Delhi High Court
Poonam Sharma vs Union Of India & Ors on 23 March, 2011
Author: J.R. Midha
Bench: Gita Mittal, J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C)No.3837/1990
%
Pronounced on: 23rd March, 2011
POONAM SHARMA ..... Petitioner
Through : Mr.K.B. Rohatgi,
Mr. Mahesh Kasana, and
Ms. Aparna Rohatgi Jain, Advs.
versus
UNION OF INDIA & ORS ..... Respondents
Through : Mr. Khalid Arshad, Adv.
for Mr. Neeraj Choudhary,
Standing Counsel.
CORAM :-
THE HON'BLE MS. JUSTICE GITA MITTAL
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
J.R. Midha, J.
1. The petitioner has assailed an order dated 17th April, 1990 whereby she has been removed from service after a departmental enquiry and the appellate order dated 3rd August 1990 whereby her appeal against the removal order has been dismissed. The petitioner has also sought consequential relief of reinstatement in service with consequential benefits.
2. The admitted facts of this case are as under:-
2.1 The petitioner joined Central Reserve Police Force ('CRPF' hereinafter) as Mahila Sub-Inspector in 1986.WP(C)No.3837/1990 Page 1 of 26
2.2 In October, 1987, the petitioner sought permission from the department to appear in the Combined States Service Examination, 1987 which was granted by the competent authority on 14th October, 1987.
2.3 The petitioner applied and was granted one day casual leave for 8th February, 1988 to appear in the aforesaid examination.
2.4 On 8th February, 1988, Kumari Mamta Sabharwal, reportedly a friend and neighbour of the petitioner, was caught impersonating the petitioner and writing her answer sheet in the examination at the Victoria Intermediate College, Agra by the invigilators. Kumari Mamta Sabharwal gave a handwritten statement dated 8th February, 1988 to the supervisor, admitting that she was impersonating as the petitioner and thereby defrauding the examination authorities on the request/advice of the petitioner.
2.5 On 10th April, 1989, the Directorate General, CRPF issued a memorandum to the petitioner proposing to hold an inquiry against the petitioner for misconduct in respect of the following charge:-
"ARTICLE-I "That No.860881303 Mahila Sub-Inspector Poonam Sharma while posted as Mahila Sub- Inspector in 88(Mahila) Bn., CRPF during the period February, 1988 committed an act of misconduct as a member of the Force in that she connived with Kumari Mamta Sabharwal D/o Shri B.M. Sabharwal resident of No.4, Old Idgah Colony, Agra with dishonest intention and persuaded the latter viz. Kumari Mamta Sabharwal to appear in an examination (Subject WP(C)No.3837/1990 Page 2 of 26
- Economics) on 8.2.1988 at Agra in the UP Public Service Commission, Combined State Service Examination, 1987, impersonating as Sub-Inspector Poonam Sharma. Consequently, said Kumari M. Sabharwal did impersonate said Poonam Sharma in the said examination and was caught. Thus, said Mahila Sub-Inspector Poonam Sharma committed an act of misconduct violative of Section 11(1) of the CRPF Act, 1949."
2.6 The statement of charge attached to the memorandum stated as under:-
"STATEMENT OF IMPUTATION OF MISCONDUCT IN SUPPORT OF THE ARTICLES OF CHARGE FRAMED AGAINST No.860881303 MAHILA SUB-INSPECTOR POONAM SHARMA OF 88 (MAHILA) BN.
CRPF NEW DELHI - 110072 ARTCLE-I No.860881303 Mahila Sub-Inspector Poonam Sharma of 88 (Mahila) Bn. Vide her application dated Nil, October, 1987 had sought a „No Objection Certificate‟ permitting her to appear in the UP Public Service Commission, Combined State Services Examination-1987 scheduled to be held during January/February, 1988. The „No Objection Certificate‟ was issued by the competent Authority i.e. the range DIG on 14.10.1987. Sub-Inspector Poonam Sharma was required to take the examination in eight subjects. On 6.2.1988, the said Sub-Inspector (Mahila) Poonam Sharma applied and obtained 1 day‟s Casual Leave for 8.2.1988 with permission to suffix 7.2.88 being Sunday. This was to enable her to appear in the examination in the Economics paper. On 8.2.88, Kumari Mamta Sabharwal D/O Shri B.M. Sabharwal, reportedly a friend and neighbour of Mahila SI Poonam Sharma, was caught impersonating Mahila SI Poonam Sharma and writing the answer sheet (paper on Economics) at Victoria Intermediate College, Agra, the Examination Centre, by the invigilators/supervisors and the Principal of that college. Kumari Mamta Sabharwal in her own statement dated 8.2.88 given in writing to the supervisor, P.C.S. Examination, 1987, Victoria Intermediate College, Agra has admitted that she WP(C)No.3837/1990 Page 3 of 26 was impersonating as Mahila SI Poonam Sharma and thereby defrauding the examination authorities on the request/advise of Mahila SI Poonam Sharma. The said Mahila SI Poonam in her application dated 23.9.88 has falsely stated that she appeared in all subjects of the examination. Thus she connived with Kumari Mamta Sabharwal D/O Shri B.M. Sabharwal with dishonest intention and cheated the examination authorities, thereby committing an act of misconduct in her capacity as a member of the Force punishable under Section 11(1) of CRPF Act, 1949; read with Rule-27 of CRPF Rules, 1955."
2.7 On 22nd May, 1989, Shri Raghubir Singh, Assistant Commandant was appointed as Inquiring Authority to inquire into the charges framed against the petitioner. 2.8 The petitioner pleaded not guilty. On 28th July, 1989, seven witnesses were examined before the Inquiring Authority. The Invigilator posted at Victoria Intermediate College on 8th February, 1988 deposed that upon checking the form of the petitioner and tallying the photograph, he found that the photograph pasted on the form was not tallying with the actual person sitting in the examination hall whereupon he informed the other invigilator, who also checked the photograph. Thereafter Kumari Mamta Sabharwal was taken to the Examination Control. Supervisor at Public Service Examination, Uttar Pradesh who deposed that he received an intimation on 8th February, 1988 at 09:30 hrs that one girl has been caught appearing in the Economics paper for some other candidate whereupon he went to the control room and found that the Invigilators had recorded the statement of Kumari Mamta Sabharwal who was appearing in the examination for the petitioner. Kumari Mamta Sabharwal WP(C)No.3837/1990 Page 4 of 26 confessed that the petitioner was her friend and she had come to appear in place of the petitioner at her instance. The written statement submitted by Kumari Mamta Sabharwal to the Examination Committee was proved in the inquiry. It was further proved that the petitioner wrote her name and other particulars on the answer sheet, she told Mamta Sabharwal to start writing and that she would return to the examination hall in few minutes whereupon Mamta Sabharwal started writing on the answer sheet, she had written only few lines of a question when the invigilators checked the identity cards and interrogated her whereupon she explained the fact that she was not the petitioner and was appearing in the examination on behalf of the petitioner at her instance.
2.9. No evidence was led by the petitioner to rebut the evidence led by the prosecution. However, after the prosecution evidence, the statement of the petitioner was recorded on 8th November, 1989. The petitioner claimed that she herself appeared in the Economics paper of Public Service Commission, Uttar Pradesh on 8th February, 1988 and she does not know any person by the name of Kumari Mamta Sabharwal, she disputed that any such person has appeared on her behalf in the said examination.
2.10. Vide report dated 23rd November, 1989, the Inquiring Authority held that Article-1 of the charge against the petitioner was fully proved. It was further held that it has been conclusively proved that Kumari Mamta Sabharwal was caught red handed WP(C)No.3837/1990 Page 5 of 26 impersonating the petitioner in the examination hall on 8th February, 1988 and she has admitted the same which is supported by the documents on record and the statements of three witnesses who actually caught Kumari Mamta Sabharwal. It was further held that the petitioner has adopted dishonest means with dishonest intention in making Kumari Mamta Sabharwal appear on her behalf in the examination paper with the dishonest intention to qualify the paper/examination. 2.11. On 17th April, 1990, Deputy Inspector General, CRPF ordered the removal of the petitioner from service in exercise of powers conferred under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955. The Disciplinary Authority found that the charge against the petitioner has been proved beyond any doubt; that the petitioner has not produced any witness or document in support of her plea of innocence; that Kumari Mamta Sabharwal was caught in the examination hall and she confessed that she was appearing in the examination on behalf of the petitioner; and the petitioner during cross- examination of the prosecution witnesses as well as her own statement has not been able to come out with any fact or document which could prove her innocence. 2.12 The petitioner filed an appeal against the office order dated 17th April, 1990 before the Inspector General, CRPF which was dismissed vide order dated 3rd August, 1990. 2.13 These orders are assailed before us by way of the present writ petition.
WP(C)No.3837/1990 Page 6 of 26
3. It is submitted by Mr. K.B. Rohatagi, learned counsel for the petitioner that Section 11(1) of the CRPF Act provides for punishment for misconduct in the capacity of a personnel as a member of the force. The main ground of challenge of the petitioner is that at the time of appearing in the Combined State Service Examination, 1987 on 8th February, 1988, the petitioner was not acting in her capacity as a member of the force and, therefore, her conduct does not amount to misconduct under Section 11(1) of CRPF Act, 1949. The learned counsel for the petitioner further submits that the appearance of the petitioner in Combined State Service Examination, 1987 has nothing to do with her discharge of duty under CRPF Act, 1949 and, therefore, Section 11(1) cannot be invoked.
5. Mr. Khalid Arshad, learned counsel for the respondents in reply submits that the petitioner was acting in her capacity as a member of the force at the time of appearing in Combined State Service Examination, 1987 on 8th February, 1988 and, therefore, she has committed misconduct within the meaning of Section 11(1) of the CRPF Act, 1949. It is submitted that a member on leave continues to be a member of the force and the misconduct committed during that period would amount to misconduct as a member of the force within the meaning of Section 11(1) of the CRPF Act, 1949. The learned counsel for the respondents further submits that misconduct under Section 11(1) of the CRPF Act has to be read with Rule 102 of the CRPF Rules, 1955, Rules 3(1) and 23 of the CCS (Conduct) Rules and para 23 of Government of WP(C)No.3837/1990 Page 7 of 26 Indian decisions under CCS(Conduct) Rules and that her conduct would be squarely covered within the meaning of such misconduct which invites disciplinary action.
6. Before examining the rival contentions we may usefully extract the relevant statutory provisions and rules relied upon by the parties.
6.1 Section 11(1) of CRPF Act, 1949 is reproduced hereunder:-
"Section 11. Minor punishments.- (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the force, that is to say:-
(a) reduction in rank;
(b) fine of any amount not exceeding one month‟s pay and allowances;
(c) confinement to quarters, lines or camp for a term not exceeding one month;
(d) confinement in the quarter-guard for not more than twenty-eight days with or without punishment drill or extra guard, fatigue or other duty; and
(e) removal from any office of distinction or special emolument in the Force."
6.2 Rule 102 of the CRPF Rules, 1995 may also be considered in extenso and reads thus:-
"Rule 102 of CRPF Rules.
Other conditions of service.- The conditions of service of members of the Force in respect of matters for which no provision is made in these rules shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status."WP(C)No.3837/1990 Page 8 of 26
6.3 It is important to consider Rule 3(1) and Rule 23 of CCS (Conduct) Rules, 1964 which are as follows:-
"3. GENERAL.-(1) Every Government servant shall at all times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant."
x x x
23. INTERPRETATION.-If any question arises relating to the interpretation of these rules, it shall be referred to the Government whose decision thereon shall be final."
6.4 Mr. Arshad, learned counsel for the respondent has also drawn our attention to Para 23 of Government of India decisions which elucidates as follows:-
"23. Acts and conducts which amount to misconduct.- The act or conduct of a servant may amount to misconduct:-
(1) if the act or conduct is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master:
(2) if the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his mater;
(3) if the act or conduct of a servant makes it unsafe for the employer to retain him in service;
(4) if the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;
(5) if the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;
(6) if the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;WP(C)No.3837/1990 Page 9 of 26
(7) if the servant is abusive or if he disturbs the peace at the place of his employment;
(8) if he is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master an servant;
(9) if the servant is habitually negligent in respect of the duties for which he is engaged;
(10) if the neglect of the servant though insolated, tends to cause serious consequences.
The following acts and omissions amount to misconduct:-
(1) Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.
(2) Infidelity, unfaithfulness, dishonesty, untrustworthiness, theft and fraud or dishonesty in connection with the employer‟s business or property.
(3) Strike, picketing, gherao - Striking work or inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.
(4) Gross moral misconduct - Acts subversive of discipline - Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline.
(5) Riotous and disorderly behavior during and after the factory hours or in business premises.
(6) Habitual late attendance.
(7) Negligence or neglect of work or duty amounting to misconduct - Habitual negligence or neglect of work.
(8) Habitual absence without permission and over-staying leave.
(9) Conviction by a Criminal Court."WP(C)No.3837/1990 Page 10 of 26
7. Learned counsel for the petitioner does not dispute that Rule 102 of CRPF Rules, Rules 3(1) and 23 of CCS (Conduct) Rules and para 23 of Government of India decisions under CCS(Conduct) Rules are applicable to the petitioner and that the respondents could have charged the petitioner for its breach. It is urged that since the respondents have not specifically invoked/charged the said Rules, the petitioner cannot be punished for the breach of the said Rules.
8. Learned counsel for the petitioner refers to and relies upon the judgments in the cases of Ved Prakash Vs. Union of India & Ors., W.P.(C) No.3225/2003 decided on 10th March, 2010; Tara Chand Vs. Union of India & Ors., W.P.(C) No.5552/2000 decided on 27th August, 2002; Galaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court Meerut & Ors., AIR 1984 SC 505; Institute of Chartered Financial Analysts of India & Ors. Vs. Council of the Institute of Chartered Accountants of India & Ors., 2007 (12) SCC 210; and Prahalladpudhi Vs. Secretary, Department of Water Resources & Ors., 107 (1009) CLT 777 to submit that looked at from any angle, the petitioner cannot be found guilty of misconduct.
9. The cases of Tara Chand Vs. Union of India & Ors., W.P.(C) No.5552/2000 and Ved Prakash Vs. Union of India & Ors., W.P.(C) No.3225/2003 relate to dismissal from service for submitting a matriculate certificate granted by an unrecognized institution which was challenged before this Court. WP(C)No.3837/1990 Page 11 of 26 This Court held that no education qualification had been prescribed for the purposes of recruitment and therefore, production of an educational certificate was immaterial to the recruitment and the petitioners had not committed any misconduct. The judgments of Galaxo Laboratories (I) Ltd. (supra) and Institute of Chartered Financial Analysts (supra) deal with the rules of strict interpretation. The case of Prahalladpudhi (supra) relates to a PIL filed by a stranger in a service matter which was dismissed and the court has not given any finding with respect to the scope of misconduct. The aforesaid cases turned on their peculiar facts and render little assistance to the petitioner.
10. Learned counsel for the respondents refers to and relies upon the judgments in the cases of Daya Shankar vs. High Court of Allahabad - 1987(3) SCC 1; State of Punjab vs. Ram Singh - AIR 1992 SC 2188; and M.M. Malhotra vs. Union of India - 2005 (8) SCC 351.
11. The case of Daya Shankar (supra) relates to a member of Uttar Pradesh State Judicial Service who was found using unfair means in the LLM Examination. The Hon‟ble Supreme Court held that the conduct of the petitioner was unworthy of a judicial officer and his dismissal from service was upheld by the Hon‟ble Supreme Court. It was held as under:-
"11. In our opinion the conclusion reached by the Inquiry Officer that the petitioner used unfair means is fully justified. No amount of denial could take him away from the hard facts revealed. The conduct of the petitioner is undoubtedly unworthy of judicial officer. Judicial WP(C)No.3837/1990 Page 12 of 26 Officers cannot have two standards, one in the Court and another outside the Court. They must have only one standard or rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy."
12. In State of Punjab vs. Ram Singh (supra) relates to a gun man who was found heavily drunk and roaming at the bus stand wearing the service revolver and was dismissed on the ground of misconduct. The Hon‟ble Supreme Court held that the police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in service causing serious effect on the maintenance of law and order. The Hon‟ble Supreme Court upheld the dismissal of the petitioner therein. The findings of the court are as under:-
"Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive 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 bahaviour, 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."
13. The case of M.M. Malhotra (supra) relates to a pilot officer with Indian Air Force. A complaint was lodged by his wife WP(C)No.3837/1990 Page 13 of 26 regarding his illicit relations with another woman whereupon the Court of Inquiry was initiated against him and the order of compulsory retirement was passed which was upheld by the High Court. The Hon‟ble Supreme Court held as under:-
"14. The Scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the various punishments which may be imposed for the acts which are inconsistent with such conduct. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which the Government servant (within the meaning of those rules) are to follow whereas the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. The conduct rules and the rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions which elucidate, amplify and provide guidelines regarding the conduct of the employees." "15. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
x x x "19. It may be generally stated that the conduct rules of the Government and public sector corporations constitute a code of permissible acts and behavior of their servants.
WP(C)No.3837/1990 Page 14 of 26The scheme of the Conduct Rules, almost invariably, is to first of all enunciate a general rule of conduct and behavior followed by specific prohibitions and restrictions. For example, Rule 3 of the Central Civil Services (Conduct) Rules, 1964 which occurs under the heading 'General' provides that every Government servant shall at all times:
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant."
14. Coming to the facts of this case, Kumari Mamta Sabharwal has impersonated as the petitioner in the Public Service Examination, Uttar Pradesh 1987 on 8th February, 1988. Kumari Mamta Sabharwal was caught red handed by the invigilators and she admitted in writing before the invigilators and later on also appeared in the witness box before the Inquiring Authority and confessed that she impersonated as the petitioner on her request.
14.1 Along with their counter affidavit, the respondents have filed the copy of answer sheet as Annexure-A to show that there were two sets of handwritings in the answer sheet which substantiated the charge against the petitioner. 14.2 It has been further placed before us that the petitioner was debarred for five years from taking any future examinations with effect from 16th July, 1988 by Public Service Commission, Uttar Pradesh. The petitioner has not challenged this order and this order was duly implemented.
WP(C)No.3837/1990 Page 15 of 26 14.3 For the purposes of the present case, the relevant portion of the said order dated 3rd November, 1990 deserves to be considered and is reproduced hereinbelow:-
"Sub- Disqualifying the candidate from the Combined State Services Exam.1987 and debarring from all the future examinations and recruitments/interviews to be conducted by the Lok Seva Ayog, Uttar Pradesh and also from examinations held prior to this examination and final selection/recommendations still pending.
Sir, I am directed to say that the Uttar Pradesh Public Service Commission have disqualified the following candidate whose particulars are given below from Combined State Service Exam, 1987 and have also debarred from all the future examination recruitments and interviews to be conducted by them and also examinations held prior to this examination and final selection/recommendations still pending. Full particulars of candidates are given below:-
S. Name of Date Qualifi- Father's Last Cause of debarring Period No. the of cations Name known of candidate birth Address debar
1. Km. Poonam 20.5.65 B.A. Sri M.K. Poonam In Combined State Five Sharma Sharma Sharma C/o Services Years Roll Sri M.K. Examination, 1987, w.e.f.
No.24632 Sharma she committed an 16.7.88 172/D1 offence by making Basant Km. Mamta Sabarwal Lane, New to appear in her Delhi place in the first session 28.2.88 at Victoria Inter College Agra Centre, but it was detected by the invigilator and centre Supervisor during checking of candidates with their photographs thus she did not comply with the instructions printed on the Admission Certificates.
14.4 The petitioner has been debarred by Public Service Commission, Uttar Pradesh for five years which order has become final having not been challenged by the petitioner at any stage. This order is premised on the very grounds and facts on which the disciplinary proceedings were conducted against the WP(C)No.3837/1990 Page 16 of 26 petitioner. The order and allegations have not been assailed by the petitioner.
14.5 In this background, we hold that the petitioner has sought to challenge the removal order on a hyper-technical ground that Rule 102 of CRPF Rules, 1955, Rules 3(1) and 23 of CCS(Conduct) Rules and para 23 of the Government of India decisions have not been specifically invoked/charged by the respondents.
15. We find that Section 11 of the CRPF Act, 1949 refers to disobedience, neglect of duty or remissness in the discharge of any duty or `other misconduct‟ in his capacity as a member of the Force.
16. The question which requires to be answered is as to whether the petitioner in these facts could be held as guilty of misconduct and therefore punished. It therefore, becomes necessary to consider the definition of as to what would constitute misconduct. In this regard, reference can be made to the pronouncement of the Division Bench of this court dated 27th August, 2002 in WP (C) No.5552/2000 entitled Tara Chand vs. UOI & Ors. This judgment was also rendered in the context of the CRPF Act. The court noticed that misconduct not having been defined in the CRPF Act must carry its ordinary meaning. The Division Bench placed reliance on several judicial precedents and legal texts and observed as follows :-
"14. In Probodh Kumar Bhowmick vs. University of Calcutta & Ors., 1994 (2) Comp. LJ 456 (Cal) it was observed:WP(C)No.3837/1990 Page 17 of 26
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 WP(C)No.3837/1990 Page 18 of 26 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.
18. In (7) Delhi Cloth and General Mills Co Ltd. v. Its Workmen reported in (1969) 2 LLJ 755 at 772 at Shah, J. states "misconduct spreads over a wide and hazy spectrum of industrial activity; the most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical default covered thereby".
19. To some extent, it is a civil crime, which is visited with civil and pecuniary consequences See (8) Ramakant Mishra v. State of U. P., reported in 1982 Labour & 1C 1790 at 1792.
20. The Supreme Court in (9) State of Punjab and Ors. v. Ram Sing Ex. Constable, AIR 1992 SC 2188 upon which Mr. Mukherjee himself has placed reliance upon held:-
"5. Misconduct has been defined in 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 behaviour, wilful in WP(C)No.3837/1990 Page 19 of 26 character, improper or wrong behaviour, it synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.
Misconduct in offence has been defined as:
"Any unlawful behaviour 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."
21. P. Ramanath 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 WP(C)No.3837/1990 Page 20 of 26 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."
6. This it could be seen that the word 'misconduct' though not capable of precise of definition, on reflection receives its conotation 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......"
15. This aspect of the matter has recently been considered by the Apex Court in Baldev Singh Gandhi vs. State of Punjab & Ors., AIR 2002 SC 1124 in the following terms :
WP(C)No.3837/1990 Page 21 of 26
"9. 'Misconduct' has not been defined in the Act.
The word 'misconduct' is antithesis of the word 'conduct'. Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behavior, misfeasance, wrong conduct, misdemeanour etc. There being different meaning of the expression 'misconduct', we, therefore, have to construe the expression 'misconduct' with reference to the subject and the context wherein the said expression occurs. Regard being had to the aims and objects of the statute......".
17. The meaning of the word misconduct also arose in State of Punjab & Ors. vs. Ram Singh Ex-Constable, AIR 1992 SC 2188 wherein the Hon‟ble Supreme Court considered the meaning of the word misconduct. In this case, the Hon‟ble Supreme Court held that mere error of judgment, carelessness or negligence in performance of duty would stand excluded from the realm of misconduct.
18. In the instant case, the concluded conduct attributed to the petitioner cannot be described as mere negligence in performance of his duty or error or judgment or carelessness.
19. So far as the afore-noticed para 23 of the Government of India decisions is concerned, the same merely sets out some instances of conduct which may amount to misconduct. Section 11 of the CRPF Act, 1949 does not describe or exhaustively enumerate acts which would be covered within the WP(C)No.3837/1990 Page 22 of 26 definition of "misconduct". In this background, the construction of conduct and actions which would be covered within the meaning of expression "other misconduct" in Section 11(1) of the CRPF Act, 1949 would take colour from the actions detailed in Rule 3(1) and 23 of the CCS (Conduct) Rules as well as para 23 of the Government of India decisions. Failure to maintain integrity and honesty in a public examination would be covered within the meaning of expression "other misconduct" as defined under Section 11(1) of the CRPF Act, 1949.
20. Perusal of the record placed before us and the report of the inquiry officer would show that the petitioner had been given a No Objection Certificate by respondents to appear in the UP Public Service Commission. So far as the act of fraud and impersonation is concerned, the respondents have examined Shri R.D. Sharma as PW-4 who was the Principal at the concerned examination centre. In addition, Shri B.S. Paliwal and Shri Mohd. Mansoor Khan were examined as PW-5 and PW-6 who were invigilators and posted at the petitioner‟s examination centre at the Victoria Intermediate College, Agra on 8th February, 1988. All these witnesses had described the dishonest acts attributed to the petitioner and her impersonation by Kumari Mamta Sabharwal, at the Victoria Intermediate College on 8th February, 1988. The impersonator Kumari Mamta Sabharwal also appeared in the witness box as PW-7 and disclosed her association with the petitioner when she deposed that the petitioner‟s father was her neighbour. She had given the details of the manner in which the WP(C)No.3837/1990 Page 23 of 26 impersonation was effected. She had stated that she had visited the examination hall with the petitioner on 8th February, 1988 and that the petitioner had written only her name and particulars in answer sheet in her own writing. Thereafter, she had told Kumari Mamta Sabharwal to start writing and she would return to the examination hall in few minutes. Unfortunately, shortly after PW-7 started writing on the answer sheet, the invigilator had checked the identity card and discovered the impersonation. She had given the details of what had transpired after the same was discovered and had proved the statement which she had given in writing. The petitioner has not been able to assail or cast any doubt over this entire testimony.
21. The petitioner had not ceased to be a member of the force on 8th February, 1988 when she was appearing in the Combined State Service Examination, 1987. The petitioner though not in duty, did not cease to be a member of the force. The petitioner is a member of the disciplined force. It needs no elaboration that integrity and dignity of the service with which she is employed, is required to be observed at all times. The petitioner who was the sub-inspector, was taking the examination as an in service candidate. Causing any person to impersonate the service personnel in an examination with dishonest intention is reprehensible and certainly misconduct of the highest level.
22. In this background, it has to be held that the respondents have authoritatively established the charges against the petitioner.
WP(C)No.3837/1990 Page 24 of 26
23. It is trite that the challenge to the disciplinary ground is on well settled grounds alone.
24. Even if there is some evidence on record, which implicates the petitioner for the offence alleged in the charge sheet, the writ Court would have no jurisdiction to sit as if in appeal over the order of imposition of punishment.
25. No procedural infirmity or illegality has been pointed out. The petitioner does not urge infraction of any rules or procedures or of substantive law. The petitioner also does not contend violation of any of the principles of natural justice. The orders of the disciplinary authorities and the higher authorities are reasoned and reflect application of mind.
26. The challenge is solely premised on the plea that the acts attributed to the petitioner are not relatable to her service. This submission is wholly misplaced. In view of the discussion hereinabove, we find no legally tenable grounds of judicial review.
27. The instant case certainly does not raise any such grounds. The petitioner does not lay a challenge to the proceedings and orders against her on any such grounds.
28. Even it were assumed that there is any technical flaw in the matter, the interference in the writ jurisdiction is not warranted in view of the well settled law that the writ jurisdiction cannot be invoked in favour of a person who has not approached the Court with clean hands having indulged in cheating and impersonation in the examination.
WP(C)No.3837/1990 Page 25 of 26
29. This case is squarely covered by the judgments of the Hon‟ble Supreme Court in the case of Daya Shankar (supra), Ram Singh (supra) and M.M. Malhotra (supra). The CRPF is a disciplined force and it requires to maintain strict discipline. Any laxity in this regard would erode the discipline in the service and cause serious effect in the maintenance of law and order.
30. The petitioner has not approached the court with clean hands. The petitioner connived with Kumari Mamta Sabharwal who impersonated as the petitioner and appeared in Public Service Examination, Uttar Pradesh 1987 on 8th February, 1988 and was caught red handed. The petitioner‟s case is based on falsehood and is liable to be thrown out in terms of the judgments of the Hon‟ble Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. and Ors., AIR 1994 SC 853; State of Tamil Nadu and Anr. vs. R. Sasikumar, AIR 2008 SC 2827; and Hamza Haji vs. State of Kerala and Anr., AIR 2006 SC 3028.
Conclusion In view of the above, we find the challenge by the petitioner wholly misconceived and legally untenable. This writ petition is accordingly dismissed with costs which are assessed to be `25,000/-.
(J.R. MIDHA) JUDGE (GITA MITTAL) JUDGE MARCH 23, 2011 WP(C)No.3837/1990 Page 26 of 26