- (1.) This special appeal is preferred challenging the judgment and order dated 4th July, 2008 passed in Civil Misc. Writ Petition No. 52832 of 2006 dismissing the writ petition in which the petitioner had challenged the order of his reversion to the basic salary and the adverse effect of reducing his salary.
(2.) The writ court has dismissed the writ petition vide impugned judgment mentioning therein that the Court is not inclined to interfere in the impugned order since the Court has not found any error in the impugned order. The impugned order dated 4.7.2005 passed in the writ petition is as under: "Heard the learned counsel for the petitioner. It transpires that the Tehsildar submitted a report alleging that the petitioner while posted as a Collection Amin, had not recovered the dues as per the standards prescribed by the State Government and that he was not taking any interest in the recovery of the amount from the various persons. On the basis of this report, District Magistrate initiated a departmental proceeding against the petitioner and the Sub Divisional Magistrate was nominated as the Inquiry Officer. A charge sheet was issued and, based on the inquiry proceeding, a report was submitted, in which, it was found that out of a target of Rs. 2,17,016/-, a recovery of Rs. 1359/- and Rs. 747 only was made by the petitioner. On the basis of this report, negligence committed by the petitioner was proved. Further it is found that he did not visit the areas to make the recovery of the money. On this basis, the Inquiry Officer further found that the petitioner had committed negligence and was not performing his duty. The District Magistrate agreed with the report and issued a show cause notice to show cause as to why his services should not be dismissed. Pursuant to his reply, the District Magistrate passed an order reverted the petitioner to the basic salary and punishment of adverse entry. The petitioner preferred an appeal which was dismissed by the Commissioner. Consequently, the writ petition. Upon hearing the learned counsel for the petitioner, this Court is not inclined to interfere in the impugned order. Admittedly, the recovery was not made by the petitioner as per the standards laid down by the State Government. Further, no proof was filed by the petitioner to show that he had visited the areas for the recovery of the amount. A bald allegation has been made to the effect that on account of drought, the recovery was not possible. This is a bald allegation which is not supported by any proof. Consequently, the submission of the learned counsel for the petitioner cannot be taken into consideration. In view of the aforesaid, this Court is not inclined to interfere in the impugned order since the Court has not found any error in the impugned order. The writ petition is dismissed"
(3.) The aforesaid order is challenged only on the ground that charge of less recovery and negligence in the present case do not fall within the meaning of "misconduct" hence reversion of the appellant to the basic salary and punishment of adverse entry by the impugned order are illegal, arbitrary and as such are liable to be set aside. In support of his case the petitioner has relied upon paragraph 11 and 12 of the judgment referred by the Apex Court in Union of India and others Vs. Sri J. Ahmed, 1979 1 SLR 840. The Court in that case considered Article 311 in reference to All India Services (Death-cum-Retirement Benefit), 1958 and All India Service (Conduct) Rules, 1954 Rule 4. The Court in the said case has tried to ascertain what generally constituted misconduct specially in context of disciplinary proceedings and entailing penalty. In para 11 and 12 relied upon by the appellant the Court held thus: 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(1)]. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle .(Indicator Newspapers) (2)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur(1), and Satubha K. Vaghela v. Moosa Raza(2). 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". In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik(5), 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. Unio nof India(6), 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 strocious consequences the same may amount to misconduct as was held by this Court in P. H. Kalyani v. Air France, Calcutta(7), 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 instances of which 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.(1)]. 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. 12. The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may no involve mens rea but may still constitute misconduct for disciplinary proceedings.";