Ajit Singh, J.
1. This appeal, under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 17-1-2006 passed in Miscellaneous Petition No. 4122/1993 by the learned Single Judge whereby the penalty of dismissal from service of respondent has been quashed with a direction to the appellants to reinstate him with full back wages.
2. Briefly stated the facts giving rise to this appeal are that appellant No. 1 is the Madhya Pradesh Housing Board (in short, 'the Board') and appellant No. 2 is its Chairman. On 7-4-1981 a contract was given by the Board to one S.K. Pathak for the construction of 10 HIG and 20 MIG houses near Parijat Hotel in Satna town. Initially, the period of contract was for one year which was extended from time to time up to 15-3-1985. The respondent, who was working as Executive Engineer in the Board, was posted in Satna Division from 10-5-1982 to 29-6-1985. It is not in dispute that he supervised the construction work of the aforesaid houses and U.S. Agarwal was his Assistant Engineer. It appears that despite the regular supply of construction materials such as cement, steel, A.C. sheets, door and window panels, etc. by the Board, the contractor did not complete the work and as such his agreement was cancelled. After the cancellation of agreement, the Board found that the contractor caused a financial loss of Rs. 3,02,818.82 to it by not returning the construction material supplied to him and removing the same from the work site. The Board also found that the respondent and U.K. Agarwal, without showing due care and caution and without taking into consideration the actual requirement of the construction work, issued more than the required construction material to the contractor and failed to restrain him from removing the same from the construction site which resulted into huge financial loss.
3. A departmental enquiry was, therefore, initiated against the respondent and U.K. Agarwal on the charge that they supplied excessive construction material to the contractor irrespective of his stock position and the requirement of work and that they failed to prevent the contractor from taking away the construction material from the site. As per the charge, the respondent and U.K. Agarwal showed lack of devotion to duty and want of absolute integrity as required under Rule 3 (i) and (ii) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 (in short, 'the Conduct Rules'). The respondent, in his reply, to the charge-sheet denied the charge and submitted that he issued the construction material as per rules in the interest of the Board with the sole object to complete the construction work at the earliest more particularly because the progress of work by the contractor was extremely slow. He also submitted that the figures with regard to the left construction material on the spot had been exaggerated and that his subordinate officers did not correctly record the quantity of construction material issued to the contractor as a result of which the same was wrongly shown as excessive. Likewise, U.K. Agarwal also denied the charge by submitting a written reply.
4. The Enquiry Officer, after holding the enquiry, found the charge against the respondent proved to the extent that he irresponsibly issued excess cement bags to the contractor who was able to take away 2903 cement bags with him without utilizing them in the construction work which put the Board to the financial loss of Rs. 1,74,180. The allegation of excess supply of other materials such as steel, A.C. sheets, etc. by the respondent was, however, not found proved. The Enquiry Officer exonerated U.K. Agarwal of the charge on the ground that he did not issue any cement bag to the contractor on his own and he had been regularly informing the Divisional Office about the excessive cement lying with the contractor. The Disciplinary Authority, agreeing with the findings of the Enquiry Officer, issued a show-cause notice to the respondent making clear that a penalty of dismissal from service was proposed against him. The respondent submitted a detailed reply to the said notice but the Disciplinary Authority did not agree with it and held that he was guilty of gross negligence towards his duty. The Disciplinary Authority also held that the manner in which the respondent adopted the procedure in supplying the cement showed his lack of devotion to duty and made his integrity doubtful. On these findings, the Disciplinary Authority imposed penalty of dismissal from service on the respondent. Being aggrieved, the respondent filed a statutory departmental appeal before the Appellate Authority but without any success. The respondent then filed a petition under Article 226 of the Constitution which has been allowed by the impugned order passed by the learned Single Judge of this Court.
5. The learned Single Judge has held that in the absence of any finding of ill motive against the respondent by the Enquiry Officer for supplying excess cement to the contractor, he cannot be held guilty of committing misconduct. According to the learned Single Judge, there was also no finding that the respondent had colluded with the contractor in playing fraud with the Board and, therefore, at the most his conduct amounted to lack of efficiency and negligence which did not constitute misconduct. Relying upon the judgment of Supreme Court in Union of India v. J. Ahmed : (1979)IILLJ14SC , the learned Judge quashed the penalty of dismissal from service of the respondent and directed the appellants to reinstate him with full back wages subject to the adjustment of financial loss of Rs. 1,74,180/- suffered by the Board. The learned Judge also held that the Disciplinary Authority passed the order of punishment mechanically without discussing anything regarding the material brought on record and so did the Appellate Authority while dismissing the departmental appeal of respondent. Aggrieved with the impugned order as well as the findings arrived at by the learned Single Judge, the appellants have filed this appeal.
6. Shri T.S. Ruprah, learned Senior Counsel for the appellants, has argued that the manner in which excessive cement bags were continuously supplied by the respondent clearly indicated that he was guilty of gross or habitual negligence in performing his duty which constitute misconduct for disciplinary proceedings. The learned Senior Counsel has further argued that gross or habitual negligence in performance of duty, though may not involve mens rea, but may still constitute misconduct for disciplinary proceedings entailing penalty of dismissal from service. According to the learned Senior Counsel, the Disciplinary Authority imposed the penalty of dismissal strictly in accordance with the rules after fully discussing the materials brought on record and the finding of the learned Single Judge that the order of punishment was passed mechanically is perverse. The learned Senior Counsel also argued that even the order passed by the Appellate Authority dismissing the departmental appeal of respondent is well reasoned which did not call for any interference by the learned Single Judge. On the other hand, Shri N.S. Kale, learned Senior Counsel for the respondent, defended the order passed by the learned Single Judge. He also brought to our notice that the respondent had cancelled the contract thrice because of the lapse on the part of the contractor but every time his orders were set aside by the Deputy Housing Commissioner. According to the learned Senior Counsel, these circumstances militate against malafide of the respondent and completely demolish the allegation that he was inclined to do every possible favour to the contractor.
7. After hearing the arguments advanced by the respective learned Senior Counsel for the parties, we find that the question which calls for consideration is whether the respondent was guilty of misconduct requiring initiation of disciplinary proceedings against him and the penalty of his dismissal from service is justified.
8. Rule 3 (i) and (ii) of the Conduct Rules provides that every Government servant shall at all times maintain absolute integrity and devotion to duty. It, thus, follows that conduct of Government servant contrary to or in breach of this rule would constitute misconduct for disciplinary proceedings. The expression 'misconduct' is a relative term and has to be construed with reference to the subject-matter and the context wherein the term occurs. A single act or omission or error of judgment would ordinarily not constitute misconduct but if such error or omission results in serious or atrocious consequences, the same may amount to misconduct (See : P.M. Kalyani v. Air France : (1963)ILLJ679SC ). For example, when a sentry sleeps at his post and the enemy is allowed to slip away, his negligence would definitely amount to misconduct though criminal intent may not be involved. In Union of India v. J. Ahmed (supra), the Supreme Court has held that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would not ipso facto constitute misconduct but negligence or a lapse in performance of duty would constitute misconduct when the consequences directly attributable to negligence are irreparable or the resultant damage is so heavy that the degree of culpability is very high. In that case the Supreme Court in Para 12 of the judgment has also held that gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings. In Noratanmal Chaurasia v. M.R. Murli : AIR2004SC2440 , it is held that the word 'misconduct', inter alia, envisages breach of discipline and it is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally.
9. Having examined that gross or habitual negligence in performance of duty even without involvement of mens rea would also constitute misconduct for disciplinary proceedings, we shall now see whether the respondent was guilty of habitual or gross negligence as held by the Disciplinary Authority. The Enquiry Officer in his report has stated that as per the adopted procedure the cement is issued to the contractor by the Board from time to time according to the requirement of construction work on market price and the price of cement issued is deducted from the bills of the contractor for the work done by him. The Enquiry Officer has also stated that the contractor is required to submit his bills to the Executive Engineer through the Sub-Engineer and Assistant Engineer so that the Executive Engineer is kept informed about the position of cement lying with the contractor vis-a-vis the work done by him. The respondent was Incharge of the construction work from 10-5-1982 to 29-6-1985 as Executive Engineer. In the departmental enquiry, the respondent has been found to have received the bills directly from the contractor and he continued to issue excess cement bags to him without applying any mind as to what quantity of cement was already lying with the contractor and what quantity was required for the construction work at a particular time. The enquiry report also reveals that many times, despite the information given by the Assistant Engineer about the excess cement lying with the contractor, the respondent issued orders to supply cement to the contractor without even recovering the price of excess cement from his bills. According to the enquiry report, because of the said irresponsible conduct of the respondent, the contractor succeeded in taking away as many as 2903 excess bags of cement without utilizing them in the construction work which put the Board to the loss of Rs. 1,74,180/-. These findings of the Enquiry Officer, which are well founded, lead us to only one conclusion that the respondent committed gross negligence towards his duty. The submission made on behalf of the respondent that excessive cement may have been issued by him because he was overburdened with other construction projects is without any substance and cannot be accepted. The excessive cement bags were issued by him not on one or two occasions but continuously throughout the period when he was incharge of the construction work. He had also issued orders for the supply of cement bags despite the information given by the Assistant Engineer that the contractor was already in possession of excess cement. We accordingly affirm the finding of the Disciplinary Authority that the respondent was guilty of gross negligence in performing his duty.
10. We have already mentioned above that the gross negligence towards duty, even without involvement of mens rea, can constitute misconduct for disciplinary proceedings. The learned Single Judge was, thus, not correct in holding that in the absence of the finding of ill motive against the respondent he cannot be held guilty of misconduct. It appears that the attention of learned Single Judge was not drawn in Union of India v. J. Ahmed (supra) itself, a case on which he relied, the Supreme Court has held that gross negligence towards duty without mens rea also constitutes misconduct. For this reason, we also find it difficult to agree with the view of the learned Single Judge that the departmental proceedings were initiated only to recover the huge financial loss caused to the Board from the respondent.
11. On perusal of the enquiry report we find that the Enquiry Officer has nowhere stated that the respondent had issued excess cement bags to the contractor for his wrongful gain and that his integrity was doubtful. Despite there being no finding about the doubtful integrity of the respondent in the enquiry report, the Disciplinary Authority has held that his integrity was doubtful. The Disciplinary Authority arrived at this finding only because of the method adopted by him in issuing cement bags to the contractor but this finding is based on surmises and conjectures. It is to be noticed that no reliable material had been placed on record by the Board to establish that the respondent had wrongfully gained anything by his such conduct. Thus, merely on the basis of presumption, the Disciplinary Authority could not have held the respondent guilty of doubtful integrity and we accordingly set aside this finding of the Disciplinary Authority.
12. This brings us to the question of appropriateness of punishment of dismissal. The Disciplinary Authority took into account its finding of doubtful integrity of the respondent along with his gross negligence in awarding the punishment of dismissal. Had the Disciplinary Authority not taken into account the finding of doubtful integrity which we have set aside, it may have awarded lesser punishment in place of dismissal such as compulsory retirement. The question of punishment will, therefore, require reconsideration by the Disciplinary Authority without taking into account its finding of want of integrity of respondent. We accordingly remit the matter to the Disciplinary Authority to decide the quantum of punishment and award any punishment lesser than dismissal and removal. The punishment may be in addition to the recovery of financial loss of Rs. 1,74,180/- as directed by the learned Single Judge. The Disciplinary Authority is directed to take a decision on the question of punishment within two months from the date of receipt of the certified copy of this order.
13. The appeal is allowed. The order passed by the learned Single Judge and also the order passed by the Departmental Authority are both set aside. The case is remitted to the Departmental Authority for decision on the question of punishment as indicated above. No order as to costs.