Civil Writ Petition No.4263 of 1993 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 19, 2009 Ram Singh .....Petitioner VERSUS The State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: None for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, who is an employee of the Police Department, was charge sheeted for a misconduct for not vacating a tenanted premises despite promise before senior police official. How would this amount to a chargeable misconduct would be a question requiring consideration. A perusal of the charge sheet would show that the petitioner had taken a house on rent from one Shri Nanak Chand. Civil Writ Petition No.4263 of 1993 : 2 : One Smt.Sheela Devi wife of Des Raj was also a tenant in the said premises. Said Sheela Devi purchased the abovesaid house from owner Nanak Chand. Thereafter, she asked the petitioner to vacate the house. It is alleged that the petitioner gave her false assurances to vacate the house. The petitioner later approached the civil court and obtained a stay order against his eviction. It may sound strange to notice that the officials seem to have intervened in purely personal matter of the petitioner unconnected with service condition. Sheela Devi appears to have made a complaint to the senior officers of the petitioner. The petitioner was called and asked to vacate the house. When he did not do so despite assurance to the senior officer, he was charged for misconduct alleging that being a member of the disciplined police force and well acquainted with law, he had given false assurance to Smt.Sheela Devi as well as to the officer. It is also alleged that this tentamounted to grave act of indiscipline. The respondents would attempt to justify their action by making reference to the code of conduct for police. Reference is made to paras 10, 11 and 12 of the code to say that the petitioner has misconducted by not vacating the house taken on rent by him. Let us notice the contents of paras 10 to 12 of the conduct, which are as follows:- “10. The police should always be courteous and well mannered; they should possess dignity and courage, and should cultivate character and the trust of the people. 11.Integrity of the highest order is the fundamental basis of the prestige of the police. Recognising this, the Civil Writ Petition No.4263 of 1993 : 3 : police must keep their private lives scrupulously clean, develop self restraint and be truthful and honest in thought and deed, in both personal and official life, so that the public may regard them as exemplary citizens. 12. The police should recognise that their full utility to the State is best ensured only by maintaining a high standard of discipline, faithful performance of duties in accordance with law and implicit obedience to the lawful directions of commending ranks and absolute loyalty to the force and by keeping themselves in a state of constant training and preparedness. How these paragraphs of the code of conduct can be invoked to allege misconduct against the petitioner appears beyond comprehension. Paragraph 10 requires the police to be courteous and well mannered. They are to possess dignity and courage and should cultivate character and the trust of the people. Will it be possible to charge a person if someone complains that a particular police official has lost the trust of the people or that he does not possess dignity or courage? Many police officers may not be able to escape if such code is held chargeable. Para 11 requires all police officers to have integrity of the highest order. These are the parts of code for police officials to conduct in that manner. These may be the standards which the police officials should follow. If the code is not followed, then would it be a chargeable misconduct is a question, which may beg an answer. For misconduct to be chargeable, it is required to be defined with precision and made known to the person concerned before making him answerable for a charge in this regard. Civil Writ Petition No.4263 of 1993 : 4 : The misconduct unless defined with precision and made known to an employee can always be given expost facto interpretation to term it as omission to charge an employee as has been apparently done in this case. To follow a particular Code can be desirable requirement but failure to follow Code may not give rise to a chargeable misconduct. There is nothing on record to show that the code of conduct is a statute, which can be used to charge a particular person with misconduct. At the most, the police official can be expected to conduct himself in the manner as is expected from him by the code so formulated. No other provision is pointed out to show that the allegation made is a chargeable misconduct. Disciplinary proceedings can be held against a Member of service for any act or omission which can render him liable to a penalty. Such penalty can be imposed for good and sufficient reasons. A perusal of the provisions of the Code of Conduct, which has been pressed into service to allege misconduct on the part of the petitioner may indicate that these are personal qualities, which a man holding a post in police force is expected to possess. If there is any violation, it might be a relevant consideration either on question of retaining him on the post or for his promotion. Question here to be seen is if any such lack of personal qualities would constitute a misconduct for the purpose of disciplinary proceedings. The charge framed against the petitioner has been noted above. The allegation made in the charge do not specify any act or omission in derogation to any Conduct Rules. It would, thus, be appropriate to see what generally would constitute a misconduct, especially in the context of disciplinary proceedings entailing penalty. Civil Writ Petition No.4263 of 1993 : 5 : Generally speaking, the conduct which is blame worthy for a Government servant in the context of Conduct Rules would only be misconduct. If a Government servant conducts himself in a way inconsistent with due and faithful discharge of his duties in service, it is a misconduct. (See Pearce Vs. Foster (1886) 17 QBD 536). A disregard of an essential condition of contract of service may constitute a misconduct. (See Laws Vs. London Chronicle (Indicator Newspapers), (1959) 1 WLR 698). The definition of `misconduct' in Stroud's Judicial Dictionary is as under:- “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistakes, do not constitute such misconduct.” In the context of definition of `misconduct', it will be difficult to hold that lack of efficiency or attainment of some standard in discharge of duty attached to public office would ipso facto constitute misconduct. There may be a negligence in performance of duties. There could be a lapse in performance of duty or even an error of judgment. There may be a requirement of maintaining a particular standard of manner or courtesy dignity or requirement to show courage or an aim to keep the prestige of police intact but it would be difficult to say if any want of or omission in this regard can lead to constitute misconduct. Though gross or habitual negligence in performance of duty, not involving menserea, may still constitute misconduct, yet failure to attain some standards of efficiency or performance in duty, permitting an inference of negligence would not constitute misconduct. It is in this background, the act alleged against the petitioner may have to be examined to Civil Writ Petition No.4263 of 1993 : 6 : see if requiring him to vacate a rented accommodation on the basis that he undertook to do so before his superior would constitute a misconduct or not. Seen from any angle, this allegation would not reveal any misconduct or even otherwise has not been so defined as misconduct for which the petitioner could have been charged and punished. In any event, none of the paras would require the police official to compromise with his legal rights even if all the allegations made against the petitioners are accepted for the sake of arguments. The petitioner may have given assurance to the owner to vacate the accommodation, but he was a tenant and in that capacity he enjoyed certain civil rights under law for protection of which he had approached the court. Under such circumstances, the charge preferred against the petitioner can not lead to any misconduct. The gravamen of the charge being that he did not adhere to the assurance given cannot be said to be a chargeable misconduct for which the petitioner could have been charge sheeted and punished. While admitting the writ petition, further proceedings on the enquiry and the charge sheet were rightly stayed. This position has continued. It is not clear as to what is the present position in regard to the outcome of the enquiry. Mr.Rathee, on instructions, says that subsequently the petitioner was held guilty and was ordered to be transferred. The whole aim of this exercise appears to be to charge sheet the petitioner perhaps to get the house vacated from him. It may sound an act of misconduct on the part of official concerned, who had charge sheeted the petitioner. The conduct as alleged on Civil Writ Petition No.4263 of 1993 : 7 : the part of the petitioner does not amount to a misconduct. It is a civil dispute of the petitioner with a person unconnected with the service. It would really not have any concern with his official duties. There was no authority with the senior officer to interfere in the civil rights of the petitioner while he was a tenant in the house, especially when he had sought the court protection and his eviction from the house was stayed. How and under what circumstances, the senior officer could tell him to vacate the house. If the petitioner had not vacated the house even after assurance, it will not amount to any misconduct. The charges levelled against the petitioner would not reveal any culpable misconduct for which he could be charged and punished. The writ petition is accordingly allowed. The charge sheet issued to the petitioner is quashed. The subsequent proceedings are also quashed. The petitioner is relieved of the consequences of the proceedings. November 19,2009 ( RANJIT SINGH ) ramesh JUDGE