IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVE AND HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT APPEAL No.476 of 2001 (Writ Appeal under Clause 15 of the Letters Patent against the order dated 21.11.2000 in Writ Petition No.25113 of 1998 on the file of the High Court.) Between: 1) Osmania University, Hyderabad, Represented by its Registrar, Hyderabad. 2) The Executive Council, Osmania University, Represented by its Registrar & Secretary. ...Appellants And V. Nageshwar Rao ...Respondent Counsel for the appellants : Sri Deepak Bhattacharjee Counsel for the Respondent : Sri Abhinand Kumar Shavili The Court delivered the following: JUDGMENT: (per Sri C.V. Nagarjuna Reddy, J.) This writ appeal arises out of order dated 21.11.2000 in Writ Petition No.25113 of 1998, whereby the learned Single Judge allowed the writ petition filed by the respondent. The Osmania University, represented by its Registrar, Hyderabad, which was respondent No.1 in the writ petition, filed this appeal feeling aggrieved by the order of the learned Single Judge. The facts leading to the filing of the writ petition were narrated in detail by the learned Single Judge, and to avoid repetition, we briefly mention only such of the facts which are necessary for disposal of this appeal. The respondent herein, at the relevant time, was a Professor in the appellant University. The respondent was appointed as Convenor for conducting Law Common Entrance Test (LAWCET) for the academic year 1996-97. The test was held on 16.6.1996 at 82 centres all over the State. 36,000 candidates appeared for the test. The process of evaluation was entrusted to a computer institute headed by a Professor. After completing the process, the results were released to the press on 29.6.1996. On the complaint of alleged malpractices in the process of common entrance test, an enquiry was instituted by the appellant - University and the respondent was placed under suspension by the Executive Council and later disciplinary proceedings were initiated against him. Sri M. Gopal Krishnan, a retired I.A.S. officer was appointed as enquiry officer. The enquiry officer framed three charges. The order of the learned Single Judge contains reproduction of the three charges, and to avoid repetition, it is not necessary to reproduce the same here again. It would suffice to note that the gist of these three charges is that the respondent, in the discharge of duties connected with supervision, planning and computerisation of the results of LAWCET- 1996, was not diligent and apparently did not acquaint himself fully with the duties enjoined upon him as per the CET Manual of the Andhra Pradesh State Council of Higher Education and applicable to the conduct of LAWCET-1996 examination; that the respondent has not exercised proper care and diligence in organizing the actual conduct and supervision of LAWCET-1996 at various centres, and that as a consequence, the reputation of the Osmania University suffered. The enquiry officer, after a detailed enquiry, submitted his report dated 9.7.1997 to the appellant. The report of the enquiry officer exonerated the respondent of charges 1 and 3. As regards charge No.2, the enquiry officer observed that the respondent is slightly guilty of a part of the second charge to the extent of “non- verification of the top (say) 30 or even 20 rankers in the LAWCET.” In the light of the said finding, the enquiry officer went one step ahead and recommended imposition of the punishment of censure on the respondent. On receipt of the said report, the appellant issued a show cause notice dated 26.8.1997 to the respondent, wherein it is stated that the Executive Council was, prima facie, of the opinion that the findings of the enquiry officer are correct, but found that the punishment suggested by the enquiry officer is inadequate and not commensurate with the proven charges. The respondent was, therefore, called upon by the said show cause notice as to why the penalty of stoppage of two grade increments with cumulative effect shall not be imposed on him and also not to give any administrative assignment to him thereafter. The respondent submitted his explanation in reply to the said show cause notice. By an order dated 20.12.1997, the appellant imposed on the respondent, the above mentioned penalty proposed in the show cause notice. The said order was questioned in Writ Petition No.25113 of 1998 by the respondent, which, as afore-stated, was allowed by the learned Single Judge. A perusal of the order under appeal shows that the learned Single Judge allowed the writ petition mainly on the ground that the respondent has not violated the specific instructions issued to him by the appellant and that, therefore, his failure to personally verify the results of the top 30 rankers did not constitute any misconduct. Though the learned Single Judge has recorded his prima facie opinion on the failure of the appellant to specifically give a notice to the respondent disagreeing with the quantum of punishment recommended by the enquiry officer, he, however, refrained from going into the said aspect at full length having regard to the finding on merits in favour of the respondent. The learned Single Judge accordingly quashed the order of penalty imposed on the respondent. At the hearing, Sri Deepak Bhattacharjee, learned Standing Counsel for the Osmania University strenuously argued that the learned Single Judge has committed an error in interfering with the order of the appellant imposing penalty on the respondent. The learned Standing Counsel submitted that the disciplinary authority applied its mind and came to the conclusion that the conduct of the respondent in not displaying due diligence brought disrepute to the appellant University resulting in non-entrustment of work relating to the conduct of LAWCET examination during the subsequent period and that, therefore, the respondent having been found guilty of such misconduct, the learned Single Judge ought not to have interfered with the penalty imposed on him by the appellant. The learned Standing Counsel placed reliance on the judgment of the Supreme Court in R.S. Saini v. State of Punjab[1] in support of his contention that this Court, while exercising judicial review of the order passed by the disciplinary authority, cannot interfere with the penalty imposed on the respondent. The learned Standing Counsel also placed reliance on the judgment of the Supreme Court in State of Punjab v. Ram Singh[2] to buttress his contention that the act of the respondent constituted misconduct. Per contra, Sri P.S. Rajasekhar, learned counsel representing the respondent submitted that the order of the learned Single Judge does not contain any error calling for interference by this Court in exercise of letters patent jurisdiction. We have carefully considered the submissions of the learned counsel for the respective parties apart from perusing the record. The enquiry officer, in his report, while exonerating the respondent of charges 1 and 3, observed that there were dozens of centres from which answer sheets, used and unused, were received at the LAWCET-1996 soon after the examination was over, that it would not have been possible for the respondent to personally check the received bundles and his reliance on subordinates no doubt raises some eyebrows, at the worst, the charged officer is guilty of inefficiency and lack of foresight. The enquiry officer further observed that the respondent was not an administrator, but was only an academician and that even if he were an administrator, a doubt was expressed by him whether the respondent could have anticipated the misdeeds that took place at the Model High School centre. Having so held, the enquiry officer stated as under: “But, in the final analysis as stated above, the charged officer is slightly guilty of a part of the second article of charge viz., not verifying the top (say) 30 or even 20 rankers in the LAWCET.” Though the word ‘misconduct’ is not precisely defined, by a catena of judgments, the Indian and English Courts considered as to what constitutes ‘misconduct’. In Pearce v. Foster[3] the Queen’s Bench Division held that if a servant conducts himself in a way inconsistent with the faithful discharge of his duty in service, it is misconduct. In Laws v. London Chronicle (Indicator Newspapers) Ltd.,[4] the Court of Appeal held that a disregard of an essential condition of the contract of service may constitute misconduct. The Stroud’s Judicial Dictionary described ‘misconduct’ as “misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct” (emphasis added). In State of Pubjab v. Ram Singh (2 supra), the Supreme Court, while considering the scope and ambit of the expression ‘misconduct’ in Rule 16.2(1) of Punjab Police Manual, 1934 referred to Black’s Law Dictionary and P. Ramanatha Aiyar’s Law Lexicon, which are reproduced hereunder: “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, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, 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 office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act’. P. Ramanatha Aiyar’s Law Lexicon, Reprint Edition 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, which 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”. After considering the said expression with reference to the above reproduced meaning of the expression contained in the Law Dictionaries, the Supreme Court held: “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 mortal turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful 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” (emphasis added). The judicial opinion on the expression ‘misconduct’ appearing in the case law referred to above undoubtedly brings every act of an employee, whose conduct is inconsistent with the faithful discharge of his duties, who had ill-motive or who abused his power, within the sweep of the said expression. Applying this settled legal position, if we examine the act with which the petitioner is charged and held proved viz., he tampered with the answer scripts with the dishonest intention of helping certain candidates of Urdu medium, it certainly embraces all facets of misconduct as described hereinabove. Irrespective of whether such act is enumerated as ‘misconduct’ or not in the Conduct Rules, by any standard, the petitioner, who was holding the position of Professor, was not expected to indulge in such a conduct. In Union of India v. J. Ahmed[5], the Supreme Court, having referred to the English case law referred to above and also its earlier judgments, held that lack of efficiency or attainment of highest standards in discharge of duty attached to public office does not ipso facto constitute misconduct, and that 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. It is not the case of the appellant that while appointing the respondent as Convenor of the LAWCET examination for 1996-97, the appellant instructed the respondent to personally verify the answer sheets of any of the candidates. The enquiry officer himself found that such a thing was not expected of a Convenor in view of the high magnitude of the answer sheets and the number of examination centres. Even according to the enquiry officer, the respondent, at the worst, can be said to be guilty of inefficiency and lack of foresight. Therefore, in our opinion, the learned Single Judge has not committed any error in holding that the respondent was guilty of misconduct. As held by the Supreme Court in J. Ahmed, lack of efficiency or attainment of highest standards in discharge of duties attached to a public office does not ipso facto constitute misconduct and lapse in performance of duty. The appellant, in its show cause notice, clearly stated that it was in agreement with the findings of the enquiry officer. Therefore, even if the findings of the enquiry officer are taken on their face value, they do not constitute misconduct warranting imposition of penalty on the respondent. In this view of the matter, we do not find any reason to interfere with the finding of the learned Single Judge that the respondent is not guilty of misconduct for being imposed any penalty. The judgments referred to by the learned Standing Counsel are not of any help to the appellant in the light of the finding that the respondent has not committed any misconduct. For the reasons stated above, the writ appeal is dismissed with no order as to costs. ANIL R. DAVE, C.J. 17th August, 2009 C.V. NAGARJUNA REDDY, J. ........REGISTRAR To 1. Two CD copies. ARS [1] (1999) 8 SCC 90 [2] AIR 1992 SC 2188 [3] (1886) 17 QDB 536 [4] (1959) 1 WLR 698 [5] AIR 1979 SC 1022