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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.