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2008 DIGILAW 362 (CAL)

Food Corporation Of India v. Pankaj Kumar Sarkar

2008-04-02

Manik Mohan Sarkar, Pratap Kumar Ray

body2008
JUDGMENT Pratap Kumar Ray, J. 1. HEARD the learned Advocates for the parties. 2. ASSAILING the judgment and order dated 21st June, 2007 passed by the learned Trial Judge in W. P. No. 1312 of 2006 this appeal has been preferred by the Food Corporation of India and some of its officers. By the impugned judgment under appeal, learned trial Judge allowed the writ application and thereby quashed the impugned order of punishment imposed in a departmental proceeding concluded following the Service Regulation by which the writ petitioner is controlled and guided. Punishment imposed in a departmental proceeding was reduction by two stages in the time scale of pay for a period of three years without cumulative effect, a minor punishment in terms of the Service Regulation. The factual matrix of the writ application in short is to this effect. The writ petitioner while working in the post of Regional Manager (W.B) of Food Corporation of India headed a Committee as Chairman to negotiate the rate of rental of godown which was taken on hire by the Food Corporation of India from M/s. Royal Enterprises. The Committee consisted of four members including the writ petitioner as Chairman thereof, unanimously took decision to enhance the rental from 60 p. to Rs. 1/- per sq. ft. effective from 1st April, 2003 for a period of three years. This decision was taken on 2nd December, 2004 but subsequently the writ petitioner made a note suggesting enhancement of the rate to the tune of Rs. 1.20 per sq. ft. which, however, was not accepted by the Senior Regional Manager. Due to that conduct of the writ petitioner, departmental proceeding was initiated for imposing minor penalty by serving the imputation of misconduct or misbehaviour. The writ petitioner submitted his objection which was considered and ultimately a punishment was imposed reducing his pay of scale for a period of three years. 3. THE writ application was opposed by the present appellant by filing affidavit-in-opposition. It was contended therein that the decision in the departmental proceeding was justified and there was no scope of judicial review. It was further argued that the writ application was not maintainable in view of alternative remedy of appeal under the Service Regulation. 4. 3. THE writ application was opposed by the present appellant by filing affidavit-in-opposition. It was contended therein that the decision in the departmental proceeding was justified and there was no scope of judicial review. It was further argued that the writ application was not maintainable in view of alternative remedy of appeal under the Service Regulation. 4. THE learned trial Judge after hearing the matter, however, quashed the punishment as imposed including the charge sheet of the departmental proceeding by holding that the imputation of misconduct as alleged could not be brought under misconduct of the service law. In this appeal the appellant has contended by referring to the Service Regulation about the statutory provision of appeal to uphold their stand that the writ was not maintainable. Besides that it has been argued that though the godown owner agreed to the rental of Rs. 1 per sqr. ft. in terms of the decision of the meeting held on 2nd December, 2004 and thereby prayed for implementation of the same by a letter dated 18th December, 2005 but the writ petitioner holding the senior post in the Managerial cadre suo motu placed a note for enhancement on the plea that the godown owner was pressing hard though it was the fact that the godown owner agreed to such rate. This conduct, in fact, was tested in the departmental, proceeding as had there been acceptance of this rate as suggested by the writ petitioner despite finality of rate in a meeting with the godown owner where the writ petitioner was the Chairman, the Corporation would have to incur further amount of money resulting loss of business. It has been further urged that a senior officer holding the rank of Regional Manager in due discharge of his duty had no scope to make any suggestion even for enhancement of rate when already the matter was settled and decided and as such suggestion itself was beyond the scope and field of his duty being in the senior management position and so the conduct very well is attracted by the word 'misconduct' under Service Rule. 5. THE writ petitioner opposed this appeal repeating the argument advanced before the learned Court below. For effective adjudication of the matter we have considered the records as well as the affidavits as placed before the learned trial Judge to test the legality and validity of the Judgment under appeal. 5. THE writ petitioner opposed this appeal repeating the argument advanced before the learned Court below. For effective adjudication of the matter we have considered the records as well as the affidavits as placed before the learned trial Judge to test the legality and validity of the Judgment under appeal. 6. THE admitted facts as appear from the writ application, affidavit-in-opposition and affidavit-in-reply thereof are to this effect. That the godown owner at the material time namely, Globe Engineering Company from whom M/s. Royal Enterprise had taken right to possess the godown submitted an application on 21st March, 2001 to the Regional Manager of Food Corporation of India seeking enhancement of rent at least to Rs. 1 per sqr. ft. from 60 p. per sqr. ft. as was existing at the material time. To decide that issue, a committee was set up comprising of the writ petitioner, Shri S. Ghosh, DM (Finance), Shri P. Chowdhury, DM (Procurement) and Shri P. C. Banerjee D.M. (Storage). THE writ petitioner holding his rank as Regional Manager (W.B) became the Chairman of the said Committee. This Committee was empowered by the decision of the employer Food Corporation of India to settle the matter to enhance the rental as prayed for by the godown owner. On 2nd December, 2004 the Committee by holding a meeting came to the following decision: "Minutes of meeting held on 2.12.2004 with the authorised representative of M/s. Royal Enterprise, owner of the ARDC-Kalighat for settlement of rent of the depot. As per this office order No.E/1(4)/88/Stg/ARDC-Kalighat/817 dated 24.11.04 a negotiation meeting was held under the Chairmanship of RM(WD) on 2.12.04 at 2 Pm. with the authorised representative of M/s. Royal Enterprise the owner of ARDC-Kalighat depot to settle the rent of the Depot. In the said meeting Shri Amit Kr. Saha, authorised representative of the owner of the depot attended the meeting and Shri S. Ghosh, DM(Fin.), Shri P. Choudhury, DM(Proc.) and Shri P.C. Banerjee, DM(Stg.) I/C, R.O., Kolkata were present. Opening the discussion Shri Saha has pleaded that the rate of Rs.2.40 p. per sq. fit, per month is the prevailing market rate they should be awarded the said rate. During discussion Shri Saha has pointed out that SWC has hired another shed under their ownership in the same complex @ Rs. 1.25 p. per sq. ft. Opening the discussion Shri Saha has pleaded that the rate of Rs.2.40 p. per sq. fit, per month is the prevailing market rate they should be awarded the said rate. During discussion Shri Saha has pointed out that SWC has hired another shed under their ownership in the same complex @ Rs. 1.25 p. per sq. ft. per month w.e.f. 01.8.03 and produced a xerox copy of the letter dated 23.12.03 written by SWC authority addressed to the M/s. Royal Enterprise and pressed for enhancement of rent @ Rs.1.25 p. per sq. ft. per month w.e.f. 1.4.2003. After prolong persuation by the members of the committee including RM goodself Shri Saha has agreed to accept rent @ Rs. 1.00 per sq. ft. per month w.e.f. 1.4.2003 for a period of 3 (three) years provided 50% Municipal tax (i.e. occupier's share) is paid by FCI. THE committee members have noted that the rent of the depot as fixed of Rs.0.60 p. per sq. ft. per month as on the date of hiring of the depot on 8.8.1985 has not been revised during the long span of occupation. THE present trend of the market has been upward during this long period, which is also evident from the fact that for other shed of the godown within the same complex the SWC has been paying rent @ Rs. 1.25 p. per sq. ft. per month. Taking into view the above aspects, the members of the committee hold the view that the rate of Rs.1.00 per sqft. per month as on 1.4.2003 and continuance of the same rate for a period of 3 (three) years appear to be reasonable as also that such enhancement of rent does not appear disproportionate after a span of 19(nineteen) years w.e.f. 1985 to 2003. THE statutory liability(s) of occupiers towards Municipal/Panchayat tax will be as per provisions." On 5th January, 2005 such decision of the Committee was placed in the office note by the concerned clerk to the Assistant Manager (Storage) who recommended to approve the rent of Rs. 1 per sqr. ft. In terms of the Committee decision on 5th January, 2005, the note of the concerned clerk as made on 5th January, 2005 and the note of the Officer, Shri J. N. Biswas reads such: Sub: Enhancement of rent against ARDC-Kalirhat, under D.O. Naida per Rs. 0.60 to Rs.1/- sft. 1 per sqr. ft. In terms of the Committee decision on 5th January, 2005, the note of the concerned clerk as made on 5th January, 2005 and the note of the Officer, Shri J. N. Biswas reads such: Sub: Enhancement of rent against ARDC-Kalirhat, under D.O. Naida per Rs. 0.60 to Rs.1/- sft. The Food Corporation of India is in occupation of ARDC-Kalirhat measuring 57,231 sft (at present) and is paying monthly rent 00.60 p per sft./month, since 1985. The owner was pressing hard for enhancement of rent and was pleading that S.W.C has also occupied godown and office space and paying @ Rs.1.25 per sft. since 1.8.03 for a total space 28,870 sft and hence the rate @ Rs.1.50 per sft w.e.f. 1.8.05 (CP-317C) The matter was put up to the competent authorities and the Regional manager had constituted a committee comprised of DM(Fin), DM(Proc), DM(Stg) (np,38'7). However, the said committee members under the Chairmanship of the Regional Manager negotiated the rate with the representative of the owner Sri Amit Kr. Saha on 2.12.04 and after a protracted negotiation arrived at a conclusion that payment of rent enhancing from Rs.0.60 to Rs.1.00 per sft. w.e.f. 1.4.2003 for a period of three years and further payment of 500 Municipal Tax, being the occupier's share would be reasonable. Accordingly Minutes has been drawn and placed at P.38 for final approval. It may be added here that for enhancement of rent from Rs.0.60 to Rs.1.00 per sft per month for a total space of 57,231 sft. occupied by the FCI, an amount of Rs.22,892 (rounded up) in addition to Rs.34,339/- i.e. a total amount of Rs.57,281/- will have to be borne by FCI towards monthly rent of ARDC Kalirhat. It may further be added that when paying @ Rs. 1.60 Put up for kind perusal and according approval please." 7. HOWEVER, the writ petitioner submitted an otherwise contention with reference to the said note as placed for onward transmission of the file to the Senior Regional Manager by his note dated 25th January, 2005 contending inter alia that the rate should be increased to Rs.1.20 per sft. In that note it was contended that a decision was reached to enhance the rent to the tune of Re. 1 by enhancing it from Re. 0.60 but he suggested by putting a note "we may allow to the rent Rs.1.20 per Sft. In that note it was contended that a decision was reached to enhance the rent to the tune of Re. 1 by enhancing it from Re. 0.60 but he suggested by putting a note "we may allow to the rent Rs.1.20 per Sft. at par with the proposal of ARDC, Barasat and ARDC, Boharia so that at least a parity could be maintained in the matter of the rent amongst the ARDC of the adjacent area for making payment @ Rs. 1.20 per Sft. with effect from 1st April, 2003." The said note reads thus: M/s. Royal Enterprise, owner of the ARDC, Kalirhat is pressing hard for enhancement of his godown rent and also for execution of a fresh lease agreement for the godown. Above party has claimed enhancement of rent @ 15% for every alternate 4 years w.e.f. 01.09.88 and submit an arrear bill of Rs. 29,46,629.08. The original lease agreement was executed on 8.8.1985 with M/s. Globe Engineering Co., ex-owner of the depot @ 0.60 paise per sft. per month i.e. total rent of Rs. 51,508.53 per month for 85,847.580 sq. ft. area for initial period of 3 years with the provision to extent for another year on the same terms & conditions at the option of F.C.I. Since then neither rent was enhanced nor lease agreement was executed further. In the meantime the ownership of the godown has been transferred from M/s. Globe Engineering Co. to M/s. Royal Enterprise w.e.f. 01-04-2003. Now M/s. Royal Enterprise has become a claimant towards rent of the depot and he is claiming the rent of the depot prior to 1-4-2003 due to the rights accrued by purchase of the godown by M/s. Royal Enterprise. Food Corporation of India West Bengal Region A. Committee was constituted by the following Officers: 1) Shri P.K. Sarkar, R.M. 2) Shri S. Ghosh, D.M. (Finance) 3) Shri P. Chowdhury, D.M. (Procurement) 4) Shri P. Banerjee, D.M. (Storage) for settlement of the claim for enhancement of the rent of M/s. Royal Enterprise and also other points raised by them in the meeting. During the course of discussion the owner has placed a record of showing that the SWC is also an occupant of one godown under the same premises under their ownership and they are paying @ 1.25 per sft. since 1.8.2003 for a total space of 28,870 sft. and enhanced their rent @ Rs. During the course of discussion the owner has placed a record of showing that the SWC is also an occupant of one godown under the same premises under their ownership and they are paying @ 1.25 per sft. since 1.8.2003 for a total space of 28,870 sft. and enhanced their rent @ Rs. 1.50 per sft. w.e.f. 1.8.2003 and at the same time placed in support of their claims for enhancement of their rent. After prolong discussion a negotiation was arrived a conclusion that rent @ Rs. 1/- from 0.60 Paise may enhanced to make him at per with other ARDC godown of the adjacent area/districts w.e.f. 1.4.2003 for a period of 3 years and further payment of 50p Municipal/Panchayat Tax being the occupant's share also be allowed as per the Tenant Act, as the party is pressing very hard for enhancement of the godown rent @ Rs. 1.25 per sft., it may be considered that the same ARDC, Alamganj is getting rent @ Rs. 1.60 per sft. and ARDC, Gopalpur and Khagrabari also getting Rs. 2/- per sft. So as the depost are in ARDC in nature and there is difference in rent amongst ARDC owners, we may allow to the rent Rs. 1.20 per Sft. at par with the proposal of ARDC, Barasat and ARDC, Boharia so that at least a parity could be maintained in the matter of the rent amongst the ARDC of the adjacent area for making payment @ Rs. 1.20 per Sft. w.e.f. 1.4.2003. Sd/- Regional Manager 25.1.05 The Senior Regional Manager however did not agree to such. The note of SRM reads thus: We can't pay municipal tax, if we are not paying at present We can't double the rent for the present rent of 0.60 paise per sft. What has been for Dohoria and Barasat be brought by an file Sd/- 27.1.05. 8. THE concerned file of Dohoria and Barasat were brought and ultimately SRM accepted the rental of Re. 1/- as decided by the said Committee in a meeting where writ petitioner was the Chairman. THE appellant considered the note suggesting to enhance the rate to Rs.1.20 p. as an act of misconduct under the Service Law applicable to the writ petitioner's service position and rank and thereby issued a memorandum on 16th June, 2006 annexing the statement imputation of misconduct or misbehavior, and a departmental proceeding was initiated. THE appellant considered the note suggesting to enhance the rate to Rs.1.20 p. as an act of misconduct under the Service Law applicable to the writ petitioner's service position and rank and thereby issued a memorandum on 16th June, 2006 annexing the statement imputation of misconduct or misbehavior, and a departmental proceeding was initiated. THE memorandum dated 16th June, 2006 and the imputation of misconduct read thus: Confidential No. Vig.21(135)/05/EZ Dated 16.6.2006 Memorandum 1) Shri P.K. Sarkar, Deputy General Manager, West Bengal, Kolkata is hereby informed that it is proposed to take action against him under Regulation 60 of FCI (Staff) Regulations, 1971. A statement of the imputations of misconduct or misbehavior on which action is proposed to be taken is enclosed. 2) The said Shri P.K. Sarkar is hereby given an opportunity to make such representation as he may wish to make against the proposal. He is also allowed to inspect the relevant documents at FCI. Regional Office, Kolkata in case he so desires. 3) If Shri P.K. Sarkar fails to submit his representation within 10 days of the receipt of this memorandum, it will be presumed that he has no representation to make and orders will be liable to be passed against him Ex-Parte. 4) The receipt of this Memorandum should be acknowledged by the said Shri P.K. Sarkar. (A.K. DUBEY) Chairman & Managing Director Shri P.K. Sarkar, Deputy General Manager, Food Corporation of India, Regional Office (West Bengal), Kolkata.....Through General Manager (West Bengal). FCI, Regional Office, KOLKATA Statement of Imputations of misconduct or misbehaviour on which action is proposed to be taken against Shri P. K. Sarkar, Deputy General Manager, FCI, Regional Office, of West Bengal, Kolkata. Shri P.K. Sarkar while working as Regional Manager, FCI, West Bengal Region, Kolkata during the year 2004-05 failed to maintain devotion to duty in as much as - That FCI, West Bengal had hired the ARDC Godown at Kalirhat measuring 85847.580 Sq.ft from M/s. Globe Engineering Co. in 1985 at the rent rate of Re. 0.06 per Sq. ft per month as per lease agreement executed on 8.8.1985 for an initial period of 3 years with a provision to extent for another one year at the same terms and conditions. Since then neither the lease agreement was executed further nor the rent was enhanced. in 1985 at the rent rate of Re. 0.06 per Sq. ft per month as per lease agreement executed on 8.8.1985 for an initial period of 3 years with a provision to extent for another one year at the same terms and conditions. Since then neither the lease agreement was executed further nor the rent was enhanced. THE ownership of the godown changed hands and M/s Royal Enterprises became the owner of the godown w.e.f. 1.4.2003 as intimated by the party vide their letter dated 17.6.2003 addressed to the SRM, FCI, West Bengal. At that time, FCI was in occupation of storage space of 57231 sq ft at the godown. M/s. Royal Enterprises vide their aforesaid letter dated 17.6.2003 requested for holding negotiations with them at the earliest for settlement of the rent as well as terms of tenancy stating that the present market rate was too high and the maintenance cost had gone up exorbitantly and the party demanded the rent @ Rs. 2.40 per sq ft. Accordingly a committee was constituted comprising of DM (Finance), DM(Storage), DM (Procurement) and Charged Officer as the Chairman of the Committee for negotiation with the owner of the godown of ARDC Kalirhat to consider the request of the party for enhancement of the godown rent. THE committee under the Chairmanship of the C.O. negotiated the rent with the representative of the owner Shri Amit Kumar Saha on 2.12.04 and enhancement of rent from Re. 0.60 to Re. 1/- per sq ft per month w.e.f. 1.4.03 for a period of 3 years was agreed to with further stipulation that payment of 50% Municipal Tax being the occupier's share would be paid by FCI. While submitting the minutes of the meeting to SRM, the C.O. in his note Para 395 and 396 dated 25.1.2005 stated that during the course of negotiation the owner had placed on record showing that SWC was also an occupant of one of their godowns in the same premises and were paying rent @ Rs. 1.25 per sq ft since 1.8.2003 for a total space of 28870 sq ft and enhanced their rent @ Rs. 1.50 per sq ft w.e.f. 1.8.2005; after prolonged discussion the negotiations for enhancement of rent were concluded @ Re. 1.25 per sq ft since 1.8.2003 for a total space of 28870 sq ft and enhanced their rent @ Rs. 1.50 per sq ft w.e.f. 1.8.2005; after prolonged discussion the negotiations for enhancement of rent were concluded @ Re. 1/- per sq ft w.e.f. 1.4.2003 for a period of 3 years etc; the party was pressing very hard for enhancement of the godown rent @ Rs. 1.25 per sq ft. THE Charged Officer recommended for enhancement of rent to Rs. 1.20 per sq ft to bring the party at par with the owners of ARDC Alamganj and Gopalpur/Khagrabari who were stated to be getting the rent @ Rs. 1.60 per sq ft and Rs. 2/- per sq. ft respectively and also at part with the proposal of ARDC Barasat and ARDC Doharia. THE SRM, West Bengal observed on the proposal as under: i) We can't pay Municipal tax, if we are not paying at present. ii) We can't double the rent from the present rent of Re.0.06 per sq ft. iii) What has been agreed for Doharia and Barasat be brought on file. THE desired information was furnished to the SRM on file from note para 398 to 400 by the Storage Division. THE C.O. in his note para 401 dated 4.2.2005 indicated that the rent for ARDC Doharia was being paid @ Rs. 1.20 per sq ft and for ARDC Barasat @ Rs. 0.96 per sq ft w.e.f. 1.5.2003. THE rent for ARDC Alamganj was being paid @ Rs. 1.160 per sq ft and ARDC Gopalpur and Khagrabari @ Rs. 2/- per sq ft; hence there is discrimination amongst the owners of the ARDC godowns who were being paid @ ranging from Re. 0.06 to Rs. 2/- and again suggested for enhancement of the rent for ARDC Kalirhat @ Rs. 1.20 per sq ft. THE SRM observed on the proposal as under: i) THE difference would continue according to location of godowns and time of demand made by the owners. ii) No parity can be brought. iii) THE rent of Kalirhat which is situated far from Kolkata can not be brought at par with Kolkata area. iv) THE rent of Kalirhat can not be doubled as owner never demanded increase earlier since 1984. However, the proposal for enhancement of rent to Rs. ii) No parity can be brought. iii) THE rent of Kalirhat which is situated far from Kolkata can not be brought at par with Kolkata area. iv) THE rent of Kalirhat can not be doubled as owner never demanded increase earlier since 1984. However, the proposal for enhancement of rent to Rs. 1.20 per sq ft as made by the Charged Officer was not agreed to and approval was accorded for enhancement of rent to Re 1/- per sq.ft from Rs. 0.06 w.e.f. 1.7.2003 was accorded by the Competent Authority. It is evident from the above that the Charged Officer had recommended for enhancement of rent of ARDC Kalirhat to Rs. 1.20 from Re. 0.60 with a mala fide intent to cause wrongful gain to the party and consequential loss to the FCI inasmuch as when the party had already agreed to enhancement of rent to Re 1/- per sq ft and consented to the negotiated increase vide their letter dated 2.12.2004 as mentioned in the note of Joint Manager (FandA) dated 9.3.2005, there was no logic/justification for the Charged Officer to propose for further increase to Rs. 1.20. It is also evident from the letter dated 18.2.2005 of the party that they had very willingly agreed to the negotiated rate of Re. 1/- and requested for decision as early as possible. Thus by his aforesaid acts Shri P.K. Sarkar had failed to maintain absolute integrity and devotion to duty by taking extraordinary interest in causing extra benefit to the godown owner at the cost of FCI and thereby violated Regulations 31,32 read with 32(A) of FCI (Staff) Regulations, 1971. No.PA/RM/WB/2005. Dated : 28/06/06 To The General Manager (WB) Food Corporation of India 6, Royd Street Kolkata-16. Sub : Reply in respect of Memorandum bearing No. Vig. 21(135)/05/EZ dated 16/6/06. Sir, I am to submit herewith reply in respect aforesaid Memorandum received through you on 23/6/06 containing page SI. No. 1 to 23 including annexure page SI. 8 to 23 for onward transmission to the Executive Director, Vig./C.V.O., Food Corporation of India, Headquarters, 16-20, Barakhamba Lane, New Delhi-110001. The copy of the same may please be acknowledged. Yours faithfully, (P.K. SARKAR) DY. GENERAL MANAGER (WB) Copy to: The Executive Director (Vig./C.V.O.) Food Corporation of India 16-20, Barakhamba Lane New Delhi - 110001___for information please. 8 to 23 for onward transmission to the Executive Director, Vig./C.V.O., Food Corporation of India, Headquarters, 16-20, Barakhamba Lane, New Delhi-110001. The copy of the same may please be acknowledged. Yours faithfully, (P.K. SARKAR) DY. GENERAL MANAGER (WB) Copy to: The Executive Director (Vig./C.V.O.) Food Corporation of India 16-20, Barakhamba Lane New Delhi - 110001___for information please. The reply of the aforesaid Memorandum has been submitted to the S. Regional Manager, Kolkata for onward transmission to you. This may please be recorded. 2. The Executive Director (EZ) Food Corporation of India 10A, Middleton Row Kolkata -71.....for favour of information. (P.K. SARKAR) Dy. GENERAL MANAGER (W.B.) A reply was filed against the said imputation of misconduct by contending that as the matter was referred to from the Storage Section right from the junior level staff to him, so a note was issued to enhance the rate. The reply as filed reads thus: Dated : 28th June, 2006 The Chairman & Managing Director Food Corporation of India 16-20, Barakhamba Lane New Delhi-110001 Through Proper Channel Sub : Reply in respect of Memorandum bearing No. Vig.21(135)/051EZ dated 16-6-2006. Sir, With reference to the Memorandum referred above received by me on 23rd June, 2006 through General Manager, West Bengal Region, Kolkata for submitting the reply within 10 days from the date of receipt of the Memorandum, I am to submit the following. Allegation The proposal for enhancement of rent to Rs. 1.20 per sq. ft. as made by the Charged Officer was not agreed to and approval was accorded for enhancement of rent to Re.1/- per sq. ft. from Re. 0.60 w.e.f. 1.7.2003 was accorded by the Competent Authority. It is evident from the above that the Charged Officer had recommended for enhancement of rent of ARDC, Kalirhat to Rs, 1.20 from Re. 0.60 with a mala fide intent to cause wrongful gain to the party and consequential loss to the FCI inasmuch as when the party had already agreed to enhancement of rent to Re. 1/- per sq. ft. and consented to the negotiated increase vide the letter dated 2-12-2004 as mentioned in the note of Joint Manager (F&A) dated 9-3-2005, there was no logic/justification for the Charged Officer to propose for further increase to Rs. 1.20. It is also evident from the letter dated 18-2-2005 of the party that they had very willingly agreed to the negotiated rate of Re. 1.20. It is also evident from the letter dated 18-2-2005 of the party that they had very willingly agreed to the negotiated rate of Re. 1/- and requested for implementation of the decision as early as possible. Facts A committee was constituted comprising of D.M. (Finance) D.M. (Storage), D.M. (Procurement) and Regional Manager being the Chairman for negotiation with the owner of the godown of ARDC, Kalirhat for enhancement of the godown rent. The Committee under the Chairmanship of the Regional Manager negotiated the rent with the representative of the owner Shri Amit Kumar Saha on 2.12.2004 and negotiation arrived at payment of rent enhancement from Re. 0.60 paisa to Re. 1/- per sft. per month w.e.f. 1.4.2003 for a period of 3 years and further payment of 50% Municipal Tax being the occupied share would be reasonable. Accordingly a Minute has been drawn. (Xerox copy of the Minute is enclosed and marked as annexure-1). The Storage Branch has processed the file for enhancement of the rent and the file was submitted before the S.R.M., and the observation of the S.R.M., West Bengal at nsp. 151 on File No. E/ 1(4)/ARDC-Kalirhat with the direction. "What has been argued for Doharia and Barasat be brought on file." (Xerox copy of the note of S.RM. is enclosed and marked as annexure-2) The Storage Section has processed the File and the observation of the D.M.(Storage) in respect of Doharia and Barasat required to be brought in the file was placed before the S.R.M. and the note of the D.M.(Storage) at np.400 is as under : In continuation of Note Paras398& 399, it transpires that: ARDC, Doharia : Rs. 1.20 per sft. w.e.f. 1.5.03 ARDC, Barasat: Re. 0.96 per sft. w.e.f. 1.5.03 ARDC, Kalirhat: Re. 1.00 per sft. w.e.f. 1.4.03 (propose) Further, against Kalirhat no enhancement was made Since 8-8-1985 and FCI is paying Re. 0.60 Paise per sft., but interim enhancement was allowed in case of ARDC, Barasat Re 0.80 p. per sft, w.e.f. 4.5.98 and against Doharia Re. 1.00 per sft. w.e.f. 1.5.98." The aforesaid note was submitted by the D.M. (Storage before the R.M. on 2.2.2005 and R.M. has examined the file and gave his observation in the file on 4.2.05, which is reproduced as under: "At present we are paying rent to ARDC, Doharia @ Rs. 1.20 per sft. 1.00 per sft. w.e.f. 1.5.98." The aforesaid note was submitted by the D.M. (Storage before the R.M. on 2.2.2005 and R.M. has examined the file and gave his observation in the file on 4.2.05, which is reproduced as under: "At present we are paying rent to ARDC, Doharia @ Rs. 1.20 per sft. w.e.f. 1.5.2003 and ARDC, Barasat ARDC, Kalirhat has demanded and subsequently reminded since 1999 for enhancement of the godown rent @ Re. 1/- per sft., and knowing the decision of the S.R.M. dated 5.2.05 for denial of the enhancement of the rent they have again reminded vide letter dated 18.2.2005 for settlement of enhancement of the rent. (Xerox copy of the letter of ARDC, Kalirhat for enhancement of the rent since 1999 is enclosed and marked as annexure - 5) As the issue by of enhancement of rent was closed by the S.RM. by not marking the file to the Joint Manager (Finance) being his associate finance, the letter under sl. 319C was processed by the Storage Branch and the file was directly marked by the R.M. to J.M.(Finance) at nsp.154 for examination. (Xerox copy enclosed and marked as Annexure-6) Grounds for Relief 1) Regional Manager being the Chairman of Committee negotiated with the representative of of ARDC, Kalirhat for enhancement of godown 1/- per sft. per month from Re. 0.60 Paise. 2) The Storage Branch while processing the file has raised the issue of rent of difference of rent of different ARDC, godown i.e. ARDC, Barasat and ARDC, Doharia higher than the ARDC, Kalirhat in their note from note para 393 to 400. 3) As Regional Manager while processing the File of Storage branch this discrimination was noticed and that was brought into the notice of the S.R.M. vide note at note para 395 and 396 dated 25.1.2005 to make a parity in between the ARDC godowns for law of natural justice. 3) As Regional Manager while processing the File of Storage branch this discrimination was noticed and that was brought into the notice of the S.R.M. vide note at note para 395 and 396 dated 25.1.2005 to make a parity in between the ARDC godowns for law of natural justice. 4) The S.R.M. has agreed vide his note deed 25.1.2005 at note para 357 for examining the same by making remarks as "What has been argued for Doharia and Barasat be brought on File." 5) That D.M. (Storage) vide his note at nap.153 400 has brought it into the notice of the S.R.M. that 400 has brought it into the notice of the S.R.M. that "Further, against Kalirhat no enhancement was made since 08.0.1985 and FCI is paying Re.0.60 Paise per sft., but interim enhancement was allowed in case of ARDC, Barasat Re.0.80 p. per sq. ft. w.e.f. 4.5.98 and against Doharia Re. 1.00 per sq.ft. w.e.f. 1.5.98. 6) That with this observation made by the D.M.(Storage) above has insisted me as R.M. in the file of Storage Branch with the suggestion to avoid any discrimination as under: "Finance may please examine the same to bring a parity for making the payment of rent as suggested for ARDC, Kalirhat @ Rs. 1.20 per sft. as prayed by the owner, where he is getting rent of Rs. 1.25 per sft. against the other sheds in the same godown complex from SWC. The file may be sent to Finance for their comments whether parity can be made and rent @ Rs. 1.20 per sft. can be paid to ARDC, Kalirhat." 7) R.M. being the Chairman of the Committee has submitted the proposal of rent for Re.1/- per sft., whereas as Regional Manager processing the file of the Storage Branch has noticed discrimination for not allowing the rent for the last 20 years since 1985 more than Re. 0.60 Paise per sft. and therefore suggested that file may be sent to Finance for comments whether parity can be made. 8) Though the party has prayed for the enhancement of rent vide his letter dated 28.7.1999. @ Re.1/- per sft. (Xerox copy enclosed and marked as annexure-7). The said letter was unattended and kept in the file since 1999. 0.60 Paise per sft. and therefore suggested that file may be sent to Finance for comments whether parity can be made. 8) Though the party has prayed for the enhancement of rent vide his letter dated 28.7.1999. @ Re.1/- per sft. (Xerox copy enclosed and marked as annexure-7). The said letter was unattended and kept in the file since 1999. 9) The S.R.M. did not allow to examine the file by the Finance Division by closing the file on 5.2.2005 with the remarks "No parity can be brought" and sending the file to R.M. instead of Finance Branch and made itclear that R.M. has got no authority in this aspect for enhancement of the rent. (at np.402) 10) The R.M. being the Chairman has suggested for Re.1/- per sft. and while processing the file of the Storage Branch as R.M. the suggestion was made to send the file to Finance for their comments to make the parity of the rent of the ARDC owners subject to the concurrence of the Finance and the approval of the competent authority without suppressing any facts available in the record to make the decision of the Committee as bonafide submitted by the R.M. 11) That the J.M.(Finance) vide his note dated 9.3.2005 has given the concurrence of Re.1/- per sft. without taking into consideration the observation of the R.M, vide his note at notice para 401 on nsp. 153 and note para 395 and 396 for Rs. 1.20 per sft. 12) That there was no question of mala fide intent to cause wrongful gain to the parity due to non-examination of the proposal of R.M. by J.M.(Finance) in his note dated 9.3.2005. (Xerox copy of the not of J.M. (Finance) is enclosed and marked as annexure-8). 13) That the point raised by R.M. was never allowed to be examined by the Finance for that there was no scope of mala fide intent to cause wrongful gain to the party and consequential loss to the FCI until and unless the views of the R.M. was given the financial concurrence and the approval of the S.R.M. 14) That suggestion for sending the file to Finance for their comments whether parity can be made by enhancement of rent to Rs. 1.20 per sft. as made by R.M. was not agreed to and approval was accorded for enhancement of rent to Re. 1/- per sft. 1.20 per sft. as made by R.M. was not agreed to and approval was accorded for enhancement of rent to Re. 1/- per sft. from Re.0.60 Paise w.e.f. 1.7.2003 was accorded by the Competent Authority on the Committee Report submitted by R.M. 15) That there was no financial losses to the Corporation. The allegation brought out against R.M. for suggesting enhancement of the rent of Rs. 1.20 per sft. against the rent of Re. 1/- as recommended by the Committee is only to justify the decision of the Committee by disclosing the factual position of depriving ARDC, Kalirhat since 1985 by not allowing his claim for enhancement since 1999 to make the decision of the Committee bona fide by examination through J.M. (Finance) and approval of the Competent Authority. There was no recommendation as such for enhancement of the rent to Rs. 1.20 per sft. from R.M.'s side, rather a suggestion was made to get the matter examined by Finance whether parity can be maintained as regards the rate of rent of different ARDC godowns. Since the said proposal was not accepted by the S.R.M., there was no question of recommendation of the R.M., and the allegation brought out against R.M. for mala fide intent for willful gain of the party was not at all possible without the approval by the competent authority for any enhancement without the examination by the J.M. (Finance) and approved by the S.R.M. As such the charges brought out against me may please be dropped as there was no mala fide intention to give any undue benefit to the owner of the ARDC, Kalirhat by me and the factual position was brought out to justify in a logistic manner so that at any point of time the decision taken for enhancement of rent should not be put to question for discrimination by the Committee over the facts available in the file for not allowing the demand of enhancement since 1999. Yours faithfully, Enclo : As above (P.K. Sarkar) Dy. General Manager West Bengal Region 9. IN paragraph 7 of the reply a peculiar stand was taken by the writ petitioner that as the Chairman of the Managing Committee he decided the issue of rental to the tune of Re. 1 /- per sq.ft. Yours faithfully, Enclo : As above (P.K. Sarkar) Dy. General Manager West Bengal Region 9. IN paragraph 7 of the reply a peculiar stand was taken by the writ petitioner that as the Chairman of the Managing Committee he decided the issue of rental to the tune of Re. 1 /- per sq.ft. as justified but as a Regional Manager while processing the file since he noticed that there was a discrimination in such fixation of rental, he suggested enhancement of rate to the extent of Rs. 1.20 paise per sq.ft. The disciplinary authority on the basis of the cause jLs shown imposed a penalty of reduction of pay scale. The decision of the punishing authority at page 77 reads thus: No. Vig.21(135)/05/EZ 22nd August, 2006 Order WHEREAS disciplinary proceedings were initiated against Shri P.K. Sarkar, DGM, FCL Regional Office (West Bengal), Kolkata under Regulation 60 of FCI(Staff) Regulations, 1971 vide Memorandum of even number dated 16.6.2006 on the charge contained in the statement of imputations of misconduct or misbehaviour annexed to the said Memorandum. However, the charge levelled against the said Shri P.K. Sarkar in brief was as under: That despite reaching an agreement with Shri Amit Kumar Saha, the owner of ARDC godown at Kalirhat for enhancement of godown rent from Re.0.60 to Re. 1/- per sq.ft. w.e.f. 1.4.2003 for a period of 3 years in the negotiations held on 2.12.2004. Shri Sarkar had proposed for allowing increase @ Rs. 1.20 per sq.ft. while submitting the minutes of the meeting to the SRM (presently designated as GM(Region), with a malafide intent to cause wrongful gain to the party and consequential loss to the FCI. AND WHEREAS the Charged Officer furnished his reply dated 28th June, 2006 mainly pleading that there was no recommendation as such for enhancement of the rent to Rs. 1.20 per sq ft from his side. Rather a suggestion was made to get the matter examined by Finance whether parity could be maintained as regards the rate of rent of different ARDC Godowns. Since the said proposal was not accepted by the SRM there was no question of his recommendation and the allegation brought out against him for mala fide intent for wilful gain of the party was not at all possible without the approval by the Competent Authority for any enhancement and examination by the JM (Finance) (now redesignated as DGM (Finance). Since the said proposal was not accepted by the SRM there was no question of his recommendation and the allegation brought out against him for mala fide intent for wilful gain of the party was not at all possible without the approval by the Competent Authority for any enhancement and examination by the JM (Finance) (now redesignated as DGM (Finance). As such there was no malafide intention to give any undue benefit to the owner of the godown by him and the factual position was brought out to justify in a logistic manner so that at any point of time the decision taken for enhancement of rent should not be put to question for discrimination by, the committee over the facts available in the file for not allowing the demand of enhancement since 1999. However, the proposal put forth by him was not approved and the enhancement was allowed only to Re. 1/- per sq ft; hence there was no loss to the Corporation. AND WHEREAS the undersigned has considered the charge sheet, the reply of Charged Officer and the available records on this subject. It is observed that the reply of the C.O. is not convincing inasmuch as when the negotiation committee had already arrived at an understanding with the owner for enhancement of the godown rent from Re. 0.60 to Re.1/- per sq ft during negotiation held on 2.12.2004, there was no point in suggesting for enhancement of the rent of Rs. 1.20 per sq ft which would have resulted in extra financial burden on the Corporation had the suggestion/recommendation of the C.O. been approved by the SRM. It was the SRM, West Bengal only who had not agreed with the proposal of the C.O. and saved the interest of the Corporation by accepting the recommendations of the committee. As such the C.O. is responsible for giving a proposal for enhancement of rent after the same had been negotiated with the owner and therefore he is found guilty of the charge levelled against him. In view of the above position, it is felt that a penalty of reduction by two stages in the time scale of pay for a period of three years without cumulative effect will meet the ends of justice. In view of the above position, it is felt that a penalty of reduction by two stages in the time scale of pay for a period of three years without cumulative effect will meet the ends of justice. NOW, THEREFORE, I, the undersigned in exercise of powers conferred under Regulation 56 of FCK Staff) Regulations, 1971 hereby impose the penalty of reduction by two stages in the time scale of pay for a period of three years without cumulative effect upon the said Shri P.K. Sarkar. (A. K. Dubey) Managing Director Shri P.K. Sarkar Dy. General Manager, Food Corporation of India, Regional Office, (WB) Kolkata___Through GM(VIG.). FCI. Zonal Office (East), Kolkata. 10. IT appears from the records that the Royal Enterprise who wanted enhancement of rental practically agreed to accept the rental of Re. 1/- per sq. ft. as it appears from his letter dated 18th February, 2005. The letter reads thus: Date 18.02.05 To The Sr. Regional Manager, Food Corporation of India, Kolkata. Sub : Enhancement of rent for A.R.D.C. Kalirhat G. Respected Sir, This is to inform you that we have prayed for enhancement of rent for twenty months and after a long spell we have received a letter for negotiation of rent and subsequently a negotiation was held on 2.12.04 at the chamber of Regional Manager, Kolkata. On that negotiation meeting a fruitful discussion was made and after along discussion some decision has come to shot out the problem. But it is very sorry to state that the decision has drawn in the negotiation meeting not implemented till today. You are requested to implement the decision as early as possible, since we are in a financial hardship. Thanking you, Yours faithfully, Amit Kumar Saha For Royal Enterprise 18/02/05 This letter also has been mentioned in the statement of imputation. 11. THE learned trial Judge in deciding the matter held that as the writ petitioner simply suggested enhancement of rental and such suggestion was not accepted by the Senior Regional Manager who is the appropriate authority to accept any proposal, as such there was no loss of the company and accordingly the imputation of misconduct never reflected any ingredients of the misconduct in terms of the service jurisprudence. Learned trial Judge quashed the charge-sheet as well as the punishment as imposed. THE finding of the learned trial Judge on that issue reads thus: "16. Learned trial Judge quashed the charge-sheet as well as the punishment as imposed. THE finding of the learned trial Judge on that issue reads thus: "16. Upon a perusal of the documents brought on record, it is evident that the petitioner was the Chairman of the Committee which was supposed to decide on the rate to be fixed. Upon a perusal of the Minutes it is evident that after detailed negotiations and after detailed deliberations, the Senior Regional manager ultimately accepted the rent at the rate of Re. 1 per square feet but did not agree to the recommendation of the Petitioner which he had made @ Rs. 1.20/- per square feet. It is thus evident that the Petitioner had merely recommended for the enhancement of the rent to Rs. 1.20 paise which was not accepted and therefore, this Court does not understand as to how a mere recommendation made by the petitioner at the stage of negotiations and in the capacity of the Chairman of the Committee can be said to have caused loss to the FCI, because ultimately, the authorities who were senior to the Petitioner, accepted the enhancement only to the extent of Re. 1/- from 0.60 paise as this had been agreed upon the party concerned. However, for a mere recommendation, the Petitioner could not have been proceeded against. This Court is therefore of the view that the entire exercise of issuing a Charge-sheet and then punishing him, though by inflicting a minor penalty, was totally uncalled for." 12. LEARNED trial Judge ultimately quashed the charge-sheet and the punishment both as it appears from paragraph 19 of the judgment which reads thus: "19. For the foregoing reasons, this Court is of the view that the writ petition must succeed and it is accordingly allowed to do so. As a consequence, the impugned Charge-Sheet as well as the Order dated 16.6.2006 as contained in annexure P7 as well as the Order of punishment dated 22.8.2006 as contained in annexure P9 are both set aside and quashed and writ petition is allowed, with costs as indicated above." Learned trial Judge further imposed cost of Rs. 10,000/- to,the Food Corporation of India. 13. HENCE only point for adjudication herein applying the principle of judicial review as to whether the imputation of misconduct as issued against the writ petitioner/respondent could be considered as a misconduct under the service jurisprudence. 10,000/- to,the Food Corporation of India. 13. HENCE only point for adjudication herein applying the principle of judicial review as to whether the imputation of misconduct as issued against the writ petitioner/respondent could be considered as a misconduct under the service jurisprudence. The word 'misconduct' is a generic term and its meaning to be considered from the factual matrix of activity of the persons concerned vis-a-vts his behiaviour and conduct thereof. Misconduct truly speaking is relating to identification of any conduct which is not appropriate for the holder of the post in due discharge of his duty which may result pecuniary loss to the organisation or men and the conduct for being a misconduct could be considered under the principle of law and service jurisprudence. 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 behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.". 14. MISCONDUCT in terms of the definition accordingly may be considered as 1) a forbidden act 2) conduct inconsistence with the power of the employee while he is working in office. MISCONDUCT in office has further been defined which reads thus: "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." Misconduct also has been defined in P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 which reads such: "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 work 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. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The work 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." 15. THE Apex Court also considered the meaning of the word, 'misconduct' in the case of S. Govindo Menon v. Union of India, reported in AIR 1967 SC 1274 as 'act abusing power'. In the case of State of Punjab v. Ram Singh, Ex-constable, reported in 1992 (4) SCC 54 the Apex Court again has discussed the issue about the meaning of word 'misconduct' in the following language; "6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquence 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." 16. 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." 16. IN the case of Union of India v. K.K. Dhawan, reported in AIR 1993 SC 1478 , the Court referred the observations of Lopes, C. J. in Pearce v. Foster, (1866) 17 QBD 536, p. 542 which is quoted for appreciation of present lis as follows: "16. IN Govinda Menon v. Union of India, AIR 1967 SC 1274 , it was contended that no disciplinary proceedings could be taken against appellant for acts or missions with regard to his work as Commissioner under Madras Hindu Religious and Charitable Endowments Act, 1951. Since the orders made by him were quasi-judicial in character, they should be challenged only as provided for under the Act. It was further contended that having regard to scope of Rule 4 of All India Services (Discipline and Appeal) Rules, 1955, the act or omission of Commissioner was such that appellant was not subject to the administrative control of the Government and therefore, the disciplinary proceedings were void. Rejecting this contention, it was held as under: "It is not disputed that the appropriate Government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the Central Government, but it was contended that I.A.S. Officers are governed by statutory rules that 'any act or omission' referred to in Rule 4(i) relates only to an act or omission of any officer when serving under the Government, and that serving under the Government means subject to the administrative control of the Government and that disciplinary proceedings should be, therefore, on the basis of the relationship of master and servant. It was argued that in exercising statutory powers the Commissioner was not subject to the administrative control of the Government and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner. We are unable to accept the proposition contended for by the appellant as correct. Rule 4(i) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. We are unable to accept the proposition contended for by the appellant as correct. Rule 4(i) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4(1)(b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is, therefore, open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the service. It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. IN our opinion, 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 duties 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 on 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 even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter, of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service.' IN this context reference may be made to the following observations of Lopes C.J. in Pearce v. Foster, (1866) 17 QBD 536, p.542. '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. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.' 'We make it clear that it is open to the respondent to put forth all defences open to him in the departmental inquiry which will be considered on its merit." The issue was also considered by the Division Bench of Calcutta High Court/presided over by S.B. Sinha, J. as His Lordship then was in the case of Prabhu Kr. Biswas v. Union of India, reported in 1994(2) CLJ 456 wherein the Court opined that the employer has inherent right to initiate a departmental proceeding even though any charge is not included as misconduct in the Service Regulation. 17. Biswas v. Union of India, reported in 1994(2) CLJ 456 wherein the Court opined that the employer has inherent right to initiate a departmental proceeding even though any charge is not included as misconduct in the Service Regulation. 17. HAVING regard to the aforesaid legal position about the meaning of the word 'misconduct', we have now to identify whether the finding of the learned trial Judge was right to hold that as there was a mere suggestion on the part of the writ petitioner by recommending enhancement of rate to Rs. 1.20 per sqr. ft. and as by such suggestion the Corporation did not suffer loss because the said suggestion was not accepted by higher officer ultimately, so there was no commission of 'misconduct'. We are afraid to accept the aforesaid finding of the learned trial Judge. To bring any anvil of 'misconduct', if the question of pecuniary loss or suffering of it, is considered as a relevant factor, the same will produce an adverse result in service law. The very action or conduct may be construed by the employer as unlawful behaviour by a public officer in relation to discharge of his duties. As already discussed, the term "misconduct in office' has been defined to this effect that the term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the fact of an affirmative duty to act. From the records it appears that the meeting was held on 2nd December, 2004 comprising of four members headed by the writ petitioner as Chairman to discuss the issue about the rental of the concerned godown and it was decided that with effect from 1st April, 2003 rental should be fixed as Rs. 1 per sqr. ft. per month. This was signed by all the members present therein. As it appears from the document as annexed to the paper book no note of descent has been placed by anybody present in the said committee meeting. The writ petitioner had agreed to such decision and bound by such decision. 18. 1 per sqr. ft. per month. This was signed by all the members present therein. As it appears from the document as annexed to the paper book no note of descent has been placed by anybody present in the said committee meeting. The writ petitioner had agreed to such decision and bound by such decision. 18. NOW, we have to consider the nomenclature of a committee and its functions as well as contour of power and its discharge of duty in the angle of definition and a discussion as made in the book "Shackleton on The Law and Practice of Meetings" by Ian Shearman, 9th Edition, Sweet and Maxwell publication at Chapter 9, page 90, which reads such: "9-01. A "committee" is a body of persons to whom something is "Committed" or entrusted. Although a committee can consist of one person, this is unusual, and is not found in local authority practice. The more common meaning of the term is a plurality of persons elected or appointed to consider and deal with certain matters of business specially or generally referred to it. In the absence of express statutory or other conferred authority, a committee, being a body endowed merely with delegated powers, is bound by the maxim "delegatus non potest delegare" and therefore cannot exceed the powers and duties entrusted to it, or delegate its duties to others: 9-02. The scope and terms of a committee are usually contained in the resolution appointing it, and care must therefore be taken that the terms of such reference are clear so that the committee may know the limits of its duties and powers. I practice, however, this state of affairs is not always achieved, and there have been court decisions which may assist in clarification: (i) A committee can be given the power to decide on matters on fact (an example might be, whether or not a proposed member of a tenants' association has attained a sufficient residence qualification). In matters of law, although the committee may deal with matters before it, the jurisdiction of the courts cannot be ousted (for example, by a rule which says that the committee has the sole right to interpret the rules). In considering whether a committee is acting within its powers, regard must be paid to the purposes of the body concerned. In matters of law, although the committee may deal with matters before it, the jurisdiction of the courts cannot be ousted (for example, by a rule which says that the committee has the sole right to interpret the rules). In considering whether a committee is acting within its powers, regard must be paid to the purposes of the body concerned. (ii) A committee does not usually have the power to act outside those areas which have customarily fallen within its business remit; for example, a cornporters' committee had no power to remove a member from the register of overside cornporters because of an assault which had taken place on a committee member following the termination of a previous meeting. (iii) Where a committee has power to do a certain act, it will normally be entitled to carry out matters reasonably incidental thereto. For example, a club rule provided that its arrangements for management should be conducted be a committee who should have all needful powers for its government and the election of new members and additional committee members, and should be empowered to publish bye-laws; it was held that the passing of a bye-law that retired members might be re-admitted on payment of back subscriptions and the subsequent readmission of retired members not only without the usual entrance fee but without the other formalities prescribed by the rules, were valid actions by the committee. (iv) A committee cannot extend its jurisdiction by giving a wrong interpretation to the rules, however honest may be the actions of the committee. 3. Procedure The result of the committee's deliberations should be placed before the body appointing it. This can be done by the circulation of minutes of the committee's meetings, or by the presentation of a report to the main body. Unless the committee has executive powers on the matter or matters delegated to it, such report or minutes are inoperative until adopted by the main body, which may amend or refer back the report or minutes for further consideration. Unless the committee has executive powers on the matter or matters delegated to it, such report or minutes are inoperative until adopted by the main body, which may amend or refer back the report or minutes for further consideration. If there is any marked difference of opinion when it comes to the preparation of a report, the names of those respectively supporting or opposing the conclusions of the report may be appended, but a minority report may not be presented unless specifically authorized." Furthermore, the word 'Committee' was also defined in Black's Law Dictionary which reads such: "A person, or any assembly or board of persons, to whom the consideration, determination, or management of any matter is committed or referred, as by a Court." On a reading of that definition it appears that the purpose of committee is to consider the issue as placed before it and thereby to reach a decision and conclusion thereof. Once a decision is reached and concluded that decision becomes the part and parcel of the entire committee irrespective of any objection raised by anybody and the majority decision is implemented. No member of a Committee after a decision is reached by the Committee can raise any objection against that decision. As soon as a decision is taken in a committee meeting and it is finalized, the committee becomes a defunct body to decide any further and the decision of the committee which is defunct cannot be changed or modified by any individual member of the committee and any objection to such would be considered as an action not in consonance with the discipline for setting up a Committee. This point has been considered by the Apex Court also in a case where decision of a selection committee by one of its member was challenged by filing a representation after decision finalised in the case of Chancellor and Anr. v. Bijay Nanda Kar-, reported in AIR 1994 SC 579 . In that case the selection of a teacher of the University became the subject matter. A Committee member after the decision was taken by empanelment of candidates had written a letter to the Chancellor alleging illegality an preparation of panel. v. Bijay Nanda Kar-, reported in AIR 1994 SC 579 . In that case the selection of a teacher of the University became the subject matter. A Committee member after the decision was taken by empanelment of candidates had written a letter to the Chancellor alleging illegality an preparation of panel. The Apex Court while dealing with the case held that it was not a bona fide act of the member to allege anything after selection was over and same was nothing but travesty of selection process. 19. IN the instant case, it appears that the writ petitioner was the Chairman of the said Committee and there were other officers of the managerial rank. The committee unanimously decided the rate. There was no objection from any corner against such quantum of enhancement of rate in the committee meeting. It further appears that on 18th February, 2005 the godown owner himself had written a letter seeking implementation of the decision of Committee taken on 2nd December, 2004 wherein the rate was fixed as Rs. 1 per sqr. ft. 20. HAVING regard to such all factual matrix, namely the decision of the committee dated 2nd December, 2004 and the acceptance of same by the M/s. Royal Enterprise by its letter dated 18th February, 2005, there was no scope for the writ petitioner to make any office note even suggesting "enhancement of rate to the extent of Rs. 1.20. Had there been no approval of the said rate by the Senior Regional Manager surely the company would have suffered loss. It appears that the writ petitioner failed to perform his duty properly and, also failed to act in due discharge of his official duty which became the subject matter of article of charge in the departmental proceeding. We are not inclined to subscribe the views expressed by the learned trial Judge. As per our views the imputation of misconduct/misbehaviour is coming within the definition of misconduct. As such, the finding of the learned trial Judge cannot be considered as correct view. The learned advocate for the writ petitioner has relied upon a decision reported in 1992(4) SCC 54 to argue the point that imputation of misconduct against the writ petitioner will not come under the definition of misconduct. As such, the finding of the learned trial Judge cannot be considered as correct view. The learned advocate for the writ petitioner has relied upon a decision reported in 1992(4) SCC 54 to argue the point that imputation of misconduct against the writ petitioner will not come under the definition of misconduct. The definition of misconduct as discussed in the said case practically goes against the writ petitioner/respondent as therein the Apex Court held "that the term, 'misconduct' cannot be defined by any straight jacket formula. The misconduct is an apparent transgression of some established and definite rule of action with regard to duties and the discharge thereof by a public and the same cannot be guided by any Standing Order any Service Regulation". 21. HAVING considered the material facts, we are of the view that the impugned judgment under appeal is not legally sustainable. The same is set aside and quashed. The writ application, accordingly, stands dismissed on merit. The appeal stands allowed. 22. SINCE we have heard the appeal on merit, nothing remains to adjudicate the stay application. The stay application accordingly stands disposed of. Urgent photostat certified copy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities. Appeal disposed of.