- (1.) AMITAVA Lala, J. The writ petitioner has challenged the order dated 5th July, 2006, by which he has been put under suspension. Admittedly the charge-sheet has already been forwarded and the reply has been given. However, the petitioner contended that the charges, which are levelled against him, cannot derive at major penalties. Therefore, he should not be held up under suspension.
(2.) FIRST proviso to Rule-4 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 'rules, 1999') dealing with the provision of suspension is putting certain restrictions in respect of the same. The relevant part being Rule 4 (1) with first proviso is quoted hereunder: "4. Suspension.- (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority: Provided that suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . '' Rule 3 of the Rules, 1999 gives list of minor and major penalties, which are as follows: "3. Penalties.-The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government Servants: Minor Penalties: (i) Censure; (ii) Withholding of increments for a specified period; (iii) Stoppage of an efficiency bar; (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders; (v) Fine in case of persons holding Group 'd' posts: provided that the amount of such fine shall in no case exceed twenty five per cent of the month's pay in which the fine is imposed. Major Penalties: (i) Withholding of increments with cumulative effect; (ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale; (iii) Removal from the service which does not disqualify from future employment ; (iv) Dismissal from the service which disqualifies from future employment. Explanation.-The following shall not amount to penalty within the meaning of this rule, namely: - (i) Withholding of increments of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar; (iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation. (iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation. " To establish the case, Mr. Ravi Kant, learned Senior Counsel appearing on behalf of the petitioner, has drawn our attention to the charge-sheet dated 5th July, 2006. From the translated copy of the charge- sheet, we find different charges, as follows: (i) Charged with not obeying the written directions dated 23rd January, 2002 of the Government and raising conditions of breach of privilege before the Assurance Committee and violated Rule-3 of the Uttar Pradesh Government Servants Conduct Rules, 1956 (hereinafter referred to as the 'rules, 1956'); (ii) charged with not following the immediate orders of the Government committing irregularities in appointing employees to pay illegal financial gains against Rule-3 of Rules, 1956; (iii) charged with giving chance to the concerned employees to seek stay orders from the Court concealing the facts and orders of the Government, which are against the Rule-3 of the Rules, 1956; (iv) charged with not effectively contesting the matter and delaying in submitting counter-affidavit and not attempted to vacate the stay orders so violated the Rule-3 of the Rules, 1956; (v) charged with not sending proper enquiry report concerned to the Government in the matter and for not discharging duties properly under Rule-3 of the Rules, 1956; (vi) charged with loose supervision in guidance accordingly as per rules no effective measures were taken and violated Rule 3 of the Rules, 1956; (vii) charged with the purchase of the papers and constituted 12 members committee against the Rule-3 of the Rules, 1956; (viii) charged for violating the rules and trying to commit irregularities worth Rs. 11 Crores in purchase of the papers which is against the Rule-3 of the Rules, 1956; (ix) charged for violating the orders of the Government, creating shortage of the papers and affecting the Government printing works against the Rule-3 of the Rules, 1956; (x) charged with not-supplying the forms and distribution of land account works and quality of running of important agriculture project of the Government of India and State of Uttar Pradesh against the Rule- 3 of the Rules, 1956; and (xi) charged with Rule-3 of the Rules, 1956. According to him, no charge of misconduct can be arrived at on the basis of the charges. Therefore, the petitioner should not be put under suspension in view of the first proviso to Rule-4 under the aforesaid Rules, 1999. Relying upon 1979 (2) SCC 286, Union of India and Ors. v. J. Ahmed, he said that the Supreme Court held in respect of following charges that no major punishment can be arrived at in the following situation: " (i) Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being conveyed; (ii) Showed complete lack of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and co-ordinate co-operations with the police to restore law and order; (iii) Did not personally visit the scenes of disturbances within the town or in the rural areas, in time to take personal control of the situation and to exercise necessary supervision; (iv) Did not keep Government informed of the actual picture and extent of the disturbances; (v) Showed complete ineptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete breakdown of Law and Order in Now gong town as well as the rural areas of Nowgong District. "
(3.) THESE deficiencies in personal character or personal ability do not constitute misconduct for the purpose of disciplinary proceedings. There the Court quoted meaning of the word "misconduct" from Stroud's Judicial Dictionary, as follows: "misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. " This judgment was also considered in 2006 (2) LBESR 327 (SC) : 2006 (3) SCC 736, Punjab State Civil Supplies Corp. Ltd. v. Sikander Singh, and it was held basically that in the industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct. A single act of omission or error of judgment would ordinarily not constitute misconduct. Negligence would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or result in damages would be so heavy that the degree of culpability would be very high. In 2004 (2) LBESR 462 (SC) : 2004 (4) SCC 657, Reserve Bank of India and Anr. v. C. L. Toora and Ors. , based on factual aspect Court came to a conclusion that there was no cause of insubordination or misconduct. In 2006 (1) LBESR 337 (SC) : 2003 (8) SCC 9, Dev Singh v. Punjab Tourism Development Corporation Ltd. and Anr. , it was again held on the basis of factual aspect that after 20 years of unblemished service charge of misconduct was levelled in the nature of misplacement of file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. Hence, it was held that the same is not a misconduct. In 2005 (8) SCC 351, M. M. Malhotra v. Union of India and Ors. , it was held that the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of duty. As per army rules, any wrongful act or any act of delinquency, which may or may not involve moral turpitude, could be "misconduct". "misconduct" means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc. Again "misconduct" may involve moral turpitude. It speaks about comprised positive acts and not mere neglects or failures. It is also submitted that the nature of misconduct will be different from place to place. Misconduct in army or misconduct of an Advocate may not be similar with the service on whose account the writ petition has been made herein. In AIR 2001 SC 2028, N. G. Dastane v. Shrikant S. Shivde and Anr. , misconduct was explained in connection with act of an Advocate in the Court of law.;