# Huzbar Uddin Khan v. Director General of Police and others

- **Citation:** (2006) 2 ILRA 786
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-11
- **Case number:** Civil Misc. Writ Petition No. 4897 of 2003
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/huzbar-uddin-khan-v-director-general-of-police-and-others-40659
- **Pages:** 26

## Headnote

Rules,
1956-Rule
28-Punishment
Dismissal-petitioner
working
as
Sub
Inspector-promised to marry a lady but
failed to do with fact that so-from
enquiry report incident of love affairs not
confirmed-complainent being fully aware
the petitioner a married man having two
childeren-provision of section 28 not
attrected-punishment
of
dismissalwholly dispropationate punishment of
withholding 25% back wages-awarded.

Held: Para 43,50,52,58

In my opinion, Rule 28 does not apply in
the present case. From the record, it is
also clear that the petitioner has not
been afforded an opportunity to the
amended charge sheet dated 10.6.2001
and the enquiry officer has submitted his
report dated 28.8.2001.

In view of the aforesaid proposition of
law, discussed above, there is no doubt
to this effect that this Court while
exercising power under Article 226 of
the Constitution of India can only
interfere when the Court comes to the
conclusion that the punishment which
has
been
awarded
is
highly
disproportionate and the same shocks
the conscience of the Court in the sense
that it was in defiance of logic or moral
standards. From the perusal of the
record, it clearly goes to show that the
charges levelled against the petitioner
does not come under the definition of
''misconduct' as defined above. From the
perusal of Rule 28 of the Conduct Rules,
in my opinion, this also does not cover
the
charges
levelled
against
the
petitioner. The complaint made by the
lady does not come in relation to the
performance
of
the
petitioner's
in
service. There is no charge against the
petitioner that he was ever having any
illicit relation with that lady. From the
record,
it
is
also
clear
that
the
complainant was fully aware that the
petitioner
was
married
having
two
children.

In view of the aforesaid facts and
circumstances
and
in
view
of
the
definition of ''misconduct', I am of the
opinion, that awarding punishment of
dismissal from service to petitioner is
wholly disproportionate and cannot be
sustained as this Court is of the view
that the complaint and allegations do not
constitute a misconduct.

In special facts and circumstances of the
present case, as narrated above, this
Court without remitting the matter to
the
disciplinary
authority
while
exercising the power under Article 226
of
the Constitution of India, itself
substituting
the
punishment
to
the
petitioner. Justice will be served if a
punishment to the petitioner to the tune
of withholding 25% of back wages is
awarded from the date of dismissal till
the date of reinstatement. This will be
sufficient in the facts and circumstances
of the present case.
Case law discussed:
2001 (2) ESC (Alld.) 719
2002 (1) ESC (Alld.) 341
2004 (2) UPLBEC-1461
2003 (8) SCC-9
1987 (3) SCC-1
2 All] Huzbar Uddin Khan V. Director General of Police and others
787
2002 (3) SCC-667
AIR 1979 SC-1022
J.T. 1992 (4) SC-253
AIR1989 SC-1185

## Text

_Characters 0–39,878 of 86,367. This is a partial read: ask again with offset=39878 for what follows._

786 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 4897 of 2003

Huzbar Uddin Khan

...Petitioner
Versus
Director General of Police and others

 ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Anurag Jauhari

Counsel for the Respondents:
S.C.

U.P. Government Servant Conduct of
Rules,
1956-Rule
28-Punishment
Dismissal-petitioner
working
as
Sub
Inspector-promised to marry a lady but
failed to do with fact that so-from
enquiry report incident of love affairs not
confirmed-complainent being fully aware
the petitioner a married man having two
childeren-provision of section 28 not
attrected-punishment
of
dismissalwholly dispropationate punishment of
withholding 25% back wages-awarded.

Held: Para 43,50,52,58

In my opinion, Rule 28 does not apply in
the present case. From the record, it is
also clear that the petitioner has not
been afforded an opportunity to the
amended charge sheet dated 10.6.2001
and the enquiry officer has submitted his
report dated 28.8.2001.

In view of the aforesaid proposition of
law, discussed above, there is no doubt
to this effect that this Court while
exercising power under Article 226 of
the Constitution of India can only
interfere when the Court comes to the
conclusion that the punishment which
has
been
awarded
is
highly
disproportionate and the same shocks
the conscience of the Court in the sense
that it was in defiance of logic or moral
standards. From the perusal of the
record, it clearly goes to show that the
charges levelled against the petitioner
does not come under the definition of
''misconduct' as defined above. From the
perusal of Rule 28 of the Conduct Rules,
in my opinion, this also does not cover
the
charges
levelled
against
the
petitioner. The complaint made by the
lady does not come in relation to the
performance
of
the
petitioner's
in
service. There is no charge against the
petitioner that he was ever having any
illicit relation with that lady. From the
record,
it
is
also
clear
that
the
complainant was fully aware that the
petitioner
was
married
having
two
children.

In view of the aforesaid facts and
circumstances
and
in
view
of
the
definition of ''misconduct', I am of the
opinion, that awarding punishment of
dismissal from service to petitioner is
wholly disproportionate and cannot be
sustained as this Court is of the view
that the complaint and allegations do not
constitute a misconduct.

In special facts and circumstances of the
present case, as narrated above, this
Court without remitting the matter to
the
disciplinary
authority
while
exercising the power under Article 226
of
the Constitution of India, itself
substituting
the
punishment
to
the
petitioner. Justice will be served if a
punishment to the petitioner to the tune
of withholding 25% of back wages is
awarded from the date of dismissal till
the date of reinstatement. This will be
sufficient in the facts and circumstances
of the present case.
Case law discussed:
2001 (2) ESC (Alld.) 719
2002 (1) ESC (Alld.) 341
2004 (2) UPLBEC-1461
2003 (8) SCC-9
1987 (3) SCC-1
2 All] Huzbar Uddin Khan V. Director General of Police and others
787
2002 (3) SCC-667
AIR 1979 SC-1022
J.T. 1992 (4) SC-253
AIR1989 SC-1185

(Delivered by Hon'ble Shishir Kumar, J.)

1. By means of the present writ
petition, the petitioner has approached this
Court for issuing a writ of certiorari
quashing the orders dated 26.10.2002,
1.5.2002 and 3.12.2001 passed by the
respondents Nos 1, 2 and 3 respectively.
Further issuing a writ in the nature of
mandamus restraining the respondents
from interfering in the working of the
petitioner on the basis of impugned
orders.

2. The facts arising out of the writ
petition are that the petitioner was
appointed as Sub Inspector of Police in
the year 1984 and since then he is
discharging his duties faithfully. There
was no complaint regarding work and
conduct of the petitioner. While the
petitioner was posted in District Rampur,
an application was submitted by one Km.
Rana Rais before Inspector General of
Police, Bareilly Zone, Bareilly making
certain false and frivolous allegations
against the petitioner and asserting that
the petitioner after promising her to marry
has resiled from his promise. A copy of
the same has been filed as Annexure 1 to
the writ petition. A preliminary enquiry
was
conducted
by
Circle
Officer,
Bilaspur, District Rampur, who submitted
his
enquiry
report
on
5.7.1999
exonerating the petitioner from the
aforesaid charge. The Superintendent of
Police vide its letters dated 12.8.1999 and
23.12.1999 addressed to Deputy Inspector
General of Police informed him that the
charges levelled against the petitioner by
Km. Rana Rais have been found to be
false by the enquiry officer. Km. Rana
Rais then again on 8.1.2001 directly
submitted an application before the
Inspector General of Police Bareilly. An
order-dated 3.2.2001 was passed directing
the Superintendent of Police to submit his
comments regarding conduct of the
petitioner
in
accordance
with
the
provisions of the U.P. Government
Servants
Conduct
Rules,
1956
(hereinafter referred to as Conduct Rules,
1956). In compliance of the aforesaid
order, the circle officer Bilaspur sent a
letter dated 3.3.2001 stating therein that
he had overlooked the conduct of the
petitioner in the light of the provisions of
Conduct Rules, 1956. By order dated
12.3.2001, passed by the Superintendent
of Police directing the petitioner to show
cause as to why an entry of censure be not
made in his character roll for committing
breach of Conduct Rules, 1956. However,
by order dated 27.3.2001, the Inspector
General
of
Police
directed
the
Superintendent of Police, Rampur to
proceed
against
the
petitioner
in
accordance with the provisions of Rule 14
(1) of the U.P. Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal ) Rules, 1991 (hereinafter referred
to 1991 Rules). On receipt of the
aforesaid order dated 19.5.2001, the
Superintendent
of
Police,
Rampur
recalled the earlier show cause notice
dated 12.3.2001 and appointed Additional
Superintendent of Police as an enquiry
officer.

3. A charge sheet dated 10.6.2001
was served upon the petitioner by enquiry
officer
and
time
was
granted
till
19.6.2001 to submit his reply. From the
perusal of the aforesaid charge sheet
indicates that only one charge was
levelled against the petitioner namely that
788 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
in the year 1991, while he was posted as
Sub Inspector he had a love affair with
Km. Rana Rais in spite of the fact that he
was married, which constituted an offence
under Rule 28 of the Conduct Rules,
1956. An application was submitted by
the petitioner for being supplied certain
documents,
which
were,
however,
supplied to him only on 6.7.2001. An
application was thereafter submitted by
the petitioner on 10.7.2001 seeking 30
days time to the petitioner for filing his
reply to the aforesaid charge sheet.
However, only three days time was
granted to the petitioner by the Enquiry
Officer. On 21.7.2001, an application was
submitted by the petitioner before the
Enquiry Officer stating therein that the
provisions of Rule 28 of the Conduct
Rules 1956 are not applicable keeping in
view of the nature of the charges levelled
against him and so he may be informed
accordingly so as to enable him to submit
a proper reply. It has also been stated that
the enquiry officer vide letter dated
21.7.2001
had
fixed
23.7.2001
for
recording the statement of Km. Rana
Rais, but however, the statement of the
said lady was recorded on 22.7.2001 i.e.
one day prior to the date fixed. The
statement was recorded ex parte behind
the back of the petitioner. Subsequently
on continuation of the aforesaid statement
another
statement was recorded on
23.7.2001. The petitioner categorically
asserts that he had no notice of
postponing the enquiry proceeding or of
the recording of the statement of Km.
Rana Rais on 22.7.2001. On 9.5.2001 the
petitioner was transferred to Meerut zone
from Rampur, as such, an application
dated 22.7.2001 was moved before the
competent authority seeking transfer of
the enquiry proceeding. It has also been
asserted in the said application that the
petitioner does not expect a proper
enquiry from the enquiry officer on
account of bias and malafides. A copy of
the said application dated 22.7.2001 has
been filed as Annexure 12 to the writ
petition. Realizing the provisions of Rules
28 of the Conduct Rules 1956 were not
applicable, an amended charge sheet was
issued to the petitioner on 24.7.2001.
From the perusal of the aforesaid charge
sheet it indicates that now the charge,
which has been levelled against the
petitioner, was in violation of Rule 4 (1)
of U.P. Police Officers of the Subordinate
Rank (Punishment and Appeal) Rules,
1991. Since the petitioner had fallen ill
and cannot recovered from his illness, as
such, he could not participate in the
enquiry proceedings and ultimately an
exparte enquiry report was submitted by
the enquiry officer on 21.8.2001.

4. On the basis of the aforesaid
enquiry report a show cause notice was
given to the petitioner on 25.10.2001 by
the Deputy Inspector General of Police.
The reply of the aforesaid show cause
notice was submitted by the petitioner on
17.11.2001. The respondents without
taking into consideration the aforesaid
reply of the petitioner an order dated
3.12.2001 was passed by which the
Deputy Inspector General of Police has
enforced a punishment of dismissal from
service. A copy of the same has been filed
as Annexure 17 to the writ petition.

5. Being aggrieved by the aforesaid
order, the petitioner filed a writ petition
before this Court which was numbered as
Writ Petition No.1363 or 2002, which was
disposed of on 10.1.2002 on the ground of
alternative remedy with a liberty to the
petitioner to file an appeal before the
Director General of Police. It was further
2 All] Huzbar Uddin Khan V. Director General of Police and others
789
provided that it will be open to the
petitioner to file an application before the
Director General of Police to transfer his
appeal to some other Inspector General of
Police but the appeal of the petitioner was
also
dismissed
by
its
order
dated
1.5.2002. A copy of the same has been
annexed as Annexure 20 to the writ
petition.

6. Being aggrieved by the aforesaid
order, the petitioner filed a revision before
the Director General of Police, who also
by its order dated 26.10.2002 has rejected
the revision filed by the petitioner. A copy
of the same has been filed as Annexure 21
to the writ petition.

7. It has been contended on behalf of
the petitioner that from the perusal of the
order, it clearly goes to show that the
services of the petitioner have been
dispensed with on the ground that his
conduct was in violation of Rule 3 of the
Conduct Rules 1956. The aforesaid order
is wholly illegal and contrary to law as the
provisions of the aforesaid rules are
clearly
not
applicable
against
the
petitioner. Rule 3 is being reproduced
below:-

"3.
General-(1)
Every
Government
servant shall at all times maintain
absolute integrity and devotion to duty.

(2)Every Government servant shall at all
times conduct himself in accordance with
the
specific
or
implied
orders
of
Government regulating behaviour and
conduct which may be in force."

8. Even otherwise neither the
appellate or revisional authority have
taken into consideration the points raised
by the petitioner in the memo of revision
or appeal even it has also not taken into
consideration the fact regarding the
enquiry proceedings that the enquiry
officer has proceeded ex parte and no
opportunity of hearing has been afforded
to the petitioner. Admittedly, all the
proceedings have been initiated against
the
petitioner
on
the
basis
of
a
letter/complaint by Km. Rana Rais. Her
statement has also been recorded behind
the back of the petitioner and he has not
been afforded any opportunity to cross
examine her. The said action of the
respondents is in clear violation of the
principles of natural justice and as such,
the aforesaid statement could not have
formed the basis for terminating the
services of the petitioner. Even otherwise,
the charge levelled against the petitioner
does not constitute a misconduct either
under the provisions of the Conduct
Rules, 1956 or under 1991 Rules. Thus no
disciplinary proceedings could have been
initiated against the petitioner on the basis
of the aforesaid complaint. There is no
allegation against the petitioner that the
petitioner at any point of time as a Sub
Inspector has acted in violation to the
Service Rules. Thus on the basis of such
charge the services of the petitioner could
not have been dispensed with, therefore,
the orders impugned passed by the
respondents are clearly illegal and without
jurisdiction.

9. Even assuming without admitting
this fact that the charges levelled against
the petitioner are correct, then that also
relates only to his private life and it does
not in any manner relate to his official
duties and in view of the aforesaid fact,
no proceeding under the provisions of the
Service Rules could have been initiated
against the petitioner. There is no
allegation
against
the
petitioner
to
790 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
establish that the petitioner has in any
manner any physical relations with the
complainant, which is amply disclosed by
her in statement recorded during the
enquiry
proceedings.
Thus
the
punishment awarded against the petitioner
is highly excessive, disproportionate and
clearly violates the provisions of Article
14 of the Constitution of India. The
contention of the petitioner is established
in view of the application dated 5.6.1999
submitted by Km. Rana Rais. A certificate
issued by Dr. Zilani W.H.Siddiqui,
brother-in-law of Km. Rana Rais in which
it has also been clearly stated that they
were fully aware regarding the fact that
the petitioner was already married. The
respondents themselves in view of the
present facts and circumstances are not
clear as regards the provisions of the
Service Rules or Conduct Rules which
have been violated by the petitioner but in
spite of the aforesaid fact, the enquiry was
conducted and have imposed an excessive
order of punishment without giving
proper and reasonable opportunity to the
petitioner. The petitioner further submits
that he is entitled to the protection of the
Service Rules and the procedure provided
therein for holding an enquiry under the
law. None of the provisions have been
followed and the Rules have been violated
and the charges levelled against the
petitioner
have
not
been
proved,
therefore, the punishment is to be
quashed. While rejecting the appeal of the
petitioner the respondents have also not
applied their mind.

10. The further contention raised on
behalf of the petitioner is that in spite of
the fact that if respondents were of the
opinion that some mistake or there is
some misconduct on the part of the
petitioner is there some minor punishment
should have been awarded as it was
decided in earlier proceeding to award a
censure entry against the petitioner. As
admittedly, the charges, which have been
levelled against the petitioner, does not
come under the definition of misconduct,
therefore, there cannot be any punishment
of dismissal. The punishment awarded to
the petitioner is clearly disproportionate
to the charges as such, the same is liable
to be quashed.

11. The reliance has been placed by
the petitioner upon a Division Bench
decision of this Court in Pravina Solanki
Vs. State of U.P. and others reported in
2001 (2) ESC (Allahabad), 719 and has
submitted that in the aforesaid case, the
lady petitioner who was constable in U.P.
Police was dismissed on the charge that
she was found at her residence under
influence of liquor and sleeping with one
person in the same bed. This Court hold
that
she
has
not
committed
any
misconduct for which she can be
departmentally proceeded against and the
order of dismissal has been quashed.
Reliance has been placed upon Paras 4
and 5 to the judgment. The same are
being quoted below:-

"4. There are no allegations against
the petitioner that her conduct in any way
affected her official functions. There is
also no allegation that she was on duty at
the relevant time. In our opinion unless an
employee does some act which interferes
with
his/her
official
function
then
ordinarily whatever he/she does in his/her
private life cannot be regarded as
misconduct. In the case of Rabindra Nath
Ghosh 1985 (1) SLR 598 it was the view
taken by the Calcutta High Court and this
was also the view taken by a Division
bench of this Court in State of U.P. V.
2 All] Huzbar Uddin Khan V. Director General of Police and others
791
B.N. Singh AIR 1989 Alld. 359. The
position may have been different if the
petitioner was doing the aforesaid acts
while on duty, but in the present case she
was at her residence late in the night, and
there is no allegation that she was on duty
at that time. As held by this Court in the
case of State of U.P. V. B.N.Singh
(Supra) in order to bring a case of a
government servant within the definition
of personal immorality on the ground of
habit of sex, it must be shown that this
habit of the government servant has
reduced his utility as a public servant so
as to damage the government or official
generally in public esteem. In Sukhdev
Singh V. State of Punjab 1983 (2) SLR
645 the Punjab High Court held that a
constable under influence of alcohol
while not on duty cannot be held to be
guilty of misconduct. In the present case
the petitioner was not having sex in a
public place but at her residence. Hence it
cannot be said that she has committed any
misconduct for which she can be
departmentally proceeded against.

5. We cannot help observing that if the
petitioner had been a male employee
perhaps the authorities would have done
nothing about it but since she was a
female she has been proceeded against.
Thus, this is a case which smacks of
sexual discrimination."

12. Another judgment cited by the
petitioner in 2002 (1) ESC Allahabad, 341
Shahjahan Khan Vs. State of U.P. and
others. The charge in the aforesaid case
was that the petitioner in that writ petition
was having a married wife, lived with
another woman for seven months. The
same was in violation of Rule 29 of the
U.P.
Government
Servants
Conduct
Rules, 1956. This Court has held that
merely because of government servant
who had married wife lived with a
woman, it does not mean that he has
married to her, unless the evidence proves
the second marriage. The order of
dismissal was quashed.

13. Another judgment relied upon
by the counsel for the petitioner is Raj
Kishore Yadav Vs. U.P. Public Service
Tribunal, Indra Bhawan, Lucknow and
others reported in (2004) 2 UPLBEC
1461. In support of the contention of the
aforesaid judgment, the petitioner submits
that this Court as well as the Apex Court
has a wide power of judicial review of the
quantum of punishment. In that case, the
employee concerned made some wrong
measurement. This Court has held that
mistake may be committed by any person.
It is apart of human nature, therefore,
applying the principle laid down by the
Apex Court it has been held that the
punishment imposed is highly excessive
and disproportionate.

14. The another judgment relied
upon by the petitioner in Dev Singh Vs.
Punjab
Tourism
Development
Corporation Ltd. and another reported in
(2003) 8 SCC, 9. In the light of the
aforesaid judgment the counsel for the
petitioner submits that this Court has full
power of judicial review regarding
proportionality of punishment and this
Court while considering the aforesaid fact
can set aside the punishment, if the
punishment imposed by the disciplinary
authority or the appellate authority shocks
the judicial conscience of the Court, the
Court can mould the relief. The reliance
has been placed upon paras 6 and 7 to the
judgment. The same is being reproduced
below:-
792 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
"6. A perusal of the above judgments
clearly shows that a court sitting in
appeal against a punishment imposed in
the disciplinary proceedings will not
normally substitute its own conclusion on
penalty, however, if the punishment
imposed by the disciplinary authority or
the
appellate
authority
shocks
the
conscience of the Court, then the court
would appropriately mould the relief
either
by
directing
the
disciplinary/appropriate
authority
to
reconsider the penalty imposed or to
shorten the litigation it may make an
exception in rare cases and impose
appropriate
punishment
with
cogent
reasons in support thereof. It is also clear
from the above noted judgments of this
Court, if the punishment imposed by the
disciplinary
authority
is
totally
disproportionate
to
the
misconduct
proved against the delinquent officer, then
the court would interfere in such a case.

7. Applying the said principles laid down
by this Court in the cases noted
hereinabove, we see that in this case the
appellant has been serving the respondent
Corporation for nearly 20 years with
unblemished service, before the present
charge of misconduct was leveled against
him. The charge itself shows that what
was alleged against the appellant was
misplacement of a file and there is no
allegation whatsoever that this file was
either
misplaced
by
the
appellant
deliberately
or
for
any
collateral
consideration. A reading of the chargesheet shows that the misplacement alleged
was not motivated by any ulterior
consideration and at the most could be an
act of negligence, consequent to which the
appellant was unable to traced the file
again. The disciplinary authority while
considering the quantum of punishment
came
to
the
conclusion
that
the
misconduct of the nature alleged against
the appellant should be viewed very
seriously to prevent such actions in
future, whereby important and sensitive
records could be lost or removed or
destroyed by the employee under whose
custody the records are kept. Therefore,
he was of the opinion that a deterrent
punishment was called for, forgetting for
a moment that no such allegations of
misplacing of important or sensitive
record was made in the instant case
against the appellant and what he was
charged of was misplacement of a file,
importance or sensitiveness of which was
not
mentioned in
the charge-sheet.
Therefore, in our opinion, the disciplinary
authority was guided by certain facts
which were not on record, even otherwise,
we are of the opinion that when the
Service
Bye-laws
applicable
to
the
Corporation under Service Bye-law 17
provide various minor punishments, we
fail to appreciate why only maximum
punishment available under the said Byelaws should be awarded on the facts of
the present case. We think the punishment
of dismissal for mere misplacement of a
file without any ulterior motive is too
harsh a punishment which is totally
disproportionate
to
the
misconduct
alleged and the same certainly shocks our
judicial
conscience.
Hence,
having
considered the basis on which he
punishment of dismissal was imposed on
the
appellant
and
the
facts
and
circumstances of this case, we think to
avoid further prolonged litigation it
would be appropriate if we modify the
punishment ourselves. On the said basis,
while upholding the finding of misconduct
against the appellant, we think it
appropriate that the appellant be imposed
a punishment of withholding of one
2 All] Huzbar Uddin Khan V. Director General of Police and others
793
increment including stoppage at the
efficiency bar in substitution of the
punishment of dismissal awarded by the
disciplinary authority. We further direct
that the appellant will not be entitled to
any back wages for the period of
suspension. However, he will be entitled
to the subsistence allowance payable up
to the date of the dismissal order."

15. In view of the aforesaid fact, the
petitioner
submits
that
the
total
disciplinary
proceedings
against
the
petitioner is vitiated only on the ground
that the petitioner has not been afforded
an opportunity, which was necessary to
follow the principle of natural justice.
Another aspect of the matter is that as it
does not come under the definition of
''misconduct', therefore, the punishment of
dismissal
is
highly
excessive
and
disproportionate to the offence committed
and is liable to be quashed.

16. Aggrieved by the aforesaid
orders, the petitioner has approached this
Court and this Court had issued notice to
the respondents to file counter affidavit. A
counter affidavit has been filed and the
respondents
wanted
to
justify
the
punishment which has been awarded
against
the
petitioner
that
in
the
preliminary enquiry, the charges against
the petitioner have been proved and after
departmental enquiry, according to Rule
14(1) as the charges against the petitioner
was proved, the services have been
dispensed with. As the petitioner has
promised one Km. Rana Rais when he
was posted in 1991 as Sub Inspector and
there were certain letters and photos,
which clearly proves the misconduct
against the petitioner. In paragraph 10 of
the counter affidavit, the allegation
against the petitioner regarding taking the
statement prior to one day before the date
fixed, it has been stated that the date was
fixed for 23.7.2001 but Km. Rana Rais
appeared on 22.7.2001. The petitioner
was searched but he was not available,
therefore, the statement of Km. Rana Rais
was taken on 22.7.2001. It has further
been stated in Para 18 of the counter
affidavit that as the charge against the
petitioner that he has adduced Km. Rana
Rais by non fulfilling the promise and he
has deceived the lady and he maintain the
relationship of love affair with that lady is
in violation of Sub Rule 3 of U.P.
Government Servants Conduct Rules.
Reliance has been placed upon 1987 (3)
SCC , 1 Daya Shanker Vs. High Court of
Judicature at Allahabad and others and
reliance has been placed upon para 11 of
the writ petition. The same is being
quoted below:-

"11. In our opinion the conclusion
reached by the Inquiry Officer that the
petitioner used unfair means is fully
justified. No amount of denial could take
him away from the hard facts revealed.
The
conduct
of
the
petitioner
is
undoubtedly unworthy of a judicial
officer. Judicial officer cannot have two
standards, one in the court and another
outside the court. They must have only
one standard of rectitude, honesty and
integrity. They cannot act even remotely
unworthy of the office they occupy. The
second contention urged for the petitioner
also fails and is rejected."

17. I have heard learned counsel for
the petitioner and learned Standing
Counsel and have perused the record.

18. From the record, it is clear that
the proceedings against the petitioner
were initiated only on the basis of
794 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
complaint made by Miss Rana Rais. On
an application made in 1997, an enquiry
to that effect was made and it was found
false. Subsequently, on the basis of
another
application
dated
8.1.2001
directly
submitted
to
the
Inspector
General
of
Police
by
which
the
Superintendent of Police was directed to
submit
report
regarding
petitioner's
conduct and the Superintendent of Police
had issued a show cause notice for
awarding an censure entry but on the
basis of order dated 27.3.2001, the
Inspector General of Police directed the
Superintendent of Police, Rampur to
proceed
against
the
petitioner
in
accordance with the provisions of Rule
14(1) of the U.P. Police Officer Rules,
1991 and on the basis of aforesaid fact the
order was recalled and enquiry officer
was appointed and a show cause notice
was served upon the petitioner. From the
perusal of the charge sheet, it is clear that
one and only charge against the petitioner
that he was having friendship with Miss
Rana Rais and promise to marry her but
the petitioner has not fulfilled his
promise. From the earlier report submitted
to the Inspector General of Police dated
3.3.2001 a finding to this effect has been
recorded that no incident of love affair
has been confirmed and it does not come
under the definition of ''misconduct'.
From the perusal of the show cause notice
dated 12.3.2001, it is also clear that
Superintendent of Police had decided to
award a punishment of censure entry in
his character roll for committing breach of
Conduct Rules, 1956. It appears that on
the
basis
of
instigation
of
higher
authorities, the disciplinary proceedings
against the petitioner have been initiated.
From the record, it is also clear that the
statement of Km. Rana Rais has been
recorded one day prior the date fixed and
the petitioner has not been afforded an
opportunity for cross examination. It is
not the case of the complainant that on the
basis of the aforesaid promise as stated by
the respondent, the petitioner was having
an illicit relation with the complainant.
There is no prove to that effect. It is also
apparent from the record that the
complainant was fully aware regarding
that the petitioner was a married man.
From the record, it is also clear that when
the proceedings were transferred to
Meerut zone, after that no date, time and
place was fixed for conducting the
enquiry and the enquiry officer has
submitted report. From the charges
levelled against the petitioner, no charge
has been levelled to this effect that the
petitioner while in service has not
maintained discipline and has violated
any provision of the Service Rules,
therefore, in my opinion, it does not
constitute a misconduct as defined under
the Conduct Rules of 1956 or under 1991
Rules.

19. The scheme of the disciplinary
rules in general is to identify the conduct
which is made punishable and then to
provide for the various punishments
which may be imposed for the acts which
are inconsistent with such conduct. The
Conduct Rules contain provisions which
pertain to the standards of conduct which
the Government servant are to follow
whereas the Conduct and Appeal Rules
provide the punishment or penalties
which may be imposed for misconduct.
The conduct rules and the rules for
punishment may be provided in separate
rules or combined into one. Moreover,
there
are
a
host
of
departmental
instructions, which elucidate, amplify and
provide guidelines regarding the conduct
of the employees. The range of activities
2 All] Huzbar Uddin Khan V. Director General of Police and others
795
which may amount to acts which are
inconsistent with the interest of public
service and not befitting the status,
position and dignity of a public servant
are so varied that it would be impossible
for
the
employer
to
exhaustively
enumerate such acts and treat the
categories of misconduct as closed. It has,
therefore, to be noted that the word
"misconduct" is not capable of precise
definition. But at the same time though
incapable of precise definition, the word
"misconduct" on reflection receives its
connotation
from
the
context,
the
delinquency in performance and its effect
on the discipline and the nature of the
duty. The act complained of must bear a
forbidden quality or character and its
ambit has to be construed with reference
to the subject-matter and the context
wherein the term occurs, having regard to
the scope of the statue and the public
purpose it seeks to serve.

20. In Baldev Singh Gandhi Vs.
State of Punjab and others, JT 2002
(Suppl.1) SC 602: 2002(3) SCC 667, it
was held that the expression "misconduct"
means unlawful behaviour, misfeasance,
wrong
conduct,
misdemeanor
etc.
Similarly, in State of Punjab and others V.
Ram Singh Ex. Constable, JT 1992 (4) SC
253,
it
was
held
that
the
term
"misconduct"
may
involve
moral
turpitude. It must be improper or wrong
behaviours, unlawful behaviour, willful 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.

21. "Misconduct" as stated in Batt's
Law of Master and Servant ("4 Edition)
(At page 63) is "comprised positive acts
and not mere neglects or failures." The
definition of the word as given in
Bakllentine's
law
Dictionary
(148th
Edition) is "A transgression of some
established and definite Rule of action,
where n discretion is left except what
necessity may demand, it is a violation of
definite law, a forbidden act. It differs
from carelessness'.

22. ''Misconduct' as defined in
Webster's
Encyclopedic
Unabridged
Dictionary as follows- 1. improper
conduct; wrong behaviour. 2. Unlawful
conduct by an official in regard to his
office,
or
by
a
person
in
the
administration of justice, such as a
lawyer, witness, or juror. 3. to mismanage
4. to misbehave (oneself).

23. In Union of India and others
Vs. J. Ahmed reported in A.I.R. 1979
Supreme Court 1022, the Apex Court
while
interpreting
the
meaning
of
''misconduct'
has
defined
what
is
misconduct. In para 11 and 13 of the
aforesaid judgment, the Apex Court has
held that "misconduct means, misconduct
arising
from
ill
motive;
acts
of
negligence,
errors
of
judgment
or
innocent mistake, do not constitute such
misconduct. Paras 11 and 13 are being
quoted below:-

11. Code of conduct as set out in the
Conduct Rules clearly indicates the
conduct expected to a member of the
service. It would follow 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
796 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
with due and faithful discharge of his duty
in service, it is misconduct (see Pearce V.
Foster) (1886) 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 Newspapers) (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.Vaghela V. Moosa Raza (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;
acts
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 SC1051), 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 an, 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 intravenous
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
2 All] Huzbar Uddin Khan V. Director General of Police and others
797
(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
interference 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.

13. 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
effective
preventive measures to arrest or to nip in
the bud the ensuring disturbances. We do
not taken 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 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.