Hon'ble Anjani Kumar Mishra, J.
Heard Sri S.K.Pal, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent no.1 and Sri Ashish Mishra, learned counsel appearing on behalf of the respondent nos.2 and 3.
By means of the present writ petition, the petitioner has challenged the the order dated 09.06.2005 issued by the Registrar General, communicated by Registrar (Establishment) by letter dated 25.06.2005, by which two increments have been withheld with cumulative effect.
Brief facts of the case are that the petitioner was posted as a Bench Secretary in this Court. On 25.07.2003, while he was posted as Bench Secretary in Court No.34, he has presented a fresh Writ Petition No.31984 of 2003, Raj Pratap Singh Vs. State of U.P. and others filed on 24.07.2003 and was supposed to come before the Court on 28.07.2003 in normal course and was not on the list of fresh cases. It was noticed by the Court that neither any mention was made by Smt. Manju R.Chauhan nor the mention has been accepted by the Court. It was found that the said file was requisitioned from the computer section on the slip of Smt. Manju R.Chauhan, Advocate, counsel for the petitioner without there being any order of the Court. In pursuance there of, Hon'ble Court on 26.07.2003 wrote a letter to the Registrar General of this Court stating therein that on 25.07.2003, Sri Vinod Kumar-III, Bench Secretary of Court No.34 had requisitioned a fresh file from the office without the matter being mentioned in the Court. The file was sent to the Court without any list. Therefore, the matter could not be proceeded. When the concerned Bench Secretary was asked as to how the file had reached the Court without any list, he could not furnish any explanation. Since it is very serious matter and may reflect on the integrity and efficiency of the Court itself, therefore, another Bench Secretary has been asked to be attached immediately in the Court and action may be taken against the said Bench secretary, Sri Vinod Kumar-III. In pursuance thereof enquiry proceeding has been initiated and the charge sheet has been submitted, in which the petitioner has been levelled the following charge :
"That on 25.07.2003 while posted as the Bench Secretary in the Hon'ble Court NO.34 you without being mentioned in the Court, had unautorisedly, requisitioned a fresh file (CMWP No.31984 of 2003 Raj Pratap Singh Vs. State of U.P. and others, Distt. Allahabad) from the office through a requisition slip dated 25.07.2003 addressed to the Registrar (Listing) requesting him to direct the Incharge Computer Centre to send the record of the said petition, if filed on 24.07.2003. Accordingly the file was sent to the Hon'ble Court without any list and you have thus failed to maintain absolute integrity and devotion to duty and are guilty of gross misconduct within the meaning of Rule 3 of the U.P. Government Servant Rules, 1956."
The charge sheet was served to the petitioner. The petitioner filed the reply to the charge sheet. Sri Samar Bahadur, Jamadar, Smt. Manju R. Chauhan, Advocate, Sri C.K.Rai, Advocate and Sri U.N.Sharma, Senior Advocate were examined. The enquiry officer on consideration of entire facts and circumstances submitted the enquiry report on 28.02.2005 and found that the charge stood proved. In pursuance thereof, the disciplinary authority issued the show cause notice, which has been replied on 01.04.2005. Thereafter, the punishment order has been passed, which is impugned in the present writ petition.
Against the order of Registrar General of this Court, the petitioner filed the representation/appeal before Hon'ble The Chief Justice and Hon'ble The Chief Justice vide his order dated 23.02.2006 has rejected the representation/appeal. The said order has been communicated by Registrar (Establishment) by letter dated 24.02.2006, annexure-2 to the writ petition, which is also impugned in the present writ petition.
Learned counsel for the petitioner submitted that the petitioner has requisitioned the file of Writ Petition No.31984 of 2003, Raj Pratap Singh Vs. State of U.P. and others, under the bonafide belief that the mention was made by the Smt. Manju R.Chahuhan, Advocate and the same has been accepted by the Court, on the requisition slip given by Smt. Manju R.Chauhan, Advocate. There was no ill motive in summoning the file and, therefore, the punishment awarded is not justified. He further submitted that Smt. Manju R.Chauhan, Advocate in her statement, has stated that after handing over the mention slip to the Bench Secretary, the petitioner, she had given the information to S/Sri U.N.Sharma, Senior Advocate and C.K.Rai that Writ Petition No.31984 of 2003 that a mention was made and the case would be taken up on 25.07.2003. Sri U.N.Sharma, Senior Advocate has also stated in his statement that he was informed by his clerk that the information has been received in respect of Writ Petition No.31984 of 2003 a mention was made and it would be taken up.
Sri Ashish Mishra, learned counsel appearing on behalf of the respondent nos.2 and 3 submitted that the case of the petitioner is covered under Rule 3. He submitted that in view of Rule 40 of Allahabad High Court Officers and Staff (Conditions of Service And Conduct) Rules, 1976, The U.P. Government Servant Conduct Rules, 1956 is applicable in respect of the conduct, service and punishment of the Government employee. He further submitted that Rule 3 of the U.P. Government Servant Rules, 1956 (hereinafter referred to as "Rules, 1956") provides that every Government servant shall, at all times maintain, absolute integrity and devotion of duty In the present case, it has been proved beyond doubt that the petitioner has not discharged his duties faithfully. It is undisputed that no mention was made by Smt. Manju R. Chauhan, Advocate and mention has not been accepted by the Hon'ble Court. The petitioner merely on the basis of the requisition slip, given by Smt. Manju R. Chauhan, Advocate has requisitioned the file of Writ Petition No.31984 of 2003 from the office with ill motive. There could be no reason for summoning the said file from the office. The petitioner not only summoned the file but has placed it before the Hon'ble Court though the case was not in the list. It came to the notice of the Hon'ble Court that the case was not even in the list and, thereafter, immediately the Hon'ble Court has made a complaint to the Registrar General of this Court, on which proceeding has been initiated. Therefore, it is fully proved that the petitioner was not discharging his duties faithfully but with ill motive.
Reliance has been placed on the decision of the Apex Court in the case of Union of India Vs. J.Ahmed, reported in 1979, AIR (SC), 1022.
We have considered the rival submissions and perused the record.
Rules 3 of Rules, 1956 reads as follows:
"(1) Every Government servant shall at all times maintain absolute integrity and devotion to duty."
(2)Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may in force.
If a Government servant conducts himself in a way not consistent with due faithful discharge of duty in service it is misconduct, misconduct means misconduct arising from ill motive. Acts of negligence, errors judgment or innocent mistake do not constitute misconduct."
In the statement, Smt. Manju R.Chauhan, Advocate, has clearly denied to have made any mention before the Court and acceptance of the mention by the Court. The petitioner has not disputed that the file has been requisitioned merely on the basis of the requisition slip given by Smt. Manju R.Chauhan, Advocate. The said requisition slip is annexure-1 to the writ petition. In the requisition slip, there is no mention that mention was made by Smt. Manju R.Chauhan, Advocate and same has been accepted. Therefore, it is proved beyond doubt that the petitioner has summoned the file and has presented the file before the Bench, without there being any acceptance of mention by Hon'ble Court and the direction of the Hon'ble Court, inasmuch as case was not in the list. Bench Secretary of the Court is supposed to act on the instructions of the Court, faithfully, sincerely and with full of integrity. The act of the petitioner summoning the file at his own without there being any direction of the Court raises doubt about his integrity and amounts to not discharging his duties faithfully. The only possible inference would be that the petitioner acted with ill motive and summoned the file from the office merely on the basis of the requisition slip being given by Smt. Manju R. Chauhan, Advocate without any order or direction from the Court.
On the facts and circumstances, we do not find any error in the impugned order, which requires interference by this Court. It is settled principle of law that unless the penalty imposed is shockingly excessive, the Court should not interfere with the penalty awarded by the disciplinary authority.
The Apex Court in the case of Director General, RPF and others vs. Ch. Sai Babu, reported in (2003) 4 SCC 331 has observed as follows :
" As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that is shockingly disproportionate. Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works."
The Apex Court in the case of Chairman and Managing Director, United Commercial Bank and others vs. P.C. Kakkar, reported in (2003) 4 SCC 364 has observed as follows:
"The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed."
In the present case, we find that punishment awarded is not of such nature, which requires interference. The decision cited by learned counsel for the petitioner, on the facts and circumstances, is not applicable and clearly distinguishable.
In the said case, the employee was removed from service on the ground of lack of efficiency, lack of foresightness and indecisiveness. The Apex Court held that 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 it would indicate lack of devotion of duty. At the same time, the Apex Court has not approved the view of the High Court that the misconduct in the context of disciplinary proceedings means misbehaviour involving some form of guilty mind or mens rea. The Apex Court did not subscribe the aforesaid view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.
In the present case, the petitioner has challenged the order dated 06.02.2006 by way of amendment, which relates to the denial of the promotion. The issue relating to the promotion and the punishment are two separate issues. Therefore, we are proposing not to adjudicate the validity of the order dated 06.02.2006, which relates to the promotion giving liberty to the petitioner to challenge the said order separately before the appropriate Forum.
In the result, the writ petition fails and is, accordingly dismissed.
Dt.02.04.2014.
R./