JUDGMENT 1. 1. In this writ petition filed under Article 226 of the Constitution of India, the petitioner, Dr. R K Sharma, has prayed for a writ of certiorari or any other appropriate writ, order or direction to quash the order dated 12th June, 1973 passed by the State Government, whereby the penalty of compulsory retirement with proportionate pension has been imposed on the petitioner. 2. The facts of the case, briefly stated, are as follows. 3. The petitioner was an employee of the State Government and in the year 1961-62 he was posted as Medical Jurist at Prince Vijai Singh Memorial Men's Hospital, Bikaner. When he was working as Medical Jurist at the said hospital, the petitioner conducted the postmortem examination on the dead body of one Smt. Daya Devi (Dayawati) on 17th April, 1962, and prepared a report after conducting the said post-mortem examination. While acting as medical Jurist at the said hospital the petitioner on 13th September, 1961, had examined the injuries of one Hanumandas Chandak and had prepared the injury report on the basis of the aforesaid medical examination of Shri Chandak. By memorandum dated 29th February, 1968, the petitioner was informed that it was proposed to hold an inquiry against him under Rule 16 of the Rajasthan Civil Services (Classification. Control & Appeal) Rules, 1958 (hereinafter referred to as ,"the Rules"). The said memorandum was accompanied by a statement of charges containing three charges and the statement of allegations in respect of the said charges. In Charge No. 1, it was alleged that in the report of the post-mortem examination of the dead body of Daya Devi (Dayawati) the petitioner had deliberately suppressed the truth and did not state the cause of death as a result of which the accused persons were acquitted in the case. In Charge No. 2, it was alleged that the petitioner had prepared a false injury report in respect of the injuries of Shri Hanuman Das Chandak and that in the court he gave a false statement which was inconsistent with the injury report. In Charge No. 3 it was alleged that the petitioner is in the habit of making false reports and fake statements. In Charge No. 3 it was alleged that the petitioner is in the habit of making false reports and fake statements. After the receipt of the aforesaid memorandum dated 29th February, 1968, the petitioner submitted his reply on 12th March, 1968, wherein he submitted that the charges levelled against him were false and that no inquiry was called for. An inquiry was however conducted in 'he said charges by Shri Gajendra Singh, Commissioner of Departmental Inquiries Rajasthan, Jaipur who after conducting the inquiry submitted his report. In his report the Inquiry Officer exonerated the petitioner of Charges No. 1 and 3. So far as Charge No. 2 is concerned, the Inquiry Officer held that these was no intentional first in the inquiry report as regards injury No. 1 and that the petitioner had committed an error in treating Injury No. 1 as simple without referring the case to the Radiologist. With regard to injury No. 2 the Inquiry Officer held that although there was no inconsistency so far as the injury report and the statement of the petitioner in the Court is concerned; yet the mention of the injury as simple resulting in the fall of the tooth was a matter of confusion and contradiction in the mind of the petitioner and that there was no intentional falsity in the matter. After the receipt of the report of the Inquiry Officer. the State Government issued a show cause notice on 10th November, 1971 whereby the petitioner was informed that the Governor had tentatively decided that the penalty of compulsory retirement with proportionate pension be inflicted on the petitioner. The petitioner submitted his reply on 31st December, 1971 to the aforesaid show cause notice and the matter was referred to the Rajasthan Public Service Commission. In its advice dated 11th April, 1972, the Commission opined that the punishment of wo grade increments with cumulative effect may be imposed on the petitioner. The State Government however, did not agree with the said advice of the Commission and by letter dated 11th May, 1972, the matter was referred back to the Commission, and it was pointed out that the petitioner had been punished previously for similar charges vide Government order dated 17th October, 1969. The State Government however, did not agree with the said advice of the Commission and by letter dated 11th May, 1972, the matter was referred back to the Commission, and it was pointed out that the petitioner had been punished previously for similar charges vide Government order dated 17th October, 1969. Thereupon the Commission in its advice dated 16th June, 1972 pointed out that in the show cause notice dated 10th November, 1971, it is not stated that the Government intended to take into consideration the previous misconduct of the petitioner while determining the punishment for the misconduct in the present case and the Commission advised the State Government to serve a supplementary show cause notice to the petitioner.Thereafter, a fresh show-clause notice dated 18th November, 1972 was served on the petitioner. In response to the said show-cause notice the petitioner submitted his reply dated 8th December, 1972. After taking into consideration the reply submitted by the petitioner the State Government again referred the matter to the Commission and in accordance with the advice given by the Commission on 3rd April, 1973, the order dated 12th June, 1973 was passed whereby the penalty of compulsory retirement on proportionate pension was imposed on the petitioner. Being aggrieved by the aforesaid order dated 12th June, 1973, the petitioner has filed this writ petition. 4. Before dealing with the submissions urged by the learned counsel for the petitioner on the merits of the case, it is necessary to deal with the preliminary objection raised by the learned Additional Government Advocate with regard to the maintainability of the writ petition. The submission of the learned Additional Government Advocate is that a remedy by way of review to the Government under Rule 34 of the Rules was available to the petitioner, and the petitioner, having failed to take resort to the said remedy of review provided under the Rules, the writ petition is not maintainable. In my opinion the aforesaid preliminary objection raised by the learned Additional Government Advocate cannot he upheld in the facts and circumstances of the present case. In the first place. the aforesaid preliminary objection with regard to the maintainability of the writ petition has not been raised in the reply to the writ petition filed on behalf of the respondents and it has been raised for the first time during the course of arguments in the writ petition. In the first place. the aforesaid preliminary objection with regard to the maintainability of the writ petition has not been raised in the reply to the writ petition filed on behalf of the respondents and it has been raised for the first time during the course of arguments in the writ petition. Secondly, the remedy of review provided under Rule 34 of the Rules cannot be held to be an equally efficacious remedy inasmuch as the impugned order dated 12th June, 1973, has been passed by the State Government in consultation with the Rajasthan Public Service Commission and the power of review has also to be exercised by the Governor in consultation with the Rajasthan Public Service Commission. The power of review conferred under Section 34 of the Rules is in the nature of revisional power and in the context of revisional power the Supreme Court in Collector of Customs and Excise, Cochin and others v. M/s. A. S. Bava : AIR 1968 S. C. 13 , has laid down that it is settled law that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution. For the reasons aforesaid, the preliminary objection raised by the learned Additional Government Advocate is rejected. 5. With regard to the merits of the case, the first submission of the learned counsel for the petitioner is that from the report of the Inquiry Officer, it is clear that none of the charges of misconduct has been proved and that no punishment could be imposed on the petitioner on the basis that the petitioner is guilty of misconduct. It his already been noticed that cut of the three charges which were framed against the petitioner he was fully exonerated in respect of charges No. 1 and 3 by the Inquiry Officer. In so far as Charge No. 2 is concerned it relates to the injury report prepared by the petitioner after medical examination of Hanumandas Chandak on 13th September, 1961. According to the said injury report the following injuries were found on the person of Shri Chandak:- 1. One contusion with swelling and deformity of the left middle finger on the palwar and dorsal aspect of the left band. 2. According to the said injury report the following injuries were found on the person of Shri Chandak:- 1. One contusion with swelling and deformity of the left middle finger on the palwar and dorsal aspect of the left band. 2. Cannine tooth of the lower jaw right side missing the socket of the tooth has fresh wound and is bleeding. Other teeth also loss and unhealthy. No mark of injury on the inside or outside of the lips. 6. The charge that has been levelled against the petitioner is that the petitioner had prepared it false injury report and had made it false statement before the Court which was inconsistent with the aforesaid injury report. 7. During the course of the inquiry, an attempt was made to prose that the petitioner had demanded illegal gratification from the complainant. Shri Chandak. for the purpose of giving a certificate treating the injury as grievous injury and that on his failure to pay illegal gratification, the petitioner had prepared the false injury report showing both the injuries to be simple. The only evidence adduced in support of the said case was that of Shri Hanuman Das Chandak. The Inquiry Officer has refused to place any reliance on the said evidence of Shri Hanuman Das Chandak. 8. As regards Injury No. 1 referred in the injury report of Hanuman Dag Chandak, the Inquiry Officer has observed that be did not find any contradiction in the injury report regarding the injury and the statement of the petitioner in the Court. The Inquiry Officer has further observed that in the absence of x-ray report a definite opinion could not be given that it mere swelling can cause a fracture and that the petitioner should not have expressed the opinion in the injury report that the injury No. 1 was simple before the said injury had been examined by the Radiologist and that he had committed an error in treating the injury as simple. The Inquiry Officer has further held that there was no intentional falsity in the injury report as regards injury No. 1. The Inquiry Officer has further held that there was no intentional falsity in the injury report as regards injury No. 1. As regards Injury No. 2, the Inquiry Officer has observed that a missing tooth and bleeding socket is prima facie a grievous hurt unless otherwise proved that it was a case of self-extraction of the tooth or by Dentist and that the petitioner should not have treated the injury as simple because he was not certain as to how the fall of the tooth occurred. According to the inquiry Officer, it was difficult to give any nomenclature to the injury without the use of an x-ray method and that the label of simple or grievous hurt could only be attached when such injuries are considered with other facts during the course of investigation. The Inquiry Officer has further observed that in the injury report the petitioner has stated that the evidence of trauma did not exist and in that event the petitioner should not have called the injury as simple and should have only reported that in his opinion it was a case of loss of tooth by natural cause or disease or if there was any evidence that it was extracted by any Dentist. The Inquiry Officer has further observed that in writing out his report, the petitioner had committed an error in stating that the said injury was caused by a blunt object, because if the injury was so caused by a blunt object and it resulted in fall of a tooth then naturally it clearly became a case of grievous hurt and that the opinion expressed by the petitioner that the injury of a loss of canine tooth caused by a blunt object in the absence of external injuries was simple was surprising or a statement made by a confused mind. The Inquiry Officer has concluded that although there was no inconsistency as far as injury report and the statement of the petitioner in the Court was concerned. yet. the mention of the injury as simple resulting in the fall of the tooth was itself a matter of confusion and contradiction in the mind of the petitioner. The Inquiry Officer has concluded that although there was no inconsistency as far as injury report and the statement of the petitioner in the Court was concerned. yet. the mention of the injury as simple resulting in the fall of the tooth was itself a matter of confusion and contradiction in the mind of the petitioner. The Inquiry Officer has, however, held that there was no case of intentional falsity in the matter, but it is clearly a case of confused thinking by the petitioner in writing out the report and also testifying before the Court. 9. A perusal of the inquiry report shows that Charge No.2 wherein it was alleged that the petitioner had made a false injury report and made it false statement in the Court which was inconsistent with the injury report has not been found to have been established by the Inquiry Officer. All that has been found by the Inquiry Officer is that in so far as injury No. 1 is concerned the petitioner committed an error in treating the said injury as simple without taking the trouble of getting the same examined by the Radiologist and that in so far as Injury No. 2 is concerned, there was confusion in thinking by the petitioner in writing out the report and testifying before the Court. In other words the Inquiry Officer has only found that in preparing the injury report the petitioner has committed errors of judgment and has not acted with due care and caution. 10. The order dated 12th June, 1973, whereby the penalty of compulsory retirement with proportionate pension has been imposed on the petitioner, however, shows that in imposing the said penalty the State Government has proceeded on the assumption that the Inquiry Officer has held that Charge No. 2 has been proved against the petitioner to the extent that he gave a false injury report by showing both the injuries as simple when there were good reasons to show them as grievous. The report of the Inquiry Officer does not support the conclusion which has been drawn by the State Government in passing the order dated 12th June. 1973, because the Inquiry Officer has nowhere found that the petitioner have a false injury report by showing both the injuries as simple when there were good reason to show them as grievous. The report of the Inquiry Officer does not support the conclusion which has been drawn by the State Government in passing the order dated 12th June. 1973, because the Inquiry Officer has nowhere found that the petitioner have a false injury report by showing both the injuries as simple when there were good reason to show them as grievous. As pointed out earlier, all that the Inquiry Officer has found is that the petitioner had committed an error in expressing his opinion that the injuries were simple without first having the said injuiries examined by the Radiologist. The learned counsel for the petitioner is, therefore, right in his submission that the petitioner has not been found guilty of any misconduct by the Inquiry Officer and all that has been found by the Inquiry Officer against hint is a mere error of the Judgment on his part. 11. In my opinion, a distinction has to be drawn between a mere error of judgment or negligence on the one hand and misconduct on the other. Misconduct means intentional wrong doing. It implies failure to act honestly and reasonably either according to the ordinary and natural standard or according to the standard of a particular profession and it does not cover mere negligence in duty. In re 'P' An Advocate : AIR 1963 S. C. 1313 it has been observed that mere negligence or error of judgment on the part of the advocate would not amount to professional misconduct and error of judgment cannot be completely eliminated in all human affairs. Similarly, in Ganesan v. A. K. Joscelyne : AIR 1957 Cal. 33 , it has been held as under:- "Professional misconduct on the part of the person exercising one of the technical profession cannot fairly or reasonably be found, merely on a finding of a bare non-performance of a duty or some default in performing it. The charge is not one of inefficiency, but of misconduct and in an allegation of misconduct, an imputation of a certain mental condition is always involved. I think it would be impossible for any professional man to exercise his profession if he was to be held guilty of misconduct simply because he had not, in a given case, been able to do all that was required in the circumstances or that had misconceived his duty or failed to perform a part of it. I think it would be impossible for any professional man to exercise his profession if he was to be held guilty of misconduct simply because he had not, in a given case, been able to do all that was required in the circumstances or that had misconceived his duty or failed to perform a part of it. I think, the test must always be whether in addition to the failure to do the duty, partial or entire, which had happened there had also been a failure to act honestly and reasonably." 12. In the present case the petitioner was not charged with negligence in the performance of his duty but was charged with the imputation of preparing a false injury report and making a false statement before the Court. As noticed earlier, the said charge with regard to preparing false injury report and making false statement in the Court has not been found to have been established by the Inquiry Officer and the punishing authority has wrongly proceeded on the assumption that the Inquiry Officer has found the petitioner guilty of prep, ring false injury report. It these circumstances, the order passed on 12th June, 1973 imposing the penalty of compulsory retirement with proportionate pension on the petitioner on the basis that the petitioner is guilty of charge No. 2 to the extent that he gave false injury report cannot be upheld. 13. The second contention that has been urged by the learned counsel for the petitioner is that under Rule 16 (10) (ii) (b) of the Rules an obligation has been imposed on the disciplinary authority to consider the representation made by the Government servant in reply to the show-cause notice served on him, which means that it is incumbent upon the disciplinary authority to deal objections with the submissions contained in the representation of the Government servant and to give adequate reasons for rejecting the said submissions. The learned counsel for the petitioner has submitted that in his representation dated 8th December, 1972 in reply to the show-cause notice dated 18th November, 1972. The learned counsel for the petitioner has submitted that in his representation dated 8th December, 1972 in reply to the show-cause notice dated 18th November, 1972. the petitioner had raised a number of points, but the order dated 12th June, 1973, passed by the disciplinary authority), does not deal with any of the said points raised by the petitioner in his representation, which shows that the representation of the petitioner has not been duly considered by the disciplinary authority before passing the order dated 12th June, 1973. 14. In Phool Chand v. State of Rajasthan (Civil Writ Petition No. 364 of 1979 decided on 18th April, 1980) it his been laid down that Rule 16 (10)(ii)(b) of the Rules postulates that the disciplinary authority shall objectively consider the submissions contained in the representation submitted by the Government servant in reply to the show-cause notice and give reasons for rejecting the said sub- missions contained in the show-cause notice. From a perusal of the representation dated Dec. 8, 1972 submitted by the petitioner in reply to the show-cause notice dated 18th November 1972, I find that the petitioner has raised a number of points in the said representation in support of his case that charge; of misconduct has not been proved against hint and that no punishment could be imposed on the petitioner in the present case. The order dated 12th June, 1973 passed by the disciplinary authority, however does not contain any reason for rejecting the submissions contained in the representation of the petitioner. There is, thus nothing to show that the representation submitted by the petitioner was given due consideration by the disciplinary authority. In my opinion therefore the order dated 12 June, 1973, is liable to be struck down also on the ground that before passing the said order the disciplinary authority failed to consider the representation submitted by the petitioner in reply to the show cause notice as required by the provisions of Rule 16(10) (ii) (b) of the Rules. 15. In my opinion therefore the order dated 12 June, 1973, is liable to be struck down also on the ground that before passing the said order the disciplinary authority failed to consider the representation submitted by the petitioner in reply to the show cause notice as required by the provisions of Rule 16(10) (ii) (b) of the Rules. 15. The learned counsel for the petitioner has also submitted that under Rule 16(12) of the Rules, an obligation has been cast on the Disciplinary Authority to communicate to the Government servant, a copy of the advice given by the Public Service Commission and that in the present case the petitioner was not supplied with copies of the advice given by the Public Service Commission on 11th April, 1972 and 16th June, 1972. The learned Additional Govt. Advocate has submitted that the provisions contained in clause (12) of Rule 16 of the Rules are directory and not mandatory and that the non-supply to the petitioner of the copy of the advice of the Public Service Commission, dated 11th April, 1972 and 16th June, 1972 has not caused any prejudice to the petitioner and that the order dated 12th June, 1973 is, therefore, not open to challenge on that ground. As I am of the opinion that the order dated 12th June, 1973 is liable to be struck down for the reasons referred to above, I do not consider it necessary to deal with the aforesaid contentions. 16. In the result, the writ petition is allowed. The order dated 12th June, 1973, passed by the State Government imposing the penalty of compulsory retirement with proportionate pension on the petitioner is set aside. But in the facts and circumstances of the case, there would be no order as to costs in this writ petition.Petitions allowed. *******