- (1.) THE deceased husband of the petitioner was working as a Collection Amin. He was appointed as Peon on 1.2.1977 and thereafter he was promoted to the post of Collection Amin on 24.5.1988. While the deceased was posted as Collection Amin in Tehsil Sadar, Jaunpur he was placed under suspension on 4.2.2004. A charge sheet was served upon him on 3.3.2004 for having effected low recovery on the basis of report of the Naib-Tehsildar dated 3.2.2004. In reply to the charge sheet, he submitted his reply denying the allegations. After receipt of the reply of the deceased, an inquiry report was submitted by the Enquiry officer to the disciplinary authority holding him guilty of having effected low recovery. THE deceased employee was served with a show cause notice along with a copy of the inquiry report. After receipt of the his reply, the services of the deceased were terminated by respondent no. 3. This order is subject matter of challenge in the present writ petition. THE grievance of the petitioner is that the inquiry was not conducted in accordance with the rules. THE Enquiry Officer did not afford an opportunity to cross-examine the witnesses who had adduced in support of the charge levelled against the employee. THE second ground is the low collection of revenue by the deceased which was not a ground for dismissal of his services.
(2.) I have heard the learned counsel for the parties. On perusal of the record, it does transpire that no opportunity was given to the deceased to cross-examine the witnesses, which is clearly visible from the inquiry report submitted in this behalf. The deceased employee had a right to examine and cross-examine the witnesses. Even the report of the Enquiry Officer does not make a mention that any opportunity was given to him to cross-examine the witnesses. The inquiry report was submitted on the basis of the reply submitted by the deceased employee. It is an essential requirement of law while conducting the inquiry an opportunity should be afforded to the employee to cross-examine the witnesses. It was not for the deceased employee to have asked for such an opportunity. The inquiry report perse does not disclose that any opportunity was given to the deceased employee in this behalf. The finding recorded by the appellate authority is not based on any material. For imposing any penalty the employee should be charged with misconduct. The misconduct has been defined as under:- The word misconduct has been defined in Black's Law Dictionary, sixth Edition at Page 999 thus:- "A Transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, it synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness". Misconduct in offence has been defined as:- "Any unlawful behaviour 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. Ramanath Aiyar's 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. 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 unskillfulness 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 behavior or neglect by a public official, by which the right of party has been affected. Thus, it could be seen that the word 'misconduct' though not capable of precise of 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 behavior; unlawful behavior, willful 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-manner 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 maintaining strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
(3.) EVEN there is no specific definition of the misconduct but in the normal course misconduct cannot amount an act of negligence, errors of judgments or innocent mistake. The initial feature of the misconduct is that it arrives on account of ill-motive. In order to constitute misconduct it is to be seen as to whether it is on account of ill motive or inefficiency in collecting revenue. It cannot be a case of misconduct unless it is proved that it was on account of ill-motive. It can be a case of negligence or casualness but not a case of misconduct. It could also be a ground for ordering premature retirement on account of inefficiency of the petitioner. I am of the view that this was not a case of misconduct which will entail punishment of dismissal. The punishment awarded is also disproportionate to the charge leveled against the petitioner.;