Ex-Ct Nardev vs Uoi & Ors
2010 Latest Caselaw 5705 Del

8
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                        +     W.P.(C)No.20/2000

                              Date of Decision : 15th December, 2010
%

       EX-CT NARDEV                             ..... Petitioner
                            Through : Mr. Tek Chand Sharma, Adv.

                     versus

       UOI & ORS                                ..... Respondents
                            Through : Dr. Ashwani Bhardwaj, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                           YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                          YES

3.      Whether the judgment should be                                  YES
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. This writ petition has been filed by the petitioner assailing

the order dated 19th July, 1999 of removal of the petitioner

from service on the sole ground that the petitioner had

completed his matriculation and had been issued a certificate

from Central Board of Higher Secondary Education, New Delhi.

The respondents have taken a plea that this Board had not

been recognized by the Ministry of Human Resource

Development, Government of India. The petitioner has

assailed his removal on the ground that the recruitment rules

which were applicable at the time of the petitioner's

recruitment on 1st April, 1990 did not contain any such

stipulation and consequently the petitioner's removal was bad

in law. It is noteworthy that the petitioner's appeal against

order of removal was rejected by the competent authority by

an order dated 27th October, 1999 on the same ground. The

petitioner has also challenged the order dated 27th October,

1999 passed by the appellate authority rejecting his appeal.

2. This very issue has been the subject matter of several

writ petitions filed in this court. In a judgment dated 27th

August, 2002 passed in W.P.(C)No.5552/2000 titled Tarachand

vs. Union of India & Ors., this court had held as follows:-

"10. A perusal of the said Rule would, thereforee, show that at the relevant point of time, no educational qualification was necessary for obtaining an employment in the post of a Constable.

11. It stands accepted that the petitioner filed the said certificate in the year 1986. It also is not in dispute that the recruitment process began in the year 1986.

xxx xxx xxx

12. Once the certificate is held to be genuine, the question of producing a false certificate would not arise. The question which ought to have been raised in the afore-mentioned situation was as to whether the petitioner obtained employment in violation of the essential conditions of service rules. The services rules were amended in the year 1987 whereas the recruitment process had started in the year 1986. Only because the petitioner had filed the certificate to show his educational qualification, it cannot be said that he committed a misconduct of filing a false certificate to secure employment. The question of filing a false certificate to secure employment would arise provided holding of the said qualification was an essential term in terms of the statutory rules or otherwise.

xxx xxx xxx

15. In Probodh Kumar Bhowmick v. University of Calcutta and Ors. 1994 (2) Cal. LJ 456, it was observed:

"14. Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally.

It means, "improper behavior; intentional wrong doing on deliberate violation of a rule of standard or behavior":

"Misconduct 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 act. It differs from carelessness. Misconduct even if it is an offence under the Indian Penal Code is equally a misconduct."

15. Even in Industrial laws, acts of misconduct specified in standing order framed under Industrial Employment (Standing Order) Act, 1946 is not treated to be exhaustive. Various misconducts specified in Clause 14(3) of Model Standing Order are merely illustrative.

16. In (5) Mahendra Singh Dhantwal v. Hindustan Motors Ltd., reported in (1976) II LLJ 259 (264) SC, a three Judge Bench of the Supreme Court observed "standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workmen may commit. Even though a given conduct

may not come within the specific terms of misconduct described in the standing order, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action."

17. Even in the absence of the rules specifying misconduct, it would be open to the employee to consider reasonably what conduct can be properly treated as misconduct.

See (6) W.M. Agnani v. Badri Das, reported in (1963) I LLJ 684 at 690.

18. In (7) Delhi Cloth & General Mills Co. Ltd. v. Its Workmen, reported in (1969) 2 LLJ 755 at 772 at Shah, J. states "misconduct spreads over a wide and hazy spectrum of industrial activity; the most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical default covered thereby."

19. To some extent, it is a civil crime, which is visited with civil and pecuniary consequences. See (8) Ramakant Mishra v. State of U.P., reported in 1982 Labour & 1C 1790 at 1792.

20. The Supreme Court in (9) State of Punjab and Ors. v. Ram Sing Ex. Constable, upon which Mr. Mukherjee himself has placed reliance upon held:-

"5. 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 behavior, willful in character, improper or wrong behavior,it synonyms are misdemeanour, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but

not negligence or a carelessness."

Misconduct in offence has been defined as:

"Any unlawful behavior by a public office 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."

21. P. Ramanath Aiyar's Law Lexicon, Reprint Edition 1987 at Page 821 defines 'misconduct' thus:

"The term misconduct implies a wrongful intention and not a mere 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. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion 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 behavior or neglect by a public officer, by which the rights of a party have been affected."

6. 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 behavior; unlawful behavior, willful 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 or character."

16. This aspect of the matter has recently been considered by the Apex Court in Baldev Singh Gandhi v. State of Punjab and Ors., AIR 2002 SC 1124 in the following terms:

"9. 'Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct'. Thus, ordinarily the expression 'misconduct' means wrong or improper conduct. Unlawful behavior, misfeasance, wrong conduct, misdemeanour etc. There being different meaning of the expression 'misconduct', we, thereforee, have to construe the expression 'misconduct' with reference to the subject and the context wherein the said expression occurs. Regard being had to the aims and objects of the statute...".

In the light of the above discussion, in Tara Chand's case, the court concluded as follows:-

"17. Can it, in the afore-mentioned premise, be said that the petitioner has committed a misconduct? The answer thereto must be rendered in the negative. Firstly, the petitioner did not file any false or forged document with a view of securing employment; secondly, the qualification of holding a metriculation certificate being not essential, it is wholly immaterial as to whether such a certificate was filed for the purpose of showing the educational qualification held by the petitioner; and thirdly, the rules which were prevailing

at the time when the recruitment process started would be applicable in the instant case (See A.A. Colton v. The Director of Education and Anr., AIR 1983 SC 1143, P. Mahendran and Ors. v. State of Karnataka and Ors., AIR 1990 SC 405)."

(Emphasis furnished)

3. Placing reliance on the above observations,

W.P.(C)No.2932/1995 titled Zile Singh vs. Union of India

was allowed by a judgment dated 18th March, 2010. Yet

another W.P.(C)No.3225/2003 titled Ex. Lance Nayak Ved

Prakash vs. Union of India & Ors. was also allowed on 10th

March, 2010.

4. In view of the aforenoticed principles and abiding judicial

precedents, it has to be held that the allegations made against

the petitioner which were the subject matter of the charge on

which the disciplinary enquiry was held prior to his removal

from service, did not constitute misconduct and in any case

these allegations have not been substantiated. The applicable

rules contained no prescription in the rules of possession of the

matriculation certificate by a Board or a institute recognized by

Ministry of Human Resource Development or Central Board of

Secondary Education. As such, the conclusion arrived at by the

disciplinary authority as well as appellate authority are based

on irrelevant material and are contrary to rules.

5. It is noteworthy that the petitioners had rendered nine

years satisfactory service without any complaint in the

discharge of his duties.

6. In view of the above, the orders dated 19th July, 1999

passed by the disciplinary authority removing the petitioner

from service as well as order dated 27th October, 1999 passed

by the appellate authority, are not sustainable in law and are

hereby set aside and quashed.

As a result of the above, the respondents are directed to

forthwith reinstate the petitioner with all consequential benefits

including continuity in service benefits, seniority and notional

promotions from the date when their immediate juniors were

promoted with full back wages etc. Orders in this behalf shall

be passed within a period of eight weeks from today.

7. It is noteworthy that the adjudication by this court in the

judgment dated 27th February, 2002 in WP(C)No.5552/2000

titled Tarachand vs Union of India & Ors. has attained

finality. The respondents were bound to follow the law laid

down in the said judgment and implement the same.

Yet this writ petition has remained pending in this court

since 2000.

8. The subsequent judgment dated 18th March, 2010 in

WP(C)No.2932/1995 titled Zile Singh vs Union of India; on

10th March, 2010 in W.P.(C)No.3225/2003 titled Ex. Lance

Nayak Ved Prakash vs. Union of India & Ors; on 7th

August, 2010 in WP(C)No.2583/2010 titled Golukendra

Mann vs. Union of India and on 4th June, 2010 in

WP(C)No.5135/2003 titled Nek Mohd. Vs. Union of India

and Others also did not motivate the respondents to take

action. This non action necessitated the present adjudication.

9. It is noteworthy that while allowing

W.P.(C)No.5135/2003 titled Nek Mohd. vs. Union of India

dated 4th June, 2010, we had directed the respondents to send

a copy of this judgment to all similarly situated persons

mentioned in the list which was placed by the respondents in

the said judgment. Despite these directions, it appears that no

remedial action was initiated by the respondents.

10. We may note that the petitioner/Constable Nardev Singh

has been constrained to file an application bearing CM

No.13656/2010 dated 27th September, 2010 requesting for

early hearing in the matter in view of the judicial

pronouncements. Despite pendency of this application ever

since and its listing on at least two dates prior thereto, no steps

have been taken at all by the respondents to ensure justice to

the petitioner.

11. In view of the above, we are of the view that the

petitioner is entitled to costs of this adjudication which has

been necessitated purely and squarely for the fault of the

respondents. We may note that valuable judicial time has been

unnecessarily required to be expended on such matters which

rest on settled law. The judicial pronouncements aforenoticed

have attained finality and have been even implemented by the

respondents. We find the failure of the respondents to take

positive action in the matter as completely unjustified and

unwarranted.

12. We deem it necessary to note that such non-compliance

with settled law was considered by the Supreme Court. In the

pronouncements reported at (1973) 1 SCC 446 Baradakanta

Mishra Ex-Commissioner of Endowments vs. Bhimsen

Dixit, the Supreme Court has commented on failure of

authorities to follow judgments. The court had held as follows :-

"The conduct of the appellant in not following previous decisions of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggest that his conduct falls within the purview of the law of Contempt . Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law and engender harassing uncertainty and confusion in the administration of law" (para 15)"

13. The observations of the Gujarat High Court in the

judgment reported at 1982 CriLJ 2255 State of Gujarat vs.

Secretary, Labour Social Welfare & Tribunal

Development Deptt. on the same issue are topical and read

as follows :-

"In a government which is ruled by laws, there must be complete awareness to carry out faithfully and honestly lawful orders passed by a court of law after impartial adjudication. Then only will private individuals, organizations and institutions learn to respect the decisions of Court. In absence of such attitude on the part of all concerned, chaotic conditions might arise and the function assigned to the courts of law under the Constitution might be rendered a futile exercise."

14. These judgments have been relied by one of us (J.R.

Midha, J) in a judgment dated 12th November, 2009 in MAC

App. No. 284/2008 entitled Head of Deptt. Air Force

Station, Amla & Anr. vs. Ram Kumar Giri through LRs.

and held that :-

"34. If the executive does not follow the certain well settled law laid down by the Hon'ble Supreme Court, it shall create confusion in the administration of justice and undermine the law laid down by the Apex Court and shall impair the constitutiuonal authority of the Apex Court. The disobedience of the law laid down by the Court shall also amount to contempt of Court."

15. The instant case manifests such conduct of the

respondents. The present adjudication has been necessitated

only because the respondents have failed to abide with the

dicta laid down by this court in the judgment passed as back as

in 2002 and subsequently.

16. It, therefore, needs no elaboration that failure to abide by

the principles laid down by the Supreme Court as well as by

this court in the aforenoticed binding judicial precedents would

render the authorities liable for proceedings under the

Contempt of Court Act.

We have brought this noteworthy aspect to the notice of

the respondents and are refraining from taking further action

on this occasion.

17. There is yet another aspect to this matter. The failure of

the executive to abide with the well settled legal principles

generates unwarranted and frivolous litigation. This very issue

has also been considered in Head of Deptt. Air Force

Station vs. R.K. Giri through LRs. (supra).

18. For the reasons and the ratio of the aforenoticed judicial

precedents, we are of the view that the present writ petition

was wholly unnecessary and the respondents should have

voluntarily taken the initiative to grant such relief to the

petitioners to which they were entitled in view of the rule

position as well as the principles of law laid down by this court

which had been affirmed by the Division Bench as well as by

the Supreme Court. Valuable judicial time has been wasted.

The petitioners, positioned as they are, can ill afford this kind of

litigation. The respondents are therefore liable to pay costs of

this litigation.

However, it is clear that in case the judicial

pronouncements are not complied with and action taken at the

earliest by the respondents, we would be compelled to take

more serious view in the matter.

19. The petitioner is directed to be reinstated in service with

consequential benefits of seniority and notional promotional

from the date his juniors were promoted with full back wages.

20. The costs in the matter are quantified at `10,000/-.

GITA MITTAL, J

J.R. MIDHA, J DECEMBER 15, 2010 mk