# State of U.P. & Anr v. Rajesh Kumar Singh & Anr

- **Citation:** (2019) 2 ILRA 2136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** Service Bench No. 28018 of 2019
- **Bench:** Devendra Kumar Upadhyaya, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-rajesh-kumar-singh-anr-44707
- **Pages:** 5

## Headnote

A. Service Law - U.P. Government Servants
Conduct Rules, 1956; Rule 3 - defines
misconduct - manner which is inconsistent
with due and faithful discharge of his duty in
service amounts to misconduct - monthly
details for payment of entertainment tax
which were kept in different files can be an
act of negligence but not of misconduct

The Court observes that for an act to qualify
"misconduct" what is of primary importance is
to ascertain as to whether such an act of
omission or negligence would result in
irreparable damage or damage caused by such
an act would be so heavy that the degree of
culpability would be very heavy. (Para 8 & 10)

Writ Petition dismissed (E-10)
Cases Cited:-

## Text

2136 INDIAN LAW REPORTS ALLAHABAD SERIES
between the parties that as per the direction
given by the Tribunal after quashing of the
order dated 30.07.2010 by which the
penalty has been imposed upon applicantrespondent No. 1, the petitioners had
proceeded to issue a letter dated 12.10.2017,
to which applicant-respondent No. 1 has
already submitted his reply, the competent
authority/disciplinary authority is directed
to decide the same within a further period of
eight weeks from the date of receiving a
certified copy of the order in accordance
with law which governs the field and while
doing so, the finding which is given by the
Tribunal while quashing the order dated
30.07.2010 in O.A. No. 75/2010 by which it
has set aside the penalty imposed upon the
respondent No. 1 shall not be binding rather
will not be an impediment in the way of the
Punishing Authority.

26. In the result, writ petition is
disposed of with the above observations.

27. No order as to costs.
----------

(2019)10ILR A 2136

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.10.2019

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Service Bench No. 28018 of 2019

State of U.P. & Anr. ...Petitioners
Versus
Rajesh Kumar Singh & Anr.
 ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Government Servants
Conduct Rules, 1956; Rule 3 - defines
misconduct - manner which is inconsistent
with due and faithful discharge of his duty in
service amounts to misconduct - monthly
details for payment of entertainment tax
which were kept in different files can be an
act of negligence but not of misconduct

The Court observes that for an act to qualify
"misconduct" what is of primary importance is
to ascertain as to whether such an act of
omission or negligence would result in
irreparable damage or damage caused by such
an act would be so heavy that the degree of
culpability would be very heavy. (Para 8 & 10)

Writ Petition dismissed (E-10)
Cases Cited:-
1. U.O.I. & ors Vs J.Ahmad AIR (1979)
Supreme Court 1022
2. Sri Kishan Vs St of U.P. & ors Writ-A No.
26115 of 2004
3. Badev Singh Gandhi Vs St of Punjab & ors
AIR (2002) SC 1124
4. Noratannal Chouraria Vs M.R. Murli & anr
(2004) 5 SCC 689
5. State of Punjab & ors Vs Ram Singh ExConstable (1992) 4 SCC 54

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Mohd. Faiz
Alam Khan, J.)

1. Heard learned State counsel
representing the petitioner.

2. This petition filed under Article
226
of
the
Constitution
of
India
2 All. State of U.P.& Anr. Vs Rajesh Kumar Singh & Anr.
2137
challenges the order dated 07.03.2019
passed by U.P. State Public Service
Tribunal, Lucknow whereby the claim
petition no.1343 of 2017 filed by
respondent no.1 challenging the order of
punishment of censure and the appellate
order,
has
been
allowed
and
the
punishment of censure has been set-aside.

3. Submission of learned counsel for
the petitioner is that finding given by the
Tribunal vide impugned judgment and
order dated 07.03.2019 to the effect that
in absence of any mens rea the charge
against respondent no.1, as alleged, would
not amount to misconduct, is erroneous in
view of the law laid down by Hon'ble
Supreme Court in the case of Union of
India and others vs. J.Ahmad, reported
in AIR (1979) Supreme Court 1022.

4. A show cause notice was issued
to respondent no.1 under Rule 10 (2) of
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 (hereinafter referred
to as 'Rules, 1999'), which provides the
procedure for award of minor punishment.
According to said show cause notice, the
petitioner was required to furnish his
reply in respect of irregularities said to
have been committed by him which are
mentioned in said show cause notice
dated 23.10.2015. The alleged irregularity
attributed to the respondent no.1 was that
as per requirement of Rule 10 (2) of U.P.
Cable Television Network (Exhibition),
Rules 1997, monthly details are required
to be presented/furnished in Form-5,
however, in the concerned file Form-5
was available only in relation to the
months of November, 2014, December,
2014 and January, 2015 and that Form-5
in relation to earlier months were not
available. The respondent no.1 submitted
his reply to the said show cause notice
vide his letter dated 04.12.2015 and stated
that at the time of inspection of the
relevant file, all Forms-5 pertaining to the
cable operator were available in separate
Dak files, however, on account of urgency
at the time of inspection only available
Forms-5 were inserted in the file, but the
cable operator has been making payment
of entertainment tax every month in time.
Along with the reply, respondent no.1
also annexed copies of all Forms-5
pertaining
to
the
cable
operator
concerned, of the earlier months from the
date respondent no.1 had taken charge of
the area concerned. The said reply dated
04.12.2015 is on record which contains
Formd-5 pertaining to earlier months
from February, 2014 till December, 2014.
The Commissioner, Entertainment Tax,
U.P. however, passed an order on
19/21.01.2016 and found that respondent
no.1 had not kept Forms-5 of every month
relating to cable operator concerned
though he was required to keep the same
and accordingly awarded the respondent
no.1 punishment of censure. Respondent
no.1 challenged the said order dated
19/21.01.2016 by filing statutory appeal
under the provision of Rules, 1999, which
too
was
dismissed
by
the
State
Government
vide
its
order
dated
28.03.2017.

5. Challenging the aforesaid two
orders i.e. the order of punishment dated
19/21.01.2016 and the order passed by the
appellate authority, dated 28.03.2017,
respondent no.1 preferred claim petition
before U.P. State Public Service Tribunal,
which has been allowed vide impugned
judgment and order dated 07.03.2019.
Learned Tribunal while passing the
impugned judgment has considered the
reply submitted by respondent no.1 to the
show cause notice and has concluded that
2138 INDIAN LAW REPORTS ALLAHABAD SERIES
issue at hand was only to the effect that
respondent no.1 had not kept all Forms-5
of the cable operator in the file; rather
they were kept in separate files and
accordingly at the time of inspection, total
number of Forms-5 found were less than
the actual number of Forms-5 which were
to be maintained and kept by respondent
no.1. The Tribunal has given a finding
that the relevant document, namely,
Forms-5 were not kept in the file
concerned, however, they were kept
elsewhere, hence the same, at the most,
may amount to negligence and it will not
amount to any misconduct for the reason
that by keeping Forms-5 respondent no.1
was not going to be benefited in any
manner.

6. So far as the employees of the
State
Government
are
concerned,
'misconduct'
has
not
been
defined
anywhere, however, for the purposes of
regulating the conduct of its employees,
the State Government has made Rules
under the proviso appended to Article 309
of Constitution of India which are known
as U.P. Government Servants Conduct
Rules, 1956 (hereinafter referred to as
"Conduct Rules"). Rule 3 of the said
Rules
clearly
mandates
that
every
government servant shall at all times
maintain absolute integrity and devotion
to duty. It further provides that every
government servant shall at all times
conduct himself in accordance with
specific or implied orders of government
regulating their behaviour and conduct
which may be in force.

7. The Conduct Rules thus provide a
code
of
conduct
for
government
employees, however what is primary is
that every government servant has to
maintain absolute integrity and devotion
to duty and further that he has to conduct
himself in accordance with specific or
implied orders of government regulating
to their behaviour and conduct.

8. What flows from Rule 3 of
Conduct Rules is that if a government
servant conducts himself in a manner
which is inconsistent with due and faithful
discharge of his duty in service, the same
will amount to misconduct. However,
every act of omission would not constitute
misconduct for the purposes of drawing
disciplinary proceedings as has been held
by Hon'ble Supreme Court in the case of
J. Ahmad (supra). An act of omission
which runs contrary to the expected
conduct of an employee would certainly
constitute misconduct, however some
other act of omission or negligence in
performance of duty and a lapse in
performance of duty or error of judgment
may amount to 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.
(emphasis supplied)

9. These observations have been
made in the case of J. Ahmad (supra),
relevant extract of which is mentioned
herein below:-

"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
(5), wherein it was found that the two
mistakes committed by the employee
2 All. State of U.P.& Anr. Vs Rajesh Kumar Singh & Anr.
2139
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."

10. Thus, for an act of omission to
qualify 'misconduct', what is of primary
importance is as to whether such act of
omission or negligence would result in
irreparable damage or damage caused by
such an act would be so heavy that the
degree of culpability would be very high.
It is also clear that negligence or mistake
may not ipso facto constitute misconduct
when its consequences are serious.

11. This Court in a judgment
rendered on 16.08.2018 in the case of Sri
Kishan vs. State of U.P. and others,
Writ-A No.26115 of 2004 after reviewing
the entire law relating to misconduct visa-vis negligence including the judgment
in the cases of Baldev Singh Gandhi vs.
State of Punjab and others, AIR 2002 SC
1124, Noratannal Chouraria vs. M.R.
Murli & another, reported in 2004 (5)
SCC 689 and State of Punjab and others
vs. Ram Singh Ex-Constable, (1992) 4
SCC 54 and also J.Ahmad (supra) has
held as under:-

"12. The allegations at the best may
show that the petitioner is not very alert
or careful but in absence of anything
further, mere carelessness or lack of
seriousness of an employee or failure to
show better efficiency, upto desired level,
ipso
facto
would
not
amount
to
'misconduct' warranting punishment as
held in J. Ahmed (supra) that Lack of
efficiency or failure to attain highest
standards in discharge of duties attached
to public office would not constitute
misconduct, unless the consequences
directly attributable to negligence would
be such as to be irreparable or the
resultant damage would be so heavy that
the degree of culpability would be very
high, which is not the case in hand".

12. If the misconduct as alleged
against respondent no.1 is examined on
the touch stone of what has been laid
down by Hon'ble Supreme Court in the
case of J.Ahmad (supra) and other
judgments referred to hereinabove, what
we find is that respondent no.1 was
alleged
to
have
not
kept
certain
documents in the file concerned. It is not
the charge against respondent no.1 that he
did not maintain the said documents being
its custodian. It is also not the charge
against respondent no.1 that documents
(Forms-5) pertaining to cable operator
were not kept at all.

13. To the contrary, it is apparent
from the reply submitted by respondent
no. 1 to the charge sheet is that though all
Forms-5 pertaining to the cable operator
were not available in the file, however,
2140 INDIAN LAW REPORTS ALLAHABAD SERIES
they were kept in different files. It is also
not the charge against respondent no.1
that he had failed to realize the amount of
entertainment tax payable by the cable
operators. Accordingly, at the most
respondent no.1 can be said to have
conducted himself negligently but there
being no serious consequence of keeping
Forms-5 at separate place, such act of
respondent no.1 cannot, in our considered
opinion, be construed as misconduct.

14. In view of the aforesaid, we do
not find any illegality or irregularity in the
impugned order dated 07.03.2019 passed
by U.P State Public Service Tribunal
which warrants any interference by this
Court in exercise of its extraordinary
jurisdiction under Article 226 of the
Constitution of India.

15. The writ petition, thus, lacks
merit and is hereby dismissed.

16. There will be no order as to
costs.
----------

(2019)10ILR A 2140

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 6880 of 2019

State of U.P. & Ors. ...Petitioners
Versus
U.P. State Public Services Tribunal,
Lucknow & Anr. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
C.S.C., Ganesh Kumar Gupta, Manish Kumar

A. Service Law - U.P. Police Officer of
Subordinate Rank (Punishment and Appeal)
Rule, 1991; Section 14 (1) - honorable
acquittal in criminal case will exonerate the
petitioner from departmental proceedings -
squarely covered by S. Bhaskar Reddy case

" An acquittal based on benefit of doubt would
not stand on par with a clean acquittal on
merit after a full-fledged trial, where there is
no indication of the witnesses being won over.
The long standing view on this subject was
settled by this Court in R.P. Kapur Vs. Union of
India, whereby it was held that a departmental
proceeding can proceed even though a person
is acquitted when the acquittal is other than
honorable" (Para 34)

The expressions "honorable acquittal", "acquitted
of blame", "fully exonerated" are unknown to the
Code of Criminal Procedure or the Penal Code,
which are coined by judicial pronouncements.
When the accused is acquitted after full
consideration of prosecution evidence and that the
prosecution had miserably failed to prove the
charges levelled against the accused, it can
possibly be said that the accused was honorably
acquitted. (Para 43)

B. Constitution of India - Article 14 -
doctrine of equality applies on the
delinquents - no discrimination while
imposing punishment
Punishment should not be disproportionate
while comparing the involvement of codelinquents who are parties to the same
transaction or incident. (Para 53)

Writ petition dismissed (E-10)
Precedent followed: -

1.
S.
Bhaskar
Reddy
&
anr
Vs
Superintendent of Police & anr (2015) 2 SCC
365