TMI Blog2007 (4) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ₹ 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 Bansal. 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 ₹ 3000/- in denomination of ₹ 500/- each whereupon Phenolphthalein powder was applied and the tainted money was handed over to the complainant. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enquiry. 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.3.2005, 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 appellant held: 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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 misconduct 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssarily the same thing as conduct involving moral turpitude. 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 behavio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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