Praveen Bhatia vs Union Of India & Ors

Union of India & Ors. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division bench of the

Bombay High Court dismissing the writ petition filed by the appellant.

Challenge before the High Court was to the order dated 24.6.1992 by which he was compulsorily retired in exercise of powers conferred by Section 19

of the Air Force Act, 1950 (in short the `Act') and Rule 15 of the Air Force

Rules, 1969 (in short the `Rules').

3. Averments in the writ petition were to the following effect:

Appellant was granted commission in Air Force on 14.7.1973. After

obtaining service in October, 1985, he got engaged with daughter of one

Mulkh Rajh Kakkar, a contractor undertaking contracts from respondents

only. The marriage was performed on 14.1.1986. His father in law

thereafter expected the appellant to help him in procuring other Government

contracts particularly from Air Force and when the appellant refused to help

him, the problem started. The marriage was not working out smoothly and

ultimately in 1988, his father in law lodged a complaint in this respect with

his employer. But by communication dated 8.12.1988 his employer refused

to take congnizance of the matter on the ground that it was a personal

dispute for which no departmental action could have been initiated. He was

called upon to report to respondent No.3 at New Delhi on 19.6.1990 and

when he accordingly reported, he was kept in confinement and on 25.6.1990

a document already written was got signed from him and said document was

2 purported to be terms of settlement of dispute between the appellant and his

wife. The appellant was not even permitted to consult an advocate nor was

he allowed to leave the room. The appellant was thereunder informed that

Court of Enquiry would be held against him at Air Force Station, New

Delhi, in February, 1991 and actually the terms of reference or any show

cause notice in this regard was not communicated to him. As many as 27

witnesses were examined by both parties in these proceedings which were

spread over for a period of five months and ultimately the Court of Enquiry

submitted a report almost exonerating him on all counts. Thereafter a show

cause notice dated 19.2.1992 was issued by respondent No. 3 calling upon

him to show cause as to why he should not be dismissed or removed from

service. The appellant had not received necessary documents and even he

was not given inspection and hence the appellant approached the High

Court by filing a writ petition. By an order passed on 12.3.1992, writ

petition was dismissed by this Division Bench of the High Court observing

that the appellant was at liberty to file appropriate representation before the

authorities to highlight all his grievances-factual, legal and constitutional.

Thereafter terms of reference dated 5.2.1991 were received by him and he

also got copy of findings of Court of Enquiry dated 16.6.1991. Thereafter

on 30.3.1992, he submitted his reply to show cause notice pointing out that

3 there was no misconduct warranting any action from respondents and the

failure to submit the property returns within time was not a misconduct

serious enough to warrant such grave punishment. An additional reply to

show cause notice was filed on 22.6.1992. On 24.6.1992, the order which

was impugned before the High Court came to be passed and as already

mentioned above, he was compulsorily retired.

Challenging the order of compulsory retirement the writ petition was

filed. It was his stand that the court of enquiry has exonerated him on all

counts except late filing of property returns. According to the appellant

same was not of serious nature which would warrant compulsory retirement.

The stand of the respondent before the High Court was that the transactions

were between 1981 to 1986 and the return was belatedly filed after about six

years on 23.3.1992 therefore the conduct was most unbecoming of an

officer of the Air Force. Therefore the order of compulsory retirement was

legal and valid. The High Court accepted the stand of the respondent and

dismissed the petition.

The stand taken before the High Court is reiterated in the present

appeal.

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4. Learned counsel for the respondent pointed out that not only there

was belated filing of the returns but also there were several other instances

of misconduct which have been highlighted in the rejoinder affidavit filed

before this court.

5. According to him these misconducts were also taken note of while

directing compulsory retirement.

6. The claim of the appellant for pension was also denied on the ground

that at the time of compulsory retirement, he had put in 18 years and 11

months of service. As per the Pension Regulations for the Air Force

minimum qualifying service for pension is 20 years. This statement was

made with reference to the prayer of the appellant to convert the compulsory

retirement in normal retirement with effect from the said date as that could

not make the appellant eligible for pensionary benefits.

7. The Scheme of the disciplinary rules in general is to identify the

conduct which is made punishable and then to provide for the various

punishments which may be imposed for the acts which are inconsistent with

such conduct. For example, the Central Civil Services (Conduct) Rules,

5 1964 contain provisions which pertain to the standards of conduct which the

Government servant (within the meaning of those rules) are to follow

whereas the Central Civil Services (Classification, Control and Appeal)

Rules, 1965 provide the punishment or penalties which may be imposed for

misconduct. The conduct rules and the rules for punishment may be

provided in separate rules or combined into one. Moreover, there are a host

of departmental instructions which elucidate, amplify and provide

guidelines regarding the conduct of the employees.

8. The range of activities which may amount to acts which are

inconsistent with the interest of public service and not befitting the status,

position and dignity of a public servant are so varied that it would be

impossible for the employer to exhaustively enumerate such acts and treat

the categories of misconduct as closed. It has, therefore, to be noted that the

word "misconduct" is not capable of precise definition. But at the same time

though incapable of precise definition, the word "misconduct" on reflection

receives its connotation from the context, the delinquency in performance

and its effect on the discipline and the nature of the duty. The act

complained of must bear a forbidden quality or character and its ambit has

to be construed with reference to the subject-matter and the context wherein

6 the term occurs, having regard to the scope of the statute and the public

purpose it seeks to serve.

9. In Union of India and Ors. v. Harjeet Singh Sandhu (2001 (5) SCC

593), in the background of Rule 14 of the Army Rules, it was held that any

wrongful act or any act of delinquency which may or may not involve moral

turpitude would be "misconduct" under Rule 14.

10. In Baldev Singh Gandhi v. State of Punnjab and Ors. (2002 (3) SCC

667), it was held that the expression "misconduct" means unlawful

behaviour, misfeasance, wrong conduct, misdemeanour etc.

11. Similarly, in State of Punjab and Ors. v. Ram Singh Ex. Constable

(AIR 1992 SC 2188), it was held that the term "misconduct" 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. 7

12. "Misconduct" as stated in Batt's Law of Master and Servant (4th

Edition) (at page 63) is "comprised positive acts and not mere neglects or

failures." The definition of the word as given in Ballentine's Law

Dictionary (148th Edition) is "A transgression of some established and

definite rule of action, where no discretion is left except what necessity may

demand, it is a violation of definite law, a forbidden act. It differs from

carelessness."

13. It may be generally stated that the conduct rules of the Government

and public sector corporations constitute a code of permissible acts and

behaviour of their servants.

14. The scheme of the Conduct Rules, almost invariably, is to first of all

enunciate a general rule of conduct and behaviour followed by specific

prohibitions and restrictions. For example, Rule 3 of the Central Civil

Services (Conduct) Rules, 1964 which occurs under the heading "General"

provides that 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.

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The aforesaid aspects were highlighted in M.M. Malhotra v. Union of

India & Ors. [2005(8) SCC 351].

15. The power of the court to interfere with the quantum of punishment is

extremely restricted and only when the relevant factors have not been

considered the Court can direct re-consideration or in an appropriate case to

certain litigation, indicate the punishment to be awarded; and that can only

be in very rare cases.

16. It is evident from record that the prescribed period for filing property

return is six months and though appellant was aware of the requirement he

did not choose to file any return, even during the course of enquiry no return

was filed and ultimately after show cause notice was issued it was filed.

That being so there is no merit in this appeal which is accordingly

dismissed.

....................................J.

9 (Dr. ARIJIT PASAYAT)

....................................J. (ASOK KUAMR GANGULY)

New Delhi, March 05, 2009

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