Inspector Prem Chand Vs. Govt. of N.C.T. of Delhi and Others  Insc 363 (5 April 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 1815 OF 2007 [Arising out of SLP(C) No.15192 of 2006] S.B.
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
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,
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.
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
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. Branch registered against Sh.
Preet Pal Bansel, Inspr. Malaria, CLZ, MCD. The tainted money, although not
accepted by the accused Sh. Preet Pal Bansel was not seized by you being the
raid officer Inspr. Prem Chand despite being an important piece of evidence.
The accused was acquitted by the Hon'ble Court of Sh. S.S. Bal, Spl. Judge, Tis
Hazari, Delhi in the above noted case.
The above act on the part of you, Inspr. Prem Chand, No.D-I/413 amounts to
gross misconduct, negligence and dereliction in the discharge of his official
duties and rendering you liable for departmental action under Delhi Police
(Punishment and Appeal) Rules, 1980."
He was held guilty of the said charges. A second show-cause notice was
issued to the appellant to which cause was shown by him. By an order dated
28.3.2005, a punishment of forfeiture of one year's approved service was
imposed upon the appellant. He preferred an appeal thereagainst. The appellate
authority, being the Commissioner of Police, while dismissing the appeal of the
"I have examined the appeal, the D.E. File and other relevant documents
available on the file. Due procedure was followed by the E.O. During the
departmental proceedings. The appellant was given mandatory opportunities to
defend his case and he had availed of the same. The E.O. While submitting his
findings had proved the charge framed against the appellant. The disciplinary
authority after having gone through the D.E. file evidence on record as well as
written/oral submissions of the appellant had passed his final order awarding
him the punishment under appeal which is self speaking and reasoned order. The
appellant being a raiding officer should have seized the tainted money as case
property but he had failed to bring an important piece of evidence on record,
resulting the acquittal of the accused by the Hon'ble Court. Though, the trial
court had not passed any adverse remarks against the appellant while passing
the judgment, it is quite clear that the appellant had failed to discharge of
his official duties as per law, which amounts to serious misconduct on the part
of the appellant. Therefore, the punishment awarded to him is justified and is
commensurate with the gravity of misconduct committed by him. No infirmities
were committed either by the E.O. or by the disciplinary authority. None of the
appellant's pleas has any force. Hence, the appeal of the appellant is
The original application filed by the appellant before the Central
Administrative Tribunal, Principal Bench, Delhi, questioning the validity or
legality of the said order of punishment as also the appellate order was
dismissed by the Tribunal by its judgment dated 15.2.2005. A writ petition
preferred thereagainst by the appellant has been dismissed by a Division Bench
of the Delhi High Court opining:
"We have also noted that in such a matter, if the plea of the
petitioner is accepted and the accused not accepting the bribe money is to be a
reason for not seizing the bribe money there was no need to launch prosecution
against the accused. This not having been done resulted in the acquittal of the
accused. The reasoning given by the Tribunal, therefore, does not warrant
interference under Article 226 of the Constitution of India. The learned
counsel for the petitioner has further submitted that even if it is assumed
that there is failure to seize the currency notes, this does not amount to
misconduct. The Tribunal has analyzed various definitions of the word
and we are in agreement with the conclusion of the Tribunal. Furthermore,
misconduct need not be founded on a positive act but can also be based upon an
omission of duty required to be done by the public servant."
The contention of the learned counsel for the appellant is that in the
peculiar facts and circumstances of this case, the appellant cannot be said to
have committed any misconduct.
Mr. A. Sharan, learned Additional Solicitor General appearing on behalf of
the respondents would, on the other hand, support the impugned judgment.
Before adverting to the question involved in the matter, we may see what the
term 'misconduct' means.
In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4) SCC 54],
it was stated:
"Misconduct has been defined in Black's Law Dictionary, 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,
misbehavior, delinquency, impropriety, mismanagement, offense, 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, willful in character.
Term embraces acts which the officer holder had no right to perform, acts
performed improperly, and failure to act in the face of an affirmative duty to
In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term
'misconduct' has been defined as under:
"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
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."
[See also Bharat Petroleum Corpn. Ltd. vs. T.K. Raju, [2006 (3) SCC 143].
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. In Union of India
& Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has
placed reliance, this Court held so stating:
"Code of conduct as set out in the Conduct Rules clearly indicates the
conduct expected of a member of the service. 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 duty in service, it is misconduct (see Pierce v.
Foster, 17 Q.B. 536, 542).
A disregard of an essential condition of the contract of service may constitute
misconduct [see Laws v.
London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was
adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent,
Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela
v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of
misconduct in Stroud's Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of
negligence, errors of judgment, or innocent mistake, do not constitute such
[Emphasis supplied] 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.
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
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.
This Court in Zunjarrao Bhikaji Nagarkar vs.
Union of India & Ors., [1999 (7) SCC 409], has categorically held:
"Initiation of disciplinary proceedings against an officer cannot take
place on information which is vague or indefinite. Suspicion has no role to
play in such matter. There must exist reasonable basis for the disciplinary
authority to proceed against the delinquent officer. Merely because penalty was
not imposed and the Board in the exercise of its power directed filing of
appeal against that order in the the Appellate Tribunal could not be enough to
proceed against the appellant. There is no other instance to show that in
similar case the appellant invariably imposed penalty."
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
Impugned judgment, therefore, in our opinion cannot be sustained, It is set
aside accordingly. The appeal is allowed. No costs.