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2016 DIGILAW 121 (ALL)

JAMUNA PRASAD v. STATE OF U. P.

2016-01-11

RITU RAJ AWASTHI, SATYENDRA SINGH CHAUHAN

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JUDGMENT By the Court.—Through this petition, the petitioner has challenged the punishment order dated 19.7.2001, appellate order dated 15.9.2002 and the order dated 26.2.2007 passed by the State Public Services Tribunal, Lucknow, whereby the claim petition filed by the petitioner has been dismissed, inter alia, finding that the petitioner has made less recovery in comparison to the target given to him. 2. The facts, in short, are that the petitioner, who was working on the post of Collection Amin in Tehsil Purwa, Kshetra Barehata, District Unnao, was allocated certain target to recover, but it is stated that the recovery was not made as the villages were situated on the bank of river and so the recovery could not be made, though the petitioner was placed under suspension on 29.5.2000 and charge-sheet was issued against him. The petitioner submitted his reply to the charge-sheet on 16.6.2000 and after submission of reply, the petitioner was reinstated vide order dated 19.7.2000. 3. The enquiry proceeded against the petitioner and the petitioner was ultimately awarded certain punishment with reduction to the lowest scale vide order dated 19.7.2001. The petitioner preferred an appeal against the said order on 15.7.2002, which was dismissed on 15.9.2002. The said order was put to challenge before the State Public Services Tribunal, Lucknow by means of Claim Petition No. 15 of 2003, which was dismissed vide order dated 26.2.2007. 4. Submission of learned counsel for the petitioner is that making of less recovery in comparison to the target given to the petitioner would not be covered under the term ‘misconduct’ and he can only be termed to be a negligent employee and to that extent, if the charge is found to be proved against the petitioner, then he cannot be awarded any punishment as contemplated under the Rules because the case of the petitioner is not covered within the term ‘misconduct’ as contemplated under law. 5. Learned counsel for the petitioner has further submitted that charge No. 2 in respect of negligence was not found to be proved and only charge Nos. 1 and 3 were found to be proved against the petitioner. Submission is that charge Nos. 1 and 3 cannot lead to misconduct, unless and until charge No. 2 is found to be proved against the petitioner. 1 and 3 were found to be proved against the petitioner. Submission is that charge Nos. 1 and 3 cannot lead to misconduct, unless and until charge No. 2 is found to be proved against the petitioner. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment rendered by a learned Single Judge of this Court in the case of Ram Sharan Lal v. State of U.P., 2008(1) ADJ 453 , decided on 29.11.2007. 6. Learned Standing Counsel, on the other hand, has submitted that the charge against the petitioner is fully proved and less recovery itself leads to the conclusion that the petitioner was negligent in making recovery and if he was negligent in making recovery, then the charge against the petitioner to that extent stands proved. In support of his contention, learned Standing Counsel has placed reliance upon a Division Bench judgement of this Court in Special Appeal No. 931 of 2008: Shiv Chand Nigam v. State of U.P. and others. 7. We have heard learned counsel for the parties and perused the record. 8. For appreciating the argument of learned counsel for the parties, we have to take into consideration the factual background of the present case. In the present case, it is established that three charges were levelled against the petitioner and charge No. 2 was especially framed in respect of negligence. The enquiry officer did not find the said charge to be proved against the petitioner. The other charges were found to be proved against the petitioner in respect of less recovery. Unless the charge of deliberate less recovery coupled with negligence is not found to be proved, then simply making less recovery will not constitute a misconduct as contemplated under the Rules. The misconduct has to be supported by deliberate and negligent non recovery. 9. Learned counsel for the petitioner has specifically averred that looking to the charge against the petitioner, which has been found to be proved, he can be termed to be a negligent employee, but his conduct cannot be termed as ‘misconduct’ and, therefore, the order passed by the Tribunal cannot be said to be an order in accordance with law. 9. Learned counsel for the petitioner has specifically averred that looking to the charge against the petitioner, which has been found to be proved, he can be termed to be a negligent employee, but his conduct cannot be termed as ‘misconduct’ and, therefore, the order passed by the Tribunal cannot be said to be an order in accordance with law. Learned counsel has drawn the attention of the Court towards an order passed by this Court in the case of Ram Sharan Lal (supra), wherein this Court in Paras-6, 7 and 8 held as under: “6. 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 intraveious 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). 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.” 7. 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.” 8. 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.” 8. In the context of Section 31 of Advocates Act, 1961, the Apex Court in Noratanmal Chouraria v. M.R. Murli and another, 2004 (5) SCC 689 , said : “Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done of omitted to be done intentionally or unintentionally. It means, “improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour”. Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law.” In Baldev Singh Gandhi v. State of Punjab and others, AIR 2002 SC 1124 , with reference to the provisions of Punjab Municipal Act, the Apex Court, considering the term ‘misconduct’, held as under : “‘Misconduct’ has not been defined in the Act. The word ‘misconduct’ is antithesis of the word ‘conduct.’ Thus, ordinarily the expression ‘misconduct’ means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc.” 10. The aforesaid finding recorded by this Court based on various decisions of the Apex Court itself goes to indicate that for establishing the charge of misconduct, the charge has to be proved in respect of deliberate non recovery and negligence of the employee concerned in not making the recovery. 11. The aforesaid charge has not been found to be proved and, therefore, we are constraint to endorse the view taken by the learned Single Judge in view of the law propounded on the basis of various Supreme Court decisions. 12. The learned Standing Counsel has placed reliance upon a Division Bench judgment of this Court in the case of Shiv Chand Nigam (supra), wherein it has been held that the appellant in that special appeal has committed misconduct by not making the recovery deliberately and negligently and not achieving the target fixed for him to make recovery and, therefore, it was covered under the term ‘misconduct’. The Division Bench in Para-8 held as under: “8. The Division Bench in Para-8 held as under: “8. As regards whether the petitioner has committed misconduct or not, we are of the opinion that to be deliberately negligent in the work and deliberately not making recovery of amount fixed under target for him thus amount to misconduct. The State has to pay his salary as well as make the expenses of recovery from the work for which he was engaged but sadly enough he was being paid more salary and making less recovery. There is nothing on record to show that the Amins working with him in his area had also made less recovery due to any drought or other natural calamity, as claimed. Consequence of misconduct of the petitioner of not performing his duties honestly and sincerely, in a negligent manner may ostensibly seem small but it has great deleterious cumulative effect on the economy of the state, therefore, such matter may not be considered leniently. For all reasons, we do not find any illegality or infirmity in the order impugned. The special appeal is liable to be dismissed. The special appeal is dismissed.” 13. The aforesaid proposition of law propounded by the Division Bench of this Court itself is indicative of the fact that in that case, the charge of deliberate and negligent non compliance was found to be proved, whereas in the present case, the said charge has been found to be disproved and, therefore, in absence of any charge being proved in respect of charge No. 2 wherein a specific charge has been framed in respect of deliberate and negligent non recovery on the part of the petitioner, the aforesaid case is distinguishable on the given facts and does not apply in the present case. 14. The authorities have, therefore, misdirected themselves in awarding punishment to the petitioner presuming that the charge of negligence stood proved against the petitioner. 15. In view of the aforesaid fact, the order passed by the Tribunal cannot be sustained in law. 16. Accordingly, the writ petition is allowed and a writ in the nature of certiorari is issued quashing the punishment order dated 19.7.2001 and the order dated 26.2.2007 passed by the Tribunal. The petitioner would be entitled for all consequential benefits.