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TMI Blog2019 (12) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory provision, the act or omission which is in breach of the prescription of conduct amounts to misconduct. Whether the complained act or omission amounts to misconduct is thus required to be judged in the context of the nature of such act or omission, the circumstances in which it occurred and its impact. The act or omission, which is tainted with ill motive, moral turpitude and improper or unlawful behaviour with an element of willfulness therein or any fagrant violation of an express stipulation, squarely fall within the mischief of misconduct. Negligence, lapse in performance of duty, errors of judgment or innocent mistake, on the other hand, stand at the other end of the spectrum and generally do not constitute a misconduct. In a given situation, a single act or omission or error of judgment would not ordinarily constitute misconduct though when such an error or omission results in serious or atrocious consequences the same may amount to misconduct. It is not an inviolable rule of law that the gross negligence or lapse in performance of duty entailing serious consequences may not amount to misconduct. Gross or habitual negligence in performance of duty may not involve m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the petitioner takes exception to the judgment and order dated 3rd November, 2017, passed by the Central Administrate Tribunal, Mumbai Bench, Mumbai, in Original Application No.14 of 2015 ( OA , for short), whereby the OA fled by the petitioner assailing the Order in Original dated 11th March, 2014, finding the petitioner guilty of misconduct under Rule 15(4) of the Central Civil Services (CCA) Rules, 1965 ( CCS (CCA) Rules, 1965 , for short) and imposing a penalty of reducing the pay of the petitioner by three stages for the period of one year, without cumulative effect, and the order in appeal dated 24th September, 2014, dismissing the appeal there-against, came to be dismissed. 3. The facts necessary for the determination of this petition can be summarised as under: (a) The petitioner was recruited as Appraiser (Customs) in the Civil Services Examination, 1996. On 5th December, 2006, the petitioner was posted at Mumbai Docks. He was performing duty at STP (one of the node/point of Mumbai Docks). The consignment under the Bill of Entry No.727840 dated 4th December, 2006, was cleared by the petitioner through Custom House Agent ( CHA ), M/s. A. Abba Sons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moval of the said Container from the Customs Notified Area which was not under his jurisdiction and also that he was not permitted to do so. ARTICLE OF CHARGE II Shri. S. S. Gujar, Appraiser had not at all examined the Import Consignment loaded in Container No.IALU4553921 under Bill of Entry No.4553921 dated 04.12.2006. However, Shri. S. S. Gujar, Appraiser had cleared the aforesaid consignment lying at Frere Basin 1 not within his jurisdiction, using his user ID Number on the EDI System by calculatingly feeding an Examination Report of having Opened and examined 40 pkgs in the present of CHA and had generated the fallacious documents to make an impression that the consignment had been examined and had given the out of charge. ARTICLE OF CHARGE III Shri. S. S. Gujar, Appraiser, with a deliberate and malafde intention, to help S/Shri Mohammed Ghouse Karim, Imran Chasmawala, importers and Shri Ramesh Pandey, employee of CHA M/s. Abba Sons (No.11/396) and to avoid payment of proper Customs duty, acted dishonestly, for illegal monetary consideration and to cause loss of revenue to the Government Exchequer and wrongful gain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to misconduct within the meaning of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. The disciplinary authority proceeded to impose a penalty of reduction of pay by three stages from ₹ 21,680/- + ₹ 5,400 (Grade Pay) to ₹ 19,370/- + ₹ 5,400/- (Grade Pay) in the timescale of pay of ₹ 9300 34,500 + 5,400 (Grade Pay) for a period of one year with effect from 15th March, 2014 without cumulative effect. (h) The petitioner assailed the aforesaid order of the Disciplinary Authority before the Appellate Authority. Mr. A. K. Kaushal, the then Chief Commissioner of Customs, Zone-I, who heard the appeal, was persuaded to dismiss the appeal and confirm the finding of misconduct as well as the penalty imposed by the disciplinary authority on the petitioner, by order dated 24th September, 2014. The Appellate Authority recorded that the act of the petitioner in attending to a consignment not under his jurisdiction, feeding a false examination report without examining its contents and ordering out of charge squarely fell in the category of gross misconduct or gross dereliction of duty and was in breach of the CCS (Conduct) Rules, 1964. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the petitioner which amounted to misconduct. Lastly, the Appellate Authority, despite recording a finding to the effect that the circumstances negated the allegation in the concluding part of Article of Charge-II, which speaks about mala fide intention of the petitioner to create false document, committed a gross error in upholding the findings of the disciplinary authority. 7. The learned Counsel for the petitioner would further urge that the pivotal question which warranted consideration was: whether there was misconduct on the part of the petitioner. In view of the justifiable reasons assigned by the Inquiry Officer based on cogent evidence and material, the disciplinary authority could not have disagreed with the findings of the Inquiry Officer as regards misconduct . The Tribunal lost sight of this crucial aspect and misdirected itself in concentrating more on the proportionality of the penalty, urged the learned Counsel for the petitioner. 8. Per contra, Mr. Shetty, the learned Counsel for the respondents, stoutly submitted that the finding of the disciplinary authority is impeccable. The facts which reflect the misconduct of the petitioner are rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct relatable to the lack of devotion to the duty or gross negligence. 11. The disciplinary authority deconstructed the article of Charge No.II in the following heads: (i) Charged Officer gave out of charge to the consignment without actually examining it. (ii) Charged officer calculatingly fed the examination report to create fallacious documents. (iii) Charged officer gave out of charge to the container which was not in his jurisdiction. 12. It is indubitable that the petitioner had given out of charge to the consignment without actually examining it and the said consignment was not then within his jurisdiction. Thus, item (i) and (iii) of the aforesaid heads were held to be duly proved by the Inquiry Officer as well. The controversy revolves around the proof of item (ii), namely, the petitioner calculatingly fed the examination report to create false document. In view of the exoneration of the petitioner of Charge-I and Charge-III, and the material on record which indicates that there was neither any conspiracy nor the petitioner had any inkling of the contents of the consignments which were found to have been imported by ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly, do not make out a case of misconduct entailing penalty, as imposed by the disciplinary authority. In contrast, the respondents asserted that the misconduct is writ large. 16. The jurisprudential connotation of misconduct is required to be kept in view. The norm of conduct expected of an employee is often spelled out in the Code of Conduct or the Conduct Rules. The complained act or omission is thus required to be tested on the touchstone of it being in conformity with the conduct expected of the employee. Rule 3 of the Conduct Rules enjoins the civil servant to maintain absolute integrity and devotion to duty and refrain from an act or omission, which can be termed as that of unbecoming of a government servant . Viewed through the prism of the statutory provision, the act or omission which is in breach of the prescription of conduct amounts to misconduct. Whether the complained act or omission amounts to misconduct is thus required to be judged in the context of the nature of such act or omission, the circumstances in which it occurred and its impact. 17. A profitable reference in this context, can be made to the judgment of the Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sconduct in office may be defined as unlawful behaviour 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 refection 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, if 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 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. (emphasis supplied) 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P. H. Kalyani v. Air France, Calcutta [(1964) 2 SCR 104], wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h ill motive, moral turpitude and improper or unlawful behaviour with an element of willfulness therein or any fagrant violation of an express stipulation, squarely fall within the mischief of misconduct. Negligence, lapse in performance of duty, errors of judgment or innocent mistake, on the other hand, stand at the other end of the spectrum and generally do not constitute a misconduct. In a given situation, a single act or omission or error of judgment would not ordinarily constitute misconduct though when such an error or omission results in serious or atrocious consequences the same may amount to misconduct. It is not an inviolable rule of law that the gross negligence or lapse in performance of duty entailing serious consequences may not amount to misconduct. Gross or habitual negligence in performance of duty may not involve means rea yet it may still constitute misconduct for disciplinary proceedings. 21. In the backdrop of the aforesaid exposition of law, reverting to the facts of the case, it is pertinent to note that the cleavage in the opinion of the Inquiry Officer and the disciplinary authority was on the point of the petitioner having calculatingly fed and ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the importer and CHA or had any nexus with the import of the goods by evading the customs duty. The petitioner was unaware of the factum of the import of the goods by evading the customs duty. There was no intent to either assist the importer or CHA in the evasion of duty nor there was any animus to cause wrongful loss to the revenue. The disciplinary authority, on the other hand, construed that there was an element of calculated action for failure on the part of the petitioner to notice the inadvertent mistake and immediately report the same to the superior officers. 25. In our view, the said factor is not germane to attribute the element of deliberateness, consciousness and willful action of preparing out of charge order, which the term calculatingly implies. The Inquiry Officer was justified in drawing an inference that the mental element in Charge-II drew its support and sustenance from the indictment against the petitioner in Charge-I, of which the petitioner was exonerated. We are persuaded to take this view for reasons more than one. 26. Firstly, the failure of the department to bring home the Charge-I to the petitioner dismantles the substratum of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an endorsement of having examined at least 70 packages, to conform to the norm of inspection of 5% of the consignment. 28. In our view, these circumstance, if considered in conjunction with total absence of ill motive, mala fide intent or animus to cause wrongful gain to the importers and the petitioner, lead to a legitimate inference that the act on the part of the petitioner was the result of negligence and carelessness. It falls short of misconduct . 29. The tribunal did not examine this aspect of the matter. The tribunal, on the other hand, posed unto itself the question of proportionality of the punishment. Since the Inquiry Officer and the disciplinary authority differed on the aspect of the culpability of the conduct, the tribunal ought to have examined the question of proof of misconduct. Thus, we are persuaded to interfere with the order of the tribunal as well as the orders of the disciplinary authority and the appellate authority. 30. The upshot of the aforesaid consideration is that the petition deserves to be allowed. 31. Hence, the following order. (i) The petition stands allowed. (ii) The impugned order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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