S.K. Jasra v. Union of India

15. The issue before this Court is whether the conduct of the petitioner was “unbecoming of a government servant” within the meaning of Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964.

16. The aforementioned conduct of the petitioner was held to be unbecoming of a Government servant and violative of Rule 3(1) (iii) of CCS (Conduct) Rules, 1964. Rule 3 of the CCS (Conduct) Rules, 1964 is reproduced herein under:

18. In S. Govinda Menon v. Union of India AIR 1967 SC 1274 in para 6 of the judgment the apex court has observed that: "In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the Service". The Court relied on the observations made by Lopes, L. J. in Pearce. v. Foster, (1886) 17 QBD 536 at p. 542: "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant."

19. The Hon’ble Supreme Court while interpreting the interplay between the Service Rule and Conduct Rules vide its judgment in Union of India v. J. Ahmed (1979) 2 SCC 286, in paragraphs 9 and 11 held as follows: "9..... The words “act or omission” contemplated by Rule 4 of the Discipline and Appeal Rules have to be understood in the context of the All India Services (Conduct) Rules, 1954 (Conduct Rules for short). The Government has prescribed by Conduct Rules a code of conduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail penalty. Failure to come up to the highest expectations of an officer holding responsible post or lack of aptitude or qualities of leadership would not constitute as failure to maintain devotion to duty. The expression “devotion to duty” appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If Rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But Rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can be safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct..........

11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under: Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik in the absence of standing orders governing the employee’s undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationery train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd.8)...."

20. In Madho Singh Daulat Singh v. State of Bombay AIR 1960 Bom 285, a Division Bench of the Hon’ble Bombay High Court held that in order to enable an employer to take disciplinary action against his servant it is not a condition precedent that the misconduct on the part of the servant must arise within his employment and not outside his employment. The relevant paras of the said judgment are as under: “The ratio deducible then is that in order to enable a master to take disciplinary action against his servant it is not a condition precedent that the misconduct on the part of the servant must arise within his employment and not outside his employment. The test in each case will be whether the servant himself in a way inconsistent with the faithful discharge of his obligations undertaken by him either expressly or impliedly in accepting the service. The inconsistency may arise on account of any act of the servant, wither in the course of his employment or outside it, which injures or has the tendency to injure his master's business or interests or reputation. There is no reason why this principle should not apply to public servants. There is however one very material difference between the two and that must be kept in view. In case of a private servant it is the master who in his own discretion decides the question of the disciplinary action to be taken against his servant. In the case of a public servant it is not the master but certain officers of the same master who decide this question but their powers in that respect are regulated by the Act or rules framed thereunder. In the instant case, as we have already shown, it was expected of the petitioner, being a police officer, to behave with civility and courteousness with a member of the public even in his private life. It has been found that he has very rudely behaved with Shri Desai. There is no doubt that the petitioner has conducted himself in a way inconsistent with the faithful discharge of his service inasmuch as he acted contrary to the discipline prescribed for a police officer in clause (11) of Regulation 64. Such a conduct is likely to bring disrepute to the police force. He has therefore exposed himself to a disciplinary action.”

21. On the scope of power of the department to take action, the Supreme Court in Union of India v. K.K. Dhawan (1993) 2 SCC 56, had observed in paragraphs 28 and 29 as follows: "28......But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:

(i) and (ii) omitted

(iii) if he has acted in a manner which is unbecoming of a

(iv) to (vi) omitted.

29. The instances above catalogued are not exhaustive......"

22. Apropos the question of there being a nexus, in the facts of the present case the present petitioner who was a senior officer, being in a dominating position misused and abused his said position by offering to help a group ‘D’ employee, i.e. a peon, who was a widow and therefore did not have adequate support of her husband, with the ulterior motive of seeking sexual gratification from the daughter and daughter-in-law of the employee i.e. Mrs. Nirmala Devi. The fact that Mrs. Nirmala Devi was working in the same office premises and that she had sought help of the petitioner for her daughter, indubitably establishes the nexus between the improper conduct of the petitioner with his official position thereby making him liable to penalty under the relevant service rules. Government servants should at all times be epitomes of high moral values and should have utmost rectitude and should by no means misconduct themselves or indulge in any act which is “unbecoming of a government servant”. The mere fact that the act was not committed in the course of the discharge of his duties as a government servant doesn’t help the petitioner evade the fact that such conduct was subversive of discipline and harmful to the public interest; and that the conduct was wholly unbecoming of a Government servant.

23. The learned counsel for the petitioner contended that he cannot be subjected to any penalty in pursuance of the Departmental inquiry as the alleged conduct was not done in the course of his official duty as a government servant. To support his contention, the petitioner relied upon the decision rendered by the Kerala High Court in the case titled as Krishnankutty v. Senior Superintendent Post Office, (supra), wherein the Hon’ble Kerala High Court made the following observations: “A conduct not in the course of employment cannot be a misconduct. Similarly, a conduct which is not a misconduct as per the conduct rules also cannot be the subject matter of disciplinary action against a Government servant. In that case, the conviction on a criminal charge for a conduct which is not a misconduct as per the conduct rules cannot be a reason for taking action against a Government servant under Rule 19(i) of the Rules. A domestic quarrel which has nothing to do with the employment of the Government servant cannot be a misconduct. Moreover, if the same occurs at a place far away from the place of employment, that cannot in any way be made the subject-matter of a disciplinary action against the Government servant. In this case, a scuffle between the petitioner-Government servant and his step-brother at the place where they live resulted in the criminal charge and the conviction thereon. If the conduct of the petitioner cannot be the subject-matter for taking disciplinary action against him under Rules 14 to 18 of the Rules, the mere fact that he was convicted on a criminal charge on the ground of that conduct cannot be a reason for invoking Rule 19(i) of the Rules.” (Emphasis Supplied).

24. Unfortunately, the aforementioned case cannot be of any aid to the petitioner. In Krishnankutty’s case (Supra) the employee was involved in some domestic quarrels with his step-brother which was a personal matter of the employee. The present case is distinguishable from the aforementioned case in so far as the present petitioner who was a senior officer, allegedly abused his dominating position by offering to help a group ‘D’ employee, i.e. a peon, who was a widow and therefore did not have adequate support of her husband, with the ulterior motive of seeking sexual gratification from the daughter and daughter-in-law of the employee i.e. Mrs. Nirmala Devi. The fact that Mrs. Nirmala Devi was working in the same office premises indisputably establishes the nexus between the alleged improper conduct of the petitioner with his official duties thereby making him liable to penalty under the relevant service rules.

25. Likewise, petitioner’s reliance on judgment rendered by a single judge bench of the Hon’ble High Court of Andhra Pradesh in the case of N.H. Lamani v. Central Govt., Ministry of Railways and Ors., (supra), to assert his contention, that there is no justification to inquire into the allegations which are totally unconnected with service conditions or nature of service, is misplaced. The relevant para of the judgment is reproduced herein under:

The conduct of a government servant whereby he indulges in improper conduct with the female family members of his support staff cannot, by any stretch of imagination, be held to be “totally unconnected with the service or the "nature of service”.

26. The petitioner had further relied upon the decision rendered by the Hon’ble High Court of Gujarat in Bodu Tarmamad vs. Dt. Supdt. Of Police, Jamnagar and Anr., (supra). The judgment rendered by a Single Judge bench of the Hon’ble Gujarat High Court endeavours to define the term “unbecoming” albeit under the Gujarat Civil Service (Conduct) Rules, 1971. The relevant part of the judgment is extracted herein under:

28. We need not go into the details of evidence as that is not required of us sitting in this jurisdiction under Article 226 of the Constitution of India. We are not required to re-examine the evidence to find out as to whether the conclusion arrived at by the disciplinary authority or by the appellate authority is right or wrong. We are only required to examine as to whether the correct procedure has been followed and the principles of natural justice have been applied. It is a settled legal position that the Courts shall generally not look into the evidence against the charged officer to affirm whether the punishment is proportional to the misconduct of the officer. In Union of India (UOI) v. P. Gunasekaran, AIR 2015 SC 545, The Hon’ble Supreme Court made the following observations: “The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience. In the case of State of Andhra Pradesh and Ors. v. Sree Rama Rao, AIR 1963 SC 1723, the Hon’ble Supreme Court made the following observations: “The High Court is not constituted in a proceeding under Art. 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or; where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art. 226 of the Constitution”.

29. Before we rest the case, we would like to bring to the fore and disparage the conduct of officers who hold high positions and abuse and misuse the power that flows from such authority, with impunity. In the words of the great American President, Abraham Lincoln- “Nearly all men can stand adversity, but if you want to test a man’s character, give him power”. In the instant case, the complainant-a widow being distraught sought help for her daughter, who was estranged from her husband. The petitioner on the pretext of offering her a helping hand not only shattered the trust of the person (Director, PP&R) who had reposed faith in him and bestowed him with the task of helping the Complainant, but misused the dominant position that he was holding, courtesy his being a senior officer at the place where the complainant was working. He misbehaved with the daughter and daughter-in-law of the complainant in a sexually inappropriate manner. This abuse of dominant position by the petitioner outrightly reveals the nexus between the improper conduct of the petitioner with his official duties.

30. This is not a case of sexual harassment of a woman at workplace, but it is a clear case of misconduct or of a conduct that was ‘unbecoming of a government servant’ as stipulated under Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964. People with upright moral values and integrity should only make way into public service and not those, who are beasts in disguise. A public servant should at all times, be it in a professional setup or otherwise conduct himself in a manner that is not subversive to discipline.

31. In view of the above observations, we find no infirmity with the order of the learned tribunal dated 10.09.2013 passed in O.A being NO. 3577/2012 and the same is upheld.

32. The present Writ Petition is dismissed with cost of Rs. 50,000/- to be paid by the petitioner to the complainant within a period of four weeks from today. The proof of deposit of cost shall be filed by the petitioner, in compliance of this order, with the Registrar General of this Court and for this purpose only, the matter shall be listed before the Registrar General on 08.09.15 for compliance of this order. It is ordered accordingly.

(KAILASH GAMBHIR) JUDGE (I.S.MEHTA)

JUDGE MAY 28, 2015 v