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2019 (12) TMI 1026 - HC - CustomsMisconduct - Appraiser (Customs) - out of charge order - it is alleged that the petitioner cleared the consignment by making a false report that he had examined 40 packages in the said consignment, despite the said consignment not being detained in the area under his jurisdiction. - whether petitioner can be said to have committed misconduct warranting disciplinary action? HELD THAT:- The jurisprudential connotation of “misconduct” is required to be kept in view. The norm of conduct expected of an employee is often spelled out in the Code of Conduct or the Conduct Rules. The complained act or omission is thus required to be tested on the touchstone of it being in conformity with the conduct expected of the employee. Rule 3 of the Conduct Rules enjoins the civil servant to maintain absolute integrity and devotion to duty and refrain from an act or omission, which can be termed as that of ‘unbecoming of a government servant’. Viewed through the prism of the statutory provision, the act or omission which is in breach of the prescription of conduct amounts to misconduct. Whether the complained act or omission amounts to misconduct is thus required to be judged in the context of the nature of such act or omission, the circumstances in which it occurred and its impact. The act or omission, which is tainted with ill motive, moral turpitude and improper or unlawful behaviour with an element of willfulness therein or any fagrant violation of an express stipulation, squarely fall within the mischief of misconduct. Negligence, lapse in performance of duty, errors of judgment or innocent mistake, on the other hand, stand at the other end of the spectrum and generally do not constitute a misconduct. In a given situation, a single act or omission or error of judgment would not ordinarily constitute misconduct though when such an error or omission results in serious or atrocious consequences the same may amount to misconduct. It is not an inviolable rule of law that the gross negligence or lapse in performance of duty entailing serious consequences may not amount to misconduct. Gross or habitual negligence in performance of duty may not involve means rea yet it may still constitute misconduct for disciplinary proceedings. The cleavage in the opinion of the Inquiry Officer and the disciplinary authority was on the point of the petitioner having calculatingly fed and generated fallacious (false) document – item (ii) extracted above. The word “calculatingly” covers in its fold a mental element. It is impregnated with an idea of deliberateness. It implies that the action was taken after taking into account the foreseeable consequences thereof. The element of an intentional and deliberate act, therefore, was part of Charge-II attributed to the petitioner. If the element of state of mind is thus completely effaced the matter gets restricted to the consideration of the aspect of the gross negligence or carelessness. There are circumstances which suggest that though there was lapse on the part of the petitioner in issuing out of charge order, undoubtedly without inspecting the consignment in question; yet it cannot be said to be such a gross negligence as would constitute misconduct - if considered in conjunction with total absence of ill motive, mala fide intent or animus to cause wrongful gain to the importers and the petitioner, lead to a legitimate inference that the act on the part of the petitioner was the result of negligence and carelessness. It falls short of “misconduct”. The tribunal did not examine this aspect of the matter. The tribunal, on the other hand, posed unto itself the question of proportionality of the punishment. Since the Inquiry Officer and the disciplinary authority differed on the aspect of the culpability of the conduct, the tribunal ought to have examined the question of proof of misconduct. Thus, we are persuaded to interfere with the order of the tribunal as well as the orders of the disciplinary authority and the appellate authority. Petition allowed.
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