- (1.) HEARD learned counsel for the petitioner and the learned standing counsel. Instant writ petition under Article 226 of the Constitution of India, has been preferred against the impugned order dated 28.3.2008 initiating disciplinary proceeding against the petitioner broadly on the ground that he has approached High Court against the order of transfer passed by the State Government as an interim management. According to petitioner's counsel, the controversy is covered by the basic structure doctrine and the petitioner's right to approach the Court for justice cannot be treated adversely by the Government.
(2.) BY an order dated 29.6.2007, the petitioner was transferred from Bareilly to Lucknow. In consequence thereof, he submitted his joining report on 7.7.2007. The order of transfer was modified by another transfer order dated 31.7.2007 which was the subject matter of dispute before this Court in Writ Petition No. 977 (S/B) of 2007. A Division Bench of this Court had stayed the order of transfer dated 31.7.2007 to the extent it related to the petitioner. In consequence thereof, the petitioner continued at Lucknow.
(3.) IT appears that the State Government was not pleased with the petitioner who had exercised his constitutional right in preferring the writ petition in High Court. In consequence thereof, the impugned chargesheet dated 28.3.2008 was served on the petitioner. He filed objection dated 3.5.2008 claiming his constitutional right of approaching High Court for judicial review of the order passed by the State Government. The copy of the impugned chargesheet dated 28.3.2008 is filed as Annexure No. 1 to the writ petition. Reply to the chargesheet has been filed as Annexure No. 3 to the writ petition. The Division Bench of this Court, after considering factual matrix on record, stayed the disciplinary proceeding against the petitioner by an order dated 19.8.2008. Petitioner's counsel has invited attention to the Division Bench judgment of this Court reported in [2010 (28) LCD 1248] : (2010 (5) ALJ (NOC) 680) Dhirendra Kumar Rai v. State of U.P. and others. In the case of Dhirendra Kumar Rai (supra), the Division Bench (judgment delivered by one of us Hon'ble Mr. Justice Devi Prasad Singh), while considering the controversy with regard to disciplinary proceeding, had considered and defined the misconduct. The relevant portion of the said judgment is reproduced as under: - - 79. House of Lord in the case of Johnson v. Marshall, Sons and Co. Ltd. reported in, (1906) AC 409 (HL) where the issue was whether the workmen was guilty of serious and wilful misconduct their Lordships held that burden of proving guilt was on employer. Misconduct is reduced to the breach of rule, from which breach injuries actionable or otherwise could reasonably be anticipated is dependent upon each case. 80. In the case of Rasik Lal Vaghaji Bhai Patel v. Ahmedabad Municipal Corporation reported in : (1985) 2 SCC 35, (Para 5): (AIR 1985 SC 504) Hon'ble Supreme Court has held that unless either in the certified standing order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and would not be comprehended in any of the enumerated misconduct. 81. In the case of Union of India v. J. Ahmed : (1979) 2 SCC 286 : (AIR 1979 SC 1022), Hon'ble Supreme Court has held that, deficiency in personal character or personal ability do not constitute misconduct for taking disciplinary proceedings. 82. In the case of A.L. Kalara v. Project and Equipment Corporation (1984) 3 SCC 316 : (AIR 1984 SC 1361) Hon'ble Supreme Court has held that acts of misconduct must be precisely and specifically stated in rules or standing orders and can not be left to be interpreted ex -post facto by the management. 83. The case of Rasik Lal Vaghaji Bhai Patel v. Ahmedabad Municipal Corporation, : (1985) 2 SCC 35 : (AIR 1985 SC 504), the apex court has held that it is well settled that unless either in the certified standing order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and would not be comprehended in any of the enumerated misconduct. (Para 5) 84. In the case of State of Punjab v. Ex -Constable Ram Singh : (1992) 4 SCC 54: (AIR 1992 SC 2188), Hon'ble Supreme Court held that the word misconduct though not capable of precise definition as reflection receives its connotation from the context, the delinquency in its effect on the discipline and the nature of 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 context where in the terms occur; regard being had to the scope of the statute and public purpose it seeks to serve. 85. In the case of G.M. Appellate Authority, Bank of India v. Mohd. Nizamuddin : (2006) 7 SCC 410 : (AIR 2006 SC 3290) Hon'ble Supreme Court has held that, it is well settled law that gravity of misconduct has to be measured in terms of the nature of misconduct. (Para 9) 86. In Black's Law Dictionary Seventh Edition, the word, "mis -conduct" has been defined as under: misconduct 1. A dereliction of duty; unlawful or improper behavior. Affirmative misconduct. 1. An affirmative act of misrepresentation or concealment of a material fact; intentional wrongful behavior. Official misconduct. A public officer's corrupt violation of assigned duties by malfeasance, misfeasance, or nonfeasance. Also termed misconduct in office; misbehavior in office; misconduct in office; misdemeanor in office; corruption in office; official corruption." "Wanton misconduct. An act, or a failure to act when there is a duty to do so, in reckless disregard of another's rights, coupled with the knowledge that injury will probably result -Also termed wanton and reckless mis -conduct. Wilful misconduct. Misconduct committed voluntarily and intentionally. "This term of art [wilful misconduct] has defied definition, but it is clear that it means something more than negligence. Two classic examples of misconduct which will defeat the seaman's claim are intoxication and venereal disease." Frank L. Maraist, Admiralty in a Nutshell 185 -86 (3 ed. 1996). 87. In Law Lexicon by P. Ramanatha Aiyar, misconduct has been defined as under: Misconduct. 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 behaviour, its synonyms are mis -demeanor, misdeed, misbehavior. Delinquency, impropriety, mismanagement, offences, but not negligence or carelessness. Term "misconduct" when applied to act of attorney, implies dishonest act or attempt to persuade court or jury by use of deceptive or reprehensible methods. People v. Sigal,, 249 CA 2D 299, 57 Cal Rptr. 541, 549. Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces wilful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Walson v. Brown, La. App., 147 So. 2D 27, 29 (Black). 88. Various meanings have been given of word, "misconduct" in the celebrated book, "Words and Phrases" published by West Publishing Company. The definition of mis -conduct in reference to present context is reproduced as under: The term "misconduct" implies a wrongful intention, and not a mere error of judgment. Smith v. Cutler, N. Y., 10 Wend. 590, 25 Am.Dec. 580; U.S. v. Warner, 28 Fed. Cas. 404. Word "misconduct" has several different meanings; it is bad behavior, improper conduct, mismanagement; wrong behavior, wrong conduct; any improper or wrong conduct; in usual parlance, a transgression of some established and definite rule of action, where no discretion is left; except what necessity may demand; it does not necessarily imply corruption or criminal intention, but implies wrongful intention, and not mere error of judgment. Boynton Cab Co. v. Neubeck, 296 N. W. 636, 639, 237 Wis. 249. 89. Thus from the dictionary meaning, the word, "mis -conduct" implies wrongful intention and not mere error of judgment or bona fide error of judgment on the part of Government servant. 90. In a case, reported in State of Punjab v. Ex -Constable Ram Singh : (1992) 4 SCC 54 : (AIR 1992 SC 2188), their Lordships of Hon'ble Supreme Court have interpreted the word, "misconduct". To reproduce relevant portion from the judgment of Ram Singh (supra), to quote; 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. 91. In another judgment, reported in : AIR 2002 SC 1124 Baldev Singh Gandhi v. State of Punjab, their Lordships of Hon'ble Supreme Court had occasion to define the word, "misconduct" which is reproduced as under: Misconduct has not been defined in the Act. The word "misconduct" is antithesis of the word "conduct". Ordinarily the expression "misconduct" means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. Since there are different meanings of that expression, the same has to be construed with reference to the subject and the context wherein it occurs. Regard has to be paid to the aims and objects of the statute. 92. In a case reported in : AIR 1979 SC 1022, Union of India v. J. Ahmed, their Lordship of Hon'ble Supreme Court held that failure to take any effective preventive measures like error in judgment in evaluating developing situation or failure to visit the scenes of disturbance to perform duty in certain manner are shortcomings in the personal capacity or degree of efficiency. Such allegation of personal quality could not constitute misconduct for the purpose of disciplinary proceedings. To reproduce relevant portion from the judgment of J. Ahmed (supra), which is as under: - - 11. 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 513 and allows the enemy to slip through, there are other more familiar instances of which a railway cabin -man signals in a train on the same track where there is a stationary train causing headlong 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 Co -op. Department Stores Ltd. (1)]. 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. 13. ...It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. There may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. 93. The ratio of J. Ahmed (supra) in case taken into consideration then the facts and circumstances and the material on record do not constitute misconduct as the allegation relating to petitioner is lack of leadership qualities though that too seems to be not correct keeping in view the facts and circumstances of the case. ;