{ 1 } S.B. CIVIL WRIT PETITION NO.3577/1996. (LAXMI NARAIN VS. STATE OF RAJASTHAN & ANR.) DATE OF ORDER : 18.02.2009. HON'BLE MR. GOVIND MATHUR, J. Mr. M.S. Singhvi for the petitioner. The petitioner – a Member of the Rajasthan Agriculture Service was subjected to an enquiry as per provisions of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 for the allegation that in the year 1987-88 while he was working as Secretary, Krishi Upaj Mandi Samiti, Beawar allotted shops / godowns in violation of the instructions prescribed by the State Government and Directorate of Agriculture Marketing. By submitting an explanation, the petitioner asserted that the shops / godowns were allotted by him temporarily after getting approval from Administrator of the Krishi Upaj Mandi Samiti and that too in interest of the Krishi Upaj Mandi Samiti. Being dissatisfied with the explanation given by the petitioner, the disciplinary authority under an order dated 16.05.1995 appointed the Additional Commissioner (I), Departmental Enquiries (Jaipur) as the Enquiry Officer to make necessary probe. The Enquiry Officer after recording evidence submitted its report to the disciplinary { 2 } authority on 30.12.1995. Under the report aforesaid, though the petitioner was found guilty for allotment of shops / godowns temporarily in contravention of Circulars issued by the Directorate of Agriculture Marketing, however, the Enquiry Officer found that the shops / godowns were allotted after getting necessary approval of the Administrator and such allotment was in interest of the Krishi Upaj Mandi Samiti and the Krishi Upaj Mandi Samiti had substantial income because of the allotment of shops / godowns in question. The Enquiry Officer also found that the allotment of shops and godowns, protected the shops and godowns from their decay as those were lying vacant from years together. The petitioner was found guilty for the allegation of mis-conduct purely on the count that no temporary allotment of shops / godowns would have been made as per the instructions issued by the Directorate of Agriculture Marketing. The disciplinary authority under the order dated 12.08.1996, while accepting findings of the Enquiry Officer, imposed a penalty upon the petitioner i.e. of reduction by two steps in running pay scale. Being aggrieved by the same, this petition for writ is preferred. The contention of the learned counsel for the petitioner, while giving challenge to the order passed by the disciplinary authority and also the finding given by the Enquiry { 3 } officer, is that the act of the petitioner cannot be treated as a mis-conduct though that may be an error. As per learned counsel for the petitioner, the Enquiry Officer in an unambiguous term found that the allotment of shops / godowns was made by the petitioner after getting approval from the Administrator and by allotment in question, the Krishi Upaj Mandi Samiti earned a sum of about Rs.3 Lacs. As per learned counsel for the petitioner, whatever action taken by the petitioner was in interest of the Krishi Upaj Mandi Samiti and to protect shops / godowns from being got damaged, as those were lying vacant from last number of years. It is asserted that there was no allegation against the petitioner regarding mis-use of his authority by making temporary allotment of shops and godowns. It is also pointed out by learned counsel for the petitioner that even prior to tenure of the petitioner, the earlier Secretary of the Krishi Upaj Mandi Samiti also made temporary allotments, but he was not subjected to any enquiry. In reply to the writ petition, while defending the order passed by the disciplinary authority, it is stated on behalf of the respondents that the petitioner contravened certain instructions given by the Directorate of Agriculture Marketing, therefore, mis-conduct on his part is self – speaking. The Enquiry Officer after affording adequate opportunity, held the petitioner { 4 } guilty for the proved allegation of mis-conduct and accordingly the disciplinary authority imposed a penalty as per provisions of Rule 14 of the Rules of 1958. No interference of this Court by invoking its extraordinary jurisdiction in the instant matter, therefore, is required. Heard learned counsel for the parties. I have considered rival contentions and examined the record. The main contention of the petitioner is that the Enquiry Officer, as a matter of fact, accepted that temporary allotment of shops / godowns was made by the petitioner in interest of the Krishi Upaj Mandi Samiti and that was made after seeking necessary approval from the Administrator, as such, at the most action of the petitioner may be a technical error, but not a mis-conduct. On examination of Enquiry Report, I also found that the allotment of shops / godowns was made temporarily to protect apprehending damage to the building structure and also to have additional income for the Krishi Upaj Mandi Samiti. The Enquiry Officer also accepted the position that the allotment was made after getting necessary approval from the Administrator of the Samiti. No finding is given by the { 5 } Enquiry Officer that the delinquent employee misused his office for personal gains or ulterior motives by making temporary allotment of shops / godowns in question. It is also relevant to note that even prior to the petitioner's tenure as Secretary of the Krishi Upaj Mandi Samiti temporary allotment of shops / godowns was made and no action was taken against the officer concerned. It is important to distinguish between error and mis- conduct. A public servant may cause error while discharging duties and for such error he must be subjected to cost, may that be by way of punishment, but before determination of such cost, the employer must assess intentions of the employee concern. A negligent person should always be taken to a task and a person committing errors intentionally by making mis-representations for personal gains by ulterior motive; or by any other means causing loss to the mother institution should be subjected to penalty. The factors referred above, as a matter of fact, converts an error into mis-conduct, but in a case where error is caused while discharging duties bonafidely and that error is quite technical, then that is not required to be treated as mis-conduct. The error occurs only during activity and if the activity is bonafide and is in interest of the institution, then such error is required to be condoned. In the instant matter, ill-intentions or { 6 } intentional negligence or total idleness on part of the delinquent employee is not available and, therefore, his error has wrongly been treated as mis-conduct by the disciplinary authority. The order impugned, therefore, is unsustainable. Accordingly, this petition for writ is allowed. The order impugned dated 12.08.1996 passed by the disciplinary authority accepting finding given by the Enquiry Officer is quashed. The petitioner shall be entitled for all consequential benefits. No order to cost. (GOVIND MATHUR)J. Anil/