Can Management Initiate a Disciplinary Enquiry Against an Employee for Expressing his Grievances in Messages Sent in a Private WhatsApp Group?"

When even prisoners have fundamental rights and it has been declared by the Apex Court that Part III of the Constitution does not stop at the prison gates, it would be ridiculous to suggest that the moment a person becomes a bank employee, he has to bid good-bye to Article 19(1)(a). The fundamental right insofar as it applies to the petitioner might have lost a bit of sheen but its core would remain with all vigor.

10.There is something called “right to vent”. Every employee or a member of an organization will have some issue or the other with the management. To nurture a sense of grievance is quite natural. It is in the interest of the organization that the complaints find expression and ventilation. It will have a cathartic effect. If in the process, the image of the organization is affected, then the management can step in but not till then.

11.Let us assume that a group of employees are having a chat in one of their homes. So long as it is a private chat, it cannot attract the regulatory frame work of the management. The common law principle is “everyman's home is his castle”. If bar room gossip is published, that would definitely attract contempt of Court. But then, so long as it remains private, cognizance cannot be taken. The world has become a global village. It is connected by digital technology. The principles applicable to a chat in a home can be applied to what takes place in an encrypted virtual platform that has restricted access. Such an approach alone will be in consonance with liberal democratic traditions. We are yet to enter into the worlds envisaged by AldousHuxley in “Brave New World” and George Orwell in “1984”. What the respondent proposes amounts to thought-policing.

It is well settled that a charge memo can be quashed if assuming that all the acts attributed to the delinquent are taken to be true, still, it would not be amount to act of misconduct. As already held, the petitioner is very much possessed of the right to vent. The opinion was not expressed publicly. It was shared among the members of a private WhatsApp group. The management has not disclosed as to how they became aware of the post. It has not been shown as to how the bank's interest has been affected. There are some political leaders who make statements that are in bad taste and yet refuse to apologize. When I indicated that while the petitioner can criticise the management, the language also matters, he readily apologized. In these circumstances, the act committed by the petitioner cannot amount to misconduct. The impugned charge memo is quashed. {Para 20}

 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

W.P(MD)No.9754 of 2023

and

WMP(MD)No.8689 of 2023

A.Lakshminarayanan  Vs. The Assistant General Manager

CORAM

THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN

Pronounced on : 08.08.2023.

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Whether government servant turning hostile in Session trial amounts to misconduct?

Having heard the learned counsel for the parties, we first examine Petitioner's contention that the act of turning hostile does not amount to misconduct. Perjury is an offence punishable under Section 191 of the Indian Penal Code (for short "I. P. Code"). If the petitioner had committed offence of perjury, the Sessions Judge ought to have issued notice to him and tried him for that offence. Whether he had committed offence of perjury or not can be established by the Sessions Judge alone. The same cannot be established in a disciplinary enquiry. The law provides for a complete mechanism to punish a person committing office of perjury. Turning hostile, by itself, is not an offence. The only Court competent to record a finding of commission of perjury was the Sessions Judge. The appointing authority, not being an expert, would otherwise not be in a position to gauge the factors leading to hostility of the witness. After considering the testimony of the petitioner, the Sessions Judge has thought it appropriate not to issue notice to him for trial for the offence punishable U/Sec. 191 of the I.P. Code. Therefore, it is difficult to hold that the act of giving testimony before Sessions Judge as misconduct and to punish the petitioner for the same. {Para 7}

8. One may morally expect a witness to stand by his previous statement during trial. For a government servant, a higher degree of responsibility could be expected by assisting the prosecution to bring home guilt of the accused by sticking to the statement previously recorded. However, whether this 'expectation' could be extended to an extent that the act becomes a misconduct capable of being punished is the issue. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 2352 of 2018

Abdul Rauf Mohammed Khaja  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Mangesh S. Patil and Sandeep V. Marne, JJ.

Author: Sandeep V. Marne, J.

Decided On: 14.10.2022.

Citation: MANU/MH/3660/2022

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Allahabad HC: Only Governor Can Take Action Under Art. 351 Of CSR If Govt Servant Is Found Guilty Of Grave Misconduct After Retirement

 A bare perusal of the afore-quoted provision of Article 351-A

of the CSR shows that once the government servant retires, it is the Governor who has the right of withholding or withdrawing the pension or any part of it, permanently or for a specified period. The Governor under the said provision has also the right of recovery from the pension of the whole or part of any pecuniary loss caused to the Government, if the employee is found in departmental or judicial proceedings to have caused pecuniary loss to Government by misconduct or negligence during his service or he has been found guilty of gross misconduct. {Para 17}

18. It is, thus, clear that after retirement, withholding or

withdrawing a pension and ordering the recovery from pension is permissible to be caused only by the Governor i.e. the State

Government in terms of the Rules of Business, not only in case

such employee is found causing pecuniary loss to the Government by his misconduct or negligence but also in a cases when the employee concerned is found guilty of grave misconduct.

19. The provision of first proviso appended to Article 351-A of

the CSR clearly prohibits institution of departmental proceedings except with the sanction of Governor if such proceedings were not instituted while the employee was on duty either before retirement or during re-employment. Thus, Article 351-A of CSR puts a prohibition of initiating the departmental proceedings in a case of retired government servant, however, such proceedings are permissible to be instituted with the sanction of Governor, that too, in respect of an event which took place not more than four years before institution of such proceedings. The provision further provides that departmental enquiry in such an event shall be conducted by such authority and at such place as the Governor may direct and in accordance with the procedure applicable.

 ALLAHABAD HIGH COURT

Case :- SPECIAL APPEAL No. - 408 of 2021

Appellant :- Gaya Prasad Yadav

Respondent :- State Of U.P.Thru.Prin.Secy.Home Lucknow And

Anther

Coram: 

Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Shree Prakash Singh,J.

Order Date :- 23.9.2022

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Allahabad HC: If Judge adjourns a case because of Advocate's strike, it amounts to misconduct

 The Principal Judge owes an explanation to this Court why he had adjourned the case acknowledging a probable strike by Advocates on 20.05.2022. The adjournment by the Principal Judge prima facie amounts to misconduct. No Court ought to take notice of a strike or a probable strike by the Advocates. The directions of the Supreme Court in District Bar Association., Dehradun through its Secretary v. Ishwar Shandilya and others, (2020) 17 SCC 672 read:

"6.6. In spite of the law laid down by this Court in the aforesaid

decisions, this Court time and again deprecated the lawyers to go

on strikes, the strikes were continued unabated.

Once this is the position, the action of the Trial Judge in adjourning the case on 21.05.2022 to 08.07.2022 requires to be explained by him, which he shall do through a report for the time being before any further orders are passed. Even otherwise, in a Family Court, the presence of an Advocate is not a necessity, though this Court is mindful of the fact that no meaningful justice can be done in the absence of the learned Counsel for parties.

ALLAHABAD HIGH COURT

Case :- MATTERS UNDER ARTICLE 227 No. - 2850 of 2022

Petitioner :- Premraj Pratap Singh

Respondent :- Alka Singh @ Meenu

Hon'ble J.J. Munir,J.

Order Date :- 23.5.2022

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Supreme Court: Disciplinary proceedings are not quasi criminal in nature

 At the outset, it may be noted that the High Court applied the wrong

test in exercising its power of judicial review with reference to disciplinary

proceedings. Disciplinary proceedings are not quasi criminal in nature. A

disciplinary inquiry is conducted by the employer to inquire into a charge or

misconduct pertaining to a breach of the rules and regulations governing

the service of the employer. The standard of proof is not that governed by a

criminal trial.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 9520 OF 2019

Uttarakhand Transport Corporation Vs. Heera Singh Parihar 

Dr Dhananjaya Y Chandrachud, J

Dated:December 18, 2019

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Whether inquiry against medical officer is sustainable on vague charges?

 Learned senior counsel next cites a judgment reported at (2009) 12 SCC 78 [Union

of India and others vs. Gyan Chand Chattar], for the proposition that an enquiry is to

be conducted against any person giving strict adherence to the statutory

provisions and principles of natural justice. The charges should be specific,

definite and giving details of the incident which formed the basis of charges. No

enquiry can be sustained on vague charges. Enquiry has to be conducted fairly,

objectively and not subjectively. Finding should not be perverse or unreasonable,

nor should the same be based on conjectures and surmises. There is a distinction

between proof and suspicion. Every act or omission on the part of the delinquent

cannot be misconduct. The authority must record reasons for arriving at the

finding of fact in the context of the statute defining misconduct.
In the High Court at Calcutta

Constitutional Writ Jurisdiction

Appellate Side

The Hon’ble Justice Sabyasachi Bhattacharyya

W.P. No. 21498(W) of 2019

Dr. Subhash Chandra Tiwari Vs. West Bengal Medical Council and others

Judgment on : 27.11.2019

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Supreme Court: Error of judgment committed by Judicial officer does not amount to misconduct

It is a disturbing trend nowadays that Judicial Officers are made

scapegoats and penalized whether by inconvenient transfers or otherwise,

whenever there are agitations/ demonstrations against the Judicial Officers

whether by Advocates or others, irrespective of the extent of the fault or

responsibility of the Judicial Officers concerned. In this case, it is patently clear

that action against the Judicial Magistrate had been prompted by the agitation

of Railway employees and disruption of services. No one examined whether

there was any justification for the disruption of services by the Railway

employees for requiring information from two of them or for the detention of a

third employee, a rank outsider to the investigation by the Railway Magistrate,

for hurling abuses at the Magistrate in open Court and threatening him.

It is well settled that an error of judgment does not per se constitute misconduct.

If the Railway Magistrate had acted bona fide but exercised his

powers erroneously based on his perception of the powers of a Judicial Railway

Magistrate, he could not have been held to have committed mis-conduct.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.24840/2019

THE HON’BLE HIGH COURT AT CALCUTTA  Vs MINTU MALLICK 

Dated:NOVEMBER 15, 2019

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Supreme Court:Employee can not be held guilty for unauthorized absence from duty if absence is due to compelling circumstances

The question whether 'unauthorized absence from duty' amounts to failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful.

18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant.

19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2106 of 2012 

Decided On: 15.02.2012

Krushnakant B. Parmar  Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

G.S. Singhvi and S.J. Mukhopadhaya, JJ.

Citation: (2012) 3 SCC 178

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Whether disciplinary proceeding should be initiated against Judicial officer only on basis that he has passed wrong order?

 That is why we again repeat that one of the
responsibilities of the High Court on the administrative
side is to ensure that the independence of the District
judiciary is maintained and the High Court acts as a
guardian and protector of the District judiciary.
16. We would, however, like to make it clear that we are
in no manner indicating that if a judicial officer passes
a wrong order, then no action is to be taken. In case a
judicial officer passes orders which are against settled
legal norms but there is no allegation of any extraneous
influences leading to the passing of such orders then the
appropriate action which the High Court should take is to
record such material on the administrative side and place
it on the service record of the judicial officer
concerned. These matters can be taken into consideration
while considering career progression of the concerned
judicial officer. Once note of the wrong order is taken
and they form part of the service record these can be

taken into consideration to deny selection grade,
promotion etc., and in case there is a continuous flow of
wrong or illegal orders then the proper action would be
to compulsorily retire the judicial officer, in
accordance with the Rules. We again reiterate that
unless there are clear-cut allegations of misconduct,
extraneous influences, gratification of any kind etc.,
disciplinary proceedings should not be initiated merely
on the basis that a wrong order has been passed by the
judicial officer or merely on the ground that the
judicial order is incorrect.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8950 OF 2011

KRISHNA PRASAD VERMA Vs  STATE OF BIHAR 

Deepak Gupta, J. (oral)
Dated:September 26, 2019

Citation: 2020(2) MHLJ 296

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Whether employee acting beyond one's authority is guilty of misconduct liable for disciplinary enquiry?

Loss of confidence is the primary factor and not the amount of money misappropriated. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. In the case of a bank, every officer/employee is supposed to act within the limits of his authority. If each officer/employee is allowed to act beyond his authority, the discipline of the organisation/bank will disappear. The functioning of the Bank would become chaotic and unmanageable. No organisation, more particularly, a bank can function properly and effectively if its officers and employees do not observe the prescribed norms and discipline. Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous considerations.

In the High Court of Meghalaya at Shillong

(Before Ajay Kumar Mittal, C.J. and H.S. Thangkhiew, J.)

Shri Gautam Dhar  v.  State Bank of India and Others

Writ Appeal No. 59 of 2017

In

WP(C) No. 191 of 2014

Decided on June 11, 2019

Citation: 2019 SCC OnLine Megh 105 : 2019 Lab IC 2650

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Factors to be considered by disciplinary authority for suspension of employee prior to departmental enquiry

 The purpose of suspension of an employee in service jurisprudence is two fold. The traditional and dominant purpose of suspension is to aid and assist a disciplinary enquiry against an employee. Suspension in such cases is not a punishment. The second known purpose of suspension is to impose it as a punishment.

11. Law on suspension has been settled by high judicial authority. In the light of consistent judicial pronouncements, principles of the law on suspension can be stated.

12. When suspension is made in contemplation of a disciplinary enquiry, certain prerequisites have to be satisfied. An enquiry should be contemplated or underway into charges of misconduct. The charges of misconduct, if proved, should be serious enough to warrant a major penalty.

13. The order of suspension should be passed after due and independent application of mind. The suspension should not be made as a matter of routine resulting from a suspension syndrome.

14. At the stage of suspension the veracity of the charges cannot be ascertained and the merits of the defence cannot be examined. However, the order of suspension should disclose a prima facie act of misconduct.

15. Suspension in contemplation of an enquiry, is made to aid the process of enquiry. Suspension takes out the delinquent employee from his domain of influence. This ensures that the enquiry is independent and fair.

16. Suspension also takes off the charged employee from his regular duties. This enables the employee to join the enquiry proceedings and give fulsome cooperation to the enquiry officer. It also gives him adequate time to prepare his defence. Continuing the employee on regular duties, with an enquiry on foot, would not be in institutional interests either. The official work would suffer and the enquiry proceedings would be impeded. The suspension in such cases not a punishment.

IN THE HIGH COURT OF ALLAHABAD

Writ A. No. 20262 of 2018

Decided On: 03.10.2018

 Deepika Shukla  Vs.  State of U.P. and Ors.

Hon'ble Judges/Coram:

Ajay Bhanot, J.

Citation: 2018 (6) AWC 6050.

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Whether departmental enquiry can be continued against Judicial officer even after retirement?

 A conjoint reading of the aforesaid subrules
of Rule 27
indicates that the appointing authority is invested with the
power to withhold or withdraw the pension, if in any
departmental or judicial proceedings, the pensioner is found
guilty of grave misconduct or negligence during the period of his
service. Good conduct of the pensioner is an implied condition
for the receipt of pension and if subsequently the pensioner is

found guilty of misconduct or negligence in relation to the acts
or omissions during the services rendered by the pensioner, the
pension can be withheld or withdrawn. The retirement of an
employee does not, therefore, completely preclude the
appointing authority from initiating action for dealing with the
misconduct of the employee during currency of the service.
The retirement does not confer complete immunity from the
action for the misconduct during period of employment. The
nature of the action is, however, restricted to withdrawal or
withholding of pension.
19. Clause (a) of Subrule
(2) in express terms provides that
the departmental proceedings referred to in subRule
(1), if
instituted while the Government servant was in service whether
before his retirement or during his reemployment,
shall, after
the final retirement of the Government servant, be deemed to be
proceedings under this rule and shall be continued by the
authority in the same manner as if the Government servant had
continued in service. The initiation or continuation of the
disciplinary proceedings, against a retired employee is, however,
subject to certain safeguards to protect the interest of the
employee. Clause (b) of subrule
(2) stipulates conditions for
continuation of the disciplinary proceedings if not instituted
while the Government servant was in service. Subrule
(3)

provides a timelimit
of four years so that the pensioner is not
under a threat of action for eternity. In all the cases, where the
departmental enquiry is instituted either before or after
retirement, subrule
(4) mandates sanction of provisional
pension as provided in Rule 130.
20. If we consider the fascicles of the provisions in Rule 27 of
the Pension Rules, 1982, it becomes evident that the rules do
envisage initiation of the disciplinary action even after
retirement of a Government servant, on superannuation or
otherwise, in addition to the continuation of the disciplinary
proceedings, which was instituted before the retirement of the
Government servant. The broad submission canvassed on
behalf of the Petitioner that after retirement of a Government
servant no disciplinary proceedings can be instituted/continued
runs counter to the express mandate of clause (a) of subrule
(2) of Section 27, extracted above, which incorporates a deeming
provision and, by a legal fiction, mandates that the disciplinary
proceedings instituted before the retirement shall be deemed to
be a proceedings under Rule 27 and continued and concluded
in the same manner as if the Government servant had
continued in service. The broad submission therefore cannot be
countenanced.

21. The legal position as regards the institution /
continuation of disciplinary proceedings after the retirement of
an employee, seems to have been crystallised to the effect that
the employer can institute/continue the disciplinary
proceedings against an employee who has retired, provided the
rules which govern the services of the employee permit such a
course of action.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2820 OF 2019

 Mrs. Padmini Nandakumar Nair  Vs The Honourable High Court of Judicature at Bombay, through its
Registrar General, Mumbai

CORAM: R. M. BORDE & N. J. JAMADAR, JJ

PRONOUNCED ON; 14th JUNE, 2019

(Per N. J. JAMADAR, J.)

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Whether information regarding misconduct of employees should be disclosed under right to information Act?

 In the present case, the respondent No. 2 and similarly like minded made various complaints to the petitioner herein and admittedly the number of cases initiated and the inquiry conducted against the various officers including the officer against whom the respondent No. 2 sought information for the reason to answer the public at large that on his complaint proper action has been taken by the petitioner against the corrupt officers. Since, the officer of the petitioner has already charge-sheeted, faced the Department Enquiry and finally punished, then what is the personal information with the petitioner and why the petitioner is not furnishing the details ask by the respondent No. 2 herein.

 In view of the above discussion, I am of the considered view that such information cannot be hold as a personal information and such information deserves to be given to expose the corrupt person in the public. 

IN THE HIGH COURT OF DELHI

W.P. (C) 11897/2016 and CM Appl. 46874/2016

Decided On: 15.11.2018

Food Corporation of India  Vs. Central Information Commissioner and Ors.

Hon'ble Judges/Coram:

Suresh Kait, J.

Citation: AIR 2019 Delhi 88

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Whether minor penalty imposed on government servant can be quashed if show cause notice issued to him was vague?

We find that the Petition deserves to be allowed on two grounds. Firstly, perusal of the show cause notice would reveal that allegations made against the Petitioner in the show cause notice are totally vague in nature. It is settled law that if the allegations in the show cause notice are vague, it would not be possible for delinquent to effectively submit his reply and therefore the same would violate the principles of natural justice. Secondly, Petition deserves to be allowed on the ground that the impugned order does not give any reasons.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1852 of 2014

Decided On: 16.01.2019

Manik Abaso Jadhav  Vs. Mira Bhayandar Municipal Corporation and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and N.J. Jamadar, JJ.

Citation: 2019(2) MHLJ 693

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Whether government doctor accepting charges for examining patient can be prosecuted under prevention of corruption Act?

19. It is pertinent to note here that in case of Kanwarjit Singh Kakkar (supra), the Hon'ble Supreme Court has inter alia observed as under:—

“(15) But the most important and vital check before a public servant can be booked under the Prevention of Corruption Act, the ingredients of offence will have to be deduced from the facts and circumstances obtained in the particular case. Judging the case of the appellants on this anvil, it is not difficult to notice that in the case at hand, the amount that is alleged to have been accepted even as per the allegation of the complainant/informant was not by way of gratification for doing any favour to the accused, but admittedly by way of professional fee for examining and treating the patients. However, no presumption can be drawn that it was accepted as motive or reward for doing or forbearing any official act so as to treat the receipt of professional fee as gratification much less illegal gratification. The professional fee even as per the case of the complainant/informant was that this act on the part of the accused appellants was, contrary to the Government circular and the circular itself had a rider in it which stated that the Government doctor could do private practice also, provided he sought permission from the Government in this regard. Thus the conduct of the appellants who are alleged to have indulged in private practice while holding the office of Government doctor and hence public servant at the most, could be proceeded with for Departmental proceedings under the Service Rules but in so far as making out of an offence either under the Prevention of Corruption Act or under the IPC, would be difficult to sustain as we have already observed that examination of patients by doctor and thereby charging professional fee, by itself, would not be an offence but as per the complaint, since the same was contrary to the Government circular much instructed that private practice may be conducted by the Government doctors in the State of Punjab provided permission was sought from the Government in this regard, the appellants were fit to be prosecuted. Thus, the appellants even as per the FIR as it stands, can be held to have violated only the Government instructions which itself has not termed private practice as ‘corruption’ under the Prevention of Corruption Act merely on account of charging fee as the same in any event was a professional fee which could not have been charged since the same was contrary to the Government instructions. Thus, if a particular professional discharges the duty of a doctor, that by itself is not an offence but becomes an offence by virtue of the fact that it contravenes a bar imposed by a circular or instruction of the Government. In that event, the said act clearly would fall within the ambit of misconduct to be dealt with under the Service Rules but would not constitute criminal offence under the Prevention of Corruption Act.

In the High Court of Gujarat at Ahmedabad

(Before R.P. Dholaria, J.)

Rambhai Hajabhai Garaniya

v.

State of Gujarat

R/Criminal Appeal No. 340 of 2004

Decided on May 2, 2018

Citation: 2018 SCC OnLine Guj 1248

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What is basic concept of "misconduct"?

 In the case of Ravi Yashwant Bhoir v. District Collector, Raigad & ors. - (2012) 4 SCC 407 the Hon'ble Apex Court has particularly observed in paragraph 12 that the word "misconduct" , though not capable of precise definition, gets its meaning from the context, the degree of deviance and its effect on the discipline and the nature of the duty. These observations extracted from paragraph 12 which have been quoted from P.

Ramanatha Aiyar's Law Lexicon, Reprint Edn. 1987 p. 821, are reproduced thus :

"12. .... 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 the nature of the duty. It 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 of 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 ....."

"{See also State of Punjab v. Ram Singh2 }"

{2(1992) 4 SCC 54} It is clear from these observations that the expression "misconduct" has to be understood in the context of the facts and circumstances of each case and whether a particular act would amount to misconduct or not would depend upon its context, intensity of the deviance, nature of the delinquency and its over all effect on the discipline of the institution and also the nature of duty during the performance of which the alleged misconduct has occurred.{ para 49}

BOMBAY HIGH COURT

Rahul S/O. Virendra Deshmukh And ... vs State Of Maharashtra Thr. ... on 6 May, 2016

Bench: S.B. Shukre

   WRIT  PETITION   No. 1442  OF 2016 

Citation: 2016(6) MHLJ 450

Read full judgment here: Click here

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Whether action can be taken against Notary for misconduct without following principles of natural justice?

 On the other hand, Mr. V. Rodrigues, learned Government
Advocate appearing for the respondents fairly accepts that the
procedure in terms of Rule 13 of the Notaries Rules, 1956 has not been
followed, but, however, submits that the respondents are entitled to
justify the allegations against the petitioner in the proceedings initiated
by the respondent No.1 based on the inspections which have been
carried out.
6. We have considered the submissions of the learned
Counsel and we have also gone the through the record. Rule 13 of the
Notaries Rules, 1956 reads thus :
“ 13. Inquiry into the allegations of
professional or other misconduct of a notary.- (1)
An inquiry into the misconduct of a notary may be
initiated either suo motu by the appropriate government or
on a complaint received in Form XIII.
 (2) Every such complaint shall contain the following
particulars, namely,-
 (a) the acts and omissions which, if proved, would render
 the person complained against unfit to be a notary;
 (b) the oral or documentary evidence relied upon in support
 of the allegations made in the complaint.
 (3) The appropriate government, shall return a complaint
which is not in the proper form or which does not contain the
aforesaid particulars to the complainant for representation
after compliance with such objections and within such time
as the appropriate government may specify:
Provided that if the subject matter in a complaint is, in
the opinion of the said government substantially the same as or
covered by, any previous complaint and if there is no additional
ground, the said government shall file the said complaint 
without any further action and inform the complainant
accordingly.
 (4) Within sixty days ordinarily of the receipt of complaint,
the appropriate government shall send a copy thereof to the
notary at his address as entered in the Register of Notaries.
 (4-a) Where an inquiry is initiated, suo motu by the
appropriate government, the appropriate government shall send
to the notary a statement specifying the charge or charges
against him, together with particulars of the oral or
documentary evidence relied upon in support of such charge or
charges.
(5) A notary against whom an inquiry has been initiated
may, within fourteen days of the service on him of a copy of the
complaint under sub-rule (4) or of the statement of the charges
under sub-rule (4a), as the case may be, or within such time as
may be extended by the appropriate government, forward to
that government a written statement in his defence verified in
the same manner as a pleading in a civil court.
(6) If on a perusal of the written statement, if any, of the
notary concerned and other relevant documents and papers,
the appropriate Government considers that there is a prima
facie case against such notary, the appropriate Government shall
cause an inquiry to be made in the matter by the competent
authority. If the appropriate government is of the opinion that
there is no prima facie case against the notary concerned, the
complaint or charge shall be filed and the complainant and
the notary concerned shall be informed accordingly.
 [(7) Every notice issued to a notary under this rule shall be
sent to him by registered post. If any such notice is returned
unserved with an endorsement indicating that the addressee
has refused to accept the notice or the notice is not returned
unserved within a period of thirty days from the date of its
dispatch, the notice shall be deemed to have been duly served
upon the notary.]
 (8) It shall be the duty of the appropriate Government to
place before the competent authority all facts brought to its
knowledge which are relevant for the purpose of an inquiry
by the competent authority.
 (9) A notary who is proceeded against shall have right to
defend himself before the competent authority either in
person or through a legal practitioner or any other notary.
(10) Except as otherwise provided in these rules, the
competent authority shall have the power to regulate his
procedure relating to the inquiry in such manner as he considers
necessary and during the course of inquiry, may examine
witnesses and receive any other oral or documentary evidence.
(11) The competent authority shall submit his report to the
government entrusting him with the inquiry. 
(12)(a) The appropriate government shall consider the
report of the competent authority, and if in its opinion a further
inquiry is necessary may cause such further inquiry to be made
and a further report submitted by the competent authority.
 (b) If, after considering the report of the competent
authority, the appropriate government is of the opinion that
action should be taken against the notary the appropriate
government may make an order-
(i) cancelling the certificate of practice and
 perpetually debarring the notary from practice; or
(ii) suspending him from practice for a specified period;
 or
(iii) letting him off with a warning, according to the
 nature and gravity of the misconduct of the notary
 proved”
On plain reading of the said Rule, we find that the procedure
contemplated therein has not been followed by the respondent No.1
whilst proceeding to pass the impugned order. The impugned order, as
such, stands vitiated for gross breach of the principles of natural
justice as, admittedly, no inquiry was conducted, nor any opportunity
given to the petitioner to present his case, in accordance with the Rules.
 IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 1010/2015
Shri Gajanan Govind Dhumatker,

V/s.
 State of Goa, by Chief Secretary,

 CORAM :- F.M. REIS &
 NUTAN D. SARDESSAI, JJ.
 Date : - 05/04/2016.
Citation:2016(5) ALLMR346

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Whether act of forgery amounts to minor or technical misconduct under service law?

 This Court concluded that item 1(g) would be attracted only if
the misconduct appears to be of a minor or technical character. In
my view, an act of forgery, notwithstanding the fact that the
concerned employee, could not derive advantage of his act upon
being apprehended by the employer, does not render the act to be of
a minor or technical character. It is immaterial whether the
employee succeeded in getting the advantage of an act of forgery.
Had he not been apprehended, he would have succeeded in reducing
his age by four years and thereby, would have increased his service
age / tenure by four years.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8747 OF 2012
WITH
CIVIL APPLICATION NO. 10732 OF 2016
The Chief Executive Officer,
The Ahmednagar District Central
Cooperative Bank Limited,
V
Prakash Ramchandra Waghmare,

CORAM : RAVINDRA V. GHUGE, J.
Dated: August 02, 2016
Citation:2016(5) ALLMR240

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When failure to keep high standard of moral or ethical behaviour can constitute misconduct by employee?

A general expectation of a certain decent behaviour in respect of employees keeping in view corporate culture may be a moral or ethical expectation. Failure to keep to such high standard of moral; ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflages as misconduct. [665 D-G] M/s Glaxo Laboratories (I) Ltd v. Presiding Officer, Labour Court, Meerut & Others; [1984] 1. S.C.C. 1, followed.

7:1. Seeking advance and granting the same under relevant rules is at best a loan transaction. The transaction may itself provide for payments and the consequences of failure to repay or to abide by the rules.

If the rules for granting the advance themselves provided the consequence of the breach of conditions, it would be idle to go in search of any other consequence by initiating any disciplinary action in that behalf unless the 1975 Rules specifically incorporate a rule that the breach of House Building Advance Rules and the conveyance advance rules, would by themselves constitute a "misconduct". Therefore Rule 4 (1) is not only, not attracted but in this case no attempt was made to establish the correction. And 651 as far as Rule 4 (1) (iii) is concerned, an advance not refunded in time where it was recovered by withholding the salary of a highly placed officer may not disclose a conduct unbecoming of a public servant. Therefore, the first head of charge is an eye-wash, It does not constitute a misconduct if it can be said to be one even if it remains unrebutted.

SUPREME COURT OF INDIA

A.L.Kalara Vs. The Project & Equipment Corporation of India Limited [1984] INSC 97 (1 May 1984)

CORAM:

REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION: 1984 AIR 1361 1984 SCR (3) 646 1984 SCC (3) 316 1984 SCALE (1)798

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Whether non supply of copies of deposition amounts to violation of principles of natural justice in departmental enquiry?

 In the decision of the Apex Court in the case of Saroj Kumar Sinha, cited supra, the question of non-supply of the copies of documents, more particularly the statements of witnesses, was considered. Following the decision of the Apex Court in the cases of Bhagat Ram and Kashinath Dikshita, cited supra, the Court has held as under :

"34. This Court in Kashinath Dikshita v. Union of India, has clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority."

"35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp. 234-35, para 10) "10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a  reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, a cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself.

On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it." (Emphasis supplied) "36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p.236, para 12) "12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he  would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

(Emphasis supplied) "37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of the case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."

Bombay High Court

Vijaysingh S/O Bhaidas Patil vs Shri Dhanorkar Adhunik Gram ... on 1 October, 2015

Bench: Ravi K. Deshpande

Citation: 2016(3) MHLJ 813

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