(2009] 3 S.C.R. 1181

PRAVEEN BHATIA A

UNION OF INDIA & ORS. (Civil Appeal No. 1536 of 2009)

MARCH 5, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGUL Y, JJ.]

Service Law: Misconduct - Air Force Officer - Belated filing of property return - Held: Amounts to misconduct - c Order of compulsory retirement upheld -Air Force Act, 1950

- s.19 -Air Force Rules, 1969 - r.15.

Judicial review: Quantum of punishment - Scope of interference.

D ~

Words and phrases: Misconduct - Meaning of.

Appellant was officer in Air Force. A notice was issued on him to show cause as to why he should not be dismissed or removed from service. Appellant did not E receive necessary documents and was even not allowed inspection. He filed writ petition before High Court which was dismissed. Thereafter terms of reference were received by him and he also got copy of findings of Court of Enquiry. Thereafter he submitted his reply to show F .. cause notice pointing out that 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 gr.ave punishment. Appellant was compulsorily retired. G Challenging the order of compulsory retirement the writ petition was filed. It was his stand that the court of enquiry exonerated him on all counts except late filing of •, property returns. The stand of the respondent before

1181 H

A 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. The High Court acQepted the stand of the respondent and dismissed the B petition. Hence the present appeal.

Dismissing the appeal, the Court

HELD:1. The Scheme of the disciplinary rules in general is to identify the conduct which is made C punishable and then to provide for the various punishments which may be imposed for the acts which are inconsistent with such conduct. The range of actiivities which may amount to acts which are

incnsistent with the interest of public service and not D 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. Therefore, the word "misconduct" is not capable of precise definition.

E But at the same time, 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 F amll>it has to be construed with reference to the subjectmatter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. [Paras 7 and 8) [1187-B; 1187-E, F, G]

Union of India and Ors. v. Haljeet Singh Sandhu (2001 G (5) SCC 593; Baldev Singh Gandhi v. State of Punnjab and

Ors. (2002) 3 SCC 667 and State of Punjab and Ors. v. Ram Singh Ex. Constable AIR (1992) SC 2188, relied on.

2. "Misconduct" as stated in Batt's Law of Master and H

PRAVEEN BHATIA v. UNION OF INDIA & ORS. 1183

Servant (4th Edition) is "comprised positive acts and not A 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 B act. It differs from carelessness." 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. The scheme of the Conduct Rules, almost invariably, is to first c 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: 0

(i) maintain absolute integrity; (ii) maintain devotion to duty; and do nothing which is unbecoming of a Government servant. [Paras 12 and 14] [1188-0, E; 1188-

D, E, F, G, H; 1189-A]

M.M. Malhotra v. Union of India & Ors. (2005) 8 SCC 351, E relied on.

3. 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 F 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. It is evident from record that the prescribed period for filing

property return is dx months and though appellant was G aware of the requirement he did not choose to file any return. Even during the course of enquiry no return was filed and ult:mately it was filed after show cause notice was issued. [Paras 15 and 16] [1189-C, D]

Case Law Reference:

(2001 (5) sec 593 .

(2002) 3 sec 667

AIR (1992) SC 2188

(2005) 8 sec 351 ·

relied on

relied on

relied on

relied on

(2009] 3 S.C.R.

Para 9

Para 10

Para 11

Para 14

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1536 of 2009.

From the Judgment and Order dated 5.7.2006 of the High Court of Judicautre at Bombay, Nagpur Bench, Nagpur in Writ Petition on 1356 of 1992.

Manish Pitale and Chander Shekhar Ashri for the D Appellant.

 V. Shekhar, Shipla Ghose, D.S. Mahra, B.K. Prasad for the Respondent.

The Judgment of the Court was delivered by

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 F . 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 H undertaking contrac; ts from respondents only. The marriage was

~ performed on 14.1.1986. His father in law thereafter expected A 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 B 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 c was kept iri confinement and on 25.6.1990 a document already written was got signed from him and said document was p, urported 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.

D + 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 examfried by both parties in these . E 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 F 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 :,;, pellant was at liberty to file appropriate . G 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 H

A notice pointing out that 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 B 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 c 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

<!>f the respondent before the High Court was that the transactions were between 1981 to 1986 and the return was µ

belatedly filed after about six years on 23.3.1992 therefore the qonduct was most unbecoming of an officer of the Air Force.

Therefore the order of compulsory retirement was legal and valid. The High Court accepteid the stand of the respondent and qismissed the petition.

E The stand taken before the High Court is reiterated in the present appeal.

4. Learned counsel for the respondent pointed out that not only there was belated filing of the returns but also there were

F 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 n, ote 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

H to the prayer of the appellant to convert the compulsory

retirement in normal retirement with effect from the said date A 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 8 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, 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, C Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. Th~ 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 D 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 E 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 F "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 G context wherein 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 H

A 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) sec 667), it was held that the expression

8 "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 C 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

D complained of bears forbidden quality or character.

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 E 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 F 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 G 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; H

(ii) maintain devotion to duty; and A

(iii) do nothing which is unbecoming of a Government servant.

The aforesaid aspects were highlighted in M.M. Malhotra B V. Union oflndia & Ors. [2005(8) sec 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 reconsideration or in an appropriate case to certain litigation, c 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 D 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.

D.G.

Appeal dismissed.