Disciplinary charges fail for lack of evidence where duty roster shows no on-call obligation, telephonic consultation appropriate in emergencies, and appellate authority incompetent without approved delegation.

ORDER 

Hon’ble Mr. Sanjeeva Kumar, Member (A):

By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-

“(a) quash and set aside the impugned orders/action of the respondents placed at Annexure A/1, A/2 and A/3 above, with all consequential benefits.

(b) award costs of the proceedings and

(c) pass any other order/direction which this Hon’ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.”

2. The facts of the case, in brief, are that the applicant is working as a Specialist (Anaesthesia) in ESI Hospital since 30.10.1999 and has been discharging his duties honestly, sincerely and efficiently. Vide charge memo dated 26.07.2007, the applicant was issued a charge sheet. The Article of charge reads as follows 

"That the said Dr. B.P. Singh posted as Specialist Grade- II (Anaesthesia) of ESI Hospital, Basaidarapur, New Delhi during the period from 4/06 to 11.7.07 has committed the following misconduct:

In the treatment of Master Monu, son of Shri Mohan Prasad, Chowkidar, ESI Hospital, Basaidarapur despite serious condition of the patient on 28.06.2007 he failed to attend the patient in person but telephonically instructed the Senior Resident (Dr. Gaurav Katyal) as to the management of the patient during the operation which resulted in the death of the patient at about 3.30 AM on 29.06.2007.

By his aforesaid act, the said Dr. B.P. Singh, Specialist (Anaesthesia) exhibited negligence and lack of devotion to duty violating clause (ii) of sub rule (1) of rule 3 of the CCS (Conduct) Rules, 1964 which are applicable to the employees of ESI Corporation by virtue of regulation 23 of the ESIC (Staff & Conditions of Service) Regulation, 1959."

3. The applicant submitted his reply to the charge sheet wherein he specifically pleaded that he was not on call duty on 28.06.2007, which is evident from the Duty Roster of the Department of Aneathesia. He further pleaded that Dr. Gaurav, Senior Resident (Anaesthesia), Department of Anaesthesia, the attending Anesthetist consulted him telephonically, though he was not on duty on that day, may be, because other specialist/medical officer was not available and discussed about the management of the patient. The applicant further pleaded that he did not receive any call for attending the patient in the O.T. (Operation Theatre) either from Senior Resident (Anaesthesia) or any doctor from Department of Surgery, probably because he was not on call duty on 28.06.2007. However, the respondents chose to enter into a detailed enquiry by appointing an Inquiry Officer and Presenting Officer. On conclusion of inquiry, the Inquiry Officer submitted his perverse report concluding that the charge against the applicant is proved.

4. The applicant submitted his representation dated 27.05.2009 against the Inquiry Report. However, the Disciplinary Authority, without considering the reply of the applicant, issued the impugned penalty order dated 06.11.2009 inflicting upon him a penalty of stoppage of increments for three years without cumulative effect. The applicant preferred an appeal against the penalty order, which too has been illegally rejected vide order dated 30.11.2010.

5. Aggrieved by the aforesaid illegal actions / orders of the respondents, the applicant approached this Tribunal vide OA No. 3916/2011, which was disposed off vide order dated 09.01.2014 quashing the Appellate Authority's order and directing fresh consideration of the appeal by an officer other tha