JUDGMENT Hon’ble Sudhir Agarwal, J.—Counter affidavit has already been filed in this case by the respondents. 2. Heard Sri Anoop Trivedi for the petitioner and learned Standing Counsel for the respondents. Sri Trivedi does not propose to file any rejoinder affidavit. As requested and agreed by the learned counsel for the parties this Court proceeds to hear and decide the matter finally under the Rules of the Court. 3. The present writ petition has been filed challenging the order of suspension dated 30.6.2005 passed by respondent No. 2, the Director, Local Bodies, U.P., Lucknow placing the petitioner under suspension. It appears that the petitioner was working as Executive Officer, Nagarpalika Parishad Puranpur, Pilibhit at the relevant time when the impugned order of suspension was passed. There was a visit by Commissioner, Bareilly Division of the aforesaid Nagarpalika Parishad wherein he found mismanagement regarding supply of drinking water, cleaning, sewer and drainage arrangements for which he held the Executive Officer, i.e., the petitioner prima facie responsible and sent his report to the Government pursuant whereto a letter dated 27.6.2005 issued by the State Government directing respondent No. 2 to place petitioner under suspension and hold departmental inquiry against him. Pursuant thereto respondent No. 2 has passed the impugned order. 4. It is contended by learned counsel for the petitioner that respondent No. 2, the disciplinary authority has passed the impugned order not on his own application of mind but under the dictates of respondent No. 1 and, therefore, there is no independent application of mind by respondent No. 2. It is further contended that the allegations upon which the impugned order of suspension has been passed do not amount to misconduct inasmuch as, it says that there was deficiency in supply of pure drinking water, cleaning, sewer and drainage arrangement which at the best may result or show lack of efficiency of the petitioner in functioning but in the absence of anything more, would not constitute ‘’misconduct’ on the part of the petitioner warranting any disciplinary action whatsoever. Hence he could not have been placed under suspension in exercise of powers under Rule 37(3) of U.P. Nagar Palika (Centralised Service) Rules, 1968 as amended in 2004. Hence he could not have been placed under suspension in exercise of powers under Rule 37(3) of U.P. Nagar Palika (Centralised Service) Rules, 1968 as amended in 2004. He lastly contended that till date no chargesheet was served upon the petitioner and no departmental inquiry at all has seen the light of the day which itself shows that the impugned order of suspension is punitive since neither any departmental inquiry is contemplated nor pending pursuant whereto the impugned order of suspension has been passed, hence it is liable to be set aside. 5. Learned Standing Counsel relying on the counter affidavit submitted that the Commissioner, Bareilly Division, Bareilly made a spot inspection with respect to the matter of drinking water, sanitation, sewage and drainage arrangements of the aforesaid Nagarpalika Parishad and found the above aspects being maintained very poorly for which he found the petitioner guilty and recommended for his suspension pursuant whereto the State Government sent a letter dated 27.6.2005 recommending suspension of the petitioner and make departmental inquiry against him pursuant whereto the impugned order of suspension has been passed and, therefore, it is correct. 6. The counter affidavit has been filed on 23.1.2008 but there is no whisper about the stage of departmental inquiry as to whether any chargesheet has been served upon the petitioner and inquiry proceeded further or not. 7. Having considered the rival submissions of the parties and perused the record, in my view, the petition deserves to be allowed. 8. A bare perusal of the impugned order shows that it has been passed by observing that the departmental proceedings are being initiated against the petitioner but in the absence of issuance of any chargesheet even after four years, it cannot be said that any departmental inquiry was in contemplation when the impugned order was passed. It is no doubt true that the order of suspension pending contemplated inquiry or during pendency of inquiry by itself is not a punishment but where no inquiry is initiated at all for years together and the employee continues under suspension, such a suspension cannot be said to be non-punitive. By efflux of time and otherwise such a suspension becomes punitive. It also affects the reputation of the employee concerned amongst own colleagues, society etc. By efflux of time and otherwise such a suspension becomes punitive. It also affects the reputation of the employee concerned amongst own colleagues, society etc. This Court has considered this aspect in Ayodhya Rai and others v. State of U.P. and others, 2006(3) ESC 1755 wherein it has been held as under : “The questions deal with the prolonged agony and mental torture of an employee under suspension where inquiry either has not commended or proceed with snail pace. This is a different angle of the matter, which is equally important and needs careful consideration. A suspension during contemplation of departmental inquiry or pendency thereof by itself is not a punishment but is resorted to by the competent authority to enquire into the allegations levelled against the employee giving him an opportunity of participation to find out whether the allegations are correct or not. In case, allegations are not found correct, the employee is reinstated without any loss towards salary, etc., and in case the charges are proved, the disciplinary authority passes such order as provided under law. However, keeping an employee under suspension, either without holding any enquiry, or by prolonging the enquiry is unreasonable and is neither just nor in larger public interest. A prolonged suspension by itself is penal. Similarly an order of suspension at the initial stage may be valid fulfilling all the requirements of law but may become penal or unlawful with the passage of time, if the disciplinary inquiry is unreasonably prolonged or no inquiry is initiated at all without there being any fault or obstruction on the part of the delinquent employee. No person can be kept under suspension for indefinite period since during the period of suspension he is not paid full salary. He is also denied the enjoyment of status and therefore admittedly it has some adverse effect in respect of his status, life style and reputation in Society. A person under suspension is looked with suspicion in the Society by the persons with whom he meets in his normal discharge of function.” 9. A Division Bench of this Court in Gajendra Singh v. High Court of Judicature at Allahabad, 2004 (3) UPLBEC 2934 also observed as under— “We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his colleagues and friends but by public at large too.” 10. A Division Bench of this Court in Gajendra Singh v. High Court of Judicature at Allahabad, 2004 (3) UPLBEC 2934 also observed as under— “We need not forget that when a Government officer is placed under suspension, he is looked with suspicious eyes not only by his colleagues and friends but by public at large too.” 10. Disapproving unreasonable prolonged suspension, the Apex Court has also observed in Public Service Tribunal Bar Association v. State of U.P. and others, 2003 (1) UPLBEC 780 (SC) as under— “if a suspension continues for indefinite period or the order of suspension passed is mala fide, then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution.” (Para 26) 11. The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplation or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided and absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained. 12. Besides even the allegations pursuant whereto the impugned order of suspension has been passed, assuming the same to be correct, in absence of anything further, I find that the same cannot be read as constituting misconduct entitling the respondents to hold departmental enquiry. The mismanagement in supply of drinking water, sewer, drainage arrangements etc. which are the statutory functions of a local body are matters to be condemned by one and all but the same by itself cannot be said to be a misconduct of an Executive Officer who alone is not responsible for such functions. The responsibility of Executive Officer is to carry out the functions as per policy decision taken by elected representative of the local body. Unless there is material to show that the writ petitioner in a particular manner was to act or omit but he defied and failed to do so, it cannot be said that some deficiency in observing certain statutory functions of the local body would per se constitute misconduct 13. Unless there is material to show that the writ petitioner in a particular manner was to act or omit but he defied and failed to do so, it cannot be said that some deficiency in observing certain statutory functions of the local body would per se constitute misconduct 13. Learned Standing Counsel also could not show as to how and in what manner it was the sole responsibility of the petitioner to take steps for removal or effective arrangements in respect to the above matters. Failure to perform in a better or satisfactory manner may reflect upon the efficiency of the employee concerned but is not a misconduct as held by the Apex Court in Union of India v. J. Ahmed, AIR 1979 SC 1022 , wherein, explaining the term ‘misconduct’ the Hon’ble Court held as under : “It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty.” (para 10) “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 blameworthy 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 Pearce v. Foster) (1988) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper). (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 Razaf, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under : “Misconduct means, misconduct arising from ill motive; act 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 employee’s 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. Kalyani 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 and a lapse 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 or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular 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 a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p.120). Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 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.” (para 11) 14. Again in the case of State of Punjab and others v. Ram Singh Ex-Constable, (1992) 4 SCC 54 the Hon’ble Apex Court has held as under : “Thus it could be seen that the word ‘’misconduct’ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, 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.” (para 6) 15. The same view has been taken by this Court also in Civil Misc. Writ Petition No. 39528 of 2006 (Dhirendra Singh v. The Collector, Kanpur Dehat, and another) decided on 29.11.2007. 16. Thus an act does not amount to misconduct on the part of the concerned employee unless it could be shown that he is guilty of acting or omitting his duty deliberately which he is otherwise liable to perform. Hence also, I do not find that any departmental inquiry could have been initiated against the petitioner on the allegations as contained in the impugned order of suspension. In my view, for this reason also, the writ petition deserves to sustain. 17. In the result, the writ petition succeeds and is allowed. Hence also, I do not find that any departmental inquiry could have been initiated against the petitioner on the allegations as contained in the impugned order of suspension. In my view, for this reason also, the writ petition deserves to sustain. 17. In the result, the writ petition succeeds and is allowed. The impugned order of suspension dated 30.6.2005 passed by respondent No. 2 is hereby quashed. The petitioner shall be entitled to all consequential benefits. No order as to costs. ————