A. M. Sankaran v. The Registrar High Court — 1999 DIGILAW 266 (MAD)

Judgment :- S.S. SUBRAMANI, J. Petitioner seeks the issuance of writ of certiorarified mandamus, calling for the records relating to the order of respondent in his Roc. No. 15/84.Con.E1, dated 20-08-86, quash the same and direct the respondent to reinstate the petitioner as First Class Judicial Magistrate with all attendant benefits, and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case. 2. Petitioner joined as Lower Division Clerk in July 1952 in the High Court. He was subsequently appointed as Sub Magistrate (redesignated as Judicial II Class Magistrate) on 03-08-1966 and was later promoted as Judicial I Class Magistrate in the year 1976. He was also confirmed in the post of Judicial II Class Magistrate in 1971-72 and transferred to the Tamil Nadu Judicial Magisterial Service after his lien was severed from the High Court. The appointment of petitioner as Judicial II Class Magistrate was made by the Governor of Tamil Nadu in consonance with Art. 235 of the Constitution of India, and his appointing authority is only the Governor of Tamil Nadu under Art. 234 of the Constitution of India. 3. The petitioner was compulsorily retired as per the impugned Order dated 20-08-1986. The Order was passed under the following circumstances:— While the petitioner was working as Judicial First Class Magistrate, Attur, on transfer from Devakottai, he received a show cause notice as per proceedings of the District Judge, Ramanathapuram at Madurai dated 26.12.1984. The allegation in the show cause notice was that while he was working as Judicial First Class Magistrate. Devakottai he passed orders on 31.08. 1981 for destruction of spirit seized in Crime No. 146 of 1981 of Devakottai Town Police Station under Sections 5, 7 and 4 (1) (a) of the Tamil Nadu Prohibition Act without ascertaining or examining or recording any evidence regarding the inflammable nature of the spirit and that the order for such destruction appears to be not proper. Petitioner submitted his explanation. But not being satisfied with the same, he was charge-sheeted by the District Judge. Ramanathapuram at Madurai on 8.01.1985. Two charges were framed against him. Petitioner submitted his written statement of defence and enquiry was also completed on 06-10-1985. Petitioner submitted his explanation. But not being satisfied with the same, he was charge-sheeted by the District Judge. Ramanathapuram at Madurai on 8.01.1985. Two charges were framed against him. Petitioner submitted his written statement of defence and enquiry was also completed on 06-10-1985. Even though the enquiry was over in October 1985 itself, no final order was passed for more than four months, and when he made a request in writing to the Enquiring Officer, respondent sent a show cause notice dated 04-06-1986 along with a copy of enquiry report stating that the first charge against the petitioner was proved and second charge was not proved. Petitioner was asked to explain why he shall not be compulsorily retired. Though explanation was filed, the impugned Order was passed. 4. In the various grounds taken in the writ petition, it is said that the impugned Order is contrary to law, erroneous and arbitrary, and the respondent, has no jurisdiction to compulsorily retire the petitioner from the post of Judicial I Class Magistrate. It is further said that the petitioner was discharging his judicial functions, and the same cannot be challenged in disciplinary proceedings. It is also said that the power of appointment includes the power to impose major penalties, and in this case the respondent is not the appointing authority and consequently he cannot remove the petitioner from service. The Order in question being a judicial order, and so long as there is no case that the same was passed by petitioner recklessly or that he acted against the mandate of the Statute which did not authorise him to do, it cannot, be the subject matter of disciplinary proceeding, It is also said that Section 451 of the Crl. Procedure Code which deals with property has been misinterpreted by the Enquiry Officer and consequently the impugned Order was also passed. When the petitioner acted with bona fides and in good faith, and also on the basis of letter submitted by the Inspector of Police, Devakottai requesting for an order to destroy the spirit, no action could be taken. That he acted bona fide could be seen from the fact that the Scientific Assistant has submitted a Laboratory Analysis Report that the destroyed spirit was inflammable by atmospheric temperature and when other inflammable substance came into contact with it. That he acted bona fide could be seen from the fact that the Scientific Assistant has submitted a Laboratory Analysis Report that the destroyed spirit was inflammable by atmospheric temperature and when other inflammable substance came into contact with it. According to petitioner, when he has acted bona fide and in all good faith, initiation of departmental proceedings as unwarranted, and the same was without any jurisdiction. 5. Counter affidavit has been filed on behalf of respondent wherein the action of respondent is justified. It is said that the petitioner has not passed judicial order as contended by him, but it is only an administrative order. It is also stated that the High Court is competent to punish the petitioner. It is further said that according to Rule 2(2) (a) of the Tamil Nadu State Magisterial Service Rules, the Appointing Authority in the case of promotion of a Judicial “Magistrate of Second Class as Judicial Magistrate of First Class and in the case of Assistant Public Prosecutor Grade I appointed as Judicial Magistrate of First Class by transfer, is the High Court and in all other cases the Governor. Since the High Court is the Appointing Authority, High Court has power to pass the impugned Order. Respondent, therefore, prayed for dismissal of the writ petition. 6. Learned Counsel for petitioner made three submissions: (1) Disciplinary proceedings should not have been initiated against the petitioner when he has discharged judicial function, and that too when there is no allegation of mala fides or abuse of power or recklessness. (2) Respondent has no power to punish the petitioner by way of compulsory retirement. Compulsory retirement being a major penalty, the same could be imposed only by the appointing authority. (3) The punishment is disproportionate to the, charges levelled against him. 7. Heard learned Counsel on both sides. 8. Charges levelled/framed against the petitioner read thus:— “1. That you, Thiru A.M. Sankaran, while working as Judicial First Class Magistrate, Devakottai has passed orders on 31-08-81 for the destroyal of the seized spirit without ascertaining or examining or recording any evidence regarding the inflammable nature of the spirit. 2. In spite of the chemical analysis report, that the spirit is not highly inflammable under normal conditions, you, Thiru A.M. Sankaran have passed orders for the destroyal of the seized spirit.” 9. 2. In spite of the chemical analysis report, that the spirit is not highly inflammable under normal conditions, you, Thiru A.M. Sankaran have passed orders for the destroyal of the seized spirit.” 9. It may be noted that the second charge was not proved and the petitioner has been exonerated from the same. 9A. We are concerned only with respect to the first charge. The charge does not disclose that the respondent has any case of recklessness or abuse of power or other misconduct by the petitioner. In such a case, whether the respondent has jurisdiction to initiate action against the petitioner in relation to an Order passed by him while discharging his function as Judicial Officer, by framing such a charge, is the matter to be decided. 10. More than a century ago, in 1895 (1) Queens Bench Division page 668 ( Andersonv. Gorrie ), similar question came up for consideration. In that case, an action was brought against three defendants who were Judges of the Supreme Court of Trinidad and Tobago, to recover damages for certain acts done by them in the course of certain judicial proceedings, which acts were alleged to have been done maliciously and without jurisdiction and with knowledge of the absence of jurisdiction. The suit was dismissed. An appeal was taken by plaintiff. It was contended before their Lordships of the Queens Bench that the immunity of a judge is confined to judicial acts, namely, acts done by him as a judge under his authority from the Crown and within his jurisdiction. If he acts maliciously, he is liable to action. It was contended that the acts complained of were ministerial and not judicial and, therefore, the defendants were not entitled to claim immunity. On behalf of the Judges, who were defendants in the suit, it was contended that the acts complained of were judicial acts, and a long series of cases have established the immunity of a judge in such a case, and that the question of motive is immaterial. In that case, their Lordships said that ‘the ground alleged from the earliest times as that on which this rule (judicial independence) rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of judges is necessary for the administration of justice’. In that case, their Lordships said that ‘the ground alleged from the earliest times as that on which this rule (judicial independence) rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of judges is necessary for the administration of justice’. In that case, their Lordships also took note of the point raised by Cockburn, C.J. in Thomas v. Churton (2 B & S 475, at p. 479) wherein the learned Judge said thus:— “I am reluctant to decide, and will not do so until the question comes before me, that if a judge abuses his judicial office, by using slanderous words maliciously and without reasonable and probable cause, he is not to be liable to an action.” In the earlier portion of the judgment, their Lordships have also said thus:— “ The defendants were judges of a Supreme Court in a Colony, and the first question is whether these matters were matters with which they had jurisdiction to deal. As to the contempt of Court, it cannot be denied that they had jurisdiction to inquire whether a contempt had been committed, and, further, “it cannot be denied that they had power to hold a person to bail in the cases provided for by the Colonial statute which expressly gives that power. These two matters were obviously within the jurisdiction of the court. No one can doubt that if any judge exercises his jurisdiction from malicious motives, he has been guilty of a gross dereliction of duty but the question that arises is what is to be done in such a case“ (Emphasis supplied) In that case, all the three judges held that the defendants had immunity and the charge by plaintiff that there was bad faith, was also found against. The above decision was considered by the Kerala High Court in the decision reported in AIR 1966 Kerala 216 ( Govinda v. Union of India ). In that case disciplinary proceedings were initiated against an I.A.S. Officer for having violated certain statutory duties which included discharge of judical functions. The matter came-up before a Division Bench. One of the Honorable Judges (K.K. Mathew. J., as he then was) held that disciplinary proceedings could be initiated. The other Judge (S. Vein Pillai, J.) differed. Thereupon, the matter was placed before a third Judge (P. Govinda Menon, J.). The matter came-up before a Division Bench. One of the Honorable Judges (K.K. Mathew. J., as he then was) held that disciplinary proceedings could be initiated. The other Judge (S. Vein Pillai, J.) differed. Thereupon, the matter was placed before a third Judge (P. Govinda Menon, J.). The third Judge confirmed the view of K.K. Mathe w, J. (as he then was). Relevant portion of the judgment is at para 11, which read as follows:— “Learned counsel then raised the argument, that judicial officers are immune from liability at the instance of a party deeming himself to be aggrieved by their judicial acts or orders passed by them. Justice Mathew has exhaustively dealt with this question after referring to the observations made by the learned Judges in Anderson v. Gorrie (1895) 1 QB 868 and summed up by saying. “The effect of the decision, as I understand it, is this: a person exercising a quasi-judicial power is liable in damages to a party injured if the person exercising it has acted without bona fides or dishonesty or has failed to comply with the essential conditions for its exercise. The words of Lord Haldane would bear repetition: that the officer will be immune from liability if he ‘keeps within jurisdiction, observing the prescribed conditions, and action bona fide and honestly’. If these are not fulfilled, an action in damages would by implication lie. All the Law Lords except perhaps viscount Finlay seems to insist on bona fides, honesty and the observance of the prescribed conditions for the exercise of the power as essential conditions for immunity from liability. Gross recklessness even if held to be not malice is hardly consistent with bona fides. If for such an improper exercise of quasi-judicial, power an action would lie at the instance of the party injured, I can see no reason why it should not form the subject of a charge in a disciplinary proceeding.” I am in respectful agreement with the view expressed by the learned Judge.” 11. In paragraph 14, learned Judge has held, in what circumstances, a proceedings could be initiated. In paragraph 14, learned Judge has held, in what circumstances, a proceedings could be initiated. Para 14 reads as follows:— “Learned Counsel for the petitioner then proceeded to argue that if the provisions of “ S. 29 or the rules are disregarded, the resultant order becomes an illegal and an improper order and such orders should be questioned only in an appeal under S. 29 (4) or revision under S. 99 and if not so questioned the order would become final and could not in any way be questioned or reopened even by way of disciplinary proceedings. When the question of the propriety or legality of an order of sanction is brought up before the Government in appeal or revision they are not concerned with the conduct of the officer who passed the order, they are concerned only with the merits of the case, about the propriety and the legality of the order. The petitioner is proceeded against in these proceedings because in discharging his function, he acted in utter disregard of the provisions of the Act and the rules. It is the manner in which he dis charged his function that is brought up in this proceeding in substance that he acted in abuse of his powers and is guilty of misconduct. In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner, the petitioner acted in abuse of his powers and it is for such misconduct, that he is proceeded against. Abuse is only one “form of excess. If he has abused his power, then he is not acting under the statute. On the other hand, he is doing something which th e Statute has not authorised. Recklessness in the discharge of duties is misconduct, or in other words utterly ignoring the principles in accordance with which alone the power under S. 29 of the Act has to be exercised. ” (Emphasis supplied). The matter was taken up before the Honourable Supreme Court “and the decision thereon is reported in AIR 1967 SC 1274 ( Govinda Menon v. Union of India ). Before the Honourable Supreme Court also, a contention was raised that even though he was a statutory authority, he was discharging quasi-judicial function in sanctioning leases and, therefore, his actions cannot be questioned, and the same cannot be a ground for initiating disciplinary action. Before the Honourable Supreme Court also, a contention was raised that even though he was a statutory authority, he was discharging quasi-judicial function in sanctioning leases and, therefore, his actions cannot be questioned, and the same cannot be a ground for initiating disciplinary action. Relevant portion of the judgment (in para 8) reads thus:— “. The charge is therefore, one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of S. 29 and the Rules thereunder in sanctioning the leases . On behalf of the respondents, it was argued both by Mr. Sarjoo Prasad and Mr. Bindra that the Commissioner was not discharging quasi judicial functions in sanctioning leases under S. 29 of the Act, but we shall proceed on the assumption that the Commissioner was performing quasi-judicial functions in granting leases under S. 29 of the Act. Even upon that assumption, we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty . It is true that if the provisions of S. 29 of the Act or the Rules are disregarded, the order of the Commissioner is illegal and such an order could be questioned in appeal under S. 29(4) or in revision under S. 99 of the Act. But, in the present proceedings what is sought to be challenged is not the correct of the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commissioner. The appellant was proceeded against because in the discharge of his functions, he acted in utter disregard of the provisions of the Act and the Rules. If “the manner in which he discharged his functions that is brought up in these proceedings. In other words, the charge and the allegations are to the effect that in exercising his power as Commissioner, the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. If “the manner in which he discharged his functions that is brought up in these proceedings. In other words, the charge and the allegations are to the effect that in exercising his power as Commissioner, the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. It is manifest therefore, that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision, under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had 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 . ‘We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case.” (Emphasis supplied) In a very recent decision of Honourable Supreme Court reported in 1999(1) Supreme 448 ( Madan Mohan Chnudharv v. The. State of Bihar & ors. ) a similar question came up for consideration, which also is a case concerning Judicial Officer. While passings orders of anticipatory bail, dealing the case under Section 307 Indian Penal Code, in paragraph 26 of the Judgment, the Supreme Court held thus, “ The High Court should have considered that all entries prior to his promotion to Superior Judicial service were not bad and his integrity either as a member of the Interior Judicial Service or Superior Judicial Service was never doubted. The grant of anticipatory bail in a case under Section 307 IPC particularly when there was a cross case could not have been legally made the basis of compulsory retirement in the particular circumstances of this case. Whatever might have been the feeling of the learned Judge who entertained and ultimately allowed the petition for cancellation of bail granted by the appellant, the fact remains that it was an order passed on the judicial side in all bona fides. Whatever might have been the feeling of the learned Judge who entertained and ultimately allowed the petition for cancellation of bail granted by the appellant, the fact remains that it was an order passed on the judicial side in all bona fides. It may have been a wrong order but it was not a motivated order based on extraneous considerations. It was thus a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service prematurely in terms of Rule 74 of the Bihar Service Code.” (Emphasis supplied) 12. In a Division Bench Judgment of this Court reported in 1990-11 LLJ 12 ( R. Abdul Azeez v. State of Tamil Nadu, Board of Revenue (CT) ), S. Mohan Officiating Chief Justice (as he then was) began the judgment with the following words: “The case before us illustrates how persons wielding judicial authority are sometimes subjected to rigorous test; onerous enough to be engaged in the discharge of judicial functions, but if these persons are called upon to face disciplinary enquiry for passing wrong orders, of course, without any motivation, that would be a bad day indeed for them. With these prefactory remarks, we pass on to the facts of the case.” In paragraph 9 of the said decision, it has been held thus, “The next point urged is that in a judicial proceedings, assuming that the appellant had committed a mistake without adverting to the relevant provisions of law or without appreciating the scope of the law, he cannot be called upon to explain the same since against an incorrect order there are remedies by way of appeal and revision available under the Act; such an order could be corrected only in that manner known to law; of course, it is a different matter if motivation is alleged as against the appell ant; that is not so in this case; the decision reported in Govinda Menon v. Union of India (supra) , would have no application to the facts of this case; therefore, the rulings mentioned by the learned single Judge cannot be said to be correct.” 13. In (1989)176 I.T.R. 375 ( C.S. Kesavan v. State of Kerala and others ). K. Sreedharan. In (1989)176 I.T.R. 375 ( C.S. Kesavan v. State of Kerala and others ). K. Sreedharan. J., as he then was, also held thus:— “ Officers invested with quasi-judicial powers are to discharge their functions without fear of disciplinary action. If the officers invested with such powers are under the threat of disciplinary action on account of orders passed against the interest of the Government, it will interfere with their judicial discretion. It will result in a travesty of justice. Officers entrusted with authority to decide issues arising between citizens and the Government should have the freedom to take independent decisions in accordance with law. If their decisions go against the interest of the Government, the Government have to challenge these orders before the appellate or revisional forums as provided by the statute. The orders passed by such officers cannot subject them to disciplinary proceedings. ..”, 14. Going by the principles enunciated by the Honourable Supreme Court, respondent will be justified in taking action against the petitioner if he had acted in gross recklessness in the discharge of his duties, or he failed to act honestly or in good faith, or he omitted to observe the prescribed conditions which are essential for the exercise of his statutory power. Action taken by respondent can also be justified if the respondent has a case that the petitioner has abused his power, which means that he is not acting under the Statute, but he is going something which the Statute has not authorised. It must be misconduct, and only in such cases proceedings could be initiated. 15. Now I will consider the facts of the case. The Enquiry Report itself gives a vivid picture about the conduct of the petitioner. It is said that one Rajan, Inspector seized an Ambassador Car with two gunny begs each containing. 100 bottles of Ginger-beris and from another place seized 10 barrels, each ban-el containing 2000 litres of spirit. Forms were sent to Court. They were returned on the ground that the Judicial I Class Magistrate was on leave till 24-06-1981. Police sent a letter stating that the property was highly inflammable and dangerous to keep it and that the contents could be sold to licensed spirit dealers. That petition as dismissed by the Acting Magistrate. A request was also made to the District Collector, Ramanathapuram at Madurai calling for a list of licensed spirit dealers. Police sent a letter stating that the property was highly inflammable and dangerous to keep it and that the contents could be sold to licensed spirit dealers. That petition as dismissed by the Acting Magistrate. A request was also made to the District Collector, Ramanathapuram at Madurai calling for a list of licensed spirit dealers. A’ Report was received by the Court. No dealer was prepared to purchase the spirit. Thereafter, the Inspector of Police again sent another letter stating that the spirit was highly inflammable, and prayed for o rders for destruction of the spirit and coloured arrack after taking samples for chemical examination, Petitioner ordered destruction of the coloured arrack by police after taking samples. Later, the Inspector of Police wrote a letter stating that after taking same sample of coloured arrack, the remaining bottles containing coloured arrack were destroyed as per the order of the Magistrate (petitioner). Petitioner issued proceedings to the Inspector of Police, Devakottai directing him to destroy the spirit in his presence and also to send a certificate to the Court to that effect. The Inspector thereafter informed* the petitioner that the spirit has been destroyed. It is seen that there was a requisition by the police to send 10 bottles containing 450 ml of spirit, 10 inottles each containing about 450 ml of spirit and three bottles each containing about 450 ml of coloured arrack for chemical analysis. Accordingly, they were sent to the Tamil Nadu Forensic Science Laboratory, Madurai by petitioner hims elf for chemical analysis. Report was also received. It is the order of the petitioner permitting destruction of the spirit and arrack that is considered as misconduct. The order permitting destruction of the spirit, passed by the petitioner, reads thus:— “The spirit was seized on 18.06.81. The collector was addressed and reminded by D.O. to furnish a list of licensed traders to whom the spirit can be sold. He had furnished” a list and tenders were called for. No one has come forward to purchase the same. The Circle Inspector informed that the spirit is useless and it cannot be used for distillation. It is dangerous to retain it. I, therefore, direct that the spirit to be destroyed in the presence of the Circle Inspector of Police. He had furnished” a list and tenders were called for. No one has come forward to purchase the same. The Circle Inspector informed that the spirit is useless and it cannot be used for distillation. It is dangerous to retain it. I, therefore, direct that the spirit to be destroyed in the presence of the Circle Inspector of Police. The Circle Inspector of Police will arrange for the destruction of the spirit and send a certificate to this Court to that effect after it is destroyed.” 16. According to respondents, petitioner should not have passed the order in question without recording evidence, as required under Section 451, Cr.P.C. According to respondent, since petitioner has passed the order without taking evidence, he is liable to be proceeded with. 17. Section 451, Crl.P.C. reads thus:— “When any property is produced before any Criminal Court during any inquiry or trial the Court may make such order as it thinks fit for the proper custody or such property pending the conclusion of the” inquiry or trial, and if the property is subject to speedy and natural decay or if it otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.” 18. On going by the provision extracted above, it is clear that if the property is subject to speedy and natural decay or if it is otherwise expedient to do so, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Merely because petitioner has not taken evidence before passing the order permitting destruction of the spirit, can it be said that he was reckless in passing the Order, or can it be said that he abused his power, or can it be said that he omitted to observe the conditions prescribed for exercising the statutory power. 19. A reading of Sec. 451, Cr. P.C. makes it clear that recording of evidence is not compulsory in all cases. A certain amount of discretion is given to the Judicial Officer. If the property is subject to speedy and natural decay, an elaborate process of recording, evidence cannot be insisted upon. Likewise, if the Judicial Officer feels that it is otherwise expedient to dispose of the property, he need only consider the circumstances and form a prima facie opinion. A certain amount of discretion is given to the Judicial Officer. If the property is subject to speedy and natural decay, an elaborate process of recording, evidence cannot be insisted upon. Likewise, if the Judicial Officer feels that it is otherwise expedient to dispose of the property, he need only consider the circumstances and form a prima facie opinion. While exercising that power, he I discharges only his judicial functions, and unless the respondent pleads and proves that the action of the petitioner is an abuse of power or that he acted recklessly or that he acted against the mandate of the Statute which did not authorise him to do, disciplinary action cannot be taken against him. Recording of evidence is also not compulsory is clear from the Section (extracted above). The Officer can rely on several materials to come to a conclusion whether it is expedient to destroy the property. The Enquiry Officer has held in the last sentence of paragraph 20 thus:— “. That is why there is a provision that the order should be passed after recording such evidence as it thinks necessary. Certainly there are ample powers to pass orders; but what is contemplated is it should be done after recording evidence .” (Emphasis supplied) We cannot subscribe to that view on going by the Section. Petitioner has also said that he relied on Ex. P-11, letter of the Inspector of Police, wherein it was said that the spirit was inflammable and immediate destruction was necessary. The Enquiry Officer has said that the request of the Inspector of Police cannot be treated as evidence, for, that is only a demand by a Police Officer. 20. The bone fides of the petitioner could be seen from the fact that even before the Order was passed, samples were sent for chemical analysis. After destruction of those materials, the analyst has sent a Report to Court that the materials were inflammable. Therefore, the action of petitioner cannot be said as lacking in good faith. No person is aggrieved by the Order passed by the petitioner. Nobody has complained that it is an illegality, or that it is against the provisions of Sec. 451, Cr.P.C. This also can be taken as an added circumstances to hold that the action - of respondent was unwarranted. 21. No person is aggrieved by the Order passed by the petitioner. Nobody has complained that it is an illegality, or that it is against the provisions of Sec. 451, Cr.P.C. This also can be taken as an added circumstances to hold that the action - of respondent was unwarranted. 21. Merely because petitioner had not recorded oral evidence, can it be said that he passed the Order recklessly, or that he passed the Order against the provisions of any Statute. 22. An abuse of power contemplates misusing the power, and using ones position for something for which it is not intended.. 23. Petitioner is also governed by Conduct Rules. The Conduct Rules indicates that disciplinary proceedings can be held against a member of the service for any act or mission. The Rules prescribe a Code of conduct for members of service. In the decision reported in AIR, 1979 SC 1022 ( Union of India and others v. J. Ahmed ). Their Lordships considered as to what is meant by ‘misconduct’. Relevant portion of the decision reads thus:— “ 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 blame-worthy 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 Peace v. Foster ) (1886) 17 QBD 536 (at p. 542). A disregard of an essential condition of the contract of a service may constitute misconduct (see Laws v. London Chronicle (Indicator News Papers) (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 Raza” (1969) 10 Guj. LR 23. The High Court has noted the definition of misconduct in Strouds Judicial Dictionary which runs as under: “ Misconduct means, misconduct arising from ill motive, acts of negligence, errors of judgment, or innocent mistake do not constitute such misconduct. LR 1596. ( AIR 1961 Bom. 150 and Satubha K. Vaghela v. Moosa Raza” (1969) 10 Guj. LR 23. The High Court has noted the definition of misconduct in Strouds Judicial Dictionary which runs as under: “ Misconduct means, misconduct arising from ill motive, acts 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 employees 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. Kalvani 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 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 of malevolence. 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 of malevolence. Leaving aside the classic “example of the entry who sleeps at the post and allows the enemy to slip through, there are other more familiar (examples) instances of which (re) a railway cabin signalling in a train on the same track where there is a stationary train causing headlong collision; a nu rse giving intravenous injection which ought to be given intra muscular 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 great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd. (1978) 19 Guj. L.R. 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. ” (Emphasis supplied) 24. I have already extracted the charges framed against the petitioner herein. On the basis of the decision reported in AIR 1979 SC 1022 (supra), I do not think that even the respondent can allege misconduct as per, conduct Rules. Of the two charges, petitioner has been relieved of the second charge. According to us, if the petitioner is absolved from the second charge, how far he could be found guilty of the first charge, is doubtful. From the date of his appointment till date, no allegations have been made against him, and his honesty and integrity were never questioned by his superiors. His confidential reports are clean. If, as contended by respondent, an order under Sec. 451, Cr.P.C. can be passed only after evidence, the omission to record evidence will only be a lapse in performance of his duty. That will not be a misconduct under law, unless that omission results in serious or atrocious consequences. As held by the Honourable Supreme Court in the same case, a single act or omission or error of judgment would ordinarily not constitute misconduct. Honestly believing the statement of the Inspector of Police, that there was inflammable material, petitioner passed the Order in question. As held by the Honourable Supreme Court in the same case, a single act or omission or error of judgment would ordinarily not constitute misconduct. Honestly believing the statement of the Inspector of Police, that there was inflammable material, petitioner passed the Order in question. Therefore, that cannot be said to be an act of recklessness. At the most, it can be said as an error of judgment in evaluating the situation. There is no loss to anyone, nor has anyone filed any complaint against the order passed by petitioner under Sec. 451, Cr.P.C. To pass on order without taking evidence under Sec. 451, Cr.P.C. will, at the most, amount to carelessness. Respondent also must understand that failure to attain highest standards in discharge of duty may be negligence, and that it would not amount to misconduct. If there is no misconduct, the first charge also cannot stand. No ground is made out by respondent for initiating disciplinary proceedings against the judicial order passed by petitioner. 25. In view of the declaration of law by the Honourable Supreme Court, and taking into consideration the charge and the evidence adduced, we do not find any justification in initiating disciplinary proceedings against the petitioner. The impugned order is, therefore, liable to be quashed and we do so. Since we quash the impugned proceedings, the other two questions do not arise for consideration. 26. Now that the petitioner has retired from service, we declare that he will be deemed to have been in service till the date of his retirement. On the basis of this declaration, he is also entitled to the attendant monetary benefits. The impugned order is quashed. The writ petition is allowed as indicated above. No costs.