Madhya Pradesh High Court
Ramsevak Sharma vs Secretary The State Of Madhya Pradesh on 30 August, 2010
Author: Sanjay Yadav
Bench: Sanjay Yadav
HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Petition No. 10841/2010 (S)
Ramsevak Sharma
Vs.
State of M.P. & ors
PRESENT : HON'BLE SHRI JUSTICE SANJAY YADAV
Counsel for Petitioner Shri J.N. Tripathi, Advocate.
ORDER
(30.8.2010) PER SANJAY YADAV, J Petitioner seeks quashment of charge-sheet dated 28.7.2010 on the ground that in respect of the charges, the petitioner is subjected to criminal prosecution.
2. The petitioner while posted as Head Constable P.S. Piplani was subjected to a criminal prosecution vide Crime No. 16/2010 for an offence under Section 7 (b), 13 (1) (d), 13 (2) of the Prevention of Corruption Act, 1988.
3. Simultaneously, petitioner is served with a charge sheet on 28.7.2010 wherein following charges are leveled against the petitioner.
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4. It is the contention of the petitioner that he would be exposed of his defence if the departmental proceedings are not stayed and the charge sheet which contain some charges as in Crime No. 16/2010 is not quashed.
5. Considered the submissions put-forth by learned counsel for the petitioner.
6. Indisputably, the petitioner is a member of disciplined force and the charges which are leveled against the petitioner, prima facie, can by no stretch of imagination be construed to be a conduct congenial of a Member of a disciplined force. The question, however, is what was displayed by the petitioner as alleged would tantamount to misconduct when the petitioner is admittedly charged of violation of Rule 3 (1) (iii) of Conduct Rules, 1965. Rule 3 of the Rules stipulates:
"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.
(2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority.
(ii) No Government servant shall, in the performance of his official duties or in the exercise of the powers conferred on him, act otherwise than in his best judgment except that when he is acting under the direction of his official superior and shall, where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not 3 W.P. No.10841/2010 (s) practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible.
Explanation.- Nothing in clause (ii) of sub-rule (2) shall be construed as empowering the Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions, are not necessary under the scheme of distribution of powers and responsibilities.
7. In Union of India v. Ram Kishan (AIR 1971 SC 1403) it was observed by their Lordships:
8. It was contended before us that the first part of Rule 16.38 does not apply because the plaintiff went to the scene of occurrence without any uniform and that the question of commission of a criminal offence by a police officer in connection with his official relations with the public can only arise if he commits the offence when he is in a uniform. It was further urged that before an offence can be said to have been committed by a police officer it must be not in exercise of purported authority but real authority. We are unable to see any force in these contentions. On the facts of this case it is quite clear that the plaintiff was purporting to exercise authority of a police officer and even if he was in plain clothes it does not mean that he was not purporting to act as a police officer.
8. In the State of Punjab v. Ram Singh Ex Constable (AIR 1992 SC 2188), it was held by their Lordships.
5. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive its connotation from the context, the delinquecy in lts 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 oi 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 4 W.P. No.10841/2010 (s) 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.
9. In State of Rajasthan v. B. K. Meena and others (AIR 1997 SC 13) while dwelling upon the similar issue as the present one, it was observed by their Lordships that:
"17. ..... ..... ..... ..... .... The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."
10. In Baldev Singh Gandhi v. State of Punjab (2002) 3 SCC 667 their Lordships were pleased to hold:
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 behaviour, 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.
5 W.P. No.10841/2010 (s)11. In M.M. Malhotra v. Union of India (2005) 8 SCC 351, their Lordships while dealing with the conduct of the persons belonging to a disciplined force were pleased to observe:
16. 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 government servants (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.
17. 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.
21. "Misconduct" as stated in Batt's Law of Master and Servant (4th Edn. at p. 63) "comprised positive acts and not mere neglects or failures". The definition of the word as given in Ballentine's Law Dictionary (148th Edn.) 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."
22. It may be generally stated that the conduct rules of the government and public sector corporations constitute a code of permissible acts and behaviour of their servants.
6 W.P. No.10841/2010 (s)12. In the case at hand the charges leveled against the petitioner certainly exposit, though prima facie a Conduct unbecoming of a member of the disciplined force and the same cannot, therefore, be interfered with at the charge sheet level, as has been held by their Lordships the Supreme Court in Union of India and another v.
Kunisetty Satyanarayana [(2006) 12 SCC 28] "13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Boar v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghose (2004) 3 SCC 440, Ulagappa v. Divisional Commr. Mysore, State of UP v. Brahm Datt Sharma (1987) 2 SCC
179), etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show- cause notice does not give rise to any cause of action, because it does not amount to an adverse order which effects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge- sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
7 W.P. No.10841/2010 (s)16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
13. Since no exceptional circumstances shown to exist in the case at hand no interference is called for.
14. In Uttaranchal Road Transport Corporation and others v.
Mansaram Nainwal (2006) 6 SCC 366 it was observed by their Lordships:
"11.The ratio of Anthony's case (supra) can be culled out from paragraph 22 of the judgment which reads as follows :
"22.The conclusions which are deducible from various decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be 8 W.P. No.10841/2010 (s) given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
15. In view of above no case for interference is made out.
16. In the result petition fails and is hereby dismissed.
17. It is, however, made clear that this Court has not expressed any opinion on the merit of the charges and the disciplinary authority shall conduct the enquiry without being influenced by the observations herein above.
(SANJAY YADAV) JUDGE Vivek Tripathi