10 Jun 2010

No misconduct when following call of duty: High Court

Setting aside the punishment awarded on the Departmental Inquiry to a CISF personnel, a Division Bench of the Delhi High Court in a recent decision criticized the force and its officers in having adopted the course of action for punishing the petitioner who was only performing his duty. The aggrieved personnel had been punished for having taken his force members on his own upon receiving information that other members of the force were subject of police atrocities when the petitioner was not able to take instructions due to the absence of his senior officers.

The Petitioner S.K. Sur, who was a Sub-Inspector with CISF during the time of the incident in 1984, supervising fatigue duty for the purposes of maintenance and cleaning of the headquarters lines when he was informed that some CISF personnel were assaulted by the Police during a game. The Petitioner rushed to take instructions for proper action from the seniors but could not get through despite repeated attempts and in the circumstance rushed to the stadium to take stock of the situation. For this conduct he was charged with misconduct for having acted in a manner unbecoming of an officer and subsequently punished. This was challenged before the High Court.

The High Court, holding that a writ petition was maintainable in such circumstances, examined the facts or record to hold that there was no misconduct on the part of the petitioner for having been punished. While the High Court also passed strictures against the CISF for having initiated against and taken action of punishing the petitioner without even discharging the basic requirements of the principles of natural justice, the High Court in this backdrop explained the concept of "misconduct" in the following terms;
47. The petitioner's further submission is that even if such actions of the petitioner in visiting the stadium with about four CISF personnel was to be held against him, the same at best was overzeal in performance of duty. It is submitted that the petitioner's actions flowed from his sense of devotion to duty and responsibility and that, at their worst, it could only be contended that there was an error in judgment in proceeding in the manner in which he did. The petitioner's contention is that such actions could never be construed as misconduct inviting disciplinary action against the petitioner. 
48. The petitioner has, therefore, raised a basic question as to what is the nature of conduct which could be construed as misconduct inviting disciplinary proceedings and penalty against him. The expression `Misconduct' is not defined under the CISF Act, 1969. It is well established that in case a term has not been statutorily defined, guidance from the meaning obtainable in ordinary and common parlance may be taken and the word has to be understood in its ordinary dictionary meaning. Since it is difficult to give an exhaustive definition of what amounts to misconduct, the ordinary meaning of the expression “misconduct” in various dictionaries may be considered. 
49. Legal dictionaries have also defined 'misconduct'. In P. Ramanatha Aiyar's The Law Lexicon (Second Edition 1997) has extensively revised and enlarged at page 1238 the meaning of `misconduct' as follows:-
“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 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 official by which the rights of a party have been affected.
The word “misconduct” is a sufficiently wide expression and it covers conduct which in any way renders a man unfit for his office or is likely to tamper with or embarrass the administration. In this sense it is grossly improper or unbecoming conduct in public life and may also become misconduct and may render an officer liable to disciplinary action therefor.” 
50. In Black's Law Dictionary, Sixth Edition, “Misconduct” is defined at page 999 as follows :-
“A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, 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, wilful in character. The 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.”
51. In the Law Lexicon by Shri P.M. Bakshi, Volume 2, (Second edition 2005) at page number 1693, the following definition is to be found:-
“MISCONDUCT “Misconduct” as described in Batt's Law of Master and Servant (4th Edition, p. 63) “comprises positive acts and not mere neglect or failure”.
As per the definition of the word in Ballentine's Law Dictionary (1948 Edition) is: “As transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand clearly it is a violation of definite law; a forbidden act. It differs from carelessness”.
52. In the Legal Glossary by the Government of India, 2001 edition at page 212, “misconduct” has been defined as follows:- 
“misconduct : malfeasance; improper conduct”
53. The New Lexicon Webster's Dictionary of the English language at page 638, 1988 edition has defined the term “misconduct” as follows:-
“mis-con-duct - bad management, behavior improper according to some code, to mismanage, to conduct (oneself) improperly”
54. The Words and Phrases Dictionary Permanent Edition, Volume 27, 2003 at page 329 has defined the term “misconduct in office” as follows:-
“Misconduct in office” includes such acts as amount to a breach of the good faith and of the right action that are tacitly required of all officers.”
At page 331, it defines the expression “misconduct in office” as follows:-
“The phrase “misconduct in office” includes any willful malfeasance, misfeasance, or nonfeasance in office, and means any act or omission in breach of duty of public concern by person who has accepted public office provided his act is willful and corrupt and is not judicial. “Malfeasance” is the performance of that which an officer has no authority to do and is positively wrong or unlawful. “Misfeasance” by an officer is the performance in a wrongful manner of that which the law authorizes or requires him to do and “nonfeasance” by an officer is the substantial failure to perform duty.” 
At page 332, it defines the expression “official misconduct” or “misconduct in office” as follows:-
“Official misconduct” or “misconduct in office” includes doing unlawful act “(malfeasance),” doing lawful act in unlawful manner “(Misfeasance),” and failing to perform act required by law or duties of office “(nonfeasance),” but does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.”
This dictionary has also defined “misconduct or malfeasance in public office” at page 334 in the following terms:-
“MISCONDUCT OR MALFEASANCE IN PUBLIC OFFICE - “Misconduct or malfeasance in public office” in its penal sense is not merely error in judgment or departure from sound discretion, but the act, omission, or neglect must be willful, corrupt, and amount to a breach of duty legally required by one who has accepted public office.”
55. The judgment of the Supreme Court reported at AIR 1979 SC 1022 titled Union of India & Ors. vs. J. Ahmed may also be usefully referred to in this behalf, the relevant extract whereof reads as follows :-
“9. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules. ............Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty, .....An act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. .....It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.
xxx xxx 
11. ......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. 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. L.R. 1596 and Satubha K. Vaghela v. Moosa Raza 10 G.L.R. 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.
12. The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehavior involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.
13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation.” 
56. This very issue has been the subject matter of consideration in other judicial precedents as well. In (1992) 4 SCC 54 State of Punjab & Anrs. Vs. Ram Singh, ex constable. The Supreme Court relied upon some of the aforenoticed definitions and held as follows:-
“6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its 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.”
57. This court had occasion to construe the meaning of the expression “misconduct” in a pronouncement dated 27th August, 2002 in WP (C) No.5552/2002 Tara Chand Vs. Union of India. The Division Bench of this court placed reliance on a pronouncement of the Calcutta High Court reported at 1994 (2) Calcutta Law Journal 456 Probodh Kumar Bhowmick Vs. University of Calcutta & Ors. and held as follows:-
“14 In Probodh Kumar Bhowmick vs. University of Calcutta & Ors., 1994 (2) Cal. LJ 456, it was observed: 
14. `Misconduct', inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, "improper behaviour; intentional wrong doing on deliberate violation of a rule of standard or behaviour":
“Misconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law, a forbidden act. It differs from carelessness. Misconduct even if it is an offence under the Indian Penal Code is equally a misconduct.”
15. Even in industrial laws, acts of misconduct specified in standing order framed under Industrial Employment (Standing Order) Act, 1946 is not treated to be exhaustive. Various misconducts specified in Clause 14(3) of Model Standing Order are merely illustrative. 
16. In (5) Mahendra Singh Dhantwal v. Hindustan Motors Ltd. reported in (1976) II LLJ 259 (264) SC, a three Judge Bench of the Supreme Court observed "standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing order, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action". 
17. Even in the absence of rules specifying misconduct, it would be open to the employee to consider reasonably what conduct can be properly treated as misconduct. See (6) W.M. Agnani v. Badri Das reported in (1963) 1 LLJ page 684 at 690.”
58. It, therefore, needs no further elaboration that to constitute misconduct there must be an element of that which is forbidden and impropriety of conduct in the actions alleged against a person; His actions must be wilful and a transgression of established and definite rule of action or code of conduct. An unintentional error of judgment arising out of a misplaced zeal in performance of duty would certainly not fall within the definition of misconduct.
59. The petitioner has pointed out that on 28th September, 1985, no person of the rank of inspector or above was available at the battalion headquarters for the reason that they were all in a meeting at the DIG office. As per the chargesheet, the petitioner was performing duties as the Headquarters Company Commandant. The inquiry report dated 24th of June, 1986 has found that on 28th September, 1995, the petitioner was the Company Commander, Headquarters Company and that he was supervising the fatigue duties of few personnel. These statements clearly suggest that the petitioner was in fact in the position of authority on 28th September, 1986 and was involved in supervising the personnel when information of the unprovoked and unforeseen happening in the stadium was received by him. There is no dispute at all to this position.
72. The petitioner's sense of integrity and devotion is manifested in his conduct. Despite the turmoil and agitation which the condition of injured Constables Majhi & Das would have incited at the CISF Headquarters amongst the other personnel, the petitioner displayed strong leadership qualities in not only keeping this situation under control but in simultaneously attempting to apprise and take instructions from his superiors. The petitioner's every initiative and move was controlled, measured and sensible. The actions were certainly such which any reasonable or prudent person would undertake and clearly within the functions and duties enjoined on every Government servant under Rule 3 of the Central Civil Service (Conduct) Rules, 1964. 
73. In this background, it cannot be held that the actions of the petitioner tantamounted to misconduct, let alone such misconduct as would invite suspension, disciplinary proceedings and the stringent penalty of dismissal from service which has been imposed upon him. As a result, it has to be held that the entire action and orders against the petitioner were misconceived, in violation of principles of natural justice and illegal.

No comments: