1. This writ petition is directed against the chargesheet dated 15.7.2016 (Annexure P1) by which the petitioner has been subjected to departmental enquiry by serving chargesheet on the allegation that his conduct is violative of Rule 3(1) of the Chhattisgarh Civil Services (Conduct) Rules, 1965 (hereinafter called as 'Rules of 1965') read with Regulation 64 of the Chhattisgarh Police Regulations.
2. The aforesaid challenge has been made on the following factual backdrop:
2.1 The petitioner is Head Constable working with respondents No.2 and 3. It is his case that his son Pravin Kumar Mishra has sold some land by registered sale deed dated 13.7.2015 to one Aditya Prakash Namdev and some dispute arisen between Aditya Prakash Namdev and his son Pravin Kumar Mishra, pursuant to which, offence under Sections 420 and 120B/34 of the IPC has been registered against his son and others and chargesheet has been filed in the Court of Chief Judicial Magistrate, Durg, which is pending consideration before that Court and the petitioner has also been subjected to that criminal proceeding by aid of Section 120B/34 of the IPC. It is the case of the petitioner that the chargesheet which has now been issued by the respondents by instituting departmental proceedings against him does not show any misconduct in discharge of official duty by him and it is his son who has sold the subject land, admittedly, which appears from the chargesheet issued by respondent No.1 and as such, Rule 3(1) of the Rules of 1965 and Regulation 64 of the Police Regulations are not attracted at all and unless misconduct is said to have been done in discharge of official duty, no chargesheet under Rule 3(1) of the Rules of 1965 read with Regulation 64 of the Police Regulations can be issued by instituting departmental proceeding against him and therefore, institution of departmental enquiry and issuance of chargesheet vide Annexure P1 is absolutely illegal, without jurisdiction and without authority of law.
3. Return has been filed by the respondents/State opposing the averments made in the writ petition stating interalia that chargesheet issued clearly shows that the petitioner has misused his position and he is guilty of breach of subrule (1) of Rule 3 of the Rules 1965 read with Regulation 64 of the Police Regulations and as such, he has rightly been chargesheeted and the writ petition as framed and filed is premature. The petitioner can join the departmental proceedings and file reply and he is at liberty to take defence in departmental proceeding, as such, the writ petition deserves to be dismissed.
4. After filing of return and during the hearing of writ petition, copy of registered sale deed dated 13.7.2015 executed by the petitioner's son namely Pravin Kumar Mishra in favour of Aditya Prakash Narayan alienating the subject land has been brought on record.
5. Mr.Ajay Shrivastava, learned counsel for the petitioner, would submit that taking the allegation of the chargesheet as it is, no case for institution of departmental proceeding is made out against the petitioner and it is his son Pravin Kumar Mishra who has sold the subject land to Aditya Prakash Namdev and as such, no case of misconduct is made out for institution of departmental proceeding and merely because criminal case has been registered against the petitioner also with aid of Section 120B/34 of the IPC, the petitioner cannot be subjected to departmental proceedings. He would rely upon the judgment of the Supreme Court in the matter of Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation and anotherAIR 1985 SC 504and the judgment of the Madhya Pradesh High Court in the matter of Kuppili Mohan Rao v. Managing Director, F.C.I. and others 1998(1) JLJ 97to support his submission.
6. On the other hand, Mr.Anshuman Shrivastava, learned Panel Lawyer for the respondents/State, would support the institution of departmental proceeding and issuance of chargesheet against the petitioner stating interalia that the petitioner has already been subjected to criminal proceeding and it is the case where he has misused his official position, therefore, departmental proceeding has been instituted against him and chargesheet has been issued in that proceeding, which is strictly in accordance in law and the writ petition as framed and filed is premature. The petitioner is at liberty to join departmental proceeding if he wishes to contest the charges on merits, as such, the writ petition as framed and filed is liable to be dismissed as not maintainable.
7. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
8. Departmental proceeding has been instituted and chargesheet has been issued against the petitioner vide Annexure P1 on 15.7.2016. Charge-sheet has been issued against the petitioner on the following charges:
9. A careful perusal of the aforesaid charge would show that the petitioner has sold the subject land claiming that it belongs to his son to complainant Aditya Namdev and thereby committed misconduct under Rule 3(1) of the Rules of 1965 and Regulation 64(2) of the Police Regulations.
10. At this stage, it would be appropriate to notice Rule 3(1) of the Rules of 1965 which states as under:
(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.”
11. Rule 22A of the Rules of 1965 provides general concept of misconduct which states as under:“
22A. General concept of misconduct.Without prejudice to the generality of the concept of misconduct, any act or omission in breach of directions or prohibition enacted in these rules shall amount to misconduct punishable under the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966.”
12. Regulation 64(2) of the Chhattisgarh Police Regulations states as under:
“64. General Condition of Service.Every candidate for an appointment in the police should be made acquainted, prior to appointment, with the general conditions of police service, which are as follows:
(1) xxx xxx xxx
(2) He shall faithfully and honestly use his best abilities to fulfil all his duties as a police officer.
(3) to (12) xxx xxx xxx.”
13. A conjoint reading of Rules 3(1) and 22A of the Rules of 1965 would show that any act or omission in breach of directions or prohibition enacted in these rules shall amount to misconduct punishable under the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 and major or minor penalty can be imposed upon the delinquent Government servant. Regulation 64(2) of the Police Regulations obliges the police officer to use his best abilities while performing his duties as police officer. The word 'misconduct' has not been defined in the Rules of 1965.
14. “Misconduct” has been defined in Black's Law Dictionary, 6th Edn. as:
"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 officeholder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
15. P. Ramanatha Aiyar's Law Lexicon, Reprint Edn.1987 at p. 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 subjectmatter 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 officer, by which the rights of a party have been affected.
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 subjectmatter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve....".
(See also State of Punjab v. Ram Singh (1992) 4 SCC 54).
16. Mere error of judgment resulting in doing of negligent act does not amount to misconduct. However, in exceptional circumstances, not working diligently may be a misconduct. An action which is detrimental to the prestige of the institution may also amount to misconduct. Acting beyond authority may be a misconduct. When the officebearer is expected to act with absolute integrity and honesty in handling the work, any misappropriation, even temporary, of the funds etc. constitutes a serious misconduct, inviting severe punishment. (Vide Disciplinary AuthoritycumRegl. Manager v. Nikunja Bihari Patnaik (1996) 9 SCC 69, Govt. of T.N. v. K.N. Ramamurthy (1997) 7 SCC 101, Inspector Prem Chand v. Govt. of NCT of Delhi (2007) 4 SCC 566and SBI v. S.N.Goyal (2008) 8 SCC 92.)
17. In Govt. of A.P. v. P. Posetty(2000) 2 SCC 220, the Supreme Court held that since acting in derogation to the prestige of the institution/body and placing his present position in any kind of embarrassment may amount to misconduct, for the reason, that such conduct may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an incumbent of the post.
18. The Supreme Court in the matter of Ravi Yashwant Bhoir v. District Collector, Raigad and others(2012) 4 SCC 407noticed the abovestated definition of misconduct and held as under:
“The expression “misconduct” has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful in character. It may be synonymous as misdemeanour in propriety and mismanagement. In a particular case, negligence or carelessness may also be a misconduct for example, when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces.”
19. It was further held in Ravi Yashwant Bhoir (supra) that the expression “misconduct” has to be construed and understood in reference to the subjectmatter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest.
20. In M.M. Malhotra v. Union of India (2005) 8 SCC 351, the Supreme Court explained as under:
"17........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 subjectmatter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
A similar view has been reiterated in Baldev Singh Gandhi v. State of Punjab(2002) 3 SCC 667.
21. Conclusions about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment. (See Union of India v. J. Ahmed(1979) 2 SCC 286.)
22. It is also a settled legal proposition that misconduct must necessarily be measured in terms of the nature of the misconduct and the court must examine as to whether misconduct has been detrimental to the public interest. (Vide Bank of India v. Mohd. Nizamuddin (2006) 7 SCC 410.)
23. The Supreme Court in the matter of Rasiklal Vaghajibhai Patel (supra) 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 punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct.
24. In my considered opinion, the expression “Misconduct” is an expression of wide amplitude. But, in order to justify a disciplinary action by the employer, it must be some conduct contrary or inconsistent with the fulfilment of the express or implied conditions of service. Some nexus of the conduct with service, therefore, must exist to justify a disciplinary action against the delinquent Government servant.
25. However, this Court is not unoblivious of legal position that writ jurisdiction is discretionary jurisdiction and discretion under Article 226 of the Constitution of India shall not ordinarily be exercised by quashing a chargesheet except in some very rare and exceptional case, if it is found to be wholly without jurisdiction or it is wholly illegal. (See Union of India and another v. Kunisetty Satyanarayana (2006) 12 SCC 28.)
26. Reverting to the facts
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of the present case in the light of principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that the subject land has been sold by the petitioner's son Pravin Kumar Mishra to complainant Aditya Prakash Namdev on 13.7.2015 by registered sale deed and on that allegation, some criminal case for offences under Sections 420 and 120B/34 of the IPC has been registered against the petitioner and his son Pravin Kumar Mishra, which is pending consideration before the jurisdictional criminal Court. 27. A careful perusal of the chargesheet issued in departmental proceeding would show that the petitioner has sold the subject land to complainant Aditya Prakash Namdev and he has taken undue advantage by alienating the subject land, whereas copy of sale deed dated 13.7.2015 has been brought on record, which clearly shows that alienation has been made by the petitioner's son Pravin Kumar Mishra in favour of complainant Aditya Prakash Namdev, as such, the alleged sale by the petitioner's son in favour of complainant Aditya Prakash Namdev would not constitute “misconduct” by any stretch of imagination and it cannot be subject matter of disciplinary enquiry by instituting departmental proceedings. Therefore, the chargesheet filed would not fall within any of 'misconduct' read with Rule 3(1) along with Rule 22A of the Rules 1965 and Regulation 64 of the Police Regulations. 28. Accordingly, chargesheet Annexure P1 dated 15.07.2016 issued to the petitioner by respondent No.2 is hereby quashed. 29. The writ petition is allowed to the extent indicated hereinabove. No order as to cost(s).