Full Judgment Text
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CASE NO.:
Appeal (civil) 1815 of 2007
PETITIONER:
Inspector Prem Chand
RESPONDENT:
Govt. of N.C.T. of Delhi and Others
DATE OF JUDGMENT: 05/04/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1815 OF 2007
[Arising out of SLP(C) No.15192 of 2006]
S.B. Sinha, J.
Leave granted.
The appellant was at all material times and still is working with the
Delhi Police. He was posted in Anti-Corruption Branch in 1997. While
posted in the said Branch, he was detailed as a Raid Officer. Allegedly,
the complainant Kamlesh Kumar Gupta s/o Prabhu Dayal Gupta, resident
of Lajwanti Garden, Delhi, lodged a complaint with the Anti-Corruption
Branch of Delhi Police that Preet Pal Bansal, Inspector (Malaria), MCD,
was demanding a sum Rs.3,000/- by way of illegal gratification from him
for not challaning the godown of the complainant (PW-2). The
complainant wanted a raid to be conducted in the said Preet Pal Bansal.
Appellant constituted a raiding party consisting of the complainant
Kamlesh Kumar Gupta (PW-2) and Devender (PW-4) and other police
officers including himself. In the preparation of the said operation, the
complainant produced a sum of Rs.3000/- in denomination of Rs.500/-
each whereupon Phenolphthalein powder was applied and the tainted
money was handed over to the complainant. When the complainant
attempted to pay the said amount to Shri Preet Pal Singh at his godown,
he did not accept the same. The tainted money was, therefore, not seized.
It was allegedly given out by him that the complainant may give the same
to one Devender (PW-4) and he in turn would accept the money from
him. Whereafter, PW-4 sat on the pillion of the scooter and they reached
at the Petrol Pump situate at the Mall Road, Delhi. He was arrested.
However, the tainted money was returned to the complainant by
the Investigating Officer. In the criminal proceedings which was initiated
against Preet Pal Bansal, the Criminal Court recorded a judgment of
acquittal holding :
"\005These inconsistencies in respect of place of return of
tainted money to the complainant raises speculation if at
all the money was returned to PW-2 by PW-4 or the
same was handed over to him as claimed. Thus,
different versions with regard to talks in the godown
and place with regard to return of the money by PW-4
to PW-2 coupled with the fact that the accused did not
accept the bribe money either from PW-2 or PW-4 sans
requisite corroboration as to the testimony of PW-2
complainant in respect of the prior demand of the bribe
money and with regard to demand of money by the
accused from PW-4 at the time of petrol pump and that
the accused had already challaned the complainant
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previously on 2/3 occasions cast shadow of doubt on the
veracity of the testimony of PW-2, PW-4 and PW-5 and
creates doubt about the claim of the prosecution that the
accused ever demanded the bribe from the complainant.
The possibility of P-2 having grudge against the
accused on account of having challaned the complainant
for 2/3 occasions in respect of his godown and got him
fined which fact is not disputed, cannot be ruled out. In
my opinion, it would not be expedient to act, accept or
rely upon the testimony of PW-2 and PW-4. In addition
to this, it is also possible that the mind of PW-4 was not
free from at the time of deposing in the court due to fear
of departmental enquiry."
During pendency of the said criminal proceedings, however, a
departmental proceedings was initiated against the appellant on or about
19.2.2002 wherein the following allegations were made:
"It is alleged that you Inspector Prem Chand, No.D-
I/413 while posted in A.C. Branch was detailed as raid
officer on 10.10.97 on complaint of Shri Kamlesh
Kumar Gupta S/o Sh. Prabhu Dayal Gupta R/o WZ-71-
B, Gali No.7, Lajwanti Garden, Delhi. The complainant
brought the bribe money to the A.C. Branch,
phenolphthalein powder was applied on these currency
notes in the presence of panch witness Sh. Devender
Singh S/o Sh. Sukhbir Singh, LDC E-III, Education
Department, Old Sectt., Delhi. You, Inspr. Prem Chand,
No.D-I/413 organised a raid on Sh. Preet Pal Bansel,
Inspector Malaria, CLZ, MCD for demanding Rs.3000/-
as bribe. He got case FIR No.40 dated 10.10.97 U/S
7/13 POC Act, P.S. A.C. Branch registered against Sh.
Preet Pal Bansel, Inspr. Malaria, CLZ, MCD. The
tainted money, although not accepted by the accused
Sh. Preet Pal Bansel was not seized by you being the
raid officer Inspr. Prem Chand despite being an
important piece of evidence. The accused was acquitted
by the Hon’ble Court of Sh. S.S. Bal, Spl. Judge, Tis
Hazari, Delhi in the above noted case.
The above act on the part of you, Inspr. Prem Chand,
No.D-I/413 amounts to gross misconduct, negligence
and dereliction in the discharge of his official duties and
rendering you liable for departmental action under
Delhi Police (Punishment and Appeal) Rules, 1980."
He was held guilty of the said charges. A second show-cause notice
was issued to the appellant to which cause was shown by him. By an
order dated 28.3.2005, a punishment of forfeiture of one year’s approved
service was imposed upon the appellant. He preferred an appeal
thereagainst. The appellate authority, being the Commissioner of Police,
while dismissing the appeal of the appellant held:
"I have examined the appeal, the D.E. File and other
relevant documents available on the file. Due procedure
was followed by the E.O. During the departmental
proceedings. The appellant was given mandatory
opportunities to defend his case and he had availed of
the same. The E.O. While submitting his findings had
proved the charge framed against the appellant. The
disciplinary authority after having gone through the
D.E. file evidence on record as well as written/oral
submissions of the appellant had passed his final order
awarding him the punishment under appeal which is self
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speaking and reasoned order. The appellant being a
raiding officer should have seized the tainted money as
case property but he had failed to bring an important
piece of evidence on record, resulting the acquittal of
the accused by the Hon’ble Court. Though, the trial
court had not passed any adverse remarks against the
appellant while passing the judgment, it is quite clear
that the appellant had failed to discharge of his official
duties as per law, which amounts to serious misconduct
on the part of the appellant. Therefore, the punishment
awarded to him is justified and is commensurate with
the gravity of misconduct committed by him. No
infirmities were committed either by the E.O. or by the
disciplinary authority. None of the appellant’s pleas has
any force. Hence, the appeal of the appellant is
rejected."
The original application filed by the appellant before the Central
Administrative Tribunal, Principal Bench, Delhi, questioning the validity
or legality of the said order of punishment as also the appellate order was
dismissed by the Tribunal by its judgment dated 15.2.2005. A writ
petition preferred thereagainst by the appellant has been dismissed by a
Division Bench of the Delhi High Court opining:
"\005We have also noted that in such a matter, if the plea
of the petitioner is accepted and the accused not
accepting the bribe money is to be a reason for not
seizing the bribe money there was no need to launch
prosecution against the accused. This not having been
done resulted in the acquittal of the accused. The
reasoning given by the Tribunal, therefore, does not
warrant interference under Article 226 of the
Constitution of India. The learned counsel for the
petitioner has further submitted that even if it is
assumed that there is failure to seize the currency notes,
this does not amount to misconduct. The Tribunal has
analyzed various definitions of the word "misconduct"
and we are in agreement with the conclusion of the
Tribunal. Furthermore, misconduct need not be founded
on a positive act but can also be based upon an omission
of duty required to be done by the public servant."
The contention of the learned counsel for the appellant is that in the
peculiar facts and circumstances of this case, the appellant cannot be said
to have committed any misconduct.
Mr. A. Sharan, learned Additional Solicitor General appearing on
behalf of the respondents would, on the other hand, support the impugned
judgment.
Before adverting to the question involved in the matter, we
may see what the term ’misconduct’ means.
In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4)
SCC 54], it was stated:
"Misconduct has been defined in Black’s Law
Dictionary, Sixth Edition at page 999, thus:
’A transgression of some established and definite
rule of action, a forbidden act, a dereliction from
duty, unlawful behaviour, wilful in character,
improper or wrong behaviour, its synonyms are
misdemeanor, misdeed, misbehavior, delinquency,
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impropriety, mismanagement, offense, but not
negligence or carelessness.’
Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in
relation to the duties of his office, willful in character.
Term embraces acts which the officer holder had no
right to perform, acts performed improperly, and failure
to act in the face of an affirmative duty to act."
In P. Ramanatha Aiyar’s Law Lexicon, 3rd edition, at page 3027,
the term ’misconduct’ has been defined as under:
"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 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."
[See also Bharat Petroleum Corpn. Ltd. vs. T.K. Raju, [2006 (3) SCC
143].
It is not in dispute that a disciplinary proceeding was initiated
against the appellant in terms of the provisions of the Delhi Police
(Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the
disciplinary authority to arrive at a finding of fact that the appellant was
guilty of an unlawful behaviour in relation to discharge of his duties in
service, which was willful in character. No such finding was arrived at.
An error of judgment, as noticed hereinbefore, per se is not a misconduct.
A negligence simpliciter also would not be a misconduct. In Union of
India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan
himself has placed reliance, this Court held so stating:
"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, 17 Q.B. 536, 542).
A disregard of an essential condition of the contract
of service may constitute misconduct [see Laws v.
London Chronicle (Indicator Newspapers, 1959 1
WLR 698)]. This view was adopted in Shardaprasad
Onkarprasad Tiwari v. Divisional Superintendent,
Central Railway, Nagpur Division, Nagpur, (61 Bom
LR 1596), and Satubha K. Vaghela v. Moosa Raza
(10 Guj LR 23). 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."
[Emphasis supplied]
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The Tribunal opined that the acts of omission on the part of the
appellant was not a mere error of judgment. On what premise the said
opinion was arrived at is not clear. We have noticed hereinbefore that the
appellate authority, namely, the Commissioner of Police, Delhi, while
passing the order dated 29.8.2003 categorically held that the appellant
being a raiding officer should have seized the tainted money as case
property. In a given case, what should have been done, is a matter which
would depend on the facts and circumstances of each case. No hard and
fast rule can be laid down therefor.
The Criminal Court admittedly did not pass any adverse remarks
against the appellant. Some adverse remarks were passed against the
Investigating Officer, who examined himself as PW-4 as he had handed
over the tainted money to the complainant PW-2.
A finding of fact was arrived at that the accused did not make
demand of any amount from the complainant and thus no case has been
made out against him. This Court in Zunjarrao Bhikaji Nagarkar vs.
Union of India & Ors., [1999 (7) SCC 409], has categorically held:
"Initiation of disciplinary proceedings against an
officer cannot take place on information which is
vague or indefinite. Suspicion has no role to play in
such matter. There must exist reasonable basis for the
disciplinary authority to proceed against the
delinquent officer. Merely because penalty was not
imposed and the Board in the exercise of its power
directed filing of appeal against that order in the the
Appellate Tribunal could not be enough to proceed
against the appellant. There is no other instance to
show that in similar case the appellant invariably
imposed penalty."
We, therefore, are of the opinion that in the peculiar facts and
circumstances of this case, the appellant cannot be said to have
committed any misconduct.
Impugned judgment, therefore, in our opinion cannot be sustained,
It is set aside accordingly. The appeal is allowed. No costs.