Sri Shaik Hussain v. The Conservator of Forests, Khammam Circle, Khammam and two

THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.15466 of 2006 ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) This Writ Petition is filed aggrieved by the order of the A.P. Administrative Tribunal in O.A. No. 2050 of 2006 dated 18.07.2006, whereby the O.A. filed by the petitioner was disposed of holding that since the petitioner-applicant had a right of appeal against the impugned order of suspension it was just and proper to direct him to file an appeal before the appellate authority within two weeks from the date of receipt of a copy of the order and on such appeal being filed, the appellate authority was directed to consider the same and pass appropriate orders in accordance with law within two months thereafter. Sri P.V. Ramana, learned Counsel for the petitioner, would contend that the only ground for placing the petitioner under suspension was that he had issued a permit which enabled the permit holder to transport the forest produce through a longer route and that he had given longer time for transport of the said produce.

Learned Counsel would submit that under the A.P. Forest Produce Transit Rules, 1970, the petitioner has been empowered to grant permit and in the absence of any prohibition in law, exercise of discretion under the Rules could not be made the basis for suspension. Learned Counsel would submit that suspension could not be resorted to as a matter of course and that it is only if allegation of serious misconduct are levelled against an employee can he be placed under suspension pending enquiry. According to the Learned Counsel since the petitioner has not violated the rules, and has merely exercised discretion in accordance with the rules, he cannot be said to have committed misconduct necessitating his being placed under suspension. He would rely on the judgment of the Apex Court in Noratanmal Chouraria v. M.R. Murli [1] . The scope of the term “Misconduct” was considered in M.R. Murli1 and the Apex Court observed:- “……… Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law.

In Delhi Cloth & General Mills Co. Ltd. v. Workmen: AIR 1970 SC 919 Shah, J. stated that misconduct spreads over a wide and hazy spectrum of industrial activity; the most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical default covered thereby. This Court in State of Punjab v. Ram Singh, Ex-Constable: 1992(4) SCC 54 noticed: (SCC pp. 57-58, paras 5-6) “5. Misconduct has been defined in Black’s Law Dictionary, 6th Edn. at p. 999 thus: ‘A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.’ improper or wrong behaviour, Misconduct in office has been defined as: ‘Any unlawful behaviour 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.’ Aiyar, P. Ramanatha: Law Lexicon, Reprint Edn., 1987, at p. 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. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.” Learned Government Pleader for Services, on the other hand, would submit that, subsequent to the filing of the O.A, the petitioner was issued a charge memo which indicates that, as a result of the petitioner issuing the permit enabling the permit holder to transport the produce through a longer route instead of the shorter route and by giving him longer time to reach the destination, the permit was misused to illegally transport timber and the timber seized contained hammer marks of the Deputy Range Officer, Eturunagaram.