA Rules as applicable to Union of India employees. The minor penalties have been described under Rule 11, as under:

11. Penalties:

The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:

Minor Penalties-

(i)censure;

(ii)withholding of his promotion;

(iii)recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;

iii(a) reduction to a lower stage in the time-scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension.

(iv)withholding of increments of pay;

5. Rule 16 provides procedure for imposing minor penalties which reads as under:

(1) Subject to the provisions of Sub-rule (3) of Rule 15, no order imposing on a Government servant any of the penalties specified in Clause (i) to (iv) of Rule 11 shall be made except after-

(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehavior on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding in inquiry in the manner laid down in Sub-rules (3) to (23) of Rule 14, in every case in which the Disciplinary Authority is of the opinion that such inquiry is necessary;

(c) taking the representation, if any, submitted by the Government servant under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration;

(d) recording a finding on each imputation of misconduct or misbehavior; and

(e) consulting the Commission where such consultation is necessary.

6. A perusal of Rule 16 shows that the normal procedure for imposing minor penalty is that a government servant is to be informed in writing of his misconduct and he is to be given an opportunity of making a representation. The representation is to be considered by the Disciplinary Authority. Holding of an inquiry into the misconduct is not mandatory. The Disciplinary Authority, if, is of the opinion that an inquiry is necessary, may direct holding of an inquiry. There is no obligation on the disciplinary authority to record reasons as to why holding of an enquiry was not necessary. In fact, not holding of an inquiry is a normal rule and holding of an inquiry is an exception in case of imposition of minor penalties. An inquiry can be held only if the disciplinary authority forms an opinion that holding of such an inquiry is necessary. The Tribunal misdirected itself in reading these provisions in a reverse manner. The Tribunal read the provisions as if holding of an inquiry was the general rule and not holding of an enquiry was an exception and if disciplinary authority had not to hold an enquiry, then it has to record reasons for not holding an enquiry. Such a reading of Rule 16 is contrary to the express provisions of Rule 16, and cannot be a correct reading.

7. The other ground given by the Tribunal is that the inquiry officer did not consider the duties of a peon. Strangely enough, the Tribunal had not mentioned as to what were the duties of a peon in the department. It is not stated by the Tribunal that the duties of a peon does not include bringing of medicines on the instructions of a doctor. The Tribunal became oblivious of the fact that the respondent was working as a peon in Child Welfare Centre. Peon is a person who is appointed to do errands; to work as a messenger and to do work as directed by the senior officer with whom he is attached. There is no charter of duties of a peon prescribed, neither the respondent produced any duty charter. It may be that it is the duty of a pharmacist to handle the medicines, but it cannot be said that it is not included in the duties of a peon to bring medicines from store, if directed by the doctor. Peons, orderlies, messengers etc. are all appointed to help in the working of the officers and doctors. If a peon can refuse to carry on such instructions of the doctor, why should there be a peon at all. If a doctor orders a peon to do something in a proper manner, he can say that it is not his duty to do work in proper manner nor he can refuse to carry on the orders of the doctor on the ground that it was not his duty. A peon can refuse to carry on orders only if he is asked to do something contrary to law e.g. he is asked to hit somebody, to indulge into physical violence. But a peon is duty bound to obey the orders of a doctor in the nature of bringing medicines, handling patients, carry clothes of patients carry patient from one place to another, calling other doctors or nurses, bringing necessary equipments etc. I consider that the Tribunal went wrong in holding that it was not the duty of a peon to follow orders of a doctor of carrying vacancies in vaccines bags. It is not a case that the peon was told to do something illegal. The peon was carrying vaccines already and he was only told that he should carry the vaccines in a bag, to which peon retorted that he would not carry the orders. I find that the Tribunal's observations that the disciplinary authority did not consider the duties of a peon is perverse.

8. In view of reasons stated above, I find that the order of the Tribunal is perverse and is hereby set aside. The writ petition is allowed. No orders as to costs.