Allahabad High Court
State Of U.P. Thru. Addl. Chief Secy. Tax ... vs Rajesh Kumar Singh & Anr. on 15 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2765
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 10 Case :- SERVICE BENCH No. - 28018 of 2019 Petitioner :- State Of U.P. Thru. Addl. Chief Secy. Tax &Registration &Anr Respondent :- Rajesh Kumar Singh & Anr. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned State counsel representing the petitioner.
This petition filed under Article 226 of the Constitution of India 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.
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.
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.
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 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.
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.
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.
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) 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 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."
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.
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 vis-a-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".
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.
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, 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.
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.
The writ petition, thus, lacks merit and is hereby dismissed.
There will be no order as to costs.
Order Date :- 15.10.2019 Renu/-