Patna High Court
Ganesh Prasad Yadav vs The State Of Bihar And Ors on 3 August, 2021
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16576 of 2017
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Ganesh Prasad Yadav Son of Late Atul Prasad Mandal, Resident of New
Harnichak, Yamuna Yadav Path, Anisabad, Patna. District-Patna.
... ... Petitioner
Versus
1. The State Of Bihar and Ors
2. The Bihar Public Service Commission, Patna.
3. The Secretarty, Bihar Public Service Commissin, Patna.
4. The Principal Secretary,Department of P.H.E.D., Government of Bihar,
Patna.
5. The Principal Secretary, General Administration Department, Government
of Bihar, patna.
6. The Accountant General Office A and E, Bihar, Patna.
... ... Respondents
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Appearance :
For the Petitioner : Mr.P.K. Shahi (Sr. Advocate) with
: Mr.Sanjay Kumar
For the State : Mr.Arvind Ujjwal (SC 4) with
: Mr.Upendra Kumar Singh
For the B.P.S.C. : Mr.Sanjay Pandey
For the Accountant General: Mr.Arun Kumar Arun
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date : 03-08-2021 This matter has been taken up for hearing online because of COVID-19 pandemic restrictions.
2. Aggrieved by a resolution of the Public Health Engineering Department, Government of Bihar issued vide Memo No. 853 dated 12.10.2017 whereby, in exercise of power under Rule 43(b) of Bihar Pension Rules, 1950 punishment of withholding of 25% pension has been imposed on the petitioner, Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 2/24 the petitioner has approached this Court by filing present writ application under Article 226 of the Constitution. Short facts relevant for adjudication of the present case, as culled out from the pleadings, on record are that the petitioner at the relevant point of time was posted as the Executive Engineer, Public Health Engineer Division, Muzaffarpur. In the meeting of a Tender Committee held on 08.04.2010 at the departmental headquarter under the Chairmanship of Departmental Principal Secretary, it emerged that the petitioner had recommended for irregular payment of Rs.2,20,54,120/- on a claim made by the contractor Ms. Jusco Ltd., Jamshedpur by way of price neutralization without any examination and proof. The Tender Committee, on careful consideration of the claim of the Firm, recommended payment of Rs.1,14,13,628/- only. It was accordingly alleged against the petitioner that had the amount recommended by the petitioner by way of price neutralization been accepted and paid, the Government would have suffered a loss to the tune of Rs.1,00,64,492/-. The basis for calculation done by the petitioner for recommending price neutralization was found to be defective and it was alleged in the charge memo that without proper and comprehensive enquiry on the claim of the contractor regarding price neutralization and any reliable and legal proof, the petitioner Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 3/24 made the recommendation, which was not proper and was rather objectionable.
3. Evidently, for the occurrence of April, 2010, the departmental proceeding was initiated with the issuance of charge sheet on 31.01.2014 under Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as the BGS (CCA) Rules) which coincided with the date of the petitioner's superannuation. By a subsequent order dated 18.07.2016, the departmental proceeding was converted into a proceeding under Rule 43(b) of the Bihar Pension Rules. By the said resolution dated 31.01.2014, the Departmental Enquiry Commissioner was appointed as the Enquiring Authority. A Presenting Officer was also appointed by the same resolution dated 31.01.2014. The petitioner submitted his written statement of defence and participated in the departmental enquiry. The Enquiring Authority submitted its report on 02.03.2016 with the findings that none of the charges against the petitioner could be established. A copy of the report of the Enquiring Authority has been brought on record by way of Annexure-3 to the writ application. The Disciplinary Authority, however, disagreed with the enquiry report and asked the petitioner to submit his response to the tentative notes of disagreement with the report of the Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 4/24 Enquiring Authority. The said tentative notes of disagreement contained findings/reasons for disagreeing with the enquiry report. The petitioner submitted his response to the Disciplinary Authority on 19.08.2016, to the said notes of disagreement. The petitioner's explanation that findings recorded by the Enquiring Authority were correct, was not acceptable to the State Government and accordingly it was proposed to impose punishment of withholding of 25% of pension permanently. The department thereafter sought concurrence of the Bihar Public Service Commission on the proposed punishment through letter dated 09.01.2017 issued by the department. The Bihar Public Service Commission, however, refused to concur with the proposed punishment of withholding of 25% of pension. The opinion of the Bihar Public Service Commission was, however, found not acceptable by the Disciplinary Authority and accordingly, disagreeing with the report of the Enquiring Authority, punishment of withholding of 25% of pension has been imposed by the impugned resolution dated 12.10.2017.
4. A counter affidavit and a supplementary counter affidavit have been filed on behalf of the State of Bihar. Reply has been filed on behalf of the petitioner to the said affidavits. Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 5/24
5. I have heard Mr. P.K. Shahi, learned Senior counsel appearing on behalf of the petitioner, Mr. Arvind Ujjwal, learned SC-4 with Mr. Upendra Kumar Singh, learned AC for the State of Bihar, Mr. Sanjay Pandey, for the B.P.S.C. and Mr. Arun Kumar Arun for the Accountant General, Bihar.
6. Mr. P.K. Shahi, learned Senior counsel appearing on behalf of the petitioner has submitted that for an event of 2010, the department chose to initiate departmental proceeding against the petitioner on 31.01.2014, it being the date of his retirement. The departmental proceeding was initiated under of the provisions of Rule 17 of BGS (CCA) Rules knowing well that no action under the said provision could have been taken, date of initiation of the departmental proceeding coinciding with the date of petitioner's superannuation. He has further submitted that the charges levelled against the petitioner do not constitute grave misconduct nor they disclose any pecuniary loss caused to the State Government, which is a condition precedent for imposing punishment under Rule 43(b) of the Bihar Pension Rules. He has also argued that the petitioner had merely sent a proposal for price neutralization in respect of claim of the agency to the department through the Superintending and Chief Engineers which was subsequently not accepted at the departmental level. Mere sending Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 6/24 an incorrect proposal shall not constitute a misconduct unless ill motive is attributed to a government servant, in discharge of his official function, he contends. He has argued that the conduct of the petitioner at the maximum can be said to be an innocuous bonafide error in the absence of any evidence proof to the contrary. He has submitted that the Enquiring Authority extensively dealt with the allegations levelled against the petitioner, evidence adduced during the departmental enquiry and after duly addressing rival contentions, recorded specific finding that the charges against the petitioner could not be said to have been proved. In utter disregard to the findings recorded by the Enquiring Authority and the opinion of the Bihar Public Service Commission, the department whimsically passed the impugned order dated 12.10.2017 imposing extreme punishment of withholding of 25% of pension permanently. Referring to the findings recorded in the report of the Enquiring Authority, he has submitted that from other divisions also proposals were sent by the respective functionaries for price neutralization, which were not accepted by the Tender Committee at the departmental level but the departmental action against none was/has been taken and, thus, the petitioner has been singled out in this regard. He has relied on a Supreme Court's decision reported in (2013) 3 SCC 73 Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 7/24 (Rajendra Yadav v. State of Madhya Pradesh and Others) to question the bonafide of the action taken against the petitioner against whom only action was taken.
7. It has been argued on behalf of the State of Bihar, on the other hand that there is no procedural irregularity in the departmental proceeding right from the framing of charge till passing of the final order. The charges framed against the petitioner constitute misconduct, being contrary to the requirements under Rule 3 of the Bihar Government Servants' Conduct Rules. He has further submitted that upon receipt of the report of the Enquiring Authority, the Disciplinary Authority examined the same and in conformity with the procedure prescribed under Rule 18(2) of the BGS (CCA) Rules, recorded its reason for disagreement with the findings of the Enquiring Authority and recorded its own finding on the charge, as the evidences on record, were found sufficient for the said purpose. The said finding were communicated to the petitioner along with the report of the Enquiring Authority, as stipulated under Sub-Rule 3 of Rule 18 in response to which the petitioner submitted his representation/submission. Following strictly the requirements under Rule 18 of the Rules, the Disciplinary Authority has passed the impugned order, which does not suffer from any procedural or Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 8/24 other legal infirmity. It has been argued that this Court exercising jurisdiction under Article 226 of the Constitution of India may, though, examine the correctness of the decision making process, it is not desirable to examine the correctness of the decision itself. He has further argued that considering the gravity of the petitioner's misconduct, it was rightly decided by the Disciplinary Authority to impose punishment of withholding of 25% of pension permanently.
8. I have carefully gone through the pleading and all the materials which are there on record. Indisputably, the sole allegation against the petitioner is of making a recommendation for price neutralization in respect of a contractor, which was found to be substantially more than actually payable, by the Tender Committee.
9. On careful reading of the memo of charge, it can be easily noticed that the allegation against the petitioner is of making recommendation on the claims of the contractor without enquiry (जांचपरख) to the Superintending Engineer, Public Health Engineering Circle, Muzaffarpur on 23.05.2009. Charge no. 2 refers to failure on the part of the petitioner to duly verify various documents and registers of the stores. According to this charge, since the Executive Engineer is in-charge of the stores, the Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 9/24 responsibility of maintenance of the registers also lies with him, which cannot be shifted to the Junior Engineer and the Assistant Engineer. Charge no. 3 cannot be said to be a charge in itself inasmuch as it just refers to a situation, had the proposal sent by the petitioner been accepted by the Tender Committee. There does not appear to be any dispute over the fact that the proposal for neutralization was made by the petitioner and a recommendation in this regard was made by him to the Superintending Engineer who in turn had forwarded the same to the department. Charge no. 2 points out against the petitioner deficiency in selecting the basis for determination of price neutralization as improper upkeep of the register maintained for recording delivery by the contractor of C.I. Pipes. The main allegation against the petitioner in charge no. 2 is of lack of a comprehensive enquiry before making the proposal for price neutralization. It appears that during the course of departmental enquiry, the department had taken a plea before the Departmental Enquiry Commissioner, in order to establish the charge against the petitioner, that while considering the claim of the agency for price neutralization, he himself ought to have obtained monthly rates of some of the items to be used for the work in question from one Kudremukh Iron Ore Company Ltd. The Enquiring Authority in his report has recorded that not only in Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 10/24 respect of Muzaffarpur division of which the petitioner was the Executive Engineer, proposals from other three divisions were sent to the headquarter through the respective chief engineers and in all cases it was well within their knowledge that the monthly rates of Kudremukh Iron Ore Company Ltd. were not available with the divisional offices and, therefore, on the basis of information furnished by the executing agency, their claims were examined for determination of price neutralization for being sent to the Tender Committee. The Enquiring Authority further recorded that, as a matter of fact, since it was within the knowledge at the departmental level also that the rates of Kudremukh Iron Ore Company Ltd. were not available with the divisions and the department itself was taking steps on regular basis for obtaining such rates and, finally by sending a special messenger, the concerned rates were obtained. The Enquiring Authority clearly recorded in his report that as even the department had failed to obtain rates from Kudremukh Iron Ore Company Ltd. despite repeated correspondences, a special messenger was sent for obtaining the rates whereafter the Tender Committee calculated the amount against price neutralization, which was found to be substantially less than the amount which was recommended by the petitioner.
Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 11/24
10. On perusal of the tentative notes of disagreement with the report of the Enquiring Authority, as recorded by the department, it is evident that the Disciplinary Authority has not disagreed with these findings so recorded by the Enquiring Authority in relation to calculation of amount against price neutralization by the petitioner. The Enquiring Authority further recorded that the said Tender Committee in its meeting approved the rate of price neutralization in respect of three other divisions namely Kishanganj, Siwan and Sheikhpura and when the department was asked by the Enquiring Authority to explain how the case of the division held by the petitioner was different from other three divisions, the department took a plea that reference to the proposals in respect of other divisions were irrelevant for the present departmental enquiry. The Enquiring Authority further recorded that if in the opinion of the Tender Committee there was any irregularity in determination of the claim of the agency of price neutralization then action could have been initiated not only against the Executive Engineer (the petitioner) but also the Superintending Engineers, Chief Engineers and other members of the Tender Committee. Based on the case of the department as placed before the departmental enquiry, the Enquiring Authority recorded that no proceeding was initiated or proposed against the Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 12/24 concerned Superintending Engineer, Chief Engineer as well as other Officers of Kishanganj, Siwan and Sheikhpura divisions.
11. There is no difference of opinion recorded by the Disciplinary Authority in respect of the aforesaid specific findings recorded by the Enquiring Authority. It is noteworthy at this juncture the finding of the Enquiring Authority that charge against the petitioner could not be proved is not based on the reasoning that other similarly situated officers were not proceeded against; which has been specifically mentioned in the enquiry report.
12. In respect of the allegation of improper maintenance of registers relating to delivery of C.I. Pipes, the Enquiring Authority has at the very outset in his analysis and conclusions recorded that under Urban Water Supply Scheme, for four towns namely Muzaffarpur, Kishanganj, Siwan and Sheikhpura, schemes were sanctioned for execution on turn-key basis. Explaining the meaning of execution of a scheme on turn- key basis, it has been recorded that the same means that the executing agency is required to supply materials as well, and install the same for the purpose of execution, instead of the department procuring the materials and supplying it to the agency for installation. In that perspective, the Enquiring Authority concluded in respect of allegation of deficiency in maintaining Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 13/24 registers that the execution of the scheme in question being on turn-key basis, it was the agency which was responsible for safety and maintenance of the materials purchased before installation. The Enquiring Authority, however, concluded that proper keeping and accounting of the materials procured and installed by the agency was expected. But the Executive Engineer could not be held completely responsible for the said irregularity, which was the duty of the Junior Engineer and the Assistant Engineer, the Enquiring Authority concluded from the tentative notes of disagreement, it can be easily discerned that the Disciplinary Authority has differed with the opinion of the Enquiring Authority only in respect of the responsibility of the petitioner as the Executive Engineer in maintaining registers.
13. It is significant to note here that nowhere in the charge memo, there is any allegation of ill motive against the petitioner in his conduct of sending a proposal relating to claim of the agency for price neutralization. The tentative notes of disagreement also do not display any finding that the petitioner had submitted such proposal with any ill motive for his personal gain. Curiously enough, in the impugned order of the Disciplinary Authority, finding of 'ill motive' (गलत मनशा) has been recorded, for recommending incorrect amount of price neutralization. Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 14/24
14. I am of the considered view that in the absence of any specific allegation in the charge memo of ill motive against the petitioner for submitting a proposal relating to determination of the amount of price neutralization, the Disciplinary Authority could not have recorded a finding in this regard. The finding of ill motive recorded by the Disciplinary Authority in the impugned order dated 12.10.2017, for the said reason, is perverse which cannot be sustained.
15. The Departmental Enquiry Commissioner has dealt in detail the nature of work allotted to the contractor on turn- key basis and the concept of awarding a contract on turn-key basis and in that background maintenance of registers of the materials procured by a contractor. The Disciplinary Authority has not recoded any finding contrary to the said finding of the Enquiring Authority. The Enquiring Authority, in respect of maintenance of registers has, instead mentioned that it was mainly the responsibility of Junior Engineer and Assistant Engineer. The Disciplinary Authority has disagreed with the said finding with reference to Rule 109 of P.W.D. Code which, according to the Disciplinary Authority, casts duty on the Executive Engineer in relation to maintenance of certain registers. Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 15/24
16. The Disciplinary Authority has also not differed with the finding recorded by the Enquiring Authority that no action was initiated against the Officers of other divisions, who had also sent their proposals on the basis of calculation of the amount of price neutralization, as was done by the petitioner.
17. To begin with, the Court fails to comprehend the logic behind the decision of the Disciplinary Authority to initiate a departmental proceeding under BGS (CCA) Rules on the date when the petitioner was superannuating, knowing well that no such proceeding could be continued under the provisions of the said Rules. The respondents may have a plea that when the charges were framed on 31.01.2014, the petitioner had not retired but the action does not have any justification.
18. Be that as it may, Rule 43(b) of the Bihar Pension Rules confers upon the State Government, a right of withholding or withdrawing pension permanently or for a specified period, if a pensioner is found in a departmental proceeding (i) to have been guilty of grave misconduct (ii) to have caused pecuniary loss to the Government by misconduct or negligence.
19. There is no allegation against the petitioner that any misconduct or negligence on his part, has in fact caused any pecuniary loss to the Government. The impugned decision, in that Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 16/24 wake, has to be considered from the perspective, as to whether a case of gross misconduct is made out against the petitioner warranting action under Rule 43(b) of the Bihar Pension Rules, in the light of findings recorded by the Disciplinary Authority in the impugned order. At the cost of repetition, it is reiterated that the finding of 'ill motive' recorded in the impugned order has been found hereinabove to be unsustainable in the absence of such allegation in the charge memo.
20. What amounts to misconduct, has been lucidly explained by the Supreme Court in case of Union of India v. J Ahmed reported in (1979) 2 SCC 286. Paragraph 11 of which reads 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 conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster [17 QB 536, 542]). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers [(1959) 1 WLR 698])]. This view was adopted in Shardaprasad Onkarprasad Tiwari v.
Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 17/24 Divisional Superintendent, Central Railway, Nagpur Division, Nagpur [61 Bom LR 1596] , and Satubha K. Vaghela v.
Moosa Raza [10 Guj LR 23] . The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v.
Workmen, Miss Shanti Patnaik [AIR 1966 SC 1051 : (1966) 2 SCR 434 : (1966) 1 LLJ 398 : 28 FJR 131] in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India [(1967) 2 SCR 566 : AIR 1967 SC 1274 : (1967) 2 LLJ 249] the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 18/24 Calcutta [AIR 1963 SC 1756 : (1964) 2 SCR 104 : (1963) 1 LLJ 679 : 24 FJR 464] wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence.
Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationery train Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 19/24 causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life.
Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v.
Manager, Ahmedabad Coop. Department Stores Ltd. [(1978) 19 Guj LR 108, 120] ).
But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."
(Emphasis supplied).
21. In case of State of Punjab v. Ex-Constable Ram Singh reported in (1992) 4 SCC 54, the Supreme Court had again the occasion of dealing with the term 'misconduct' and laid down in paragraphs 5 and 6 as under:-
"5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 20/24 mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 21/24 some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law;
carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 22/24 disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
(Emphasis supplied).
22. Similar view has been taken by the Supreme Court in its subsequent decision in case of Zunjarrao Bhikaji Nagarkar v. Union of India and Others reported in (1999) 7 SCC 409, relying on the Supreme Court's decision in case of Ex- Constable Ram Singh (supra).
23. In a subsequent decision in case of Inspector Prem Chand v. Govt. of NCT of Delhi and Others reported in (2007) 4 SCC 566, the Supreme Court held that an error of judgment per se is not a misconduct and a negligence simpliciter also would not be a misconduct.
24. It is culled out on the basis of the tentative notes of disagreement of the Disciplinary Authority itself read with the finding recorded by the Enquiring Authority that the calculation done by the petitioner of the amount of price neutralization was not found to be excessive because of the proper upkeep of the register but because the monthly rates were not obtained from Kudremukh Iron Ore Company Ltd.
Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 23/24
25. Further, Mr. Shahi has rightly placed reliance on the Supreme Court's decision in case of Rajendra Yadav (supra). The Disciplinary Authority has not dealt at all with the finding recorded by the Enquiring Authority in this regard in his report and has thus admitted that no disciplinary action was initiated against others, who had also submitted the proposals in the same manner in which, the petitioner had done.
26. Situated thus, keeping in mind such findings of the Enquiring Authority in respect of which no disagreement had been recorded in the tentative notes of disagreement, as has been discussed hereinabove and the law on 'misconduct' as adjudged by the Supreme Court in its various judicial pronouncements noticed in this judgment, I am of the considered view that no case of grave misconduct has been made out against the petitioner, which is a prerequisite for action under Rule 43(b) of the Bihar Pension Rules in the absence of any pecuniary loss caused to the State; warranting punishment of withholding of pension. Resultantly, the impugned order requires interference. The impugned order dated 12.10.2017 issued vide letter no. 853 is hereby quashed, accordingly.
27. This application is accordingly allowed. Patna High Court CWJC No.16576 of 2017 dt.03-08-2021 24/24
28. There shall be no orders as to cost. The consequences of quashing of the impugned order shall follow.
(Chakradhari Sharan Singh, J) AKASH/-
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