Vinay Ghosh v. State Of U.P. Thru. Prin. Secy./ Addl. Chief Secy. Public Works Deptt

1. Heard Mr. Amrendra Nath Tripathi, assisted by Ms. Akanksha Pandey, learned counsel for petitioner and Mr. Ashwani Kumar Singh Rathore, learned State Counsel for opposite parties.

2. Petition has been filed challenging order dated 08.05.2025 placing petitioner under suspension pending departmental proceedings. Also under challenge is the order dated 08.05.2025 instituting departmental proceedings against petitioner by issuance of charge-sheet. Further prayer for a direction to opposite parties to permit petitioner to work on the post of Senior Assistant and regular payment of service benefits has also been sought.

3. On 15.07.2025, this Court had passed the following order: "1. Heard learned counsel for petitioner and learned State Counsel appearing on behalf of the opposite parties.

2. Present petition under Article 226 of Constitution of India has been filed challenging order dated 08.05.2025 whereby petitioner has been placed under suspension pending departmental proceedings. Further prayer has been made challenging another order dated 08.05.2025 initiating departmental proceedings against petitioner.

3. Learned counsel for petitioner submits that primary gist of allegations levelled against petitioner is that he fraudulently entered his name as nominee in the Bank Accounts of one Kalluram, a superannuated Laboratory Peon as also in his Bank Accounts and Fixed Deposit Accounts with Punjab National Bank. The order also states that in terms of complaint dated 25.09.2024 submitted by wife of late Kalluram, proceedings were being initiated.

4. It has been submitted that the allegations levelled against petitioner prima facie do not come within the scope of misconduct as defined either in the U.P. Government Servant's Conduct Rules, 1956 (hereinafter referred to as the Rules of 1956) or even the Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999 since they do not pertain at all to any act performed by petitioner in his ofÏcial duties. It is further submitted that the deceased had also executed a registered Will in favour of petitioner which is under challenge at the instance of wife of the deceased. It is therefore submitted that allegations so levelled can be adjudicated upon only in civil proceedings and not departmental proceedings.

5. Learned State Counsel on the basis of counter afÏdavit filed has refuted the submissions advanced by learned counsel for petitioner and submits that allegations levelled against petitioner definitely come within the scope of misconduct in terms of Rule 3 of the Rules of 1956 and for which purpose, a charge sheet has already been issued to petitioner to which reply has also been submitted. He submits that some further time may be granted to obtain instructions on supplementary afÏdavit which was filed earlier.

6. Prima facie, submissions advanced by learned counsel for petitioner appear to have force and require consideration.

7. In view of submissions of learned State Counsel, list this case on 31.07.2025, as fresh.

8. Until further orders of this Court, impugned suspension order dated 08.05.2025 shall remain stayed."

4. Elaborating upon his submissions, learned counsel for petitioner has adverted to U.P. Government Servants Conducts Rules 1956, specifically Rule 3 thereof to submit that the aforesaid Rules find mention in the charge-sheet which was issued to petitioner. It is further submitted that Rule 3 of the aforesaid Rules of 1956 carrying with the nomenclature of 'general' stipulates that every Government Servant shall at all times maintain absolute integrity and devotion to duty; that he shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be enforced and that if a Government Servant conducts himself in a way inconsistent with due faithful discharge of duties in service, it would be misconduct.

5. In terms thereof, learned counsel for petitioner submits that misconduct is attributable to any behaviour which is not in consonance with integrity and devotion to duty. It is also submitted that although Rule 3 of the Rules of 1956 are general in nature but various aspects of misconduct have thereafter been defined in subsequent Rules.

6. He has thereafter adverted to the charge-sheet to submit that four charges have been levelled against petitioner with charge no.1 pertaining to petitioner having got himself indicated as a nominee in the bank details of Late Kallu Ram who was retired laboratory peon. The charge indicates that signatures of the deceased in the service- book and in the bank details nominating petitioner have major discrepancies. Charge No.2 pertained to petitioner appropriating a certain sum of a money from the bank accounts of deceased. Charge No.3 pertained to not following directions issued by superior authorities with charge no.4 pertaining to not receiving orders of suspension and initiation of departmental proceedings.

7. It is submitted that a perusal of aforesaid charge-sheet will therefore indicate that except for charge no.3, none of the charges pertained to any dereliction of duty by petitioner but ill-motive. It is submitted that opposite parties have also lost sight of the fact that charges no.1 and 2 fall within the realm of a private dispute having nothing whatsoever to do duties of petitioner and that with regard to aforesaid charges no.1 & 2, the wife of deceased has already instituted Regular Suit No.2335 of 2023 which is pending in the Court of Civil Judge (Senior Division), Lucknow and therefore until and unless the aforesaid aspects are established by Civil Court of competent jurisdiction, no such finding can be indicated in the disciplinary proceedings.

8. Learned counsel has adverted to judgments rendered by Hon'ble the Supreme Court and this Court in the cases of A.L. Kalra v. Project & Equipment Corporation of India LTD. reported in (1984) 3 SCC 316, Union of India & Ors v. J. Ahmed reported in (1979) 2 SCC 286, Lalla Ram v. D.C.M. Chemical Works Ltd.& Another, reported in (1978) 3 SCC 1, Dr. Raj Veer Singh v. State of U.P. Ors., reported in 2013 SCC OnLine All 13830 and Shahjahan Khan Versus State of U.P. and others, reported in 2002 SCC OnLine All 46.

9. Learned State counsel has refuted submissions advanced by learned counsel for petitioner with the submission that Rules 3(1) of the Rules of 1956 are clearly applicable in the present facts and circumstances, since petitioner deliberately and by forgery has made himself a nominee in the Saving Bank and Fixed Deposit Accounts of the deceased and therefore would be in violation of Rule 3 of the aforesaid Rules of 1956 since he himself became a beneficiary. It is also submitted that petitioner has also influenced will of the deceased to try to usurp his property. It is therefore submitted that the aspects indicated in the charge-sheet clearly come within the realm of misconduct as indicated in Rule 3 of the Rules of 1956. It is also submitted that there is no illegality in the proceedings and that petitioner would be given ample opportunity of hearing prior to passing of any orders.

10. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, charges as indicated herein above are self evident and pertained primarily to petitioner being indicated as a nominee in the accounts of deceased and on that ground of having appropriated the sum of money lying in the credit of deceased.

11. It is noteworthy that regular suit has already been instituted by wife of deceased against petitioner as indicated herein above which is ongoing. It is also evident from record that the said widow has filed a complaint in the department which forms the basis of disciplinary proceedings initiated against petitioner.

12. The aspect as to whether charges levelled against petitioner would construe misconduct in terms of Rule 3 of the Rules of 1956 have clearly been enunciated by Hon'ble the Supreme Court in the case of A.L. Kalra (supra) in the following manner: "21. And now to the facts. The gravamen of the two heads of charges is that the appellant is guilty of misconduct as prescribed in Rule 4(1)(i) and (iii). It reads as under: "4. (1) Every employee shall at all times: (i) maintain absolute integrity; (ii) * * * (iii) do nothing which is unbecoming of a public servant. Rule 5 prescribes various misconducts for which action can be taken against an employee governed by the Rules.

22. Rule 4 bears the heading "General". Rule 5 bears the heading "Misconduct". The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an ofÏcer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo Laboratories (I) Ltd. v. Presiding OfÏcer, Labour Court, Meerut [(1984) 1 SCC 1 : 1984 SCC (L&S) 42] where this Court held that "everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short, it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant Standing Order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant Standing Order but yet a misconduct for the purpose of imposing a penalty". Rule 4 styled as "General" specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-clauses of Rule 5 which specifies misconduct. It would therefore appear that even if the facts alleged in two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that Rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct."

13. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that Rules 3 & 5 of the Central Government Conduct Rules are pari materia with the U.P. Government Servant Conduct Rules 1956. It is also noticeable that the alleged misconduct which forms the basis of issuance of charge-sheet does not find a mention anywhere in the Rules of 1956 as misconduct. It is a relevant aspect particularly in view of the fact that various forms of misconduct have been specifically delineated in the Rule of 1956.

14. The said aspect has also been considered in the case of J. Ahmed (supra) in the following manner: "9. The five charges listed above at a glance would convey the impression that the respondent was not a very efÏcient ofÏcer. Some negligence is being attributed to him and some lack of qualities expected of an ofÏcer of the rank of Deputy Commissioner are listed as charges. To wit, Charge 2 refers to the quality of lack of leadership and Charge 5 enumerates ineptitude, lack of foresight, lack of firmness and indecisiveness. These are qualities undoubtedly expected of a superior ofÏcer and they may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not, or they may be relevant for deciding the competence of the person to hold the post, but they cannot be elevated to the level of acts of omission or commission as contemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under Rule 3. Competence for the post, capability to hold the same, efÏciency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules. The words "act or omission" contemplated by Rule 4 of the Discipline and Appeal Rules have to be understood in the context of the All India Services (Conduct) Rules, 1954 ("Conduct Rules" for short). The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail penalty. Failure to come up to the highest expectations of an ofÏcer holding responsible post or lack of aptitude or qualities of leadership would not constitute as failure to maintain devotion to duty. The expression "devotion to duty" appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If Rule 3 were the only rule in the Conduct Rules it would have been rather difÏcult to ascertain what constitutes misconduct in a given situation. But Rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general Rule 3 prescribing devotion to duty. It is, however, difÏcult to believe that lack of efÏciency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every ofÏcer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efÏciency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character or personal ability would not constitute misconduct for the purpose of disciplinary proceedings."

15. The aforesaid judgment is also an exposition on the aspect that misconduct is required to be in terms of duties which are required to be performed by an employee and would apply in case of acts or omission which constitute misconduct for the purposes of discipline and Appeal Rules.

16. The aforesaid reasoning is also evident in the judgments rendered in the cases of Lalla Ram (supra) and by Division Benches of this Court in (supra), the case of Shahjahan Khan (supra) and Parvina Solanki (supra). Dr. Rajveer Singh

17. It is thus evident from material on record that primary gist of charges levelled against petitioner do not constitute any deliberate omission or defiance of any duties which were required to be performed by petitioner.

18. It is also a relevant factor that the signatures of deceased which are available with the bank records may be produced in Civil Proceedings before the Court of Competent Jurisdiction but may not be available in the disciplinary proceedings and therefore it would be difÏcult for the inquiry ofÏcer to summon such documents and to provide his finding thereupon.

19. In view of law enunciated on the aspect as indicated herein above, it is evident that the alleged misconduct of petitioner does not fall within the terminology indicated in Rule 3 onward of the Rules of 1956 and would be adjudicated upon in Civil Jurisdiction before the Competent Court.

20. So far as charge no.3 is concerned, ex facie it is evident that it would not merit any major penalty.

21. So far as charge no.4 is concerned, it pertains to petitioner avoiding service of the impugned orders but from the charge itself it is evident that the letters were returned by postal department with address being incomplete but at the same time the department has managed to paste the aforesaid impugned orders on the outer wall of petitioner's house. It is thus evident that address of petitioner's was available with the opposite parties. The charge also does not indicate any deliberate attempt on the part of petitioner in avoiding any such service.

22. In view of discussion made herein above, the charges no.1, 2 & 4 not being in consonance with the terminology of misconduct in terms of Rule of 1956, the disciplinary proceedings initiated against petitioner vide order dated 08.05.2025 as well as the suspension order of the same date are hereby quashed by issuance of a writ in nature of Certiorari leaving it open to opposite parties to pursue the charge no.3 levelled against petitioner.

23. Resultantly, the petition succeeds and is allowed. Parties to bear their own costs. Order Date :- 18.8.2025 Subodh/- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench