- (1.) SUDHIR Agarwal, J. Heard Sri S. K. Pandey, learned counsel for the petitioner and learned Standing Counsel for the respondents.
(2.) DESPITE time having been granted to the respondents, no counter affidavit has been filed till date. However, learned counsel for the petitioner submitted that he is raising a legal issue that the impugned order of suspension dated 10. 7. 2006 cannot be sustained under law, inasmuch as assuming the allegations mentioned therein to be correct, yet they do not constitute misconduct and, therefore, no disciplinary inquiry can be conducted against the petitioner. Learned Standing Counsel, in view of the nature of the arguments advanced by learned counsel for the petitioner, stated that the writ petition may be heard on merits and he does not propose to file any counter affidavit. Therefore, with the consent of learned counsel for the parties, under the Rules of the Court, this matter has been heard and is being decided finally. Learned counsel for the petitioner referring to the impugned order of suspension pointed out that the only allegation levelled against the petitioner is that he did not take interest in work as a result whereof recovery of Government Revenue is not up to the target and he has failed to take effective steps to increase the same. He contended that the allegations, even if treated to be correct, at the best shows inefficiency on the part of the petitioner but do not constitute misconduct. Misconduct is something else than inefficiency or mere error of judgment on the part of the employee and, therefore, the petitioner cannot be suspended on the basis of the allegations mentioned in the impugned order of suspension. Learned Standing Counsel, on the contrary, contended that the petitioner was working as a Collection Amin and his principal duty was to collect Government Revenue and for the said purpose he had to take all possible steps to recover Government Revenue at least up to the target fixed by the authorities concerned. Since the petitioner failed in discharge of his such duties, this amounts to dereliction of duty and for the said purpose the inquiry can be conducted under U. P. Government Servants Discipline and Appeal Rules, 1999 (hereinafter referred to as "1999 Rules" ).
(3.) A bare perusal of the impugned order of suspension, a copy whereof has been placed on record as Annexure-1 to the writ petition, shows that the petitioner could not make recovery up to the target prescribed by the authorities concerned and did not take much interest in enhancing the amount of recovery and, therefore, was guilty of poor recovery. The allegations ex-fade shows that the petitioner is a poor and inefficient official but in the absence of anything more, reflecting upon the conduct of the petitioner, in my view, it cannot be said that the petitioner was guilty of any misconduct warranting any disciplinary proceeding. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999: "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, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness. " 'misconduct' in 'office' 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. Ramanatha 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 unskilfulness 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 behaviour or neglect by a public officer, by which the rights of a party have been affected. ";