# UNION OF INDIA & ORS v. J. AHMED

- **Citation:** [1979] 3 S.C.R. 504
- **Court:** Supreme Court of India
- **Decided:** 1979-03-07
- **Case number:** Civil Appeal No. 2152 of 1969
- **Bench:** D. A. Desai, 0. Oiinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-ors-v-j-ahmed-7642
- **Pages:** 14

## Headnote

All lndia S.rvices (Death-cum-Retirement) Rules 1958-r. 16-Scope 0/1
Words and Phrase'S: Misconduct-What conStitutes to attract punishment in
disciplinary proccedings-Mene acts of om1Ssion and commission or negligence
in perforn1ance of duty-If nzisconduct.
The respondent, an officer belon&in: to the Indian Administrative Service,
was due to retire on February 1, 1962.
Since a departmental enquiry in
respect of some charges levelled aiainst him wa! pending, he was retained
in service, in the first in!tance, for a period of three months beyond the date
of his retirement or till tho termination of departmenta-1 proceedings whichever
v.·as earlier,
This date was, however, extended from time to time and evcn 4
tually on August 28, 1963 an order under r. 16(2) of the All India Services
(Death-cum-Retirement) Rules, 1958 was pas1oed.
That Rule provides that "a
member ef the service under suspension on a char~e of misconduct shrill not
be required or pef'mitted to retire from service but sha.U be retained in service
until the enquiry into th11 charges against him is concluded and a final order
is passed,"
..
The charges levelled against the respondent were (1) that he completely
failed to take any effective preventive measures a~ainst widespread disturbances
which broke out in the district, (2) th•t he •bowed complete lack of leadership
and failed to give proper directions to his subordinate officers, (3)
that he
did not personally visit the scene of disturbances; ( 4) that he did not keep
the Government informed of the extent of disturbances; and (5) that he showed
complete inaptitude, lack of foresight, capacity to take firm and quick decision
and, that therefore, he proved himself completely unlit to bold any responsible
position.
On the report of the enquiry officer that all the charges {except one) were
substantially proved, he was removed from 1ervice.
Striking down the order of his removal from service, the Jligh Court held
that (i) nog1igence and efficiency in the performance of one's duty would not
constitute misconduct so as to attract punishment of removal from service and
(ii) under r. 16(2) an officer could be retained in service only for the purpose
of holding or completing disciplinary proceedings for misconduct and since in
this cftSe there· was no enquiry into what could be cad.led misconduct, his retention in service beyond his date of retirement was void.
Dismissing the appeal,
HELD: l(a) No case, stricto srnsu, for a dis.ciplinary proceeding for
misconduct had been made out agaimt the respondont. Any ~.eficiency in the
discharge of one's duties would not [Constitute misconduct.
The enquiry held
l •
y
•
..
, •
I ' y-
'
UNION v. J, AHMBD
sos
was to establish that the respondent Wa6 not fit to hold a rcaponsible post;
A
it did not establish any misconduct on his part to deserve the punishment. [516 HJ
(b) Conduct which is blameworthy on the p~rt of a government servan'
in the context of the Conduct Rules would be misconduct, that is if a government servant conducts himself in a way which is not consistent 'vith due and
faithful discharge. of his duties it is misconduct. Similarly, disrOp.ird of an
essential condition of the contract of service may constitute mh;conduct. So
B
too an error or omission resulting in serious or atrocious consequences may
amount to misconduct.
But competence for the post, capability to hold and
dischllrge the functions attached to it with requisite efficiency are different from
some act or omission on the part of its holder so as to be1 called misconduct.
A single act or omission: or error of judgment while holding a post of responsibility unoccompanied by serious or atrocious conduct would not constitute misconduct. [511 G-Hl
C
Pierce v. Fosttr, 17 QB 536 at 542; Laws v. London Chronicle (Indicator
Newspapers), [1959] 1 WLR 698; S. Govinda Menon v. Union of India, [1967]
2 SCR 566; P. H. Kalyani v. Air France, Calcutta, [1964] 2 SCR 104; referred
~
-
(c) The All India Services (Conduct)

## Text

A
B
c
D
E
F
G'
H
504
UNION OF INDIA & ORS.
v.
J. AHMED
March 7, 1979
(D. A. DESAI AND 0. OIINNAPPA REDDY, JJ.]
All lndia S.rvices (Death-cum-Retirement) Rules 1958-r. 16-Scope 0/1
Words and Phrase'S: Misconduct-What conStitutes to attract punishment in
disciplinary proccedings-Mene acts of om1Ssion and commission or negligence
in perforn1ance of duty-If nzisconduct.
The respondent, an officer belon&in: to the Indian Administrative Service,
was due to retire on February 1, 1962.
Since a departmental enquiry in
respect of some charges levelled aiainst him wa! pending, he was retained
in service, in the first in!tance, for a period of three months beyond the date
of his retirement or till tho termination of departmenta-1 proceedings whichever
v.·as earlier,
This date was, however, extended from time to time and evcn 4
tually on August 28, 1963 an order under r. 16(2) of the All India Services
(Death-cum-Retirement) Rules, 1958 was pas1oed.
That Rule provides that "a
member ef the service under suspension on a char~e of misconduct shrill not
be required or pef'mitted to retire from service but sha.U be retained in service
until the enquiry into th11 charges against him is concluded and a final order
is passed,"
..
The charges levelled against the respondent were (1) that he completely
failed to take any effective preventive measures a~ainst widespread disturbances
which broke out in the district, (2) th•t he •bowed complete lack of leadership
and failed to give proper directions to his subordinate officers, (3)
that he
did not personally visit the scene of disturbances; ( 4) that he did not keep
the Government informed of the extent of disturbances; and (5) that he showed
complete inaptitude, lack of foresight, capacity to take firm and quick decision
and, that therefore, he proved himself completely unlit to bold any responsible
position.
On the report of the enquiry officer that all the charges {except one) were
substantially proved, he was removed from 1ervice.
Striking down the order of his removal from service, the Jligh Court held
that (i) nog1igence and efficiency in the performance of one's duty would not
constitute misconduct so as to attract punishment of removal from service and
(ii) under r. 16(2) an officer could be retained in service only for the purpose
of holding or completing disciplinary proceedings for misconduct and since in
this cftSe there· was no enquiry into what could be cad.led misconduct, his retention in service beyond his date of retirement was void.
Dismissing the appeal,
HELD: l(a) No case, stricto srnsu, for a dis.ciplinary proceeding for
misconduct had been made out agaimt the respondont. Any ~.eficiency in the
discharge of one's duties would not [Constitute misconduct.
The enquiry held
l •
y
•
..
, •
I ' y-
'
UNION v. J, AHMBD
sos
was to establish that the respondent Wa6 not fit to hold a rcaponsible post;
A
it did not establish any misconduct on his part to deserve the punishment. [516 HJ
(b) Conduct which is blameworthy on the p~rt of a government servan'
in the context of the Conduct Rules would be misconduct, that is if a government servant conducts himself in a way which is not consistent 'vith due and
faithful discharge. of his duties it is misconduct. Similarly, disrOp.ird of an
essential condition of the contract of service may constitute mh;conduct. So
B
too an error or omission resulting in serious or atrocious consequences may
amount to misconduct.
But competence for the post, capability to hold and
dischllrge the functions attached to it with requisite efficiency are different from
some act or omission on the part of its holder so as to be1 called misconduct.
A single act or omission: or error of judgment while holding a post of responsibility unoccompanied by serious or atrocious conduct would not constitute misconduct. [511 G-Hl
C
Pierce v. Fosttr, 17 QB 536 at 542; Laws v. London Chronicle (Indicator
Newspapers), [1959] 1 WLR 698; S. Govinda Menon v. Union of India, [1967]
2 SCR 566; P. H. Kalyani v. Air France, Calcutta, [1964] 2 SCR 104; referred
~
-
(c) The All India Services (Conduct) Rules, 1954 prescribe a codo of
conduct for members of the service, such for example1 as, that e"Very member
shall at all times maintain absolute integrity and devotion to duty and th&t
an act or omission contrary to or in breach of the prescribed norms of conduct
would constitute misconduct for disciplinary proceedings. But the Rules are
not exhaustive. In the absence of an exhaustive or self-contained code, thereforo
J)
it would not be correct to sa.y that only that act or omission would constitute
E
misconduct for the purposes of Discipline and Appeal Rules which is contrary
to the provisions of the Conduct Rules. [511 C-E]
In the instant case all that the charges framed against the respondent show
is 1'hat he was not a very efficient officer. They did not specify any act or.
omission in derogation of or contrary to, Conduct Rules, except the general
rule (r. 3) prescribing devotion to duty. La-ck of leadership, inaptitude, lack
of foresight, lack of firmness and indecisiveness which are dediciencies in the
personal character or ability of a Government servant would not by themselves
constitute misconduct for the purpose of disciplinary proceedings.
They may
be relevant while considering an officer's promoti9n to higher post or for his
retention in a higher post but they cannot be elevated to the level of acts
of omission or con1mission contemplated by Discipline find Appeal Rules for
imposing punishment. When the respondent was sought to be removed from
service as a disciplinary measure by \vay of penalty, a clear case of misconduct
should ha.ve been established.
(d) In the context of disciplinary proceedings, misconduct doet not mean
misbehaviour involving some form of guilty mind or 1nr11s rea.
Gross or
habituad. negligence in the performance Of one's duty may not involve 1nens rea
but yet it may constitute misconduct for disciplinary proceedings. [513 DJ
2(a) The respondent was no longer in service on the date on which the
order removing him from service was made and to retain him in service
F
G
H
B
506
SUPREME COURT REPORTS
[1979] 3 s.c.R.
beyond the period of his normal retirement with a view to punishing him was
wholly unjustified. [517 C-D]
(b) Since the State Government had no power to retain him in service
under r. 16(1)(a) of the Retirement Rules beyond August I, 1962 it could
not continue the enquiry thereafter. Although under r. 16 (I )(b) the Central
Government had power to retain him in service beyond six months of the date
of his retirement, no ord,er had been p2ssed by it. [515 H]
(c) Before· r. 16(2) (which provides that a member of the service under
suspensioa on a charge of misconduct shall not be required· or permitl'ed to
retire from service until the enquiry into the charges. against him is concluded
and a final order passed) would be at.tracted it must .be sho\vn that a member
of the service was under suspension on a charge of migconduct and an enquiry
was being conducted against him. No misconduct having l'een tlleged against
the respondent, it cannot be said that r. 16(2) was attracted and that he was
deemed to have been retained in service until the enquiry was concluded.
[516 F-GJ
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2152
of
1969.
· D
Appeal by Special Leave from
the Judgment and
Order dated
G
1-8-1967 of the Assam and Nagaland High Court in
Civil Rule
No. 256 of 1966.
Naunit Lal for the Appellant.
S. K. Dutta, S. K. Nandy and A. Sen for the Respondent.
The Judgment of the Court was delivered by
DESAI, J.-Respondent J. Ahmed joined service in Assam State in
1945 and some time in 1959 came to be promoted to the Indian
Administrative Service Cadre. In that very year he
was
posted as
Deputy Commissioner and District
Magistrate,
Nowgollg District.
While he was holding the aforementioned post,
some time in the
beginning of June 1960 there were large scale disturbances in Nowgong city and District area described in official parlance as 'language
disturbances'.
There was considerable
damage
to property.
One
Shri A N. Kidwai, the then Additional Chief Secretary to the Government of Assam, undertook an inquiry into the causes of disturbances
at Nowgong with a view to ascertaining the responsibility of District
o:fflcials.
After Shri Kidwai submitted his Report, the
Government
took the first step of suspending the respolldent from service by an
order dated 14th September. 1960. The Chief Secretary to the Government of Assam by his commnnication dated 13'th Seprember 1960
conveyed to the. respondent various charges framed against him and
called upon him to submit his explanation.
A statement of allegations was annexed to the communicatioll.
Respondent submitted his
explanation and thereafter the
Government
appointed
respondent
l •
"
I
•
J •
\ .
.. '-('
UNION v. J. AHMED (Desai,!.)
507
No. 4, K. Balachandran as the Enquiry Officer. After the rnquiry was
concluded, the Enquiry Officer submitted· his report. It may be
noticed that respondent was born on 1st February 1907 and according to Rule 16 of the All India Services
(Death-cum-Retirelll".Jlt
Benefits) Rules, 1958 ('Retirement Rules' for short), then in force,
the age of retirement being 55 years, the respondent would have retired from servio~ on 1st February 1962. First, the Governor of
Assam by his order dated 31st January 1962 purporting to exercise
power under Rule 16(1) of the Retirement Rules, directed that the
respondent then under suspension be retained in service for a period of
three months beyond the date of his retirement which fell on Ist
February 1962 or till the termination of departmental proceedings
drawn up against him whichever is earlier.
By subsequent orders
dated 21st June 1962, Ist September 1962, 23rd February 1963 and
28th August 1963 respondent was retained in service, till the inquiry
pending against him concluded and final orders were passed in the proceedings.
[t may be mentioned that the order dated 28th August 1963
was made by the Governor in exercise of the powers conferred by subrule (2) of rule 16 of the Retirement Rules.
The Enquiry Officer
submitted his report holding charges 1, 2, 3, 5 and 6 proved and in
respect of charge No. 4 the finding recorded was that though the charge.
was proved, the Enquiry Officer took note of certain extenuating circumstances mentioned in the report.
A Memorandum dated 22nd
February 1963 was served by the Government of India on the respondent forwarding the report of the Enquiry Officer and the respondent
was called upon to show cause why the provisional penalty determined
by the Government of removal from service be not imposed upon him.
Ultimately, by order dated 11th October 1963 the President, after consultation with the Union Public Seryice Commission, imposed the
penalty of removal from service on the respondent.
A memorial submitted by the respondent to the President under Rule 20 of the All
India Services (Discipline & Appeal) Rules,
1955, ('Discipline and
Appeal Rules' for short), 'against the imposition of the penalty was
rejected.
The respondent filed a petition under Article 226 of the Constitution
in the High Court of Assam and Nagaland.
Two contentions were
raised before the High Court: (1) Whether rule 16(2) of the Retirement Rules is attracted so as to retain the respondent in service beyond
the period of his normal retirement for the purpose of completing disciplinary proceedings against the respondent; and (2) if rule 16(2) was
not attracted, whether the retention of respondent beyond the normal
period of his retirement was valid and if it was not valid, whether he
A
c
E
F
G
H
A
B
c
D
E
F
G
H
508
SUPREME COURT REPORTS
[1979] 3 s.c.R.
could be removed from service after he had actually and effectively
retired from service 7 While examining these two contentions, the
High Court was of the opinion that disciplinary proceedings can be
held and punishment can be imposed for misconduct and the charges
ex facie did not disclose any misconduct because negligence in performance of duty or inefficiency in discharge of duty would not constitute
misconduct.
On the second point it was held that if the Enquiry was
not for any misconduct, sub-rule (2) of rule 16 would not be attracted
and the Government had no power to retain the respondent in service
for the purpose of holding or completing disciplinary proceeding which
can only be tor misconduct, and as there was no inquiry into what can
be styled as misconduct, the retention in service of the respondent
beyond the period of retirement was not legal and valid, and, therefore,
the respondent could not be removed from service from which he had
retired. In accordance with these findings, the writ petition filed by the
respondent was allowed declaring that the respondent was deemed to
have retired from service from 1st February 1962 and that the punitive
or disciplinary action taken against him after that date is completely
without jurisdiction and wholly unjustified, and the same was quashed.
The Union of India and the State of Assam have preferred this
appeal by special leave.
Rule 3 of the Discipline and Appeal Rules provides that the penalties therein set out may, for good and sufficient reasons, be imposed on
a member of service.
One such penalty prescribed therein is 'removal
from service which shall not disqualify for future employment'. Rule
4 prescribes the authority competent to institute disciplinary proceedings.
Where a member of a service has committed any act or omission
which renders him liable to any penalty specified in rule 3, an inquiry
shall be held according to procedure prescribed in rule 5.
Therefore
penalty prescribed in rule 3 can be imposed upon a member of the service for any act or omission committed by him which, according to
rule 3, must provide good and sufficient reason to impose one or the
other of the penalties mentioned therein.
Rule 7 of the Discipline and
Appeal Rules enables the Government to put under suspension a member of the Service during disciplinary proceeding if having regard to the
nature of charges and circumstances the Government thinks it proper
to do so.
Sub-rule (2) of Rule 16 of the Retirement Rules as it stood
at the relevant time reads as under :
"16(2). A member of the service under suspension on a
charge of misconduct shall not be required or permitted to
retire from the service but shall be retained in service until the
• •
•
•
.~·
·-<
\
•
UNION v. J. AHMED (Desai,!.)
509
inquiry into the charges against him is concluded and a final
A
order is passed".
A survey of these rules would show that disciplinary proceedings
can be held against a member of the service for any act or omission which
renders him liable to a penalty and such penalty can be imposed for
good and sufficient reasons.
All India Services
(Conduct)
Rules,
i954, prescribe a code of conduct for members of service. Discipline
and Appeal Rules provide for disciplinary action and imposition of
penalties.
Sub-rule (2) of rule 16 of the Retirement Rules contemplates a situation where a member of service against whom disciplinary
proceeding is pending is likely to retire and the proceedingl! may be
thwarted and provides for his retention in service beyond the date of his
retirement till the completion of the inquiry, provided the delinquent officer is under suspension on a charge of misconduct.
The respondent contended and the contention has found
favour
with the High Court that the charges framed against the respondent,
even if they are held proved, would not constitute misconduct, and,
therefore, it could not be said that he was under suspension on a charge
of misconduct and accordingly &ub-rule (2) of rule 16 would not be
attracted and he could not be retained in service beyond the date of his
retirement. It was said that retention in service being invalid, imposition of penalty after his retirement is illegal.
Therefore, what constitutes misconduct for a member of a service liable to be removed from
service on proof ofsuch misconduct in a disciplinary proceeding, looms
large in this case.
To appreciate the contention it is better to have a look at the charges
framed against the respondent.
They are as under :
"(i) Completely failed to take any effective preventive
measures against widespread disturbances breaking out in
Nowgong District in spite of adequate warning being conveyed.
(ii) Showed complete lacl: of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and co-ordinate co-operations with the police to restore Law and Order;
(iii) Did not personally visit the scenes of disturbances
within the town or in the Rural areas, in time to take personal
control of the situation and to exercise necessary supervision;
B
c
D
E
F
G
H
A
510
SUPREME COURT REPORTS
[1979] 3 S.C.R •.
(iv) Did not keep Government informed of the actual
picture and extent of the disturbances;
(v) Showed complete inaptitude, lack of foresight, Jack
of firmness and capacity to take quick and firm decision and
were, thus largely responsible for complete break down of
B
Law and Order in Nowgong town as well as the rural areas
of N owgong District.
Thus you proved yourself completely unfit to hold any
responsible position".
C
The Inquiry Officer has treated the statement in the Jetter conveying
D
E
F
G
H
the charges that the respondent proved himself completely unfit to hold
a responsible position as a separate and independent charge which on
the face of it is merely a surmise or a conclusion drawn from the five
charges set out above.
This surmise or conclusion has to be ignored
and cannot be treated as a specific charge.
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 Jack of qualities expected of
an officer of the rank of Deputy Commissioner are listed as
charges.
to wit, charge No. 2 refers to the quality of Jack of leadership and
charge No. 5 enumerates inaptitude, 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 'acts and 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 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 en-
•
• '
•
•
•
•
..
{
~
UNION v. J. AHMED (Desai, J.)
511
tail penalty.
Failure to come u_p to the highest expectations of an
officer holding a responsible post or lack of aptitude or qualities of
leadership would not constitute 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 light-hearted
approach to duty. If rule 3 were the only rule iu 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 prcscr:bcd
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 const:tute
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
admin.istrative 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 earJ:cr clearly
indicate lack of efficiency, lack of foresight and indecisiveness as serious
lapses on the part of the respondent.
These deficiencies in
personal
character of personal ability would not constitute misconduct for the
purpose of disciplinary proceedings.
A
B
c
D
E
F
\
It would be appropriate at this stage to ascertain what generally
•
constitutes misconduct, especially in the context of disciplinary proceedings entailing penalty.
Code of conduct as set out in the Conduct Rules clearly ind'catcs the
conduct expected of a member of the service.
It would follow that
G
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(')]. A disregard of an
essential condition of the contract of service may constitute misconduct
[see Laws v. London Chronicle ·(lndicator Newspapers)(')].
Th;s
H
(1) 17 QB 536 at 542.
(2) [1959] I WLR 698.
13-253SCI/79
512
SUPREME COURT REPORTS
[1979] 3 s.c.R.
A
view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional
Superintendent, Central Railway, Nagpur Division,
Nagpur('),
and
Satubha K. Vaghela v. Moosa Raza(2 ). The High Court has noted
the definition of misconduct in Stroud's Judicial Dictionary which runs
as under :
B
"Misconduct means, misconduct arising from ill motive;
c
D
E
F
G
H
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 (') , 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. Unio nof India(•), the mamnner 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("), 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 ·'.he
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
(1) 61 Born. L.R. 1596.
(2) 10 Guj. L.R. 23.
(3) [1966] 2 SCR 434.
(4) [1967] 2 SCR 566,
(5) [1964] 2 SCR 104.
•
\
I
• j
•
..
{
" . ,-
.·'-(
\
-
UNION V. J. AHMED (Desai, !.)
513
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 stationary train causing headlong collision;
a
nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument
~howing snag in engine and the aircraft crashes causing heavy loss of
life.
Misplaced sympathy can be a great evil
[see Navincl1'mdra
Shakerchand Shah v. Manager, Ahmedabad Co-op. Departme/1/ Stores
Ltd.(')]. 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.
The High Court was of the opinion that misconduct in the context
A
B
c
Df disciplinary proceeding means misbehaviour involving some form of
guilty mind or mens rea.
We find it difficult to subscribe to this view
because gross or habitual negligence in performance of duty may not
involve mens rea but may still constitute misconduct for disciplinary
D
proceedings.
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
alic alleged failure to take any effective preventive measures meaning
thereby error in judgment in evaluating developing situation.
Similarly,
failure to visit the scenes of disturbance is another failure to perform the
duty in a certain manner. Charges Nos. 2 and 5 clearly indicate the
shortcomings in the personal capacity or degree of efficiency of the
respondent.
It is alleged that respondent showed complete lack of
leadership when disturbances broke out and he
disclosed
complete
inaptitude, lack of foresight, lack of firmness and capacity to take firm
decision. T)lese are personal qualities which a man holding a post of
Deputy Commissioner would be expected to possess.
They may be
relevant considerations on the question of retaining him in the post or
for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, charges
2, 5 and 6 are clear surmises on account of the failure Df 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 No. 4
because even the Enquiry Officer has noted that there are number of
extenuating circumstances which may exonerate the resp()lldent in respect of that charge.
What was styled as charge No. 6 is the conclu-
(1) (1978) 19 G.L.R. 108 at 120.
E
F
G
A.
B
c
D
E
F
G
H
514
SUPREME COURT REPORTS
[1979] 3 s.c.R.
sion, viz., because of what transpired in the inquiry, the Enquiry Officer
was of the view that the respondent was unfit to hold any respomible
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 & Appeal Rules, 1955.
No such case has been made out.
Mr. Naunit Lal for the appellant contended that the word 'misconduct' is nowhere used either in the Conduct Rules or in the Discipline
and Appeal Rules and the Court should not import any concept of misconduct in this inquiry.
The word 'misconduct' has relevance
here
because the respondent in due course would have retired from sen-ice
on 1st February 1962 on attaining the age of 55 years.
The inquiry
could not be completed before the relevant date and it became necessary
for the Government to retain the respondent in service beyond the normal period of retirement on superannuation for continuing the inquiry.
Rule 16(1) of the Retirement Rules 1955 as it stood at the relevant
time provided for retirement on superannuation on attaining . the age
of 55 years.
There is a proviso to rule 11}(1) which enables the Stile
Government to postpone the period of retirement and retain the
Government servant in service for an aggregate period not exceeding
six months and if the retention in service beyond that period is required,
the same will have to be with the sanctioll" of the Central Government.
Respondent would have retired from service on attaining the age of
55 years on 1st February 1962. He was served with a charge-sheet
dated 13th September 1960. The inquiry could not be completed
before the date of retirement of the respondent.
The Government of
Assam by order dated 31st January 1962 retained the respondent in
· service for a period of three months beyond the date of his retirement
which fell on 1st February 1962 or till the termination of the departmental proceedings drawn up against him whichever is earlier. In view
of the language of rule 16(1), the Assam Government had no power
to extend the period of service of a member of the service beyond a
period of six months in the aggregate.
Therefore, retention for a
period of three months would be legal and valid with the result that the
•
-
{
\
\ '
f
UNION v. J. AHMED (Desai, J.)
515
date of retirement of the respondent would be postponed to 1st May
1962. Admittedly no order was made by the Assam Government
before 1st May 1962.
The order postponing the date of retirement
and retention of the respondent in service beyond 1st May 1962 was
A
made on 21st June 1962. No order was made by the Assam GovernB
ment for postponing the period of retirement of the respondent and his
retention in service before 1st May 1962.
The State Government had
power under rule 16(1) (a) of the Retirement Rules to retain the respondent in service for a period of six months in aggregate and therefore, even though specific period was mentioned in the order, simultaneously providing for retention in service till the date of termination
C
of the proceedings, the extension would be valid for a periocl of six
months in the aggregate if the inquiry was continuing till the expiration
of six months but not exceeding six months.
In that event the respondent would retire from service by 1st August 1962.
Putting the construction on rule 16(1) (a) and the order of extension, most favourable
to the State Government, it may be stated at once that retention in
D
service upto 1st August. 1962 would be valid but unfortunately the
inquiry was not over by 1st August 1962. No order was made before
1st August 1962 for retention of the respondent in service beyond 1st
August 1962.
The order next in succession is of 1st September 1962.
This order is again made by the State of Assam.
The State Government had no power to retain a member of tl1e service for. a period
E
exceeding six months in the aggregate after the date of his normal
retirement. The maximum period for
which retention could be
ordered by the State Government being thus six months, the respondent would !iave retired from service on 1st August 1962. Even if aii.-..
order had been made by the State Government to retain the respondent
F
in service it would he without jurisdiction and the order in fact was
made on 1st September 1962.
Now, undoubtedly under rule 16(1) (b)
the Central Government has power to retain a member of the service
in service after the date of retirement for any period beyond six months.
But in this connection it may be pointed out that no such order appears
to have been made by the Central Government.
All the subsequent
G
orders were made by the Government of Assam.
Such orders made
by the Government of Assam would not have th~ effect of retaining the
respondent in service beyond a period of six months from the date of
his normal retirement.
That being the maximum period, the State
Government had no power to retain the respondent in service. If the
State Government could not retain him in service beyond 1st August,
H
1962, it could not continue the inquiry thereafter. This position seems
to he clearly established by the decision of this Court in State of Assam
A
B
c
'516
SUPREME COURT REPORTS
(1979] 3 S.C.R.
v. Padma Ram Borah('). In that case the State Government had made
an order to retain the Government servant in service up to the end of
March 31, 1961. Subsequent order extending the period was made
on 9th May 1961. This Court held that according to the earlier order
of the State Government itself the service of the Government >ervant
had come to an end on March 31, 1961 and the State Government
could not by unilateral action create a fresh contract of service to take
effect from April 1, 1961. If the State Government wished to continue
the service of the respondent for a further period, the State Government
should have issued a notification before March 31, 1961.
It is
thus
clear that the retention of the respondent in service by order of the State
Government not made before the retirement taking place on !st August
1962 and the State Government not having the power to retain the res-·
pendent, a member of the Indian Administrative Service, beyond a
period of six months, the respondent could not be said to have continued in service so that an inquiry could be continued against him.
Mr. Naunit Lal, however, contended that sub-rule ,(2) of rule 16
D
clearly provides that a member of the service under suspension on a
charge of misconduct shall not be required or permitted to retire from
the service until the enquiry into the charges against him is concluded
and a final order is passed. It is in the context of snb-rule (2) of rule
16 that the question of the nature of the proceedings held against the
E
respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry
into the charges against him was concluded and a final order was made.
But before sub-rule (2) of rule 16 would be attracted it must be shown
#111' lllat the member of the service was under suspension on a charge of
misconduct and an inquiry was being conducted against him.
As
F
pointed out earlier, no misconduct as one would understand that word
in the context of disciplinary proceeding was alleged against the respondent.
There was an inquiry but before sub-rule (2) of rule 16 is
attracted, it had to be an inquiry on a charge of misconduct.
What is
alleged is not misconduct as the word is understood in service jurisprudence in the context of disciplinary proceedings.
Therefore,
it
G
could not be said that an inquiry on a charge of misconduct was being
held against the respondent and sub-rule (2) of rule 16 would thus be
attracted and he would be deemed to have been retained in service till
the inquiry was concluded.
It thus appears crystal clear that there was no case stricto sensu for
H
a disciplinary proceeding against the respondent.
In fact the inquiry
was held to establish that the respondent was not fit to hold a respon-
(1) AIR 1965 S.C. 473.
..
.
)
•
..
I
' .
UNION v. J. AHMED (Desai, J.)
517
sible post.
The respondent was actually retiring from service and there
A
was no question of his any more holding a responsible position.
Yet
not only the inquiry was initiated but he was retained in service beyond
the date of his normal retirement till the final order was made on 11th
October, 1963 when he was removed from the Indian Administrative
Service. It appears that there were large scale disturbances in
the
State. There followed the usual search for a scapegoat and the respondent came handy.
Some charges were framed none of which could
constitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was not a very efficient officer
and lacked the quality of leadership and was deficient in the faculty o[
decision making. These deficiencies in capacity would not constitute
misconduct. If the respondent were a young man and was io continue
in the post for a long period, such an inquiry may be made whether he
should be retained in the responsible post. He may or may not be
retained but to retain him in s,rvice beyond the period of his norm~!
retirement with a view to p_unishing him was wholly unjustified. The
High Court was, therefore, right in coming to the conclnsion that the
respondent was no longer in service on the date on which an order
removing him from service was made and, therefore, the order was
illegal and void.
Accordingly, this appeal fails and is dismissed with costs.
P.B.R.
Appeal dismissed.
B
c
D