Article 309 of Constitution of India
All HC | Lack of efficiency or failure to attain highest standards in discharge of duties attached to public office would not constitute misconduct
Allahabad High Court: The Division Bench of Devendra Kumar Upadhyaya and Mohd. Faiz Alam Khan JJ. while dismissing the petition found no illegality or irregularity in the impugned order passed by U.P. State Public Service Tribunal.
In the instant case, a show-cause notice was issued to Respondent 1 under Rule 10 (2) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 which provides for an award of minor punishment. The Respondent 1 had to reply in respect of irregularities mentioned in the said show-cause notice.
The irregularity was such that as per Rule 10 (2) of U.P. Cable Television Network (Exhibition), Rules 1997, monthly details are required to be presented/furnished in Form-5, however, only three months (November, December 2014 and January 2015) of details were available in the concerned file Form-5 and no details of the earlier months.
In his reply, he stated that at the time of the inspection of the relevant file, all Forms-5 pertaining to the cable operator was 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.
In view of this, the Commissioner, Entertainment Tax, U.P. passed an order and found that Respondent 1 had not kept Forms-5 of every month relating to the cable operator concerned though he was required to keep the same and accordingly awarded the respondent 1 punishment of censure. This punishment was challenged by the Respondent no.1 under the provision of Rules, 1999, which too was dismissed by the State Government. Respondent 1 preferred claim petition before U.P. State Public Service Tribunal, Lucknow which has been allowed vide impugned judgment.
The Tribunal found 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 1 was not going to be benefited in any manner.
For defining the term 'Misconduct', State Government has made Rules under the proviso appended to Article 309 of the Constitution of India which are known as U.P. Government Servants Conduct Rules, 1956.
The said Rule 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. If anyone behaves in a manner against the said mandate is said to have done 'misconduct'.
To add to this, Counsel for the petitioner, CSC submitted that in absence of any mens rea the charge against Respondent 1, as alleged, would not amount to misconduct, is erroneous in view of the law laid down by the Supreme Court in the case of Union of India v. J. Ahmad, (1979) 2 SCC 286. For an act or omission to qualify 'misconduct' it should be such where irreparable damage or damage with the highest degree of culpability has occurred.
The Court after analyzing the submissions of the parties and the cases referred to observed that Respondent 1 was alleged to have not kept certain documents in the file concerned. It is not the charge against Respondent 1 that he did not maintain the said documents being its custodian. It is also not the charge against Respondent 1 that documents (Forms-5) pertaining to cable operators were not kept at all. Accordingly, Court stated that at the most respondent 1 can be said to have conducted himself negligently but there being no serious consequence of keeping Forms-5 at a separate place, such act of respondent 1 cannot be construed as misconduct.
In view of the above, the writ petition was dismissed.[State of U.P. v. Rajesh Kumar Singh, 2019 SCC OnLine All 3748, decided on 15-10-2019]
Published on October 30, 2019 August 31, 2020 By Devika
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