IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 88 (S/B) of 2004 Sukh Chand Tyagi. …..…Petitioner. Versus State of Uttaranchal and others. …...…Respondents. Mr. Sharad Sharma, Sr. Advocate assisted by Mrs. Indu Sharma, Advocate present for petitioners. Mr. K.P. Upadhyay, Additional CSC, for State of Uttarakhand. Judgment Coram: Hon’ble Barin Ghosh, CJ. Hon’ble Nirmal Yadav, J. Barin Ghosh, C.J. (Oral) Petitioner was working as an Accountant in the Treasury Department of the State. He was promoted to the post of Assistant Treasury Officer. One day after he assumed duties of the Assistant Treasury Officer, he was made for a short while Incharge Treasury Officer, in as much as the Treasury Officer was on leave for the said period. Subsequent thereto petitioner was put under suspension and thereupon, a chargesheet was issued to petitioner. In the chargesheet, three charges were levelled. In the first charge, it was stated that a private contractor was paid a sum of ` six lakhs and odd under the head salaries and that petitioner, while permitting such payment, failed to take note of the fact that such payment under the said head could not be made. In the second charge, it was alleged that three 2 private citizens were similarly paid three several sums under the head salary and that the petitioner failed to stop such payment from the said head. Third charge was that petitioner made a recommendation for appointment of a person as daily wager and while doing so represented himself as Assistant Treasury Officer when in fact he was then working as Accountant. Petitioner gave a reply. In that he indicated, amongst others, that after discovery of the mistake pertaining to the payments, being the subject matter of the first and second charges, petitioner in presence of the Treasury Officer called upon the persons, who were beneficiaries of the payments and ensured that payments, thus, made are returned to the Treasury. In relation to the third charge, he contended that he was made to make the said recommendation by his superior and subsequent to his putting his signature at the foot of the recommendation somebody else typed his designation purporting to be as Assistant Treasury Officer. The charges were inquired into. In relation to first and second charges, it was held by Inquiry Officer that due to utter negligence there was failure on the part of the petitioner in discharging duty of ensuring that the payments, being the subject matter of the first and second charge, are made under the correct head. In other words, it was held that because of failure to discharge duties or by reason of negligence on the part of the petitioner such payments were made under a wrong head. In relation to the third charge, the Inquiry Officer did not go into the question whether 3 the designation of the petitioner appended after his signature in the letter of recommendation was typed subsequent to the petitioner putting his signature or not. The inquiry report was accepted by the disciplinary authority and he, after having had issued a second show cause, passed an order thereby demoting the petitioner from the post of Assistant Treasury Officer to the post of Accountant and thus, awarded a major punishment. Petitioner preferred an appeal but lost. Hence, petitioner is before us. 2. It is now settled law that a Government Employee can be disciplined by initiating a disciplinary proceeding in relation to an act on his part, which is a misconduct. It is also settled law that action complained of against such an employee should arise from ill motive to bring the action within the scope of misconduct. It is also settled that mere acts of negligence or mistake do not constitute misconduct. At the same time, it is settled law that in certain cases carelessness can often produce more harm than deliberate wickedness or malevolence. A look at the chargesheet would show that the actions complained of in the first and second charges were not stated to have arisen from ill motive. It was stated in the chargesheet in relation to charge nos. 1 and 2, that there had been unpardonable negligence on the part of the petitioner. However, it was not alleged that negligence was such that the same may have had caused a catastrophe. It was not alleged that persons, 4 who were payees of the subject cheques, were not entitled to the payments. It was alleged that they were paid under a wrong head. Therefore, even if the monies paid to them, which were later on recovered, had not been recovered, the matter could be sorted out by book adjustments resulting in no loss at all. Third charge did mention ill motive on the part of the petitioner and accordingly, put the same within four corners of misconduct. The allegation was holding out to be somebody when the petitioner was not the same. Petitioner contended that he did not do so and somebody mischievously purported to represent the same by putting certain typed written words under his signature. Unfortunately Inquiry Officer did not go into this aspect of the matter at all. In the result, it should be deemed in law that the third charge did not stand proved. What stood proved were charges no. 1 and 2 and those were mere negligence on the part of petitioner. That being the situation and there being no proven misconduct, petitioner could not be punished in the subject disciplinary proceeding. 3. We, accordingly, allow the writ petition and set aside the order of punishment as well as appellate order. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) 23.11.2010 SKS