Over 2 lakh Indian cases. Search powered by Google!

Case Details

DHIRENDRA SINGH versus COLLECTOR, KANPUR DEHAT AND ANOTHER

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Dhirendra Singh v. Collector, Kanpur Dehat And Another - WRIT - A No. - 39528 of 2006 [2007] RD-AH 18447 (29 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. 32

Civil Misc. Writ Petition No. 39528 of 2006

Dhirendra Singh

Vs.

The Collector, Kanpur Dehat, and another

Hon'ble Sudhir Agarwal, J.

Heard Sri R.C. Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.

Despite time having been granted to the respondents, no counter affidavit has been filed till date. However, learned counsel for the petitioner submitted that he is raising a legal issue that the impugned order of suspension dated 07.06.2006 and the charge sheet cannot be sustained under law, inasmuch as assuming the charges mentioned in the charge sheet to be true they do not constitute misconduct and, therefore, no disciplinary inquiry can be conducted against the petitioner. Learned Standing Counsel, in view of the nature of the arguments advanced by learned counsel for the petitioner, stated that the writ petition may be heard on merits and he does not propose to file any counter affidavit. Therefore, with the consent of learned counsel for the parties, under the Rules of the Court, this matter has been heard and is being decided finally.

Learned counsel for the petitioner referring to the impugned order of suspension and the charge sheet pointed out that the only allegation levelled against the petitioner is that he did not take interest in work as a result whereof the recovery of Government Revenue is not up to the target and and he has failed to take effective steps to increase the same. He contended that the allegations, even if treated to be correct, at the best shows inefficiency on the part of the petitioner and do not constitute misconduct. Misconduct is something else than inefficiency or mere error of judgment on the part of the employee and, therefore, the petitioner cannot be suspended on the basis of the allegations mentioned in the impugned order of suspension.

Learned Standing Counsel, on the contrary, contended that the petitioner was working as a Collection Amin and his principal duty was to collect the Government Revenue and for the said purpose he had to take all possible steps to recover Government Revenue at least up to the target fixed by the authorities concerned. Since the petitioner has failed in discharge of his duties, this amounts to dereliction on duty and for the said purpose the inquiry can be conducted under U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "1999 Rules").

It would be appropriate to reproduce the allegations on the basis of which the petitioner was placed under suspension and also the charges no. 1 and 2 contained in the charge sheet to find out whether the allegations contained therein constitute a misconduct or not:-

Suspension Order

^^uk;c rglhynkj] rglhynkj rFkk miftykf/kdkjh] jlwykckn dh vk[;k ,oa laLrqfr ds vk/kkj ij Jh /khjsUnz flag] laxzg vehu] rglhy jlwykckn dks eq[; rFkk fofo/k ns;ksa dh ekax rFkk ekud ds lkis{k vR;Ur fud`"V Js.kh dh olwyh fd;s tkus] olwyh c<+k;s tkus gsrq ckj&ckj fn;s x;s vkns'kksa @ funsZ'kksa ds ckn Hkh dksbZ lq/kkj u ykus ds ifjis{; esa buds fo:) vuq'kklfud dk;Zokgh izLrkfor gS] ,rn~}kjk rRdky izHkko ls fuyfEcr fd;k tkrk gSA**

Charge sheet

^^vkjksi la0 &1 ;g fd vki rglhy jlwykckn ds {ks= usoknk nsojk; esa laxzg vehu ds in ij dk;Zjr gSaA vki }kjk 1413 joh esa fnukad 16-4-2006 ls 22-6-2006 rd Hkw jktLo dh ekax :0 6509-00 rFkk flapkbZ ns; dh ekax 2]18]480-00 dqy eq[; ns; dh ekax 2]24]982-00 :i;k ds lkis{k :0 29]758-00 ,oa fofo/k ns; dh ekax :0 2]10]840-00 ds lkis{k ek= :0 80]056-00 dh olwyh dh x;h gSA bl izdkj dqy ekax 4]35]822-00 ds lkis{k dqy :0 1]09]814-00 dh olwyh dh x;h gSA tcfd 2 ekg ls vf/kd ds le; esa fu/kkZfjr ekud ,d yk[k izfr ekg ds lkis{k de ls de 2-00 yk[k dh olwyh fd;k tkuk vkisf{kr FkkA ckj&ckj fyf[kr rFkk ekSf[kd :i ls fn;s x;s funsZ'kksa ds ckn Hkh vki }kjk olwyh c<+k;s tkus esa dksbZ :fp ugha yh x;hA vr% ekax rFkk ekud ds lkis{k fud`"V Js.kh dh olwyh fd;s tkus ds nks"kh gSaA

vkjksi la0&2 ;g fd uk;c rglhynkj }kjk fnukad & 24-5-2006 dks olwyh c<+kus gsrq funsZ'k fn;s x;sA rglhynkj }kjk fnukad 15-5-2006 dks eq[; ,oa fofo/k ns; dh olwyh [kjkc gksus ds dkj.k psrkouh nh x;h rFkk miftykf/kdkjh jlwykckn }kjk fnukad 20-5-2006 dks is'kh jftLVj ij olwyh esa lq/kkj ykus gsrq psrkouh nh x;hA ijUrq vki }kjk mPpkf/kdkfj;kas ds fn;s x;s vkns'kksa @ funsZ'kksa dh vogsyuk djrs gq, olwyh c<+k;s tkus esa dksbZ :fp ugha yh x;hA bl izdkj vki mPpkf/kdkfj;ksa ds vkns'kksa @ funsZ'kksa dk ikyu u djus ds nks"kh gSaA**

Ex-facie the allegations contained in the charge sheet levelled against the petitioner shows that despite directions of the higher authorities the petitioner could not make recovery up to the target prescribed by the authorities concerned and did not take much interest in enhancing the amount of recovery and, therefore, was guilty of poor recovery. The allegations ex-facie shows that the petitioner is a poor and inefficient official but in the absence of anything more, reflecting on the conduct of the petitioner, in my view, it cannot be said that the petitioner is guilty of any misconduct warranting disciplinary proceeding.

'Misconduct' has been defined in Black's Law Dictionary, Sixth Edition at page 999:

"A transgression of some established and definite rule of action a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."

'Misconduct in Office' has been defined as:

"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act."

P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines ''misconduct' thus:

"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."

The meaning of 'misconduct' came up for consideration before the Apex Court in the case of Union of India Vs. J. Ahmed, AIR 1979 SC 1022, wherein, explaining the term 'misconduct' the Hon'ble Court held as under :

"It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty." (para 10)

"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1988) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper)]. (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa RazaF, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -

"Misconduct means, misconduct arising from ill motive; act of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."

In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566: (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p.120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." (para 11)

Again in the case of State of Punjab and others vs. Ram Singh Ex-Constable, (1992) 4 SCC 54 the Hon'ble Apex Court has held as under: -

"Thus it could be seen that the word ''misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order." (para 6)

In the context of Section 31 of Advocates Act, 1961, the Apex Court in Noratanmal Chouraria Vs. M.R. Murli & another 2004 (5) SCC 689 said:

"Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done of omitted to be done intentionally or unintentionally. It means, "improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour".

Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law."

In Baldev Singh Gandhi Vs. State of Punjab & others AIR 2002 SC 1124, with reference to the provisions of Punjab Municipal Act, the Apex Court, considering the term 'misconduct' held as under :

" 'Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct.' Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc."

The allegations at the best shows that the petitioner is a non serious employee and is not able to achieve target. It shows that he is an inefficient official but in the absence of anything further, inability of an employee to achieve target or to show efficiency, upto desired level, ipso facto would not amount to 'misconduct' warranting punishment under 1999 Rules as held in J. Ahmed (supra) that Lack of efficiency or failure to attain highest standards in discharge of duties attached to public office would not constitute misconduct, unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high, which is not the case in hand.

In view of the aforesaid exposition of law and considering the allegations contained in the suspension order and charge sheet, I am of the view that the allegations levelled against the petitioner do not amount to 'misconduct' and, therefore, proceeding under 1999 Rules cannot be initiated against him. The impugned order of suspension, therefore, cannot sustain.

In the result, the writ petition is allowed. The impugned order of suspension dated 06.07.2006 and the charge sheet dated 06.07.2006 both are hereby quashed. The respondents are directed to reinstate the petitioner with all consequential benefits.

However, it is made clear that if the petitioner is an employee lacking efficiency etc., it is open to the respondents to take such action as permissible under law in respect to such aspect of the matter.

No order as to costs.

Dt/-29.11.2007

AK


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.