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Dr. (Smt.) Sushila Mishra Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberO. J. C. No. 1287 of 1979
Judge
Reported in1985(II)OLR494
ActsCentral Civil Services (Classification, Control, and Appeals) Rules, 1969 - Rules 3 and 4 to 22; Constitution of India - Article 226; Evidence Act - Sections 162
AppellantDr. (Smt.) Sushila Mishra
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateR.K. Mohapatra and P.V. Ramdas
Respondent AdvocateGaneswar Rath, Addl. S. C. (C)
DispositionPetition allowed
Cases ReferredS. P. Gupta and Ors. v. President of India and Ors.
Excerpt:
.....ethical or decorous behavionr befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in rule 5. any attempt to telescope rule 4 into rule 5 must be looked upon with apprehension because rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. it may as well be mentioned that rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him rule 4 does not specify a misconduct,'the above observations are squarely applicable to the case of the petitioner. in this connection we would do no..........contended that the petitioner took medicines by far and excess of her actual requirement and so misconducted herself. the documents relating to the preliminary enquiry being confidential in nature, copies thereof cannot be supplied to her. no statements were recorded during the preliminary enquiry. her prayer for shifting of the venue of the enquiry to cuttack could not be permitted. she was permitted to take assistance of a lawyer and to inspect relevant documents. the officers of the posts and telegraphs department including mr. b. narasiraham and mr. m. u. khan were not actuated by malice and mala fides. the actual enquiry has not started yet and so the allegations to the effect that there was denial of the principle of natural justice on various grounds are premature. on the other.....
Judgment:

K.P. Mohapatra, J.

1. In this writ petition, the petitioner has prayed for quashing the departmental proceeding initiated against her, or in the alternative for a direction to afford reasonable opportunity to defend herself at all stages at the said proceeding.

2. The case of the petitioner is that she was appointed as the Lady Medical Officer in Grade II of the Central Health Service under the Ministry of Health and Family Welfare and was posted to the Posts and Telegraphs Dispensary at Cuttack with effect from 20. 5 1968, Ever since, she has been serving with utmost devotion to duty coupled with high integrity, so much so that she was commended by the Director of Postal Services and the Assistant Director General (Complaints) for effective control of medical re-imbursement claims of postal employees resulting in serving of expenditure on that account. The control exercised by her in that direction created enemies in the department. With regard to the appointment of one Pramila Moharana for the post of Nursing Orderly in 1977, she was one of the expert members of the Selection Committee. Mr. B. Narasimham, the then Director of Postal Services (East) put pressure on her for selection of the above named candidate. As she did not relent to the pressure the said official became annoyed. Her husband Dr. B. C. Mohapatra was serving as a Medical Officer in the Posts and Telegraphs Dispensary. His services were terminated on 10. 6.1973. He instituted Title Suit No. 27 of 1975 against some of the opposite parties and others in the Court of the Subordinate Judge, Cuttack, and obtained a decree on 10. 5. 1979 against such termination. Enormous pressure was brought on her by Mr. R, Narasimham and Mr. M. U. Khan, the then Director of Postal Services in order to persuade her husband to withdraw the civil proceeding. As she did not agree, she incurred the wrath of these high officials. The behaviour of Mr. M. U. Khan towards her was also not at all cordial as would be borne out from Annexures-22 and 23. For the above reasons, high officers of the Posts and Telegraphs Department, such as, Mr. R. Narasimham and Mr. M. U. Khan bore grudge against her.

According to the existing rules, she was entitled to take medicines from the Posts and Telegraphs Dispensary for members of her family according to requirement. She took medicines in the months of May, June, July and August of the year 1977 lord treatment of herself and other members of the family according to necessity. For such action on her part a departmental proceeding was initiated against her and a charge (Annexure-1/1) with supporting materials (Annexures 1/2,1/3 and 1/4) were served on her by memorandum (Annexure-1) dated 7. 5. 1979. She submitted her written statement (Annexure-2). Opposite party No. 4 was appointed as the enquiring authority and opposite party No. 5 was appointed as the presenting officer on behalf of the department. The enquiring authority intimated her by Annexure-5 that the preliminary hearing-shall take place at New Delhi on 3. 8. 1979. But on account of her difficulties mentioned in Annexure-7, she requested him to conduct the enquiry at Cuttack. Her request was not acceded to, but instead, the preliminary hearing was posted to Calcutta. Her further representation to conduct the enquiry either at Cuttack or Bbubaneswar was also not disposed of. She requested for the documents relating to the preliminary enquiry conducted by the department as a result of which the charge was framed against her by Annexure-18, but the copies thereof were not supplied to her. As a result, she was seriously prejudiced in her defence in the departmental proceeding. Therefore, she has challenged the departmental proceeding in the writ petition on the grounds that the charge was too trivial in nature to be sustained, reasonable opportunity was denied to her for her defence and so there was violation of the principle of natural justice and in initiating the departmental proceeding, the authorities were actuated by malice and mala fides.

3. In their counter, the opposite parties have denied all material allegations and have inter alia contended that the petitioner took medicines by far and excess of her actual requirement and so misconducted herself. The documents relating to the preliminary enquiry being confidential in nature, copies thereof cannot be supplied to her. No statements were recorded during the preliminary enquiry. Her prayer for shifting of the venue of the enquiry to Cuttack could not be permitted. She was permitted to take assistance of a lawyer and to inspect relevant documents. The officers of the Posts and Telegraphs Department including Mr. B. Narasiraham and Mr. M. U. Khan were not actuated by malice and mala fides. The actual enquiry has not started yet and so the allegations to the effect that there was denial of the principle of natural justice on various grounds are premature. On the other hand, so far, the petitioner has been given full opportunity to defend herself. The charge brought against her is not trivial, but on account of misconduct, which the department shall prove during the enquiry. Therefore, the writ petition is premature and not maintainable.

4. Mr. R. K. Mohapatra, learned counsel for the petitioner urged the following points :

1. The charge framed against the petitioner does not ex facie show misconduct according to the Central Civil Services Conduct Rules (for short 'Conduct Rules'.) Therefore, even if the facts stated in the charge are admitted, a case of misconduct cannot be made out against the petitioner. Therefore the charge brought against her according to Rule 13 of the Central Civil Services (Classification, Control and Appeal) Rules (referred to as 'CCA Rules') is unsustainable. It is also too trivial in nature to be proceeded with.

2. Reasonable opportunity was denied to her to make her defence because, she was not furnished with the documents relating to the enquiry on the basis of which the charge was framed and her request to conduct the departmental enquiry in Cuttack or Bhubaneswar was not acceded to. Therefore, there was violation of the principle of natural justice.

3. Mr. M. U. Khan, the Post Master General, Orissa Circle, Bhubaneswar, was actuated by malice and mala fides in initiating the departmental proceeding,

5. The following charge was framed against the petitioner :

'Statement of Articles of charge framed against Dr. (Mrs.) S. Mishra, Medical Officer, P. & T. Dispensary, Cuttack.

That the said Dr. (Mrs. ) S. Mishra while functioning as Medical Officer-in-Charge, P. & T. Dispensary, Cuttack, during the period from May, 1977 to August, 1977 prescribed and took away 75 items of medicines in May, 1977 ; 60 items in June, 1977 ; 72 items in July, 1977 and 62 items in August, 1977 for herself and for the members of her family, which were far in excess of the actual requirements.

Dr. (Mrs.) S. Mishra by her above acts abused her powers and exhibited lack of integrity and conduct unbecoming of a Government servant, thereby contravening the provisions of Rules 3(1)(i) and (iii) of CCS(Conduct) Rules, 1964.'

Rule 3(1) (i) and (iii) of the Conduct Rules as relevant is reproduced below for easy reference :

'3. General

(1) Every Government servant shall at all times-

(i) maintain absolute integrity ;

(ii) x x x(iii) do nothing which is unbecoming of a Government Servant.'

6. According to the scheme of the Conduct Rules, Rule 3 is the general provision. Specific provisions of misconduct are contained in Rules 4 to 22, It a Central Government employee contravenes any of the provisions contained in Rules 4 to 22, his action will amount to misconduct for which a departmental proceeding can be drawn in accordance with the CCA Rules.

7. In Circular OM No. 11013/ 18/76-Estt. (A) dated 7. 2. 1977 the Department of Personnel issued the following instructions :

'(2) Case of trivial nature should be eliminated. Rule 3(1) of the Central Civil Services (Conduct) Rules, 1964 provides that a Government Servant shall at all times maintain absolute integrity and devotion to duty and do nothing unbecoming of a Government servant. This rule serves the specific purpose of covering acts of misconduct not covered by other specific provisions of the Rules. It is, therefore, necessary that disciplinary authorities should first satisfy themselves that the alleged acts of misconduct do not attract the provisions of any specific rule before taking recourse to Rule 3(1) ibid-Where action is taken under Rule 3(1) particularly on grounds of unbecoming conduct, special care should be taken to climinate cases of a trivial nature. Supervisory officers should look into this matter during periodic inspections and ensure that disciplinary proceedings under Rule 3(I) are not initiated on grounds which are unjustified. '

It is manifest from the Circular that cases of trivial nature should be eliminated and Charges should not be framed therefor.

8. Mr. R. K. Mohapatra learned counsel for the petitioner urged that the case against the petitioner is absolutely trivial in nature and so according to the Circular referred to above the charge should not have been drawn against her. He further contended relying upon a decision reported in A. I. R. 1984 S. C. 1361, A. L. 'Kalra v. the Project and Equipment Corporation of India Ltd., that Rule 3(1) of the Conduct Rules does not at all spell out misconduct and so the charge could not be based for contravention of rule 3(1) of the said rules. In the above reported decision A. L. Kalra was an employee of the Project and Equipment Corporation of India Limited. In due course he got promotion to higher posts and was holding the post of Deputy Finance Manager, Grade II in 1978. Charge was framed against him to the effect that he drew an advance of Rs. 16050/- for purchase of a plot of land at Faridabad. He also drew a conveyance advance of Rs. 11000/- for purchasing a motorcycle. But he did not utilise the amounts for the above purposes and did not furnish relevant documents and receipt evidencing purchase of land and vehicle within the period prescribed in the relevant Rules. He did not also refund the amounts of advance to the Corporation within the period prescribed in the relevant, Rules. 1 he above acts according to the Corporation exhibited lack of integrity and conduct unbecoming of a public servant and so A. L. Kalra had violated Rule 4(1) (i) and (iii) of the P. E. C. Employees (Conduct, Discipline and Appeal) Rules. Rule 4(I) (i) and (iii) of P. E. C Employees (Conduct, Disciplinary and Appeal) Rules is identical to Rule 3(1) (i) and (iii) of the Conduct Rules. Rule 5 thereof prescribes various misconducts just as Rule 4 to 22 of the Conduct Rules. Desai, J. speaking for the Court interpreted Rule 4(I)(i) and (iii) in conjunction with the other rules of P. E. C. Employees (Conduct, Disciplinary and Appeal) Rules and held as follows :

'Rule 4 bears the heading 'General'. Rule 5 bears the heading'misconduct. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behavior in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behavionr befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary dilate on this point in view of a recent decision of this Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut, (1984) I SCC 1 : (AIR 1984 SC 505), where this Court held that 'everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty'. Rule 4 styled as 'General' specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-clauses of Rule 5 which specifies misconduct. It would, there-fore, appear that even if the facts alleged in the two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that Rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him Rule 4 does not specify a misconduct,'

The above observations are squarely applicable to the case of the petitioner. In the Conduct Rules, Rule 3 does not specify misconduct. Rules 4 to 22 thereof specify acts of misconduct for which action can be taken under Rule 13 of the CCA Rules. Rules 4 to 22 do not specify that if an employee takes several items of medicines as in the case of the petitioner, such action will amount to misconduct. Therefore ex facie the charge framed against the petitioner does not disclose misconduct warranting a departmental proceeding under Rule 13 of the CCA Rules.

9. The petitioner is a lady Medical Officer. According to the existing rules she was entitled to take medicine for-treatment of herself and other members of her family. She took different items of medicines as specified in Annexure-l|2. The documents which were supplied to her along with the article of charge do not disclose that the medicines taken were in excess of her, actual requirement and in taking the medicines on the plea that they were required for her own use and for use by other members of the family she was actuated by dishonest intention. There is no report of an expert in medicine to show that the medicines taken by her could not in ordinary circumstances be prescribed or consumed by a patient and if that was done, the consequences would be serious. This being the factual position, even if the contents of the charge are true, in view of the decision in the case of A. L. Kalra, ex facie no misconduct can be made out by the article of charge contained in Annexure-1/1.

10. According to the Circular dated 7. 1.1977 (referred to in para-7) it is the duty of the disciplinary authority to see that cases of trivial nature should be eliminated. The intendment of this circular is undoubtedly wholesome because, central government employees should not suffer the mental agony of being subjected to departmental proceedings for acts of trivial nature. This circular is also squarely applicable to the case of the petitioner. According to the charge, she took 72 items of medicines in May, 60 items of medicines in June, 72 items of medicines in July and 62 items of medicines in August, 1977 for six or seven members of her family including herself. She is herself a doctor and prescribed the medicines. When there is no other expert's report to prima facie show the contrary, it cannot be said that the medicines were far in excess of her requirement. Viewed from this angle, the charge seems to be of trivial nature and should have been eliminated in terms of the Circular dated 7. 2. 1977.

11. In consideration of the facts and the principle laid down by the Supreme Court in the case of A. L Kalra, we are of the view that the first contention of Mr. R. K. Mohapatra must prevail and it must be held that ex facie the charge framed against the petitioner does not specify or spell out misconduct.

12. The next point for consideration has become academic after our decision on the first point Yet, to give finality to our judgment, we would briefly refer to the grounds on which the petitioner entertains the grievance that she has so far been denied reasonable opportunity to make her defence in the departmental proceeding. The first plank is that along with the article of charge she was not furnished with the documents relating to the departmental enquiry on the basis of which the charge was framed against her. The reply of. the opposite parties is that statements were not recorded in the departmental enquiry and the other documents relating thereto are confidential in nature. Therefore, copies of the documents relating to the departmental enquiry including the complaint that was made against her cannot be supplied to the petitioner. We do not understand in what circumstances privilege has been claimed in respect of these documents. After the decision was rendered by the Supreme Court in A. I. R. 1982 Supreme Court 149 : S. P. Gupta and Ors. v. President of India and Ors., privilege can hardly be claimed in respect of most of the pubic documents. In this connection we would do no better than repeat the principle laid down with regard to secrecy of documents and claim of privilege. It was held thus :

'There is also in every democracy a certain amount of public suspicion and distrust of government, varying of course from time to time according to its performance which prompts people to insist upon maximum exposure of its functioning. It is axiomatic that every action of the government must be actuated by public interest but even so we find cases, though not many, where government action is taken not for public good but for personal gain or other extraneous considerations. Sometimes governmental action is influenced by political and other motivations and pressures and at times, there are also instances of misuse or abuse of authority on the part of the executive. Now, if secrecy were to be observed in the functioning of Government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open government with means of information available to the public, there would be greater exposure of the functioning of government and it would help to assure the people n better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency'.

On the basis of documents which emanated after departmental enquiry, charge was framed against the petitioner. Such documents can hardly be called secret because, the delinquent officer is entitled to know the origin of the complaint, statements if recorded and what actually transpired in the departmental proceeding against him/her so as, to impel the disciplinary authority to bring a charge. We, therefore, hold the view that all documents relating to the departmental enquiry including the complaint, if any, are not secret documents in respect of which privilege can be claimed under Section 162 of the Evidence Act. The second plank is justifiability of refusal of the prayer made by the petitioner to hold the enquiry either at Cuttack or Bhubaneswar. It cannot be gain said that the case of the petitioner is different from an ordinary employee of the Posts and Telegraphs Department. She is a lady, a mother of small children with an aged father to look after. Being the lady of the house she has to manage its affairs besides attending to her official duties. She cannot travel long distance alone and without an escort. Peculiarly placed as she is, her prayer to hold the enquiry either at Cuttack or Bhubaneswar by opposite party No. 4 was not at all unreasonable. It is queer that opposite party No. 4 without considering the peculiar problems and difficulties of the petitioner refused her prayer.

13. On consideration of the above, we feel that opposite parties 2 and 3 had no justification to refuse to supply copies of the documents of the departmental enquiry including the complaint, if any, to the petitioner and opposite party No. 4 had similarly erred in exercise of his discretion is not acceling to her request to hold the enquiry of the disciplinary proceeding either at Cuttack or Bhubaneswar.

14. The last point relates to mala fides of Mr. M. U. Khan, the Post Master General of Orissa Circle. Mr. Khan is not a party to this case. He has not got any opportunity to counter the allegations made against him by the petitioner. Annexures-21, 22 and 23 do not indicate that Mr. Khan bore grudge against the petitioner. By Annexure-22, Mr. Khan as the head of the Posts and Telegraphs administration of the State cautioned and advised the petitioner to improve her behaviour. This letter(Annexure-22) without any other materials does not disclose the mala fides of Mr. Khan towards the petitioner. A superior officer is always within his rights to correct a subordinate. Unless this is done, employees of departments will become indisciplined. If a superior officer tries to correct a subordinate and the subordinate considers the action of the superior mala fide, no department of government will function. In this view of the matter, we wholly reject the petitioner's contention that Mr. M. U. Khan was actuated by malice and mala fides for initiation of the departmental proceeding. Such baseless allegations should not have been made by the petitioner against a high official of the rank of Post Master General of a circle.

15. One of the prayers in the writ petition is to declare Rule 3(1)(i) and (iii) of the Conduct Rules as void on the ground of vagueness. During hearing, this prayer was abandoned. Therefore, we have not considered this aspect of the case.

16. We take this opportunity to observe that in the career of a government employee, a departmental proceeding is like a bolt from the blue Not only the employee remains under great depression and mental stress, he also feels humiliated. Superior officers in the office look down upon him and entertain suspicion about his conduct. Even colleagues at times shun his nearness and maintain distance. Therefore, it is the duty and responsibility of the disciplinary authorities not to initiate departmental proceedings against subordinate employees in a light hearted manner. Before initiating such a procetding the disciplinary authority must be fully satisfied that the action complained of amounts to misconduct according to the rules in force.

17. For the reasons stated above, we do not see any justification for continuance of the departmental proceeding against the petitioner which is accordingly quashed. We make no order as to costs.

J.K. Mohanty, J.

18. I agree.


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