Gujarat High Court
M M Baria vs District Development Officer on 15 April, 2026
NEUTRAL CITATION
C/SCA/595/2011 JUDGMENT DATED: 15/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 595 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
✓
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M M BARIA
Versus
DISTRICT DEVELOPMENT OFFICER & ORS.
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Appearance:
MR. J.V. JAPEE(358) for the Petitioner(s) No. 1
MR. SIDDHARTH RAMI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 2
MR. KIRIT PATEL for MR. H.S. MUNSHAW(495) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT
Date : 15/04/2026
JUDGMENT
1. Heard Mr. J. V. Japee, learned Advocate for the petitioner, Mr.
Kirit Patel, learned Advocate appearing on behalf of Mr. H. S.
Munshaw, learned Advocate for respondent No. 1 and Mr.
Siddhartha Rami, learned Assistant Government Pleader, for
respondent No. 2. The presence of respondent No. 3 is not
required, being the Tribunal.
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2. The present writ petition is filed under Articles 226 and 227 of
the Constitution of India, seeking the following reliefs:
“[A] YOUR LORDSHIPS be pleased to issue appropriate writ,
order or direction and be pleased to quash and set aside the
impugned orders passed by respondent nos. 1, 2 & 3 at
Annexures J, L & M respectively.
[B] YOUR LORDSHIPS be pleased to issue the writ of Mandamus
or any other appropriate writ, order or direction and be pleased to
direct respondent no. 1 to reinstate the petitioner to his original
post with all consequential benefits.
[C] YOUR LORDSHIPS be pleased to stay the implementation,
execution and operation of the order passed by respondent nos.
1, 2 & 3 at Annexures J, L & M respectively to the petition and be
pleased to allow the petitioner to discharge his duties as a Deputy
Accountant and draw his salary accordingly, pending the
admission. hearing and final disposal of the petition.
[D] YOUR LORDSHIPS be pleased to grant such other and
further reliefs as may be deemed fit in the interest of justice.”
3. SHORT FACTS:
3.1. The petitioner was serving as a Deputy Accountant at Taluka
Panchayat Office, Jetpur Paavi for the period between 17th
June, 1998 and 19th August, 2003. The petitioner, during the
course of his service, given cheques in two installments in
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favour of four beneficiaries of ‘Sardar Awas Yojana’ in the
year 1999-2000 who were resident of Panibar Village Panchyat
(herein after referred as ‘the Panchyat’). At the time of handing
over cheques of second installment on 16th March, 2000, it was
alleged that the petitioner did not verify and confirm the
identity of the beneficiary, thereby handed over the cheques to
some different persons than real beneficiaries. Since the bogus
bank accounts were opened up in the name of beneficiaries,
they in turn a government were defrauded due to aforesaid act
of the petitioner.
3.2. The petitioner was served with a charge-sheet by respondent
No. 1 initially on 16th/29th September, 2003, which was revised
and an amended charge-sheet was issued on 20th October,
2004. The two charges were framed against the petitioner,
which can be summarized in brief thus:
(i) While handing over the cheques dated 16th March,
2000 to the four beneficiaries as named in the charge-
sheet, due care was not taken by the petitioner and
without ascertaining their identities in presence of
Village Sarpanch/Talati Cum Mantri, thereby without
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observing the accounts rules, cheques were handed
over to other persons than the beneficiaries and due to
such act, all including petitioner successfully siphoned
of money which otherwise payable to real
beneficiaries, thereby defrauded the beneficiaries as
well as government. You have acted unbecoming of
the panchayat employee. You have violated Rules of
the Gujarat Panchayat Services (Conduct) Rules,
1998, for which you are responsible on your own.
(ii) The petitioner connived with other persons, opened
the bank account in the name of the beneficiaries and
realized the cheque amount, whereby, committed
offences under Sections 420, 467, 468, 469, 409, 120(b),
and 114 of the Indian Penal Code, for which a First
Information Report was registered against the
petitioner with others on 24th July, 2003, being C.R.
No. I-72/2003. You have acted unbecoming of the
panchayat employee. You have violated Rule-3 of the
Gujarat Panchayat Services (Conduct) Rules, 1998, for
which you are responsible on your own.
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3.3. The petitioner submitted his detailed reply on 22nd November,
2004, wherein, he had categorically mentioned that at the time
of first installment as well as second installment of cheques
given to beneficiaries, one Mr. Nalubhai Dhirabhai Rathwa,
who happens to be a Panchayat member of Panibar Panchayat
(the Panchayat), had identified the beneficiaries. Accordingly,
the petitioner had handed over the cheques to the concerned
beneficiaries named in the charge-sheet.
3.4. It is submitted that at the time of handing over the cheques of
first installment to the beneficiaries, a similar procedure was
adopted by him and there was no complaint from any quarter
received for handing over the cheques to other persons than the
beneficiaries. It is further submitted that as per the certificate
issued by the Talati-cum-Mantri of Panibar Gram Panchayat
dated 25th March, 2004, the beneficiaries named in the charge-
sheet are residing in the houses allotted to them and thereby,
their rights are not prejudiced in any manner.
3.5. It is further submitted that the first installment of the cheques
issued to the beneficiaries on 25th November, 1999, whereas,
the second installment of the cheques issued to the beneficiaries
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on 16th March, 2000, and due to the time gap of about four
months in between, it was difficult for him to remember the
identity of the beneficiaries who received the cheques of the
first installment. Since their identities were confirmed by a local
Panchayat member as aforesaid, there was no reason for him to
doubt the identity of the beneficiaries. Further, the petitioner
has submitted that till the time of chargesheet, none of
beneficiaries named in it ever complained him about none
receipt of the cheques. Thus, there was a reason to believe that
cheques were received by real beneficiaries.
3.6. It is also submitted that every month, the Taluka Panchayat is
issuing around 150 to 200 cheques and due to the workload of
financial year end and as the beneficiaries were hailing from a
tribal region, and as such the identification was confirmed by
the member of local panchayat, the petitioner handed over the
cheques to the beneficiaries without any ill-intention.
Accordingly, the petitioner denied the first charge.
3.7. So far as the second charge as regards connivance with other
persons in opening of the account, etc., is completely denied by
the petitioner in his reply.
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3.8. After recording of oral evidence and upon appreciation of
evidence recorded during the course of the inquiry, the inquiry
officer submitted his report dated 17th December, 2005,
wherein, he has found the charge No. 1 proved against the
petitioner, whereas, charge No. 2 is not proved. So far as
charge No. 1 is concerned, according to the inquiry officer, the
petitioner ought to have taken due care and could have seen the
ration card, election card, light bill, etc., of the beneficiaries
concerned before handing over the cheques to persons
concerned and merely because their identifications were
confirmed by the panchayat member, the petitioner could not
have given cheques to the beneficiaries.
3.9. After considering the final submissions of the petitioner, the
disciplinary authority – respondent No. 1 herein, vide its order
dated 17th/18th August, 2007, by discarding the version of the
petitioner, who categorically brought to the notice of the
disciplinary authority that as per the circular dated 18th
November, 2005 issued by the Additional Commissioner,
Village Development, Gandhinagar that any payment shall be
made in presence of either Village Sarpanch or one member of
the Village Panchayat, rather it had accepted the reasons of the
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inquiry officer qua the charge No.1.
3.10. The disciplinary authority was of the opinion that the said
circular came into effect from 18th November, 2005, and the
incident in question has taken place in the year 2000, the same
would not help the case of the petitioner. The disciplinary
authority is also of the view that the petitioner had not taken
due care, which was expected from any Deputy Accountant
while handing over the cheques to the beneficiaries, which
ultimately resulted into violation of account rules framed under
the Gujarat Panchayat Act, 1997. Accordingly, the disciplinary
authority has imposed the punishment of compulsory
retirement.
3.11. The petitioner appears to have carried the said impugned order
of compulsory retirement by way of appeal before the
Additional Development Commissioner, Gujarat State,
Gandhinagar, who vide its impugned order dated 29th
January, 2008, rejected the appeal of the petitioner. Thereafter,
the petitioner carried the matter further before the Gujarat
Civil Service Tribunal, Gandhinagar – respondent No.3 herein,
by way of Appeal No. 37 of 2008, where also the petitioner met
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with the same fate, as the Tribunal, vide its judgment and order
dated 9th June, 2010, dismissed the appeal filed by the
petitioner.
3.12. Feeling aggrieved and dissatisfied with the aforesaid impugned
orders passed by the disciplinary authority, confirmed by the
appellate authority and the Tribunal, as the case may be, the
petitioner has preferred this petition.
4. SUBMISSIONS OF THE PETITIONERS:
4.1. Mr. Japee, learned Advocate for the petitioner, would submit
that charge No. 1 levelled against the petitioner was not
proved, as there is no set-out procedure in the Panchayat Act
or its Rules, whereby the petitioner could have taken
ascertained the identification of the beneficiaries in particular
manner while handing over the cheques to them. It is submitted
that due care and caution were taken by the petitioner while
handing over the cheques to the beneficiaries, as the
identification of the beneficiaries were confirmed by a local
panchayat member, namely, Nalubhai Dhirabhai Rathwa,
which is not disputed by respondent No. 1. It is further
submitted that the explanation submitted by the petitioner was
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not appreciated by the disciplinary authority, which ultimately
resulted into order of compulsory retirement, which is not only
harsh but disproportionate to the alleged misconduct. It is
further submitted that the alleged incident was taken place in
the year 2000, whereas, the charge-sheet was issued in the year
2003, that too after registering the FIR against the petitioner.
4.2. Mr. Japee, learned Advocate for the petitioner, has drawn the
attention of this Court to the affidavit dated 10th August, 2025
filed by the petitioner, whereby, he has placed a simple copy of
the judgment and order of acquittal dated 5th May, 2022,
passed by learned JMFC, Jetpur Paavi in Criminal Case
No.135 of 2004. It is submitted that learned Magistrate has
categorically recorded the finding that the prosecution has
failed to prove the charge against the petitioner and other
accused, meaning thereby the petitioner was never involved in
either opening of the account or receipt of the amount by other
persons than beneficiaries. It is further submitted that since the
petitioner is already acquitted from the offences referred in the
charge-sheet, the order of punishment would not sustain and
this Court may quash and set aside the impugned orders as
prayed in this petition.
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4.3. Making the above submissions, Mr. Japee, learned Advocate,
would request this Court to allow the present writ petition.
5. SUBMISSIONS OF THE RESPONDENT NO.1:
5.1. Per contra, Mr. Patel, learned Advocate appearing on behalf of
Mr. Munshaw, learned Advocate for the respondent No. 1,
would vehemently oppose this petition and rely upon the
contents of the reply as well as the orders impugned in this
petition. It is submitted that, undisputedly, the petitioner did
not check any identification proof of the beneficiaries, i.e.,
ration card, election card, or electricity bill, and handed over
the cheques to the persons who were not actual beneficiaries of
the Sardar Awas Yojana, thereby committed misconduct as per
charge No. 1 stated in the charge-sheet. It is further submitted
that the petitioner was holding the post of Deputy Accountant,
and he ought to have used his common sense while handing
over the cheques to the beneficiaries and having not done so,
breached the provisions of Rule 23 of the Account & Budget
Rules of the Panchayat Act, as referred in the impugned order.
It is further submitted that once the charge No. 1 is proved in
the inquiry and upon appreciation of the evidence and the
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defence of the petitioner, the disciplinary authority as well as
the appellate authority opined that the petitioner is required to
be compulsorily retired from service, and the same was not
disturbed by the Tribunal, this Court, while exercising its
power under Articles 226 and 227 of the Constitution of India,
should not interfere with the impugned orders. It is also
submitted that the observations and reasons assigned by the
disciplinary authority are neither erroneous nor perverse and
merely because any second view is possible in the matter, this
Court may not substitute such view by replacing the view
already taken by the disciplinary authority in the matter.
5.2. Making the above submissions, Mr. Patel, learned Advocate,
would request this Court to reject the present writ petition.
6. SUBMISSIONS OF THE RESPONDENT-STATE:
6.1. Mr. Rami, learned AGP, would adopt the submissions
canvassed by Mr. Patel, learned Advocate for respondent No.1.
7. No other and further submissions are being made.
ANALYSIS:
8. Having heard learned Advocates appearing for the respective
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parties and upon perusal of their pleadings and documents
made available on record and after minutely going through the
impugned orders, the question which falls for my consideration
is that whether any misconduct as per charge No.1 was
committed by the petitioner.
9. It remained undisputed between the parties that the petitioner,
while serving as a Deputy Accountant, handed over the
cheques to four persons who alleged to have been beneficiaries
belongs to the Panchayat under ‘Sardar Awas Yojana’. At the
time of handing over the cheques of first installment to the
beneficiaries named in the charge-sheet on 25th November,
1999, their identification was certified by one Mr. Nalubhai
Dhirabhai Rathwa, who happens to be a member of local
panchayat. The similar procedure was also adopted by the
petitioner at the time of handing over the cheques of second
installment on 16th March, 2000. There is no dispute between
the parties that the petitioner did not see any ration card,
election card, or electricity bill of the beneficiaries while
handing over the cheques either at the time of the first
installment or the second installment. It is the inquiry officer
who opined while answering to charge No.1 that it was
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expected from the petitioner to use his common sense while
handing over the cheques to the beneficiaries concerned and to
verify their identities by seeing either ration card, election card,
or electricity bill, which he did not do seen it. Thus, according
to the inquiry officer, the petitioner acted in contravention of
the rules and accordingly, the inquiry officer has found that
charge No. 1 stand proved. The reasons of the inquiry officer
are adopted and accepted by the disciplinary authority-
respondent No.1 while passing impugned order of punishment
on 17th/18th August, 2007.
10. So far as the defence of the petitioner is concerned, it is his
specific case that since there was the identification of the
beneficiaries confirmed by the member of the local village
panchayat, at the time of handing over the cheque of the first
and second installment, there was no reason for him to doubt
their identities. It is further the case of the petitioner that as per
the certificate issued by Talati-cum-Mantri of Panibar Gram
Panchayat (the Panchayat) dated 25th March, 2004, the
beneficiaries in question are residing in the allotted houses and
thereby, their rights are not frustrated. The incident of handing
over the cheque to the alleged beneficiaries taken place on 16th
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March, 2000, which was at the end of the financial year and
due to the workload, the petitioner not thought it fit to check
other details. It is also not disputed that all the beneficiaries
were hailing from the tribal region and never complained of
none receipt of the cheques of second installment. The
petitioner, in his final submission to the disciplinary authority,
categorically stated that as per the circular dated 18th
November, 2005 issued by the Office of the Additional
Commissioner, Village Development, Gandhinagar, while
making payment, there should be the presence of either
Sarpanch or one of the member of the Village Panchayat.
11. Thus, considering the aforesaid facts and circumstances, it
appears that the petitioner had handed over the cheques to the
persons claiming to be the beneficiaries as named in the charge-
sheet, on the basis of their identifications confirmed by the
member of the Panchayat – Panibar Village Panchayat where
the beneficiaries were residing. The FIR culminated in a
charge-sheet against the petitioner for the aforesaid offence,
but it did not stand before the Court of Law, as the Magistrate
concerned, vide its judgment and order dated 5th May, 2022,
acquitted the petitioner and other accused from the aforesaid
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offence. I have also gone through the aforesaid judgment
passed by the Magistrate concerned, wherein, he has
specifically observed that the prosecution has failed to bring on
record any documentary or oral evidence whereby it can be
proved that the petitioner along with other accused had opened
the accounts in the name of beneficiaries and misused the
cheques. Accordingly, the petitioner is honourably acquitted.
12. Having considered the aforesaid facts and circumstances, it is
very much clear, as has come on record, that there is no direct
or indirect involvement of the petitioner in encashing the
cheques issued in favour of the beneficiaries, rather, his act of
handing over the cheques to the persons concerned alleged to
have claim to be beneficiaries was due to their identification
confirmed by aforesaid member of local panchayat, who also
happened to be one of the accused in the aforesaid criminal
case and happened to be the father of one Premilaben, who was
the President of the Taluka Social Justice Committee. The
respondent No. 1, during the course of arguments, unable to
point out that there is any set procedure prescribed under the
Panchayat Act or Rules framed thereunder in regard to
handing over the cheques to the beneficiaries. It has not
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brought on record by respondent No.1 that before handing
over the cheque to the beneficiary, which are the documents to
been seen by Accountant like the petitioner to confirm the
identity of beneficiary. In the absence of any such set norms or
rules under law, the petitioner appears to have applied his
prudence by accepting the identification of the beneficiary
concerned confirmed by member of local village panchayat, as
aforesaid, such prudence cannot be said to have been either
erroneous or in any manner contrary to common sense of an
employee of the Panchayat, inasmuch as all the beneficiaries
were hailing from tribal region and they can be easily identified
by the member of the local village panchayat. Something more
could have been done by the petitioner, i.e., to call upon the
beneficiaries to produce copy of the ration card, election card,
or electricity bill, etc., as observed by the inquiry officer and
accepted by the disciplinary authority, would not amount to
any misconduct. It is settled position of law that mere error of
judgment, negligence, singular act of omission or not acted as
per highest expectation etc., would not constitute misconduct
per se. For such an act, employee cannot be held liable for
committing misconduct.
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13. At this stage, it would be apt to refer to the observation of this
Court in the case of Rasiklal Ambalal Makwana V/s. State of
Gujarat in Special Civil Application No. 14341 of 2019 passed
on 10th November, 2025, specifically in paragraph No.15, held
thus:
“15. The contours of the expression “misconduct” is well
described by several pronouncement of Hon’ble Apex Court
followed by this Court. I would like to refer few of such as
follow:
15.1 To incisive examination, by the Hon’ble Apex Court, in the
case of Ravi Yashwant Bhoir v. Collector, (2012) 4 SCC 407,
wherein, held as under:
“MISCONDUCT:
11.Misconduct has been defined in Black’s Law Dictionary,
Sixth Edition as:
A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty,
unlawful behavior, wilful in character, improper or
wrong behavior, its synonyms are misdemeanor,
misdeed, misbehavior, delinquency, impropriety,
mismanagement offense, but not negligence or
carelessness.
Misconduct in office has been defined as:
Any unlawful behavior by a public officer in relation to
the duties of his office, wilful in character. Term
embraces acts which the office holder had no right to
perform, acts performed improperly, and failure to act
in the face of an affirmative duty to act.
12. P. Ramanatha Aiyar’s Law Lexicon, Reprint Edition
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1987 at page 821 defines misconduct thus:
“The term misconduct implies a wrongful intention, and
not a mere error of judgment. Misconduct is not
necessarily the same thing as conduct involving moral
turpitude. The word misconduct is a relative term, and
has to be construed with reference to the subject
matter and the context wherein the term occurs, having
regard to the scope of the Act or statute which is being
construed. Misconduct literally means wrong conduct or
improper conduct. In usual parlance, misconduct means
a transgression of some established and definite rule of
action, where no discretion is left, except what necessity
may demand and carelessness, negligence and
unskilfulness are transgressions of some established,
but indefinite, rule of action, where some discretion is
necessarily left to the actor. Misconduct is a violation of
definite law; carelessness or abuse of discretion under
an indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is
necessarily indefinite. Misconduct in office may be
defined as unlawful behaviour or neglect by a public
officer, by which the rights of a party have been
affected.
Thus it could be seen that the word misconduct though
not capable of precise definition, on reflection receives
its connotation from the context, the delinquency in its
performance and its effect on the discipline and the
nature of the duty. It may involve moral turpitude, it
must be improper or wrong behaviour; unlawful
behaviour, wilful in character; forbidden act, a
transgression of established and definite rule of action
or code of conduct but not mere error of judgment,
carelessness or negligence in performance of the duty;
the act complained of bears forbidden quality or
character. Its ambit has to be construed with reference
to the subject matter and the context wherein the term
occurs, regard being had to the scope of the statute and
the public purpose it seeks to serve….”
(emphasis supplied)
(See also:State of Punjab & Ors. v. Ram Singh Ex.
Constable, 1992 AIR(SC) 2188).
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13.Mere error of judgment resulting in doing of negligent
act does not amount to misconduct. However, in
exceptional circumstances, not working diligently may be a
misconduct. An action which is detrimental to the prestige
of the institution may also amount to misconduct.Acting
beyond authority may be a misconduct. When the office-
bearer is expected to act with absolute integrity and
honesty in handling the work, any misappropriation, even
temporary, of the funds, etc. constitutes a serious
misconduct, inviting severe punishment. (VideDisciplinary
Authority-cum-Regl. Managerv.Nikunja Bihari Patnaik,
(1996) 9 SCC 69:1996 SCC (L&S) 1194,Govt. of T.N.v.K.N.
Ramamurthy[(1997) 7 SCC 101:1997 SCC (L&S) 1749:AIR
1997 SC 3571],Inspector Prem Chandv.Govt. of NCT of
Delhi[(2007) 4 SCC 566:(2007) 2 SCC (L&S) 58] andSBIv.S.N.
Goyal[(2008) 8 SCC 92:(2008) 2 SCC (L&S) 678:AIR 2008 SC
2594].)
14. InGovt. of A.P.v.P. Posetty[(2000) 2 SCC 220:2000 SCC
(L&S) 254], this Court held that since acting in derogation
to the prestige of the institution/body and placing his
present position in any kind of embarrassment may amount
to misconduct, for the reason, that such conduct may
ultimately lead that the delinquent had behaved in a
manner which is unbecoming of an incumbent of the post.
15. InM.M. Malhotrav.Union of India[(2005) 8 SCC
351:2005 SCC (L&S) 1139:AIR 2006 SC 80], this Court
explained as under : (SCC p. 362, para 17)
“17…. It has, therefore, to be noted that the word
‘misconduct’ is not capable of precise definition. But at
the same time though incapable of precise definition,
the word ‘misconduct’ on reflection receives its
connotation from the context, the delinquency in
performance and its effect on the discipline and the
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nature of the duty.The act complained of must bear a
forbidden quality or characterand its ambit has to be
construed with reference to the subject-matter and the
context wherein the term occurs, having regard to the
scope of the statute and the public purpose it seeks to
serve.”
A similar view has been reiterated inBaldev Singh
Gandhiv.State of Punjab[(2002) 3 SCC 667:AIR 2002 SC
1124].
16.Conclusions about the absence or lack of personal
qualities in the incumbent do not amount to misconduct
holding the person concerned liable for punishment.
(SeeUnion of Indiav.J. Ahmed[(1979) 2 SCC 286:1979 SCC
(L&S) 157:AIR 1979 SC 1022].)
17. It is also a settled legal proposition that misconduct
must necessarily be measured in terms of the nature of the
misconduct and the court must examine as to whether
misconduct has been detrimental to the public interest.
(VideBank of Indiav.Mohd. Nizamuddin[(2006) 7 SCC
410:2006 SCC (L&S) 1663:AIR 2006 SC 3290].)
18. The expression “misconduct” has to be understood as
atransgression of some established and definite rule of
action, a forbidden act, unlawful behaviour, wilful in
character. It may be synonymous as misdemeanour in
propriety and mismanagement. In a particular case,
negligence or carelessness may also be a misconduct for
example, when a watchman leaves his duty and goes to
watch cinema, though there may be no theft or loss to the
institution but leaving the place of duty itself amounts to
misconduct. It may be more serious in case of disciplinary
forces.
19. Further, the expression “misconduct” has to be
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construed and understood in reference to the subject-
matter and context wherein the term occurs taking into
consideration the scope and object of the statute which
is being construed. Misconduct is to be measured in the
terms of the nature of misconduct and it should be
viewed with the consequences of misconduct as to
whether it has been detrimental to the public interest.”
(emphasis supplied)
15.2 Even recently Hon’ble Apex Court in the case of Amresh
Shrivastava (Supra), also reiterated similar view, wherein
also previous case law on such issue relied upon. It would be
apt to refer pertinent observations of the Hon’ble Apex Court
in the aforesaid case, reads as under;
“8.1 This Court had ruled that in absence of allegations of
extraneous influence, departmental proceedings should
not be initiated merely because a quasi-judicial order was
incorrect.
9. Further reliance was also placed upon the judgment of this
Court in Zunjarrao Bhikaji Nagarkar vs. Union of India and
Others [(1999) 7 SCC 409], where this Court had held the
quasi-judicial officer’s error in judgment does not
automatically imply misconduct or favouritism. Disciplinary
action requires clear evidence of extraneous influence
beyond mere legal mistakes to avoid undermining judicial
independence. Similarly, in case of Krishna Prasad Verma
through Lrs. vs. State of Bihar and Others [(2019) 10 SCC
640], this Court clarified that while wrong orders by judicial
officers should not automatically lead to disciplinary action
unless there are allegations of misconduct based on
extraneous influences. The remedy under such circumstances
would be available to the parties concerned to avail all the
remedies available under law. It was further reiterated that
unless there are clear cut allegations of misconduct,
extraneous influences, gratification of any kind etc.,
disciplinary proceedings should not be initiated merely on
the basis that a wrong order has been passed by the
judicial officer or merely on the ground that the judicialPage 22 of 34
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order is incorrect.
16. In the present case, we are of the considered view that the
charges alleged against the Appellant in the chargesheet fall
under the category of a wrongful order, which does not
appear to have been influenced by extraneous factors or any
form of gratification. It appears that the order has been
passed in good faith, without any indication of dishonesty.
Furthermore, the facts outlined in the Show Cause Notice do
not suggest any such impropriety. The power exercised by the
Appellant in his capacity as a Tehsildar, while passing the
order of Land Settlement Order, cannot be considered of a
nature that would warrant disciplinary proceedings against
him. The decision relied upon by the Counsel for the Appellant
as mentioned above, supports this view. Consequently, the
first question is answered in favor of the Appellant”.
(emphasis supplied)
15.3 It would also apposite to have a reference of the decision
of the Division Bench of this Court in case of Chandrakant
Gokalbhai Patel (supra), wherein after discussing the case
law as to what constitute ‘misconduct’ in departmental
proceeding, the Division Bench of this Court in its aforesaid
decision observed and held thus;
“22. To appreciate the contentions of the learned counsel
for the parties, having noted the factual aspects of the
matter, the nature of charges and the manner in which the
decision was taken for settlement of cases in the Lok
Adalat, we are first required to cull out the law laid down
by the Apex Court in the decisions cited by the learned
counsel for the writ petitioner as to the meaning of term
‘Misconduct’.
23. In Inspector Prem Chand versus Government of NCT of
Delhi (Supra), the Apex Court has taken note of the
observations about the meaning of terms ‘misconduct’ in
State of Punjab and Others versus Ram Singh Ex.ConstablePage 23 of 34
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reported in 1992 (4) SCC 54, in paragraph 10 as under : –
“10. In State of Punjab and Ors. vs. Ram Singh Ex.
Constable 1992 (4) SCC 54, it was stated:
“Misconduct has been defined in Black’s Law Dictionary,
Sixth Edition at page 999, thus:
‘A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty,
unlawful behaviour, wilful in character, improper or
wrong behaviour, its synonyms are misdemeanor,
misdeed, misbehavior, delinquency, impropriety,
mismanagement, offense, but not negligence or
carelessness.’ Misconduct in office has been defined as:
“Any unlawful behaviour by a public officer in relation
to the duties of his office, willful in character. Term
embraces acts which the officer holder had no right to
perform, acts performed improperly, and failure to act
in the face of an affirmative duty to act.”
In P. Ramanatha Aiyar’s Law Lexicon, 3rd edition, at
page 3027, the term ‘misconduct’ has been defined as
under:
“The term ‘misconduct’ implies, a wrongful intention,
and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct
involving moral turpitude.
The word ‘misconduct’ is a relative term, and has to be
construed with reference to the subject matter and the
context wherein the term occurs, having regard to the
scope of the Act or statute which is being construed.
Misconduct literally means wrong conduct or improper
conduct.”
[See also Bharat Petroleum Corpn. Ltd. vs. T.K. Raju,
[2006 (3) SCC 143].
24. In Union of India & Ors. vs. J. Ahmed (supra), relied
therein, it was noted in paragraph 12 that : –
“12. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC
286), whereupon Mr. Sharan himself has placed
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reliance, this Court held so stating:
“Code of conduct as set out in the Conduct Rules clearly
indicates the conduct expected of a member of the
service. It would follow that conduct which is
blameworthy for the Government servant in the
context of Conduct Rules would be misconduct. If a
servant conducts himself in a way inconsistent with
due and faithful discharge of his duty in service, it is
misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A
disregard of an essential condition of the contract of
service may constitute misconduct [see Laws v. London
Chronicle (Indicator Newspapers, 1959 1 WLR 698)].
This view was adopted in Sharad Prasad Onkarprasad
Tiwari v. Divisional Superintendent, Central Railway,
Nagpur Division, Nagpur, (61 Bom LR 1596), and
Satubha K. Vaghela v. Moosa Raza, (10 Guj LR 23). The
High Court has noted the definition of misconduct in
Stroud’s Judicial Dictionary which runs as under:
“Misconduct means, misconduct arising from ill motive;
acts of negligence, errors of judgment, or innocent
mistake, do not constitute such misconduct.”
[emphasis supplied]
25. It was observed that in the Chairman and M D, Bharat
Pet. Corpn Ltd. versus T K. Raju (supra), it was noted that
misconduct is a generic term. Term embraces acts which
the office holder had no right to perform, acts
performed improperly, and failure to act in the face of
an affirmative duty to act. The misconduct is a relative
term, and has to be construed with reference to the
subject matter and the context wherein the term occurs,
having regard to the scope of the Act or the statute
which is being construed. Misconduct literally means
wrong conduct or improper conduct.
26. It was noted in Union of India versus J. Ahmed (supra),
that there may be negligence in performance of duty and a
lapse in performance of duty or error of judgment in
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evaluating the developing situation, but that 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. An error
can be indicative of negligence and the degree of
culpability may indicate the grossness of the negligence.
Carelessness can often be productive of more harm than
deliberate wickedness or malevolence. Referring to certain
hypothetical examples in paragraph ’11’ of the said
decision, it was observed that :-
“11. Code of conduct as set out in the Conduct Rules
clearly indicates the conduct expected of a member of
the service. It would follow that that conduct which is
blameworthy for the Government servant in the context
of Conduct Rules would be misconduct. If a servant
conducts himself in a way inconsistent with due and
faithful discharge of his duty in service, it is misconduct
[see Pierce v. Foster] (1886) 17 QBD 536 (at p. 542.) A
disregard of an essential condition of the contract of
service may constitute misconduct [see Laws v. London
Chronicle (Indicator Newspapers) (1959) 1 WLR 698].
This view was adopted in Sharadprasad Onkarprasad
Tiwari v. Divisional Superintendent, Central Railway,
Nagpur Division, Nagpur, 61 Bom LR 1596 : (AIR 1961
Bom 150), and Satubha K. Vaghela v. Moosa Raza,
(1969) 10 Guj LR 23. The High Court has noted the
definition of misconduct in Stroud’s Judicial Dictionary
which runs as under:
“Misconduct means, misconduct arising from ill
motive; acts of negligence, errors of judgment, or
innocent mistake, do not constitute such
misconduct”. In industrial jurisprudence amongst
others, habitual or gross negligence constitute
misconduct but in Management, Utkal Machinery Ltd. v.
Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434 : (AIR
1966 SC 1051), 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. In S. GovindaPage 26 of 34
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Menon v. Union of India, (1967) 2 SCR 566 : (AIR 1967
SC 1274), the manner 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, (1964) 2 SCR 104 :
(AIR 1963 SC 1756), 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 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. An error can be indicative of negligence
and the degree of culpability may indicate the grossness
of the negligence.
Carelessness can often be productive of more harm than
deliberate wickedness or malevolence. Leaving aside
the classic example of the sentry who sleeps at his post
and allows the enemy to slip through, there are other
more familiar instances of which a railway cabinman
signals in a train on the same track where there is a
stationary train causing headlong collision; a nurse
giving intravenous injection which ought to be given
intramuscular causing instantaneous death; a pilot
overlooking an instrument showing snag in engine and
the aircraft crashes causing heavy loss of life. Misplaced
sympathy can be a great evil [see Navinchandra
Shakerchand shah v. Manager, Ahmedabad Co- op.
Department Stores Ltd., (1978) 19 Guj LR 108 at p.
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120)]. But in any case, failure to attain the highest
standard of efficiency in performance of duty permitting
an inference of negligence would not constitute
misconduct nor for the purpose of Rule 3 of the Conduct
Rules as would indicate lack of devotion to duty.”
27. It was, thus, observed that the Code of conduct, as set
out in the Conduct Rules, clearly indicates the conduct
expected of a member of the service. It would follow that
the conduct which is blameworthy for the Government
servant in the context of the Conduct Rules would be
‘Misconduct’. If a servant conducts himself in a way
inconsistent with due and faithful discharge of his duty in
service, it is Misconduct. (Reference was made to Pierce v.
Foster, 17 Q.B. 536, 542). A disregard of an essential
condition of the contract of service may constitute
Misconduct. (emphasize was to the decision of the High
Court of Bombay in Sharadprasad Onkarprasad Tiwari v.
Divisional Superintendent, Central Railway, Nagpur
Division, Nagpur reported in AIR 1961 Bom 150 : 61 Bom
LR 1596 therein). The definition of Misconduct in Stroud’s
Judicial Dictionary, has been noted therein.
28. The decision of the Apex Curt in S. Govinda Menon v.
Union of India reported in (1967) 2 SCR 556 : AIR 1967 SC
1274, was further noted to record that though the manner
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, however, 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. It is however, difficult to believe that lack
of efficiency or attainment of highest standards in
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discharge of duty attached to public office would ipso
facto constitute misconduct.”
(emphasis supplied)
15.4 What is discernible from the aforesaid decisions of the
Hon’ble Apex Court & this Court, the following propositions,
relating to the jurisprudential contours of the expression
“misconduct”, emanates, which can be summarised as under:
(i) Mere negligence or carelessness is not
“misconduct”.
(ii) Incompetence, incapability to hold a post, and want
of requisite efficiency are also not “misconduct”.
(iii) Failure to come up to the highest expectations
of an officer holding a responsible post, lack of
aptitude or qualities of leadership are also not
“misconduct”.
(iv) A single act of omission, or error of judgment,
would not ordinarily constitute “misconduct”;
however, if such act or error results in serious or
atrocious consequences it may amount to “misconduct”.
(v) “Misconduct” means conduct arising from ill- motive.
(vi) The misconduct is a relative term, and has to be
construed with reference to the subject matter and the
context wherein the term occurs, having regard to the
scope of the Act or the statute which is being construed.
“Misconduct” implies blameworthy conduct.
(vi) Conduct inconsistent with due and faithful discharge
of duty is “misconduct”.
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(vii) Disregard of a mandatory condition of the contract
of service of an employee may constitute “misconduct”.
(viii) Similarly, carelessness or negligence resulting in
atrocious consequences, may constitute “misconduct”.
This would ordinarily apply in extreme cases, as is
apparent from the illustrative examples given by the
Supreme Court in its decision, wherein make it clear that
it is only the most extreme and drastic consequences
which could justify categorization of mere carelessness
or negligence, on the part of deliquent, as “misconduct”.
(ix) Gross or habitual negligence in performance of duty
may, however, constitute “misconduct”, even in the
absence ofmens rea.
(x) Misconduct must ordinarily be wilful in character, and
not merely an error of judgment. It must involve a
transgression of some established or definite rule of
conduct, or doing of some act which is forbidden.
(xi) Action which is detrimental to the prejudice of an
institution, may in given cases, amount to “misconduct”.”
(Emphasis supplied)
14. Moreover, the disciplinary authority at the time of passing the
impugned order could not have ignored the aforesaid circular
dated 18th November, 2005 issued by the Additional
Commissioner, on the ground that it was not in force in the
year 2000 when the incident took place. As per the said
circular, it has been advised that at the time of making
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payment, the presence of either Sarpanch or one of the
members of the village panchayat is necessary. Undisputedly,
in the present case, the petitioner handed over the cheque in the
presence of a member of the Panchayat, i.e., Nalubhai
Dhirabhai Rathwa, as he identified the beneficiaries named in
the charge-sheet. The disciplinary authority erroneously
observed in its impugned order that the incident in question
had taken place in the year 2000 and the aforesaid circular
issued in the year 2005, thereby it would not be applicable.
According to my considered view, once the competent
authority itself is of the view and issued a circular that the
payment shall be made either in presence of either Sarpanch or
one of the members of village panchayat, and in absence of any
set procedure at the time of incident, the aforesaid recourse
adopted by the petitioner, by no stretch of imagination, it can
be gainsaid that the petitioner has committed misconduct as
per charge No. 1.
15. All these aspects are completely lost sight by the appellate
authority as well as the Tribunal, rather, they have reiterated
what has been observed by the inquiry officer in his report,
which was confirmed by the disciplinary authority.
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16. The upshot of the foregoing discussions and reasons leads to
only one conclusion that charge No. 1 for which the petitioner
was held guilty is unsustainable, as according to my view, the
charge No. 1 is not proved against the petitioner. At the same
time, the petitioner was compulsorily retired from service in the
year 2007 and reached the age of superannuation in the year
2014 as informed by learned advocate Mr. Japee, the question
of his reinstatement, therefore, does not arise.
17. In view of the aforesaid facts and circumstances of the case,
since the petitioner had already been discontinued from service
in the year 2007, had already crossed the age of superannuation
in the year 2014, and was also acquitted of the serious offences
in the year 2022, while quashing and setting aside the impugned
orders in question, I am not inclined to award back-wages in
favour of the petitioner. Thus, I pass the following order:
17.1. The impugned order dated 17th/18th August, 2007 passed by
the disciplinary authority – respondent No. 1, the impugned
order dated 29th January, 2008 passed by the appellate
authority, as well as the impugned judgment and order dated
9th June, 2010 passed by the Tribunal in Appeal No. 37 of
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2008, are hereby quashed and set aside.
17.2. Since the petitioner is already superannuated from service, he is
required to be treated as continued in service from the
aforesaid order of punishment dated 17th/18th August, 2007
until the age of his superannuation.
17.3. For the foregoing reasons, the petitioner is not entitled to back-
wages for the aforesaid period. Nonetheless, the petitioner is
entitled to receive all retiral benefits from respondent No.1 and
2 as if the petitioner had retired in the normal course of service
from the post of Deputy Accountant. The petitioner is entitled
to receive all increments for the said period, albeit notionally.
For the said period, the respondent No.1 is directed to
notionally consider all service benefits, including benefit of
higher pay scale, if any payable, etc.
17.4. The respondent No. 1 and 2 are hereby directed to calculate all
the retiral benefits and the competent authority of the State
shall accord its approval to grant such retiral benefits to the
petitioner.
17.5. All these exercises shall be completed by respondent No. 1 and
2 on or before 30th June, 2026. The payment in this regard
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shall be made in favour of the petitioner on or before 31st July,
2026, failing which the petitioner shall be entitled to receive the
aforesaid benefits with 6% interest p.a. from 1st August, 2026,
util the date of actual realization.
17.6. If the service of the petitioner is a pensionable one, the
pensionary benefits shall also be calculated and paid to the
petitioner along with the retiral benefits.
18. In view of the foregoing reasons and conclusions, the present
writ petition is partly allowed. Rule is made absolute to the
aforesaid extent. There shall be no order as to costs.
(MAULIK J. SHELAT,J)
NILESH
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