D.K.Jain, J. - (1.) The pivotal question in this mandamus appeal is whether the punishment of dismissal could be said to be sustainable in law in the facts and circumstances of the case? The respondent was in the employment in the hospital of the appellant as cook-cum-bearer. The alleged delay in serving the breakfast or meal as also other alleged behaviour was considered by the appellant as grave and serious and consequently domestic enquiry was instituted against the respondent in terms of 'standing orders' of the appellant. The charges were very loaded but ultimately the Enquiry Officer could not record that the core of the charges had been proved. Broadly speaking the parts of the charges proved were virtually admitted by the witness of the respondent or by the respondent through his statements during domestic enquiry. In these and other peculiar circumstances, the learned single Judge of this court vide his judgment dated 27.09.94 in C.O. No. 20118 (W) of 1994 has not only set aside the aforesaid order of punishment of dismissal but also granted liberty to the appellant to proceed afresh in regard to the charges and thereafter award a fresh punishment in accordance with law. Feeling aggrieved the appellant/Indian Oil Corporation has preferred this appeal on various grounds but as indicated above the real question is in regard to the punishment.
(2.) It appears to be the common ground that the respondent was permanently appointed in the scale of Rs. 180 - Rs. 277 in the year 1978 as Cook-cum-Bearer in the establishment of the appellant. The respondent had worked initially in the guest house but subsequently in the year 1986 was transferred to the hospital of the appellant at Haldia. The respondent was in the morning shift in the hospital on the relevant dates and another cook thus was in the evening shift. It is also an admitted position that there was a delay in serving breakfast on 29.06.93 and the breakfast could not be served up to 9 A.M. and consequently two indoor patients as per document were discharged or asked to leave the hospital by the concerned authorities or doctors. The basic dispute is as to what caused this delay? Within two weeks there was admittedly again delay in serving breakfast or meals from 13th July to 15th July, 1993. It is again not disputed between the parties that the respondent had put his claim in the overtime register of the hospital on the plea that he had done marketing in regard to food materials and marketing was not part of his duty. It appears that there was a continuous dissatisfaction in the cooks of the hospital in regard to the marketing even though the marketing of the food materials used to be done by the Cooks for a long period. It may be noted at this stage that the issue of marketing or any grievance of the cooks in this regard was never reasonably resolved before these alleged delays in serving breakfast but the appellant was forced to give some clarifications in regard to the issue of marketing much after these alleged delays vide his letter dated 15th September, 1993. It is also an admitted position that the respondent had complained to the higher authorities in regard to the mismanagement in the hospital and even through his lawyers served notice to stop exploitation by forcing the Cooks to do the marketing of the food articles. On the alleged date of delay in the month of June, 1993 another cook was given overtime and thereafter the respondent had also started claiming overtime for marketing of the food articles and defiantly had noted the overtime period in the overtime register. If there is a grievance in the Cooks whether the marketing of the food article is a part of their duty or not or whether the claim for overtime for such marketing is valid or not, the failure of the appellant to resolve these issues had perhaps led to the incident of the delay which has occurred in the month of June, 1993. It may be that the plea of the Cooks in regard to marketing or overtime may be wholly unjustified but it could hardly be denied that the alleged delays were not without explanation. Can the mere delay in serving breakfast on few dates in the circumstances of grievance of the Cook be said to be grave and serious misconduct so as to warrant the punishment of the dismissal? Realising this, the learned counsel for the appellant has taken the stand that the punishment is not justitiable. At the later stage, the details of submissions of the parties will be considered but suffice it would be to say at this stage that prima facie the appellant could merely prove the delays in serving breakfast on few dates and not gravity or seriousness of the alleged charges.
(3.) It will be relevant to reproduce the charge-sheet-cum-suspension order and it is in following words : CHARGESHEET-CUM-SUSPENSION ORDER "It is reported that you have been indulging in several acts of indiscipline affecting the smooth operation of Haldia Refinery Hospital. On 28/6/93 you refused to serve Breakfast to the in-patients of Hospital, when Shri P.C. Das, Cook-cum-Bearer, Emp. No. 71243 was called to prepare Breakfast you obstructed him and did not allow him to enter the kitchen. Due to non-supply of food 3 indoor patients out of 4 had to be discharged from Hospital. After lot of discussions you agreed to supply food but in the process serving of meal was delayed. Again you delayed serving of Breakfast/Lunch to the in-patients of Hospital on 13th July, 14th July, & 15th July, 1993. You have started tampering with the official records related to overtime of employees from 17/3/93. You have falsified your record of overtime as per the details given in the attached statement. Though you have been advised number of times not to do so verbally as well as vide out letter No. pH/F-2/71076 dated 20th October, 1993 yet you continue to put wrong entries in the OT Register. You have stopped drawing the cleaning material from stores and are leaving utensils uncleaned which is unhygienic and a source of infection/desease for patients. Though you have been instructed a number of times to keep the utensils and the cooking platform clean by using proper cleaning materials, you are not following the instructions and thereby deliberately creating unhygienic conditions in the Hospital. Your above acts constitute misconduct under sub clause 1,9,16,26,37, & 44 of Clause 19 of Certified Standing Orders of Haldia Refinery since your presence on duty is not considered desirable you are hereby placed under suspension with immediate effect.";