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A CRITICAL STUDY OF THE MISCONDUCT AND DISCIPLINE PROCESS FOR GOVERNMENT EMPLOYEE IN INDIA
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A CRITICAL STUDY OF THE MISCONDUCT AND DISCIPLINE PROCESS FOR
GOVERNMENT EMPLOYEE IN INDIA
AUTHORED BY - SIMANT
PRIYADARSHI & DEEPAK GUPTA
ABSTRACT
When an employee engages in misbehaviour, it can be
in the form of actions, inactions, or behavioural patterns. This could support
the employer's decision to take disciplinary action. Misconduct can be defined
as wrong, improper, or illegal behaviour driven by a deliberate, premeditated
goal or by an unwavering disregard for the repercussions of one's actions.
Misconduct is regarded as inappropriate or unacceptable behaviour, particularly
when it involves a professional. Misconduct encompasses both illegal acts, such
as deceitful manipulation, and actions deemed inappropriate. Because
"Gross Misconduct" is sufficiently serious and may even be illegal,
such as stealing or sexual harassment, it can result in an immediate
termination. Rather than failing to act or doing nothing at all,
which could be referred to as subpar performance, misconduct is an action.
Government employees are crucial to the operation of the nation's government.
They are significant parts of the country's administrative structure. They
serve as the cornerstones of the government departments, which are in charge of
carrying out the policies of the government. At the local level, they offer public
services to the people, and in a similar vein, they take public complaints,
representations, and demands to higher authorities for a successful resolution.
Only the government employees' loyalty accounts for it. Compared to their
counterparts in the private sector, government employees have a different work
culture and set of responsibilities.
KEYWORDS- Professional, Misconduct,
Authorities, Proceedings, Servant
INTRODUCTION
Employees of the government are held to a set of
standards of conduct in both their official and personal capacities. These
responsibilities are inherent in their position. Employees of the government
have duties to both the public and the government. The Central Civil Service
Conduct (Rules) 1964 is one of the main rules that outlines the
responsibilities of civil servants and is one of the rules and regulations set
forth by various acts to enforce this.
Employees in a company or industrial concern may
have their employment terminated due to misconduct. Any act by a servant that
harms the employer's assets and reputation as well as the business enterprise
is considered misconduct. Any behavior that is included in model standing
orders or business concern standing orders that are specifically written to
meet the needs and requirements of the organization is considered misconduct.
When evaluating whether a specific act or omission constitutes misconduct,
consideration should be given not only to the harm to the employer but also to
the overall calm and well-being of the organization. "A transgression of some established and definite rule of action, a
forbidden act, a dereliction from duty, unlawful behavior, willful in
character, improper or wrong behavior" is the definition of
"misconduct" according to Black's Law dictionary. Regarding the
relationship between an employer and employee, it states further that
"misconduct, which renders a discharged employee ineligible for
unemployment compensation, occurs when the employee's conduct evinces willful
or wanton disregard of employer's interest, as in deliberate violations, or
disregard of standard of behavior which employer has the right to expect of his
employees, or in carelessness or negligence of such degree or recurrence as to
manifest wrongful intent or evil design." It's not always the case that
behaviour involving moral turpitude and misconduct are the same.
The term "misconduct" is relative and
must be interpreted in light of the context and subject matter in which it
appears, as well as the parameters of the Act or statute under interpretation.
"Misconduct" literally translates to "wrong or improper
behavior." A wide range of human behaviour is included in
"misconduct." It might be an act that interferes with the actor's
employer's ability to run their business smoothly. Misconduct can have petty
roots, like not doing your job, or it can have more serious roots, like acting
riotously or insubordinately while at work. The term "misconduct"
refers to a variety of behaviors, including improper or wrong behavior, bad behaviour,
unlawful behavior, and mismanaged behavior. Malfeasance, misdemeanor,
delinquency, and offense are all included.
The phrase
does not always suggest wrongdoing or criminal intent. Therefore, misbehavior
is a general term, and specific misbehavior such as following instructions,
being subordinate, ignoring tasks, etc., are species of misbehavior. But
"misconduct" and "negligence" are two entirely different
things. While some forms of carelessness might qualify as misconduct, others
might not. Even though there may be lapses in performance or errors in
assessing the circumstances, these situations do not always amount to
misconduct unless the consequences of the negligence are so severe as to render
the negligence irreversible or the resulting damage is so great as to place a
high degree of blame on the negligent party. Errors may be a sign of
carelessness, and the severity of the carelessness may be indicated by the
degree of culpability. More harm can frequently be caused by negligence than by
intentional evil or malice. The term "misconduct," while imprecise in
definition, derives its meaning from the circumstances, the deviance in
behavior, and its impact on the nature of responsibility and discipline. The
act complained of bears a forbidden quality or character; it may involve moral
turpitude; it must be improper or wrong behavior; unlawful behavior, willful in
character; forbidden act, a transgression of established and definite rule of
action or code of conduct but not merely an error of judgment, carelessness, or
negligence in performance of duty. When a police constable is on duty and
consumes large amounts of alcohol, it is considered grave misconduct under the
Indian Service Law and is grounds for termination from service. Employers find
general misconduct problematic, but gross misconduct calls for immediate
disciplinary action—typically termination.
OBJECTIVES
OF THE STUDY
1. To study on practical implication of
the judicial decisions explaining the extent and scope of judicial control in
Government’s relation to civil service matters.
2. To study on the role of
administrative system for promoting transparency and people’s participation.
3. To study on the decision making,
implementation and evaluation of projects programmes and public policies for
good governance.
4. To identify the strategy that could
be formulated for maintaining balance between the interests of the civil
servants.
5. The fundamental interest of the
society that conflict with each other.
6. To suggest the necessary legislative
and reforming parameters needed in this regard.
STATEMENT
OF THE RESEARCH PROBLEM REGARDING TO GOVERNMENT EMPLOYEE
It
should be noted that as of right now, neither a law nor a regulation precisely
defines the idea of "reasonable opportunity," as stated in Article
311 of the Indian Constitution. The courts are responsible for determining
whether the applicable laws or regulations give a civil servant a reasonable
opportunity. As a result, the courts are issuing a variety of rulings that are
confusing. Thus, the researcher believes that it is imperative to reevaluate
Article 311 of the Indian Constitution because it is currently being abused to
grant immunity to dishonest civil servants or government employees whose
integrity is in question.It
is in this backdrop that Civil Servants accused of any crime cannot be easily
suspended pending inquiry of the offence committed.
RESEARCH
PROBLEM
1. By and large the civil service in
India has lost its neutral and anonymous character and even though there are
still some upright civil servants they are getting marginalized in the process
of governance.
2. Increasingly, corrupt practices have
become prevalent in the higher civil service and public perception of higher
civil servants as a class is not edifying.
3. The higher civil servants
particularly officers of the Indian Administrative Service Indian Police
Service and Indian Forest Service working in different States of the country do
not have a fixed tenure in any post and hence are not able to achieve the targets
fixed for them in their assignments. In the absence of any fixed tenure, these
officers of the All India Services are not able to function as effective
instruments of public policy and are simply wasted due to frequent transfers
from one post to the other.
4. A majority of civil servants are
arrogant. They are not perceived as people friendly and by and large they have
lost touch with ground realities... Civil servants in the States have almost
given up the earlier practice of sustained tours of remote areas and night
halts in those areas which are so essential to understand and redress problems
of the poor and the weaker sections of the community.
5. There is ‘groupies’ among higher
civil servants and increasingly they have been divided along sectarian lines –
an extremely unfortunate development. Some civil servants develop an unhealthy
nexus with power brokers and do not hesitate to resort to questionable means to
get good postings in India or abroad.
SIGNIFICANCE
OF THE RESEARCH PROBLEM AND JUSTIFICATION OF PROFESSIONAL MISCONDUCT
In
the twenty-first century, a country's reputation, standing, and image in
international affairs are primarily determined by the commitment, competence,
efficacy, and efficiency of its civil servants and government servants. When there
are changes in leadership in democracies, they frequently occur within the
Cabinet and Parliament. The majority of the time, however, political transition
occurs throughout the administration as a whole, with important positions in
Government Ministries and Departments also changing hands and card-carrying
members sometimes exhibiting conflict as well as mutual mistrust due to
differing role interpretations.
HYPOTHESIS
1. Whether the Government Servant/ Civil
Servants, at present in India possess the necessary competence, skills, and
capability to perform multiple roles.
2. Whether Government Servant/Civil
Servant are constructive thinker, speedy decision maker and crisis manager in
view of the emerging problems in a successful way leading to the growth of the
economy of respective States.
3. Whether various legal instruments in
place in India guarantee job security and better conditions of service for
persons employed by the Government.
4. Whether Politics and Government
Service /Civil Service go hand in hand.
5. The various Suggestive Measures has
been undertaken for delinquent Government Servant/Civil Servant for displaying
in pivotal role in misconduct.
REVIEW OF
THE LITERATURE
The
following is a brief summary of the literature that is relevant to the current
study: - The insightful treatises "Parliamentary Govt. in England"
and "The Growth of Administrative Discretion" by Harold J. Laski
provide an excellent overview of the Home Civil Service of England, detailing
its origins, current relevance, and influence on English politics and society
at large. Likewise, a classic source for "The Role of the Civil Service in
the Modern World" is Herman Filner's "The British Civil Service"
(London 1937, P. 14–15). Herman Filner's seminal work on "The Theory and
Practice of Modern Government" also contains some excellent research. where
he has made an effort to provide a comprehensive analysis that highlights the
critical issues facing the civil service through comprehension, original
research, and first-hand observation. Civil Service and Civil Servant are
greatly impacted by John Alder's Constitutional and Administrative Law and
E.C.S. Wade & Godfrey Philips' Constitutional Law. Other books on Indian
constitutional law, such as the Introduction to Constitution of India by
Durgadas Basu and the shorter Constitution of India by Basu, emphasize the
significance of civil service and the need for recruitment, conditions of
service, and interpretation to be governed by laws that are subject to the
Constitution's provisions.
RESEARCH
METHODOLOGY
In
order to gather the necessary data for this study, the researcher used a
doctrinal or non-empirical method. The results of this study were derived,
among other things, from critical and analytical research. Two data sources,
namely primary and secondary, will be used in this study in order to produce
relevant findings and reliable recommendations. Data will be gathered through a
review of primary sources found in the library and online, including the Indian
Constitution and Government Recommendations, Disciplinary Proceedings Statutes,
Conduct Rules, Regulations, Commission Reports, Case Laws, etc. Besides these,
secondary sources include things like articles from law journals, reports from
independent agencies, papers given at various conferences and seminars, and
commentary pieces written by different authors.
Newspapers and various e-sources will
also be relied upon.
MISCONDUCT-
UNDER THE GOVERNMENT OF INDIA’S DECISIONS ON THE PROVISIONS OF CENTRAL CIVIL
SERVICES (CONDUCT) RULES, 1964, THE FOLLOWING ACTS MAY AMOUNT TO MISCONDUCT
1. If the act or conduct is prejudicial
or likely to be prejudicial to the interests of the employer or to the
reputation of the employer.
2. If the act or conduct is inconsistent
or incompatible with the due or peaceful discharge of his duty to his employer.
3. If the act or conduct of an employee
makes it unsafe for the employer to retain him in service.
4. The act or conduct of the employee is
so grossly immoral that all reasonable men will say that the employee cannot be
trusted.
5. If the act or conduct of the employee
is such that the employer cannot rely on the faithfulness of his employee.
6. If the act or conduct of the employee
is such as to open before him temptations for not discharging his duties
properly.
7. If the employee is abusive or if he
disturbs the peace at the place of his employment.
8. If he is insulting and insubordinate
to such a degree as to be incompatible with the continuance of the relation of
employer and employee.
9. If the employee is habitually
negligent in respect of the duties for which he is engaged.
10. If the neglect of the employee though
isolated, tends to cause serious consequences.
IMPORTANT
JUDICIAL RECOMMENDATION
&
LEADING CASES
In
several cases involving the termination or removal of civil servants from their
positions, our courts have been asked to interpret Article 311 over the course
of the last seven decades. This paper aims to conduct a critical analysis of
some of the most significant rulings made by the Supreme Court regarding
delinquent civil servants.
SATISH CHANDRA’S CASE
In
Satish Chandra Anand v. Union of India1, the petitioner agreed to be subject to
the Central Service (Temporary Service) Rules, 1949, which stipulated that he
could leave his position with one month's notice. His services were soon
terminated, and he was given a month's notice. Following that, the petitioner
filed a motion with the Supreme Court under Article 32 of the Constitution,
arguing that his dismissal was a flagrant breach of Articles 14 and 16 of the
document. In addition to accusing the other civil servants of being denied the
protections provided by Article 311 of the constitution, he also claimed
discrimination.
SHYAM LAL’S CASE
In
the case of Shyam Lal v. State of Uttar Pradesh2, where the appellant was
forcibly retired from service under Article 465A of the Civil Service
Regulations, which provided punishment for specific acts of gross misconduct,
Article 311 was once again subject to interpretation before the Supreme Court.
In actuality, charges were brought, and an investigation was carried out;
however, he was advised that the investigation was of an informal nature,
limited to gathering information regarding the question of whether he ought to
retire automatically. Later, he contested the order, claiming that it violated
Article 311 of the Constitution because it amounted to removal from service.
Furthermore, it was claimed that the rule allowing this kind of retirement
without giving a reason was invalid because it went against the terms of Art.
DHINGARA’S CASE
The
appellant in Purshotam All Dhingra v. Union of India5 began working for the
railways in 1924 as a signaler and was later promoted to chief controller (a
class III post) in 1950. He was designated as an officiant for class II service
in 1951. In the High Court, the civil servant filed a writ. The court decided
that because Mr. Dhingra was not given the chance to object to the proposed
action against him, the provisions of article 311 had been broken, making the
action against him unlawful. Mr. Dhingra then petitioned the Supreme Court
after a Division Bench of the same High Court overturned this decision. Section
311.
JUDGEMENT
BY THE COURT IN RECENT UNBECOMING OF GOVERNMENT SERVANT IN INDIA
B.
Dev v. Union of India & Others, The petitioner violated the Hon'ble High
Court's Circular No. 6/2002, acting in a manner unbecoming of a Government
Servant, and committed an offense under Sections 7 and 13(1)(d) of the
Prevention of Corruption Act, 1988. Additionally, the petitioner's conduct was
deemed unbecoming of the Government under Sections 7 and 13(I)(d) of the
Prevention of Corruption Act, 1988.
S.B.
Ramesh v. Ministry of Finance & Others, The government servant violated
Rule 3(1) (ii) due to negligence in performing his duty, failure to maintain
devotion to duty, and unworthy behavior. Additionally, the government servant
violated Rule 3(1) (iii) of CCS due to gross negligence in performing his duty,
failure to maintain devotion to duty, and unworthy behavior.
Sreenivasan
v. Servant and Union of India, Rule 15-A (1) of the CCS (Conduct) rules 1964
states that no government servant may sublet government accommodation that has
been assigned to him. This rule was broken by the lawful communications sent to
Shri N. Vinod Kumar's residence, which committed an act unbecoming of a
government servant and consequently continues to be absent without leave
application or permission. An officer of inquiry was designated.
SUGGESTIVE
MEASURES AND REMEDIES AGAINST IMPOSITION OF PENALTIES FOR COMMITTING MISCONDUCT
There
are numerous subspecies of misconduct, and a wide range of employee behaviors
can be classified as misconduct. The employer's remedies in the event that the
employee is found to have engaged in misconduct include suspension, termination,
and dismissal. There isn't a clear hierarchy regarding termination that
prioritizes some wrongdoing over others when deciding how harshly a crime is
punished. It's important to remember that the only circumstances under which an
employment can be terminated are those of proven misconduct. The inability to
perform effectively or with incompetence is not listed as a reason for
dismissal. Even in cases where there is employee misconduct, it can be
difficult for the employer to terminate an employee under our adversarial
system because evidence is difficult to present. The following are the remedies
available to a government servant who is dissatisfied with the Disciplinary
Authority's decision regarding the order that was made against him.
CONCLUSION
In
our nation, it's critical to find a balance between the demands of industrial
efficiency and social justice. By examining the case law, one can draw the
conclusion that there is no set interpretation of the ideas surrounding the
connection between misconduct and termination by the courts. Each case's unique
facts and circumstances will determine a lot. Using imprecise language only
ends up wasting the time of the courts. While there exist certain unambiguous
classifications of misconduct in the model standing orders, such as persistent
tardiness, theft, or fraud, there are also certain gray areas, such as gross
negligence and habitual negligence, whose interpretation is contingent on
particular situations.
Legislators
and the courts need to be more explicit and certain about what behaviors count
as misconduct and what does not. Uncertainty leads to systemic inefficiencies,
and legal entanglements can occasionally stop the economy's and commerce's
wheels from turning. For industrial matters, greater uniformity is required. In
addition, the courts must continue to act as a watchdog in the event that an
employee's rights are violated. When attempting to establish that an employee
has engaged in misconduct, an employer may encounter challenges due to the
broad application of concepts related to such misconduct.
Employers
cannot profit from the courts' strict application of standards, which would
undermine the economy's efficiency. It would be ideal if the courts developed
some set standards to guarantee the prompt resolution of cases and to remove
the stigma associated with employers.
REFERENCES
1. Central
Civil Services, (Conduct) Rules, 1964.
2. Das,
S.K 2010 Building a World Class Civil Service Twenty First Century India New
Delhi Oxford University Press.
3. B.
R. Ghaiyes, 2015, MISCONDUCT IN EMPLOYMENT by J. K. Verma Edition: 3rd Edition.
4. Govt.
of India report, 2004, on Administrative Reform Commission chaired by Sri P. C.
Hota.
5. Ramanjeet,Email:ramanjeet_32@yahoo.comWebsite:
http://www.legalserviceindia.com ISBN No: 978-81-928510-1-3 13.
6. Seervai,
H.M, 2008 Chapter – XXVII, Constitutional Law of India, Vol.-3, Universal Law
Publishing Co. Pvt. Ltd. New Delhi.
10. Service Law in India, Mallick M.R.,
Eastern Law House, Calcutta, India.
Article Information
A CRITICAL STUDY OF THE MISCONDUCT AND DISCIPLINE PROCESS FOR GOVERNMENT EMPLOYEE IN INDIA
Authors: SIMANT PRIYADARSHI, DEEPAK GUPTA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/02
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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