# Dhirendra Singh v. The Collector, Kanpur Dehat and others

- **Citation:** (2007) 3 ILRA 1021
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-29
- **Case number:** Civil Misc. Writ Petition No. 39528 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-singh-v-the-collector-kanpur-dehat-and-others-40986
- **Pages:** 6

## Headnote

Constitution
of
India-Art.
226Suspension
Order-allegations-No
seriousness in achieving the target of
recovery-in
absence
of
efficiency,
inability on the part of employee-not
amount to misconduct-No disciplinary
proceeding under Rule 1999 could be
initiated-suspension order Quashed.

Held: Para 14

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 impugned order of suspension,
therefore, cannot sustain.
AIR 1979 SC-1022, 1992 (4) SCC-64, 2004 (5)
SCC-689, 2002 SC-1124

## Text

3 All] Dhirendra Singh V. The Collector, Kanpur Dehat and others
1021
alleged misconduct of the petitioner nor
can be said to be stigmatic nor is vitiated
on account of alleged biased or colourable
exercise of power on the part of the
appointing authority. The writ petition,
therefore,
devoid
of
merit
and
is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2007

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 39528 of 2006

Dhirendra Singh

...Petitioner
Versus
The
Collector,
Kanpur
Dehat,
and
another

...Respondents

Counsel for the Petitioner:
Sri Kr. R.C. Singh

Counsel for the Respondents:
S.C.

Constitution
of
India-Art.
226Suspension
Order-allegations-No
seriousness in achieving the target of
recovery-in
absence
of
efficiency,
inability on the part of employee-not
amount to misconduct-No disciplinary
proceeding under Rule 1999 could be
initiated-suspension order Quashed.

Held: Para 14

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 impugned order of suspension,
therefore, cannot sustain.
AIR 1979 SC-1022, 1992 (4) SCC-64, 2004 (5)
SCC-689, 2002 SC-1124

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. 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
07.06.2006 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 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.

3. Learned counsel for the petitioner
referring to the impugned order of
suspension 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 whereof
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.
1022 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
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.

4. Learned Standing Counsel, on the
contrary, contended that the petitioner
was working as a Collection Amin and his
principal
duty
was
to
collect
the
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 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 referred to as the "1999
Rules").

5. 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
^^uk;c rglhynkj] rglhynkj rFkk miftykf/kdkjh]
jlwykckn dh vk[;k ,oa laLrqfr ds vk/kkj ij Jh
/khjsUnz flag] laxzg vehu] rglhy jlwykckn dks eq[;
rFkk fofo/k ns;ksa dh ekax rFkk ekud ds lkis{k vR;Ur
fud`"V Js.kh dh olwyh fd;s tkus] olwyh c<+k;s tkus
gsrq ckj&ckj fn;s x;s vkns'kksa @ funsZ'kksa ds ckn Hkh dksbZ
lq/kkj u ykus ds ifjis{; esa buds fo:) vuq'kklfud
dk;Zokgh izLrkfor gS] ,rn~}kjk rRdky izHkko ls
fuyfEcr fd;k tkrk gSA**

Charge sheet
^^vkjksi la0 &1 ;g fd vki rglhy jlwykckn ds {ks=
usoknk nsojk; esa laxzg vehu ds in ij dk;Zjr gSaA vki
}kjk 1413 joh esa fnukad 16-4-2006 ls 22-6-2006
rd Hkw jktLo dh ekax :0 6509-00 rFkk flapkbZ ns; dh
ekax 2]18]480-00 dqy eq[; ns; dh ekax 2]24]982-00
:i;k ds lkis{k :0 29]758-00 ,oa fofo/k ns; dh ekax
:0 2]10]840-00 ds lkis{k ek= :0 80]056-00 dh
olwyh dh x;h gSA bl izdkj dqy ekax 4]35]822-00 ds
lkis{k dqy :0 1]09]814-00 dh olwyh dh x;h gSA tcfd
2 ekg ls vf/kd ds le; esa fu/kkZfjr ekud ,d yk[k izfr
ekg ds lkis{k de ls de 2-00 yk[k dh olwyh fd;k tkuk
vkisf{kr FkkA ckj&ckj fyf[kr rFkk ekSf[kd :i ls fn;s x;s
funsZ'kksa ds ckn Hkh vki }kjk olwyh c<+k;s tkus esa dksbZ :fp
ugha yh x;hA vr% ekax rFkk ekud ds lkis{k fud`"V Js.kh
dh olwyh fd;s tkus ds nks"kh gSaA
vkjksi la0&2 ;g fd uk;c rglhynkj }kjk fnukad & 245-2006 dks olwyh c<+kus gsrq funsZ'k fn;s x;sA rglhynkj
}kjk fnukad 15-5-2006 dks eq[; ,oa fofo/k ns; dh olwyh
[kjkc gksus ds dkj.k psrkouh nh x;h rFkk miftykf/kdkjh
jlwykckn }kjk fnukad 20-5-2006 dks is'kh jftLVj ij
olwyh esa lq/kkj ykus gsrq psrkouh nh x;hA ijUrq vki }kjk
mPpkf/kdkfj;kas ds fn;s x;s vkns'kksa @ funsZ'kksa dh vogsyuk
djrs gq, olwyh c<+k;s tkus esa dksbZ :fp ugha yh x;hA bl
izdkj vki mPpkf/kdkfj;ksa ds vkns'kksa @ funsZ'kksa dk ikyu u
djus ds nks"kh gSaA**

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,
therefore, was guilty of poor recovery.
The allegations ex-facie shows that the
petitioner is a poor and inefficient official
but in the absence of anything more,
reflecting on the conduct of the petitioner,
in my view, it cannot be said that the
petitioner is guilty of any misconduct
warranting disciplinary proceeding.

7. 'Misconduct' has been defined in
Black's Law Dictionary, Sixth Edition at
page 999:
3 All] Dhirendra Singh V. The Collector, Kanpur Dehat and others
1023

"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."

8. 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."

9. 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." (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
Shardaprasad Onkarprasad Tiwari v.
Divisional
Supdt.,
Central
Railway,
Nagpur Divn., Nagpur, 61 Bom LR 1596:
(AIR 1961 Bom 150) and Satubha K.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
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. Workmen, Miss
Shanti Patnaik, (1966) 2 SCR 434: (AIR
1966 SC 1051), 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 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
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 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 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)
3 All] Dhirendra Singh V. The Collector, Kanpur Dehat and others
1025
10. Again in the case of State of
Punjab and others vs. Ram Singh ExConstable, (1992) 4 SCC 54 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)

11. In the context of Section 31 of
Advocates Act, 1961, the Apex Court in
Noratanmal Chouraria Vs. M.R. Murli
& 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 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."

12. In Baldev Singh Gandhi Vs.
State of Punjab & others AIR 2002 SC
1124, 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."

13. 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
punishment under 1999 Rules as held in
J. Ahmed (supra) that Lack of efficiency
or failure to attain highest standards in
discharge of duties attached to public
office 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, which
is not the case in hand.
1026 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
14. 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
impugned order of suspension, therefore,
cannot sustain.

15. In the result, the writ petition is
allowed.
The
impugned
order
of
suspension dated 06.07.2006 and the
charge sheet dated 06.07.2006 both are
hereby quashed. The respondents are
directed to reinstate the petitioner with all
consequential benefits.

16. 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.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No.42822 of 2007

Mohd. Yasin Khan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Narendra Singh Chahar

Counsel for the Respondents:
S.C.
(A) U.P. Panchayati Raj Act 1947Section-12-J (2)-Removal of nominated
village Pradhan-after death of elected
village
Pradhan-District.
Magistrate
nominated the petitioner with conditionabout cancellation/revocation at any
time without assigning any reasonpower to grant includes revocationworking on the basic of nomination
depends upto the pleasure of authoritycomplaint about irregularity committed
by
such
Nominated
Pradhan-held-
removal proper.

Held: Para 8

From the provisions Of the General
Causes Act. It is clear that when an act
confers a power unless the different
intention is there such power can be
exercised from time to time as occasion
requires, thus, the power of nomination
can
be
exercised
by
the
District
Magistrate from time to time. The
submission of the petitioner that once he
has been nominated his nomination
cannot
be
withdrawn
cannot
be
accepted. Further more this submission
also runs contrary to the very condition
of
the
petitioner's
nomination
as
contained in the letter dated 13.6.2007.
The order clearly contemplates that the
nomination of the petitioner is purely
temporary
and
can
be
withdrawn
without
any
notice,
hence,
the
submission
of
the
petitioner
that
nomination
could
not
have
been
withdrawn cannot be accepted.

(B)
Constitution
of
India-Art.
226Principle of natural justice-Revocation of
Nomination of petitioner-as nominated
village
Pradhan-complaint
of
irregularities-Section
14
of
General
clauses Act-empowers the authority to
exercise such power time to time-heldno personal right affected-opportunity of
hearing before revocation-not required.

Held: Para 8