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HARINDER SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Harinder Singh v. State Of U.P. And Others - WRIT - A No. 4612 of 2005 [2005] RD-AH 324 (2 February 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

CIVIL MISC. WRIT PETITION NO. 4612 OF 2005

Harinder Singh          .......... Petitioner

Versus

State of U.P. & Ors.     ............     Respondents

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

This writ petition has been filed for quashing the suspension order dated 08.12.2004.

The facts and circumstances giving rise to this case are that the petitioner, while working as a Consolidation Officer, had passed certain order on the basis of which the disciplinary proceedings have been initiated against him and the impugned suspension order has been passed. As per the allegations made in the suspension order and the allegations furnished to the petitioner by the Inquiry Officer, all allegations relate to the judicial proceedings in respect of Suit No. 193 of village Lakhnawali; Suit No. 234 of village Chhaproli Banger and Suit No. 159 of village Rithori of District Gautam Budh Nagar, where the petitioner had earlier been posted.  The decision of the petitioner had resulted in a loss to the Gaon Sabha and gain to the certain individuals. Thus, while contemplating the departmental enquiry, the suspension order has been passed.

Learned counsel for the petitioner has submitted that as the said judicial orders could be corrected in appeal or revision, there could be no occasion for the respondents to pass the suspension order and hold the domestic enquiry, as holding the enquiry etc. amounts to interference with the performance of judicial function of the petitioner. Thus, the same is liable to be quashed.

On the other hand, learned Standing Counsel has submitted that undoubtedly, departmental proceedings should not be initiated against the officers performing the judicial and quasi-judicial functions but it does not mean that even if they did not perform the duty bonafidely, no action can be taken against them in a departmental proceedings. Thus, the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The issues as to whether where a judicial order can be corrected in appeal, disciplinary proceedings can be initiated against a judicial officer for passing the wrong order; and whether recklessness and gross negligence on the part of a judicial officer, even if he had no corrupt motive, fall within the ambit of misconduct, are no more res integra.

The Supreme Court, in S.  Govinda  Menon  Vs.  Union of India,  AIR 1967 SC 1274, has held as under:-

"  ..... It is not necessary that a member of the service  should   have committed  the alleged act or omission in the  course of discharge of his duty as a servant  of the Government in order  that it may form the subject  matter of disciplinary proceedings.    In other words, if the act or omission is such as to  reflect the reputation of the officer for  his  integrity  or   good  faith  or devotion  to duty, there is no reason why disciplinary  proceedings  should not  be taken  against  him for that act or omission....  The test is whether the act or omission has some reasonable occasion with nature and condition of his service or  where the act or omission has  caused any reflection upon the reputation of the member  of  the service for integrity  or devotion  of duty as a public servant.... The proposition put forward was that quasi-judicial orders, unless  vacated under  the  provisions  of the  Act,  are final and binding and cannot be questioned  by  the executive  government through  disciplinary proceedings..... The charge is,   therefore, one of misconduct  and recklessness disclosed by the  utter  disregard of the relevant provisions....... But in the  present proceedings what is sought to be challenged  is not the correctness or the legality of the decision of the Commissioner but the   conduct of the appellant in the discharge of his duty as Commissioner. The appellant was proceeded against   because in   the discharge  of  his function, he acted  in utter  disregard of the provisions of the Act  and the Rules.  It is the manner in which he discharges his function that brought up in these proceedings.....It is  manifest, therefore, that though  the propriety and legality of the sanction to the  leases may be question in appeal  or revision  under the Act the Government is not precluded from taking  disciplinary act  if there is proof that the has acted in gross recklessness in the discharge of his  duties  or  that he  failed  to  act honestly  or  in  good faith or  that  he omitted   to  observe   the   prescribed conditions  which  are essential for  the exercise of the statutory power."

Thus, the aforesaid judgment is an authority that disciplinary proceedings can  be initiated  against an employee in respect of  the action, even  if  it  pertains   to  exercise  of judicial or quasi-judicial powers.

In S.  Govinda  Menon  (supra), the Hon'ble  Supreme Court had  relied upon the judgment in Pearce Vs.  Foster, (1966)  17  QBD 536, wherein it had  been held as under:-

"If a servant conducts himself in a way inconsistent  with the faithful discharge of  his  duty  in   the  service,  it  is misconduct   which   justifies  immediate dismissal."

The Supreme Court in Union of India  & Ors. Vs. K.K. Dhawan, AIR 1993 SC 1478, very heavily relied upon its earlier judgment in S. Govinda Menon   (supra) and observed that the officer who exercises judicial or quasi-judicial powers, acts negligently or recklessly or in order to confer undue favour on a person, is not acting as a Judge, and in the disciplinary proceedings, it is the conduct of the officer in discharge of his official  duties  and  not   the  correctness  or legality  of his decisions or judgments which are to be examined,  as the legality of the orders can be questioned  on appellate or revisional  forum. In such a case  the Government cannot be  precluded from taking the disciplinary action for violation of the Conduct  Rules.  The Court summarised some circumstances in which disciplinary action can be taken, which are as under:-

"(i) Where the Officer had acted in  a manner as would reflect on his reputation or integrity or good faith or devotion of duty;

(ii) if there is, prima facie, material to show  recklessness  or misconduct in  the discharge of his duty;

(iii) if he has acted in a manner  which is unbecoming of a Government servant;

(iv) if he had acted negligently or that he  omitted  the   prescribed  conditions which  are essential for the exercise  of the statutory powers;

(v) if  he had acted in order to  unduly favour a party;

(vi) if he had been actuated by  corrupt motive,  however, small the bribe  may  be, because Lord Coke said long ago " though the  bribe may be small, yet the fault is great."

The Court further observed that the said instances were not exhaustive.  However, it was further observed by the Supreme Court that each case would    depend upon the facts and circumstances of that case, and no absolute rule can be postulated.

Undoubtedly, abuse of power has always been treated as constituting misconduct, for the purpose of disciplinary proceedings. More so, in Management of Utkal Machinery Ltd. Vs. Workman Miss Shanti Patnaik, AIR 1966 SC 1051, the Hon'ble Apex Court held that gross negligence constitutes misconduct.

In Union of India & Ors. Vs. J. Ahmed, AIR 1979 SC 1022, the Hon'ble Supreme Court considered whether inefficiency in service amounts to misconduct or not, and the  Hon'ble Court answered it in negative, holding that  the word "misconduct"   itself  indicates   that,   if proved, it may incur the penalty under the Rules.

In Union of India Vs. Upendra Singh, (1994) 3 SCC 357, the Apex Court held that even an officer, while discharging judicial or quasi-judicial duties, is   amenable to the disciplinary proceedings into his conduct in discharge of the duty.

In Union of India & Ors. Vs.  A.N. Saxena, AIR 1992 SC 1233, the Hon'ble Apex Court held that disciplinary action can be taken in regard to the action taken or purported to be taken in course of judicial or quasi-judicial proceedings. However, in such circumstances, the disciplinary proceedings should be   initiated with great caution and a close scrutiny of his actions, and only if the circumstances so warrant for the reason that non-initiation of disciplinary proceedings against a judicial officer may shake the confidence of the public in the officer concerned, and if lightly taken, it is likely to undermine the independence and in case the action of the judicial officer indicates culpability, there is no reason why disciplinary action should  not be taken against him.

In State of Punjab & Ors.  Vs.  Ram Singh Ex-Constable, (1992) 4 SCC 54, the Hon'ble Supreme Court considered various dictionaries to find out the meaning of "misconduct" and the same is worth quoting, which is  as under:-

"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus: 'A transgression of some established  and definite rule of action,  a forbidden act, a dereliction from duty, unlawful  behaviour, wilful in character, improper or wrong behaviour,  its, synonyms  are    misdemeanour, misdeed,  misbehaviour,  delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.'

Misconduct in office has been defined: ''Any unlawful  behaviour  by  a public officer in relation to the duties of his office, wilful in   character. Term embraces  acts  which the offence  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  Hon'ble  Supreme Court further  held 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, willful   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.

In Government of Tamil Nadu Vs. K.N. Ramamurthy, AIR 1997 SC 3571, the Hon'ble Supreme Court held that exercise of judicial or quasi judicial  power  negligently having adverse affect on the  party or the State certainly amounts to misconduct.

In M.H. Devendrappa Vs. Karnataka State Small Industries  Development   Corporation,  AIR 1998 SC 1064, the Hon'ble Supreme Court has ruled that any   action  of  an   employee which   is detrimental to the prestige of the institution or employment, would amount to misconduct.

In Union Bank of India Vs., Vishwa Mohan, (1998) 4 SCC 310, the Hon'ble Supreme Court held that misconduct includes not working with diligence by an employee.

In State Bank of India Vs. T.J. Paul, AIR 1999 SC 1994, the Supreme Court  held  that even in a  case where the allegations of mala fide  and corrupt practice  have  neither been alleged nor revealed  while  issuing  the charge - sheet,  the delinquent  employee  may  be   held  guilty of misconduct,  in  case  the  officer  acts  without restraints  jeopardising the interest and rights of other  party.  The said case was for  granting the bank  loan negligently and the bank  suffered serious loss. The Apex Court held that it may not be a case of insubordination or disobedience of specific order of any superior officer, if the act is prejudicial to the interest of the bank or gross negligence or negligence involved or likely to involve the bank in serious loss, would amount to misconduct.   In other words, if negligence of an officer seriously affects and prejudices the rights of the  party, it definitely  amounts  to misconduct.

In Government of Andhra Pradesh Vs. P.  Posetty,  (2000) 2 SCC 220, the Hon'ble  Supreme Court held  that sense of propriety and acting in derogation  to  the prestige of the  institution and placing  his official position under any kind of embarrassment  may  amount to misconduct as  the same may  ultimately lead that the delinquent had behaved in  a  manner which is unbecoming  of  an employee/Government servant.

Thus, in view of the above, we find no force in the submissions made by the learned counsel for the petitioner that if the judicial order can be corrected in an appeal or revision, initiation of disciplinary proceeding is not warranted. As the Hon'ble Apex Court has consistently held that in exceptional circumstances even if such an order can be corrected by an appellate or revisional court, disciplinary proceeding can certainly be held against the judicial officer.

In view of the above, we do not find any force in the submissions made by learned counsel for the petitioner. The petition stands dismissed. However, the respondents are directed to conclude the enquiry expeditiously and pay the subsistence allowance to the petitioner in accordance with law.

02.02.2005

AHA


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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

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