# Jai Vir Singh v. State of U.P. and another

- **Citation:** (2007) 3 ILRA 955
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-16
- **Case number:** Civil Misc. Writ Petition No.18871 of 2006
- **Bench:** Anjani Kumar, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-vir-singh-v-state-of-u-p-and-another-41215
- **Pages:** 52

## Headnote

Constitution
of
India,
Art.
226Disproportinate
Punishment-Petitioner
while working as Additional District
Judge decided to many land acquisition
reference cases-placing reliance upon
another
reference
court-without
considering finality-charges about giving
undue benefit to the claimants provedNeed no interference-considering 27
years
unblemished
service
recordpunishment of reduction in rank from
H.J.S.
to
civil
Judge
(J.D.)-highly
excessive, disproportionate, irrationalhence molded to stoppage of three
increments with cumulative effect from
the date impugned punishment order by
restoring back to the post of A.D.J.-held
proper.

Held: Para 67 & 68

Thus, in given facts and circumstances of
the case, we are of the firm opinion that
punishment inflicted upon the petitioner
is disproportionate to the charge levelled
against him and is highly excessive,
956 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
irrational and arbitrary, therefore, can
not be sustained, accordingly we quash
the impugned order dated 17.1.2006
passed by the State Government.

We are of the further opinion that in
given facts and circumstances of the
case,
remitting
the
matter
for
consideration of Full Court will take
some
considerable
time,
thereupon
recommendation has to be sent to the
State Government, which again take
time in taking decision. Having regard to
the mental agony and torture faced by
the petitioner, we are not inclined to
tolerate present state of affair further
more. Therefore, we are inclined to
mould the relief appropriately and in
given facts and circumstances of the
case,
we
think
it
appropriate
that
stoppage or withholding of three future
annual increments of the petitioner with
cumulative effect permanently from the
date of impugned punishment order
dated 17.1.2006 after restoring him back
to his post of Additional District Judge as
on the date of impugned order, would
meet the ends of justice. Such stoppage
of increments would also be amounted
to reduction in rank to a lower stage in a
time scale of pay of the petitioner as a
major penalty under relevant service
rules. However, we are constrained to
withhold the integrity of the petitioner
for the year 2000-2001, the year in
which he has rendered the decision in
question giving rise cause of action to
the instant case.
Case law discussed:
J.T. 1993 (6) SC-287, AIR 1979 SC-1022, AIR
1962 SC-2188, AIR 1962 SC-1233, AIR 1993
SC-1478, 1996 (4) SCC-539, 1998 (7) SCC310, AIR 1999 SC-2881, AIR 2001 SC-2788,
AIR 1988 (2) SC-473, AIR 1968 SC-453, AIR
1965 SC-304, AIR 1979 SC-404, AIR 2002 SC726, AIR 2003 SC-2302, J.T. 1999 (1) SC-61,
J.T. 2007 (5) SC-628

## Text

_Characters 0–39,956 of 178,074. This is a partial read: ask again with offset=39956 for what follows._

3 All] Jai Vir Singh V. State of U.P. and another
955
of the academic session was granted to
him under the Rules so that the teaching
in the institution is not affected. This
session extension could only be treated as
an extension of service till the end of the
academic session. It would, therefore, be
akin to a fixed term appointment,
automatically terminating the contract of
service at the end of the academic session.
Such fixed tenured employees cannot be
treated as regular employees whose
Dependants could seek compassionate
appointment, at best, they could claim the
salary up to the period of expiry of the
aforesaid contract. It has already come on
record
that
the
entire
salary
uptil
30.6.1989 has already been paid to the
petitioner's mother and, therefore, on this
ground also the petitioner is not entitled to
compassionate appointment.

11. No other point has been urged.

12. In view of the above, it is
apparent that the petitioner was not
entitled for compassionate appointment in
any view of the matter and, therefore, the
order appointing him was itself illegal.
Even,
if
the
order
cancelling
the
appointment is vitiated on any account,
this Court is not bound to quash the
impugned order which would result in
reinstatement of an another illegal order.

13. For the reasons given above, this
is not a fit case for interference under
Article 226 of the Constitution of India.
Rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.18871 of 2006

Jai Vir Singh

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

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Swapnil Kumar

Counsel for the Respondents:
Sri K.R. Sirohi
Sri Amit Sthalekar
Sri Rajiv Gupta
S.C.

Constitution
of
India,
Art.
226Disproportinate
Punishment-Petitioner
while working as Additional District
Judge decided to many land acquisition
reference cases-placing reliance upon
another
reference
court-without
considering finality-charges about giving
undue benefit to the claimants provedNeed no interference-considering 27
years
unblemished
service
recordpunishment of reduction in rank from
H.J.S.
to
civil
Judge
(J.D.)-highly
excessive, disproportionate, irrationalhence molded to stoppage of three
increments with cumulative effect from
the date impugned punishment order by
restoring back to the post of A.D.J.-held
proper.

Held: Para 67 & 68

Thus, in given facts and circumstances of
the case, we are of the firm opinion that
punishment inflicted upon the petitioner
is disproportionate to the charge levelled
against him and is highly excessive,
956 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
irrational and arbitrary, therefore, can
not be sustained, accordingly we quash
the impugned order dated 17.1.2006
passed by the State Government.

We are of the further opinion that in
given facts and circumstances of the
case,
remitting
the
matter
for
consideration of Full Court will take
some
considerable
time,
thereupon
recommendation has to be sent to the
State Government, which again take
time in taking decision. Having regard to
the mental agony and torture faced by
the petitioner, we are not inclined to
tolerate present state of affair further
more. Therefore, we are inclined to
mould the relief appropriately and in
given facts and circumstances of the
case,
we
think
it
appropriate
that
stoppage or withholding of three future
annual increments of the petitioner with
cumulative effect permanently from the
date of impugned punishment order
dated 17.1.2006 after restoring him back
to his post of Additional District Judge as
on the date of impugned order, would
meet the ends of justice. Such stoppage
of increments would also be amounted
to reduction in rank to a lower stage in a
time scale of pay of the petitioner as a
major penalty under relevant service
rules. However, we are constrained to
withhold the integrity of the petitioner
for the year 2000-2001, the year in
which he has rendered the decision in
question giving rise cause of action to
the instant case.
Case law discussed:
J.T. 1993 (6) SC-287, AIR 1979 SC-1022, AIR
1962 SC-2188, AIR 1962 SC-1233, AIR 1993
SC-1478, 1996 (4) SCC-539, 1998 (7) SCC310, AIR 1999 SC-2881, AIR 2001 SC-2788,
AIR 1988 (2) SC-473, AIR 1968 SC-453, AIR
1965 SC-304, AIR 1979 SC-404, AIR 2002 SC726, AIR 2003 SC-2302, J.T. 1999 (1) SC-61,
J.T. 2007 (5) SC-628

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

1. By this petition the petitioner has
sought relief in the nature of certiorari for
quashing the order of punishment dated
17th January 2006 (Annexure-1) as well
as inquiry report dated 14th September
2005 (Annexure-2 to the writ petition).
Vide impugned order dated 17th January
2006 passed by State Government a major
penalty of reduction in rank i.e. from
substantive rank of Civil Judge (Senior
Division) to the rank of Civil Judge
(Junior Division) has been inflicted upon
the petitioner. A further relief in the
nature of mandamus has been sought for
commanding the respondents not to take
any further action either in furtherance of
or as a consequence of the impugned
order and to grant and restore all benefits
for which the petitioner was entitled but
for the impugned punishment awarded to
him vide order dated 17th January 2006.

2. The facts of the case in brief are
that the petitioner was appointed as
Munsif (Civil Judge {Junior Division}) in
the year 1980. Thereafter he was
promoted on the next higher post of Civil
Judge (Senior Division) substantively in
the year 1990. He was further promoted to
the cadre of Higher Judicial Service in the
year 2000, under Rule 22(3) of U.P.
Higher Judicial Service Rules, 1975
(hereinafter referred to as '1975 Rules).
On all these posts the petitioner worked
with utmost devotion, sincerity, integrity
and in accordance with well established
judicial norms. And to the best of his
knowledge, during the entire period of
about 26 years of his service, the work
and conduct of the petitioner has been
unblemished. No complaint, whatsoever,
was ever brought to the notice of the
petitioner. The petitioner understands and
believes that the Hon'ble High Court
granted to the petitioner promotion to the
rank of Civil Judge (Senior Division)
substantively and to the post of Additional
3 All] Jai Vir Singh V. State of U.P. and another
957
District Judge in the cadre of U.P. Higher
Judicial Service under Rule 22(3) of the
1975 Rules after careful, appropriate and
effective evaluation of the merit of his
work and conduct including efficiency,
honesty and integrity reflected on its
record. All of a sudden, without any
material the petitioner has been presumed
to be dishonest in performing his judicial
duties on extraneous consideration or
anxiety to unduly favour a party and
thereby guilty of misconduct and a charge
sheet dated 25.10.2004 was served upon
the petitioner on 16.11.2004 vide letter
dated 28.10.2004 through District Judge,
Pilibhit where the petitioner was working
as Additional District Judge. A true copy
of the communication dated 28.10.2004
along with charge-sheet dated 25.10.2004
is on record as Annexure-4 of the writ
petition. By this charge memo an
allegation
was
levelled
against
the
petitioner
that
on
16.1.2001
while
working as IV th Additional District
Judge, Ghaziabad, he had decided a
reference case without proper reference
and thereby unduly favoured the claimant
in the said decision, against all judicial
norms and propriety for extraneous
consideration, thus committed misconduct
within the meaning of Rule 3 of U.P.
Government Servant Conduct Rules 1956
(hereinafter referred to as 1956 Rules) and
the petitioner was asked to file written
reply within stipulated time. In response
to the said charge-sheet the petitioner has
submitted his written reply on 20.1.2005
through proper channel, a true copy
whereof is on record as Annexure 5 to the
writ petition. Before the Hon'ble Enquiry
Judges also the petitioner has submitted a
written submission dated 3.9.2005. A true
copy whereof is on record as Annexure-6
to the writ petition. Thereafter Hon'ble
Enquiry Judges have held inquiry against
the petitioner and submitted their inquiry
report
dated
14.9.2005 holding
the
petitioner guilty of charge levelled in the
charge-sheet. A true copy of inquiry
report is on record as Annexure-2 of the
writ petition. Thereupon the Registrar
(Confidential) High Court, Allahabad
vide letter dated 21.9.2005 has invited the
comments of the petitioner against the
findings of Hon'ble Enquiry Judges, in
response to which the petitioner has
submitted his comments dated 22.10.2005
through proper channel, a true copy
whereof is on record as Annexure-3 to the
writ petition. The said inquiry report was
approved in Full Court meeting of this
Court and the penalty of reduction in rank
was recommended thereby to the State
Government. Thereupon while acting
upon the said recommendation the State
Government has passed the impugned
order reducing the petitioner in rank from
his substantive post of Civil Judge (Senior
Division) to the post of Civil Judge
(Junior Division), hence this petition.

3. It is further stated that a dispute
giving rise cause of action of aforesaid
disciplinary inquiry was that a land
bearing Khasra No.437 ad-measuring an
area about 3 Bighas 4 Biswa situated in
village Dasna under Govind Puram
Scheme, Ghaziabad belonging to Wing
Commander P.D. Bali was acquired under
the provisions of the Land Acquisition
Act, 1894, hereinafter referred to as the
'Act'. It is stated in the writ petition that
besides earth, on the land acquired, 7500
trees
of
Eucalyptus
were
standing
thereon; there existed construction of two
rooms, two hand pumps, one room
housing boring of 5" diameter and a
boundary wall on the four sides of the
land. There were also tree of Guava,
Mango, Neem, Adoo. There was also a
958 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Samadhi on the land. After usual
formalities were gone through, the Special
Land Acquisition Officer determined the
compensation vide, allegedly exparte,
award dated 7.12.1990 confined only in
respect of the earth, at the rate of Rs.71.43
per square yard. The Special Land
Acquisition Officer did not determine the
compensation in respect of the trees and
superstructure standing on the earth,
although he was legally required to do so
in view of the fact that the expression
'land' includes earth as well as benefits
arise out of land and things attached to the
earth or permanently fasten to anything
attached to the earth vide Clause (a) of
Section 3 of the Act; and that in view of
the fact that Section 11(1) of the Act
requires that the award must include,
inter-alia, the compensation which ought
to be allowed for the land as defined in
Section 3 (a) of the Act. The award dated
7.12.1990 did not comply fully the
requirements of Section 11 of the Act, and
was,
obviously,
incomplete.
The
compensation of the earth of the land
determined by the award dated 7.12.1990
was neither paid to nor accepted by Wing
Commander P.D. Bali till the year 1997.
In the meantime, he filed Civil Misc. Writ
Petition
No.22274
of
1993,
Wing
Commander P.D. Bali Vs. State of U.P.
and others, before this Court, initially
challenging the acquisition proceedings,
lateron, by amendment application, he
also prayed for restoration of the land
under proviso to Section 17(1) of the U.P.
Urban Planning and Development Act,
1973. It was also stated that P.D. Bali had
also applied to the State Government for
restoration of the land vide his application
dated 17th April, 1994 but the State
Government had not decided the same.
This Court, without going into the merits
of the claim of Wing Commander P.D.
Bali, disposed of the writ petition finally,
vide order dated 15th May, 1996 with the
direction to the State Government to
dispose of the application of Wing
Commander P.D. Bali dated 17th April,
1994 within two months from the date of
production of a certified copy of the
order, by a speaking order after hearing
Wing Commander P.D. Bali as well as
Ghaziabad Development Authority. In
compliance of the order of this Court
dated
15th
May,
1996
the
State
Government considered the application of
Wing Commander P.D. Bali dated 17th
April, 1994 and disposed of vide order
dated 20th July, 1996 holding that it is
true that uptil now compensation has been
awarded only in respect of land (earth)
but thereafter award in respect of trees
and superstructure standing on the land on
the basis of development of land shall
surely be made. A true copy of the order
of State Government dated 20th July, 1996
is on record as Annexure-7 to the writ
petition.

4. Thereafter on the strength of the
observation of the State Government, the
exercise
of
determination
of
the
compensation in respect of trees and
construction etc. standing on the acquired
land was undertaken by the Additional
Collector (Land Acquisition) Ghaziabad
and the exercise was culminated into
supplementary award dated 10.8.1997
(wrongly mentioned in the charge sheet
served
on
the
petitioner
as
dated
30.8.1997). It is submitted that the award
dated 7.12.1990 came to be completed on
10.8.1997 when the supplementary award
was given and the requirement of Section
11 of the Act stood fully satisfied. It is
further submitted that the award dated
7.12.1990 would be deemed to be
3 All] Jai Vir Singh V. State of U.P. and another
959
incomplete
till
the
delivery
of
supplementary award dated 10.8.1997.

5. It is further stated in the writ
petition that Wing Commander P.D. Bali
did not accept the offer of compensation
made to him through the awards dated
7.12. 1990 and 10.8.1997 as he was not
satisfied
with
the
quantum
of
compensation determined by the Special
Land Acquisition Officer offered to him
and on 8.9.1997 the Wing Commander
P.D. Bali submitted an application under
Section 18 of the Land Acquisition Act
1894 before Addl. Collector (L.A.)
(Irrigation)
Ghaziabad
for
making
reference
before
the
court
for
determination of compensation of land as
well as trees and superstructure standing
on the land. It is pointed out that Wing
Commander P.D. Bali had never applied
for reference under Section 18 of the Act
in respect of the determination of
compensation offered to him through
award dated 7.12.1990 which fact is
admitted on record by the Additional
Collector in his referral order passed
under Section 19 of the Act as well as by
E.W. '1', Sri Rajendra Kumar Tyagi,
Legal
Assistant
of
the
Ghaziabad
Development
Authority
before
the
Hon'ble Enquiry Judges, presumably, he
waited for finality of award which was
accomplished on the delivery of the
supplementary award dated 10.8.1997.
The claim of Wing Commander P.D. Bali
under Section 18 of the Act, for
determination by the Court, was referred
to by the Additional Collector (Land
Acquisition), Ghaziabad. A true copy of
the referral order is on record as
Annexure-9 to the writ petition. Vide his
judgement and order dated 16.1.2001, the
petitioner decided the reference. He
decided
the
objections
of
Wing
Commander P.D. Bali on the basis of oral
evidence produced by the parties and the
documentary evidence in the shape of
examplers produced by Wing Commander
P.D.
Bali
alone.
No
documentary
evidence was produced either on behalf of
the State Government or on behalf of
Ghaziabad
Development
Authority,
Ghaziabad
leaving
the
documentary
evidence produced by Wing Commander
P.D. Bali unrebutted. The fact that no
documentary evidence was produced on
behalf of State Government or Ghaziabad
Development Authority, Ghaziabad has
also been admitted by E.W. '1' Sri
Rajendra Kumar Tyagi before the Hon'ble
Enquiry Judges. However, while deciding
the reference, the petitioner kept in mind
the provisions of Sections 23 and 24 as
well as other relevant provisions of the
Act and the guidance given by the
Hon'ble Supreme Court of India, Hon'ble
Privy Council and the Hon'ble High
Courts. The petitioner observed all
judicial norms and propriety and decided
the objection of the claimant Wing
Commander P.D. Bali without any other
consideration much less any extraneous
consideration as inferred and presumed in
the enquiry report dated 14th September,
2005 without any basis. In the date events
chart filed in the writ petition, it is shown
that claimant has filed First Appeal
No.365 of 2001 Wing Commander P.D.
Bali Vs. State of U.P. and others against
the decision rendered by the petitioner in
L.A.R. No.624 of 1997 and Ghaziabad
Development Authority, Ghaziabad has
also filed First Appeal No.466 of 2002
Ghaziabad Development Authority Vs.
Wing Commander P.D. Bali against the
same decision before this Court.

6. On the basis of assertions made in
the pleadings of the writ petition, learned
960 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Senior Counsel Sri Shashi Nandan,
Advocate appearing for the petitioner has
submitted
that
the
petitioner
was
appointed as Munsif (Civil Judge {Junior
Division}) in the year 1980. He was
promoted as Civil Judge (Senior Division)
substantively in the year 1990. He was
further promoted to the Cadre of U.P.
Higher Judicial Service and appointed as
Additional District Judge in the year 2000
under Rule 22(3) of 1975 Rules. On all
these posts the petitioner worked with
utmost devotion, sincerity, integrity and
in accordance with the well established
judicial norms. And, to the best of his
knowledge, during the entire period of
about 26 years of his service the work and
conduct of the petitioner has been
unblemished. No complaint, whatsoever,
was ever brought to the notice of the
petitioner. The petitioner understands and
believes that the Hon'ble High Court
granted to the petitioner promotion to the
rank of Civil Judge (Senior Division)
substantively and to the post of the
Additional District Judge in the cadre of
U.P. Higher Judicial Service under Rule
22(3) of 1975 Rules after careful,
appropriate and effective evaluation of the
merit of his work and conduct, including
efficiency, honesty and integrity reflected
on its record. All of a sudden and without
any material the petitioner has been
presumed to be dishonest in performing
his
judicial
duties
on
extraneous
consideration or anxiety to unduly favour
a party and thereby guilty of misconduct.
To the best of the knowledge of the
petitioner, there is no statable data to
buttress the presumption or inference of
his dishonesty or performance of judicial
duties for extraneous consideration or
anxiety to unduly favouring a party
leading to the guilt of alleged misconduct.
Indeed, there is utter dearth of evidence in
this regard. There being absolutely no
evidence on record or otherwise giving
rise to the presumption or inference of
dishonesty or performance of judicial
duties for extraneous consideration or
anxiety to unduly favouring a party
indicating
alleged
misconduct,
the
inferential finding holding the petitioner
guilty of misconduct is totally arbitrary
and perverse. The Hon'ble Enquiry Judges
have also not specifically concluded in
enquiry report regarding misconduct of
petitioner. Thus, charge levelled against
the petitioner remains unproved.

7.

While
elaborating
and
substantiating his submission Sri Shashi
Nandan,
learned
Senior
Counsel
appearing for the petitioner has submitted
that the misconduct implies a wrongful
intention and not a mere error of
judgment or decision. What is of
relevance is not the correctness or legality
of the judgment or decision. There is no
evidence
to
demonstrate
that
the
petitioner was actuated by any wrongful
intention
in
rendering
the
judgment/decision giving rise to the
controversy. At best, there may be some
legal error in the judgment/decision
rendered by the petitioner, which is not
admitted. But, the alleged error does not
constitute the fulcrum of any misconduct
by the petitioner. In the context of the
charge of alleged misconduct, it is further
submitted that erroneous interpretation of
law in the judgment in question, if any,
which is not admitted, has not been held
to be misconduct by this Hon'ble Court
and the Hon'ble Supreme Court of India.
It is also submitted that the possibility of
any inference or conclusion other than the
one drawn and arrived at in the judgment
in question, which is not admitted, has not
been held to be misconduct by this
3 All] Jai Vir Singh V. State of U.P. and another
961
Hon'ble Court and the Hon'ble Supreme
Court of India. The alleged error in the
judgment/decision
rendered
by
the
petitioner cannot be held to reflect on his
integrity. The error, if any, does not show
prima
facie
or
otherwise
that
the
judgment/decision was given by the
petitioner for extraneous consideration of
any kind. No motives could be attributed
to the petitioner on the basis of the alleged
error. In any event as held by the Hon'ble
Supreme Court of India in the case of
K.P. Tiwari Vs. State of M.P., JT 1993
(6) SC 287, (para 4 at the page 289), our
legal system acknowledges the fallibility
of judges and hence provides for appeals
and revisions. In the said case it has
further been held that a judge who has not
committed an error is yet to be born. And
this applies to the judges at all levels from
the lowest to the highest. The Hon'ble
Supreme
Court
also
cautioned
that
attributing motives is that surest way to
take the judiciary downhill.

8. It is further submitted that the
error, if any, alleged to have been
committed by the petitioner, is not so
grave as to invite the extreme two
penalties of reductions in rank, namely,
reversion from the post of Additional
District Judge (officiating) to the post of
Civil
Judge
(Senior
Division)
(substantive) and from the rank of Civil
Judge (Senior Division) to the rank of
Civil Judge (Junior Division). It is also
submitted that material, such as any
complaint
or
inspection
report
or
preliminary report, if any, which formed
the basis of initiation of the departmental
enquiry
for
alleged
extraneous
consideration or anxiety to unduly favour
the claimant has not be furnished, though
it is the mandate of the principles of
natural justice as has been held, times out
of number, by this Hon'ble Court as well
as the Hon'ble Supreme Court of India.
The
punishment
inflicted
upon
the
petitioner is highly disproportionate to the
gravity
of
the
alleged
charge
of
misconduct and violative of the Article 14
of the Constitution of India. A penalty
disproportionate to the gravity of the
misconduct being violative of the Article
14 of the Constitution of India is liable to
be annulled. The enquiry report dated 14th
September, 2005 which is the foundation
of the order of punishment, is based on
conjectures and surmises. Thus, it is not
sustainable in law and is liable to be
quashed.
The
impugned
order
of
punishment dated 17th January 2006 as
well as its foundation i.e. the enquiry
report dated 14th September 2005 both are
wholly
illegal
and
arbitrary,
they
eminently deserve to be quashed. In
support of his submission learned counsel
for the petitioner has cited several
decisions to which we will refer a little
latter.

9. A detailed counter affidavit has
been filed on behalf of the High Court in
justification of the impugned action taken
against the petitioner, the pertinent
averments made therein will be referred
by us hereinafter at appropriate places.

10. We have heard Sri Shashi
Nandan, learned Senior Counsel assisted
by Sri Swapnil Kumar Advocate for the
petitioner and Sri. K.R. Sirohi, learned
Senior Counsel assisted by Sri Rajiv
Gupta for the High Court and learned
Standing
Counsel
for
the
State
Government and also perused the original
records summoned by us during the
course of the hearing of the writ petition.
962 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
11. In view of the aforesaid
submission the first question which arises
for our consideration is that what
constitutes
'misconduct'?
In
this
connection it is necessary to point out that
the 1956 Rules is applicable to the
petitioner and said rules prescribes the
code of conduct to be observed by the
petitioner.
Although
the
expression
'misconduct' has not been defined under
the 1956 Rules but various provisions
have been made thereunder to regulate the
conduct of the Government servants. For
instance Rule 3 of the said Rules provides
that every Government servant shall at all
times maintain absolute integrity and
devotion to duty and conduct himself in
accordance with specific or implied
orders
of
Government
regulating
behaviour and conduct which may be in
force. It implies that any conduct
unbecoming to the Government servants
would be misconduct.

12. A similar controversy has drawn
attention of Hon'ble Apex Court in Union
of India and others Vs. J. Ahmed A.I.R.
1979 SC 1022, wherein similar rule
namely All India Service Conduct Rules
1954 was under consideration. In para 10
of the decision Hon'ble Apex Court has
formulated the question as to what
generally constitutes misconduct specially
in the context of disciplinary proceedings
entailing penalty? While adverting to the
said question in para 11 and 12 of the
decision the Hon'ble Apex Court observed
as under:-

"11. 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 ) (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 Division, 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 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
3 All] Jai Vir Singh V. State of U.P. and another
963
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, 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
(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.

12. The High Court was of the
opinion that misconduct in the context of
disciplinary
proceeding
means
misbehaviour involving some form of
guilty mind or mens rea. We find it
difficult to subscribe to this view because
gross
of
habitual
negligence
in
performance of duty may not involve mens
rea but may still constitute misconduct for
disciplinary proceedings."

13. Again in State of Punjab Vs.
Ram Singh Ex-constable A.I.R. 1992
S.C. 2188, single instance of heavy
drinking of alcohol by constable while on
duty
was
held
gravest
misconduct
warranting his dismissal from service. In
this case the Hon'ble Apex Court has
interpreted the expression 'misconduct' by
taking assistance of the definition of
'misconduct' as given in Black's Law
Dictionary and Aiyar's Law Lexicon and
observed 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,
964 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
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
judgement, 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."

14. Thus from the afore-stated legal
position enunciated by Hon'ble Apex
Court, it is clear that code of conduct as
set out under Conduct Rules clearly
indicates the conduct expected of a
member of service. It would follow that
the 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. A disregard of an essential
condition of the contract of service may
constitute misconduct. In Stroud's Judicial
Dictionary the expression 'Misconduct'
means,
misconduct arising from ill
motive; acts of negligence, errors of
judgment, or innocent mistake, do not
constitute
such
misconduct.
In
S.
Govinda Menon's case (supra) it was
held that a member of 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 held in P.H. Kalyani's
case (supra), 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, negligence
in work in the context of serious
consequences was treated as misconduct.
In J. Ahmed's case (supra) Hon'ble
Apex Court has further went on observing
that 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.
In
industrial
jurisprudence
amongst
others, habitual or gross negligence
constitute misconduct. It was further
observed in para 12 of the decision that
the opinion of the High Court that
misconduct in context of disciplinary
proceeding
means
misbehaviour
involving some form of guilty mind or
mens rea could not be held to be a correct
approach. According to the Hon'ble Apex
Court the expression 'misconduct' does
not necessarily involve ill motives or
mens rea as necessary con-committant of
it. It implies that there may be misconduct
without any misbehaviour involving some
form of guilty mind or mens- rea such as
gross
or
habitual
negligence
in
performance of duty may not involve
mens
rea
but
may
still
constitute
misconduct for disciplinary proceeding.
3 All] Jai Vir Singh V. State of U.P. and another
965
In view of aforesaid discussion, we are of
the considered opinion that it is not that
misbehaviour involving some ill motive
or mens rea which alone is to be seen
rather the negligence or recklessness in
discharge of duty and a lapse in
performance of duty or error of judgment
may also be looked into in context of
consequences directly attributable to such
negligence. However, in State of Punjab
Vs. Ram Singh (supra) the Hon'ble Apex
Court has interpreted the expression
'misconduct' to mean that mere error in
judgement, carelessness or negligence in
performance of duty are not misconduct.
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
statute and the public purpose it seeks to
serve.

15. Now next question, which arises
for consideration is that as to whether the
authority
enjoys
immunity
from
disciplinary proceedings with respect to
matters decided by him in exercise of
judicial or quasi judicial functions? In this
connection, it is necessary to point out
that while taking note of earlier decision
rendered in S. Govinda Menon' case
(supra) and Union of India Vs. A. N.
Saxena A.I.R. 1992 SC, 1233 in Union of
India Vs. K.K. Dhawan A.I.R. 1993 SC,
1478 the Hon'ble Apex Court has dealt
with the question in issue in quite detail in
paras 16 to 29 of the decision. It would be
useful to reproduce the observations made
in paras 16 to 19, 26, 28 and 29 of the
decision as under:-

"16. In Govinda Menon v. Union of
India, AIR 1967 SC 1274, it was
contended
that
no
disciplinary
proceedings could be taken against
appellant for acts or omissions with
regard to his work as Commissioner under
Madras Hindu Religious and Charitable
Endowments Act, 1951. Since the orders
made by him were quasi-judicial in
character, they should be challenged only
as provided for under the Act. It was
further contended that having regard to
scope of Rule 4 of All India Services
(Discipline and Appeal) Rules, 1955, the
act or omission of Commissioner was
such that appellant was not subject to the
administrative control of the Government
and
therefore,
the
disciplinary
proceedings were void. Rejecting this
contention, it was held as under (at
pp.1278-79) of AIR):
"It
is
not
disputed
that
the
appropriate Government has power to
take disciplinary proceedings against the
appellant and that he could be removed
from service by an order of the Central
Government, but it was contended that
I.A. S. Officers are governed by statutory
rules, that 'any act or omission' referred
to in Rule 4(i) relates only to an act or
omission of an officer when serving under
the Government means subject to the
administrative control of the Government
and that disciplinary proceedings should
be, therefore, on the basis of the
relationship of master and servant. It was
argued that in exercising statutory powers
the Commissioner was not subject to the
administrative control of the Government
and disciplinary proceedings cannot,
therefore,
be
instituted
against
the
appellant in respect of an act or omission
committed by him in the course of his
employment as Commissioner. We are
unable
to
accept
the
proposition
contended for by the appellant as correct.
Rule 4(i) does not impose any limitation
or qualification as to the nature of the act
966 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
or
omission
in
respect
of
which
disciplinary
proceedings
can
be
instituted. Rule 4(1)(b) merely says that
the appropriate Government competent to
institute disciplinary proceedings against
a member of the Service would be the
Government under whom such member
was serving at the time of the commission
of such act or omission. It does not say
that the act or omission must have been
committed in the discharge of his duty or
in the course of his employment as a
Government servant. It is, therefore, open
to the Government to take disciplinary
proceedings against the appellant in
respect of his acts or omissions which
cast a reflection upon his reputation for
integrity or good faith or devotion to duty
as a member of the service. It is not
disputed that the appellant was, at the
time of the alleged misconduct, employed
as the First Member of the Board of
Revenue and he was at the same time
performing the duties or Commissioner
under the Act in addition to his duties as
the First Member of the Board of
Revenue. In our opinion, it is not
necessary that a member of the Service
should have committed the alleged act or
omission in the course of discharge of his
duties as a servant of the Government in
order that it may form the subject matter
of disciplinary proceedings. In other
words, if the act or omission is such as to
reflect on the reputation of the officer for
his integrity or good faith or devotion to
duty, there is no reason why disciplinary
proceedings should not be taken against
him for that act or omission even though
the act or omission relates to an activity
in regard to which there is no actual
master and servant relationship. To put it
differently, the test is not whether the act
or omission was committed by the
appellant in the course of the discharge of
his duties as servant of the Government.
The test is whether the act or omission
was some reasonable connection with
nature and condition of his service or
whether the act or omission has cast any
reflection upon the reputation of the
member of the Service for integrity or
devotion to duty as a public servant.