This application under Article 226 of the Constitution of India has been filed to quash the proceeding dated 11.12.85 drawn up by the respondent N6.2 against the petitioner vide Annexure F to the writ application. That is quoted below :

xxxx  xxxxx xxxx

2. The legality and validity of this order is challenged in this writ application.

3. I have heard Shri B. Das, learned Advocate for the petitioner and Shri UB Saha, learned Advocate for the respondents. Ah affidavit-in-opposition has been filed on behalf of the respondents. Shri Das, learned counsel appearing on behalf of the petitioner submits that the three charges quoted above as against the petitioner even if it is true, does not come under the purview of the Central Civil Services (Classification Control and Appeal) Rules, 1965 and it is submitted that this cannot be a misconduct arising out of the petitioner's civil employment. Sri Das further submits that the proceeding are ab initio void and liable to be quashed.

4. Mr. Pas, learned Advocate appearing for the petitioner in this connection, regarding what is misconduct, places reliance in (1992) 4 SCC 54 (State of Punjab & others vs. Ram Singh Ex-Constable) wherein the Supreme Court in paragraph 5 and 6 regarding what is misconduct has laid down the law as follows:

"5. Misconduct has been defined in Black's Law Disctionary, 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, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."

Misconduct in office 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."

P. Ramanatha Aiyer'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 trupitude. 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 necessity 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 define 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 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 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. Its ambit has to be construed with reference to the subject matter arid the context wherein the term occurs, regard being had to the scope of the statute and the public pu

Click Here to Read the rest of this document