JUDGMENT AND ORDER : Ashok Kumar Gaur, J. The petitioner has filed the present writ petition challenging the following orders: (i) the order dated 20th July, 2009 whereby the review petition filed under Rule 34 of Rajasthan Civil Services (CCA) Rules, 1958 has been dismissed as having become time barred, (ii) the order dated 28th April, 2003 passed in review petition filed by the petitioner whereby the penalty of stoppage of three annual grade increments with cumulative effect was substituted with stoppage of one annual grade increment with cumulative effect, (iii) the order dated 29th July, 2002 passed by Disciplinary Authority-Department of Personnel whereby a penalty of stoppage of three annual grade increments with cumulative effect was imposed upon the petitioner. 2. The brief facts of the case are that petitioner while working as Sub-Divisional Officer (SDO) at Bandikui, District Dausa, came to be served with a memorandum along with charge-sheet issued under Rule 16 of Rajasthan Civil Services (CCA) Rules, 1958 (hereinafter referred to as "the CCA Rules"). 2. The brief facts of the case are that petitioner while working as Sub-Divisional Officer (SDO) at Bandikui, District Dausa, came to be served with a memorandum along with charge-sheet issued under Rule 16 of Rajasthan Civil Services (CCA) Rules, 1958 (hereinafter referred to as "the CCA Rules"). The said chargesheet was issued in respect of work performed by the petitioner in relation to a complaint submitted by one Shri Sita Ram son of Jagannath under Sections 107 & 116(3) of Cr.P.C. The chargesheet is reproduced as hereunder:- jktLFkku ljdkj dkfeZd foHkkx ¼d&3½ vkjksi i= fo:) Jh jktsUnz izlkn 'kekZ] vkj-,-,l=-] rRdkyhu mi[k.M vf/kdkjh] ckanhdqbZ] ftyk nkSlk vkjksi la[;k 1 %& ;g gS fd mDr Jh jktsUnz izlkn 'kekZ] vkj-,-,l] mi[k.M eftLVaªsV] ckanhdqbZ] ftyk nkSlk esa inLFkkiu ds nkSjku ftyk dysDVsªV] nkSlk esa dk;Zjr prqZFk Js.kh deZpkjh Jh lhrkjke }kjk fnukad 23-6-97 dks Ok"kZ 1973 esa gh e`r O;fDr Jh Hkxoku lgk;d ,oa vU; ds fo:) ek= ,d O;fDrxr >xM+s dh f'kdk;r izLrqr dhA mDr deZpkjh dks vns; ykHk igqapkdj xkao esa mldk :rck c<+kus ds n`f"Vdks.k ls bl f'kdk;rh i= ds rF;ksa dh tkap fd;s fcuk fxjrkjh okjaV rRdky tkjh dj fn;k x;k tcfd bl f'kdk;rh izkFkZuk i= ds lkFk layXu fd;s x;s 'kiFk i=ksa ls rRdky 'kkafr Hkax dk ekeyk ugh curk FkkA bl izdkj e`r O;fDr o vU; ds fo:) vkjksi dfFkr fd;s x;s f'kdk;rh i= ij fcuk izfd;k dk ikyu fd;s gh fxjrkjh okj.V tkjh djds vius in dk nq:i;ksx dj O;fDr fo'ks"k dks vns; YkkHk igqapkdj jkT; ds izfrfuf/k dh gSfl;r ls inh; xfjek dh izfr"Bk dks fxjk;k gS ftlds fy;s os mRRkjnk;h gSA tSlk fd layXu vkjksi fooj.k i= la[;k 1 esa mfYyf[kr gSA vkjksi la[;k 2%& ;g fd mDr Jh jktsUnz izlkn 'kekZ] vkj-,-,l us Jh lhrkjke }kjk izLrqr f'kdk;r ij okj.V tkjh dj lacaf/kr Fkkuk dksyok dks Hkst fn;s x;s Fks ftl ij vkxs dk;Zokgh fof/k dh izfd;kuqlkj Fkkukf/kdkjh] dksyok dks lEikfnr djuh Fkh ysfdu okja.V tkjh fd;s O;fDr;ksa esa ls ,d Jh vkseizdk'k 'kekZ vius futh dk;Z gsrq mi[k.M dk;kZy;] ckanhdqbZ ds ifjlj esa vk;k gqvk Fkk] ftls pkykuh xkMZ ls fxjrkj djokdj fgjklr esa can dj fn;kA bl izdkj viuh inh; gSfl;r dk xaHkhj nq:i;ksx djds nqjkpj.k ,oa vuq'kklughurk dh gS vkSj vke turk esa in dh izfr"Bk dks fxjk;k gS ftlds fy, vki mRrjnk;h gSA tSlk fd layXu vkjksi fooj.k i= la[;k 2 esa mfYYkf[kr gSA vkjksi la[;k 3%& ;g fd mDr Jh jktsUnz izlkn 'kekZ] vkj-,-,l }kjk mDr in ij inLFkkfir gksrs gq, mDr Jh vkseizdk'k dks fxjrkj djkus ds mijkar bldh tekur rLnhd ugha dh xbZA bl izdj.k esa nksuksa i{kksa ds chp jkthukek gksus ds mijkar Hkh xSj lk;dky dks fnukad 9-7-97 dks 6 ekg ds fy;s 'kkafr o dkuwu O;oLFkk cuk;s j[kus ds fy;s ikcan dj fn;k x;k vkSj 5000&5000 :i;s ds ca/k i=- fu"ikfnr djus dk vkns'k Hkh ns fn;k x;k ftls ftyk ,oa lS'ku U;k;ky;] nkSlk us vius vkns'k fnukad 25-7-98 }kjk fujLr dj fn;kA ek- lS'ku U;k;ky;] nkSlk us vius vkns'k fnukad 25-7-98 esa iwjh dk;Ziz.kkyh dks vln~Hkkoh ,oa vuqfpr Ikk;k rFkk mi[k.M eftLVªsV ds vkns'k dks fujLr dj fn;kA vr% vki Jh jktsUnz izlkn }kjk inh; gSfl;r dk nq:i;ksx djds xEHkhj nqjkpj.k fd;k x;k gSA tSlk fd layXu vkjksi fooj.k i= la[;k 3 esa mfYyf[kr gSA 'kklu mi lfpo 3. The petitioner after receipt of charge-sheet submitted his reply and denied the allegations levelled against him in the said charge-sheet. The Disciplinary Authority after receipt of chargesheet appointed Enquiry Officer to conduct departmental enquiry against the petitioner. The Enquiry Officer submitted his report to the Disciplinary Authority on 30th January, 2002. The Enquiry Officer found that all the three charges levelled against the petitioner were not proved and as such, the petitioner was exonerated from the allegations levelled against him. 4. The Disciplinary Authority did not agree with the findings of the Enquiry Officer and it prepared a note of disagreement and sent a letter dated 15th March, 2002 containing the reasons of disagreement with the Enquiry Officer to the petitioner. The Disciplinary Authority found that all the three charges were proved against the petitioner and as such, the explanation of the petitioner was called on the note of disagreement sent by the Disciplinary Authority. 5. The petitioner after receipt of note of disagreement sent his reply on 20.05.2002 and requested the Authority to drop all the charges levelled against him. 6. The Disciplinary Authority vide order dated 29th July, 2002 found all the three charges proved against the petitioner and passed the penalty order of withholding of three annual grade increments with cumulative effect. 7. The petitioner feeling aggrieved against the penalty order had preferred a review petition under Rule 33 of CCA Rules before the respondents and requested that the petitioner may be exonerated from the charges and penalty order may be set aside. The Reviewing Authority found that there was only procedural irregularity in passing the order by the petitioner under Sections 107 & 116 of Cr.P.C. and it might have affected rights of the other party, however, there was no malafides on the part of the petitioner. The Reviewing Authority found that the punishment imposed against the petitioner was excessive and as such, it substituted the punishment of stoppage of three annual grade increment with cumulative effect with stoppage of one annual grade increment with cumulative effect vide order dated 28th April, 2003. 8. The petitioner filed the review petition under Rule 34 of CCA Rules before the Governor against the order dated 28th April, 2003. The review petition was time barred and it came to be dismissed by order dated 20th July, 2009 as having been filed belatedly. 9. 8. The petitioner filed the review petition under Rule 34 of CCA Rules before the Governor against the order dated 28th April, 2003. The review petition was time barred and it came to be dismissed by order dated 20th July, 2009 as having been filed belatedly. 9. The petitioner has pleaded in his writ petition that while working as Sub-Divisional Officer, Bandikui, he received a complaint dated 23rd June, 1997 of one Shri Sita Ram, who was serving as Class-IV employee in the office of District Collector, Dausa, alleging that his wife, daughter and uncle had gone to hand-pump to fetch water and there, persons namely, Radheshyam son of Bhagwan Sayay, Dinesh and Om Prakash son of Radheshyam and females in the name of Guddi, Indra and Lalita had given severe beating to his wife and Bhagwan Sayay had tried to outrage modesty of his wife. It was alleged in the complaint that due to intervention of some independent persons, injured could save their life and there was imminent danger to him and his family members and there was every likelihood of serious threat to their person and property and as such, immediate action was sought by the complainant. 10. The petitioner after considering the complaint and the affidavits filed along with the complaint, took cognizance of the complaint and passed the order as to why non-complainants may not be asked to submit sureties and bonds of Rs.5000/- to maintain peace. The petitioner also drew the proceedings to issue notice under Section 111 of Cr.P.C. and further formed an opinion on the basis of affidavits filed along with the complaint that there was every possibility of breach of peace and as such, the noncomplainants were to be directed to be produced through warrants and accordingly, warrants were also issued. The petitioner had fixed next date as 27th June, 1997. 11. The petitioner has pleaded that on 26th June, 1997 the Guard on duty (Challani Guard) produced one of the non-complainants, Shri Om Prakash. It was reported by Challani Guard that non-complainant Om Prakash had indulged in giving beating to the complainant outside the court premises and since the warrants were already issued, the non-complainant Om Prakash was produced in the court. When the said non-complainant Om Prakash was produced in court, he again got furious and considering the possibility of breach of peace, he was sent to judicial custody. When the said non-complainant Om Prakash was produced in court, he again got furious and considering the possibility of breach of peace, he was sent to judicial custody. The petitioner has pleaded that on 27th June, 1997, the complainant had appeared before the Court and warrants of non-complainants were not executed and as such, the matter was fixed for 2nd July, 1997. The petitioner pleaded that on 2nd July, 1997, since Om Prakash was released on bail from District & Sessions Judge, Dausa-camp-Bandikui, he appeared along with his lawyer. It was also noted that both the sides were in process of reaching to a compromise and as such, the said compromise was to be produced before the next date and accordingly, the petitioner dispensed with presence of other non-complainants by way of warrants. The case was listed on 9th July, 1997 and both the parties produced the compromise and the petitioner asked the non-complainants to execute bonds for a period of six months for maintaining the peace and as such, the file was consigned to the record. 12. The petitioner has pleaded in his writ petition that he while exercising the judicial powers under Section 107 onwards, did not commit any misconduct and as such, he has been unnecessarily issued a charge-sheet and further, punished. The petitioner has pleaded in his petition that he has not committed any misconduct while exercising power under Sections 107 & 116(3) of Cr.P.C. and he further complied with provision of Section 111 of Cr.P.C. The petitioner has pleaded that once he was not found guilty of committing any misconduct by the Enquiry Officer, the Disciplinary Authority only on the basis of surmises and conjectures arrived at a conclusion regarding guilt of the petitioner even without looking into the fact. The petitioner has further pleaded in his writ petition that Reviewing Authority has itself found that there was no malafide intention of the petitioner and yet the procedural lapse has been found to be committed by the petitioner and as such, the petitioner has unnecessarily been punished. 13. The petitioner has further pleaded that he is entitled to the protection for the acts performed by him in judicial capacity as Executive Magistrate and even if there was a procedural error, such act cannot be termed as misconduct. 13. The petitioner has further pleaded that he is entitled to the protection for the acts performed by him in judicial capacity as Executive Magistrate and even if there was a procedural error, such act cannot be termed as misconduct. The petitioner has pleaded in his writ petition that under the power by proviso to Section 113 of Cr.P.C., if the Executive Magistrate forms an opinion and it appears to him that there is a reason to fear the commission of breach of peace and such breach of peace cannot be prevented otherwise than by immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest. The petitioner submitted that considering the situation obtaining on that day, the petitioner has acted in bonafide manner and as such, it could not have been become a misconduct for initiating the departmental enquiry. 14. The respondents have filed reply to the writ petition and have submitted that the Disciplinary Authority on the basis of evidence on record found the petitioner guilty of charges levelled against him. The District Judge & Sessions Judge, Dausa vide order dated 25th July, 1998 had set aside the order dated 09th July, 1997 passed by the petitioner directing non-complainants to submit surety bond to maintain peace and there was no possibility of the breach of peace and yet the order was passed by the petitioner malafidely without following the process. The respondents have submitted that petitioner committed a grave misconduct of misusing his post and he also issued process against dead person and it shows that no enquiry was made on the complaint filed by Sita Ram. The respondents have submitted that had the prima facie enquiry been conducted, it could have come to notice that Bhagwan Sahay had died many years ago and as such, the petitioner was guilty of the charges levelled against him. It has been emphasized in the reply that petitioner misused his official position and without following the procedure, he issued orders. He committed a grave misconduct and as such, he was rightly punished. 15. Mr. R.N.Mathur, Senior Advocate appearing for the petitioner has submitted that the alleged acts done by the petitioner were judicial functions and same cannot be subject matter of disciplinary enquiry. Mr. Mathur has submitted that petitioner has not committed any misconduct while performing his duties in judicial capacity. Mr. 15. Mr. R.N.Mathur, Senior Advocate appearing for the petitioner has submitted that the alleged acts done by the petitioner were judicial functions and same cannot be subject matter of disciplinary enquiry. Mr. Mathur has submitted that petitioner has not committed any misconduct while performing his duties in judicial capacity. Mr. Mathur has submitted that no departmental enquiry can be held against an Officer, if he has worked in judicial capacity until orders are passed with ill-motive or in a malafide manner. 16. Mr. Mathur has submitted that the Enquiry Officer once had given the findings on the basis of documentary and oral evidence that petitioner did not exceed his limit in exercise of powers given under Section 107 onwards for maintaining the peace under Chapter-VIII of Cr.P.C., the Disciplinary Authority only on surmises and conjectures prepared a note of disagreement and punished the petitioner without considering the relevant facts. 17. Mr. Mathur has submitted that the note of disagreement prepared by the Disciplinary Authority has altogether been given on different charges which are not levelled against the petitioner. Mr. Mathur has submitted that such reasons given are like in the nature of (i) the Enquiry Officer erroneously found that the application dated 23rd June, 1997 to be a complaint and there was no complaint under Section 107 of Cr.P.C. as there was no title and no mentioning of Section in the said application, (ii) the petitioner did not make any enquiry in the complaint nor he examined the affidavit filed with the complaint and yet he issued the warrants misusing the official position, (iii) there was already FIR No.92/1997 registered at Police Station Kolwa and petitioner while issuing the warrant dated 23rd June, 1997 was not having such information, (iv) the petitioner did not follow the procedure as laid down in Section 105 onwards. 18. Mr. Mathur in support of submissions has relied upon the judgments (i) Union of India & Ors. Vs. J.Ahmed, (1979) AIR(Supreme Court) 1022, (ii) Union of India & Anr. Vs. R.K.Desai, (1993) 2 SCC 49 , (iii) Vijay Singh Vs. State of Uttar Pradesh & Ors., (2012) 5 SCC 242 , (iv) P.C.Joshi Vs. State of U.P. & Ors., (2001) 6 SCC 491 , (v) Ramesh Chander Singh Vs. High Court of Allahabad & Anr., (2007) 4 SCC 247 and (vi) State of Rajasthan & Ors. Vs. Jagmal Singh, (2017) LabIC 3136. State of Uttar Pradesh & Ors., (2012) 5 SCC 242 , (iv) P.C.Joshi Vs. State of U.P. & Ors., (2001) 6 SCC 491 , (v) Ramesh Chander Singh Vs. High Court of Allahabad & Anr., (2007) 4 SCC 247 and (vi) State of Rajasthan & Ors. Vs. Jagmal Singh, (2017) LabIC 3136. Per contra, Mr.B.L.Avasthi, the learned Additional Govt. Counsel submitted that petitioner is guilty of serious misconduct as the petitioner issued the warrant of arrest to the non-complainants on first date and in fact only notices/summon should have been issued to such persons. 19. Mr. Avasthi has submitted that the findings given by the Disciplinary Authority is in consonance with the charges levelled against the petitioner and note of disagreement does not travel beyond allegation levelled against him. 20. Mr.Avasthi has submitted that procedure as given under Sections 107 & 116 of Cr.P.C. was not followed and petitioner did not make any enquiry before issuing the warrant of arrest and as such, he has rightly been punished. 21. Mr. Avasthi has submitted that Reviewing Authority has also recorded about exceeding of jurisdiction, committed by the petitioner, hence, misconduct has been committed under Rule 3(ii) of Rajasthan Civil Services (Conduct) Rules, 1971. Mr. Avasthi has relied upon the judgment of Supreme Court rendered in the case of Central Industrial Security Force & Ors. Vs. Abrar Ali, (2017) AIR(Supreme Court) 200 and the judgment of this Court at Principal Seat, Jodhpur in S.B.Civil Writ Petition No.669/2003 (Inder Singh Rathore Vs. State of Rajasthan, decided on 23.01.2017. I have considered the submissions of learned counsel for the parties and perused the material on record. 22. The first issue is with regard to holding the disciplinary proceedings in respect of acts done by the petitioner while discharging judicial functions, this Court finds that the petitioner after receiving the complaint under Sections 107 & 116(3) of Cr.P.C., drew the proceedings under Section 111 of Cr.P.C. to issue notices to non-complainants and such persons were summoned through warrants. The petitioner formed an opinion on the basis of complaint and affidavits filed that there was every likelihood of breach of peace and as such, he exercised the power under Section 113 of Cr.P.C. to issue the warrants. The petitioner formed an opinion on the basis of complaint and affidavits filed that there was every likelihood of breach of peace and as such, he exercised the power under Section 113 of Cr.P.C. to issue the warrants. The formation of opinion of the petitioner considering the fear of breach of peace and finding that such breach of peace cannot be prevented otherwise than by immediate arrest, the petitioner issued warrant of arrest. This Court also finds that on 26th June, 1997, the petitioner sent one Om Prakash to judicial custody as he not only indulged in beating with the complainant but also got furious in the Court. The petitioner realizing the gravity exercised his power in bonafide manner. The order passed by the petitioner on 9th July, 1997 on the basis of a compromise entered between the complainant and non-complainant, he had only directed to maintain peace for six months by asking non-complainants to execute personal bond of Rs.5000/- each. 23. This Court finds that the petitioner in best of his judgment thought after considering the fact situation that all the steps were required to be taken under the powers given to him under Criminal Procedure Code for maintaining peace. The function which the petitioner discharged, could in no manner be termed as misconduct as petitioner performed his official duties in best of his judgment. The petitioner's act of taking steps under the powers given in Cr.P.C., if is exercised in best of his judgment, it cannot be said that petitioner has committed a misconduct. The relevant Rule 3 of Rajasthan Civil Services (Conduct) Rules, 1971 is reproduced as hereunder:- "3. General.- (1) Every Government servant shall at all times- (i) maintain absolute integrity; and (ii) maintain devotion to duty and dignity of office. (2) (i) Every Government Servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority; (ii) No Government servant shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible. Explanation- Nothing in clause (ii) of sub-rule (2) shall be constituted as empowering a Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities." 24. The Court finds that as per Rule 3(2) (ii) of the Conduct Rules, Government Servant while performing his official duties or in the exercise of power conferred on him, has to act in his best judgment. The said rule makes it very clear that if an Officer has conducted himself in faithful discharge of his duties and the same is as per provisions of law, it cannot be said that the person has committed a misconduct for which he is liable to be tried by way of disciplinary proceedings. 25. The Court further finds that error of judgment, innocent mistakes and act of negligence cannot constitute misconduct. Plain and simple meaning of "misconduct" means misconduct arising from ill-motive. The submission of Mr. Mathur that petitioner while discharging judicial duties has acted in bonafide manner and no ill-motive has been attributed, this Court finds that the charges levelled against the petitioner are in respect of not following the due procedure and issuing a warrant of arrest at first instance, the allegation against the petitioner is that he misused his power in order to confer undue benefit on a person, cannot be treated to be a misconduct. The second charge with regard to arrest of non-complainant -Om Prakash, the petitioner is said to have misused his official position and also showed act of indiscipline, the Court finds that the petitioner after considering the situation and due to behaviour of such person, had to exercise his power of sending such person to the judicial custody. The Court finds that the said charge is also in respect of not exercising the power in proper manner and as such, it cannot be construed as a misconduct if the petitioner had exercised his power in best of his judgment and he thought to take action against such person. The Court finds that the said charge is also in respect of not exercising the power in proper manner and as such, it cannot be construed as a misconduct if the petitioner had exercised his power in best of his judgment and he thought to take action against such person. The charge no.3 against the petitioner that he misused his power by asking the non-complainants to execute the bond for maintaining peace for six months in spite of compromise entered between the parties and such order being set aside by District & Sessions Judge, this Court finds that the order passed by the petitioner on 9th July, 1997 was set aside by the judicial forum and as such, it cannot be presumed that petitioner had misused his power and committed a serious misconduct. 26. In the opinion of the Court, the acts which were done by the petitioner while exercising his powers cannot be considered as misconduct and the petitioner cannot be punished on such charges. This Court further finds substance in the submission of the learned counsel for the petitioner that once petitioner was not found guilty of any charges during the enqury by Enquiry Officer, the Disciplinary Authority without due application of mind and without levelling a charge on different allegation, yet passed the punishment order. This Court is of the opinion that Disciplinary Authority has a right to disagree with the findings of the Enquiry Officer, however, the Disciplinary Authority has to give his note of disagreement/reasons only on the allegations which are levelled in the charge-sheet. The perusal of note of disagreement and punishment order show that Disciplinary Authority has gone on different tangent to punish the petitioner. 27. The submission of Mr. Mathur with respect to order dated 28th April, 2003 passed by the Reviewing Authority where it has recorded that petitioner had not acted in malafide manner, this Court finds that the Reviewing Authority also recorded that petitioner was only guilty of not following the due procedure and it resulted into violation of rights of the other parties (non-complainants) but there was no ill-motive of the petitioner in passing such order. This Court finds that once the Reviewing Authority had found that petitioner had not acted in malafide manner or with ill-motive, only on the ground of violation of procedure, the petitioner could not have been punished and even the substitution of punishment with stoppage of one annual grade increment with cumulative effect is also not justified. 28. The reliance has been placed by learned counsel for the petitioner in the case of Union of India & Ors. Vs. J.Ahmed, the Apex Court has considered the meaning of misconduct and has held in para 11 of the judgment, as under:- "11. 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 Pierce v. Foster, 1886 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 Newspapers), (1959) 1 WLR 698 . This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Division, Nagpur, (1961) AIR(Bombay) 150, and Satubha K. Vaghela v. Moosa Raza, (1969) GLR 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; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct". 29. In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) AIR(Supreme Court) 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) AIR(Supreme Court) 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. In S. Govinda Menon v. Union of India, (1967) AIR(Supreme Court) 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, (1963) AIR(Supreme Court) 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 signals 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 crashes 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) GLR 108 at p. 120). Misplaced sympathy can be a great evil [see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd., (1978) GLR 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. 30. The Apex Court in the case of Union of India & Anr. Vs. R.K.Desai has held in para 7 of the judgment, as under:- "7. It seems difficult beyond dispute, and is not in fact disputed before us, that it is not as if an officer belonging to the Central Civil Service is totally immune from disciplinary proceedings wherever he discharges quasi-judicial or judicial functions. If in the discharge of such functions he takes any action pursuant to a corrupt motive or an improper motive to oblige someone or takes revenge on someone, in such a case it is not as if no disciplinary proceedings can be taken at all. On the contrary, merely because he gives a judicial or quasi judicial decision which is erroneous or even palpably erroneous no disciplinary proceedings would lie. We may in this connection usefully refer to H.H.B Gill v. R., (1948) AIR(Privy Council) 128, 133 where it was held as under: "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." 31. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." 31. Following this ruling in United Provinces v. Electricity Distributing Co., (1948) AIR(Privy Council) 159 it was held in paragraph 21 as under: "In the present case, it is equally clear that the appellant 'could not justify the acts in respect of which he was charged', i.e, acts of fraudulently misapplying money entrusted to his care as a public servant, 'as acts done by him by virtue of his office that he held'." 32. The Apex Court in the case of Vijay Singh Vs. State of Uttar Pradesh & Ors. has held in para 18 of the judgment as under:- "The present case shows dealing with the most serious issues without any seriousness and sincerity. Integrity means soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It is synonymous with probity, purity, uprightness rectitude, sinlessness and sincerity. The charge of negligence, inadvertence or unintentional acts would not culminate into the case of doubtful integrity." 33. The Apex court in the case of P.C.Joshi Vs. State of U.P. & Ors. has held in para 8 of the judgment, as under:- "8. There are other two charges in respect of which the appellant was found to be guilty. One relates to grant of order of stay of disconnection of telephone for nonpayment of Rs 410 to the Telephone Department in a consumer dispute filed by a senior government doctor. All that he did in his capacity as In-charge District Judge on the assumption that the District Judge being the ex officio Chairman of the District Consumer Forum he could grant such an order and that too when one of the members of the Forum has placed the papers before him seeking for orders. At best it is a case of bona fide and erroneous exercise of judicial powers and that matter cannot be treated as misconduct at all. How the enquiry officer could arrive at a finding that it is falling in one of the categories mentioned above, surpasses our comprehension. " 34. In the case of State of Rajasthan & Ors. Vs. Jagmal Singh, this Court has held, a under:- "16. How the enquiry officer could arrive at a finding that it is falling in one of the categories mentioned above, surpasses our comprehension. " 34. In the case of State of Rajasthan & Ors. Vs. Jagmal Singh, this Court has held, a under:- "16. If any error while deciding a case in the quasi judicial jurisdiction is not an outcome of malafides or ulterior motive, then the same does not constitute any misconduct. 17. The Hon'ble Supreme Court in Zunjarrao Bhikaji Nagarkar Vs. Union of Inaia & Ors., (1999) AIR(Supreme Court) 2881 has held as under:- "43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake or law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned chargesheet is rendered illegal. The charge-sheet, if sustained, with thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings." 18. From perusal of the allegations in the charge-sheet, the explanation thereto in the statement of charge and the evidence and the findings recorded by the Enquiry Officer as well as the order passed by the disciplinary authority in the present case shows that at the most petitioner can be termed to be guilty of committing a judicial error and such error by no stretch of imagination can be alleged as misconduct under the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958. As it has already been discussed in the preceding paras, there is no allegations against the petitioner with respect to any corrupt practice, ulterior motive, embezzlement or misappropriation then in these circumstances proceedings against the petitioner and awarding a penalty of stoppage of entire withholding of 100% pension is absolutely uncalled for, much less the same cannot be termed as misconduct. 20. The judgment relied upon is clearly distinguishable on the facts of the present case as there is no allegation of any integrity or recklessness or misconduct in discharge of his duties and there is no malafide intention of causing loss to the State. Therefore, principles which has been enunciated in the abovesaid judgment are not applicable to the facts of the present case." 35. The submission of the learned counsel for the respondents, Mr. Avasthi that petitioner has committed a misconduct as he did not follow the procedure for initiating the proceedings under Section 107 onwards and he did not make any enquiry under Section 116 of Cr.P.C., and he directly issued process of warrant, this Court finds that petitioner if in best of his judgment realizing the situation relating to breach of peace, if exercised his jurisdiction, the same cannot be said to be suffering from any malafides being attributed to the petitioner on account of undertaking the process. The submission of the learned counsel for the respondents that the disagreement note prepared by the Disciplinary Authority is in consonance with the charges levelled against the petitioner, this Court finds that the Disciplinary Authority has in fact given separate reasons and some of the allegations are levelled by giving finding, even which are not subject matter of charge-sheet issued to the petitioner. The finding of Disciplinary Authority with respect to charge no.1 is reproduced as under:- ^^tkap vf/kdkjh us bl vkjksi dks izekf.kr ugha ekuk gSa tkap vf/kdkjh dk fu"d"kZ Lohdkj fd;s tkus ;ksX; ugha gS D;ksfda& ¼1½ tkap vf/kdkjh us ;g vadu fd;k gS fd ifjoknh Jh lhrkjke }kjk bZ,Dlih- 2 fnukad 23-6-97 dks tks izkFkZuk i= vkjksfir ds le{k izLrqr fd;k gS og bLrxklk gSA bl nLrkost dk voyksdu djus ij ;g Li"V gS fd Jh lhrkjke ifjoknh us dsoy vkjksfir vf/kdkjh ds le{k ek= ,d izkFkZuk i= izLrqr fd;k gS vkSj ;g /kkjk 107 lhvkjihlh ds varxZr bLrxklk ugha gSA bl izkFkZuk i= ij u rks dksbZ VkbVy ys[ku gS vkSj u gh fdl /kkjk ds varxZr izkFkZuk i= izLrqr fd;k gS] bldk dksbZ vadu gSA fojks/kh i{k blesa ugha cuk;s x;s gSA ¼2½ tkap vf/kdkjh us ;g vadu fd;k gS fd rFkkdfFkr bLrxklk ,oa mlds lkFk layXu i=ksa dh tkap vkjksfir vf/kdkjh }kjk dh xbZ yxrh gSA tkap vf/kdkjh dk ;g fu"d"kZ Lohdkj fd;s tkus ;ksX; ugha gS D;ksafd vkjksfir vf/kdkjh }kjk u rks izkFkZuk i= dh tkap dh gS vkSj u gh mlds lkFk layXu 'kiFk i=ksa dh tkap dh gSA tkap vf/kdkjh }kjk dsoy laHkkouk O;Dr dh xbZ gS fd tkap dh xbZ yxrh gS] lqfuf'pr rkSj ij tkap gksuk ugha ik;k gSA tks rF; ifjoknh us vafdr fd;s gS mUgsa gh fcuk tkap fd;s vkjksfir vf/kdkjh us ;Fkkor :i ls Lohdkj djds vuko';d :i ls in dk nq:i;ksx djrs gq, okjaV tkjh dj fn;s] ;g rF; vknsf'kdk fnukad 23-6-97 bZ,Dlih- 1 ls izekf.kr gS ftlesa tkap djus dk dksbZ mYys[k ugha fd;k x;k gSA ¼3½ vkjksfir vf/kdkjh ds le{k ifjoknh ds izLrqr izkFkZuk i= dh dksbZ tkap ugha dh xbZ gS] ,slh fLFkfr esa tkap vf/kdkjh dk ;g dFku Lohdkj fd;s tkus ;ksX; ugha gS fd vkjksfir vf/kdkjh dks larqf"V gks xbZ Fkh fd vfr- ftyk dYkDVj ,oa ftyk eftLVªsV] nkSlk us ekjihV ds ekeys dks xaHkhj ekuk FkkA Ikqfyl Fkkuk dksyok esa ,QvkbZvkj l- 92@97 ntZ gqbZ FkhA ;s lHkh i'pkrorhZ dk;Zokfg;ka ,oa tkudkjh o lwpuk,a gS vkSj fnukad 23-6-97 dks tc vkjksfir us okjaV tkjh fd;s Fks ml le; muds lwpuk,a ugha FkhA ¼4½ tkap vf/kdkjh us /kkjk 107] 111 ,oa 113 ds lkFk&lkFk 116 lhvkjihlh dh dk;Zokfg;ksa dks mfpr crk;k tks Lohdkj fd;s tkus ;ksX; ugha gS D;ksafd vkjksfir vf/kdkjh }kjk bu izko/kkuksa dk xaHkhj mYy/kau fd;k x;k gSA bl lanHkZ esa /kkjk 107 lhvkjihlh dk voyksdu djsa tks fuEu izdkj ls gS%& 36. Security for keeping the peace in other cases.- (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceedings, he may, in the manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond [with or without sureties] for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction." mDr izko/kku esa 'kkafr Hkax ,ao lkoZtfud 'kkafr Hkax dh ifjHkkf"kr djrs gq, fu;ekuqlkj dk;Zokgh djus ds funsZ'k gS] ftudh vuqikyuk ugha dh xbZA^^ 37. The finding of Disciplinary Authority with respect to charge no.2 is reproduced as under:- ^^tgka rd iz'u fnukad 26-6-97 dh rFkkdfFkr ?kVuk dk gS] bl lanHkZ esa dksbZ ,QvkbZvkj miYkC/k ugha gSA bl fnol dh ?kVuk ds fy, fxjrkj ugha fd;k x;k vkSj u gh dksbZ vyx ls eqdnek dk;e fd;k x;kA ,slh fLFkfr esa bl fcUnq ij tkap vf/kdkjh dk fu"d'kZ Lohdkj fd;s tkus ;ksX; ugha gSA^^ 38. The finding of Disciplinary Authority with respect to charge no.3 is reproduced as under:- ^^mDr ls ;g fookfnr ugha gS fd vkjksfir vf/kdkjh }kjk izlkfjr vkns'k l{ke U;k;ky; }kjk fujLr fd;s x;s gS] vr% buds }kjk laikfnr dk;Zokgh iwjh rjg ls voS/kkfud gSA^^ 39. This Court finds that Disciplinary Authority did not confine his finding to the charges levelled against the petitioner. The learned counsel for the respondents has placed reliance on the judgment rendered in the case of Central Industrial Security Force & Ors. Vs. Abrar Ali and submitted that the High Court in exercise of powers under Articles 226 & 227 of the Constitution of India, should not venture into re-appreciation of evidence. The Apex Court in para 8 of the judgment has held as under:- "In Union of india & Ors. Vs. Abrar Ali and submitted that the High Court in exercise of powers under Articles 226 & 227 of the Constitution of India, should not venture into re-appreciation of evidence. The Apex Court in para 8 of the judgment has held as under:- "In Union of india & Ors. v. P. Gunasekaran, (2015) 2 SCC 610 , this Court held as follows: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether: (a) the inquiry is held by a competent authority; (b) the inquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 40. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 40. In the opinion of the Court, in the instant case, the controversy is with regard to functions which have been discharged by the petitioner while exercising his powers given under Section 107 of Cr.P.C. onwards and whether such act of the petitioner can be termed as misconduct and conducting disciplinary proceedings in respect of functions discharged as a judicial/quasi judicial authority. 41. This Court has already held that as per judgment of the Apex Court, as indicated above, if the petitioner has discharged judicial functions without any ill-motive or malafide, no misconduct is said to be committed. This Court on the basis of law laid down by the Apex Court in various aforesaid decisions, has categorically held that "misconduct" means misconduct arising from ill-motive and acts of negligence or error of judgment or innocent mistake do not constitute misconduct. In the opinion of the Court, the judgment relied upon by learned counsel for the respondents is of little assistance to the respondents. 42. Reliance has been placed by learned counsel for the respondents on the judgment passed in the case of Inder Singh Rathore Vs. State of Rajasthan (S.B.Civil Writ Petition No.669/2003), decided on 23.01.2017, wherein the Court has held that in examining the matters arising out of a disciplinary proceedings, the High Court does not sit in judgment on merits of the decision so as to re-appreciate and re-appraise the evidence led before the Enquiry Officer and examine the findings recorded by the Enquiry Officer as court of law and reached its own conclusions. The Court further held that the judicial review made by High Court is limited to examining the process of decision making and not on merits of the decision itself. 43. This Court finds that the said judgment was in respect of departmental enquiry conducted and petitioner in that case was found guilty, the Court found that enquiry under rule 16 of CCA Rules is to be in conformity with the entire procedure after giving adequate opportunity to the delinquent and charges there, were found to be proved. 43. This Court finds that the said judgment was in respect of departmental enquiry conducted and petitioner in that case was found guilty, the Court found that enquiry under rule 16 of CCA Rules is to be in conformity with the entire procedure after giving adequate opportunity to the delinquent and charges there, were found to be proved. The said judgment is on different facts and also the question of constituting a misconduct in respect of functions discharged by Executive Magistrate was not under consideration and as such, the said judgment is of little help to the respondents. 44. Mr. Mathur while arguing the case submitted that the petitioner is not assailing the validity of order dated 20th July, 2009, the second Review Petition filed under Rule 34 of CCA Rules dismissed as having become time barred, this Court finds that the penalty order dated 29th July, 2002 and order dated 28th April, 2003 passed by the Reviewing Authority under Rule 33 of CCA Rules have not been passed in legal manner and as such, the Court is not going into the correctness of order dated 20th July, 2009. 45. This Court finds that the penalty order dated 29th July, 2002 and order dated 28th April, 2003 having been passed in arbitrary and illegal manner, the same are liable to be quashed and set aside. 46. Accordingly, the writ petition is allowed and the orders dated 29th July, 2002 and 28th April, 2003 are quashed and set aside. 47. The petitioner would be entitled for all consequential benefits arising from setting aside the said two orders.