Narayan Prasad Dehariya vs State of M.P. and Others

R.K. Gupta, J.—The petitioner by way of filing the present petition has challenged the order dated 22nd March, 2000 (Annexure-P-1). This is the order of punishment, imposed on the petitioner by directing to withhold one annual increment without cumulative effect which is a minor penalty. The petitioner was issued a show-cause notice on 6.5.1995 in relation to the period from 17.7.1985 to 4.8.1990 when he was posted as a Deputy Collector at Sehdol. The following charges against the petitioner were framed.

It is contended on behalf of the learned Counsel appearing for the petitioner that a reply to the said show-cause notice was filed on 11.11.1998. It is submitted that the allegations even though were denied by the petitioner but there had been no consideration to the reply so filed by him.

The respondents have filed the show-cause notice as Annexure-R-3 and the reply filed by the petitioner has also been filed as Annexure-R-4. The order passed by the Disciplinary Authority is placed on record as Annexure-R-5. By the order Annexure-R-5 the disciplinary authority finally directed to impose a penalty of withholding two annual increments without cumulative effect on the ground that the petitioner has not filed reply within a stipulated period. The petitioner preferred an appeal against the same and the appellate authority by passing an order Annexure-P-1 directed to reduce the penalty imposed on him of withholding one annual increment without cumulative effect.

Learned Counsel appearing for the petitioner submitted that the charges which were framed no disciplinary action could have been taken against the petitioner.

It is submitted that a decision which was to be taken by him keeping in view the emergent situation which has arisen on the spot itself. Thus, it is submitted by him that error in judgment in evaluating the development situation on the spot, should not give a cause for taking a disciplinary action against the petitioner.

Counsel for the petitioner relied upon the judgments passed by the Apex Court in Union of India (UOI) and Others Vs. J. Ahmed, and particularly he referred paragraph 13 of the judgment which is reproduced as under--

Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation. Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges Nos. 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent. It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, charges 2, 5 and 6 are clear surmises on account of the failure of the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances. We do not take any notice of charge No. 4 because even the Enquiry Officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as charge No. 6 is the conclusion, viz., because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other; the Enquiry Officer completely failed to take note of what was alleged in charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against the respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not by way of punishment. But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct, viz., such acts and omissions which would render him liable for any of the punishments set out in Rule 3 of the Discipline & Appeal Rules, 1955. No such case has been made out.

It is to be seen that misconduct means misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake do not constitute such misconduct.

This is to be seen that charges which were framed against the petitioner were that at the time when he was posted at Sehdol as Deputy Collector then in the year 1986 the licenses were to be issued for crackers shops and no space was reserved for such shops. With the result lot of crackers shops were opened near Ajad Chowk and Cinema Hall road. On 1.11.1986 there had been a fire and public and (sic had) lost its balance and with a control to (sic, view to control) public the petitioner ordered for the Lathi charge and also for firing.

The judgment passed by the Apex Court also deals with a similar situation. Paragraphs 11 & 13. The officers were charged as there was in a large scale of disturbance in Nowgong city and district area because of such disturbances the officer incharge directed for taking an action which resulted into the law and order situation. The Apex Court under these circumstances held that if an officer is charged that he lacks with efficiency, failure to attend highest standard of administrative ability while holding a higher post and thus he was charged for the negligence performance of the duties then the Apex Court in the said situation held that if the officer had lack in efficiency and has failed to attend highest standard of administrative ability while holding a higher post would not amount to misconduct.

In the present case also the similar situation appears.

This is to be seen that officer at the relevant time has to take immediate action to control the public and also to control the law and order situation what could be the appropriate decision on the spot of an officer and if the officer would not have taken the said decision then what would have been the fate of city?

Thus keeping in view the aforesaid aspect, I am of the view that in the present case the officer if has taken an appropriate action to control the law and order situation and it may be a case that he could not take an appropriate decision. The decision was to be taken in a spur of moment and if the decision as such is taken that will not constitute a misconduct in the eye of law and particularly in view of the judgment passed by the Apex Court (supra). Thus, I am inclined to set aside the order of punishment which is Annexure-R-5 which is original order of punishment and the order passed by the Appellate Authority (Annexure-P-1). Petition stands allowed to the extent as above.