JUDGMENT
R.C. Lahoti, J.
(1) The petitioner, a Medical Officer, serving with the Municipal Corporation of Delhi was posted at Primary Health Centre, Mehrauli. It appears that some complaint against him was made with the Vigilance Deptt. alleging that the petitioner had admitted indoors Dr.Arvind Kumar Sharma on 1.6.95 though there was no reason why he should have been so admitted. The complaint having been investigated into, the report was placed before the Commissioner. Pursuant to his order dated 21.6.95, the petitioner has been issued with recordable warning dated 26.6.95 (Annexure-III).
(2) The petitioner apprehended his transfer consequent to the above said proceedings. On 31.7.95, the petitioner filed the present petition seeking two reliefs : (i) a writ of mandamus directing the respondent to withdraw the recordable warning dated 26.6.95 (communicated on 6.7.95); (ii) and to pass further direction/order to the respondent No.1 not to harass/punish the petitioner in relation to the warning dated 26.6.95 (communicated on 6.7.95).
(3) The petition was accompanied by an application seeking an ad-interim writ restraining the respondents from disturbing the petitioner from his present place of posting based on an apprehension that it was imminent.
(4) On 1.8.95, this Court directed a notice to be issued to the respondents to show cause why rule nisi be not issued limited to the question whether recordable warning was a penalty imposed on the petitioner without giving him any opportunity of showing cause against.
(5) The respondent No.1 has filed a brief counter and reply. They are accompanied by copy of an office order dated 27.7.95 (Annexure R-1) whereby the Additional Commissioner (Health) has directed the petitioner to be transferred on administrative ground from his present posting as M.O.-In-Charge Phc, Mehrauli to Hindu Rao Hospital against a vacant post of G.D.M.O. It is also stated on affidavit that the transfer is on administrative ground merely.
(6) Two questions arise for decision : Firstly, whether a ‘recordable warning’ could have been issued to the petitioner without affording him an opportunity of showing cause against; and secondly, whether the order of transfer dated 27.7.95 is bad and is liable to be quashed in exercise of writ jurisdiction of this Court.
(7) Dmc Service(Control & Appeal) Regulations, 1959 provide inter alia as under: 6. Nature of penalties : The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed on the Municipal Officer or other employee, namely :- Minor Penalties: (i) Censure 8-A. (1) No order imposing on a municipal officer or other municipal employee any of the penalties specified in Clauses (i) to (iii) of regulation 6 shall be made except after:- (a) informing the municipal officer or the municipal employee in writing of the action proposed to be taken and of the imputations forming the basis thereof and giving him a reasonable opportunity of showing cause against the proposed action. (b) taking the representation, if any submitted by the municipal officer or the municipal employee under Clause (a) and after holding such enquiry as may be considered necessary in the presence of that municipal officer or employee after notice to him or in his absence if he fails to attend. (c) recording a finding on each imputation of negligence, misconduct or misbehavior.
(8) It is submitted, by learned counsel for the respondent that what has been issued to the petitioner is merely a warning which does not amount to imposing a minor penalty of censure and hence paras 6 and 8-A above said were not attracted. It was not necessary to comply with the principles of natural justice before giving a warning.
(9) It is to be seen whether the recordable warning issued to the petitioner amounts to imposing a minor penalty of Censure.
(10) The word “Censure” is not defined in the Regulations or elsewhere. We may with advantage extract and reproduce the Govt. of India, Ministry of Home Affairs Om No.39/21/56-Estt(A) dated 13.12.56 (from Departmental Enquiries against Government Servants by P.V. Ramakrishan, 4th Edition, 1993 Pp 591- 593).
“AN order of “Censure” is formal and public act intended to convey that the person concerned has been guilty of some blame-worthy act or commission for which it has been found necessary to award him a formal punishment, and nothing can amount to a “censure” unless it is intended to be such a formal punishment and imposed for “good and sufficient reason” after following the prescribed procedure. A record of the punishment so imposed is kept on the officer’s confidential roll and the fact that he has been ‘censured’ will have its bearing on the assessment of his merit or suitability for promotion of higher posts.
THERE may be occasions on the other hand when a superior officer may find it necessary to criticise adversely the work of an officer working under him (e.g., point out negligence, carelessness, lack of thoroughness, delay etc.) or he may call for an explanation for some act or omission and taking all circumstances into consideration, it may be felt that while the matter is not serious enough to justify the imposition of the formal punishment of ‘censure’, it calls for some informal action such as the communication of a written warning, admonition or reprimand. If the circumstances justify it, a mention may also be made of such a warning, etc. in the officer’s confidential roll. However, the mere fact that it is so mentioned in the character roll does not convert the warning etc. into ‘censure’. Although such comments, remarks, warning etc., also would have the effect of making it apparent or known to the person concerned that he has done something blame-worthy and, to some extent, may also effect the assessment of his merit and suitability for promotion, they do not amount to the imposition of the penalty of ‘censure’ because it was not intended that any formal punishment should be inflicted.
THE fact that a mere informal ‘warning’ cannot be equated to a formal ‘censure’, should not, however, be taken as tantamount to suggesting that a ‘written warning may be freely given without caring whether or not it is really justified. It is a matter of simple natural justice that written warnings, reprimands etc. should not be administered or placed on an officer’s confidential records unless the authority doing so is satisfied that there is good and sufficient reason to do so. Paragraph 6 of the Home Ministry’s Office Memorandum No.51/5/54/Ests.(A), dated the 27th January, 1955 provides detailed guidance in the matter of recording adverse remarks in confidential reports. It may be reiterated here that in the discharge of the responsible task of recording the confidential reports, every reporting officer should be conscious of the fact that it is his duty not only to make an objective assessment of his subordinate’s work and qualities but also to see that he gives to his subordinates at all times the advice, guidance and assistance to correct their faults and deficiencies. If this part of the reporting officer’s duty has been properly performed there should be no difficulty about recording adverse entries because they would only refer to the defects which have persisted in spite of reporting officer’s efforts to have them corrected. If after having taken such care, the reporting officer finds that for the purpose of truly objective assessment mention should be made of any warning, admonition etc., issued, especially those which have not produced the desired improvement, it is his right and duty to so mention them. In the process of bringing the defects to the notice of person concerned where an explanation is possible an opportunity to do so should be given. This cannot, however, be equated to the formal proceedings required to be taken under Rule 55-A (now Rule 16) of Central Civil Services (Classification Control and Appeal) Rules nor the warning given amounts to the imposition of a formal penalty.
(11) In Chamber’s 20th century Dictionary the word ‘Censure’ is defined to mean – ‘an opinion or judgment (formerly general, now unfavorable only); blame; reproof.- – to form or give an opinion or judgment (now unfavorable) of; to blame: to condemn as wrong: to sentence. According to the same dictionary ‘warn’ means – ‘to give notice of danger or evil to, to notify in advance; to caution ( (with against); to instruct, command…………; to demolish; to forbid’, ‘Warning’ means – ‘a caution against danger etc.; something that gives this; previous notice……….’
(12) In the New Lexicon Websters Dictionary (Deluxe Encyclopedic Edition) Censure means – ‘adverse criticism, blame’. ‘Warn’ means – ‘to draw the attention of (someone) to the probable result of an act, or to a impending danger; to inform before hand; to rebuke (someone) mildly for misbehavior, breaking a rule etc.
(13) WHARTON’S Law Lexicon defines Censure as ‘a Judgment which condemns some book, person or action; more particularly a reprimand from a superior’.
(14) Censure and warning may appear to be something similar in as much as the object behind both is to reprimand an erring employee. However the two have distinct connotation and perception in service jurisprudence. The penalty of censure punishes an employee for something done in the past, alleged and found proved in a process in which employee has a right to participate. Warning does not punish an employee; it puts an employee on its guard for future and is issued on facts enabling formation satisfactorily of a bonafide opinion, though such facts may be found in a process in which the employee did not have the Opportunity (much less a right) of participation. Penalty is for the past; warning is for the future. Penalty proceeds on a decision; warning wishes – let there be no occasion for a decision.
(15) Thus a warning is not necessarily a penalty of Censure. Warning may be oral or in writing. If it is oral, it remains a matter between the officer issuing the warning and the employee receiving it. All its efficacy is lost no sooner one of them is transferred or shifted so as to snap the proximity of relationship between the two.
(16) If the warning is in writing or a recordable warning, it is in its legal implication akin to an adverse entry in the confidential records of the employee. Though the employee was not intended to be penalised yet being a recordable warning it goes in the personal record of the employee and becomes relevant for the purpose of assessing the overall performance of the employee. A recordable warning shall, therefore, have to be dealt with on lines similar to ACRs. Though no opportunity of hearing or a notice to show cause against need precede the issuance of a warning yet the employee must have an opportunity of making a representation against and such a representation if made shall have to be considered and disposed of by the authority issuing the warning or. its superior authority. This alone will be consistent with the principles of natural justice and fair play.
(17) To our mind, comparatively placed the distinction between censure and warning can be brought out as under:- Censure Warning (i) is a penalty (i) is not a penalty; merely conveys displeasure or disapproval of an authority. (ii) must be preceded by an (ii)need not be preceded by an opportunity of showing cause opportunity of heating or against. showing cause against. (iii) Order is final in so far as (iii) is available for the authority passing the same is reconsideration by the same concerned. authority on post-decisional hearing. (iv) is a pronouncement of (iv) is a warning for future opinion, followed by a penalty, fore-telling an invitation to on past (mis)conduct. penalty, if such or similar action or conduct (though not held to be misconduct at present) was repeated.
(18) A warning is not a punishment (see K.Madhavan VS. I.T. Cochin & Ors 1983(1) Slr 773.
(19) A decision by a learned Single Judge of Delhi High Court in Shri Nadhan Singh VS. Union of India, (1968 Lab. I.C. 1364) has come to our notice. It was a case of a warning issued by a memorandum to an employee. Question arose whether it was a penalty of censure imposed on the employee? The learned Judge observed :- “While deciding whether a simple warning or censure is imposed on an employee it is not the form of the order or the word that is used or the nomenclature that is given that matters but really the substance of it.”
19.1The memorandum issued by the Authority stated that the employee was guilty of mis conduct and that the copy of the memorandum should be placed in his character roll. The learned Judge held that notwithstanding the word ‘Warning’ used in the memorandum it really imposed a penalty of censure on the employee which could not have been done except by following the rules for imposing a minor penalty.
19.2This case is distinguishable because of the following features :- (i) disciplinar proceedings had been initiated against the employee by a notice issued to him but the memorandum did not say that the action was dropped; (ii) in express terms the memorandum stated that the employee was found guilty of misconduct; (iii) the memorandum stated a copy thereof to be placed in the petitioners character roll; (iv) the authority issuing the memorandum had described himself as disciplinary authority which indicated that the memorandum was being issued by him in his capacity as disciplinary authority.
19.3The decision in Shri Nadhan Singh’s case is clearly distinguishable and does not apply to the case at hand.
(20) In the present case, in the opinion of the Additional Director (Vigilance) the petitioner had done something which ought not to have been done. The Additional Director armed with material and having formed an opinion that the petitioner deserved to be warned, issued the warning though what the petitioner had done was not considered serious enough to initiate disciplinary action and a penalty being imposed on him. The recordable warning has been communicated to the petitioner. He is at liberty to make a representation against it which if done, the authority issuing the warning or any authority superior to it, as the case may be, shall consider the same on its own merit. Needless to say anything said in this order shall not come in the way of such representation being disposed of objectively and consistently with the principles of natural justice and fair play.
(21) In so far as the order of transfer is concerned, the petitioner cannot be allowed any relief in exercise of our jurisdiction. The transfer order states to have been made on administrative grounds only. We find nothing to co-relate the vigilance enquiry held against the petitioner with the order of transfer. Even if the two be relatable it cannot be said that the decision of the respondent Mcd to transfer the petitioner is vitiated. The receipt of an information against an employee by the employer which on a discreet enquiry held by the employer is found to be correct or any facts brought to its knowledge as to its employee may be considered by it enough for taking an administrative decision of transferring an employee though not considered enough for initiating a disciplinary action. There is nothing wrong in u.
(22) It was next contended by the learned counsel for the i.etitioiier placing reliance on Vice-Chancellor, L.N. Mithila University VS. Dayanand Jha, that the petitioner was working as in charge of the Primary Health Centre and his transfer would result in the status of the Officer-In-Charge Phc being taken away from him; nay consequent to his transfer he may be required to work under senior doctors and that would result in lowering down his status and so also the transfer order was liable to be quashed. This contention too has no merit. The petitioner is a Medical Officer. He is being transferred as a Medical Officer. It does not reduce in any manner whatsoever his status as a Medical Officer. His emoluments and service conditions are not going to be affected adversely. The petitioner happened to be placed In- Charge of P.H.C. merely because whilst at Phc the other doctors posted there happened to be junior to him. Had there been any other doctor senior to him, then the petitioner would not have been In-charge of the PHC. Now he is being transferred to a hospital. He cannot be placed In-charge of that hospital because there are already several other doctors senior to him posted and working in the hospital. The petitioner cannot have any cause of complaint merely because of this reason.
(23) In State of M.P. & Anr. VS. S.S.Kourav & Ors., 1995 (2) Scc 270 their Lordships of the Supreme Court have held :- “THE courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the Court.”
(24) The order of transfer .is not liable to be interfered with in exercise of the writ jurisdiction. However, we leave it open to the petitioner to make a representation to the authority who has passed the order of transfer or any other authority superior to it placing his grievance against the transfer for consideration by any such authority.
(25) For the foregoing reasons, the petition is dismissed but subject to the observations made hereinabove. As against the order dated 26.6.95 (communicated vide letter No.496 dated 6.7.95) issuing recordable warning to the petitioner and the order of transfer dated 27.7.95, the petitioner is at liberty to make representations as already indicated hereinabove. Disposed of accordingly.
