# Shailja Tripathi v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Writ-A No. 31507 of 2014
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailja-tripathi-v-state-of-u-p-ors-42132
- **Pages:** 13

## Headnote

C.S.C., Sri Mrigraj Singh, Sri Santosh
Kumar Yadav

A. An Assistant Teacher of the institution
had expired while in service-on the
approval of BSA an advertisement was
issued and the petitioner was selectedLater, referring to G.O. dated 20.01.2003,
BSA placed all the appointment/approval
in
abeyance-Since
the
procedure
for
selection is provided under the statutory
rules of U.P. Recognized Basic Schools
(Junior High School Recruitment and
Conditions of Service of Teachers) Rules,
1978-Once the power is exercised by the
State for framing statutory rules, it cannot
exercise any executive power, therefore,
the Government Order dated 20.01.2003
as non-est being contrary to the statutory
rules-Thus, once an approval is duly
granted by BSA by his communication
dated 20/21.02.2004, no power to review

## Text

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4 All. Anuj Singh Vs. Union of India & Ors.
229
allegations levelled against the petitioner
and highlighting the manner in which the
inquiry
has
been
conducted.
The
disciplinary authority passed an order
which is contained in Resolution No.188
dated
14.08.2019.
The
disciplinary
authority referred to each of the articles of
charge and in respect of each of the charges
recorded that the Investigating Officer has
gone through the submission of the chargesheeted
officer
and
has
given
the
conclusion. He further recorded that the
charge is of a serious nature and abruptly
concluded
that
the
finding
of
the
Investigating Officer are sustained and
called for no interference. A similar finding
was recorded in respect of each of the
seven charges. In respect of the judgments
cited by the charge-sheeted officer, the
disciplinary authority recorded that the
judgments cited by the charge-sheeted
officer have been considered and the same
are not relevant to the facts of the present
case and are of no help to the charged
official, and recommended the dismissal of
the petitioner with immediate effect. In
terms of the said recommendation, an order
came to be passed on 14.08.2019 whereby
an order of punishment of dismissal was
passed
against
the
petitioner
with
immediate effect.

67. It is clear from the order passed
by the disciplinary authority that the
conclusion was drawn only on the basis
of the submission of the Inquiry Officer
and there is no application of mind in
respect of the defences taken by the
petitioner
before
the
disciplinary
authority and the recording of the fact
that the judgments cited by the petitioner
are of no avail, clearly reflects the lack of
application of mind. The same by any
stretch of logic cannot be held to be a
reasoned order containing reasons and
after due application of mind by the
disciplinary authority.

PROCEEDINGS
BEFORE
APPELLATE AUTHORITY:

68. The petitioner preferred an
appeal taking all the grounds and
highlighting the manner in which the
inquiry has been concluded. He gave
detailed submissions in respect of each of
the charges held to be proved on the basis
of which the ultimate punishment order
was passed. He also took ground that the
order of disciplinary authority was a
mechanical order without any application
of mind.

69. The appellate authority vide its
decision in respect of first charge held
that the same does not stand a scrutiny of
law as the allegation in respect of
Bungalow No.167, Chappel Street Meerut
Cantt. Meerut stood concluded by the
order of the Delhi High Court dated
26.07.2011 and upheld by the Supreme
Court vide its order dated 14.05.2018.

70. Dealing with the arguments raised
by the petitioner before the appellate
authority, while interpreting the contention
of the appellant that he was in a
supervisory post, the appellate authority
referred to the dictionary meaning of the
word ''supervisor' and ''to supervise' and
based upon the said dictionary meaning
concluded that the supervisory capacity
includes the responsibility of necessary
technical check and reporting works in
respect of cantonment land.

71. While dealing with second to fifth
charge based upon the definition of
''supervisor' and ''to supervise' as explained
in the dictionary, the appellate authority
230 INDIAN LAW REPORTS ALLAHABAD SERIES
concluded that any kind of minor deviation
from the said duty is to be viewed seriously
and the ineffective execution of the duties
by the team of the concerned technical staff
who are responsible for the first reporting
of any illegal activity in the cantonment
area does not exculpate the appellant for
non-performance
of
his
duties.
The
appellate authority further recorded that
although the appellant is not the only
person who is answerable for the illegal
constructions, however, failure on the part
of the Sanitation Staff alongwith JE and AE
to
timely
report
the
unauthorized
constructions clearly depicts the failure of
the appellant to exercise his powers of
supervisory capacity. It further recorded
that the failure of the appellant to exercise
his powers in the supervisory capacity
caused loss to the government.

72. While dealing with the fourth
charge, the appellate authority recorded
that the appellant joined as AE and
thereafter as Chief Executive Officer,
hence the appellant was not responsible for
any illegality committed prior to 1995. The
appellate authority further goes to record
that the constructions as contained in the
list before the IO clearly establish that the
appellant did not take timely and effective
action to curtail the trend of unauthorized
activity going on in the area under the
management of the Cantonment Board.

73. As regards the illegal erection of
mobile towers contained in fifth charge, it
records that the appellant had adequate
time of approximately nine months in
between the orders given by the Estate
Officer for removal of the tower and the
stay granted by the High Court, however,
the appellant provided undue advantage to
the offender and facilitated the time to
obtain the stay order from the Hob'ble
Court, hence, the appellant failed to
implement the orders for removal of illegal
erection of mobile tower on the roof of B
No.177-177-A, Chappel Street and the said
conduct of the appellant classifies as the act
of deliberate omission on part of the
appellant. He rejected the argument of the
appellant that no action has been taken
against the other persons responsible.

74. While dealing with the sixth
charge, the appellate authority placing
reliance on the Defense Witness No.4
concluded that the Investigating Officer has
rightly held the charge as partially proven
as the allegation of collusion with the
occupants was not substantiated. It further
records that on the basis of oral testimony
as well as the documentary evidence, it was
rightly held that the appellant was negligent
in monitoring and curbing the illegal
cultivation activity on the Trenching
Ground.

75. In view of the fact that the first
charge was decided in favour of the
appellant, the appellate authority held that
the second to fifth charge with regard to the
negligence on the part of the appellant
thereby causing monetary loss to the
Government of India are found proven and
he is guilty in respect of the said charges.

76. In respect of the sixth charge, the
appellate authority held the finding of
partially
guilty
recorded
by
the
Investigating Officer and proceeded to
impose major punishment by way of
''compulsory retirement' from the date of
dismissal in accordance with Rule 11(2)(vi)
of the CFS Rules, 1937.

77. A perusal of the order reveals that
the appellate authority concluded the
findings and substantiated the same on the
4 All. Anuj Singh Vs. Union of India & Ors.
231
basis of the dictionary meaning of the word
''supervisor' and ''to supervise'. In the entire
appellate order, he does not hold that the
petitioner was in any way actively involved
in either the illegal constructions or illegal
cultivation. Based upon the dictionary
meaning of the word ''to supervise', the
appellate authority concluded that the
petitioner in terms of the said definition
failed to carry out the supervisory duties.
The said finding of the appellate authority
is clearly erroneous inasmuch as the
dictionary meaning of the word ''supervise'
or ''to supervise' can be resorted to only
when
the
supervisory
role
and
the
supervisory
duties
are
not
specified,
whereas, in the present case, the nature of
duties in respect of the working was clearly
specified and elaborated in the office
memorandums as contained in Annexure
No.20 to the writ petition wherein no role
of reporting the illegal construction is
assigned to the petitioner and in fact, the
role of reporting was specifically assigned
to the JE, Shri. K.A. Gupta and Piyush
Gautam and one Shri Vinod Gupta, JE and
one Shri Roshan Zamir., Draftsman. Out of
the said persons who were assigned the
duties of reporting illegal constructions, the
proceeding against Shri Piyush Gautam and
Shri K.A. Gupta were dropped. The order
of the appellate authority based upon the
dictionary meaning of the word ''supervise'
and
ignoring
the
specific
office
memorandums assigning specific roles to
various persons is clearly erroneous and
perverse.

78. The argument of Shri Ashok
Mehta that the second limb of each
charge refers to the benefit of the holder
of occupancy rights and not to the
petitioner deserves to be rejected as the
Inquiry Officer has concluded that the
petitioner was a beneficiary as discussed
in Para 46, 47, 51 and 58 of this
judgment.

79. Coming to the judgments cited
by the learned counsel for the petitioner,
it would be correct to refer to the
judgment of the Supreme Court in the
case of Saroj Kumar Sinha (supra)
wherein the role of the Inquiry Officer
was clarified in respect of the evidence
and the manner of decision making and
are contained in Para - 28 which reads as
under:

"28. An inquiry officer acting in
a quasi-judicial authority is in the
position of an independent adjudicator.
He is not supposed to be a representative
of
the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
Department, even in the absence of the
delinquent official to see as to whether
the unrebutted evidence is sufficient to
hold that the charges are proved. In the
present case the aforesaid procedure has
not
been observed.
Since
no
oral
evidence
has
been
examined
the
documents have not been proved, and
could
not
have
been
taken
into
consideration
to
conclude
that
the
charges have been proved against the
respondents."

80. It is relevant to mention that in
respect of the manner in which the
departmental inquiry is to be held, the
Supreme Court in the case of Roop Singh
Negi (supra) had the occasion to consider
in Para - 14 & 15 as under:

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
232 INDIAN LAW REPORTS ALLAHABAD SERIES
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon
taking
into
consideration
the
materials brought on record by the parties.
The purported evidence collected during
investigation by the investigating officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents
and did not prove the contents thereof.
Reliance, inter alia, was placed by the
enquiry officer on the FIR which could not
have been treated as evidence.

15. We have noticed hereinbefore
that the only basic evidence whereupon
reliance has been placed by the enquiry
officer was the purported confession made
by the appellant before the police.
According to the appellant, he was forced
to sign on the said confession, as he was
tortured in the police station. The appellant
being an employee of the Bank, the said
confession should have been proved. Some
evidence should have been brought on
record to show that he had indulged in
stealing the bank draft book. Admittedly,
there was no direct evidence. Even there
was no indirect evidence. The tenor of the
report demonstrates that the enquiry officer
had made up his mind to find him guilty as
otherwise he would not have proceeded on
the basis that the offence was committed in
such a manner that no evidence was left."

And in Para - 23 while dealing
with the necessity of reasoning held as
under:

"23. Furthermore, the order of
the disciplinary authority as also the
appellate authority are not supported by
any reason. As the orders passed by them
have
severe
civil
consequences,
appropriate reasons should have been
assigned. If the enquiry officer had relied
upon the confession made by the appellant,
there was no reason as to why the order of
discharge passed by the criminal court on
the basis of selfsame evidence should not
have been taken into consideration. The
materials brought on record pointing out
the guilt are required to be proved. A
decision must be arrived at on some
evidence, which is legally admissible. The
provisions of the Evidence Act may not be
applicable in a departmental proceeding
but the principles of natural justice are. As
the report of the enquiry officer was based
on merely ipse dixit as also surmises and
conjectures, the same could not have been
sustained. The inferences drawn by the
enquiry
officer
apparently
were
not
supported by any evidence. Suspicion, as is
well known, however high may be, can
under no circumstances be held to be a
substitute for legal proof."

81. In yet another case of M.V.
Bijlani (supra), the Supreme Court while
dealing with the manner in which the
departmental inquiry is to be concluded has
held in Para - 25 as under:

"25. It is true that the jurisdiction
of the court in judicial review is limited.
Disciplinary proceedings, however, being
quasi-criminal in nature, there should be
some evidence to prove the charge.
Although the charges in a departmental
proceeding are not required to be proved
like a criminal trial i.e. beyond all
reasonable doubt, we cannot lose sight of
the fact that the enquiry officer performs a
quasi-judicial
function,
who
upon
analysing the documents must arrive at a
conclusion
that
there
had
been
a
preponderance of probability to prove the
charges on the basis of materials on
record. While doing so, he cannot take into
4 All. Anuj Singh Vs. Union of India & Ors.
233
consideration any irrelevant fact. He
cannot refuse to consider the relevant facts.
He cannot shift the burden of proof. He
cannot reject the relevant testimony of the
witnesses only on the basis of surmises and
conjectures. He cannot enquire into the
allegations with which the delinquent
officer had not been charged with."

In the same very case, the
Supreme Court had the occasion to
consider the effect of initiation of an
inquiry after delay and the Supreme Court
recorded his view in Para - 16 & 17 as
under:

"16. So far as the second charge
is concerned, it has not been shown as to
what were the duties of the appellant in
terms of the prescribed rules or otherwise.
Furthermore, it has not been shown either
by the disciplinary authority or the
Appellate Authority as to how and in what
manner the maintenance of ACE-8 Register
by way of sheets which were found attached
to the estimate file were not appropriate so
as to arrive at the culpability or otherwise
of the appellant. The Appellate Authority in
its order stated that the appellant was not
required to prepare ACE-8 Register twice.
The appellant might have prepared another
set of register presumably keeping in view
the fact that he was asked to account for
the same on the basis of the materials
placed on records. The Tribunal as also the
High
Court
failed
to
take
into
consideration
that
the
disciplinary
proceedings were initiated after six years
and they continued for a period of seven
years
and,
thus,
initiation
of
the
disciplinary
proceedings
as
also
continuance thereof after such a long time
evidently prejudiced the delinquent officer.

17. In State of M.P. v. Bani Singh
[1990 Supp SCC 738 : 1991 SCC (L&S)
638 : (1991) 16 ATC 514] this Court has
clearly held: (SCC p. 740, para 4)

"The irregularities which were
the subject-matter of the enquiry are said to
have taken place between the years 197577. It is not the case of the department that
they
were
not
aware
of
the
said
irregularities, if any, and came to know it
only in 1987. According to them even in
April 1977 there was doubt about the
involvement of the officer in the said
irregularities and the investigations were
going on since then. If that is so, it is
unreasonable to think that they would have
taken more than 12 years to initiate the
disciplinary proceedings as stated by the
Tribunal.
There
is
no
satisfactory
explanation for the inordinate delay in
issuing the charge memo and we are also
of the view that it will be unfair to permit
the departmental enquiry to be proceeded
with at this stage."

82. Coming to the parity in terms of
the punishment of the co-delinquents, the
Supreme Court in the case of Rajendra
Yadav (supra) had the occasion to consider
the aspect of parity in co-delinquents and
the proportionality of punishment, and held
as under:

"9. The doctrine of equality
applies to all who are equally placed; even
among persons who are found guilty. The
persons who have been found guilty can
also claim equality of treatment, if they can
establish discrimination while imposing
punishment when all of them are involved
in the same incident. Parity among codelinquents has also to be maintained when
punishment is being imposed. Punishment
should not be disproportionate while
comparing
the
involvement
of
codelinquents who are parties to the same
transaction or incident. The disciplinary
authority cannot impose punishment which
is disproportionate i.e. lesser punishment
234 INDIAN LAW REPORTS ALLAHABAD SERIES
for
serious
offences
and
stringent
punishment for lesser offences.

10. The principle stated above is
seen applied in a few judgments of this
Court. The earliest one is DG of Police v.
G. Dasayan [(1998) 2 SCC 407 : 1998 SCC
(L&S) 557] wherein one Dasayan, a police
constable, along with two other constables
and one Head Constable were charged for
the
same
acts
of
misconduct.
The
disciplinary authority exonerated two other
constables, but imposed the punishment of
dismissal from service on Dasayan and that
of compulsory retirement on the Head
Constable. This Court, in order to meet the
ends of justice, substituted the order of
compulsory retirement in place of the order
of dismissal from service on Dasayan,
applying
the
principle
of
parity
in
punishment among co-delinquents. This
Court held that it may, otherwise, violate
Article 14 of the Constitution of India.

11.
In
Shaileshkumar
Harshadbhai Shah case [(2006) 6 SCC 548
: 2006 SCC (L&S) 1486] the workman was
dismissed
from
service
for
proved
misconduct. However, few other workmen,
against
whom
there
were
identical
allegations, were allowed to avail of the
benefit of voluntary retirement scheme. In
such circumstances, this Court directed
that the workman also be treated on the
same footing and be given the benefit of
voluntary retirement from service from the
month on which the others were given the
benefit.

12. We are of the view that the
principle laid down in the abovementioned
judgments would also apply to the facts of
the present
case. We have already
indicated that the action of the disciplinary
authority imposing a comparatively lighter
punishment on the co-delinquent Arjun
Pathak and at the same time, harsher
punishment on the appellant cannot be
permitted in law, since they were all
involved
in
the
same
incident.
Consequently, we are inclined to allow the
appeal by setting aside the punishment of
dismissal from service imposed on the
appellant and order that he be reinstated in
service
forthwith.
The
appellant
is,
therefore, to be reinstated from the date on
which Arjun Pathak was reinstated and be
given all consequential benefits as were
given
to
Arjun
Pathak.
Ordered
accordingly. However, there will be no
order as to costs."

83. In the present case, the said
judgment applies with all vigour as the two
persons who were assigned the role of
reporting the unauthorized constructions
have
been
exonerated
whereas
the
petitioner who was not assigned any of the
roles except that of forwarding the report of
illegal construction to the CEO has been
saddled with a major punishment of
compulsory retirement.

84. A similar view was taken by the
Supreme Court in the case of Man Singh
(supra) where the Supreme Court held as
under:

"20. We may reiterate the settled
position of law for the benefit of the
administrative authorities that any act of
the repository of power whether legislative
or administrative or quasi-judicial is open
to challenge if it is so arbitrary or
unreasonable that no fair-minded authority
could ever have made it. The concept of
equality as enshrined in Article 14 of the
Constitution of India embraces the entire
realm of State action. It would extend to an
individual as well not only when he is
discriminated against in the matter of
exercise of right, but also in the matter of
imposing liability upon him. Equals have to
4 All. Anuj Singh Vs. Union of India & Ors.
235
be treated equally even in the matter of
executive or administrative action. As a
matter of fact, the doctrine of equality is
now turned as a synonym of fairness in the
concept of justice and stands as the most
accepted methodology of a governmental
action. The administrative action is to be
just on the test of "fair play" and
reasonableness."

85. The Supreme Court reiterated the
said view in the case of State of U.P. and
Ors. v. Raj Pal (supra) and held in Para - 5
& 6 as under:

5. Though, on principle the ratio
in aforesaid cases would ordinarily apply,
but in the case in hand, the High Court
appears to have considered the nature of
charges levelled against the five employees
who stood charged on account of the
incident that happened on the same day
and then the High Court came to the
conclusion that since the gravity of charges
was the same, it was not open for the
disciplinary authority to impose different
punishments for different delinquents. The
reasoning given by the High Court cannot
be faulted with since the State is not able to
indicate as to any difference in the
delinquency of these employees.

6. It is undoubtedly open for the
disciplinary authority to deal with the
delinquency
and
once
charges
are
established
to
award
appropriate
punishment. But when the charges are
same and identical in relation to one and
the same incident, then to deal with the
delinquents differently in the award of
punishment, would be discriminatory. In
this view of the matter, we see no infirmity
with the impugned order requiring our
interference under Article 136 of the
Constitution.

86. It is necessary to note that the
Supreme Court in the case of Union of
India v. J. Ahmed (supra) had the occasion
to
consider
the
difference
between
misconduct and negligence in performance
of duty and held in Para - 9, 11 & 13 as
under:

"9. The five charges listed above
at a glance would convey the impression
that the respondent was not a very efficient
officer. Some negligence is being attributed
to him and some lack of qualities expected
of an officer of the rank of Deputy
Commissioner are listed as charges. To
wit, Charge 2 refers to the quality of lack of
leadership and Charge 5 enumerates
ineptitude, lack of foresight, lack of
firmness and indecisiveness. These are
qualities
undoubtedly
expected
of
a
superior officer and they may be very
relevant while considering whether a
person should be promoted to the higher
post or not or having been promoted,
whether he should be retained in the higher
post or not, or they may be relevant for
deciding the competence of the person to
hold the post, but they cannot be elevated
to the level of acts of omission or
commission as contemplated by Rule 4 of
the Discipline and Appeal Rules so as to
incur penalty under Rule 3. Competence for
the post, capability to hold the same,
efficiency requisite for a post, ability to
discharge function attached to the post, are
things different from some act or omission
of the holder of the post which may be
styled as misconduct so as to incur the
penalty under the rules. The words "act or
omission" contemplated by Rule 4 of the
Discipline and Appeal Rules have to be
understood in the context of the All India
Services (Conduct) Rules, 1954 ("Conduct
Rules" for short). The Government has
prescribed by Conduct Rules a code of
236 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct for the members of All India
Services. Rule 3 is of a general nature
which provides that every member of the
service shall at all times maintain absolute
integrity and devotion to duty. Lack of
integrity, if proved, would undoubtedly
entail penalty. Failure to come up to the
highest expectations of an officer holding
responsible post or lack of aptitude or
qualities of leadership would not constitute
as failure to maintain devotion to duty. The
expression "devotion to duty" appears to
have been used as something opposed to
indifference to duty or easy-going or lighthearted approach to duty. If Rule 3 were
the only rule in the Conduct Rules it would
have been rather difficult to ascertain what
constitutes misconduct in a given situation.
But Rules 4 to 18 of the Conduct Rules
prescribe code of conduct for members of
service and it can be safely stated that an
act or omission contrary to or in breach of
prescribed
rules
of
conduct
would
constitute
misconduct
for
disciplinary
proceedings. This code of conduct being
not exhaustive it would not be prudent to
say that only that act or omission would
constitute misconduct for the purpose of
Discipline and Appeal Rules which is
contrary to the various provisions in the
Conduct Rules. The inhibitions in the
Conduct Rules clearly provide that an act
or omission contrary thereto so as to run
counter to the expected code of conduct
would certainly constitute misconduct.
Some other act or omission may as well
constitute misconduct. Allegations in the
various charges do not specify any act or
omission in derogation of or contrary to
Conduct Rules save the general Rule 3
prescribing devotion to duty. It is, however,
difficult to believe that lack of efficiency,
failure to attain the highest standard of
administrative ability while holding a high
post
would
themselves
constitute
misconduct. If it is so, every officer rated
average would be guilty of misconduct.
Charges in this case as stated earlier
clearly indicate lack of efficiency, lack of
foresight and indecisiveness as serious
lapses on the part of the respondent. These
deficiencies in personal character or
personal ability would not constitute
misconduct for the purpose of disciplinary
proceedings.

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 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 Pierce v. Foster [17 QB
536, 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
Superintendent,
Central
Railway, Nagpur Division, Nagpur [61
Bom LR 1596], and Satubha K. Vaghela v.
Moosa Raza [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
Utkal Machinery Ltd. v. Workmen, Miss
Shanti Patnaik [AIR 1966 SC 1051 : (1966)
2 SCR 434 : (1966) 1 LLJ 398 : 28 FJR
131] in the absence of standing orders
governing the employee's undertaking,
4 All. Anuj Singh Vs. Union of India & Ors.
237
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 : (1967) 2 LLJ 249]
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 [AIR 1963 SC 1756 : (1964) 2
SCR 104 : (1963) 1 LLJ 679 : 24 FJR 464]
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 instances of which a railway
cabinman signals in a train on the same
track where there is a stationery train
causing head-on 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
crashes
causing
heavy
loss
of
life.
Misplaced sympathy can be a great evil
(see Navinchandra Shakerchand Shah v.
Manager, Ahmedabad Coop. Department
Stores Ltd. [(1978) 19 Guj LR 108, 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.

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 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 ineptitude,
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
238 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 3 and 6
are clear surmises on account of the failure
of
the
respondent
to
take
effective
preventive measures to arrest or to nip in
the bud the ensuing disturbances. We do
not take any notice of Charge 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 6 is the conclusion
viz. because of what transpired in the
inquiry, the Enquiry Officer was of the view
that the respondent was unfit to hold any
responsible position. Somehow or other,
the Enquiry Officer completely failed to
take note of what was alleged in Charges 2,
5 and 6 which was neither misconduct nor
even negligence but conclusions about the
absence or lack of personal qualities in the
respondent. It would thus transpire that the
allegations made against the respondent
may indicate that he is not fit to hold the
post of Deputy Commissioner and that if it
was possible he may be reverted or he may
be compulsorily retired, not by way of
punishment. But when the respondent is
sought to be removed as a disciplinary
measure and by way of penalty, there
should have been clear case of misconduct
viz. such acts and omissions which would
render
him
liable
for
any
of
the
punishments set out in Rule 3 of the
Discipline and Appeal Rules, 1955. No
such case has been made out."

87. In respect of the inordinate delay
in initiation of the inquiry, the Supreme
Court had the occasion to consider the
same in the case of P.V. Mahadevan
(supra) and recorded in Para - 10 & 11 as
under:

"10. Section 118 specifically
provides for submission of the abstracts of
the accounts at the end of every year and
Section 119 relates to annual audit of
accounts. These two statutory provisions
have not been complied with at all. In the
instant case the transaction took place in
the year 1990. The expenditure ought to
have been considered in the accounts of the
succeeding year. In the instant case the
audit report was ultimately released in
1994-95. The explanation offered for the
delay in finalising the audit account cannot
stand scrutiny in view of the above two
provisions of the Tamil Nadu Act 17 of
1961. It is now stated that the appellant has
retired from service. There is also no
acceptable explanation on the side of the
respondent explaining the inordinate delay
in initiating departmental disciplinary
proceedings.
Mr
R.
Venkataramani,
learned Senior Counsel is appearing for
the respondent. His submission that the
period from the date of commission of the
irregularities by the appellant to the date
on which it came to the knowledge of the
Housing Board cannot be reckoned for the
purpose of ascertaining whether there was
any delay on the part of the Board in
initiating disciplinary proceedings against
the appellant has no merit and force. The
stand now taken by the respondent in this
Court in the counter-affidavit is not
convincing and is only an afterthought to
give some explanation for the delay.

11. Under the circumstances, we
are of the opinion that allowing the
respondent to proceed further with the
departmental proceedings at this distance
of time will be very prejudicial to the
appellant. Keeping a higher government
official under charges of corruption and
disputed integrity would cause unbearable
mental agony and distress to the officer
concerned. The protracted disciplinary
4 All. Anuj Singh Vs. Union of India & Ors.
239
enquiry against a government employee
should, therefore, be avoided not only in
the interests of the government employee
but in public interest and also in the
interests of inspiring confidence in the
minds of the government employees. At this
stage, it is necessary to draw the curtain
and to put an end to the enquiry. The
appellant had already suffered enough and
more on account of the disciplinary
proceedings. As a matter of fact, the mental
agony and sufferings of the appellant due
to the protracted disciplinary proceedings
would be much more than the punishment.
For the mistakes committed by the
department in the procedure for initiating
the disciplinary proceedings, the appellant
should not be made to suffer."

88.

The
Supreme
Court
also
considered the effect of delay in the case of
State of Madhya Pradesh v. Bani Singh &
Anr. (supra) and recorded in Para - 4 as
under:

"4. The appeal against the order
dated December 16, 1987 has been filed on
the ground that the Tribunal should not
have quashed the proceedings merely on
the ground of delay and laches and should
have allowed the enquiry to go on to decide
the matter on merits. We are unable to
agree with this contention of the learned
counsel. The irregularities which were the
subject matter of the enquiry is said to have
taken place between the years 1975-77. It
is not the case of the department that they
were not aware of the said irregularities, if
any, and came to know it only in 1987.
According to them even in April 1977 there
was doubt about the involvement of the
officer in the said irregularities and the
investigations were going on since then. If
that is so, it is unreasonable to think that
they would have taken more than 12 years
to initiate the disciplinary proceedings as
stated by the Tribunal. There is no
satisfactory explanation for the inordinate
delay in issuing the charge memo and we
are also of the view that it will be unfair to
permit the departmental enquiry to be
proceeded with at this stage. In any case
there are no grounds to interfere with the
Tribunal's orders and accordingly we
dismiss this appeal."

89. In respect of the conclusion of the
inquiry within a reasonable time, learned
counsel for the petitioner has placed
reliance in the case of Abhishek Prabhakar
Awasthi (supra) wherein the Full Bench
held in Para - 5 & 6 as under:

"5. In the context of disciplinary
proceedings, me High Court in the exercise
of its writ jurisdiction under Article. 226 of
the Constitution may in appropriate cases
fix a stipulation inregard to the conclusion
of an enquiry within a stipulated period.
Such an order may be passed in several
situations, such as when an employee
moves a petition challenging an order of
suspension and the Court considers it
appropriate, in the interests of justice, to
direct that the disciplinary proceeding
should be expeditiously disposed of Such
directions are issued in other appropriate
instances to obviate a delay in disposing of
disciplinary proceedings. The basis and
rationale for these orders is to ensure that
an employee is not prejudiced by an undue
delay in the conclusion of a disciplinary
proceeding. Where the Court stipulates a
period of time during which an enquiry
must be completed, such a stipulation has
to be observed. Clearly, it is not open to the
employer to act in disregard of the orders
of the Court and it cannot possibly be
asserted that notwithstanding the time fixed
by the Court, the employer is at liberty to
240 INDIAN LAW REPORTS ALLAHABAD SERIES
conclude the enquiry at its own whims and
fancy disregarding the stipulation of time.

6. Having said this, it is equally
true that there may be a variety of
circumstances which may arise in the
course of a disciplinary proceeding and
despite
all
reasonable
efforts,
a
disciplinary proceeding is not completed
within the time fixed by a court. We do not
intend to make an exhaustive enumeration
of those circumstances but set out only
some by way of illustration. Some times, it
may well happen that the complexity of the
case may result in prolongation of the
enquiry. Besides the nature of the case, the
number of witnesses to be examined may be
so large that it may not be possible to
conclude the enquuiry despite genuine and
bona fide efforts within the stipulation so
fixed. However, it may well happen that the
delay in the conclusion of the enquiry is
due to the conduct of one of the two parties.
When the employee himself is guilty of a
delay which has resulted in a protraction of
the enquiry, it would be manifestly contrary
to the interests of justice to assert that
notwithstanding
the
conduct
of
the
employee, the jurisdiction to hold an
enquiry has come to an end upon the expiry
of the period fixed by the Court.