# Mohd. Anees Khan v. U.P. State Transport Corporation & Ors

- **Citation:** (2014) 2 ILRA 963
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-14
- **Case number:** Service Single No. 2753 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-anees-khan-v-u-p-state-transport-corporation-ors-43055
- **Pages:** 10

## Headnote

964 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Anuj Kudesia, Sri Jitendra Bahadur
Singh, Sri Ritesh Kumar Singh

Constitution of India, Art.-226-Dismissal
on basis of award by Motor Accident
Claim
Tribunal-petitioner
not
partypolice report-established that due to
burst of pipe line -break failure-accident
took
place-no
role
in
Technical
or
mechanical fault on part of petitionerwithout disciplinary proceeding-relying
upon award of claim Tribunal-neither
dismissal proper nor recovery can be
inflicted-petition allowed.

Held: Para-8 & 17

## Text

2 All]. Mohd. Anees Khan Vs. U.P. State Transport Corporation & Ors.
963

"The second issue is "whether the salary
receivable by the claimant on compassionate
appointment comes within the periphery of
the Motor Vehicles act to be termed as
'pecuniary advantage' liable for deduction".

"Compassionate appointment" can be
one of the conditions of service of an
employee, if a scheme to that effect is framed
by the employer. In case, the employee dies
in harness i.e. while in service leaving behind
the dependants, one of the dependants may
request for compassionate appointment to
maintain the family of the deceased
employee who dies in harness. This cannot
be stated to be an advantage receivable by
the heirs on account of one's death and have
no correlation with the amount receivable
under a statute occasioned on account of
accidental
death.
Compassionate
appointment may have nexus with the death
of an employee while in service but it is not
necessary that it should have a correlation
with the accidental death. An employee dies
in harness even in normal course, due to
illness and to maintain the family of the
deceased one of the dependants may be
entitled for compassionate appointment but
that cannot be termed as "pecuniary
advantage" that comes under the periphery of
the Motor Vehicles Act and any amount
received on such appointment is not liable
for
deduction
for
determination
of
compensation under the Motor Vehicles act.
"

11. In the case of Helen C.Rebello
Vs. Maharashtra, reported in S.R.T.C.,
1999 (1) SCC, 90, Apex Court has
observed that the family pension is also
earned by an employee for the benefit of
his family in the form of his contribution
in service in terms of the service
conditions receivable by the heirs after his
death. The heirs receive family pension
even otherwise than the accidental death.
There is no co-relation between the two.

12. Following the aforesaid decision,
the Division Bench of this Court in First
Appeal From Order No.84 of 1998, Sharad
Kumar Singh and Ors. Vs. Kanhaiya Lal
Mishra and Ors., decided on 24.08.2012 and
in First Appeal From Order No.2292 of
2012, United India Insurance Co. Ltd. Vs.
Smt. Rajni Kumari and others, decided on
30.05.2012 and in First Appeal From Order
No.2646 of 2012, The New India Assurance
Co. Ltd. Vs. Smt. Roop Tiwari and others,
decided on 06.07.2012 has held that the
family pension after the death of the
deceased is not liable to be deducted for the
computation of the income.

13. We do not find any merit in the
present
appeal,
which
requires
interference by this Court. The appeal
fails and is, accordingly, dismissed.

14. Office is directed to remit back
the statutory amount to the concerned
Tribunal within a period of four weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No. 2753 of 2007

Mohd. Anees Khan ...Petitioner
Versus
U.P. State Transport Corporation & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri M.R. Siddiqui, Sri Satya Prakash, Sri
Som Nath, Sri Virendra Kumar Shukla.

Counsel for the Respondents:
964 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Anuj Kudesia, Sri Jitendra Bahadur
Singh, Sri Ritesh Kumar Singh

Constitution of India, Art.-226-Dismissal
on basis of award by Motor Accident
Claim
Tribunal-petitioner
not
partypolice report-established that due to
burst of pipe line -break failure-accident
took
place-no
role
in
Technical
or
mechanical fault on part of petitionerwithout disciplinary proceeding-relying
upon award of claim Tribunal-neither
dismissal proper nor recovery can be
inflicted-petition allowed.

Held: Para-8 & 17
8. In view thereof, I have no hesitation
in holding that respondents-UPSRTC has
miserably failed to prove charge against
petitioner as virtually no inquiry has
been
conducted
against
him
and
therefore, order of recovery is not
sustainable.

17. In view of the aforesaid exposition
of law and considering the allegations
contained in the order and charge sheet,
I am of the view that the allegations
levelled against the petitioner do not
amount to 'misconduct'. The impugned
order, therefore, cannot sustain.

Case Law discussed:
[2010 ADJ 1 (SFB) (LB)]; AIR 1979 SC 1022;
(1992) 4 SCC 54; 2004 (5) SCC 689.

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

1. Heard Sri Virendra Kumar
Shukla, learned counsel for the petitioner
and Sri Jitendra Bahadur Singh, Advocate
for the respondents.

2. Admittedly, petitioner is a Driver
in
Uttar
Pradesh
State
Roadways
Transport
Corporation
(hereinafter
referred to as "UPSRTC"). On 5.11.1996,
he was driving bus no.U.P.42 B/2573
when he met an accident in which a
person died. The police made inquiry and
found that air pipe of vehicle got burst as
a result whereof break and emergency
break both did not function and it resulted
in the accident.

3. The heirs of deceased person filed
a claim petition before Motor Accident
Claims Tribunal numbered as MACP
No.212/70/96 in which compensation of
Rs.1,54,598/- along with interest was
granted. Thereafter, a charge sheet was
issued to the petitioner and Enquiry
Officer submitted report, Annexure 7 to
the writ petition, in which instead of
getting
the
charge
proved
by
the
department or considering petitioners
defence, simply relying on order passed
by Motor Accident Claims Tribunal that
compensation was awarded therein as a
result of accident, petitioner was held
guilty of compensating UPSRTC by
directing to pay to the extent of amount of
compensation was awarded. Pursuant
thereto the impugned order of recovery of
Rs.1,54,598/-
has
been
issued
by
Assistant Regional Manager, UPSRTC,
Faizabad Region, Faizabad.

4. Counsel for the petitioner
submitted:

i. The charge has not been proved by
respondent still the impugned order of
punishment has been passed.

ii. In any case, once accident
occurred on account of technical and
mechanical fault in the vehicle, there was
no negligence on the part of the petitioner
and there was no misconduct whatsoever
and no penalty could have been imposed.

5. Counsel for the respondents tried
to justify the order impugned in the writ
petition on the basis of reasons stated
2 All]. Mohd. Anees Khan Vs. U.P. State Transport Corporation & Ors.
965
therein though he admits that except
relying on award dated 10.12.1999 passed
by Motor Accident Claims Tribunal, there
is no other finding in respect to proof of
guilt of petitioner.

6. The award of Tribunal could not
have been read in evidence so as to prove
the guilt of negligence against petitioner,
inasmuch as, neither this issue was
considered by Tribunal nor petitions was
a party therein so as to have any
opportunity to defend himself. The
Tribunal's award is an evidence only to
show that claim was made and a
particular order of compensation was
passed by Tribunal. It could not have been
treated to be an evidence for any other
purpose, moreso, to hold petitioner guilty
of negligence but neither there was an
issue therein nor any finding in this
respect after giving opportunity to the
petitioner has been recorded.

7. Dealing with admissibility of
judgment, as an evidence, the matter has
been examined by Special Bench of this
Court in The Sunni Central Board of
Waqfs U.P. Lucknow Vs. Sri Gopal Singh
Visharad, [2010 ADJ 1 (SFB) (LB)] and
in the judgment delivered by myself
(Hon'ble Sudhir Agarwal, J.) in paras
3038, 3039, 3040, 3342 to 3344, said:

"3038. Moreover, a judgment by
itself is not a piece of evidence except to
the extent it is provided under Section 41
to 43 of the Evidence Act.

3039. In the context of Section 43 of
Evidence Act, it is no doubt true that a
judgment is admissible provided it is a
relevant fact in issue as held in Seth
Ramdayal Jat Vs. Laxmi Prasad (Supra).
In a civil case, the judgment of a Criminal
Court may be relevant where the fact in
issue is about the existence of such a
judgment or not, but not more than that.
The evidence discussed in the judgment of
a Criminal Court or the fact that a person has
confessed his guilt in his statement is not
admissible in evidence in a civil suit. This is
what was held in Perumal Vs. Devarajan &
others AIR 1974 Mad. 14 and was quoted
with approval in Seth Ramdayal Jat (supra).
The Apex Court also approved a Patna High
Court decision in Lalmani Devi & others Vs.
Jagdish Tiwary & others AIR 2005 Pat. 51.
The Court said that acquittal or conviction in
a criminal case has no evidentiary value in a
subsequent civil litigation except for the
limited purposes of showing that there was a
trial resulting in acquittal or conviction, as
the case may be. The findings of the
Criminal Court are inadmissible. The Apex
Court also followed its earlier decision in
Anil Behari Ghosh Vs. Smt. Latika Bala
Dassi & others AIR 1955 SC 566 taking the
same view. There appears to be a somewhat
different authority in Shanti Kumar panda
(supra) where an observation was made that
an order passed by the Executive Magistrate
in proceedings under Section 145/146
Cr.P.C. is an order by a Criminal Court
based on a summary inquiry. The order is
entitled to respect and weight before the
competent Court at the interlocutory stage. In
Ramdayal Jat (supra), the Apex Court
observed that this observation in Shanti
Kumar Panda (supra) is per incurrium being
in conflict of a three-Judges decision in K.G.
Premshanker Vs. Inspector of Police &
another JT 2002 (8) SCC 87. The argument
of possibility of conflict in decisions was
rejected in Seth Ramdayal Jat (supra) stating:

"27. In regard to the possibility of
conflict in decisions, it was held that the
law envisages such an eventuality when it
expressly refrains from making the
966 INDIAN LAW REPORTS ALLAHABAD SERIES
decision of one Court binding on the
other, or even relevant, except for certain
limited purposes, such as sentence or
damages. It was held that the only
relevant consideration was the likelihood
of embarrassment."

3040. The Court further held that the
Civil Court must decide a suit on its own
keeping in view the evidence which have
been brought on record before it and not
in the light of the evidence brought on
record in the criminal proceedings. The
Court also observed that an earlier
decision in M/s Karam Chand Ganga
Prasad & another Vs. Union of India &
others 1970 (3) SCC 694 holding that the
decision of the Civil Court will be binding
on the Criminal Courts but the converse is
not
true
was
overruled
in
K.G.
Premshanker (supra) and this fact has
been noticed also in Syed Askari Hadi Ali
Augustine Imam & another Vs. State
(Delhi Administration) & another JT 2009
(4) SC 522."

"3342. Moreover, admissibility of
judgements as evidence has to be
considered in the light of the provisions of
Evidence Act. A document may be
classified for this purpose in three heads,
(1)
documents
which
are
per
se
inadmissible; (2) recitals in judgements
not inter parties; and (3) documents or
judgements post litem motam. If a
judgement is not admissible, not falling
within the ambit of Sections 40-42, it
must fulfil the conditions of Sections 43
otherwise it cannot be relevant under
Section 13 of the Evidence Act. The
words 'other provisions of this Act' used
in Section 43 would not extend to Section
13, because the Section 13 does not deal
with judgements at all. The judgements in
personam do not fulfil the conditions
mentioned in Section 41 of the Evidence
Act, hence, inadmissible. The judgements
not inter parties are inadmissible in
evidence barring exceptional cases. It
would be useful to refer in this regard the
Apex Court's decision in State of Bihar
and others Vs. Sri Radha Krishna Singh
(supra) paras, 123, 126, 127, 128, 129,
131, 133 and 134 as under:

"123. It is now settled law that
judgments
not
inter
parties
are
inadmissible
in
evidence
barring
exceptional cases which we shall point
out hereafter. In Johan Cockrane v.
Hurrosoondurri Debia and Ors.(1854-57)
6 Moo Ind App 494, Lord Justice Bruce
while dealing with the question of
admissibility of a judgment observed as
follows:

"With regard to the judgment of the
Supreme
Court,
it
is
plain,
that
considering the parties to the suit in which
that judgment was given, it is not
evidence in the present case.... We must
recollect, however, not only that that suit
had a different object from the present,
independently of the difference of parties,
but that the evidence here is beyond, and
is different from, that which was before
the Supreme Court upon the occasion of
delivering that judgment."

"126. In the case of Gujju Lall v.
Fatteh Lall, (1881) ILR 6 Cal 171 a Full
Bench exhaustively considered the ambit
and scope of Ss 40 to 43 of the Evidence
Act and observed thus:

"On the other hand, when in a law
prepared for such a purpose, and under
such circumstances, we find a group of
several sections prefaced by the title
"Judgments of Courts of Justice when
2 All]. Mohd. Anees Khan Vs. U.P. State Transport Corporation & Ors.
967
relevant," that seems to be a good reason
for thinking that, as far as the Act goes,
the relevancy of any particular judgment
is to be allowed or disallowed with
reference to those sections.

... ... ...

I have had the opportunity of reading
the judgment which the Chief Justice
proposes
to
deliver,
as
well
the
observations of my brother Pontifex, in
both of which I generally concur, and for
the reasons there stated, and those which I
have shortly given, I consider the
evidence inadmissible."

And Garth, C. J. made the following
observations:

". . . it is difficult to conceive why,
under Section 42, judgments though not
between the same parties should be
declared admissible so long as they
related to matters of a public nature, if
those very same judgment had already
been made admissible under Section 13,
whether they related to matters of a public
nature or not.

... ... ...

I am, therefore, of the opinion that
the former judgment was not admissible
in the present suit."

(Emphasis ours)"

"127. In Gadadhar Chowdhury and
Ors. v. Sarat Chandra Chakravarty and
Ors.(1940)44 Cal WN 935: (AIR 1941
Cal 193) it was held that findings in
judgments not inter parties are not
admissible in evidence."

"128. This, in our opinion, is the
correct legal position regarding the
admissibility of judgments not inter
parties."

"129. . . . . so far as regards the truth
of the matter decided a judgment is not
admissible evidence against one who is a
stranger to the suit has long been accepted
as a general rule in English law.

"The judgment is not inter parties,
nor is it a judgment in rem, nor does it
relate to a matter of a public nature. The
existence of the judgment is not a fact in
issue; and if the existence of the judgment
is relevant under some of the provisions
of the Evidence Act it is difficult to see
what inference can be drawn from its use
under these sections"

"Serious consequences might ensue
as regards titles to land in India if it were
recognised that a judgment against a third
party altered the burden of proof as
between rival claimants, and much
'indirect laying' might be expected to
follow therefrom"(Emphasis supplied)"

"131. We entirely agree with the
observations made by the Privy Council
which flow from a correct interpretation
of Sections40 and 43 of the Evidence
Act."

"133. . . . . judgment which is not inter
parties is inadmissible in evidence except for
the limited purpose of proving as to who the
parties were and what was the decree passed
and the properties which were the subject
matter of the suit. In these circumstances,
therefore, it is not open to the plaintiffsrespondents to derive any support from some
of the judgments which they have filed in
order to support their title and relationship in
968 INDIAN LAW REPORTS ALLAHABAD SERIES
which neither the
plaintiffs nor the
defendants were parties. Indeed, if the
judgments are used for the limited purpose
mentioned above, they do not take us
anywhere so as to prove the plaintiff's case."

"134. . . . .Declarations by deceased
persons of competent knowledge, made
ante litem motam, are receivable to
prove ancient rights of a public or
general
nature.
The
admission
of
declarations as to those rights is allowed
partly on the ground of necessity, since
without such evidence ancient rights
could rarely be established; and partly
on the ground that the public nature of
the rights minimises the risks of misstatement."

3343. In respect to the delcarations
made post litem the Apex Court in the
above case made observations in para 135
and 136 as under:

"135. . . . . It is equally well settled
that declarations or statements made post
litem motam would not be admissible
because in cases or proceedings taken or
declarations made ante litem motam, the
element of bias and concoction is
eliminated.
Before,
however,
the
statements of the nature mentioned above
can be admissible as being ante litem
motam they must be not only before the
actual existence of any controversy but
they should be made even before the
commencement of legal proceedings.......

"To obviate bias, the declarations
must have been made ante litem motam,
which means not merely before the
commencement of legal proceedings, but
before even the existence of any actual
controversy,
concerning
the
subject
matter of the declarations. . . . ."

"136 . . . . The reason for this rule
seems to be that after a dispute has begun or
a legal proceeding is about to commence,
the possibility of bias, concoction or putting
up false pleas cannot be ruled out. This rule
of English law has now been crystallised as
one of the essential principles of the
Evidence
Act
on
the
question
of
admissibility of judgments or documents. . .
. In fact, Section 32(5) of the Evidence Act
itself fully incorporates the doctrine of post
litem motam the relevant portion of which
may be extracted thus:

"32. Cases in which statement of
relevant fact by person who is dead or
cannot be found, etc., is relevant

(5)
...the
person
making
the
statement
had
special
means
of
knowledge, and when the statement was
made before the question in dispute was
raised."

3344. Here we may also refer to para
143 of the above judgments where the
Apex Court summerized ratio of the
various authorities on the above aspects of
the matter and said:

"143. Thus, summarising the ratio of
the authorities mentioned above, the
position that emerges and the principles
that are deducible from the aforesaid
decisions are as follows:

(1) A judgment in rem e. g.,
judgments or orders passed in admiralty,
probate proceedings, etc., would always
be admissible irrespective of whether they
are inter parties or not,

(2) judgments in personam not inter
parties are not at all admissible in
evidence except for the three purposes
mentioned above.
2 All]. Mohd. Anees Khan Vs. U.P. State Transport Corporation & Ors.
969

(3)
On
a
parity
of
aforesaid
reasoning, the recitals in a judgment like
findings given in appreciation of evidence
made
or
arguments
or
genealogies
referred to in the judgment would be
wholly inadmissible in a case where
neither the plaintiff nor the defendant
were parties.

(4)
The
probative
value
of
documents which, however ancient they
may be, do not disclose sources of their
information
or
have
not
achieved
sufficient notoriety is precious little.

(5)
Statements,
declarations
or
depositions, etc., would not be admissible
if they are post litem motam."

8. In view thereof, I have no
hesitation in holding that respondentsUPSRTC has miserably failed to prove
charge against petitioner as virtually no
inquiry has been conducted against him
and therefore, order of recovery is not
sustainable.

9. There is another aspect of the
matter more serious and goes to the root
of the case. The Police submitted report
holding that air pipe of vehicle burst as a
result whereof break and emergency
break failed and did not work, which
resulted in the accident. It is nobody's
case that petitioner has any role in such
mechanical fault of vehicle. It may be due
to lack of maintenance on the part of
UPSRTC itself, but if something has
happened on account of mechanical fault
of the vehicle, can it be said that
consequence thereof i.e. accident, which
occurred and a person died, can be
constitute to be such a negligence on the
part of the petitioner that it amounts to a
misconduct, may be minor, i.e. recovery
from the petitioner. In my view, the
answer
is
clearly
'no'.
The
term
'misconduct'
has
come
across
for
consideration before this Court time and
again and no longer res integra. I have no
hesitation in observing that petitioner
cannot be said to be guilty of misconduct.
On this aspect, my reasons are as under.

10. 'Misconduct' has been defined in
Black's Law Dictionary, Sixth Edition at
page 999:

"A transgression of some established
and definite rule of action a forbidden act,
a
dereliction
from
duty,
unlawful
behavior, wilful in character, improper or
wrong
behavior,
its
synonyms
are
misdemeanor,
misdeed,
misbehavior,
delinquency,
impropriety,
mismanagement,
offence,
but
not
negligence or carelessness."

11. '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."

12. 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
970 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. 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. 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
2 All]. Mohd. Anees Khan Vs. U.P. State Transport Corporation & Ors.
971
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)

14. 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)

15. In the context of Section 31 of
Advocates Act, 1961, the Apex Court in
972 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. 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."

17. In view of the aforesaid
exposition of law and considering the
allegations contained in the order and
charge sheet, I am of the view that the
allegations levelled against the petitioner
do not amount to 'misconduct'. The
impugned order, therefore, cannot sustain.

18. In the result, the writ petition is
allowed.
The
impugned
order
dated
10.4.2007 (Annexure 11 to the writ petition)
is hereby quashed. The petitioner shall be
entitled to all consequential benefits besides
costs, which I quantify to Rs.25,000/-.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2014

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Service Single No. 3991 of 2014

Nagendra Nath Tripathi ...Petitioner
Versus
State Cane Service Authority Lko & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Virendra Kumar Dubey

Counsel for the Respondents:
C.S.C., K.S. Pawar

U.P. Cane Cooperative Service Regulation
1975, Regulation 69-read with Art. 351(A)
of Civil Services Regulation-Dismissal from
service of employee governed by provision
of
Cooperative
Service
Regulationprovision CCA rules not applicable-no
provisions to continue the disciplinary
proceeding-even after retirement-defence
of Court direction-not available-in view of
Apex Court decision of Bhagirathi Jena
case-disciplinary proceeding automatically
lapse-dismissal order quashed with all
consequential benefits.

Held: Para-10
From
a
perusal
of
the
U.P.
Cane
Cooperative Service Regulations, 1975 it
is noticed that there is no provision
similar to or pari materia with Article
351 (A) of the Civil Service Regulations,
which
may
permit
the
respondent
authorities
to
proceed
with
the
disciplinary proceeding against a retired