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TMI Blog1979 (3) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... Government took the first step of suspending the respondent from service by an order dated 14th September 1960. The Chief Secretary to the Government of Assam by his communication dated 13th September 1960 conveyed to the respondent various charges framed against him and called upon him to submit his explanation. A statement of allegations was annexed to the communication. Respondent submitted his explanation and thereafter the Government appointed respondent No. 4, K. Balachandran as the Enquiry Officer. After the inquiry was concluded, the Enquiry Officer submitted his report. It may be noticed that respondent was born on 1st February 1907 and according to Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 ('Retirement Rules' for short), then in force, the age of retirement being 55 years, the respondent would have retired from service on 1st February 1962. First, the Governor of Assam by his order dated 31st January 1962 purporting to exercise power under Rule 16(1) of the Retirement Rules, directed that the respondent then under suspension be retained in service for a period of three months beyond the date of his retirement which fell on Ist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency in discharge of duty would not constitute misconduct. On the second point it was held that if the Enquiry was not for any misconduct, sub-rule (2) of rule 16 would not be attracted and the Government had no power to retain the respondent in service for the purpose of holding or completing disciplinary proceeding which can only be for misconduct, and as there was no inquiry into what can be styled as misconduct, the retention in service of the respondent beyond the period of retirement was not legal and valid, and, therefore, the respondent could not bemoved from service from which he had retired. In accordance with these findings, the writ petition filed by the respondent was allowed declaring that the respondent was deemed to have retired from service from Ist February 1962 and that the punitive or disciplinary action taken against him after that date is completely without jurisdiction and wholly unjustified, and the same was quashed. The Union of India and the State of Assam have preferred this appeal by special leave. Rule 3 of the Discipline and Appeal Rules provides that the penalties therein set out may, for good and sufficient reasons, be imposed on a member of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 16 would not be attracted and he could not be retained in service beyond the date of his retirement. It was said that retention in service being invalid, imposition of penalty after his retirement is illegal. Therefore, what constitutes misconduct for a member of a service liable to be removed from service on proof of such misconduct in a disciplinary proceeding, looms large in this case. To appreciate the contention it is better to have a look at the charges framed against the respondent. They are as under: "(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 disturban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly en- tail penalty. Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty. The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Govinda Menon v. Unio nof India(4), the mamnner 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, Calcutta(5), 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 miscondu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, charges 2, 5 and 6 are clear surmises on account of the failure of the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances. We do not take any notice of charge No. 4 because even the Enquiry officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as charge No. 6 is the conclusion, viz., because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Enquiry Officer completely failed to take note of what was alleged in charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee months would be legal and valid with the result that the date of retirement of the respondent would be postponed to 1st May 1962. Admittedly no order was made by the Assam Government before 1st May 1962. The order postponing the date of retirement and retention of the respondent in service beyond 1st May 1962 was made on 21st June 1962. No order was made by the Assam Government for postponing the period of retirement of the respondent and his retention in service before 1st May 1962. The State Government had power under rule 16(1) (a) of the Retirement Rules to retain the respondent in service for a period of six months in aggregate and therefore, even though specific period was mentioned in the order, simultaneously providing for retention in service till the date of termination of the proceedings, the extension would be valid for a period of six months in the aggregate if the inquiry was continuing till the expiration of six months but not exceeding six months. In that event the respondent would retire from service by 1st August 1962. Putting the construction on rule 16 (1) (a) and the order of extension, most favourable to the State Government, it may be stated at once that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the respondent in service by order of the State Government not made before the retirement taking place on 1st August 1962 and the State Government not having the power to retain the respondent, a member of the Indian Administrative Service, beyond a period of six months, the respondent could not be said to have continued in service so that an inquiry could be continued against him. Mr. Naunit Lal, however, contended that sub-rule(2) of rule 16 clearly provides that a member of the service under suspension on a charge of misconduct shall not be required or permitted to retire from the service until the enquiry into the charges against him is concluded and a final order is passed. It is in the context of sub-rule (2) of rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent could be retained in service until the inquiry into the charges against him was concluded and a final order was made. But before sub-rule (2) of rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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