punishment is enemy of loyality:- THE ISSUE OF MISCONDUCT AND ACCOUNTABILITY. I am greately preturbed to note that most of the investigating officers may not be knowing the difference between a misconduct and accountability due to which they are preparing such reports which are resulting in more and more DAC.This will help the DAs to understand the entire issue in its totality. 1.MISCONDUCT OR MISTAKE BOTH ARE NOT SAME In our bank,the 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 OUR OFFICERS . In this wake it is not unoften that we come across discharge of duties by officer being termed as 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 Blacks 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 Aiyars 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‟. 2.MISCONDUCT AND BEHAVIOURIAL ISSUES Although every body is influenced by the culture,attitude,emotions,value,ethics,authority,rapport, hypnosis,persuation,coercion,genetics and these factors are responsible for the unacceptable behaviour.there are five major components of human behaviour :- COGNITIVE PERCIEVE,STORE,PROCESS AND RETRIEVE AFFECTIVE CAN MODIFY PERCEPTION AND THOUGHTS CONATIVE DIRECTS AND MANAGES INPUT AND OUTPUT FUNCTIONING SPIRITUAL HOW WE APPROACH UNKNOWN BEHAVIOURIAL OVERT ACTIONS 3.DEALING WITH MISTAKE AND MISCONDUCT :- We all know that human being donot develop in isolation.they develop in variety of contexts.It is the environment which surround the individual and which he or she is in constant interaction is very important.The ultimate goal of each one of us is observing,learning,remembering,considering,making decision,is for the purpose of existence and growth of our bank because it is here that our loyality should be.If bank grows we shall grow automatically.The drive and passion which causes the employee to think and act is fixed and governed by rules. No employee should feel free to indulge in misdeamnour because it will give message of law less ness.Banking is a service oriented industry.The employees are supposed to be attending the customers in decent manners both in appearance,gestures and communications. But,We can deal with the mistakes with counseling,training and improvement of skills.It is necessary to understand the relevant facts,time period,sifting opinion from facts,the real issue and logic of probability. The management has to adopt preventive,and curative approach initially based on educative,moralistic, humanistic approach and counseling,admonition,reformation by administartive action instead of allowing the disciplinary authority for initiation of punitive action. 4.PUNISHMENT AND LOYALITY I AM QUOTING A DECISION ON MISCONDUCT AND DEFINITION BY THE COURT No Punishment is warranted for bonafide procedural Lapse/ Error:- That it is a settled principle that for the bonafide procedural lapses without any malafide, no harsh and shocking punishment should be inflicted upon. In the case of Deepanker Sen Gupta and another V/S United Bank of India and others the Calcutta High Court LLJ 1999 page 222 vide FMAT nos. 3088 and 3089 / 1999 decided on 11.03.1998 it has been up held that no punishment is warranted when there is a procedural lapse as a bonafide error. While deciding this case, the reliance of supreme court various cases was taken to say union of India and other V/S J. Ahmed 1979-II-LLJ-14(SC), Virender Parshad V/S Union of India 1987-1-LLJ 260, Nagraj Shivarao Karjagi V/S Syndicate Bank, Head office, 1992-II-LLJ-149(SC), Sunil Kumar Baneraji V/S W.B. and others AIR 1980 SC 1170, Ram Kumar V/S State of Haryana 1987-II-LLJ 501(SC), Bhagwati Parshad V/S IG of police AIR 1970-PNH-81 etc. The relevant texts of this judgment as applicable in this case also are reproduced here under:- Para-12: “The entire charges leveled as alleged the writ petitioners would show that they were charged for failure to adhere to the usual banking norms as also failure to discharge their duties with utmost integrity, devotion and diligence. The petitioners had also been charged with acting in a manner which was unbecoming of officer of the bank.” Para-15: “It has been found that the inspection register would show that the inspection details had not been produced. Ultimately, it was held ; ‘ Considering the fact that most of the companies were relatively new units incorporated and taking up a new line of business activity. It would have been prudent on the part of Asstt. Manager and Dy manger to have taken pre-sanction inspection at least in some cases or immediately after sanction was issued. This has not been done and therefore this is also a procedural lapse.” Para-18: “The said findings does not appear to be a finding of guilt as against the petitioners in as much as the petitioners were not having guilty of committing any act with malafide or ill motive.” Para-21: It is, therefore, evident, that although the enquiry officer had recorded that the charges had been partly established. In fact, the petitioner had substantially been exonerated from the charges except lapses of certain procedural aspects of supervisory duty. Such lapses, even according to the enquiry officer was not done with any ill motive or malafide on his part. As indicated hereinbefore, upon the receipt of the enquiry report , the petitioner filed their representation contending that even those findings which had been made against the petitioners by the enquiry officer are not correct. Curiously enough the Disciplinary Authority in terms of its letter dt. 20.08.92 set out the charges leveled against the petitioners in verbatim and held: ‘The nature of misconduct committed and the charges put against you at the enquiry proceedings force my opinion to inflict major penalty as contained in Regulation 4 of UBI officer employees, (discipline and appeal) Regulation, 1970. In terms of regulation 7 (3) of the UBI officer employees ( Discipline & Appeal ) Regulation 1970 I here issue upon you the major penalty of reduction of your basic pay by two stage lower in your existing pay in the time scale with immediate effect.” Para-25: “In union of India and others V/S J.Ahmed (Supra) it has been held at P-18: ‘ It is however difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in the case stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character or personal ability would not constitute misconduct for the purpose of disciplinary proceedings.’ It has been further held: ‘ The high court has noted the definition of misconduct in Stroud’s judicial dictionary which runs as under: ‘Misconduct’ means, misconduct arising from ill motive; acts of negligence, errors of judgment or innocent mistake do not constitute such misconduct.’ “ Para-26 “In Virender Parshad V/S union of India and others ( Supra) it has been held at P.264:- ‘Misconduct’ In common parlance means bad conduct and some sort of an ill motive of bad motive is an essential ingredient in imputing misconduct on to an individual. Mere error of judgment or a mere negligent way of dealing in the matter cannot by itself be termed to be misconduct. It must be coupled with such other act or acts by which motive would be apparent either expressly or even be inferred by implication.’” Para –27: “The word ‘ Misconduct’ has not been defined in the appeal regulations, 1976. However, clause 24 of the United Bank of India officer employees (conduct ) regulations 1976 provide that a breach of any of the provisions of these regulations shall be deemed to constitute a misconduct punishable under the Union Bank of India (Discipline and Appeal) regulations 1976.” Para 37: At the cost of repetition it may be noticed that in Virender Parshad (Supra) it has clearly been stated that some sort of ill motive or bad motive is an essential ingredient in imputing misconduct unto an individual. Such is not the case here. There cannot be any doubt what so ever that this court has a limited role to play in disciplinary proceedings. This court must confine its jurisdiction of judicial review only in cases of illegality, irrationality or procedural impropriety, but it is also to be borne in mind that a fair procedure is an integral part of the service jurisprudence in the matter of holding departmental proceedings as against a delinquent employee. Once the court comes to the conclusion that the findings arrived at by the enquiry officer even if given face value and are taken to be correct in their entirety, do not constitute a misconduct or the disciplinary authority is found guilty of a total non application of mind, the court can exercise its jurisdiction under article 226 of the constitution of India. In the instant case the, disciplinary authority has totally failed to apply its mind on the materials on record. In view of decision of Ram Kumar(Supra), itself, the disciplinary authority could not have based his findings and imposed a punishment upon the delinquent officer without applying his mind to the fact of the matter, and in particular the findings of enquiry officer. The very fact that he had merely reproduced the charges go to show total non application of mind on his part and in that view of the matter, we are of the opinion that the impugned orders cannot be sustained.” Para-38: “ It is further a trite law that an authority empowered to pass an administrative order which cause a civil or evil consequences against another, must pose unto himself the correct question so as to enable himself to be acquainted with the relevant facts, failing which such action must be held to be a misdirection in law. It is further well known that an authority must not base its decision on any irrelevant matters not germane for the purpose of arriving at a fair decision and must confine its decision on the relevant facts. The order of disciplinary authority does not satisfy the aforesaid requirements.” Para-39 “The writ petitions are thus allowed and the impugned orders dated 19.08.1992 and 20.08.1992 respectively are , therefore, set aside. Both the appeals are disposed of with the aforementioned observations and directions. Prayer for stay of operation of judgment is considered and refused. I APPEAL TO ALL DA/PO/EO/DEF.ASSISTANTS TO READ SUCH JUDGEMENTS TO UNDERSTAND WHAT IS MISCONDUCT
Posted on: Sat, 15 Nov 2014 02:01:23 +0000
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