Umesh Mishra v. State of Chhattisgarh

This writ petition is directed against the charge- sheet dated 15.7.2016 (Annexure P-1) by which the petitioner has been subjected to departmental enquiry by serving charge-sheet 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.

The aforesaid challenge has been made on the following factual backdrop:- 2

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 charge- sheet 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 charge-sheet 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 charge-sheet 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 charge- sheet 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 3 issuance of charge-sheet vide Annexure P-1 is absolutely illegal, without jurisdiction and without authority of law.

Return has been filed by the respondents/State opposing the averments made in the writ petition stating inter-alia that charge-sheet issued clearly shows that the petitioner has misused his position and he is guilty of breach of sub-rule (1) of Rule 3 of the Rules 1965 read with Regulation 64 of the Police Regulations and as such, he has rightly been charge-

sheeted and the writ petition as framed and filed is pre-mature. 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.

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.

Mr.Ajay Shrivastava, learned counsel for the petitioner, would submit that taking the allegation of the charge-sheet 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 4 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 another1 and the judgment of the Madhya Pradesh High Court in the matter of Kuppili Mohan Rao v. Managing Director, F.C.I. and others2 to support his submission.

On the other hand, Mr.Anshuman Shrivastava, learned Panel Lawyer for the respondents/State, would support the institution of departmental proceeding and issuance of charge-sheet against the petitioner stating inter-alia 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 charge-sheet has been issued in that proceeding, which is strictly in accordance in law and the writ petition as framed and filed is pre-mature. The petitioner is at liberty to join departmental 1 AIR 1985 SC 504 2 1998(1) JLJ 97 5 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.

I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. Departmental proceeding has been instituted and charge-sheet has been issued against the petitioner vide Annexure P-1 on 15.7.2016. Charge-sheet has been issued against the petitioner on the following charges:- %% vkjksi %% vkosnd vkfnR; ukenso ls NyiqoZd /kks[kk/kMh dj fdlh vU; dh Hkwfe dk vius iq= ds uke gksuk crkdj fodz; dj vuqfpr ykHk vftZr dj lafnX/k vkpj.k iznf'kZr dj e-iz-@N-x- flfoy lsok vkpj.k fu;e 1965 ds fu;e&03 dh dafMdk ¼,d½ ,oa iqfyl jsxqys'ku ds iSjk&64 ¼lsok dh lkekU; 'krsZ½ dh dafMdk& ¼02½ mYya?ku djukA lgh@& ¼vejs'k feJk½ iqfyl v/kh{kd] nqxZ ¼NRrhlx<+½ fnukad 15@07@2016

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 6 Police Regulations.

At this stage, it would be appropriate to notice Rule 3(1) of the Rules of 1965 which states as under:- “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.”

Rule 22-A of the Rules of 1965 provides general concept of misconduct which states as under:-

22-A. 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.

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 (2) He shall faithfully and honestly use his best abilities to fulfil all his duties as a police officer. (3) to (12) xxx xxx.

A conjoint reading of Rules 3(1) and 22-A of the Rules of 1965 would show that any act or omission in breach 7 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

“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 office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. "

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 8 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 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 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....". (emphasis supplied) (See also State of Punjab v. Ram Singh3).

Mere error of judgment resulting in doing of negligent act does not amount to misconduct. However, in exceptional circumstances, not working diligently may 3 (1992) 4 SCC 54 9 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 office-bearer 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 Authority-cum- Regl. Manager v. Nikunja Bihari Patnaik4, Govt. of T.N. v. K.N. Ramamurthy5, Inspector Prem Chand v. Govt. of NCT of Delhi6 and SBI v. S.N.Goyal7.)

In Govt. of A.P. v. P. Posetty8, 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.

The Supreme Court in the matter of Ravi Yashwant Bhoir v. District Collector, Raigad and others9 noticed the above-stated definition of misconduct and held as under:- “The expression “misconduct” has to be