- (1.) Through this petition, the petitioner has challenged the punishment order dated 19.07.2001, appellate order dated 15.09.2002 and the order dated 26.02.2007 passed by the State Public Services Tribunal, Lucknow, whereby the claim petition filed by the petitioner has been dismissed, inter alia, finding that the petitioner has made less recovery in comparison to the target given to him. The facts, in short, are that the petitioner, who was working on the post of Collection Amin in Tehsil Purwa, Kshetra Barehata, District Unnao, was allocated certain target to recover, but it is stated that the recovery was not made as the villages were situated on the bank of river and so the recovery could not be made, though the petitioner was placed under suspension on 29.05.2000 and charge sheet was issued against him. The petitioner submitted his reply to the charge sheet on 16.06.2000 and after submission of reply, the petitioner was reinstated vide order dated 19.07.2000.
(2.) The enquiry proceeded against the petitioner and the petitioner was ultimately awarded certain punishment with reduction to the lowest scale vide order dated 19.07.2001. The petitioner preferred an appeal against the said order on 15.07.2002, which was dismissed on 15.09.2002. The said order was put to challenge before the State Public Services Tribunal, Lucknow by means of Claim Petition No.15 of 2003, which was dismissed vide order dated 26.02.2007. Submission of learned counsel for the petitioner is that making of less recovery in comparison to the target given to the petitioner would not be covered under the term 'misconduct' and he can only be termed to be a negligent employee and to that extent, if the charge is found to be proved against the petitioner, then he cannot be awarded any punishment as contemplated under the Rules because the case of the petitioner is not covered within the term 'misconduct' as contemplated under law. Learned counsel for the petitioner has further submitted that charge no.2 in respect of negligence was not found to be proved and only charge nos.1 and 3 were found to be proved against the petitioner. Submission is that charge nos.1 and 3 cannot lead to misconduct, unless and until charge no.2 is found to be proved against the petitioner. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment rendered by a learned Single Judge of this Court in the case of Ram Sharan Lal vs. State of U.P., 2008 1 ADJ 453 , decided on 29.11.2007.
(3.) Learned Standing Counsel, on the other hand, has submitted that the charge against the petitioner is fully proved and less recovery itself leads to the conclusion that the petitioner was negligent in making recovery and if he was negligent in making recovery, then the charge against the petitioner to that extent stands proved. In support of his contention, learned Standing Counsel has placed reliance upon a Division Bench judgement of this Court in Special Appeal No.931 of 2008: Shiv Chand Nigam vs. State of U.P. and others. We have heard learned counsel for the parties and perused the record. For appreciating the argument of learned counsel for the parties, we have to take into consideration the factual background of the present case. In the present case, it is established that three charges were levelled against the petitioner and charge no.2 was especially framed in respect of negligence. The enquiry officer did not find the said charge to be proved against the petitioner. The other charges were found to be proved against the petitioner in respect of less recovery. Unless the charge of deliberate less recovery coupled with negligence is not found to be proved, then simply making less recovery will not constitute a misconduct as contemplated under the Rules. The misconduct has to be supported by deliberate and negligent non recovery.;