Poonam Sharma vs Union Of India & Ors
2011 Latest Caselaw 1647 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +     WP(C)No.3837/1990

%
                                 Pronounced on: 23rd March, 2011

      POONAM SHARMA                           ..... Petitioner
                   Through : Mr.K.B. Rohatgi,
                             Mr. Mahesh Kasana, and
                             Ms. Aparna Rohatgi Jain, Advs.
              versus

    UNION OF INDIA & ORS                    ..... Respondents
                   Through : Mr. Khalid Arshad, Adv.
                             for Mr. Neeraj Choudhary,
                             Standing Counsel.
CORAM :-
THE HON'BLE MS. JUSTICE GITA MITTAL
THE 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?

J.R. Midha, J.

1. The petitioner has assailed an order dated 17th April, 1990

whereby she has been removed from service after a

departmental enquiry and the appellate order dated 3rd August

1990 whereby her appeal against the removal order has been

dismissed. The petitioner has also sought consequential relief of

reinstatement in service with consequential benefits.

2. The admitted facts of this case are as under:-

2.1 The petitioner joined Central Reserve Police Force ('CRPF'

hereinafter) as Mahila Sub-Inspector in 1986.

2.2 In October, 1987, the petitioner sought permission from the

department to appear in the Combined States Service

Examination, 1987 which was granted by the competent

authority on 14th October, 1987.

2.3 The petitioner applied and was granted one day casual

leave for 8th February, 1988 to appear in the aforesaid

examination.

2.4 On 8th February, 1988, Kumari Mamta Sabharwal, reportedly

a friend and neighbour of the petitioner, was caught

impersonating the petitioner and writing her answer sheet in the

examination at the Victoria Intermediate College, Agra by the

invigilators. Kumari Mamta Sabharwal gave a handwritten

statement dated 8th February, 1988 to the supervisor, admitting

that she was impersonating as the petitioner and thereby

defrauding the examination authorities on the request/advice of

the petitioner.

2.5 On 10th April, 1989, the Directorate General, CRPF issued a

memorandum to the petitioner proposing to hold an inquiry

against the petitioner for misconduct in respect of the following

charge:-

"ARTICLE-I

"That No.860881303 Mahila Sub-Inspector Poonam Sharma while posted as Mahila Sub- Inspector in 88(Mahila) Bn., CRPF during the period February, 1988 committed an act of misconduct as a member of the Force in that she connived with Kumari Mamta Sabharwal D/o Shri B.M. Sabharwal resident of No.4, Old Idgah Colony, Agra with dishonest intention and persuaded the latter viz. Kumari Mamta Sabharwal to appear in an examination (Subject

- Economics) on 8.2.1988 at Agra in the UP Public Service Commission, Combined State Service Examination, 1987, impersonating as Sub-Inspector Poonam Sharma. Consequently, said Kumari M. Sabharwal did impersonate said Poonam Sharma in the said examination and was caught. Thus, said Mahila Sub-Inspector Poonam Sharma committed an act of misconduct violative of Section 11(1) of the CRPF Act, 1949."

2.6 The statement of charge attached to the memorandum

stated as under:-

"STATEMENT OF IMPUTATION OF MISCONDUCT IN SUPPORT OF THE ARTICLES OF CHARGE FRAMED AGAINST No.860881303 MAHILA SUB-INSPECTOR POONAM SHARMA OF 88 (MAHILA) BN.

CRPF NEW DELHI - 110072

ARTCLE-I

No.860881303 Mahila Sub-Inspector Poonam Sharma of 88 (Mahila) Bn. Vide her application dated Nil, October, 1987 had sought a „No Objection Certificate‟ permitting her to appear in the UP Public Service Commission, Combined State Services Examination-1987 scheduled to be held during January/February, 1988. The „No Objection Certificate‟ was issued by the competent Authority i.e. the range DIG on 14.10.1987. Sub-Inspector Poonam Sharma was required to take the examination in eight subjects. On 6.2.1988, the said Sub-Inspector (Mahila) Poonam Sharma applied and obtained 1 day‟s Casual Leave for 8.2.1988 with permission to suffix 7.2.88 being Sunday. This was to enable her to appear in the examination in the Economics paper. On 8.2.88, Kumari Mamta Sabharwal D/O Shri B.M. Sabharwal, reportedly a friend and neighbour of Mahila SI Poonam Sharma, was caught impersonating Mahila SI Poonam Sharma and writing the answer sheet (paper on Economics) at Victoria Intermediate College, Agra, the Examination Centre, by the invigilators/supervisors and the Principal of that college. Kumari Mamta Sabharwal in her own statement dated 8.2.88 given in writing to the supervisor, P.C.S. Examination, 1987, Victoria Intermediate College, Agra has admitted that she

was impersonating as Mahila SI Poonam Sharma and thereby defrauding the examination authorities on the request/advise of Mahila SI Poonam Sharma. The said Mahila SI Poonam in her application dated 23.9.88 has falsely stated that she appeared in all subjects of the examination. Thus she connived with Kumari Mamta Sabharwal D/O Shri B.M. Sabharwal with dishonest intention and cheated the examination authorities, thereby committing an act of misconduct in her capacity as a member of the Force punishable under Section 11(1) of CRPF Act, 1949; read with Rule-27 of CRPF Rules, 1955."

2.7 On 22nd May, 1989, Shri Raghubir Singh, Assistant

Commandant was appointed as Inquiring Authority to inquire into

the charges framed against the petitioner.

2.8 The petitioner pleaded not guilty. On 28th July, 1989, seven

witnesses were examined before the Inquiring Authority. The

Invigilator posted at Victoria Intermediate College on 8th

February, 1988 deposed that upon checking the form of the

petitioner and tallying the photograph, he found that the

photograph pasted on the form was not tallying with the actual

person sitting in the examination hall whereupon he informed the

other invigilator, who also checked the photograph. Thereafter

Kumari Mamta Sabharwal was taken to the Examination Control.

Supervisor at Public Service Examination, Uttar Pradesh who

deposed that he received an intimation on 8th February, 1988 at

09:30 hrs that one girl has been caught appearing in the

Economics paper for some other candidate whereupon he went to

the control room and found that the Invigilators had recorded the

statement of Kumari Mamta Sabharwal who was appearing in the

examination for the petitioner. Kumari Mamta Sabharwal

confessed that the petitioner was her friend and she had come to

appear in place of the petitioner at her instance. The written

statement submitted by Kumari Mamta Sabharwal to the

Examination Committee was proved in the inquiry. It was further

proved that the petitioner wrote her name and other particulars

on the answer sheet, she told Mamta Sabharwal to start writing

and that she would return to the examination hall in few minutes

whereupon Mamta Sabharwal started writing on the answer

sheet, she had written only few lines of a question when the

invigilators checked the identity cards and interrogated her

whereupon she explained the fact that she was not the petitioner

and was appearing in the examination on behalf of the petitioner

at her instance.

2.9. No evidence was led by the petitioner to rebut the

evidence led by the prosecution. However, after the prosecution

evidence, the statement of the petitioner was recorded on 8th

November, 1989. The petitioner claimed that she herself

appeared in the Economics paper of Public Service Commission,

Uttar Pradesh on 8th February, 1988 and she does not know any

person by the name of Kumari Mamta Sabharwal, she disputed

that any such person has appeared on her behalf in the said

examination.

2.10. Vide report dated 23rd November, 1989, the Inquiring

Authority held that Article-1 of the charge against the petitioner

was fully proved. It was further held that it has been conclusively

proved that Kumari Mamta Sabharwal was caught red handed

impersonating the petitioner in the examination hall on 8th

February, 1988 and she has admitted the same which is

supported by the documents on record and the statements of

three witnesses who actually caught Kumari Mamta Sabharwal. It

was further held that the petitioner has adopted dishonest means

with dishonest intention in making Kumari Mamta Sabharwal

appear on her behalf in the examination paper with the dishonest

intention to qualify the paper/examination.

2.11. On 17th April, 1990, Deputy Inspector General, CRPF

ordered the removal of the petitioner from service in exercise of

powers conferred under Section 11(1) of the CRPF Act, 1949 read

with Rule 27 of CRPF Rules, 1955. The Disciplinary Authority

found that the charge against the petitioner has been proved

beyond any doubt; that the petitioner has not produced any

witness or document in support of her plea of innocence; that

Kumari Mamta Sabharwal was caught in the examination hall and

she confessed that she was appearing in the examination on

behalf of the petitioner; and the petitioner during cross-

examination of the prosecution witnesses as well as her own

statement has not been able to come out with any fact or

document which could prove her innocence.

2.12 The petitioner filed an appeal against the office order

dated 17th April, 1990 before the Inspector General, CRPF which

was dismissed vide order dated 3rd August, 1990.

2.13 These orders are assailed before us by way of the

present writ petition.

3. It is submitted by Mr. K.B. Rohatagi, learned counsel

for the petitioner that Section 11(1) of the CRPF Act provides for

punishment for misconduct in the capacity of a personnel as a

member of the force. The main ground of challenge of the

petitioner is that at the time of appearing in the Combined State

Service Examination, 1987 on 8th February, 1988, the petitioner

was not acting in her capacity as a member of the force and,

therefore, her conduct does not amount to misconduct under

Section 11(1) of CRPF Act, 1949. The learned counsel for the

petitioner further submits that the appearance of the petitioner in

Combined State Service Examination, 1987 has nothing to do

with her discharge of duty under CRPF Act, 1949 and, therefore,

Section 11(1) cannot be invoked.

5. Mr. Khalid Arshad, learned counsel for the respondents in

reply submits that the petitioner was acting in her capacity as a

member of the force at the time of appearing in Combined State

Service Examination, 1987 on 8th February, 1988 and, therefore,

she has committed misconduct within the meaning of Section

11(1) of the CRPF Act, 1949. It is submitted that a member on

leave continues to be a member of the force and the misconduct

committed during that period would amount to misconduct as a

member of the force within the meaning of Section 11(1) of the

CRPF Act, 1949. The learned counsel for the respondents further

submits that misconduct under Section 11(1) of the CRPF Act has

to be read with Rule 102 of the CRPF Rules, 1955, Rules 3(1)

and 23 of the CCS (Conduct) Rules and para 23 of Government of

Indian decisions under CCS(Conduct) Rules and that her conduct

would be squarely covered within the meaning of such

misconduct which invites disciplinary action.

6. Before examining the rival contentions we may

usefully extract the relevant statutory provisions and rules relied

upon by the parties.

6.1 Section 11(1) of CRPF Act, 1949 is reproduced

hereunder:-

"Section 11. Minor punishments.- (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the force, that is to say:-

(a) reduction in rank;

(b) fine of any amount not exceeding one month‟s pay and allowances;

(c) confinement to quarters, lines or camp for a term not exceeding one month;

(d) confinement in the quarter-guard for not more than twenty-eight days with or without punishment drill or extra guard, fatigue or other duty; and

(e) removal from any office of distinction or special emolument in the Force."

6.2 Rule 102 of the CRPF Rules, 1995 may also be

considered in extenso and reads thus:-

"Rule 102 of CRPF Rules.

Other conditions of service.- The conditions of service of members of the Force in respect of matters for which no provision is made in these rules shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status."

6.3 It is important to consider Rule 3(1) and Rule 23 of

CCS (Conduct) Rules, 1964 which are as follows:-

"3. GENERAL.-(1) Every Government servant shall at all times-

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

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

x x x

23. INTERPRETATION.-If any question arises relating to the interpretation of these rules, it shall be referred to the Government whose decision thereon shall be final."

6.4 Mr. Arshad, learned counsel for the respondent has

also drawn our attention to Para 23 of Government of India

decisions which elucidates as follows:-

"23. Acts and conducts which amount to misconduct.- The act or conduct of a servant may amount to misconduct:-

(1) if the act or conduct is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master:

(2) if the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his mater;

(3) if the act or conduct of a servant makes it unsafe for the employer to retain him in service;

(4) if the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;

(5) if the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;

(6) if the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;

(7) if the servant is abusive or if he disturbs the peace at the place of his employment;

(8) if he is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master an servant;

(9) if the servant is habitually negligent in respect of the duties for which he is engaged;

(10) if the neglect of the servant though insolated, tends to cause serious consequences.

The following acts and omissions amount to misconduct:-

(1) Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.

(2) Infidelity, unfaithfulness, dishonesty, untrustworthiness, theft and fraud or dishonesty in connection with the employer‟s business or property.

(3) Strike, picketing, gherao - Striking work or inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.

(4) Gross moral misconduct - Acts subversive of discipline - Riotous or disorderly behavior during working hours at the establishment or any act subversive of discipline.

(5) Riotous and disorderly behavior during and after the factory hours or in business premises.

(6) Habitual late attendance.

(7) Negligence or neglect of work or duty amounting to misconduct - Habitual negligence or neglect of work.

(8) Habitual absence without permission and over-staying leave.

(9) Conviction by a Criminal Court."

7. Learned counsel for the petitioner does not dispute that

Rule 102 of CRPF Rules, Rules 3(1) and 23 of CCS (Conduct) Rules

and para 23 of Government of India decisions under

CCS(Conduct) Rules are applicable to the petitioner and that the

respondents could have charged the petitioner for its breach. It

is urged that since the respondents have not specifically

invoked/charged the said Rules, the petitioner cannot be

punished for the breach of the said Rules.

8. Learned counsel for the petitioner refers to and relies upon

the judgments in the cases of Ved Prakash Vs. Union of India

& Ors., W.P.(C) No.3225/2003 decided on 10th March, 2010;

Tara Chand Vs. Union of India & Ors., W.P.(C)

No.5552/2000 decided on 27th August, 2002; Galaxo

Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court

Meerut & Ors., AIR 1984 SC 505; Institute of Chartered

Financial Analysts of India & Ors. Vs. Council of the

Institute of Chartered Accountants of India & Ors., 2007

(12) SCC 210; and Prahalladpudhi Vs. Secretary,

Department of Water Resources & Ors., 107 (1009) CLT

777 to submit that looked at from any angle, the petitioner

cannot be found guilty of misconduct.

9. The cases of Tara Chand Vs. Union of India & Ors.,

W.P.(C) No.5552/2000 and Ved Prakash Vs. Union of India

& Ors., W.P.(C) No.3225/2003 relate to dismissal from service

for submitting a matriculate certificate granted by an

unrecognized institution which was challenged before this Court.

This Court held that no education qualification had been

prescribed for the purposes of recruitment and therefore,

production of an educational certificate was immaterial to the

recruitment and the petitioners had not committed any

misconduct. The judgments of Galaxo Laboratories (I) Ltd.

(supra) and Institute of Chartered Financial Analysts

(supra) deal with the rules of strict interpretation. The case of

Prahalladpudhi (supra) relates to a PIL filed by a stranger in a

service matter which was dismissed and the court has not given

any finding with respect to the scope of misconduct. The

aforesaid cases turned on their peculiar facts and render little

assistance to the petitioner.

10. Learned counsel for the respondents refers to and relies

upon the judgments in the cases of Daya Shankar vs. High

Court of Allahabad - 1987(3) SCC 1; State of Punjab vs.

Ram Singh - AIR 1992 SC 2188; and M.M. Malhotra vs.

Union of India - 2005 (8) SCC 351.

11. The case of Daya Shankar (supra) relates to a member of

Uttar Pradesh State Judicial Service who was found using unfair

means in the LLM Examination. The Hon‟ble Supreme Court held

that the conduct of the petitioner was unworthy of a judicial

officer and his dismissal from service was upheld by the Hon‟ble

Supreme Court. It was held as under:-

"11. In our opinion the conclusion reached by the Inquiry Officer that the petitioner used unfair means is fully justified. No amount of denial could take him away from the hard facts revealed. The conduct of the petitioner is undoubtedly unworthy of judicial officer. Judicial

Officers cannot have two standards, one in the Court and another outside the Court. They must have only one standard or rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy."

12. In State of Punjab vs. Ram Singh (supra) relates to a

gun man who was found heavily drunk and roaming at the bus

stand wearing the service revolver and was dismissed on the

ground of misconduct. The Hon‟ble Supreme Court held that the

police service is a disciplined service and it requires to maintain

strict discipline. Laxity in this behalf erodes discipline in service

causing serious effect on the maintenance of law and order. The

Hon‟ble Supreme Court upheld the dismissal of the petitioner

therein. The findings of the court are as under:-

"Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive 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 bahaviour, 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 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."

13. The case of M.M. Malhotra (supra) relates to a pilot

officer with Indian Air Force. A complaint was lodged by his wife

regarding his illicit relations with another woman whereupon the

Court of Inquiry was initiated against him and the order of

compulsory retirement was passed which was upheld by the High

Court. The Hon‟ble Supreme Court held as under:-

"14. The Scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to 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, Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. The 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 guidelines regarding the conduct of the employees."

"15. 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 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 '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 context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve."

x x x "19. It may be generally stated that the conduct rules of the Government and public sector corporations constitute a code of permissible acts and behavior of their servants.

The scheme of the Conduct Rules, almost invariably, is to first of all enunciate a general rule of conduct and behavior 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;

(ii) maintain devotion to duty; and

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

14. Coming to the facts of this case, Kumari Mamta Sabharwal

has impersonated as the petitioner in the Public Service

Examination, Uttar Pradesh 1987 on 8th February, 1988. Kumari

Mamta Sabharwal was caught red handed by the invigilators and

she admitted in writing before the invigilators and later on also

appeared in the witness box before the Inquiring Authority and

confessed that she impersonated as the petitioner on her

request.

14.1 Along with their counter affidavit, the respondents

have filed the copy of answer sheet as Annexure-A to show that

there were two sets of handwritings in the answer sheet which

substantiated the charge against the petitioner.

14.2 It has been further placed before us that the petitioner

was debarred for five years from taking any future examinations

with effect from 16th July, 1988 by Public Service Commission,

Uttar Pradesh. The petitioner has not challenged this order and

this order was duly implemented.

14.3 For the purposes of the present case, the relevant portion of

the said order dated 3rd November, 1990 deserves to be

considered and is reproduced hereinbelow:-

"Sub- Disqualifying the candidate from the Combined State Services Exam.1987 and debarring from all the future examinations and recruitments/interviews to be conducted by the Lok Seva Ayog, Uttar Pradesh and also from examinations held prior to this examination and final selection/recommendations still pending.

Sir, I am directed to say that the Uttar Pradesh Public Service Commission have disqualified the following candidate whose particulars are given below from Combined State Service Exam, 1987 and have also debarred from all the future examination recruitments and interviews to be conducted by them and also examinations held prior to this examination and final selection/recommendations still pending. Full particulars of candidates are given below:-

S. Name of Date Qualifi- Father's Last Cause of debarring Period No. the of cations Name known of candidate birth Address debar

1. Km. Poonam 20.5.65 B.A. Sri M.K. Poonam In Combined State Five Sharma Sharma Sharma C/o Services Years Roll Sri M.K. Examination, 1987, w.e.f.

          No.24632                                      Sharma        she committed an           16.7.88
                                                        172/D1        offence by making
                                                        Basant        Km. Mamta Sabarwal
                                                        Lane, New     to appear in her
                                                        Delhi         place in the first
                                                                      session 28.2.88 at
                                                                      Victoria Inter College
                                                                      Agra Centre, but it
                                                                      was detected by the
                                                                      invigilator and centre
                                                                      Supervisor       during
                                                                      checking              of
                                                                      candidates with their
                                                                      photographs thus she
                                                                      did not comply with
                                                                      the        instructions
                                                                      printed      on     the
                                                                      Admission
                                                                      Certificates.
14.4           The petitioner has been debarred by Public Service

Commission, Uttar Pradesh for five years which order has become

final having not been challenged by the petitioner at any stage.

This order is premised on the very grounds and facts on which

the disciplinary proceedings were conducted against the

petitioner. The order and allegations have not been assailed by

the petitioner.

14.5 In this background, we hold that the petitioner has sought

to challenge the removal order on a hyper-technical ground that

Rule 102 of CRPF Rules, 1955, Rules 3(1) and 23 of

CCS(Conduct) Rules and para 23 of the Government of India

decisions have not been specifically invoked/charged by the

respondents.

15. We find that Section 11 of the CRPF Act, 1949 refers to

disobedience, neglect of duty or remissness in the discharge of

any duty or `other misconduct‟ in his capacity as a member of

the Force.

16. The question which requires to be answered is as to

whether the petitioner in these facts could be held as guilty of

misconduct and therefore punished. It therefore, becomes

necessary to consider the definition of as to what would

constitute misconduct. In this regard, reference can be made to

the pronouncement of the Division Bench of this court dated 27th

August, 2002 in WP (C) No.5552/2000 entitled Tara Chand vs.

UOI & Ors. This judgment was also rendered in the context of

the CRPF Act. The court noticed that misconduct not having been

defined in the CRPF Act must carry its ordinary meaning. The

Division Bench placed reliance on several judicial precedents and

legal texts and observed as follows :-

"14. In Probodh Kumar Bhowmick vs. University of Calcutta & Ors., 1994 (2) Comp. LJ 456 (Cal) 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 behaviour;

intentional wrong doing on deliberate violation of a rule of standard or behaviour":

"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 workman 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 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) 1 LLJ page 684 at 690.

18. In (7) Delhi Cloth and 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, AIR 1992 SC 2188 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 behaviour, wilful in

character, improper or wrong behaviour, it synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.

Misconduct in offence has been defined as:

"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful 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 behaviour or neglect by a public official by which the rights of a party have been affected."

6. This it could be seen that the word 'misconduct' though not capable of precise of definition, on reflection receives its conotation 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 or character......"

15. This aspect of the matter has recently been considered by the Apex Court in Baldev Singh Gandhi vs. State of Punjab & 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, therefore, 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......".

17. The meaning of the word misconduct also arose in State of

Punjab & Ors. vs. Ram Singh Ex-Constable, AIR 1992 SC

2188 wherein the Hon‟ble Supreme Court considered the

meaning of the word misconduct. In this case, the Hon‟ble

Supreme Court held that mere error of judgment, carelessness or

negligence in performance of duty would stand excluded from the

realm of misconduct.

18. In the instant case, the concluded conduct attributed to the

petitioner cannot be described as mere negligence in

performance of his duty or error or judgment or carelessness.

19. So far as the afore-noticed para 23 of the Government of

India decisions is concerned, the same merely sets out some

instances of conduct which may amount to misconduct.

Section 11 of the CRPF Act, 1949 does not describe or

exhaustively enumerate acts which would be covered within the

definition of "misconduct". In this background, the construction

of conduct and actions which would be covered within the

meaning of expression "other misconduct" in Section 11(1) of the

CRPF Act, 1949 would take colour from the actions detailed in

Rule 3(1) and 23 of the CCS (Conduct) Rules as well as para 23 of

the Government of India decisions. Failure to maintain integrity

and honesty in a public examination would be covered within the

meaning of expression "other misconduct" as defined under

Section 11(1) of the CRPF Act, 1949.

20. Perusal of the record placed before us and the report of the

inquiry officer would show that the petitioner had been given a

No Objection Certificate by respondents to appear in the UP

Public Service Commission. So far as the act of fraud and

impersonation is concerned, the respondents have examined Shri

R.D. Sharma as PW-4 who was the Principal at the concerned

examination centre. In addition, Shri B.S. Paliwal and Shri Mohd.

Mansoor Khan were examined as PW-5 and PW-6 who were

invigilators and posted at the petitioner‟s examination centre at

the Victoria Intermediate College, Agra on 8th February, 1988. All

these witnesses had described the dishonest acts attributed to

the petitioner and her impersonation by Kumari Mamta

Sabharwal, at the Victoria Intermediate College on 8th February,

1988. The impersonator Kumari Mamta Sabharwal also appeared

in the witness box as PW-7 and disclosed her association with the

petitioner when she deposed that the petitioner‟s father was her

neighbour. She had given the details of the manner in which the

impersonation was effected. She had stated that she had visited

the examination hall with the petitioner on 8th February, 1988 and

that the petitioner had written only her name and particulars in

answer sheet in her own writing. Thereafter, she had told Kumari

Mamta Sabharwal to start writing and she would return to the

examination hall in few minutes. Unfortunately, shortly after

PW-7 started writing on the answer sheet, the invigilator had

checked the identity card and discovered the impersonation. She

had given the details of what had transpired after the same was

discovered and had proved the statement which she had given in

writing. The petitioner has not been able to assail or cast any

doubt over this entire testimony.

21. The petitioner had not ceased to be a member of the force

on 8th February, 1988 when she was appearing in the Combined

State Service Examination, 1987. The petitioner though not in

duty, did not cease to be a member of the force. The petitioner

is a member of the disciplined force. It needs no elaboration that

integrity and dignity of the service with which she is employed, is

required to be observed at all times. The petitioner who was the

sub-inspector, was taking the examination as an in service

candidate. Causing any person to impersonate the service

personnel in an examination with dishonest intention is

reprehensible and certainly misconduct of the highest level.

22. In this background, it has to be held that the respondents

have authoritatively established the charges against the

petitioner.

23. It is trite that the challenge to the disciplinary ground is on

well settled grounds alone.

24. Even if there is some evidence on record, which implicates

the petitioner for the offence alleged in the charge sheet, the writ

Court would have no jurisdiction to sit as if in appeal over the

order of imposition of punishment.

25. No procedural infirmity or illegality has been pointed out.

The petitioner does not urge infraction of any rules or procedures

or of substantive law. The petitioner also does not contend

violation of any of the principles of natural justice. The orders of

the disciplinary authorities and the higher authorities are

reasoned and reflect application of mind.

26. The challenge is solely premised on the plea that the acts

attributed to the petitioner are not relatable to her service. This

submission is wholly misplaced. In view of the discussion

hereinabove, we find no legally tenable grounds of judicial

review.

27. The instant case certainly does not raise any such grounds.

The petitioner does not lay a challenge to the proceedings and

orders against her on any such grounds.

28. Even it were assumed that there is any technical flaw in the

matter, the interference in the writ jurisdiction is not warranted in

view of the well settled law that the writ jurisdiction cannot be

invoked in favour of a person who has not approached the Court

with clean hands having indulged in cheating and impersonation

in the examination.

29. This case is squarely covered by the judgments of the

Hon‟ble Supreme Court in the case of Daya Shankar (supra),

Ram Singh (supra) and M.M. Malhotra (supra). The CRPF is a

disciplined force and it requires to maintain strict discipline. Any

laxity in this regard would erode the discipline in the service and

cause serious effect in the maintenance of law and order.

30. The petitioner has not approached the court with clean

hands. The petitioner connived with Kumari Mamta Sabharwal

who impersonated as the petitioner and appeared in Public

Service Examination, Uttar Pradesh 1987 on 8th February, 1988

and was caught red handed. The petitioner‟s case is based on

falsehood and is liable to be thrown out in terms of the judgments

of the Hon‟ble Supreme Court in the case of S.P. Chengalvaraya

Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. and Ors., AIR

1994 SC 853; State of Tamil Nadu and Anr. vs. R. Sasikumar, AIR

2008 SC 2827; and Hamza Haji vs. State of Kerala and Anr., AIR

2006 SC 3028.

Conclusion In view of the above, we find the challenge by the petitioner

wholly misconceived and legally untenable. This writ petition is

accordingly dismissed with costs which are assessed to be

`25,000/-.

(J.R. MIDHA) JUDGE

(GITA MITTAL) JUDGE MARCH 23, 2011