JUDGMENT Amitava Lala, J.
1. The writ petitioner has challenged the order dated 05th July, 2006, by which he has been put under suspension. Admittedly the charge-sheet has already been forwarded and the reply has been given. However, the petitioner contended that the charges, which are levelled against him, can not derive at major penalties. Therefore, he should not be held up under suspension.
2. First proviso to Rule-4 of the Uttar Pradesh" Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 'Rules, 1999') dealing with the provision of suspension is putting certain restrictions in respect of the same. The relevant part being Rule 4 (1) with, first proviso is quoted hereunder:
4. Suspension.-- (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority:
Provided that suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established may ordinarily warrant major penalty:
...
3. Rule 3 of the Rules, 1999 gives list of minor and major penalties, which are as follows:
3. Penalties.-- The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government Servants:
Minor Penalties:
(i) Censure;
(ii) Withholding of increments for a specified period;
(iii) Stoppage of an efficiency bar;
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders;
(v) Fine in case of persons holding Group 'D' posts: provided that the amount of such fine shall in no case exceed twenty five per cent of the month's pay in which the fine is imposed.
Major Penalties:
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment.
(iv) Dismissal from the service which disqualifies from future employment.
Explanation. -- The following shall not amount to penalty within the meaning of this rule, namely:
(i) Withholding of increments of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation.
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.
4. To establish the case, Mr. Ravi Kant, learned Senior Counsel appearing on behalf of the petitioner, has drawn our attention to the charge-sheet dated 05th July, 2006. From the translated copy of the charge-sheet, we find different charges, as follows:
(i) Charged with not obeying the written directions dated 23rd January, 2002 of the Government and raising conditions of breach of privilege before the Assurance Committee and violated Rule-3 of the Uttar Pradesh Government Servants Conduct Rules, 1956 (hereinafter referred to as the 'Rules, 1956');
(ii) charged with not following the immediate orders of the Government committing irregularities in appointing employees to pay illegal financial gains against Rule-3 of Rules, 1956;
(iii) charged with giving chance to the concerned employees to seek stay orders from the Court concealing the facts and orders of the Government, which are against the Rule-3 of the Rules, 1956;
(iv) charged with not effectively contesting the matter and delaying in submitting counter affidavit and not attempted to vacate the stay orders so violated the Rule-3 of the Rules, 1956;
(v) charged with not sending proper enquiry report concerned to the Government in the matter and for not discharging duties properly under Rule-3 of the Rules, 1956;
(vi) charged with loose supervision in guidance accordingly as per rules no effective measures were taken and violated Rule 3 of the Rules, 1956;
(vii) charged with the purchase of the papers and constituted 12 members committee against the Rule-3 of the Rules, 1956;
(viii) charged for violating the rules and trying to commit irregularities worth Rs. 11 Crores in purchase of the papers which is against the Rule-3 of the Rules, 1956;
(ix) charged for violating the orders of the Government, .creating shortage of the papers and affecting the Government printing works against the Rule-3 of the Rules, 1956;
(x) charged with not-supplying the forms and distribution of land account works and quality of running of important agriculture project of the Government of India and State of Uttar Pradesh against the Rule-3 of the Rules, 1956; and
(xi) charged with Rule-3 of the Rules, 1956.
5. According to him, no charge of misconduct can be arrived at on the basis of the charges. Therefore, the petitioner should not be put under suspension in view of the first proviso to Rule-4 under the aforesaid Rules, 1999. Relying upon (Union of India and Ors. v. J. Ahmed) he said that the Supreme Court held in respect of following charges that no major punishment can be arrived at in the following situation:
(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 lack 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;
(iv) Did not keep Government informed of the actual picture and extent of the disturbances;
(v) Showed complete ineptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for complete breakdown of Law and Order in Nowgong town as well as the rural areas of Nowgong District.
6. These deficiencies in personal character or personal ability do not constitute misconduct for the purpose of disciplinary proceedings. There the Court quoted meaning of the word "misconduct" from Stroud's Judicial Dictionary , as follows:
Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
7. This judgement was also considered in (Punjab State Civil Supplies Corporation Ltd. v. Sikander Singh) and it was held basically that in the industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct. A single act of omission or error of judgement would ordinarily not constitute misconduct. Negligence would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or result in damages would be so heavy that the degree of culpability would be very high. In (Reserve Bank of India and Anr. v. C.L. Toora and Ors.) based on factual aspect Court came to a conclusion that there was no cause of insubordination or misconduct. In (Dev Singh v. Punjab Tourism Development Corporation Ltd. and Anr.) it was again held on the basis of factual aspect that after 20 years of unblemished service charge of misconduct was levelled in the nature of misplacement of file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. Hence, it was held that the same is not a misconduct. In (M.M. Malhotra v. Union of India and Ors.) it was held that the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of duty. As per army rules, any wrongful act or any act of delinquency, which may or may not involve moral turpitude, could be "misconduct". "Misconduct" means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc. Again "misconduct" may involve moral turpitude. It speaks about comprised positive acts and not mere neglects or failures. It is also submitted that the nature of misconduct will be different from place to place. Misconduct in army or misconduct of an Advocate may not be similar with the service on whose account the writ petition has been made herein. In (N.G. Dastane v. Shrikant S. Shivde and Anr.) misconduct was explained in connection with act of an Advocate in the Court of law.
8. In (State of Punjab and Ors. v. Ram Singh Ex. Constable) we get meaning of misconduct as quoted from various dictionaries:
4. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
A transgression of some established and definite rule of auction, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.
Misconduct in office has been defined as:
Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. The 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 the Law Lexicon, Reprint Edition 1987 at p. 821 'misconduct' defines 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 terms 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 if left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of 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.
5. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive 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 terms occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a 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.
9. Here also question arose about strict discipline in police service.
10. Mr. Sanjay Goswami, learned Standing Counsel, appearing with the learned Advocate General Mr. S.M.A. Kazmi, contended before this Court that as per Rule-3 of the UP. Government Servants Conduct Rules, 1956 (i) every Government servant shall at all times maintain absolute integrity and devotion to duty; and (ii) every Government servant shall at all times conduct himself in accordance with the specific and implied orders of the Government regulating behaviour and conduct which may be in force. He said that all the charges, as levelled hereunder, may not be of major charges but it has a cumulative effect. Charge Nos. 1 and 2 are arising out of illegal appointments of 27 workers and in spite of the direction of the Government to terminate them, the petitioner sent back the matter for the purpose of reconsideration. It is an admitted position that he also appointed 4-5 persons amongst them when others were appointed by his predecessors. The question was raised in the meeting of the Assurance Committee of Legislative Council and in spite of the same and in spite of the Government Order if such authority failed to discharge the duty and sent back the matter for reconsideration, why the same will not be a question of insubordination or misconduct, is not known to him. Amongst other charges being charge Nos. 7 and 8, constitution of the technical/financial committee was made without following the provisions of the Government order dated 19th March, 2003 for nominating an expert of papers i.e. being a representative of Director of Industries. So far as charge No. 8 is concerned, the petitioner flouted the norms of giving tender and thereby tried to commit irregularities worth Rs. 11 Crores. The norms say that when the tenders are rejected on technical ground, no financial bid will be opened. But in spite of the same, the petitioner opened the financial bid taking a defence that he opted a businessman like approach. That apart, the petitioner has a history of warning or special adverse entries by the Government on 11 occasions in the last 9 years as follows:
i) Warnings were issued vide memo dated 03-12-96, 18-12-96 and 19-8-97 for delay in providing comments on C and G paras and negligence in operation of D.G. Generating set.
ii) Warning was issued vide office order 25-7-98 for violation of G.O. of Personnel Deptt. in annual transfers.
iii) Petitioner was censured vide office order 20-2-99 for not taking effective steps to stop the irregularities and conduct inquiry regarding irregular appointments to Government Press Aishbagh, Lucknow in the year 1996-97 and for gross dereliction of duty as Head of Department.
iv) Warning was issued vide Office Order dt. 1-7-99 for violating the provision of Government Order and going beyond his financial powers.
v) Warning was issued vide Office Order dated 1 -10-2004 for not providing compliances report of the special audit team as gross dereliction of duty.
vi) Warning was issued vide G.O. dated 7-12-04 for non-compliance of Government Order and furnishing false information.
vii) Petitioner was censured vide Office Order dated 6-5-05 for negligence and delay in official work.
viii) Adverse entry has been given to the petitioner Office Order dated 8-7-05 for wasteful expenditure of Rs. 549123.76 and consequent loss to the Government for purchase of Offset Printing Machine. Recovery order of 10% of above amount from the petitioners' has also been issued.
ix) Warning was issued vide Office Memo dated 8-9-2005 for not getting the Supplementary budget for the financial year 2005-06 pointed in the stipulated time frame.
x) Warning was issued vide Government Order dated 13-10-2005 for not providing valid benefit to a eligible Draftsman and unnecessary referring the matter to the Government.
xi) Special adverse entry was given to the petitioner vide Office Memo dated 18-5-06 for not utilizing the Government grants of the previous years for purchase of machines for modernization of Government Press.
11. Mr. Goswami further stated that each and every judgement, which have been cited by the learned Counsel appearing for the petitioner, arose at a situation when enquiry was completed and/or punishment had been imposed but not arose in the teeth of any order of suspension.
12. In reply thereto, the learned Counsel appearing for the petitioner contended as against charge No. 8 that petitioner had right to nominate expert.
13. We are not on merit. We are only concerned as to whether any arbitrary action has been taken by the authority or not. According to us, proviso in respect of passing order under Rule- 4 of Rules, 1999 can not be said to be an absolute bar. It may be applicable in an ordinary circumstance, but it shall not be applicable in an extraordinary circumstance. We are not sitting in a fact finding court nor we are hearing the dispute at a stage when the entire enquiry proceeding was completed and/or punishment has been awarded. We are only considering the cause at a prima facie stage. Charges are such, a minor punishment can be awarded or a major punishment can be awarded. Moreover, the major punishment is not only restricted to removal or dismissal but also withholding of increments with cumulative effect and/or reduction to a lower post or grade or time scale or to a lower stage in a time scale. Therefore, what would be the award, we can not come to a definite conclusion on the basis of the probabilities. Fact remains that this is not the sole occasion when the question of insubordination etc. arose but it arose on several occasions earlier and warnings, censure entry and adverse entries were given to him, as categorically stated by the State in its counter affidavit. Therefore, the situation does not permit us to allow him to be not under suspension but to say that order of suspension is not a punishment. Normally such order is passed by an authority to maintain the independence of the enquiry. Therefore, Court can only interfere with the order of suspension in the rarest of the rare cases where it appears to be apparently punitive or malafide in nature or without jurisdiction. This is not such a case so that we should interfere with it.
14. Hence, no order is passed with regard to order of suspension.
15. However, non-interference with the order of suspension will not entitle the authority to keep the enquiry proceeding pending indefinitely, therefore, such enquiry proceeding will be concluded preferably within a period of three months from the date of communication of this order subject to co-operation of the delinquent in all possible manner.
16. Thus, the writ petition is disposed of.
17. No order is passed as to costs.