{"id":29049,"date":"2011-02-11T00:00:00","date_gmt":"2011-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-bhuwan-shukla-vs-the-state-of-madhya-pradesh-on-11-february-2011"},"modified":"2016-10-05T04:12:29","modified_gmt":"2016-10-04T22:42:29","slug":"ram-bhuwan-shukla-vs-the-state-of-madhya-pradesh-on-11-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-bhuwan-shukla-vs-the-state-of-madhya-pradesh-on-11-february-2011","title":{"rendered":"Ram Bhuwan Shukla vs The State Of Madhya Pradesh on 11 February, 2011"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Ram Bhuwan Shukla vs The State Of Madhya Pradesh on 11 February, 2011<\/div>\n
     HIGH COURT OF MADHYA PRADESH : AT JABALPUR\n\n\n                   Writ Petition No : 15130 of 2005(S)\n\n                              Ram Bhuwan Shukla\n                                     - V\/s      -\n                             State of MP and others\n\n\nPresent :             Hon'ble Shri Justice Rajendra Menon.\n\n --------------------------------------------------------------------------------------\n              Shri Rajneesh Gupta, learned counsel for the petitioner.\n\n               Smt. Sheetal Dubey, Government Advocate, for the\n               respondents.\n --------------------------------------------------------------------------------------\n        Whether approved for reporting:                              Yes \/ No.\n\n\n                                    ORDER\n<\/pre>\n
                                    11\/02\/2011<\/p>\n
              Challenging the order-dated 8.11.2005 – Annexure P\/1,
\nwhereby the appeal filed by the petitioner under Rule 23 of the M.P.
\nCivil Services (Classification, Control and Appeal) Rules, 1966 has been
\nrejected, petitioner has filed this writ petition. Challenge is also made to
\nthe order of punishment dated 20.7.2001 – Annexure P\/2, by which
\npenalty of compulsory retirement, confirmation of the period of
\nsuspension and recovery of Rs.1,19,796=50 has been ordered against the
\npetitioner.\n<\/p>\n
2-            Records indicate that petitioner was holding the post of
\nAccountant in the office of Divisional Ayurveda Officer, Rewa. On
\n4.7.1989, while working as Accountant, the Drawing and Disbursing
\nOfficer, one Shri Ram Sharan Shrivastava, is alleged to have directed the
\npetitioner and one cashier – Shri Rampal Pandey, to go to the bank and
\nwithdraw a sum of Rs.2,39,593=00. Petitioner is said to have gone to the
\nBank and while returning from the Bank it seems that the aforesaid
\n                                     2<\/span><\/p>\n
amount was looted by certain unsocial elements from the scooter in
\nwhich the petitioner and Shri Rampal Pandey were travelling, as a result
\nof the aforesaid petitioner was suspended, a charge-sheet was issued to
\nhim and after enquiry into the matter, petitioner has been punished as
\nindicated hereinabove. Apart from the petitioner, the cashier – Shri
\nRampal Pandey has also been punished and the entire amount of
\nRs.2,39,593=00 is being recovered – half from the petitioner and half
\nfrom Shri Rampal Pandey.\n<\/p>\n
3-           Records indicate that earlier petitioner had filed an
\napplication before the State Administrative Tribunal challenging the
\npenalty order, but the petition was disposed of directing the petitioner to
\nfile an appeal and the appellate authority to decide the appeal. The
\nappeal having been decided, petitioner has now filed this writ petition.
\n4-           Shri Rajneesh Gupta, learned counsel for the petitioner,
\ninviting my attention to the General Financial Rules and Instructions, for
\nhandling of cash as contained in Annexure P\/14, argued that under Rule
\n53(5), it is the Drawing and Disbursing Officer who is the competent
\nauthority, directing for withdrawal of cash and it is stated that if the
\namount to be withdrawn is more than Rs.10,000\/- then a Police Escort
\nhas to be provided for disbursement of the amount. Referring to the note
\nappended to the Rule, which reads as under:\n<\/p>\n
             “Note 1-     The responsibility for the money entrusted to a
\n             peon or messenger is that of the drawing and disbursing
\n             officer and he is personally responsible for any loss of
\n             Government money occurring in non-observance of this
\n             rule. He should, therefore, use his discretion in selecting the
\n             person or persons and take the following precautions:-<\/p>\n
             (a)          xxx           xxx          xxx\n             (b)          xxx           xxx          xxx\n<\/pre>\n
             (c)   When the amount to be handled exceeds Rs.10,000
\n                   the Nazir, or the Accountant, or the Cashier, as the
\n                   case may be should go to Bank\/Treasury\/Post Office,
\n                   accompanied by a police escort, as laid down in
\n                                      3<\/span><\/p>\n
                    Home (Police) Department, Notification No.190-
\n                    4703-II-B(8), dated 16.1.1974.”<\/p><\/blockquote>\n
             Shri Rajneesh Gupta, learned counsel, argued that the entire
\nfault in this matter rests on the Drawing and Disbursing Officer, who has
\nnot provided adequate police protection and has breached the statutory
\nrule. Inspite thereof the Drawing and Disbursing Officer has been
\nexonerated of all the charges and no punishment is imposed upon him.
\nAccordingly, contending that the petitioner is being punished with the
\nharsh punishment of compulsory retirement and recovery of the entire
\namount alongwith confirmation of suspension for no fault of his,
\npetitioner seeks interference into the matter.\n<\/p>\n
5-           Inviting my attention to an order of Division Bench of this
\nCourt, in Writ Petition (S) No.432\/2003 (M.K. Malviya Vs. State of
\nMP), decided on 6.11.2003 – Annexure P\/15, Shri Rajneesh Gupta
\nargued that under similar circumstances when the Drawing and
\nDisbursing Officer was found to have been negligent in discharge of his
\nduty, the amount of recovery has been reduced by this Court by 50%
\nand, therefore, petitioner seeks interference into the matter.
\n6-           Further, inviting my attention to the provisions of Rule
\n53(viii) and the judgment of another Bench of this Court, in the case of
\nShrinivas Sharma Vs. State of MP and others, Writ Petition
\nNo.640\/1994, decided on 29.10.2008, Shri Rajneesh Gupta, learned
\ncounsel for the petitioner argues that when the provisions of Rule 53 are
\nbreached, then recovery from the petitioner is unsustainable and as done
\nby the learned Single Judge in the case of Shrinivas Sharma (supra),
\nShri Gupta prays for interference into the punishment on the ground that
\nthe punishment is too harsh and not warranted. Finally, Shri Rajneesh
\nGupta argued that even if the entire allegation against the petitioner is
\nheld to be correct, then the same would only amount to negligence in the
\ndischarge of duty or error of judgment on the part of the petitioner and
\nthe same may not be a ‘misconduct’ for which such a harsh punishment
\nshould be imposed. Inviting my attention to the principles laid down by
\nthe Supreme Court, in the case of Union of India Vs. J. Ahmed, (1979)
\n                                     4<\/span><\/p>\n
2 SCC 286, followed in the case of Inspector Prem Chand Vs.
\nGovernment of NCT of Delhi and others, (2007) 4 SCC 566, Shri
\nRajneesh Gupta argues that at best it would be only a case of negligence
\non the part of the petitioner and not a case of ‘misconduct’. Accordingly,
\nhe submits that the penalty imposed and the punishment is too harsh and,
\ntherefore, the same be interfered with.\n<\/p>\n
7-           Smt. Sheetal Dubey, learned Government Advocate for the
\nState, taking me through the findings of the enquiry and the enquiry
\nreport submitted that the petitioner did not carry out his duties properly,
\npetitioner alongwith the cashier – Shri Rampal Pandey and a peon were
\nsent to get the amount from the Bank, but the petitioner after getting the
\namount from the Bank took the briefcase in which the cash was taken
\nfrom Shri Rampal Pandey, sent the peon to office in a rickshaw and
\ncame back with Shri Rampal Pandey in a scooter, driven by Shri Rampal
\nPandey. Accordingly, contending that the petitioner is responsible for the
\nentire loss to the government and in ordering recovery the respondents
\nhave not committed any error, prayer made is that the petition be
\ndismissed.\n<\/p>\n
8-           I have heard learned counsel for the parties and perused the
\nrecords.\n<\/p>\n
9-           As far as the facts are concerned, there is no dispute with
\nregard to the same. It cannot be disputed that under Rule 53 of the
\nGeneral Instructions for handling Cash, the sole responsibility for
\nensuring proper withdrawal of cash and its transportation is on the
\nDrawing and Disbursing Officer. When the cash amount to be
\nwithdrawn is more than Rs.10,000\/-, it was the duty of the Drawing and
\nDisbursing Officer to ensure that proper police protection is given to the
\nemployees, who are sent to the Bank or Treasury for withdrawal of the
\namount. In this case, the Drawing and Disbursing Officer has been
\nnegligent in the discharge of his duties in as much as he did not provide
\nadequate police protection for bringing the cash from the Bank.
\nRespondents’ contention that the petitioner did not ask for police
\nprotection cannot be accepted for the simple reason when the statutory
\n                                      5<\/span><\/p>\n
rule mandates the Drawing and Disbursing Officer with the aforesaid
\nresponsibility. That being so, it is a case where there is initial breach of
\nrule by the Drawing and Disbursing Officer and the Drawing and
\nDisbursing Officer is exonerated without any action being taken against
\nhim. This is a discriminatory attitude of the respondents and cannot be
\nupheld by this Court.\n<\/p>\n
10-           That apart, the allegation against the petitioner is not with
\nregard to any malafide act or ill-will or ill motive on his part for
\nusurping the amount withdrawn from the Bank. Records indicate that for
\nthe loot in question a First Information Report was lodged and the Police
\nafter investigation did not find involvement of the petitioner in the
\nincident of looting of the amount. That being so, there is no ill-will or ill
\nmotive on the part of the petitioner in dealing with the money. If the
\nentire allegations levelled against the petitioner on the fact of it is
\naccepted, it would be nothing but a case of gross negligence or error or
\njudgment on the part of the petitioner in as much as for coming back
\nfrom the Bank on the scooter of Shri Rampal Pandey, the cashier,
\npetitioner took the briefcase from the cashier and asked the peon to go
\nback in the rickshaw and came to the Bank on the scooter. In the absence
\nof any ill motive or malafide intention on the part of the petitioner, this
\ncould be an act of negligence or error of judgment on the part of the
\npetitioner.\n<\/p>\n
11-           In the case of Inspector Prem Chand (supra), the meaning
\nof the word ‘misconduct’ and the act of ‘negligence or carelessness’ is
\ntaken note of and the matter is so dealt with from paragraphs 9 to 12:\n<\/p>\n
              “9.   Before adverting to the question involved in the
\n              matter, we may see what the term ‘misconduct’ means.\n<\/p><\/blockquote>\n
              10. In State of Punjab and Ors. v. Ram Singh Ex.
\n              Constable,<\/a> [1992] 4 SCC 54, it was stated:\n<\/p><\/blockquote>\n
                    ‘5. Misconduct has been defined in Black’s Law
\n                    Dictionary, Sixth Edition at page 999, thus:<\/p><\/blockquote>\n
                           ‘A transgression of some established and
\n                    definite rule of action, a forbidden act, a dereliction
\n                        6<\/span><\/p>\n
      from duty, unlawful behavior, willful in character,
\n      improper or wrong behavior, its synonyms are
\n      misdemeanor, misdeed, misbehavior, delinquency,
\n      impropriety, mismanagement, offense, but not
\n      negligence or carelessness.’<\/p>\n
Misconduct in office has been defined as:\n<\/p><\/blockquote>\n
             ‘Any unlawful behavior by a public officer in
\n      relation to the duties of his office, willful in
\n      character. Term embraces acts which the officer
\n      holder had no right to perform, acts performed
\n      improperly, and failure to act in the face of an
\n      affirmative duty to act.’<\/p>\n<\/blockquote>\n
11. In P. Ramanatha Aiyar’s Law Lexicon, 3rd edition, at
\npage 3027, the term ‘misconduct’ has been defined as under:\n<\/p><\/blockquote>\n
      ‘The term ‘misconduct’ implies, a wrongful intention,
\n      and not a mere error of judgment.\n<\/p><\/blockquote>\n
            *                   *                 *
\n      Misconduct is not necessarily the same thing as
\n      conduct involving moral turpitude.<\/p><\/blockquote>\n
        The word ‘misconduct’ is a relative term, and has to
\nbe construed with reference to the subject matter and the
\ncontext wherein the term occurs, having regard to the scope
\nof the Act or statute which is being construed. Misconduct
\nliterally means wrong conduct or improper conduct.\n<\/p><\/blockquote>\n
[See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju<\/a>:
\n(2006) 3 SCC 143]<\/p>\n
12. It is not in dispute that a disciplinary proceeding was
\ninitiated against the appellant in terms of the provisions of
\nthe Delhi Police (Punishment and Appeal) Rules, 1980. It
\nwas, therefore, necessary for the disciplinary authority to
\narrive at a finding of fact that the appellant was guilty of an
\nunlawful behavior in relation to discharge of his duties in
\nservice, which was willful in character. No such finding
\nwas arrived at. An error of judgment, as noticed
\nhereinbefore, per se is not a misconduct. A negligence
\nsimpliciter also would not be a misconduct. In Union of
\nIndia and Ors. v. J. Ahmed,<\/a> (1979) 2 SCC 286, whereupon
\nMr. Sharan himself has placed reliance, this Court held so
\nstating:\n<\/p>\n
      ‘II. Code of conduct as set out in the Conduct
\n      Rules clearly indicates the conduct expected of a
\n                                     7<\/span><\/p>\n
                   member of the service. It would follow that conduct
\n                   which is blameworthy for the Government servant in
\n                   the context of Conduct Rules would be misconduct.
\n                   If a servant conducts himself in a way inconsistent
\n                   with due and faithful discharge of his duty in service,
\n                   it is misconduct (See: Pierce v. Foster 17 Q.B. 536,\n<\/p><\/blockquote>\n
                   542). A disregard of an essential condition of the
\n                   contract of service may constitute misconduct [See:\n<\/p><\/blockquote>\n
                   Laws      v.    London      Chronicle      (Indicator
\n                   Newspapers), (1959) 1 WLR 698]. This view was
\n                   adopted in Shardaprasad Onkarprasad Tiwari v.
\n                   Divisional Superintendent, Central Railway, Nagpur
\n                   Division, Nagpur – (1959) 61 Bom LR 1596; and,
\n                   Satubha K. Vaghela v. Moosa Raza, (1969) 10 Guj
\n                   LR 23. The High Court has noted the definition of
\n                   misconduct in Stroud’s Judicial Dictionary which
\n                   runs as under:\n<\/p><\/blockquote>\n
                          ‘Misconduct means, misconduct arising from
\n                          ill motive; acts of negligence, errors of
\n                          judgment, or innocent mistake, do not
\n                          constitute such misconduct.’
\n                                              [Emphasis supplied]”\n<\/p><\/blockquote>\n<\/blockquote>\n
12-          If the act of the petitioner is analysed in the backdrop of the
\naforesaid, it can be safely construed that the admitted act of the
\npetitioner is not an act of misconduct, but is only an act of negligence on
\nhis part and, therefore, it was not a case where he could be punished for
\nthe act of misconduct. As the action of the petitioner does not amount to
\nany misconduct, the punishment of compulsory retirement cannot be
\nimposed upon the petitioner because the alleged misconduct against the
\npetitioner is not made out.\n<\/p><\/blockquote>\n
13-          For the negligence on the part of the petitioner and the
\ncareless manner of doing duty, petitioner is already punished by ordering
\nrecovery of 50% of the amount and further a punishment of stoppage of
\none increment without cumulative effect will meet the ends of justice,
\nfor the act of commission and omission on the part of the petitioner.
\nNormally a writ court is not supposed to interfere with the orders of
\npunishment imposed by the disciplinary authority, but in this case the
\npetitioner has already retired from service, he is more than 69 years of
\n                                      8<\/span><\/p>\n
age and he is litigating the matter since 1989. In the initial round of
\nlitigation, the matter was remanded back to the respondents for
\nreconsideration, the respondents after reconsideration have rejected his
\nappeal vide Annexure P\/1, on 8.11.2005 and this petition is pending for
\nmore than six years and not it is not proper to remand the matter back for
\nfurther reconsideration by the authorities concerned. Instead, in the
\ntotality of the facts and circumstances of the case and taking note of the
\nspecial features that are available in the case, it is a fit case where this
\nCourt should interfere and modify the punishment or the action taken
\nagainst the petitioner.\n<\/p>\n
14-          Accordingly, this petition is allowed. The order of
\ncompulsory retirement is quashed so is the order of suspension.
\nRespondents are directed to treat the petitioner to have worked till he
\ncompleted the age of superannuation and treat him to have retired on
\nattaining the age of superannuation. All salary and allowances, including
\nthe pay for the suspension period, be paid to the petitioner after
\ndeducting the pension and subsistence allowance already paid. However,
\nrecovery of Rs.1,19,796=50 ordered from the petitioner is not interfered
\nwith, the recovery is upheld as the petitioner is negligent for having
\ncaused this loss to the Government and a substituted penalty of stoppage
\nof one increment without cumulative effect for the act of commission
\nand omission of the petitioner is sufficient to meet the ends of justice.
\n15-          Respondents are directed to comply with the order passed
\nand grant the benefit consequent thereof to the petitioner within a period
\nof two months from the date of receipt of certified copy of this order.
\n16-          With the aforesaid observations, the petition stands allowed
\nand disposed of.\n<\/p>\n
                                             ( RAJENDRA MENON )
\n                                                    JUDGE
\nAks\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Ram Bhuwan Shukla vs The State Of Madhya Pradesh on 11 February, 2011 HIGH COURT OF MADHYA PRADESH : AT JABALPUR Writ Petition No : 15130 of 2005(S) Ram Bhuwan Shukla – V\/s – State of MP and others Present : Hon’ble Shri Justice Rajendra Menon. ————————————————————————————– Shri Rajneesh Gupta, learned […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-29049","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nRam Bhuwan Shukla vs The State Of Madhya Pradesh on 11 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-bhuwan-shukla-vs-the-state-of-madhya-pradesh-on-11-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Bhuwan Shukla vs The State Of Madhya Pradesh on 11 February, 2011 - 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