LALLAN PRASAD SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner, an Assistant Engineer presently posted at Kanpur Development Authority, Kanpur, seeks issuance of writ of certiorari quashing the order dated 14.6.2001 being Annexure-1 to the writ petition whereby he has been placed under suspension on a charge which relates to his duties while he was posted at Allahabad Development Authority. Allahabad.

(2.) It has been submitted by Shri U. N. Sharma, learned counsel appearing for the petitioner that the charge against the petitioner is that he failed to take effective steps in arresting unauthorised constructions in residential scheme of Allahabad Development Authority in Jhusi and was remiss in discharge of his duty but mere failure on the part of the petitioner to take effective steps in preventing the unauthorised constructions and mere carelessness in discharge of duties do not constitute 'misconduct' warranting disciplinary action. Shri Sharma has placed reliance on a decision of the Supreme Court in Union of India v. J. Ahmad, AIR 1979 SC 1022. Learned standing counsel representing the State and Shri J. N. Sharma, learned counsel appearing for Allahabad Development Authority. Allahabad (party respondent Nos. 2), on the other hand, submitted that the charge levelled against the petitioner are such as may warrant major penalty in the event of the same being established at the enquiry and therefore, recourse to suspension cannot be said to be unjustified.

(3.) We have given anxious consideration to the submission made across the Bar. The proviso to Rule 4 (1) of the U. P. Government Servants (Discipline and Appeal) Rules, 1999 visualizes that recourse to suspension would not be taken unless the charge is such as may warrant major penalty in the event of same being established at the enquiry. Therefore, the question is whether charges as levelled against the petitioner are such as may warrant imposition of major penalty in the event of the same being established at the enquiry. The charges against the petitioner as stated in the impugned order are two fold; first, that he failed to take any effective steps in preventing the unauthorised constructions in the residential scheme launched by the Allahabad Development Authority, Allahabad in Jhusi Kshetra, and second, that he was remiss in discharging his duties. In Union of India and others v. J. Ahmad (supra) it has been held that mere negligence and lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not be construed 'misconduct' unless consequences are directly attributable to negligence which would be such as to be irreparable or the resultant damage would be very high. The respondent J, Ahmad in that case had initially joined service in Assam State but later on came to be promoted to the Indian Administrative Services cadre and soon thereafter he was posted as Deputy Commissioner and District Magistrate, Navgaon and while he was posted on aforementioned post, there was a large scale of linguistic disturbance in the Navgaon which led to his suspension from service. The charges framed against him affirmatively showed failure on his part to take any effective preventive measures. Such a charge, in the context, was construed as an error in judgment in evaluating developing situation and since the allegations on various charges did not specify any act or omission in dereliction of duty or contrary to conduct, rule or any general rule prescribed within the "duty", it was held that the charges at the most only indicate the shortcomings in the personal capacity or the degree of efficiency of the respondent but such deficiency in personal character and personal ability would not be construed as "misconduct" for the purpose of 'disciplinary proceeding'. The Apex Court, however, held that gross or habitual negligence in performance of duty may constitute misconduct for disciplinary proceeding.