- (1.)SUDHIR Agarwal, J. Heard Sri R. C. Singh, 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 7. 6. 2006 and the charge-sheet cannot be sustained under law, inasmuch as assuming the charges mentioned in the charge-sheet to be true they do not constitute miscon duct and therefore, no disciplinary inquiry can be conducted against the petitioner. learned Standing Counsel in view of the nature of the arguments ad vanced 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 sus pension and the charge- sheet pointed out that the only allegation levelled against the petitioner is that he did not take interest in work as a result where of the 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 and do not constitute misconduct. Misconduct is something else than inefficiency or mere error of judgment on the part of the employee and, therefore, the peti tioner 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 the Gov ernment 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 has failed in discharge of his duties, this amounts to dereliction on duty and for the said purpose the inquiry can be conducted under U. P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter re ferred to as the "1999 Rules" ).

(3.)IT would be appropriate to reproduce the allegations on the basis of which the petitioner was placed under suspension and also the charges No. 1 and 2 contained in the charge-sheet to find out whether the allegations contained therein constitute a misconduct or not: Suspension Order 6. Ex-facie the allegations contained in the charge-sheet levelled against the petitioner shows that despite directions of the higher authorities 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, there fore, 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, reflect ing on the conduct of the petitioner in my view it cannot be said that the peti tioner is guilty of any misconduct warranting disciplinary proceeding. 7. '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 forbid den act, a dereliction from duty, unlawful behaviour, wilful in character, im proper or wrong behaviour its synonyms are misdemeanor misdeed, misbehaviour delinquency, impropriety mismanagement offence, but not negligence or carelessness. " 8. '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. " 9. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 de fines "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 involv ing 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 transgres sions of some established, but indefinite, rule of action, where some discre tion 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 ne glect by a public officer, by which the rights of a party have been affected. " 10. The meaning of 'misconduct' came up for consideration before the Apex Court in the case of Union of India v. 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 consti tutes misconduct especially in the contest of disciplinary proceedings en tailing penalty. " (para 10) "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 con duct which is blameworthy for the Government servant in the context of Con duct 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 mis conduct (see Pearce v. 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, Nagpurdivn. , Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela 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. Work men, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatis factory 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 SC 1274), 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 miscon duct though if such error or omission results in serious or atrocious conse quences the same may amount to misconduct as was held by this Court in PH. Kalyani v. Air France, 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 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 Devaluating the develop ing 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 deliber ate 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 cabinman signalling in a train on the same track where there is a stationary train caus ing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an in strument 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 negli gence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. " (para 11) 11. Again in the case of State of Punjab and others v. Ram Singh Ex-Con stable, (1992) 4 SCC 54 the Hon'ble Apex Court has held as under: "thus it could be seen that the word "misconduct1 though not capable of precise definition on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. IT may involve moral turpitude it must be improper or wrong behaviour unlawful behaviour, wilful in character forbidden act, a transgres sion of established and definite rule of action or code of conduct but not mere error of judgment carelessness or negligence in performance of the duty the act complained of bears forbidden quality or character. ITs ambit has to be construed with reference to the subject matter and the context wherein the term occurs regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes disci pline in the service causing serious effect in the maintenance of law and order. " (para 6) 12. In the context of Section 31 of Advocates Act, 1961, the Apex Court in Noratahmal Chouraria v. M. R. Murtiand another, 2004 (5) SCC 689 said: "misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which however, is wide enough to include wrongful omis sion or commission whether done or omitted to be done intentionally or unin tentionally. IT means, "improper behaviour, intentional wrongdoing or deliber ate violation of a rule or standard of behaviour". Misconduct is said to be a transgression of some established and defi nite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law. " 13. In Union of India v. J. Ahmed, AIR 2002 SC1124, with reference to the provisions of Punjab Municipal Act, the Apex Court, consid ering the term 'misconduct' held as under: "'misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct. ' Thus, ordinarily the expression 'misconduct' means wrong or improper conduct unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. " 14. The allegations at the best shows that the petitioner is a non serious employee and is not able to achieve target. IT shows that he is an inefficient official but in the absence of anything further, inability of an employee to achieve target or to show efficiency upto desired level, ipso facto would not amount to 'misconduct' warranting punish merit under 1999 Rules as held in J. Ahmed (su pra) that Lack of efficiency or failure to attain highest standards in discharge of duties attached to public office would not constitute misconduct, unless the con sequences 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, which is not the case in hand. 15. In view of the aforesaid exposition of law and considering the allegations contained in the suspension order and charge-sheet, I am of the view that the allegations levelled against the petitioner do not amount to 'misconduct' and, therefore proceeding under 1999 Rules cannot be initiated against him. The im pugned order of suspension therefore cannot sustain. 17. In the result, the writ petition is allowed. The impugned order of suspen sion dated 6. 7. 2006 and the charge sheet dated 6. 7. 2006 both are hereby quashed. The respondents are directed to reinstate the petitioner with all consequential benefits. 18. However, it is made clear that if the petitioner is an employee lacking efficiency etc. , it is open to the respondents to take such action as permissible under law in respect to such aspect of the matter. 18. No order as to costs. .