RAN VIJAI SINGH,J. - (1.) THIS writ petition has been filed against the order dated 26/29 September, 2009 passed by District Magistrate, Mathura by which the petitioner has been placed under suspension for inefficient working in respect of recovery. The petitioner happens to be Collection Amin and according to the suspension order he has been negligent in recovering the amount due.
(2.) LEARNED counsel for the petitioner submits that in view of the decision of this Court reported in 2008 (3) ADJ 165 Dhirendra Singh Vs. Collector Kanpur Dehat and others for such charges the petitioner cannot be placed under suspension and no disciplinary proceedings can be initiated. Reliance has been placed on the following paragraph of the aforesaid judgment. '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 unskillfulness 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.” The meaning of 'misconduct came up for consideration before the Apex Court in the case of Union of India vs. J Ahmed, AIR 1979 SC 1022, wherein, explaining the term 'misconduct' the Hon'ble Court held as under: "It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty." “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 Pearce vs. Foster) (1988) 17 QBD 536 (at p. 542). A disregard of an essential condition of the contract of service may constitute misconduct (See Laws v. London Chronicle(Indicator Newspaper, (1959) 1 WLR 698). This view was adopted in Shardaprasad Onkarprasad Tiwari v.Divisional Supdt. Central Railway, Nagpur Divn. Nagpur, 61 Bom LR. 1596 (AIR 1961 Bom 150) and Satubha K. Vadhela v. Moosa Razaf, (1969) 10 Guj LR 23. 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; act 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, (1966) 2 SCR 434 (AIR1966 SC 1051) in the absence of standing orders governing the employee's undertaking, unstatisfactory work was treated as misconduct in the context of discharge being assailed as punitive . In S. Govinda Menon v. Union of India, (1967) 2 SCR 566 (AIR 1967 SC1274) 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 through if such error or omission results in serious or atrocious consequences the same may amount to misconduct was held by this Court in P.H Kalyani v. Air Fransce, Calcutta, (1964) 2 SCR 104 (AIR 1963 SC 1756) 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 standard 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 devolving 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 decree 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(examples)instances of which (are) a railway cabin man signaling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager,Ahmedabad Co- op. Department Stores Ltd. (1978) 19 Guj. LR 108 at p. 120. 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." I have heard learned counsel for the petitioner and learned standing counsel.
(3.) CONSIDERING the facts and circumstances of the case the writ petition is disposed of with the direction to complete the disciplinary proceedings within a period of five months from the date of receipt of certified copy of this order. The petitioner is directed to cooperate with the enquiry. In case the petitioner avoid to participate in the enquiry proceedings the inquiry officer as well as disciplinary authority will be free to proceed in accordance with law.;