AI Structured Summary
Not yet generated for this judgment
Judgment
Sudhir Agarwal, J.—Heard learned Counsel for the Petitioner and learned Standing Counsel.
The Petitioner is aggrieved by the order dated 13.07.2004 whereby the Executive Engineer, Electricity Testing Division, Hathras has directed for recovery of a sum of Rs. 2,44,374/-from the Petitioner w.e.f 03.01.1992 as Misc. Advance.
Learned Counsel for the Petitioner submitted that there was no Misc. Advance forwarded to the Petitioner. Actually what happened on 03.01.1992, a mob raided the premises and set the properties on fire due causing huge loss to the property of the Respondents. A Committee was constituted by the U.P. State Electricity Board for assessing the damages consisting of following members:
S/Shri 1. Devendra Gupta, A.E. (M) Electricity Test Lab, Hathras. - President 2. N P Singh, Asstt. Acctt. Electricity Division, Aligarh - Member 3. S L Sharma, JE Electricity Test Lab, Hathras - Member 4. S K Tiwari, JE Electricity Test Lab, Hathras - Member 5. B S Rahi, A.S.K Electricity Test Lab, Hathras - Member (Shashi Kant) Executive Member
The aforesaid committee finds mention in the office memorandum dated 06.01.1992, filed as annexure CA-2 to the counter affidavit. The committee made an assessment of loss amounting to Rs. 3,82,244.00, out of which Rs. 2,44,374/-sought to be recovered from the Petitioner treating them as Misc. Advance and accordingly the impugned order was passed. He submitted that the loss caused to the property of the Respondents is not on account of any fault or misconduct on the part of the Petitioner but for the reasons beyond his control. He further submitted that such loss cannot be attributed to the Misc. Advance to the Petitioner and that too without holding any departmental inquiry in accordance with law and without issuing any charge-sheet etc. No order of recovery can be made. It is also submitted that in respect of the aforesaid incident dated 03.01.1992, First Information Report was lodged at Police Station Kotwali, Hathras against unknown persons under Sections 147, 436, 440 and 149 I.P.C. Five persons were prosecuted but they were all acquitted by the Trial Court vide judgment dated 18.11.2000 on account of non-identification of the accused persons.
Shri A.K. Mehrotra, learned Counsel for the Respondents vehemently contended that the property was under the control of the Petitioner and it was his responsibility to take care of. Hence the loss, if any occurred thereto has to be recovered from the Petitioner.
In my view, the petition deserves to be allowed. It is not the case of the Respondents that the loss caused to the property has occurred due to any willful negligence or erroneous conduct of the Petitioner constituting misconduct.
''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 behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.
''Misconduct in Office'' has been defined as:
Any unlawful behavior 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.
The meaning of ''misconduct'' came up for consideration before the Apex Court in the case of Union of India (UOI) and Others Vs. J. Ahmed, 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." (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 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 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 Sharda Prasad Tiwari and Others Vs. Divisional Superintendent, Central Railway, Nagpur Division, 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. Vs. Workmen, Miss Shanti Patnaik, in the absence of standing orders governing the employee''s undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In Govinda Menon Vs. Union of India (UOI), 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 though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani Vs. Air France Calcutta, 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 in evaluating the developing 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 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 cabinman signalling 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." (para 11)
Again in the case of State of Punjab and Others Vs. Ram Singh Ex. Constable, the Hon''ble Apex Court has held as under:
Thus it could be seen that the word ''''misconduct'' 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 transgression 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 discipline in the service causing serious effect in the maintenance of law and order." (para 6)
In the context of Section 31 of Advocates Act, 1961, the Apex Court in
Noratanmal Chouraria Vs. M.R. Murli and Another, 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 omission or commission whether done of omitted to be done intentionally or unintentionally. It means, "improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour".
Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law.
In Baldev Singh Gandhi Vs. State of Punjab and Others, with reference to the provisions of Punjab Municipal Act, the Apex Court, considering 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.
It is not the case of the Respondent that the act of mob over which the Petitioner has no control was instigated by the Petitioner or he was instrumental in such action. The only thing evident from record is that the loss has been caused by mob to the property of the Respondents, over which the Petitioner has no control. In the absence of any allegations constituting misconduct on the part of the Petitioner, recovery as a disciplinary action for the amount concerned in the impugned order is impermissible. So far as treating the said amount as Misc. Advance, it is evident that the said amount was never forwarded to the Petitioner as an advance. No provision has been shown to this Court by which the Respondents can treat such amount of loss as a Misc. Advance recoverable from the employees of the Respondents. It is also evident that the impugned order has been passed without issuing any show-cause notice or charge-sheet etc. and without holding any inquiry under the relevant rules.
In the circumstances, the writ petition is allowed. The impugned order dated 13.07.2004 (annexure-6 to the writ petition) is hereby quashed. The Petitioner shall also be entitled for cost which is quantified to Rs. 10,000/-.