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If you search the "Indian Penal Code" or the "Code of Criminal Procedure", you will not find the definition of the word "corruption". It is also not found in the "Prevention of Corruption Act". Similarly the word "misconduct" and the word "unbecoming conduct" have not been meaningfully defined in any of the Conduct Regulations. Corruption in detail has been dealt with in subsequent pages of this module. Various dimensions of misconduct are now considered here.
The dictionary meaning of "misconduct" is given as "bad management", "mis-management", "malfeasance or culpable neglect of an official in regard to his office" (Murray's Dictionary).
"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"(Ballentine's Law Dictionary).
It implies a wrongful intention and not a mere error of judgement (Law Lexicon)
Thought not defined in any enactment, the legal content of this word is vividly brought out in judicial pronouncements. All these judicial decisions stress the importance for cleanliness and purity both in public and private life of public servants, while dealing with this term
The word "misconduct" is a sufficiently wide expression and covers any conduct which in any way renders a man unfit for his office or is likely to tamper or embarrass the administration. In this sense grossly improper or unbecoming conduct in public life may also become misconduct and may render an officer liable for disciplinary action therefore.
[Gulam Mohiuddin vs. State of W.B., A.I.R 1964 Cal.503]
It is not necessary that the alleged act or omission by a member of service should be committed in the course of discharge of his duties as a servant of the Government of India, in order that it may form the subject matter of disciplinary proceedings. The existence of relationship of master and servant is not necessary for taking disciplinary action against a person in service.
[(Govind Menon vs. Union of India A.I.R 1967 S.C.1274)]
Misconduct is something more than negligence. It is the intentional doing of something, which the doer knows to be wrong, or which he does recklessly not caring what the result may be.
(Rasabathi Bewa and another vs. Union of India, AIR 1961 Orissa 113)
Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the services. It would follow that conduct which is blameworthy for the Government Servant in the context of conduct rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duties in service, it is misconduct. Rule 24 of PNB Officer Employees (Conduct) Regulations, 1977 defines "Acts of Misconduct" as under-
A breach of any of the provisions of these Regulations (Conduct Regulations) shall be deemed to constitute misconduct punishable under the PNB Officer Employees (Discipline & Appeal) Regulations 1977.
The web site of Punjab National Bank, a nationalised bank of All India standing, defines misconduct through enumeration (not through content description) and lists vigilance cases as those involving any of the following:
Commission of criminal offences like demand and acceptance of illegal gratification, possession of disproportionate assets, forgery, cheating, abuse of official position with a view to obtaining pecuniary advantage for self or for any other person; or
Following cases would also be perceived to have vigilance overtones and invite major penalty:
Irregularities in opening of accounts leading to the creation of fictitious accounts.
The criteria indicated above for determination of a vigilance angle in a case would exclude all cases of misdemeanors in personal life. Administrative misconduct such as unpunctuality, drunken behaviour at work etc. would again be left to the disciplinary authority to deal with in an appropriate manner. (These are deemed as "misconduct without vigilance angle" or "Administrative lapses")
The Chief Vigilance Officer has been authorised to decide upon the existence of a vigilance angle in a particular case, at the time of registration of the complaint. Once a complaint has been registered as a vigilance case, it will have to be treated as such till its conclusion, irrespective of the outcome of the investigation."
Besides the written code of conduct specified in the rules framed by the Government or other conduct regulation of Statutory Corporations, there is also an unwritten code of conduct governing the government servants/public servants in their official and private life. This is because the term being of a generic nature, it carries sweeping implication and cannot be specified with exactitude for all time to come. Whatever cannot be accepted as good conduct, may fall with this term. This is brought out by the following case law.
While the government servants conduct rules purport to describe the various kinds of misconduct, which a civil servant may commit, and for which departmental action may be taken against him, yet in the very nature of things the conduct rules cannot be exhaustive of every conceivable kind of misconduct that may be committed by the civil servant. Ultimately what should be regarded as misconduct on the part will have to be decided by the government keeping in view the nature of relationship as master and servant.
(A.R.R.Deshpande vs. Union of India and others, 1971WLR 776-DEL)
Lack of efficiency or failure to attain the highest standard of administrative ability while holding a high post would not by themselves constitute misconduct. If it were so every officer rated average would be guilty of misconduct. It is the duty of the employer to screen the candidates properly, rate his skill and efficiency and then select him for a contract of employment. It is also the employer's duty to provide need based training and skill development to the employee to enable him attain the level of efficiency. However the employee is responsible for his acts of negligence in the performance of his duty and has to compensate any loss caused by to the employer on account thereof.
However gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings. (Union of India vs. Shri J.Ahmed S.L.R. 1979 840 S.C)
Employment is a contract of utmost good faith. Employer assumes and depends on the personal integrity, skill and efficiency of the employee. The contract of employment is based on these assumptions. But while a single instance of lack of faith may break the contract and even lead to its termination through dismissal of the employee, solitary cases of negligence rarely shown in performance will not be deemed a misconduct, though the employee may have to make good any loss caused to the employer on account of his negligence in duty (e.g. a receiving cashier in a bank will have to make good any loss or shortage in his cash receipts occasioned on account of his negligence, even if occasioned on a single instance
The contract of employment presupposes two basic attributes of the employee i.e. reliability (dependability or trustworthiness) and utility (based on suitability and efficiency). When either of the core attributes are missing the employee faces misery. But there is a subtle difference between loyalty and efficiency. Disloyalty makes the employee unfit for continuance. This is the barest minimum that an employee should possess. The employee who is not loyal cannot be deemed to carry out his functions in good faith or to perform his duties always in the best interests of the employer. Bad faith represents a vicious state of the mind or illness of the mind. Here the unreliable mind makes the employee not suitable for the employment. This includes not only vigilance-based misconduct, but also wilful neglect or wilful insubordination etc. Such employee may set a wrong example to other sober and upright members and may set in process a continuous insidious influence. DA Regulations is the fitting answer for dealing with these employees. It will have preventive effect, if these employees are terminated from their service by way of punishment. Once out of employment the concerned ex-employee no longer possesses the opportunity to misbehave. It is also preventive because, it is a loud message to the remaining employees, that if ever anyone of them were to follow the example, the same fate awaits them. The punishment here acts as deterrence. Habitual negligence or gross negligence also comes under this category. Employee, who has once erred and counselled or warned, fails to correct himself and repeats the same mistake again and again. Thus he commits habitual negligence. He lacks the capacity for self-correction and to benefit from counsel. Similarly if an employee were to show abnormal negligence in the performance of his duty resulting in harm, injury not only to the employer, but can also to third parties, this is gross negligence. A normal person of prudence has to respect laws of safety, and when he fails to come to this essential standard or safeguard, he is deemed as "criminally negligent"
However misconduct involving other types of omissions caused due to lack of knowledge, lack of efficiency, error in judgement etc. or not intentionally caused. Technically they are not misconduct, but inefficient or sub-standard performance. Lack of competency is not a misconduct, though a serious disability in terms of suitability for service. It has to be properly dealt with administratively. In the first place the root-cause why the employee has committed the lapse or omission has to be inquired into. It is also possible that imperfect systems or procedures may also lead to omissions.
A comprehensive list of misdeeds that will constitute misconduct is given in the case law [T.Modi vs. State of Bombay, AIR 1962 Guj, 197) with a rider that the enumeration is not exhaustive. This is reproduced below:
Where the act or conduct of the servant is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master;
The following Rules are generally included to form the core of a public servant's responsibility and find a place in most of the conduct regulations. This particular extract is from All India Services (Conduct) Rules 1968. Parallel provisions find a place in PNB Officer Employees (Conduct) Regulations 1977.
Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing, which is unbecoming of a member of the service.
Every member of the service shall take all possible steps to ensure integrity of and devotion to duty by, all Government servants for the time being under his control and authority.
No member of service shall, in the performance of his official duties, or in the exercise of his powers conferred on him, act otherwise than in his own best judgement to be true and correct except when he is acting under the direction of his official superior.
The direction of the official superior shall ordinarily be in writing. Where the issue of oral direction becomes unavoidable, the official superior shall confirm in writing immediately thereafter.
A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing, as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing.
Rule 3(i) expressed above is too wide. It can be used to cover all types of omissions, many of which can be of a trivial nature. In an Office Memorandum, dated 8th February 1977, the Department of Personnel and Administrative Reforms, Government of India, clarified as under:
"Rule 3(i) 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 purposes of covering acts of misconduct not covered by other specific provisions of the Rules. It is therefore necessary hat the 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(i) ibid. Where action is taken under Rule 3(i) particularly on grounds of unbecoming conduct special care should be taken to eliminate cases of 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".