JUDGMENT 1. Heard finally. 2. This petition under Article 226 of the Constitution of India has been filed against the order dated 3-12-2007 passed by the Disciplinary Authority and order dated 12-2-2009 passed by the Appellate Authority, by which it has been directed that 30% of the total loss sustained by the State shall be recovered from the petitioner. 3. The necessary facts for disposal of the present petition in short are that the petitioner is working in the Forest Department on the post of Forest Guard. The petitioner was also directed to work as Depot Asstt. On physical verification, it was found that the fuel wood weighing 5910.61 quintal was less, therefore, a charge sheet was issued to the petitioner that he has misappropriated the fuel wood and thus, embezzled the fuel wood worth Rs. 6,30,346/-. The petitioner submitted his reply to the charge sheet. 4. The Departmental enquiry was conducted and the Enquiry Officer, submitted his report with a finding that there is no evidence to show that the petitioner has embezzled the fuel wood, and there is no evidence, as to how the quantity of the fuel wood has reduced because no incident of theft was ever reported. However, it was held that the charge levelled against the petitioner was found to be proved. It appears that the petitioner had also alleged that the family members of one Shukla were committing theft, and the wood was also being sent to the families of the senior officers, however, the said defence was not accepted by the Enquiry Officer. 5. A show cause notice was issued to the petitioner which was replied by the petitioner, however, by order dated 3-12-2007, the Disciplinary Authority held that in the year 1999, the petitioner was asked to work as Depot Asstt. and on physical verification conducted in the year 2002, large quantity of fuel wood was found missing, for which the petitioner alone cannot be held liable. However, it was held that if any illegality was being committed in the depot, then it was the duty of the petitioner to inform the senior officers in writing. However, it was also held that the responsibility of the Depot Incharge was more onerous, against whom action is being taken separately. However, it was held that if any illegality was being committed in the depot, then it was the duty of the petitioner to inform the senior officers in writing. However, it was also held that the responsibility of the Depot Incharge was more onerous, against whom action is being taken separately. It was specifically held that there is no evidence, that the fuel wood was embezzled by the petitioner, but it was held that the petitioner was negligent in discharging his duties. Therefore, it was held that the petitioner is partially responsible for the shortage of fuel wood and it was directed that 30% of the total loss i.e., Rs.1,91,504/- be recovered from the petitioner. 6. Being aggrieved by the order dated 3-12-2007, the petitioner filed an appeal, which too has been dismissed by order dated 12-2-2009. 7. Challenging the orders passed by the Authorities below, it is submitted by the Counsel for the petitioner, that the petitioner has been held guilty for a charge which was never levelled against him. It is submitted that the charge against the petitioner was that he had embezzled the fuel wood worth Rs.6,38,346/-, however, the Disciplinary Authority specifically held that there is no evidence against the petitioner to prove the charge of embezzlement. Charge of embezzlement and the charge of negligence are both separate charges and the charge of negligence cannot be treated as a lesser charge of embezzlement. It is further submitted that negligence cannot be said to be misconduct, therefore, the departmental enquiry conducted against the petitioner is bad. To buttress his contentions, the Counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of Union of India Vs. J. Ahmed, reported in (1979) 2 SCC 286 . 8. Per contra, the Counsel for the State has supported the orders passed by the Authorities. 9. Heard the learned Counsel for the Parties. 10. The following charge was levelled against the petitioner : mDr infLFkfr vof/k es miHkksDrk fMiks ds HkkSfrd lR;kiu esa tykÅ ydMh otu 5910-61 fDaoVy vkius Lofgr es [kqnZ cqnZ dj 'kklu dh jkf'k :i;s 638341 dj xcu dj e/;Áns'k flfoy lsok vkpj.k fu;kekoyh 1965 ds fu;eksa dk mYya?ku dj vius vkidks e/;Áns'k flfoy lsok oxhZdj.k fu;a=.k rFkk vihy fu;e 1966 ds vUrxZr dk;Zokgh dk Hkkxhnkj cuk;kA 11. Thus a specific charge was levelled against the petitioner to the effect that he had embezzled the fuel wood worth Rs. 6,38,341. No charge of negligence was levelled against the petitioner. 12. The following finding was recorded by the Enquiry Officer : tgka rd Lofgr esa ydMh dks [kqnZ cqnZ djus dk vk{ksi gS og Áekf.kr djus ds fy, dksbZ lk{; ugha vk;s gS ;g lgh gS fd ydMh dj gqbZ ;g fdl dkj.k ls gqbZ tcfd bl ij pksjh vkfn dh dksbZ /kVuk ugha gSA 13. Thus, it is clear that there is a specific finding that there is no evidence, to show that the petitioner has embezzled the fuel wood. 14. Similarly, the Disciplinary Authority in its order dated 3-12-2007 has held as under : vafre cpko mRrj dk ;g rF; vo'; ekuus ;ksX; gS fd Jh 'kekZ dh M~;wVh fMiks lgk;d ds :i es o"kZ 1999 es yxkbZ xbZ FkhA ijUrq o"kZ 2002 esa gq, fMiks lR;kiu esa bruh cMh ek=k esa ikbZ xbZ tykÅ dk"B esa deh ds fy;s dsoy bl dkj.k ls Jh 'kekZ dks funksZ"k ugha ekuk tk ldrkA rhu o"kksZ dh vof/k esa oSls Hkh dkQh yach vof/k gksrh gS ,oa fMikas esa fdlh Ádkj dh vfu;ferrk gks jgh Fkh tks fyf[kr :i esa vius mPpkf/kdkfj;ksa ds /;ku esa ykuk Jh 'kekZ dk drZO; FkkA fMiks ÁHkkjh dk mRrjnkf;Ro bl Ádj.k esa fuf'pr :i ls vf/kd Fkk ,oa blds fy;s mu ij i`Fkd ls dk;Zokgh Hkh dh tk jgh gSA gka Lofgr esa Jh 'kekZ }kjk ouksit [kqnZ cqnZ dj xcu djuk lqfuf'pr ugha gksrk ijUrq Ádj.k esa Jh 'kekZ dh drZO;ksa dh ykijokgh Áekf.kr gksrh gSA 15. Thus, it is clear that the Disciplinary Authority as well as the Enquiry Officer have found that there is no evidence to prove that the petitioner had embezzled the fuel wood, but held that the petitioner is guilty of negligence. 16. The next question for consideration is that whether the act of negligence can be said to be inferior/lessor act of embezzlement or a separate and independent charge should have been framed. 17. The Supreme Court in the case of Inspector Prem Chand Vs. Govt. of NCT of Delhi reported in (2007) 4 SCC 566 has considered the word ''Misconduct'' as under :- ''9. Before adverting to the question involved in the matter, we may see what the term 'misconduct' means. 10. 17. The Supreme Court in the case of Inspector Prem Chand Vs. Govt. of NCT of Delhi reported in (2007) 4 SCC 566 has considered the word ''Misconduct'' as under :- ''9. Before adverting to the question involved in the matter, we may see what the term 'misconduct' means. 10. In State of Punjab v. Ram Singh, Ex-Constable it was stated: (SCC pp. 57-58, para 5) ' 5 . Misconduct has been defined in Blacks Law Dictionary , 6th Edn. at p. 999, thus: A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as: Any unlawful behavior by a public officer in relation to the duties of his office, willful 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. ' 11. In P. Ramanatha Aiyars Law Lexicon , 3rd Edn., at p. 3027, the term 'misconduct' has been defined as under: '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 word 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." (See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju ) 12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J. Ahmed whereupon Mr Sharan himself has placed reliance, this Court held so stating: (SCC pp. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J. Ahmed whereupon Mr Sharan himself has placed reliance, this Court held so stating: (SCC pp. 292- 93, para 11) ' 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 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 ). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle ( Indicator Newspapers )]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur and Satubha K. Vaghela v. Moosa Raza . The High Court has noted the definition of misconduct in Strouds 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 ." 18. The Supreme Court in the case of State of Punjab v. Ex-Constable Ram Singh, reported in (1992) 4 SCC 54 has held as under :- ''5. Misconduct has been defined in Blacks 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." Misconduct in office has been defined as: '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." P. Ramanatha Aiyars Law Lexicon , Reprint Edition 1987 at page 821 defines misconduct thus: '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. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 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." 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 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.'' 19. The Supreme Court in the case of Punjab State Civil Supplies Corpn. Ltd. v. Sikander Singh, reported in (2006) 3 SCC 736 has held as under :- 21. It is now well settled that negligence simpliciter may or may not amount to misconduct. The Supreme Court in the case of Punjab State Civil Supplies Corpn. Ltd. v. Sikander Singh, reported in (2006) 3 SCC 736 has held as under :- 21. It is now well settled that negligence simpliciter may or may not amount to misconduct. In Union of India v. J. Ahmed this Court stated the law thus: (SCC p. 293, para 11) 'The High Court has noted the definition of misconduct in Strouds 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. In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Shanti Patnaik in the absence of the Standing Orders governing the employees undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India 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 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." 20. 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." 20. The Supreme Court in the case of State of U.P. v. Ramesh Chandra Mangalik, reported in (2002) 3 SCC 443 has held as under :- ''13. Learned counsel for the respondent has submitted that even if the charges as levelled against the respondent are taken to be proved, yet no case of misconduct would be made out, so as to make the respondent liable for any punishment. In this connection he has referred to a decision of this Court reported in Union of India v. J. Ahmed where the Court was considering the provisions of the All-India Services (Death-cum-Retirement Benefits) Rules, 1958. The case related to the disciplinary proceedings against an officer who was likely to retire and was to be retained during pendency of the disciplinary proceedings, under suspension. In that connection while considering the question as to what amounts to misconduct, it was observed that an act or omission or lack of efficiency or failure to attain highest standard of administrative ability may not by itself amount to or constitute misconduct. Error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct. There was an outbreak of disturbances in the district of Nowgong, Assam where the officer was holding the post of Deputy Commissioner. The charge in that case seemed to have been that the officer showed complete lack of leadership while disturbances broke out and disclosed complete inaptitude or lack of foresight and lack of firmness to take quick and firm decision. We feel that it will be difficult to draw any analogy from the facts of the case relied upon by the learned counsel for the respondent. It also has however been observed that negligence in duty may amount to misconduct in certain cases where consequences may be directly attributed to the negligence of the delinquent resulting in heavy losses.'' 21. Thus, it is clear that negligence in discharge of duty may or may not be an act of misconduct. Each and Every case has to be considered on individual basis. Negligence is a failure to exercise appropriate care which is expected to be exercised by a prudent man. Thus, it is clear that negligence in discharge of duty may or may not be an act of misconduct. Each and Every case has to be considered on individual basis. Negligence is a failure to exercise appropriate care which is expected to be exercised by a prudent man. The concept of negligence is based on the principle that the people should exercise reasonable care in their actions. Therefore, in case of a negligence, the disciplinary authority would be required to consider the duties of the delinquent officer viz a viz his acts, because it would be essential to prove that the delinquent officer had a duty to others to exercise reasonable care and the non-exercise of reasonable care had resulted in damages. Thus, every act of negligence would not constitute misconduct unless the consequences attributable to negligence are such as to be irreparable or the damage is so heavy that the degree of culpability would be very high. An act of negligence may be a simple act of negligence or may be an indicative of act of culpability. In order to prove negligence, the department would be under obligation to prove the duties and the lapses on the part of the delinquent officer. Whereas, embezzlement means dishonest misappropriation of property by a person, who comes in possession thereof lawfully. Misappropriation means improperly setting part for one's use to the exclusion of others. Thus, the difference between appropriate and misappropriate is 'dishonest act'. Therefore, the element of dishonesty/ mens rea should be there for holding that the delinquent officer is guilty of misappropriation of property. Thus, it is held that 'act of negligence' is completely different from ' embezzlement' and the charge of negligence cannot be termed as lessor charge of embezzlement. The ingredients of both the charges are different. In the present case, none of the authorities have referred to the duties of the petitioner. The petitioner is a forest guard who was also assigned the work of Depot Assistant. It is not known that whether, it was the duty of the petitioner to keep a watch over the stock or his duty was to perform some table work? 22. There is nothing on record with regard to the duties and lapses on the part of the petitioner. It is not known that whether, it was the duty of the petitioner to keep a watch over the stock or his duty was to perform some table work? 22. There is nothing on record with regard to the duties and lapses on the part of the petitioner. It appears that the respondents have held the petitioner liable merely on the ground that he was assigned the work of Depot Assistant. Thus, it is held that in absence of any specific charge of 'negligence in discharge of duties', the respondents were not right in holding the petitioner guilty of negligence in discharge of his duties, specifically when they had already issued a separate charge sheet to the Depot Incharge. Since, a serious prejudice was caused to the petitioner in absence of a specific charge of negligence in discharge of his duties, therefore, it is held that the order dated 3-12-2007 and the order dated 12-2-2009 are bad in law. Accordingly, they are quashed. 23. The next question for consideration is that whether this Court should remand the matter for conducting the Departmental Enquiry afresh or not? It appears that the physical inspection of the Depot was carried out in the year 2002 and the charge sheet was also issued in the year 2002 and the order was passed by the Disciplinary Authority on 3-12-2007. Thus, more than 17 years have passed from the date of physical verification, therefore, this Court is of the considered opinion, that no useful purpose would be served by remanding the matter back to the Department. 24. Accordingly, the order dated 3-12-2007 passed by the Disciplinary Authority and the order dated 12-2-2009 passed by the Appellate Authority are hereby quashed. 25. The petition succeeds and is hereby Allowed.