Friday 23 March 2012

Misconduct in government office:lack of devotion to duty

Government officers are required to act within the standards of conduct prescribed in their respective manuals. The decorum which is to be maintained is quiet often of high standards in the wake of national prestige resting upon the actions of these personnel. In this wake it is not unoften that we come across discharge of a government officer on account of misconduct. However what is misconduct is quiet often left undefined. It might be a simple breach of a rule or may be violation of the spirit rather than the letter. 

In a recently reported decision [2010 (171) DLT 556] a Division Bench of the Delhi High Court has explained the meaning underlying "misconduct" as quiet often used in governmental quarters and has also clarified its ambit. While reflecting that the term would have to be examined in the context of the particular service one was referring, the High Court indeed laid out the generic scheme underlying the concept.

The High Court inter alia observed as under;
27. Now, can it be said that an offence of failure to maintain devotion to duty and/or unbecoming of a government servant can never be a grave misconduct?
28. '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, willful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.
29. '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 office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.”
30. 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 involving 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.” 
31. The Supreme Court in the case reported as 1992 (4) SCC 54 State Bank of Punjab & Ors. vs. Ram Singh Ex Constable discussed and decided what misconduct is. The relevant paras of the judgment are reproduced below:-
“In usual parlance, misconduct means transgression of some established and defined rule of action, where no discretion is left, except that necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where, some direction is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.” “Thus it could be seen that the word „misconduct‟ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.”
32. Having understood what misconduct is, it becomes easy to understand what a grave misconduct would be. It has to be the aggravated form of misconduct. 
33. Acts of moral turpitude, acts of dishonesty, bribery and corruption would obviously be an aggravated form of misconduct because of not only the morally depraving nature of the act but even the reason that they would be attracting the penal laws. There would be no problem in understanding the gravity of such kind of offences. But that would not mean that only such kind of indictments would be a grave misconduct. A ready example to which everybody would agree with as a case of grave misconduct, but within the realm of failure to maintain devotion to duty, would be where a fireman sleeps in the fire office and does not respond to an emergency call of fire in a building which ultimately results in the death of 10 persons. There is no dishonesty. There is no acceptance of bribe. There is no corruption. There is no moral turpitude. But none would say that the act of failure to maintain devotion to duty is not of a grave kind.
34. It would be difficult to put in a strait jacket formula as to what kinds of acts sans moral turpitude, dishonesty, bribery and corruption would constitute grave misconduct, but a ready touchstone would be where the „integrity to the devotion to duty‟ is missing and the „lack of devotion‟ is gross and culpable it would be a case of grave misconduct. The issue needs a little clarification here as to what would be meant by the expression „integrity to the devotion to duty‟. Every concept has a core value and a fringe value. Similarly, every duty has a core and a fringe. Whatever is at the core of a duty would be the integrity of the duty and whatever is at the fringe would not be the integrity of the duty but may be integral to the duty. It is in reference to this metaphysical concept that mottos are chosen by organizations. For example in the fire department the appropriate motto would be: „Be always alert‟. It would be so for the reason the integrity of the duty of a fire officer i.e. the core value of his work would be to be „always alert‟. Similarly, for a doctor the core value of his work would be „duty to the extra vigilant‟. Thus, where a doctor conducts four operations one after the other and in between does not wash his hands and change the gloves resulting in the three subsequent patients contacting the disease of the first, notwithstanding there being no moral turpitude involved or corruption or bribery, the doctor would be guilty of a grave misconduct as his act has breached the core value of his duty. The example of the fireman given by us is self explanatory with reference to the core value of the duty of a fireman to be „always alert‟.
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