Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 726 (ALL)

LALLAN PRASAD SINGH v. STATE OF UTTAR PRADESH

2001-07-23

D.R.CHAUDHARY, S.R.SINGH

body2001
S. R. SINGH, D. R. CHAUDHARY, JJ. ( 1 ) THE petitioner, an Assistant Engineer presently posted at Kanpur Development Authority, kanpur, seeks issuance of writ of certiorari quashing the order dated 14. 6. 2001 being annexure-1 to the writ petition whereby he has been placed under suspension on a charge which relates to his duties while he was posted at Allahabad Development Authority. Allahabad. ( 2 ) IT has been submitted by Shri U. N. Sharma, learned counsel appearing for the petitioner that the charge against the petitioner is that he failed to take effective steps in arresting unauthorised constructions in residential scheme of Allahabad Development Authority in Jhusi and was remiss in discharge of his duty but mere failure on the part of the petitioner to take effective steps in preventing the unauthorised constructions and mere carelessness in discharge of duties do not constitute misconduct warranting disciplinary action. Shri Sharma has placed reliance on a decision of the Supreme Court in Union of India v. J. Ahmad, AIR 1979 SC 1022 . Learned standing counsel representing the State and Shri J. N. Sharma, learned counsel appearing for allahabad Development Authority. Allahabad (party respondent Nos. 2), on the other hand, submitted that the charge levelled against the petitioner are such as may warrant major penalty in the event of the same being established at the enquiry and therefore, recourse to suspension cannot be said to be unjustified. ( 3 ) WE have given anxious consideration to the submission made across the Bar. The proviso to rule 4 (1) of the U. P. Government Servants (Discipline and Appeal) Rules, 1999 visualizes that recourse to suspension would not be taken unless the charge is such as may warrant major penalty in the event of same being established at the enquiry. Therefore, the question is whether charges as levelled against the petitioner are such as may warrant imposition of major penalty in the event of the same being established at the enquiry. The charges against the petitioner as stated in the impugned order are two fold; first, that he failed to take any effective steps in preventing the unauthorised constructions in the residential scheme launched by the Allahabad development Authority, Allahabad in Jhusi Kshetra, and second, that he was remiss in discharging his duties. The charges against the petitioner as stated in the impugned order are two fold; first, that he failed to take any effective steps in preventing the unauthorised constructions in the residential scheme launched by the Allahabad development Authority, Allahabad in Jhusi Kshetra, and second, that he was remiss in discharging his duties. In Union of India and others v. J. Ahmad (supra) it has been held that mere negligence and lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not be construed misconduct unless consequences are directly attributable to negligence which would be such as to be irreparable or the resultant damage would be very high. The respondent J, Ahmad in that case had initially joined service in Assam State but later on came to be promoted to the Indian administrative Services cadre and soon thereafter he was posted as Deputy Commissioner and district Magistrate, Navgaon and while he was posted on aforementioned post, there was a large scale of linguistic disturbance in the Navgaon which led to his suspension from service. The charges framed against him affirmatively showed failure on his part to take any effective preventive measures. Such a charge, in the context, was construed as an error in judgment in evaluating developing situation and since the allegations on various charges did not specify any act or omission in dereliction of duty or contrary to conduct, rule or any general rule prescribed within the "duty", it was held that the charges at the most only indicate the shortcomings in the personal capacity or the degree of efficiency of the respondent but such deficiency in personal character and personal ability would not be construed as "misconduct" for the purpose of disciplinary proceeding. The Apex Court, however, held that gross or habitual negligence in performance of duty may constitute misconduct for disciplinary proceeding. ( 4 ) A perusal of the charge-sheet dated 14. 6. 2001 simultaneously issued in the instant case would indicate that it is not a case of mere negligence in discharge of duty but something more. The petitioner, according to charge No. 2, was engrossed (Lipt) in getting the unauthorised constructions raised (Aap Avaidh Nirman Karane mein Sanlipt Hain ). ( 4 ) A perusal of the charge-sheet dated 14. 6. 2001 simultaneously issued in the instant case would indicate that it is not a case of mere negligence in discharge of duty but something more. The petitioner, according to charge No. 2, was engrossed (Lipt) in getting the unauthorised constructions raised (Aap Avaidh Nirman Karane mein Sanlipt Hain ). It has been held in numerous cases that if an act or omission of a Government servant reflects his devotion to duty as a public servant, such an act or omission may be the subject-matter of disciplinary action as misconduct. Lopes L. J. in Pearce v. Fosters, (1866) 17 QBD 536, has observed : "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". Decision aforestated has been quoted with approval in Union of India and others v. K. K. Dhavan, JT 1993 (1) SC 236, as well as in J. Ahmad (supra ). A Government servant, therefore, can be subjected to disciplinary action for his act or omission which reflects his good faith and devotion to duty or which shows recklessness in discharge of his duty. Rule 3 (1) of the U. P. Government Servants Conduct rules. 1956 envisages that every Government servant shall maintain at all times absolute integrity and devotion to duty. In the charge-sheet being Annexure-2 to the writ petition, there is a specific allegation that the petitioner was in fact engrossed (Lipt) in getting a large scale of unauthorised constructions raised. In other words, the charge is that he was himself instruments in encouraging a large scale of unauthorised constructions. In the circumstances, therefore, it cannot be said that recourse to suspension was unjustified. ( 5 ) IT was next contended by Shri U. N. Sharma that the charge that the petitioner failed to take effective steps in preventing unauthorised constructions as also the charge of being remiss in discharge of duty are quite vague and, therefore, the petitioner who is no longer posted in the allahabad Development Authority, Allahabad, ought not to have been suspended. It is true that the charges as mentioned in the impugned suspension order are vague and indefinite but the charge-sheet (Annexure-2 to the writ petition) simultaneously served to the petitioner is quite precise and the charges mentioned therein do not suffer from the vice of vagueness. The defect stands removed. Therefore, neither the suspension order nor the charge-sheet is liable to be quashed. ( 6 ) HOWEVER, in view of the allegation that the petitioner was assigned the construction zone-III sub-Zone 12. Jhusi Kshetra only for a short period of 8-9 months and that the Nayay Avas Yojna had been developed by a registered housing society known as Sarvahit Sahkari Awas Samiti, the members whereof had started raising construction in 1988 and the Government itself initiated self-Compounding Scheme, 1999 with a view to regularising the unauthorised constructions pursuant whereof 135 owners of the Nayay Nagar Colony applied for compounding of their construction on payment of the prescribed fee and the Allahabad Development Authority Board considered the matter of regularisation of the colony in its 71st meeting held on 29. 9. 2000 vide item No. 1161 and a regularisation plan of the colony has been prepared and approved by the vice-Chairman, it is provided that in case the petitioner files his explanation to the charge-sheet, the enquiry shall be completed within two months from the date of submission of the reply failing which the petitioner shall be reinstated without prejudice to the enquiry provided that failure to complete the enquiry within the period aforesaid is not attributable to the petitioner. ( 7 ) THE writ petition is disposed of in terms of the above directions. .