IMPORTANT POINT
An error of judgment per se is not a misconduct. It is necessary for the disciplinary authority to arrive at a finding of fact that the delinquent employee was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character.

Headnote:(i) SERVICE LAW — Delhi Police (Punishment and Appeal) Rules, 1980 — Misconduct — Unlawful behaviour in relation to discharge of his duties in service which was wilful in character — An error of judgment per se is not misconduct — Appellant working with Delhi Police, posted in Anti-Corruption Branch was detailed as a Raid Officer — Complainant wanted a raid to be conducted in a case of an Inspector, MCD allegedly demanding illegal gratification — In the trap case when complainant attempted to pay the said amount to the Inspector, MCD, he did not accept the same — Tainted money was not seized and it was returned to the complainant by the Investigating Officer — In criminal prosecution, Inspector, MCD was acquitted — During pendency of these criminal proceedings, however, a departmental proceeding was initiated against appellant for dereliction in discharge of his official duties as bribe money was not seized by him being the raid officer — Punishment of forfeiture of one year’s approved service was imposed upon appellant — No finding of fact recorded that appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character — Whether appellant can be said to have committed any misconduct — (No).
       Held : It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. (Para 12)
       The Tribunal opined that the acts of omission on the part of the appellant was not a mere error of judgment. On what premise the said opinion was arrived at is not clear. We have noticed hereinbefore that the appellate authority, namely, the Commissioner of Police, Delhi, while passing the order dated 29.8.2003 categorically held that the appellant being a raiding officer should have seized the tainted money as case property. In a given case, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard and fast rule can be laid down therefor. (Para 13)
       The Criminal Court admittedly did not pass any adverse remarks against the appellant. Some adverse remarks were passed against the Investigating Officer, who examined himself as PW-4 as he had handed over the tainted money to the complainant PW-2. A finding of fact was arrived at that the accused did not make demand of any amount from the complainant and thus no case has been made out against him. (Paras 14 & 15)
       We, therefore, are of the opinion that in the peculiar facts and circumstances of this case, the appellant cannot be said to have committed any misconduct. (Para 16)
       (ii) WORDS AND PHRASES — Word ‘Misconduct’ — Meaning. (Paras 10 & 11)

Judgement Key Points

Based on the provided legal document, the key points are as follows:

An error of judgment by a public servant does not constitute misconduct per se. It is essential that the disciplinary authority finds that the employee was guilty of unlawful behavior related to their duties, which was willful in nature (!) .
Misconduct is defined as wrongful or unlawful behavior that is willful and involves a breach of established rules or duties. It is distinguished from mere errors of judgment or negligence, which do not necessarily amount to misconduct (!) (!) (!) .
In cases involving disciplinary proceedings, it is necessary for the authority to establish a clear finding of fact that the employee engaged in unlawful conduct that was deliberate or wilful. An error of judgment alone, without evidence of wilful misconduct, does not suffice (!) (!) .
The term ‘misconduct’ encompasses acts performed improperly, acts which the officer had no right to perform, or failure to act when there was an affirmative duty to do so. It does not include mere mistakes or negligence (!) (!) .
The absence of adverse remarks in criminal proceedings does not automatically imply misconduct. The focus is on whether the employee’s actions were unlawful and wilful, not solely on the outcome of criminal trials (!) (!) .
The case emphasizes that what constitutes proper conduct can depend on the facts and circumstances of each case. There are no hard and fast rules, and what is expected can vary based on the specific situation (!) .
The disciplinary authority must follow proper procedures, provide the employee with opportunities to defend, and base its findings on clear evidence. Failure to do so can render disciplinary actions invalid (!) .
In the context of police or public service, misconduct involves unlawful behavior related to the discharge of official duties, which can include acts of omission if they are unreasonable or improper under the circumstances (!) .
The legal interpretation of misconduct includes acts of negligence or errors of judgment unless they are accompanied by wrongful intent or unlawful conduct. Simply failing to seize evidence or make a particular decision does not automatically amount to misconduct (!) (!) .
Overall, the case underscores the importance of establishing wilful and unlawful behavior for disciplinary action to be justified, and that mere errors, negligence, or omissions without wrongful intent do not constitute misconduct under the law.

JUDGMENT

S.B. Sinha, J. — Leave granted.

2. The appellant was at all material times and still is working with the Delhi Police. He was posted in Anti-Corruption Branch in 1997. While posted in the said Branch, he was detailed as a Raid Officer. Allegedly, the complainant Kamlesh Kumar Gupta s/o Prabhu Dayal Gupta, resident of Lajwanti Garden, Delhi, lodged a complaint with the Anti-Corruption Branch of Delhi Police that Preet Pal Bansal, Inspector (Malaria), MCD, was demanding a sum Rs.3,000/- by way of illegal gratification from him for not challaning the godown of the complainant (PW-2). The complainant wanted a raid to be conducted in the said Preet Pal Bansal. Appellant constituted a raiding party consisting of the complainant Kamlesh Kumar Gupta (PW-2) and Devender (PW-4) and other police officers including himself. In the preparation of the said operation, the complainant produced a sum of Rs.3000/- in denomination of Rs.500/- each whereupon Phenolphthalein powder was applied and the tainted money was handed over to the complainant. When the complainant attempted to pay the said amount to Shri Preet Pal Singh at his godown, he did not accept the same. The tainted money was, therefore, not seized. It was allegedly given out by him that the complainant may give the same to one Devender (PW-4) and he in turn would accept the money from him. Whereafter, PW-4 sat on the pillion of the scooter and they reached at the Petrol Pump situate at the Mall Road, Delhi. He was arrested.

3. However, the tainted money was returned to the complainant by the Investigating Officer. In the criminal proceedings which was initiated against Preet Pal Bansal, the Criminal Court recorded a judgment of acquittal holding:

“....These inconsistencies in respect of place of return of tainted money to the complainant raises speculation if at all the money was returned to PW-2 by PW-4 or the same was handed over to him as claimed. Thus, different versions with regard to talks in the godown and place with regard to return of the money by PW-4 to PW-2 coupled with the fact that the accused did not accept the bribe money either from PW-2 or PW-4 sans requisite corroboration as to the testimony of PW-2 complainant in respect of the prior demand of the bribe money and with regard to demand of money by the accused from PW-4 at the time of petrol pump and that the accused had already challaned the complainant previously on 2/3 occasions cast shadow of doubt on the veracity of the testimony of PW-2, PW-4 and PW-5 and creates doubt about the claim of the prosecution that the accused ever demanded the bribe from the complainant. The possibility of P-2 having grudge against the accused on account of having challaned the complainant for 2/3 occasions in respect of his godown and got him fined which fact is not disputed, cannot be ruled out. In my opinion, it would not be expedient to act, accept or rely upon the testimony of PW-2 and PW-4. In addition to this, it is also possible that the mind of PW-4 was not free from at the time of deposing in the court due to fear of departmental enquiry.”

4. During pendency of the said criminal proceedings, however, a departmental proceedings was initiated against the appellant on or about 19.2.2002 wherein the following allegations were made:

“It is alleged that you Inspector Prem Chand, No.D-I/413 while posted in A.C. Branch was detailed as raid officer on 10.10.97 on complaint of Shri Kamlesh Kumar Gupta S/o Sh. Prabhu Dayal Gupta R/o WZ-71-B, Gali No.7, Lajwanti Garden, Delhi. The complainant brought the bribe money to the A.C. Branch, phenolphthalein powder was applied on these currency notes in the presence of panch witness Sh. Devender Singh S/o Sh. Sukhbir Singh, LDC E-III, Education Department, Old Sectt., Delhi. You, Inspr. Prem Chand, No.D-I/413 organised a raid on Sh. Preet Pal Bansel, Inspector Malaria, CLZ, MCD for demanding Rs.3000/- as bribe. He got case FIR No. 40 dated 10.10.97 U/S 7/13 POC Act, P.S. A.C. Br

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2007 Supreme(SC) 467

IMPORTANT POINTAn error of judgment per se is not a misconduct. It is necessary for the disciplinary authority to arrive at a finding of fact that the delinquent employee was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character.

Cases Referred (4)

IMPORTANT POINT
An error of judgment per se is not a misconduct. It is necessary for the disciplinary authority to arrive at a finding of fact that the delinquent employee was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character.