- (1.) Heard Ms. Madhumita Bose. learned counsel for the petitioner as well as learned standing counsel for the State. Petitioner has challenged the impugned suspension order dated 19.2.2012 passed by the Commissioner, Entertainment Tax. U.P. Time was granted to learned counsel for the State to seek further instructions. In addition to his earlier submission he has vehemently argued once again. He says that the Tax Inspector is vested with the duty of checking and stopping the evasion of entertainment tax. The very nature of his duty requires him to be vigilant, efficient and available for stopping the tax evasion. In the present case the petitioner has faulted in his duty for which his post has been created. He further says that the tax evasion has been found on the basis of inspection. The details of which have been given in paragraphs Nos. 5 and 6 of the impugned order. He contends that the act of the petitioner comes under the dereliction of duty which is a misconduct, hence, the petitioner can very well be suspended. Action has been taken against the cinema owner also.
(2.) Ms. Madhumita Bose has forcefully argued that in view of Rule-4 of U.P. Government Servants (Discipline and Appeal) Rules. 1999. the charge is not such which, if proved, would entail major penalty. She asserts that in the present situation, suspension cannot be resorted to. She argues that there is only one charge in which it has been alleged that petitioner's personal control has been found to be loose.
(3.) She has relied upon a case law [Dhirendra Kumar Rai v. State of U.P., Writ Petition No. 768 (S/B) of 2008, decided on July 16, 2010). In paragraph 84 of the judgment a fine distinction between the negligence. carelessness and dereliction of duty has been given. Para 84 is quoted as follows: 84. In the case of State of Punjab v. Ex. Constable Ram Singh, 1992 4 SCC 54, Hon'ble Supreme Court held that the word misconduct though not capable of precise definition as reflection receives its connotation from the context, the delinquency in its effect on the discipline and the nature of 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 context wherein the terms occurs; regard being had to the scope of the statute and public purpose it seeks to serve.;