Patna High Court
Anil KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ANSHUMAN
Holding
The Court held that the impugned order imposing a 10% pension deduction was unlawful because the allegations did not constitute grave misconduct nor any pecuniary loss, and therefore the order was quashed.
Summary
Anil Kumar, a retired Sub‑Divisional Police Officer, challenged a 10% pension deduction imposed under Rule 43(b) of the Bihar Pension Rules, alleging that the departmental proceedings only established partial inefficiency and not grave misconduct or pecuniary loss. He argued that the charges of poor performance were unsubstantiated, that he had been given a full opportunity to defend himself, and that the rule requires either grave misconduct or a proven loss to the government. The State contended that the inquiry was properly conducted, the charges of negligence were justified, and the deduction was therefore lawful. The Court examined the statutory language of Rule 43(b) and relied on several precedents interpreting ‘grave misconduct’ and the necessity of a pecuniary loss. It concluded that the allegations of inefficiency did not rise to the level of grave misconduct and no loss was shown, rendering the deduction arbitrary. Consequently, the order dated 5 July 2024 was quashed and the petitioner was directed to receive the withheld pension amount.
Issues considered
- Whether the deduction of pension under Rule 43(b) is justified when the charges amount only to alleged inefficiency and not grave misconduct.
- Whether the departmental proceedings complied with the procedural safeguards required by the Bihar Pension Rules and principles of natural justice.
- Whether any pecuniary loss to the Government was established to warrant a pension deduction.
- Whether the findings of the inquiry officer, which held the charges only partially proved, can support a penalty of pension withholding.
Legislation cited
- Bihar Pension Rules, 1950 — s. Rule 43(b)
Subjects
- pension deduction
- grave misconduct
- departmental inquiry
- Rule 43(b)
- natural justice
- public service discipline
- pecuniary loss
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7122 of 2025
======================================================
Anil Kumar Son of Late Lakshmi Narayan Yadav, Resident of Shri Vihar
Colony, Mahila College Road, Post Office Katihar Police Station Town,
District Katihar, PIN 854105, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Home (Police
Wing) Department, Government of Bihar, Patna.
2. The Director General of Police, Bihar, Patna.
3. The Inspector General of Police (Headquarters), Bihar, Patna.
4. The Inspector General of Police, Darbhanga Range Darbhanga Range,
Darbhanga.
5. The Deputy Inspector General of Police, Purnea Range, Purnea.
6. The Superintendent of Police, Katihar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Mrigank Mauli, Sr. Advocate
Mr.Kumar Ravish, Advocate
For the Respondent/s : Mr.Government Pleader (20)
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date :23-04-2026
Heard learned Sr. Counsel appearing for the petitioner
and learned counsel appearing for the respondent State.
2. Learned Sr. Counsel for the petitioner submits that
the petitioner has filed the present writ petition for the following
relief/s :-
“a. To quash and set aside
Annexure P/18 i.e. the order of punishment
contained under Memo No. 7406 dated
05.07.2024 issued under the signature of
the Deputy Secretary of the Home (Police
Wing) Department, Government of Bihar,
Patna under the orders of the competent
authority under which petitioner was
imposed with a punishment of deduction of
10 % pension under Rule 43(b) of the Bihar
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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Pension Rules.
b. To direct for payment of
consequential benefits with interest as a
consequence of setting aside the order of
punishment.
c. To direct for payment of
exemplary costs to this petitioner.
d. Any other relief or relief/s
which the petitioner may be found to be
entitled to in the facts and circumstances of
the case.”
3. Learned Sr. Counsel for the petitioner submits that
while the petitioner was rendering his services as Sub-
Divisional Police Officer, Sadar, Katihar, a memo of charge was
issued vide Memo No. 6186 dated 31.07.2019 by the Home
Department (Police Wing), Bihar, Patna, under the signature of
the Additional Secretary. The substance of the allegation against
the petitioner was that his performance was poor. It is further
submitted that the petitioner duly responded to the said
allegations by submitting his reply vide Letter No. 3220 of 2019
in his capacity as S.D.P.O., Sadar, Katihar. In his reply, the
petitioner denied the allegations and furnished detailed
explanations in respect of each charge. He specifically asserted
that his performance was not poor and that the data relied upon
by the department was incorrect. He explained that disposal of
cases was substantial; however, proceedings took time due to
adherence to procedural requirements, including awaiting show-
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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cause replies, non-appearance of witnesses, and delays in
production of concerned persons. The petitioner also clarified
that he was not the lowest-performing officer when assessed in
the context of the entire region and further pointed out that he
had been rewarded on several occasions by higher authorities.
4. Learned Sr. Counsel further submits that the
petitioner superannuated from service on 31.12.2019 while
serving in the aforesaid capacity. Despite his retirement, the
State Government proceeded with departmental proceedings
after rejecting his show-cause reply dated 07.12.2019. An
Inquiry Officer and a Presenting Officer were appointed, and the
petitioner participated in the inquiry by filing his defence
statement as well as a supplementary defence upon conclusion
of the oral inquiry. It is submitted that the Inquiry Officer
submitted his report vide Memo No. 887 dated 07.06.2023,
wherein the charges were found to be only partially proved.
Thereafter, a copy of the inquiry report was forwarded to the
petitioner along with a second show-cause notice vide Letter
No. 9609 dated 08.08.2023. The petitioner submitted his reply
on 01.09.2023 and subsequently filed a representation dated
06.06.2024 before the Deputy Secretary, Home Department
(Police Wing), requesting that the charges be dropped. However,
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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the State Government, vide Memo No. 7406 dated 05.07.2024,
passed the final order under Rule 43(b) of the Bihar Pension
Rules, 1950, imposing a penalty of withholding 10% of the
petitioner’s pension without specifying any time limit.
Aggrieved thereby, the petitioner submitted a representation
dated 08.08.2024 before the Hon’ble Home Minister-cum-Chief
Minister seeking intervention.
5. Learned Sr. Counsel for the petitioner submits that
the impugned order is unsustainable in law, as the essential
precondition under Rule 43(b) of the Bihar Pension Rules is that
the pensioner must be found guilty of “grave misconduct” or
must have caused pecuniary loss to the Government by
misconduct or negligence. It is contended that neither of these
conditions is satisfied in the present case. It is further argued
that even as per the memo of charge and the inquiry report, the
charges were not fully proved but only partially established, and
the allegations pertain merely to alleged inefficiency or
unsatisfactory performance, which cannot be equated with
“grave misconduct.” There is also no allegation or finding of
any pecuniary loss caused to the Government.
6. In support of the aforesaid submissions, reliance
has been placed on the judgment of this Court in C.W.J.C. No.
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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4632 of 2020 (Harish Kumar Singh vs. State of Bihar & Ors.),
particularly paragraph 10 thereof. Further reliance has been
placed on the judgment in C.W.J.C. No. 5541 of 2022 (Ganesh
Prasad Yadav vs. State of Bihar & Ors.), reported in 2026 (2)
PLJR 170 (paragraph 15), as well as the judgment in C.W.J.C.
No. 16576 of 2017 (Ganesh Prasad Yadav vs. State of Bihar &
Ors.), reported in 2021 (3) PLJR 805 (paragraphs 18, 19, 20,
and 26). Reliance has also been placed on the Division Bench
judgment in L.P.A. No. 837 of 2023 (State of Bihar vs. Arun
Kumar Dubey), particularly paragraph 21.
7. Learned counsel has further relied upon the
judgment of the Hon’ble Supreme Court in Union of India vs.
J. Ahmed, reported in (1979) 2 SCC 286, to contend that mere
lack of efficiency or failure to attain the highest standards of
performance does not amount to misconduct.
8. Per contra, learned counsel for the State submits
that the Inspector General of Police (Headquarters), Bihar, vide
Letter No. 1969/X.P. dated 15.07.2019, forwarded
recommendations along with draft charges based on the report
of the Inspector General of Police, Darbhanga Range, alleging
negligence, dereliction of duty, and irregularities on the part of
the petitioner.
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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9. It is further submitted that upon examination of the
materials on record, the State Government decided to initiate
departmental proceedings and accordingly issued Memo No.
6186 dated 31.07.2019 along with the statement of charges and
supporting documents. The petitioner was granted adequate
opportunity to submit his defence, which he availed by filing his
reply. Thereafter, a formal departmental proceeding was
initiated, and an Inquiry Officer and Presenting Officer were
appointed vide Resolution No. 1462 dated 12.02.2020. The
Inquiry Officer, after conducting the proceeding, submitted his
findings on 07.06.2023 holding the charges to be partially
proved. Based on the inquiry report, a second show-cause notice
was issued to the petitioner, and upon consideration of his reply,
which was found unsatisfactory, the State Government imposed
the penalty of 10% deduction from pension under Rule 43(b) of
the Bihar Pension Rules.
10. It is further contended that the entire proceeding
was conducted strictly in accordance with law and following
principles of natural justice. The petitioner was afforded full
opportunity to defend himself but failed to produce any cogent
evidence to dislodge the charges. Therefore, the impugned order
is legal, valid, and does not warrant interference by this Court.
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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Consequently, the writ petition is liable to be dismissed.
11. After consideration of the arguments of both the
parties and upon perusal of the record, it transpires to this Court
that for the purpose of reaching on the conclusion with regard to
the present case, it is necessary to quote the law and the relevant
portion of the judgments on which petitioner has relied.
12. Rule 43(b) of the Bihar Pension Rules states as
follows:
“43(b) The Appointment authority
of the post held at the time of retirement]
further reserve to themselves the right of
withholding or withdrawing a pension or any
part of it, whether permanently or for a
specified period, and the right of ordering the
recovery from a pension of the whole or part of
any pecuniary loss caused to Government if the
pensioner is found in departmental or judicial
proceeding to have been guilty of grave
misconduct; or to have caused pecuniary loss
to Government by misconduct or negligence,
during his service including service rendered
on re- employment after retirement.
Provided that-
(a) such departmental proceedings, if not
instituted while the Government servant was on
duty either before retirement or during re-
employment;
(i) shall not be instituted save with the sanction
of the State Government;
(ii) shall be in respect of an event which took
place not more than four years before the
institution of such proceedings; and
(iii) shall be conducted by such authority and
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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at such place or places as the State
Government may direct and in accordance with
the procedure applicable to proceedings on
which an order of dismissal from service may
be made;
(b) judicial proceedings, if not instituted while
the Government servant was on duty either
before retirement or during re-employment,
shall have been instituted in accordance with
sub-clause (ii) of clause (a); and
(c) the Bihar Public Service Commission, shall
be consulted before final orders are passed.
Explanation.- For the purposes of the Rule-
(a) departmental proceeding shall be deemed
to have been instituted when the charges
framed, against the pensioner are issued to him
or, if the Government servant has been placed
under suspension from an earlier date, on such
date; and
(b) judicial proceedings shall be deemed to
have been instituted;—
(i) in the case of criminal proceedings, on the
date on which a complaint is made or a
charge-sheet is submitted, to a criminal court;
and
(ii) in the case of civil proceedings, on the date
on which the complaint is presented, or as the
case may be, an application is made to a Civil
Court
Rule 139. (a) The full pension admissible
under the Rules is not to be given as a matter
of course, or unless the service rendered has
been really approved.
(b) If the service has not been thoroughly
satisfactory, the authority sanctioning the
pension should make such reduction in the
amount as it thinks proper.
The [Appointment authority of the
post held at the time of retirement] reserve to
themselves the powers of revising an order
relating to pension passed by subordinate
authorities under the control, if they are
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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satisfied that the service of the pensioner was
not thoroughly satisfactory or that there was
proof of grave misconduct on his part while in
service. No such power shall however, be
exercised without giving the pensioner
concerned a reasonable opportunity of
showing cause against the action proposed to
be taken in regard to his pension, or any such
power shall be exercised after the expiry of
three years form the date of the order
sanctioning the pension was first passed.]”
13. Judgment of Harish Kumar Singh vs. State of
Bihar & Ors. passed in C.W.J.C. No. 4632 of 2020 by this
Hon’ble Court, whose paragraph-10 states as follows:
“10. Upon bare perusal of those
provisions, it become crystal clear that Rule 43(b)
of the Bihar Pension Rules shall apply in case of
grave misconduct and the case of pecuniary loss.
Here both are lacking in the present case which
transpires from the punishment (impugned
order)”
14. Judgment of Ganesh Prasad Yadav Vs. State of
Bihar & Ors. (C.W.J.C. No. 5541 of 2022), reported in 2026 (2)
PLJR 170,whose paragraphs-15, is as under :-
“15. In addition thereto, this Court is
of the considered view that for initiation and
culmination of proceedings under Rule 43(b) of
the Bihar Pension Rules, 1950, two essential
ingredients must be satisfied, namely: (i) the
pensioner must be found guilty of grave
misconduct; or (ii) he must be found to have
caused pecuniary loss to the Government by
misconduct or negligence. In this regard, a
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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Coordinate Bench of this Court, in the case of
Ganesh Prasad Yadav vs. State of Bihar & Ors.,
decided on 03.08.2021, after considering a
catena of decisions of the Hon’ble Supreme
Court of India, has held as under:
“20. What amounts to misconduct, has
been lucidly explained by the Supreme Court in
case of Union of India v. J Ahmed reported in
(1979) 2 SCC 286. Paragraph 11 of which reads
as under:-
11. Code of conduct as set out in the
Conduct Rules clearly indicates the
conduct expected of a member of the
service. It would follow that conduct which
is blameworthy for the government servant
in the context of Conduct Rules would be
misconduct. If a servant conducts himself
in a way inconsistent with due and faithful
discharge of his duty in service, it is
misconduct (see Pierce v. Foster [17 QB
536, 542]). A disregard of an essential
condition of the contract of service may
constitute misconduct [see Laws v. London
Chronicle (Indicator Newspapers [(1959)
1 WLR 698])]. This view was adopted in
Shardaprasad Onkarprasad Tiwari
vDivisional Superintendent, Central
Railway, Nagpur Division, Nagpur [61
Bom LR 1596] , and Satubha K. Vaghela v.
Moosa Raza [10 Guj LR 23] . The High
Court has noted the definition of
misconduct in Stroud's Judicial Dictionary
which runs as under:
“Misconduct means, misconduct arising
from ill motive; acts of negligence, errors
of judgment, or innocent mistake, do not
constitute such misconduct.”
In industrial jurisprudence amongst
others, habitual or gross negligence
constitute misconduct but in Utkal
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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Machinery Ltd. v. Workmen, Miss Shanti
Patnaik [AIR 1966 SC 1051 : (1966) 2
SCR 434 : (1966) 1 LLJ 398 : 28 FJR 131]
in the absence of standing orders
governing the employee's undertaking,
unsatisfactory work was treated as
misconduct in the context of discharge
being assailed as punitive. In S. Govinda
Menon v. Union of India [(1967) 2 SCR
566 : AIR 1967 SC 1274 : (1967) 2 LLJ
249] the manner in which a member of the
service discharged his quasi judicial
function disclosing abuse of power was
treated as constituting misconduct for
initiating disciplinary proceedings. A
single act of omission or error of judgment
would ordinarily not constitute misconduct
though if such error or omission results in
serious or atrocious consequences the
same may amount to misconduct as was
held by this Court in P.H. Kalyani v. Air
France,Calcutta [AIR 1963 SC 1756 :
(1964) 2 SCR 104 : (1963) 1 LLJ 679 : 24
FJR 464] wherein it was found that the
two mistakes committed by the employee
while checking the load-sheets and
balance charts would involve possible
accident to the aircraft and possible loss of
human life and, therefore, the negligence
in work in the context of serious
consequences was treated as misconduct.
It is, however, difficult to believe that lack
of efficiency or attainment of highest
standards in discharge of duty attached to
public office would ipso facto constitute
misconduct. There may be negligence in
performance of duty and a 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
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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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. An error can be
indicative of negligence and the degree of
culpability may indicate the grossness of
the negligence. Carelessness can often be
productive of more harm than deliberate
wickedness or malevolence. Leaving aside
the classic example of the sentry who
sleeps at his post and allows the enemy to
slip through, there are other more familiar
instances of which a railway cabinman
signals in a train on the same track where
there is a stationery traincausing head-on
collision; a nurse giving intravenous
injection which ought to be given
intramuscular causing instantaneous
death; a pilot overlooking an instrument
showing snag in engine and the aircraft
crashes causing heavy loss of life.
Misplaced sympathy can be a great evil
(see Navinchandra Shakerchand Shah v.
Manager, Ahmedabad Coop. Department
Stores Ltd. [(1978) 19 Guj LR 108, 120] ).
But in any case, failure to attain the
highest standard of efficiency in
performance of duty permitting an
inference of negligence would not
constitute misconduct nor for the purpose
of Rule 3 of the Conduct Rules as would
indicate lack of devotion to duty.”
(Emphasis
supplied).
21. In case of State of Punjab v. Ex-
Constable Ram Singh reported in (1992) 4
SCC 54, the Supreme Court had again the
occasion of dealing with the term
‘misconduct’ and laid down in paragraphs
5 and 6 as under:-
“5. Misconduct has been defined in
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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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 behavior,
wilful in character, improper or wrong
behavior, its synonyms are misdemeanor,
misdeed, misbehavior, delinquency,
impropriety mismanagement, offense, but
not negligence or carelessness.”
Misconduct in office has been defined as:
“Any unlawful behavior by a public officer
in relation to the duties of his office, wilful
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, where some discretion is
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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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.”
6. 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 moral turpitude, it
must be improper or wrong behaviour;
unlawful behaviour, wilful 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
supplied).
22. Similar view has been taken by the
Supreme Court in its subsequent decision
in case of Zunjarrao Bhikaji Nagarkar v.
Union of India and Others reported in
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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(1999) 7 SCC 409, relying on the Supreme
Court’s decision in case of Ex Constable
Ram Singh (supra).
23. In a subsequent decision in case of
Inspector Prem Chand v. Govt. of NCT of
Delhi and Others reported in (2007) 4
SCC 566, the Supreme Court held that an
error of judgment per se is not a
misconduct and a negligence simpliciter
also would not be a misconduct.
24. It is culled out on the basis of the
tentative notes of disagreement of the
Disciplinary Authority itself read with the
finding recorded by the Enquiring
Authority that the calculation done by the
petitioner of the amount of price
neutralization was not found to be
excessive because of the proper upkeep of
the register but because the monthly rates
were not obtained from Kudremukh Iron
Ore Company Ltd.
25. Further, Mr. Shahi has rightly placed
reliance on the Supreme Court’s decision
in case of Rajendra Yadav (supra). The
Disciplinary Authority has not dealt at all
with the finding recorded by the Enquiring
Authority in this regard in his report and
has thus admitted that no disciplinary
action was initiated against others, who
had also submitted the proposals in the
same manner in which, the petitioner had
done.
26. Situated thus, keeping in mind such
findings of the Enquiring Authority in
respect of which no disagreement had been
recorded in the tentative notes of
disagreement, as has been discussed
hereinabove and the law on ‘misconduct’
as adjudged by the Supreme Court in its
various judicial pronouncements noticed
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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in this judgment, I am of the considered
view that no case of grave misconduct has
been made out against the petitioner,
which is a prerequisite for action under
Rule 43(b) of the Bihar Pension Rules in
the absence of any pecuniary loss caused
to the State; warranting punishment of
withholding of pension. Resultantly, the
impugned order requires interference. The
impugned order dated 12.10.2017 issued
vide letter no. 853 is hereby quashed,
accordingly.”
15. Similarly, learned counsel refers to the judgement
of this Hon’ble Court rendered in the case of Ganesh Prasad
Yadav Vs. The State of Bihar and Ors. (CWJC No. 16576 of
2017) reported in 2021 (3) PLJR 805 whose paragraph 18, 19,
20, 26 states as follows:
“18. There is no allegation
against the petitioner that any misconduct
or negligence on his part, has in fact
caused any pecuniary loss to the
Government. The impugned decision, in
that wake, has to be considered from the
perspective, as to whether a case of gross
misconduct is made out against the
petitioner warranting action under Rule
43(b) of the Bihar Pension Rules, in the
light of findings recorded by the
Disciplinary Authority in the impugned
order. At the cost of repetition, it is
reiterated that the finding of ‘ill motive’
recorded in the impugned order has been
found hereinabove to be unsustainable in
the absence of such allegation in the
charge memo.
19. What amounts to
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
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misconduct, has been lucidly explained by
the Supreme Court in case of Union of
India v. J. Ahmed reported in (1979) 2
SCC 286. Paragraph 11 of which reads as
under:—
11. Code of conduct as set out
in the Conduct Rules clearly indicates the
conduct expected of a member of the
service. It would follow that conduct
which is blameworthy for the government
servant in the context of Conduct Rules
would be misconduct. If a servant
“20. What amounts to
misconduct, has been lucidly explained by
the Supreme Court in case of Union of
India v. J Ahmed reported in (1979) 2
SCC 286. Paragraph 11 of which reads
as under:-
11. Code of conduct as set out in the
Conduct Rules clearly indicates the
conduct expected of a member of the
service. It would follow that conduct which
is blameworthy for the government servant
in the context of Conduct Rules would be
misconduct. If a servant conducts himself
in a way inconsistent with due and faithful
discharge of his duty in service, it is
misconduct (see Pierce v. Foster [17 QB
536, 542]). A disregard of an essential
condition of the contract of service may
constitute misconduct [see Laws v. London
Chronicle (Indicator Newspapers [(1959)
1 WLR 698])]. This view was adopted in
Shardaprasad Onkarprasad Tiwari v
Divisional Superintendent, Central
Railway, Nagpur Division, Nagpur [61
Bom LR 1596] , and Satubha K. Vaghela v.
Moosa Raza [10 Guj LR 23] . The High
Court has noted the definition of
misconduct in Stroud's Judicial Dictionary
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
18/24
which runs as under:
“Misconduct means, misconduct arising
from ill motive; acts of negligence, errors
of judgment, or innocent mistake, do not
constitute such misconduct.”
In industrial jurisprudence amongst
others, habitual or gross negligence
constitute misconduct but in Utkal
Machinery Ltd. v. Workmen, Miss Shanti
Patnaik [AIR 1966 SC 1051 : (1966) 2
SCR 434 : (1966) 1 LLJ 398 : 28 FJR 131]
in the absence of standing orders
governing the employee's undertaking,
unsatisfactory work was treated as
misconduct in the context of discharge
being assailed as punitive. In S. Govinda
Menon v. Union of India [(1967) 2 SCR
566 : AIR 1967 SC 1274 : (1967) 2 LLJ
249] the manner in which a member of the
service discharged his quasi judicial
function disclosing abuse of power was
treated as constituting misconduct for
initiating disciplinary proceedings. A
single act of omission or error of judgment
would ordinarily not constitute misconduct
though if such error or omission results in
serious or atrocious consequences the
same may amount to misconduct as was
held by this Court in P.H. Kalyani v. Air
France,Calcutta [AIR 1963 SC 1756 :
(1964) 2 SCR 104 : (1963) 1 LLJ 679 : 24
FJR 464] wherein it was found that the
two mistakes committed by the employee
while checking the load-sheets and
balance charts would involve possible
accident to the aircraft and possible loss of
human life and, therefore, the negligence
in work in the context of serious
consequences was treated as misconduct.
It is, however, difficult to believe that lack
of efficiency or attainment of highest
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
19/24
standards in discharge of duty attached to
public office would ipso facto constitute
misconduct. There may be negligence in
performance of duty and a 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. An error can be
indicative of negligence and the degree of
culpability may indicate the grossness of
the negligence. Carelessness can often be
productive of more harm than deliberate
wickedness or malevolence. Leaving aside
the classic example of the sentry who
sleeps at his post and allows the enemy to
slip through, there are other more familiar
instances of which a railway cabinman
signals in a train on the same track where
there is a stationery traincausing head-on
collision; a nurse giving intravenous
injection which ought to be given
intramuscular causing instantaneous
death; a pilot overlooking an instrument
showing snag in engine and the aircraft
crashes causing heavy loss of life.
Misplaced sympathy can be a great evil
(see Navinchandra Shakerchand Shah v.
Manager, Ahmedabad Coop. Department
Stores Ltd. [(1978) 19 Guj LR 108, 120] ).
But in any case, failure to attain the
highest standard of efficiency in
performance of duty permitting an
inference of negligence would not
constitute misconduct nor for the purpose
of Rule 3 of the Conduct Rules as would
indicate lack of devotion to duty.”
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
20/24
(Emphasis supplied).
26. Situated thus, keeping
in mind such findings of the Enquiring
Authority in respect of which no
disagreement had been recorded in the
tentative notes of disagreement, as has
been discussed hereinabove and the law
on ‘misconduct’ as adjudged by the
Supreme Court in its various judicial
pronouncements noticed in this judgment,
I am of the considered view that no case of
grave misconduct has been made out
against the petitioner, which is a
prerequisite for action under Rule 43(b) of
the Bihar Pension Rules in the absence of
any pecuniary loss caused to the State;
warranting punishment of withholding of
pension. Resultantly, the impugned order
requires interference. The impugned order
dated 12.10.2017 issued vide letter no.
853 is hereby quashed, accordingly.”
16. Reliance has also been placed on the Division
Bench judgment passed in L.P.A. No. 837 of 2023 (State of
Bihar vs. Arun Kumar Dubey), whose paragraph 21 states as
follows:
“21. That apart, this Court also
finds substance in the contention of the
learned Senior Counsel, representing the
writpetitioner/respondent 1st set, that the
entire allegation even if accepted in its
totality, speaks only about the negligence in
performance of duty or inefficiency in
discharge of duty on the part of the writ-
petitioner, lacking the ingredients of
misconduct. Thus, the reliance placed on
Union of India And Others (supra) also,
fortifies the arguments of the learned
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
21/24
Senior Counsel. The Apex Court, in the
above noted case, succinctly observed that
“It is, however, difficult to believe that lack
of efficiency or attainment of highest
standards in discharge of duty attached to
public office would ipso facto constitute
misconduct. There may be negligence in
performance of duty and a 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. An error can be
indicative of negligence and the degree of
culpability may indicate the grossness of
the negligence. Carelessness can often be
productive of more harm than deliberate
wickedness or malevolence.”
17. Reliance has also been placed upon the judgment
of Hon’ble the Supreme Court passed in Union of India vs. J.
Ahmed, reported in (1979) 2 SCC 286, whose paragraph 11
states as follows:
“11. Code of conduct as set out in the
Conduct Rules clearly indicates the conduct
expected of a member of the service. It would
follow that conduct which is blameworthy for
the government servant in the context of
Conduct Rules would be misconduct. If a
servant conducts himself in a way inconsistent
with due and faithful discharge of his duty in
service, it is misconduct (see Pierce v. Foster
[17 QB 536, 542] ). A disregard of an essential
condition of the contract of service may
constitute misconduct [see Laws v. London
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
22/24
Chronicle (Indicator Newspapers [(1959) 1
WLR 698] )]. This view was adopted in
Shardaprasad Onkarprasad Tiwari v. Divisional
Superintendent, Central Railway, Nagpur
Division, Nagpur [61 Bom LR 1596] , and
Satubha K. Vaghela v. Moosa Raza [10 Guj LR
23] . The High Court has noted the definition of
misconduct in Stroud's Judicial Dictionary
which runs as under:
“Misconduct means, misconduct arising
from ill motive; acts of negligence, errors of
judgment, or innocent mistake, do not constitute
such misconduct.”
In industrial jurisprudence amongst
others, habitual or gross negligence constitute
misconduct but in Utkal Machinery Ltd. v.
Workmen, Miss Shanti Patnaik [AIR 1966 SC
1051 : (1966) 2 SCR 434 : (1966) 1 LLJ 398 :
28 FJR 131] in the absence of standing orders
governing the employee's undertaking,
unsatisfactory work was treated as misconduct
in the context of discharge being assailed as
punitive. In S. Govinda Menon v. Union of India
[(1967) 2 SCR 566 : AIR 1967 SC 1274 : (1967)
2 LLJ 249] the manner in which a member of
the service discharged his quasi judicial
function disclosing abuse of power was treated
as constituting misconduct for initiating
disciplinary proceedings. A single act of
omission or error of judgment would ordinarily
not constitute misconduct though if such error
or omission results in serious or atrocious
consequences the same may amount to
misconduct as was held by this Court in P.H.
Kalyani v. Air France, Calcutta [AIR 1963 SC
1756 : (1964) 2 SCR 104 : (1963) 1 LLJ 679 :
24 FJR 464] wherein it was found that the two
mistakes committed by the employee while
checking the load-sheets and balance charts
would involve possible accident to the aircraft
and possible loss of human life and, therefore,
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
23/24
the negligence in work in the context of serious
consequences was treated as misconduct. It is,
however, difficult to believe that lack of
efficiency or attainment of highest standards in
discharge of duty attached to public office
would ipso facto constitute misconduct. There
may be negligence in performance of duty and a
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. An
error can be indicative of negligence and the
degree of culpability may indicate the grossness
of the negligence. Carelessness can often be
productive of more harm than deliberate
wickedness or malevolence. Leaving aside the
classic example of the sentry who sleeps at his
post and allows the enemy to slip through, there
are other more familiar instances of which a
railway cabinman signals in a train on the same
track where there is a stationery train causing
head-on collision; a nurse giving intravenous
injection which ought to be given intramuscular
causing instantaneous death; a pilot
overlooking an instrument showing snag in
engine and the aircraft crashes causing heavy
loss of life. Misplaced sympathy can be a great
evil (see Navinchandra Shakerchand Shah v.
Manager, Ahmedabad Coop. Department Stores
Ltd. [(1978) 19 Guj LR 108, 120] ). But in any
case, failure to attain the highest standard of
efficiency in performance of duty permitting an
inference of negligence would not constitute
misconduct nor for the purpose of Rule 3 of the
Conduct Rules as would indicate lack of
devotion to duty.”
18. Upon perusal of the impugned order, it transpires
Patna High Court CWJC No.7122 of 2025 dt.23-04-2026
24/24
to this Court that no pecuniary loss has been caused to the
Government by the actions of the petitioner. In light of the
applicable judgment, this Court further finds that the allegations
made do not constitute gross misconduct.
19. Accordingly, this Court is of the considered view
that the impugned order, as contained in Memo No. 7406 dated
05.07.2024, whereby a penalty of withholding 10% of the
petitioner’s pension has been imposed without prescribing any
time limit, is unsustainable in the eyes of law. The said action is
arbitrary and contrary to settled legal principles governing
pensionary benefits, and is therefore liable to be set aside.
20. Consequently, the impugned order is hereby
quashed. The respondent authorities are directed to release the
withheld amount of pension to the petitioner within a period of
three months from the date of receipt/production of a copy of
this order.
(Dr. Anshuman, J)
Ashwini/-
AFR/NAFR
CAV DATE 31.03.2026
Uploading Date 25/04/2026
Transmission Date NA
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