Rajasthan High Court - Jaipur
Rajendra Prasad Sharma vs State Of Raj on 22 March, 2018
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 11263/2009
Rajendra Prasad Sharma son of Shri Jagan Prasad Sharma, aged
around 46 years, resident of Plot No.132, Vishvesariya Nagar,
Gopalpura byepass, Jaipur.
----Petitioner
Versus
State of Rajasthan through the Secretary, Department of
Personnel, Government of Rajasthan, Government Secretariat,
Jaipur.
----Respondent
For Petitioner(s) : Mr.R.N.Mathur, Sr. Adv. assisted by
Mr.Nikhil Saini, Adv.
For Respondent(s) : Mr.B.L.Avasthi, Addl. Govt.Counsel
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
JUDGMENT
Judgment reserved on : 13.03.2018
Judgment pronounced on : 22.03.2018
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The petitioner has filed the present writ petition challenging
the following orders: (i) the order dated 20 th July, 2009 whereby
the review petition filed under Rule 34 of Rajasthan Civil Services
(CCA) Rules, 1958 has been dismissed as having become time
barred, (ii) the order dated 28th April, 2003 passed in review
petition filed by the petitioner whereby the penalty of stoppage of
three annual grade increments with cumulative effect was
substituted with stoppage of one annual grade increment with
cumulative effect, (iii) the order dated 29th July, 2002 passed by
Disciplinary Authority-Department of Personnel whereby a penalty
(2 of 24) [CW-11263/2009]
of stoppage of three annual grade increments with cumulative
effect was imposed upon the petitioner.
The brief facts of the case are that petitioner while working
as Sub-Divisional Officer (SDO) at Bandikui, District Dausa, came
to be served with a memorandum along with charge-sheet issued
under Rule 16 of Rajasthan Civil Services (CCA) Rules, 1958
(hereinafter referred to as "the CCA Rules"). The said charge-
sheet was issued in respect of work performed by the petitioner in
relation to a complaint submitted by one Shri Sita Ram son of
Jagannath under Sections 107 & 116(3) of Cr.P.C. The charge-
sheet is reproduced as hereunder:-
jktLFkku ljdkj
dkfeZd foHkkx ¼d&3½
vkjksi i= fo:) Jh jktsUnz izlkn 'kekZ] vkj-,-,l=-] rRdkyhu mi[k.M vf/kdkjh]
ckanhdqbZ] ftyk nkSlk
vkjksi la[;k 1 %& ;g gS fd mDr Jh jktsUnz izlkn 'kekZ] vkj-,-,l] mi[k.M
eftLVaªsV] ckanhdqbZ] ftyk nkSlk esa inLFkkiu ds nkSjku ftyk dysDVsªV] nkSlk esa
dk;Zjr prqZFkZ Js.kh deZpkjh Jh lhrkjke }kjk fnukad 23-6-97 dks Ok"kZ 1973 esa gh
e`r O;fDr Jh Hkxoku lgk;d ,oa vU; ds fo:) ek= ,d O;fDrxr >xM+s dh
f'kdk;r izLrqr dhA mDr deZpkjh dks vns; ykHk igqapkdj xkao esa mldk :rck
c<+kus ds n`f"Vdks.k ls bl f'kdk;rh i= ds rF;ksa dh tkap fd;s fcuk fxjIrkjh
okjaV rRdky tkjh dj fn;k x;k tcfd bl f'kdk;rh izkFkZuk i= ds lkFk layXu
fd;s x;s 'kiFk i=ksa ls rRdky 'kkafr Hkax dk ekeyk ugh curk FkkA bl izdkj e`r
O;fDr o vU; ds fo:) vkjksi dfFkr fd;s x;s f'kdk;rh i= ij fcuk izfd;k dk
ikyu fd;s gh fxjIrkjh okj.V tkjh djds vius in dk nq:i;ksx dj O;fDr
fo'ks"k dks vns; YkkHk igqapkdj jkT; ds izfrfu/kh dh gSfl;r ls inh; xfjek dh
izfr"Bk dks fxjk;k gS ftlds fy;s os mRRkjnk;h gSA tSlk fd layXu vkjksi fooj.k
i= la[;k 1 esa mfYyf[kr gSA
vkjksi la[;k 2%& ;g fd mDr Jh jktsUnz izlkn 'kekZ] vkj-,-,l us Jh
lhrkjke }kjk izLrqr f'kdk;r ij okj.V tkjh dj lacaf/kr Fkkuk dksyok dks Hkst
fn;s x;s Fks ftl ij vkxs dk;Zokgh fof/k dh izfd;kuqlkj Fkkukf/kdkjh] dksyok dks
lEikfnr djuh Fkh ysfdu okja.V tkjh fd;s O;fDr;ksa esa ls ,d Jh vkseizdk'k 'kekZ
vius futh dk;Z gsrq mi[k.M dk;kZy;] ckanhdqbZ ds ifjlj esa vk;k gqvk Fkk] ftls
pkykuh xkMZ ls fxjIrkj djokdj fgjklr esa can dj fn;kA bl izdkj viuh inh;
gSfl;r dk xaHkhj nq:i;ksx djds nqjkpj.k ,oa vuq'kklughurk dh gS vkSj vke
turk esa in dh izfr"Bk dks fxjk;k gS ftlds fy, vki mRrjnk;h gSA tSlk fd
layXu vkjksi fooj.k i= la[;k 2 esa mfYYkf[kr gSA
vkjksi la[;k 3%& ;g fd mDr Jh jktsUnz izlkn 'kekZ] vkj-,-,l }kjk mDr in
ij inLFkkfir gksrs gq, mDr Jh vkseizdk'k dks fxjIrkj djkus ds mijkar bldh
tekur rLnhd ugha dh xbZAbl izdj.k esa nksuksa i{kksa ds chp jkthukek gksus ds
mijkar Hkh xSj lk;dky dks fnukad 9-7-97 dks 6 ekg ds fy;s 'kkafr o dkuwu
(3 of 24) [CW-11263/2009]
O;oLFkk cuk;s j[kus ds fy;s ikcan dj fn;k x;k vkSj 5000&5000 :i;s ds ca/k
i=- fu"ikfnr djus dk vkns'k Hkh ns fn;k x;k ftls ftyk ,oa lS'ku U;k;ky;]
nkSlk us vius vkns'k fnukad 25-7-98 }kjk fujLr dj fn;kA ek- lS'ku U;k;ky;]
nkSlk us vius vkns'k fnukad 25-7-98 esa iwjh dk;Ziz.kkyh dks vln~Hkkoh ,oa vuqfpr
I;k rFkk mi[k.M eftLVªsV ds vkns'k dks fujLr dj fn;kA vr% vki Jh jktsUnz
izlkn }kjk inh; gSfl;r dk nq:i;ksx djds xEHkhj nqjkpj.k fd;k x;k gSA tSlk
fd layXu vkjksi fooj.k i= la[;k 3 esa mfYyf[kr gSA
''kklu mi lfpo
The petitioner after receipt of charge-sheet submitted his
reply and denied the allegations levelled against him in the said
charge-sheet. The Disciplinary Authority after receipt of charge-
sheet appointed Enquiry Officer to conduct departmental enquiry
against the petitioner. The Enquiry Officer submitted his report to
the Disciplinary Authority on 30th January, 2002. The Enquiry
Officer found that all the three charges levelled against the
petitioner were not proved and as such, the petitioner was
exonerated from the allegations levelled against him.
The Disciplinary Authority did not agree with the findings of
the Enquiry Officer and it prepared a note of disagreement and
sent a letter dated 15th March, 2002 containing the reasons of
disagreement with the Enquiry Officer to the petitioner. The
Disciplinary Authority found that all the three charges were proved
against the petitioner and as such, the explanation of the
petitioner was called on the note of disagreement sent by the
Disciplinary Authority.
The petitioner after receipt of note of disagreement sent his
reply on 20.05.2002 and requested the Authority to drop all the
charges levelled against him.
The Disciplinary Authority vide order dated 29th July, 2002
found all the three charges proved against the petitioner and
(4 of 24) [CW-11263/2009]
passed the penalty order of withholding of three annual grade
increments with cumulative effect.
The petitioner feeling aggrieved against the penalty order
had preferred a review petition under Rule 33 of CCA Rules before
the respondents and requested that the petitioner may be
exonerated from the charges and penalty order may be set aside.
The Reviewing Authority found that there was only procedural
irregularity in passing the order by the petitioner under Sections
107 & 116 of Cr.P.C. and it might have affected rights of the other
party, however, there was no malafides on the part of the
petitioner. The Reviewing Authority found that the punishment
imposed against the petitioner was excessive and as such, it
substituted the punishment of stoppage of three annual grade
increment with cumulative effect with stoppage of one annual
grade increment with cumulative effect vide order dated 28th April,
2003.
The petitioner filed the review petition under Rule 34 of CCA
Rules before the Governor against the order dated 28 th April,
2003. The review petition was time barred and it came to be
dismissed by order dated 20th July, 2009 as having been filed
belatedly.
The petitioner has pleaded in his writ petition that while
working as Sub-Divisional Officer, Bandikui, he received a
complaint dated 23rd June, 1997 of one Shri Sita Ram, who was
serving as Class-IV employee in the office of District Collector,
Dausa, alleging that his wife, daughter and uncle had gone to
hand-pump to fetch water and there, persons namely,
Radheshyam son of Bhagwan Sayay, Dinesh and Om Prakash son
of Radheshyam and females in the name of Guddi, Indra and
(5 of 24) [CW-11263/2009]
Lalita had given severe beating to his wife and Bhagwan Sayay
had tried to outrage modesty of his wife. It was alleged in the
complaint that due to intervention of some independent persons,
injured could save their life and there was imminent danger to him
and his family members and there was every likelihood of serious
threat to their person and property and as such, immediate action
was sought by the complainant.
The petitioner after considering the complaint and the
affidavits filed along with the complaint, took cognizance of the
complaint and passed the order as to why non-complainants may
not be asked to submit sureties and bonds of Rs.5000/- to
maintain peace. The petitioner also drew the proceedings to issue
notice under Section 111 of Cr.P.C. and further formed an opinion
on the basis of affidavits filed along with the complaint that there
was every possibility of breach of peace and as such, the non-
complainants were to be directed to be produced through warrants
and accordingly, warrants were also issued. The petitioner had
fixed next date as 27th June, 1997.
The petitioner has pleaded that on 26 th June, 1997 the Guard
on duty (Challani Guard) produced one of the non-complainants,
Shri Om Prakash. It was reported by Challani Guard that non-
complainant Om Prakash had indulged in giving beating to the
complainant outside the court premises and since the warrants
were already issued, the non-complainant Om Prakash was
produced in the court. When the said non-complainant Om
Prakash was produced in court, he again got furious and
considering the possibility of breach of peace, he was sent to
judicial custody. The petitioner has pleaded that on 27 th June,
1997, the complainant had appeared before the Court and
(6 of 24) [CW-11263/2009]
warrants of non-complainants were not executed and as such, the
matter was fixed for 2nd July, 1997. The petitioner pleaded that on
2nd July, 1997, since Om Prakash was released on bail from District
& Sessions Judge, Dausa-camp-Bandikui, he appeared along with
his lawyer. It was also noted that both the sides were in process of
reaching to a compromise and as such, the said compromise was
to be produced before the next date and accordingly, the
petitioner dispensed with presence of other non-complainants by
way of warrants. The case was listed on 9 th July, 1997 and both
the parties produced the compromise and the petitioner asked the
non-complainants to execute bonds for a period of six months for
maintaining the peace and as such, the file was consigned to the
record.
The petitioner has pleaded in his writ petition that he while
exercising the judicial powers under Section 107 onwards, did not
commit any misconduct and as such, he has been unnecessarily
issued a charge-sheet and further, punished. The petitioner has
pleaded in his petition that he has not committed any misconduct
while exercising power under Sections 107 & 116(3) of Cr.P.C. and
he further complied with provision of Section 111 of Cr.P.C.
The petitioner has pleaded that once he was not found guilty
of committing any misconduct by the Enquiry Officer, the
Disciplinary Authority only on the basis of surmises and
conjectures arrived at a conclusion regarding guilt of the petitioner
even without looking into the fact. The petitioner has further
pleaded in his writ petition that Reviewing Authority has itself
found that there was no malafide intention of the petitioner and
yet the procedural lapse has been found to be committed by the
(7 of 24) [CW-11263/2009]
petitioner and as such, the petitioner has unnecessarily been
punished.
The petitioner has further pleaded that he is entitled to the
protection for the acts performed by him in judicial capacity as
Executive Magistrate and even if there was a procedural error,
such act cannot be termed as misconduct.
The petitioner has pleaded in his writ petition that under the
power by proviso to Section 113 of Cr.P.C., if the Executive
Magistrate forms an opinion and it appears to him that there is a
reason to fear the commission of breach of peace and such breach
of peace cannot be prevented otherwise than by immediate arrest
of such person, the Magistrate may at any time issue a warrant for
his arrest. The petitioner submitted that considering the situation
obtaining on that day, the petitioner has acted in bonafide manner
and as such, it could not have been become a misconduct for
initiating the departmental enquiry.
The respondents have filed reply to the writ petition and
have submitted that the Disciplinary Authority on the basis of
evidence on record found the petitioner guilty of charges levelled
against him. The District Judge & Sessions Judge, Dausa vide
order dated 25th July, 1998 had set aside the order dated 09 th July,
1997 passed by the petitioner directing non-complainants to
submit surety bond to maintain peace and there was no possibility
of the breach of peace and yet the order was passed by the
petitioner malafidely without following the process. The
respondents have submitted that petitioner committed a grave
misconduct of misusing his post and he also issued process
against dead person and it shows that no enquiry was made on
the complaint filed by Sita Ram. The respondents have submitted
(8 of 24) [CW-11263/2009]
that had the prima facie enquiry been conducted, it could have
come to notice that Bhagwan Sahay had died many years ago and
as such, the petitioner was guilty of the charges levelled against
him. It has been emphasized in the reply that petitioner misused
his official position and without following the procedure, he issued
orders. He committed a grave misconduct and as such, he was
rightly punished.
Mr. R.N.Mathur, Senior Advocate appearing for the petitioner
has submitted that the alleged acts done by the petitioner were
judicial functions and same cannot be subject matter of
disciplinary enquiry. Mr. Mathur has submitted that petitioner has
not committed any misconduct while performing his duties in
judicial capacity. Mr. Mathur has submitted that no departmental
enquiry can be held against an Officer, if he has worked in judicial
capacity until orders are passed with ill-motive or in a malafide
manner.
Mr. Mathur has submitted that the Enquiry Officer once had
given the findings on the basis of documentary and oral evidence
that petitioner did not exceed his limit in exercise of powers given
under Section 107 onwards for maintaining the peace under
Chapter-VIII of Cr.P.C., the Disciplinary Authority only on surmises
and conjectures prepared a note of disagreement and punished
the petitioner without considering the relevant facts.
Mr. Mathur has submitted that the note of disagreement
prepared by the Disciplinary Authority has altogether been given
on different charges which are not levelled against the petitioner.
Mr. Mathur has submitted that such reasons given are like in the
nature of (i) the Enquiry Officer erroneously found that the
application dated 23rd June, 1997 to be a complaint and there was
(9 of 24) [CW-11263/2009]
no complaint under Section 107 of Cr.P.C. as there was no title
and no mentioning of Section in the said application, (ii) the
petitioner did not make any enquiry in the complaint nor he
examined the affidavit filed with the complaint and yet he issued
the warrants misusing the official position, (iii) there was already
FIR No.92/1997 registered at Police Station Kolwa and petitioner
while issuing the warrant dated 23rd June, 1997 was not having
such information, (iv) the petitioner did not follow the procedure
as laid down in Section 105 onwards.
Mr. Mathur in support of submissions has relied upon the
judgments (i) Union of India & Ors. Vs. J.Ahmed, reported in AIR
1979 Supreme Court 1022, (ii) Union of India & Anr. Vs.
R.K.Desai, reported in (1993) 2 Supreme Court Cases 49, (iii)
Vijay Singh Vs. State of Uttar Pradesh & Ors., reported in (2012) 5
Supreme Court Cases 242, (iv) P.C.Joshi Vs. State of U.P. & Ors.,
reported in (2001) 6 Supreme Court Cases 491, (v) Ramesh
Chander Singh Vs. High Court of Allahabad & Anr., reported on
(2007) 4 Supreme Court Cases 247 and (vi) State of Rajasthan &
Ors. Vs. Jagmal Singh, reported in 2017 LabIC 3136.
Per contra, Mr.B.L.Avasthi, the learned Additional Govt.
Counsel submitted that petitioner is guilty of serious misconduct
as the petitioner issued the warrant of arrest to the non-
complainants on first date and in fact only notices/summon should
have been issued to such persons.
Mr. Avasthi has submitted that the findings given by the
Disciplinary Authority is in consonance with the charges levelled
against the petitioner and note of disagreement does not travel
beyond allegation levelled against him.
(10 of 24) [CW-11263/2009]
Mr.Avasthi has submitted that procedure as given under
Sections 107 & 116 of Cr.P.C. was not followed and petitioner did
not make any enquiry before issuing the warrant of arrest and as
such, he has rightly been punished.
Mr. Avasthi has submitted that Reviewing Authority has also
recorded about exceeding of jurisdiction, committed by the
petitioner, hence, misconduct has been committed under Rule 3(ii)
of Rajasthan Civil Services (Conduct) Rules, 1971.
Mr. Avasthi has relied upon the judgment of Supreme Court
rendered in the case of Central Industrial Security Force & Ors. Vs.
Abrar Ali, reported in AIR 2017 SC 200 and the judgment of this
Court at Principal Seat, Jodhpur in S.B.Civil Writ Petition
No.669/2003 (Inder Singh Rathore Vs. State of Rajasthan, decided
on 23.01.2017.
I have considered the submissions of learned counsel for the
parties and perused the material on record.
The first issue is with regard to holding the disciplinary
proceedings in respect of acts done by the petitioner while
discharging judicial functions, this Court finds that the petitioner
after receiving the complaint under Sections 107 & 116(3) of
Cr.P.C., drew the proceedings under Section 111 of Cr.P.C. to issue
notices to non-complainants and such persons were summoned
through warrants. The petitioner formed an opinion on the basis of
complaint and affidavits filed that there was every likelihood of
breach of peace and as such, he exercised the power under
Section 113 of Cr.P.C. to issue the warrants. The formation of
opinion of the petitioner considering the fear of breach of peace
and finding that such breach of peace cannot be prevented
otherwise than by immediate arrest, the petitioner issued warrant
(11 of 24) [CW-11263/2009]
of arrest. This Court also finds that on 26 th June, 1997, the
petitioner sent one Om Prakash to judicial custody as he not only
indulged in beating with the complainant but also got furious in
the Court. The petitioner realizing the gravity exercised his power
in bonafide manner. The order passed by the petitioner on 9 th July,
1997 on the basis of a compromise entered between the
complainant and non-complainant, he had only directed to
maintain peace for six months by asking non-complainants to
execute personal bond of Rs.5000/- each.
This Court finds that the petitioner in best of his judgment
thought after considering the fact situation that all the steps were
required to be taken under the powers given to him under
Criminal Procedure Code for maintaining peace.
The function which the petitioner discharged, could in no
manner be termed as misconduct as petitioner performed his
official duties in best of his judgment. The petitioner's act of
taking steps under the powers given in Cr.P.C., if is exercised in
best of his judgment, it cannot be said that petitioner has
committed a misconduct.
The relevant Rule 3 of Rajasthan Civil Services (Conduct)
Rules, 1971 is reproduced as hereunder:-
"3. General.- (1) Every Government servant shall at all
times-
(i) maintain absolute integrity; and
(ii) maintain devotion to duty and dignity of office.
(2) (i) Every Government Servant holding a supervisory
post shall take all possible steps to ensure the
integrity and devotion to duty of all Government
servants for the time being under his control and
authority;
(ii) No Government servant shall, in the performance of
his official duties or in the exercise of powers
conferred on him, act otherwise than in his best
judgment except when he is acting under such
(12 of 24) [CW-11263/2009]
direction, obtain the direction in writing, wherever
practicable, and where it is not practicable to obtain
the direction in writing, he shall obtain written
confirmation of the direction as soon thereafter as
possible.
Explanation- Nothing in clause (ii) of sub-rule (2)
shall be constituted as empowering a Government
servant to evade his responsibilities by seeking
instructions from, or approval of, a superior officer or
authority when such instructions are not necessary
under the scheme of distribution of powers and
responsibilities."
The Court finds that as per Rule 3(2)(ii) of the Conduct
Rules, Government Servant while performing his official duties or
in the exercise of power conferred on him, has to act in his best
judgment. The said rule makes it very clear that if an Officer has
conducted himself in faithful discharge of his duties and the same
is as per provisions of law, it cannot be said that the person has
committed a misconduct for which he is liable to be tried by way
of disciplinary proceedings.
The Court further finds that error of judgment, innocent
mistakes and act of negligence cannot constitute misconduct. Plain
and simple meaning of "misconduct" means misconduct arising
from ill-motive.
The submission of Mr. Mathur that petitioner while
discharging judicial duties has acted in bonafide manner and no
ill-motive has been attributed, this Court finds that the charges
levelled against the petitioner are in respect of not following the
due procedure and issuing a warrant of arrest at first instance, the
allegation against the petitioner is that he misused his power in
order to confer undue benefit on a person, cannot be treated to be
a misconduct. The second charge with regard to arrest of non-
complainant -Om Prakash, the petitioner is said to have misused
(13 of 24) [CW-11263/2009]
his official position and also showed act of indiscipline, the Court
finds that the petitioner after considering the situation and due to
behaviour of such person, had to exercise his power of sending
such person to the judicial custody. The Court finds that the said
charge is also in respect of not exercising the power in proper
manner and as such, it cannot be construed as a misconduct if the
petitioner had exercised his power in best of his judgment and he
thought to take action against such person. The charge no.3
against the petitioner that he misused his power by asking the
non-complainants to execute the bond for maintaining peace for
six months in spite of compromise entered between the parties
and such order being set aside by District & Sessions Judge, this
Court finds that the order passed by the petitioner on 9 th July,
1997 was set aside by the judicial forum and as such, it cannot be
presumed that petitioner had misused his power and committed a
serious misconduct.
In the opinion of the Court, the acts which were done by the
petitioner while exercising his powers cannot be considered as
misconduct and the petitioner cannot be punished on such
charges. This Court further finds substance in the submission of
the learned counsel for the petitioner that once petitioner was not
found guilty of any charges during the enqury by Enquiry Officer,
the Disciplinary Authority without due application of mind and
without levelling a charge on different allegation, yet passed the
punishment order. This Court is of the opinion that Disciplinary
Authority has a right to disagree with the findings of the Enquiry
Officer, however, the Disciplinary Authority has to give his note of
disagreement/reasons only on the allegations which are levelled in
the charge-sheet. The perusal of note of disagreement and
(14 of 24) [CW-11263/2009]
punishment order show that Disciplinary Authority has gone on
different tangent to punish the petitioner.
The submission of Mr. Mathur with respect to order dated
28th April, 2003 passed by the Reviewing Authority where it has
recorded that petitioner had not acted in malafide manner, this
Court finds that the Reviewing Authority also recorded that
petitioner was only guilty of not following the due procedure and it
resulted into violation of rights of the other parties (non-
complainants) but there was no ill-motive of the petitioner in
passing such order. This Court finds that once the Reviewing
Authority had found that petitioner had not acted in malafide
manner or with ill-motive, only on the ground of violation of
procedure, the petitioner could not have been punished and even
the substitution of punishment with stoppage of one annual grade
increment with cumulative effect is also not justified.
The reliance has been placed by learned counsel for the
petitioner in the case of Union of India & Ors. Vs. J.Ahmed
(supra), the Apex Court has considered the meaning of
misconduct and has held in para 11 of the judgment, as under:-
"11. Code of conduct as set out in the Conduct Rules
clearly indicates the conduct expected of a member of
the service. It would follow that that conduct which is
blameworthy for the Government servant in the context
of Conduct Rules would be misconduct. If a servant
conducts himself in a way inconsistent with due and
faithful discharge of his duty in service, it is misconduct
[see Pierce v. Foster) (1886) 17 QBD 536 at p.542.]. A
disregard of an essential condition of the contract of
service may constitute misconduct [see Laws v. London
Chronicle (Indicator Newspapers) (1959) 1 WLR 698].
This view was adopted in Shardaprasad Onkarprasad
Tiwari v. Divisional Supdt., Central Railway, Nagpur
Division, Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150),
and Satubha K. Vaghela v. Moosa Raza ((1969) 10Guj LR
23). The High Court has noted the definition of
misconduct in Stroud's Judicial Dictionary which runs as
under:
(15 of 24) [CW-11263/2009]
"Misconduct means, misconduct arising from ill
motive; acts of negligence, errors of judgment, or
innocent mistake, do not constitute such
misconduct".
In industrial jurisprudence amongst others, habitual or gross
negligence constitute misconduct but in Management, Utkal
Machinery Ltd. v. Workmen, Miss Shanti Patnaik (1966) 2
SCR 434 : (AIR 1966 SC 1051), in the absence of standing
orders governing the employee's undertaking, unsatisfactory
work was treated as misconduct in the context of discharge
being assailed as punitive. In S. Govinda Menon v. Union of
India (1967) 2 SCR 566: (AIR 1967 SC 1274). the manner in
which a member of the service discharged his quasi judicial
function disclosing abuse of power was treated as
constituting misconduct for initiating disciplinary
proceedings. A single act of omission or error of judgment
would ordinarily not constitute misconduct though if such
error or omission results in serious or atrocious
consequences the same may amount to misconduct as was
held by this Court in P. H. Kalyani v. Air France, Calcutta
(1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was
found that the two mistakes committed by the employee
while checking the load-sheets and balance charts would
involve possible accident to the aircraft and possible loss of
human life and, therefore, the negligence in work in the
context of serious consequences was treated as misconduct.
It is, however, difficult to believe that lack of efficiency or
attainment of highest standards in discharge of duty
attached to public office would ipso facto constitute
misconduct. There may be negligence in performance of duty
and a lapse in performance of duty or error of judgment in
evaluating the developing situation may be negligence in
discharge of duty but would not constitute misconduct unless
the consequences directly attributable to negligence would
be such as to be irreparable or the resultant damage would
be so heavy that the degree of culpability would be very
high. An error can be indicative of negligence and the degree
of culpability may indicate the grossness of the negligence.
Carelessness can often be productive of more harm than
deliberate wickedness or malevolence. Leaving aside the
classic example of the sentry who sleeps at his post and
allows the enemy to slip through, there are other more
familiar (examples) instances of which (are) a railway
cabinman signals in a train on the same track where there is
a stationary train causing headlong collision; a nurse giving
(16 of 24) [CW-11263/2009]
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 Co-op. Department Stores Ltd.(1978) 19 Guj LR
108 at p. 120). But in any case, failure to attain the highest
standard of efficiency in performance of duty permitting an
inference of negligence would not constitute misconduct nor
for the purpose of Rule 3 of the Conduct Rules as would
indicate lack of devotion to duty.
The Apex Court in the case of Union of India & Anr. Vs.
R.K.Desai (supra) has held in para 7 of the judgment, as under:-
"7. It seems difficult beyond dispute, and is not in fact
disputed before us, that it is not as if an officer belonging to
the Central Civil Service is totally immune from disciplinary
proceedings wherever he discharges quasi-judicial or judicial
functions. If in the discharge of such functions he takes any
action pursuant to a corrupt motive or an improper motive to
oblige someone or takes revenge on someone, in such a case
it is not as if no disciplinary proceedings can be taken at all.
On the contrary, merely because he gives a judicial or quasi-
judicial decision which is erroneous or even palpably
erroneous no disciplinary proceedings would lie. We may in
this connection usefully refer to H.H.B Gill v. R. AIR 1948 PC
128, 133 where it was held as under:
"A public servant can only be said to act or to purport
to act in the discharge of his official duty, if his act is
such as to lie within the scope of his official duty.
Thus a Judge neither acts nor purports to act as a
Judge in receiving a bribe, though the judgment
which he delivers may be such an act: nor does a
Government medical officer act or purport to act as a
public servant in picking the pocket of a patient
whom he is examining, though the examination itself
may be such an act. The test may well be whether
the public servant, if challenged, can reasonably
claim that, what he does, he does in virtue of his
office."
Following this ruling in United Provinces v. Electricity
Distributing Co. AIR 1948 PC 159 it was held in paragraph
21 as under:
"In the present case, it is equally clear that the
appellant 'could not justify the acts in respect of
which he was charged', i.e, acts of fraudulently
misapplying money entrusted to his care as a public
(17 of 24) [CW-11263/2009]
servant, 'as acts done by him by virtue of his office
that he held'."
The Apex Court in the case of Vijay Singh Vs. State of Uttar
Pradesh & Ors. (supra) has held in para 18 of the judgment as
under:-
"The present case shows dealing with the most serious
issues without any seriousness and sincerity. Integrity
means soundness of moral principle or character, fidelity,
honesty, free from every biasing or corrupting influence
or motive and a character of uncorrupted virtue. It is
synonymous with probity, purity, uprightness rectitude,
sinlessness and sincerity. The charge of negligence,
inadvertence or unintentional acts would not culminate
into the case of doubtful integrity."
The Apex court in the case of P.C.Joshi Vs. State of U.P. &
Ors. (supra) has held in para 8 of the judgment, as under:-
"8. There are other two charges in respect of which the
appellant was found to be guilty. One relates to grant of
order of stay of disconnection of telephone for non-
payment of Rs 410 to the Telephone Department in a
consumer dispute filed by a senior government doctor.
All that he did in his capacity as In-charge District Judge
on the assumption that the District Judge being the ex
officio Chairman of the District Consumer Forum he
could grant such an order and that too when one of the
members of the Forum has placed the papers before him
seeking for orders. At best it is a case of bona fide and
erroneous exercise of judicial powers and that matter
cannot be treated as misconduct at all. How the enquiry
officer could arrive at a finding that it is falling in one of
the categories mentioned above, surpasses our
comprehension. "
In the case of State of Rajasthan & Ors. Vs. Jagmal Singh,
this Court has held, a under:-
"16. If any error while deciding a case in the quasi judicial
jurisdiction is not an outcome of malafides or ulterior
motive, then the same does not constitute any
misconduct.
17. The Hon'ble Supreme Court in Zunjarrao Bhikaji
Nagarkar Vs. Union of Inaia & Ors.; AIR 1999 SCC 2881
has held as under:-
(18 of 24) [CW-11263/2009]
"43. If, every error of law were to constitute a
charge of misconduct, it would impinge upon the
independent functioning of quasi judicial officers
like the appellant. Since in sum and substance
misconduct is sought to be inferred by the
appellant having committed an error of law, the
charge-sheet on the face of it does not proceed on
any legal premise rendering it liable to be quashed.
In other words, to maintain any charge-sheet
against a quasi judicial authority something more
has to be alleged than a mere mistake or law, e.g.,
in the nature of some extraneous consideration
influencing the quasi judicial order. Since nothing of
the sort is alleged herein the impugned charge-
sheet is rendered illegal. The charge-sheet, if
sustained, with thus impinge upon the confidence
and independent functioning of a quasi judicial
authority. The entire system of administrative
adjudication whereunder quasi judicial powers are
conferred on administrative authorities would fall
into disrepute if officers performing such functions
are inhibited in performing their functions without
fear or favour because of the constant threat of
disciplinary proceedings."
18. From perusal of the allegations in the charge-sheet,
the explanation thereto in the statement of charge and
the evidence and the findings recorded by the Enquiry
Officer as well as the order passed by the disciplinary
authority in the present case shows that at the most
petitioner can be termed to be guilty of committing a
judicial error and such error by no stretch of imagination
can be alleged as misconduct under the Rajasthan Civil
Service (Classification, Control and Appeal) Rules, 1958.
As it has already been discussed in the preceding paras,
there is no allegations against the petitioner with respect
to any corrupt practice, ulterior motive, embezzlement or
misappropriation then in these circumstances proceedings
against the petitioner and awarding a penalty of stoppage
of entire withholding of 100% pension is absolutely
uncalled for, much less the same cannot be termed as
misconduct.
20. The judgment relied upon is clearly distinguishable on
the facts of the present case as there is no allegation of
any integrity or recklessness or misconduct in discharge of
his duties and there is no malafide intention of causing
loss to the State. Therefore, principles which has been
(19 of 24) [CW-11263/2009]
enunciated in the abovesaid judgment are not applicable
to the facts of the present case."
The submission of the learned counsel for the respondents,
Mr. Avasthi that petitioner has committed a misconduct as he did
not follow the procedure for initiating the proceedings under
Section 107 onwards and he did not make any enquiry under
Section 116 of Cr.P.C., and he directly issued process of warrant,
this Court finds that petitioner if in best of his judgment realizing
the situation relating to breach of peace, if exercised his
jurisdiction, the same cannot be said to be suffering from any
malafides being attributed to the petitioner on account of
undertaking the process.
The submission of the learned counsel for the respondents
that the disagreement note prepared by the Disciplinary Authority is in consonance with the charges levelled against the petitioner, this Court finds that the Disciplinary Authority has in fact given separate reasons and some of the allegations are levelled by giving finding, even which are not subject matter of charge-sheet issued to the petitioner. The finding of Disciplinary Authority with respect to charge no.1 is reproduced as under:-
"tkap vf/kdkjh us bl vkjksi dks izekf.kr ugha ekuk gSa tkap vf/kdkjh dk fu"d"kZ Lohdkj fd;s tkus ;ksX; ugha gS D;ksfda& ¼1½ tkap vf/kdkjh us ;g vadu fd;k gS fd ifjoknh Jh lhrkjke }kjk bZ,Dlih- 2 fnukad 23-6-97 dks tks izkFkZuk i= vkjksfir ds le{k izLrqr fd;k gS og bLrxklk gSA bl nLrkost dk voyksdu djus ij ;g Li"V gS fd Jh lhrkjke ifjoknh us dsoy vkjksfir vf/kdkjh ds le{k ek= ,d izkFkZuk i= izLrqr fd;k gS vkSj ;g /kkjk 107 lhvkjihlh ds varxZr bLrxklk ugha gSA bl izkFkZuk i= ij u rks dksbZ VkbVy ys[ku gS vkSj u gh fdl /kkjk ds varxZr izkFkZuk i= izLrqr fd;k gS] bldk dksbZ vadu gSA fojks/kh i{k blesa ugha cuk;s x;s gSA ¼2½ tkap vf/kdkjh us ;g vadu fd;k gS fd rFkkdfFkr bLrxklk ,oa mlds lkFk layXu i=ksa dh tkap vkjksfir vf/kdkjh }kjk dh xbZ yxrh gSA tkap vf/kdkjh dk ;g fu"d"kZ Lohdkj fd;s tkus ;ksX; ugha gS D;ksafd vkjksfir vf/kdkjh (20 of 24) [CW-11263/2009] }kjk u rks izkFkZuk i= dh tkap dh gS vkSj u gh mlds lkFk layXu 'kiFk i=ksa dh tkap dh gSA tkap vf/kdkjh }kjk dsoy laHkkouk O;Dr dh xbZ gS fd tkap dh xbZ yxrh gS] lqfuf'pr rkSj ij tkap gksuk ugha ik;k gSA tks rF; ifjoknh us vafdr fd;s gS mUgsa gh fcuk tkap fd;s vkjksfir vf/kdkjh us ;Fkkor :i ls Lohdkj djds vuko';d :i ls in dk nq:i;ksx djrs gq, okjaV tkjh dj fn;s] ;g rF; vknsf'kdk fnukad 23-6-97 bZ,Dlih- 1 ls izekf.kr gS ftlesa tkap djus dk dksbZ myys[k ugha fd;k x;k gSA ¼3½ vkjksfir vf/kdkjh ds le{k ifjoknh ds izLrqr izkFkZuk i= dh dksbZ tkap ugha dh xbZ gS] ,slh fLFkfr esa tkap vf/kdkjh dk ;g dFku Lohdkj fd;s tkus ;ksX; ugha gS fd vkjksfir vf/kdkjh dks larqf"V gks xbZ Fkh fd vfr- ftyk dYkDVj ,oa ftyk eftLVªsV] nkSlk us ekjihV ds ekeys dks xaHkhj ekuk FkkA Ikqfyl Fkkuk dksyok esa ,QvkbZvkj l- 92@97 ntZ gqbZ FkhA ;s lHkh i'pkrorhZ dk;Zokfg;ka ,oa tkudkjh o lwpuk,a gS vkSj fnukad 23-6-97 dks tc vkjksfir us okjaV tkjh fd;s Fks ml le; muds lwpuk,a ugha FkhA ¼4½ tkap vf/kdkjh us /kkjk 107] 111 ,oa 113 ds lkFk&lkFk 116 lhvkjihlh dh dk;Zokfg;ksa dks mfpr crk;k tks Lohdkj fd;s tkus ;ksX; ugha gS D;ksafd vkjksfir vf/kdkjh }kjk bu izko/kkuksa dk xaHkhj mYy/kau fd;k x;k gSA bl lanHkZ esa /kkjk 107 lhvkjihlh dk voyksdu djsa tks fuEu izdkj ls gS%& Security for keeping the peace in other cases.- (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceedings, he may, in the manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond [with or without sureties] for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction."
mDr izko/kku esa 'kkafr Hkax ,ao lkoZtfud 'kkafr Hkax dh ifjHkkf"kr djrs gq, fu;ekuqlkj dk;Zokgh djus ds funsZ'k gS] ftudh vuqikyuk ugha dh xbZA"
The finding of Disciplinary Authority with respect to charge no.2 is reproduced as under:-
"tgka rd iz'u fnukad 26-6-97 dh rFkkdfFkr ?kVuk dk gS] bl lanHkZ esa dksbZ ,QvkbZvkj miYkC/k ugha gSA bl fnol dh ?kVuk ds fy, fxjIrkj ugha fd;k x;k vkSj u gh dksbZ vyx ls eqdnek dk;e fd;k x;kA ,slh fLFkfr esa bl fcUnq ij tkap vf/kdkjh dk fu"d"kZ Lohdkj fd;s tkus ;ksX; ugha gSA"
The finding of Disciplinary Authority with respect to charge no.3 is reproduced as under:-
(21 of 24) [CW-11263/2009] "mDr ls ;g fookfnr ugha gS fd vkjksfir vf/kdkjh }kjk izlkfjr vkns'k l{ke U;k;ky; }kjk fujLr fd;s x;s gS] vr% buds }kjk laikfnr dk;Zokgh iwjh rjg ls voS/kkfud gSA"
This Court finds that Disciplinary Authority did not confine his finding to the charges levelled against the petitioner.
The learned counsel for the respondents has placed reliance on the judgment rendered in the case of Central Industrial Security Force & Ors. Vs. Abrar Ali (supra) and submitted that the High Court in exercise of powers under Articles 226 & 227 of the Constitution of India, should not venture into re-appreciation of evidence. The Apex Court in para 8 of the judgment has held as under:-
""In Union of india & Ors. v. P. Gunasekaran reported in (2015) 2 SCC 610, this Court held as follows:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(22 of 24) [CW-11263/2009]
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
In the opinion of the Court, in the instant case, the controversy is with regard to functions which have been discharged by the petitioner while exercising his powers given under Section 107 of Cr.P.C. onwards and whether such act of the petitioner can be termed as misconduct and conducting disciplinary proceedings in respect of functions discharged as a judicial/quasi judicial authority.
This Court has already held that as per judgment of the Apex Court, as indicated above, if the petitioner has discharged judicial (23 of 24) [CW-11263/2009] functions without any ill-motive or malafide, no misconduct is said to be committed. This Court on the basis of law laid down by the Apex Court in various aforesaid decisions, has categorically held that "misconduct" means misconduct arising from ill-motive and acts of negligence or error of judgment or innocent mistake do not constitute misconduct. In the opinion of the Court, the judgment relied upon by learned counsel for the respondents is of little assistance to the respondents.
Reliance has been placed by learned counsel for the respondents on the judgment passed in the case of Inder Singh Rathore Vs. State of Rajasthan (S.B.Civil Writ Petition No.669/2003), decided on 23.01.2017, wherein the Court has held that in examining the matters arising out of a disciplinary proceedings, the High Court does not sit in judgment on merits of the decision so as to re-appreciate and re-appraise the evidence led before the Enquiry Officer and examine the findings recorded by the Enquiry Officer as court of law and reached its own conclusions. The Court further held that the judicial review made by High Court is limited to examining the process of decision making and not on merits of the decision itself.
This Court finds that the said judgment was in respect of departmental enquiry conducted and petitioner in that case was found guilty, the Court found that enquiry under rule 16 of CCA Rules is to be in conformity with the entire procedure after giving adequate opportunity to the delinquent and charges there, were found to be proved. The said judgment is on different facts and also the question of constituting a misconduct in respect of (24 of 24) [CW-11263/2009] functions discharged by Executive Magistrate was not under consideration and as such, the said judgment is of little help to the respondents.
Mr. Mathur while arguing the case submitted that the petitioner is not assailing the validity of order dated 20 th July, 2009, the second Review Petition filed under Rule 34 of CCA Rules dismissed as having become time barred, this Court finds that the penalty order dated 29th July, 2002 and order dated 28th April, 2003 passed by the Reviewing Authority under Rule 33 of CCA Rules have not been passed in legal manner and as such, the Court is not going into the correctness of order dated 20 th July, 2009.
This Court finds that the penalty order dated 29th July, 2002 and order dated 28th April, 2003 having been passed in arbitrary and illegal manner, the same are liable to be quashed and set aside.
Accordingly, the writ petition is allowed and the orders dated 29th July, 2002 and 28th April, 2003 are quashed and set aside. The petitioner would be entitled for all consequential benefits arising from setting aside the said two orders.
(ASHOK KUMAR GAUR),J NK