ORDER
V. Kanagaraj, J.
1. The above writ petition has been filed by the writ petitioner herein praying to issue a writ of certiorarified mandamus or any other appropriate writ, order or direction in the nature of a writ, calling for the records relating to the order of the 1st respondent made in his Roc.4/90-A, dated 13.6.1991 as confirmed by the 3rd respondent in his Order Roc. No. 9969/91/C1, dated 11.12.1992 and quash the same and direct the respondents herein to give all benefits which the petitioner has suffered on the basis of the order of the 1st respondent dated 13.6. 1991 and pass such further or other orders as this Honourable Court may deem fit and proper in the circumstances of the case.
2. The petitioner’s case is that he was appointed as steno-typist in the Madras Presidency Magistrate’s Court, Egmore on 21.7.1969; that he graduated in B.A, in 1972 and thereafter LL.B. in 1982, that in the meantime, he got transferred to Kanyakumari District in 1972 and was also promoted as Head Clerk in the year 1980 and became eligible for promotion as Sheristadar and from the said post he is eligible to apply for the post of Judicial Magistrate and that he got 22 years of unblemished record of service.
3. The petitioner would further submit that when he was working as Head Clerk in the Court of Judicial Magistrate No. III, Nagercoil, on 7.11.1989, the said court directed him by warrant in Crl.M.P. No. 3511 of 1989 to search for one Selvaraj, who was stated to be wrongfully confined in the Suchindrum and Kanyakumarai Police Stations and if found to. produce him forthwith in the court and to return the warrant with an endorsement after its immediate execution; that the petitioner along with another Office Assistant of the court by name Swaminathan proceeded to the Suchindrum Police Station that day at about 4.00 p.m. and met the Sub Inspector of Police there, who endorsed the said warrant and thereafter on a search held at Room No. 1, the said Selvaraj and another Subramniam were found and in the next room another Selvaraj and one Moorthy were found and as per the direction in the warrant, he brought Selvaraj, S/o. Muthayya Nadar, Madusudanapuram to the court at 5.15 p.m. after effecting entries in the Police Station Register; that it came to be known that no case has been booked against the said Selvaraj and hence the warrant was duly returned to the court after its due execution on 7.11.1989 at 5.15 p.m. The learned Magistrate after coming to know that no case was registered against the said Selvaraj, ordered his release with direction to appear as and when required by the court. According to the petitioner, since the action of the Sub Inspector of Police, Suchindram Police Station in wrongfully confining the said Selvaraj was brought to light, the said Sub Inspector of Police, with the connivance of the Inspector of Police, Kanyakumari lodged a false complaint against him.
4. The further case of the petitioner is that the learned Judicial Magistrate No.3, Nagercoil by his order dated 8.11.1989 made in C.M.P. No. 3537 of 1989 directed the petitioner to search the premises of Anjugramam Police Station and three other police stations and produce (1) Subramaniam, S/o. Muthaiyya, (2) Moorthy, S/o. Manuel and (3) Natarajalingam, S/o. Rajamony before the court and on 9.11.1989 since no travelling facilities were provided for, the learned Magistrate, permitted the petitioner to engage a car to go to the said three police stations to execute the warrant and meet the expenses from office contingencies and accordingly the petitioner inspected the said police stations and returned the warrant on the same day. As earlier mentioned, because of the execution of the search warrants, the Inspector of Police had sent some petition to the first and second respondents herein, the contents of which the petitioner did not know and consequently, the first respondent called for the explanation of the petitioner through his Official Memorandum No.4683/89-A, dated 23.11.1989. The contents of the said official Memorandum are: (1) that he travelled in the car provided by the Advocate for executing search warrant on 7.11.1989 and entered into the Police Station along with the party and the Advocate (2) that he brought the accused Selvaraj as per the search warrant to the court, even though he was not wrongfully confined in the station, but kept in the station as an accused concerned in Cr. No. 302 of 1989 registered at 12.05 hrs. and (3) that he paid Rs. 120 being the taxi fare for execution or search warrant on 9.11.1989.
5. In his explanation dated 2.12.1989, the delinquent/petitioner would state that in respect of the warrant dated 7.11.1989, he proceeded to the Suchindrum Police Station along with one S. Swaminathan, Office Assistant, who was deputed for his assistance and reached the Police Station at 4.00 p.m., that after disclosing his identity, he showed the search warrant to the Sub Inspector of Police and got his signature for having seen the warrant and then he searched and found one Selvaraj detailed in the warrant and produced him before the Magistrate at about 5.15 p.m. with his report; that had he not been in a position to make use of the car brought by the advocate and kept waiting for the Advocate to deposit the conveyance charges and thereafter to hire a car, he could not have produced the said person before the Magistrate within that evening and hence he made use of the facility afforded by the Advocate and searched the Police Station and neither the Advocate nor the party accompanied him in the car nor did they enter into the Police Station and that he only travelled in the car hired by the Advocate along with his Office Assistant and the same was not with any ulterior motive.
6. In reply to point No.2, he would submit that first he disclosed his identity, got the endorsement of the Sub Inspector of Police for having seen the warrant and then started searching for the person; that during his search, he found the person mentioned in the warrant and after giving acknowledgement, he brought the said Selvaraj to the court; that neither the Sub Inspector of Police brought to his notice that the said Selvaraj was kept in the Station as an accused in Crime No.302 of 1989 nor did he make any endorsement to that effect in the Search Warrant, when he got produced before him; that no arrest card or F.I.R. or G.D. entry was shown to him at the time of production of the said Selvaraj before the Magistrate on 7.11.1989 and the F.I.R. in Crime No.302 of 1989 framed for an offence under Section 75 of the Madras City Police Act had been received by the Court only on 8.11.1989 at 2.15p.m.
7… As reply to point No. 3 above, the petitioner has submitted that in Crl.M.P. Nos. 3537 of 1989 and 3538 of 1989, search was ordered at 6.30 p.m. on 8.11.1989 and since it was late, the Magistrate has ordered the execution of the warrant on 9.11.1989; that aggrieved against such delay, the Advocate has neither engaged a car nor deposited the taxi fare on 9.11.1989; that since the places of search are four police stations, located at different parts and in view of the difficulties to travel for all the above places, he put an office Note for necessary permission for hiring a car to execute the search warrant and the Magistrate permitted to hire a car and to meet the expenses from office contingencies and that he hired a car TNK.2016 and the expenditure of Rs. 120 was met from contingencies under Sub Voucher No. 12/11 of that court.
8. The first respondent herein, who was the Enquiry Officer recorded the statements of witnesses such as the petitioner/delinquent as D. W. 1 that of M. Perumal Pillai, Advocate as D.W.2, that of S. Swaminathan, Office Assistant, Judicial Magistrate No. III Court, Nagercoil as D.W.3, that of Sri C. Sundaram formerly Judicial Magistrate No. III, Nagercoil as D.W.4; that of Muthujothi, wife of the said Selvaraj as D.W.5; that of C. Ponnulingam as D.W.6 and that of M. Muthuswamy, former Head Clerk of the Judicial Magistrate’s court No. 1, Nagercoil as D.W.7 besides marking Exs.D-1 and D-2 through D.W.2 and Exs.D-3 and D-4 through D.W.4.
9. So far as the first charge is concerned, the Enquiry Officer himself would arrive at the conclusion that from the evidence it comes to be known that the delinquent did not take D.W.2, Advocate along with him in the car to the Police Station or entered into the police station along with him since there is no material to show that D.W.2 accompanied the delinquent to Suchindrum Police Station in the taxi at all and entered into the Police Station, But, at the same time, without any discussion, taking the only evidence of D.W.5 wife of the said Selvaraj that she went along with the delinquent and D.W.3 to the police station and identified her husband there, the Enquiry Officer has concluded that the delinquent along with D.W.5 only went in the taxi and entered into the police station and not with D.W.2 the advocate as given in the charge.
10. Regarding the delinquent/petitioner making use of the car provided by the Advocate, it is an admitted case on the part of the petitioner that he did not make use of the car provided by the Advocate and the explanation offered for such use of the car provided by the Advocate is that at the time that the Magistrate handed over the warrant with him, it was 4.00 p.m. and unless it is executed before the close of the court and night fall he cannot be entrusted with the custody of the court and keeping the said person outside would create many problems and hence he had to make use of the conveyance provided by the Advocate for the complainant’s party. But, this explanation would not be accepted by the Enquiry Officer who would held this part of the charge No. 1 proved.
11. Regarding the second charge that the delinquent brought the said Selvaraj to the court, even though the said person was not wrongfully confined in the Police Station, but kept as an accused as per the case registered in Cr. No. 302 of 1989 of Suchindrum Police Station registered at 12.05 hours on 7.11.1989, the Enquiry Officer taking into paramount consideration of the evidence of D.W.4 Judicial Magistrate No.3, Nagercoil that only in pursuance of the search warrant, the delinquent had acted in a prompt manner and that the delinquent was left with no option but to carry out the orders of the Magistrate adumbrated in the search warrant issued under Section 97 of the Criminal Procedure Code and that he rightly produced the person on being found in the police station regardless of the fact that whether any other case is registered against him or not and would arrive at the conclusion that the delinquent was not guilty of this charge. Moreover, the F.I.R. registered in Crime No. 302 of 1989 having reached the court only on 8.11.1989 at 2.10 p.m., the Enquiry Officer has concluded that the second charge against the delinquent is not sustainable and false.
12. Regarding the third charge that the delinquent paid Rs. 120 being the taxi fare for the execution of the search warrant on 9.11.1989 from the office contingencies, thus he has misused the Government money and committed misconduct, the Enquiry Officer would consider the evidence of D.Ws.1 and 4 and would observe that only on the permission of D.W.4, the Magistrate concerned, the taxi fare of Rs. 120 had been met without of the office contingency as the amount for the execution of the search warrant issued on 9.11.1989 and would ultimately conclude that the delinquent had not misused the Government money. But, at the same time, further probing into the same as to what are the contingencies that are meant the enquiry officer would arrive at the conclusion that the meeting of the expenditure of the taxi fare of Rs. 120 from the office contingencies is the misuse of the Government money, which had occurred on account of the wrong order passed by D.W.4 Magistrate since only on his permission the taxi fare of Rs. 120 has been paid from out of the office contingencies and the Enquiry Officer would ultimately hold the order passed by the Magistrate ‘unlawful’ and the delinquent has not committed any misconduct at this score nor misused the Government money. However, remarking that since the delinquent had been benefited with the said Government money, which he is not legally entitled to, the Enquiry Officer has ordered to recover the said amount from the delinquent/petitioner and to be remitted under the proper head into the court.
13. So far as charge No. 1 is concerned, though part of the charge is held not proved by the Enquiry Officer, the other part that the delinquent made use of the car engaged by the complainant’s Advocate came to be proved, even though the Advocate for the complainant was not travelled along with the delinquent and entered into the police station, the Enquiry Officer held that the delinquent should not have made use of the car arranged either by the party or the Advocate for the complainant and would hold the delinquent guilty of such misconduct and would impose a punishment withholding the increment for a period of two years without cumulative effect.
14. Aggrieved, the petitioner filed W.P. No. 15525 of 1991 before this Court and by an order dated 6.11.1991, this Court dismissed the said writ petition on the ground that the petitioner has not exhausted the alternative remedy of filing the appeal before the third respondent herein and directed the petitioner to file an appeal before the third respondent on or before 15.11.1991. Consequently, the petitioner preferred an appeal before the third respondent herein and the third respondent by his order dated 11.12.1992 in Roc. No. 9969/91/C1 dismissed the appeal preferred by the petitioner, thereby confirming the order passed by the first respondent, It is only aggrieved against the order passed by the third respondent confirming the order passed by the first respondent, the petitioner has come forward to file the above writ petition.
15. In the counter-affidavit, the first respondent would contend that due opportunity was provided to the petitioner to put forward his statement of defence against the charges with the benefit of cross-examination of the witnesses examined by the Department and to examine his own witnesses and the petitioner was supplied with all the copies that were required; that the Enquiry Officer has found only part of the charge No. 1 to have been proved that too based on the very admission of the petitioner that he made use of the taxi provided with by the party and hence a minor punishment of stoppage of increment for two years without cumulative effect had been imposed on the petitioner; that the third respondent had also duly considered the finding and the penalty imposed as well and it is meaningless to say that the third respondent has passed a non-speaking order; that the direction for the petitioner to redeposit a sum of Rs. 120 drawn by him from the office contingencies is not a penalty or a punishment; that since the office contingencies cannot be used for such purposes, the petitioner had been required to deposit the same and the petitioner cannot have any genuine grievance over it especially in view of the fact that it is open for him to claim travelling allowance for the journey made for discharging his official duties and ultimately would pray to dismiss the writ petition.
16. Yet another counter-affidavit filed by the third respondent would also emphasise the same points met with by the first respondent.
17. During arguments, apart from emphasizing the grounds offered on the part of the petitioner at the time filing the writ petition, the learned Counsel appearing for the petitioner would also cite a judgment in B. Lakshmipathi Naidu v. The District Educational Officer and Ors. , wherein it has been held that,
The High Court should not depart from the settled position and should follow the same i.e., the long standing legal position should not be disturbed.
and would point out that the third respondent in not passing a speaking order has departed from the long standing legal position.
18. The learned Counsel for the petitioner also cited yet another judgment delivered by a Division Bench of this Court delivered in W.P. No. 11038 of 1986 on 5.3.1999 of which one of us (Justice S.S. Subramani) is a party, wherein besides offering the definition of ‘misconduct’ given is Stroude’s Judicial Dictionary as,
Misconduct means, misconduct arising from ill motive. Acts of negligence, errors of judgment or innocent mistake do not constitute such misconduct.
The learned Judges would also cite a judgment in Management, Utkal Machinery Ltd. v. Workman, Miss Shanti Patnaik , wherein in the absence of standing orders governing the employee’s undertaking unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. Yet another judgment cited by the Division Bench is one reported is one reported in S. Govinda Menon v. Union of India , wherein it held that,
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. A.I.R. France , wherein it has been held that there may be negligence in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
19. After going through all the materials placed before the court, what comes to be known is that the situation under which the petitioner/delinquent has placed in executing the warrant duly issued by the Magistrate should also be taken into account. Even though strictly speaking the petitioner is not supposed to go by the car engaged by the party or the Advocate to one of the parties and should make his own arrangements within the permissible limits of the rules concerned with the same, still so far as the facts and circumstances concerned with the execution of a search warrant issued by the criminal court are to be concerned because it is embodied in Section 97 of the Criminal Procedure Code that the warrant issued under this section should be immediately executed without any delay and there is no doubt that the warrant has to be executed by the person with whom the warrant is placed for execution forthwith. But, at the same time, the system is lethargic in the sense that the concerned person cannot be applying for the release of the funds through orders passed by the authorities since the procedures and formalities are cumbersome that he cannot execute the warrant immediately unless he goes by a taxi or car and hence in view of the immediate execution of the warrant slight deviation from the normal procedure in order to avoid greater damage or danger to life or property can be ignored as so slight or simple that no person of ordinary temper would complain of or take serious note of such deviations, which are negligible rather. The irregularity said to have been committed on the part of the petitioner in his endeavour to execute the warrant with immediate effect as warranted by law and since the system not providing with any speedy device or conveyance for a speedy execution proved, no serious note of the petitioner having gone in a car engaged by the Advocate need be taken and the same even though strictly speaking would give way for being proceeded against for irregularity or misconduct in the normal course could be ignored or excused when such irregularities are committed under such circumstances as the petitioner/delinquent has been put in. Therefore, it is not reasonable on the part the Enquiry Officer to have arrived at the conclusion that the delinquent/petitioner has committed misconduct.
20. It is a open case, so far as charge No.3 is concerned that it was the Magistrate, who permitted the petitioner by a legal order to withdraw Rs. 120 from the contingency and on the part of the petitioner, absolutely there is nothing wrong committed especially in view of the fact that the said amount has been utilised only for the office purpose i.e., for engaging a taxi towards the execution of the warrant and hence even directing the delinquent/petitioner to remit back the amount of Rs. 120 that he has received towards the taxi fare from out of the office contingency into the court does not seem to be proper or on justifiable ground in the sense that as though the petitioner has utilised the said amount for his personal benefits.
21. In result of the above discussion, it is hereby held that it is not proper on the part of the enquiry and the punishing authority to impose a punishment on the delinquent/petitioner withholding increment for a period of two years without cumulative effect and thereafter directing him to remit back the amount of Rs. 120 that he had received towards the taxi fare from out of the office contingencies into the court. The third respondent also erred in holding that the charge, for which the petitioner was found guilty by the punishing authority has been established on facts and concluding that sufficient grounds are there for initiating such action ultimately dismissing the appeal preferred by the petitioner herein in not assessing the real conditions, under which the petitioner was made to act in execution of both the warrants duly issued by the Judicial Magistrate No.3, Nagercoil. The respondents have not acted in a fair manner and realising the duties and responsibilities of the petitioner and the practical difficulties that are to be undergone under such circumstances, especially when no delay could be thought of in executing the search warrants as it is statutory compulsion. The manner in which the evidence is appreciated by both the enquiry officer and punishing authority and the appellant authority are perverse, which has resulted in wrong conclusions to be arrived at, so as to end up with punishing the delinquent in the manner as aforementioned. There is no pith or substance in initiating the very proceeding against the petitioner on some precipitation caused on the part of the Police Officers, wherein the petitioner had acted promptly in executing the warrants.
22. In short, the very scope of framing the charges in the case in hand itself is limited and no officer of ordinary sense and temper would have instituted the proceeding itself on such flimsy and untenable charges. Though the superior officers are armed with such powers either to institute the enquiry or to give their findings, they should not make use of such powers on petty, untenable and worthless matter as the one in hand, so as to conduct the proceedings at the cost of the exchequer and precious time of many especially those who are occupying the strategic Government and other positions. The appellant authority has miserably failed to consider all these vital aspects encircling the whole affair regarding the institution of disciplinary proceeding against the petitioner and has bluntly arrived at his conclusions without even having discussion on such vital aspects. In the above circumstances, we have to say that there is no case worth enquired into has been put up by the prosecution nor has it been proved to the standards prescribed by law, thus bringing home the guilt of the petitioner and in consequence we are left with no option but to conclude that the manner in which the charges have been framed and the findings sought to be arrived at so as to award the punishment of withholding the increment for a period of two years without cumulative effect is not only improper but also shocking the conscience and highly unreasonable, so as to warrant our interference into the same.
23. In result, we order allowing the above writ petition and quashing the order passed by the first respondent made in his Roc. No. 4/90-A, dated 13.6.1991 as confirmed by the third respondent in his Order in Roc. No. 9969/91/Cl, dated 11.12.1992.
24. However, in the circumstances of the case, there shall be no order as to costs.