Monday, 5 July 2021

Conduct & Disciplinary Rules - 20 : Article from Mr. K.V.Shridharan

Conduct & Disciplinary Rules - 20 : Article from Mr. K.V.Shridharan


III.  Learn Conduct rules through Judicial judgments

1.    Misconduct of departmental nature

It has been held by the Supreme Court quoting Stround's Judicial Dictionary that 'misconduct' means, misconduct arising from ill motive, acts of negligence; errors of judgment or innocent mistakes do not constitute such misconduct.

2.    What constitutes misconduct of a Government servant

(i)      The conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct.

(ii)     Deficiencies in personal character or personal ability like lack of efficiency, lack of foresight and indecisiveness would not constitute misconduct for the purpose of disciplinary proceedings.

(iii)   Competence for the post, capability to hold the same efficiency requisite for a post, ability to discharge functions attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules.

(iv)   These qualities may be very relevant while considering whether a person should be promoted to the higher post or not or having been promoted, whether he should be retained in the higher post or not or they may be relevant for deciding the competence of the person to hold the post.

(v)     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.

(vi)   Gross or habitual negligence in performance of duty may not involve mens rea, but still constitute misconduct for disciplinary proceedings.

[Union of India and others v. ). Ahmed (1979) SLJ 308 (S.C.); 1979 Lab IC 792; 1979 (2) Lab L.J. 14; 1979. SCC (Lab) 157; 1979(2) SCC 286; AIR 1979 SC 1022.]

3.    What is "misconduct" - Supreme Court's ruling

The word "misconduct” though not capable of precise definition, its reflections 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 behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgement, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality of 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. 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.

[State of Punjab v. Ram Singh, Ex-Constable, ATR 1992 (2) SC; (1992) 21 ATC 43560

Note: The above two SC judgements can be cited in the replies to the charge sheets when warranted. Another important judgment about the charges of violation of rules should not be vague is produced hereunder

4.    Charge of the violation of Rule 3(1) of the Conduct Rules should not be vague

Rule 3 (1) of the CCS (Conduct) Rules is vague and of general nature. It is obligatory on the disciplinary authority to specify and, if necessary, define with precision and accuracy what constitutes a misconduct. Mere violation of a general provision such as contained in Rule 3.(1) does no constitute a misconduct and no penalty can be imposed for such violation. A charge that rests on the general definition of failure to maintain absolute integrity as a public servant may not be amenable to objective evaluation and may, therefore, lead to arbitrary and unfair penalization of the public servant concerned. The impugned officer was charged with not refunding the advance taken for housebuilding and not returning the advance taken for purchasing motorcycle within the stipulated time. He was removed from service after inquiry on the ground that the violation of rules granting house building advance amounted to not maintaining absolute integrity and thus he was found guilty of misconduct. The Supreme Court held that the charge framed against the impugned employee did not independently constitute misconduct and the description of failure to maintain absolute integrity was vague and of a general nature that could not justify the charge of misconduct. Moreover, rules for granting advances themselves provided the consequences of breach of the rules. There was, therefore, no ground for initiating disciplinary enquiry as the breach of the rules did not constitute misconduct.

[ A.L.Kalra v. Project & Equipment Corporation of India Ltd., AIR 1984 S.C. 1361.]


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