Prem Shanker Asopa, J.@mdashBy this writ petition, the petitioner has challenged the charge sheet dt. 30.05.2008 issued for misconduct of declaring him hostile by the A.C.D. Court while recording his statement on 20.11.2002.
2. Briefly stated, facts of the case are that statement of the petitioner u/s 161 Cr.P.C. was recorded in a trap case by the police as an independent witness on 20.11.2002. Subsequently, he was called as prosecution witness by the A.C.D. Court and his evidence was recorded on 09.03.2007. At the request of the Public Prosecutor, the petitioner was declared hostile witness and permission to cross-examine was granted to the Public Prosecutor. Treating the contradiction in the two aforesaid statements - (i) u/s 161 Cr.P.C. and (ii) u/s 164 Cr.P.C. the charge sheet was served upon the petitioner on 30.05.2008.
3. It is stated in the writ petition that whether a witness is trustworthy or not, has to be decided by the Court and not by the Government and unless the Court gives a clear finding of the witness being untrustworthy, no misconduct is made out. Here, in the instant case, the proceedings are still pending, therefore, there is no justification to issue the charge sheet.
4. State of Rajasthan, in its reply, has stated that the petitioner has made incorrect statement before the Court, therefore, charge sheet has rightly been issued.
5. Submission of counsel for the petitioner is that no misconduct is made out and even if the charges are taken on their face value, then also, as per the judgment of the Supreme Court, the trustworthiness of the witness is to be declared by the Court. Here in the instant case, the proceedings are pending and therefore, there was no justification with the Government to sit over the matter and issue the charge sheet for misconduct. Counsel also submits that in the memorandum of charges, there is reference of Rule 24 of the Rules of 1971 which has no application and even if the case is considered with reference to the other rule i.e. Rules 3 and 4 of the Rules of 1971, then also, no misconduct is made out against the petitioner. Counsel then submits that the charge sheet has been deliberately issued in order to deprive the petitioner of promotion to the post of Executive Engineer.
6. In support of his submissions, counsel for the petitioner has placed reliance on the following judgments:
1.
2. Dr. B. K. Choudhary v. State of Raj. and Ors. RLR 1992(1) 210 (Para 16)
3. Gauri Shankar Mishra v. State of Raj. Ors. RLR 1987 (II)560 (Para 8)
4. Gura Singh v. State of Rajasthan AIR 2001 SC 330 (Para 11)
5.
6.
7. Submission of counsel for the State is that the petitioner has given incorrect statement, therefore, the Government is justified in issuing the charge sheet.
8. In view of the above, the crucial questions for determination are (i) What constitutes misconduct?, and (ii) whether declaration of a witness as hostile will render him untrustworthy witness for which he will be further liable for disciplinary action being a misconduct under the Rules of 1971?
9. Before proceeding further, it is relevant to reproduce Rules 3, 4 and 24 of the Rajasthan Civil Services (Conduct) Rules, 1971 (in short ''the Rules of 1971'') which are as under:
Rule 3
3. General.-(1) Every Government servant shall at all times -
(i) maintain absolute integrity; and
(ii) maintain devotion to duty and dignity of 4 office.
(2) (i) Every Government Servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible.
Explanation.-Nothing in Clause (ii) of Sub-rule (2) shall be constituted as empowering a Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities.
Rule 4
4. Improper and unbecoming conduct.-Any Government servant who-
(i) is convicted of an offence involving moral turpitude whether in the course of the discharge of his duties or not;
(ii) behaves in public in a disorderly manner unbecoming of his position as a Government servant; or
(iii) is proved to have sent an anonymous or Pseudonymous petition to any person in authority;
(iv) leads an immoral life;
shall be liable to disciplinary action.
Rule 24
24. Canvassing of non-official or other influence.-No Government servant shall bring or attempt to bring any political or other influence to bear upon any superior authority to further his interests in respect of matters pertaining to his service under the Government.
10. On the issue of misconduct counsel for the petitioner has submitted that mere negligence or error in judgment which included statement given as per the memory after four years will not amount to any kind of misconduct. The relevant portion of the judgment in
Disciplinary proceeding can be held against a member of the service for any act or omission which renders him liable to a penalty and such penalty can be imposed for good and sufficient reasons. All India Services (Conduct) Rules, 1954, prescribe a Code of Conduct for members of service. Discipline and Appeal Rules provide for disciplinary action and imposition of penalties. Sub-rule (2) of Rule 16 of the Retirement Rules contemplates a situation where a member of service against whom disciplinary proceeding is pending is likely to retire and the proceedings may be thwarted and provides for his retention in service beyond the date of his retirement till the completion of the inquiry, provided the delinquent officer is under suspension on a charge of misconduct. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto so as to run counter to the expected Code of Conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
11. Relevant para 16 of the judgment in Dr. B.K. Choudhary v. State of Rajasthan and Ors. RLR 1992(1) 210 is as under:
16. In Dr. R. K. Sharma v. State of Rajasthan., S. C. Agrawal, J. (as he then was), considered more or less a case which is identical even on facts to the case of the petitioner. That was a case in which the petitioner Dr. R. K. Sharma was posted as Medical Jurist at Prince Vijai Singh Men''s Memorial Hospital, Bikaner. He conducted the post mortem on the dead body of Smt. Dayawati on 17.04.1962. Earlier to this, he had examined the injuries of one Hanuman Das Chandak and prepared injury report of Shri Chandak while acting as Medical Jurist. The petitioner was charge sheeted under Rule 16 of the Rules of 1958. Allegations levelled against him were that he had deliberately suppressed the truth in the post mortem report of Smt. Dayawati and had prepared a false injury report in respect of the injuries of Hanuman as and that he gave false statement which was inconsistent with the injury report. It was also alleged that he was in the habit of giving false reports and false statements. The Inquiry Officer exonerated the petitioner, Dr. R.K. Sharma from charges No. 1 and 3. Regarding Charge No. 2 he held that the petitioner had committed an error in considering a grievous injury to be a simple one. An order of compulsory retirement was passed by the Government after issue of show cause notice and receipt of the reply of the petitioner. While dealing with the argument that a professional cannot be hauled up with the allegation of misconduct in case of mere error of judgment and negligence, Agrawal, J. observed:
In my opinion, a distinction has to be drawn between a mere error of judgment or negligence on the one hand and misconduct on the other. Misconduct means intentional wrong doing. It implies failure to act honestly and reasonably either according to the ordinary and natural standard or according to the standard of a particular profession and it does not cover mere negligence in duty. (2) In Re `P'' an Advocate AIR 1963 SC 1313 it has been observed that mere negligence of error of judgment on the part of the Advocate would not amount to professional misconduct, and error of judgment cannot be completely eliminated in all human affairs. Similarly, in
Professional misconduct on the part of the person exercising one of the technical profession cannot fairly or reasonably be found, merely on the finding of a bare non-performance of a duty or some default in performing it. The charge is not one of inefficiency, but of misconduct and in an allegation of misconduct, an imputation of a certain mental condition is always involved. I think, it would be impossible for any professional man to exercise his profession if he was to be held guilty of misconduct simply because he had not, in a given case, been able to do all that was required in the circumstances or that had misconceived his duty or failed to perform a part of it. I think, the test must always be whether in addition to the failure to do the duty, partial or entire, which had happened, there had also been a failure to act honestly and reasonably.
12. Relevant para 8 of the judgment in Gauri Shankar Mishra v. State of Raj. and Ors. RLR 1987 (II) 560(DB) is as under:
8. Apart from the above illegality, we are clearly of the view that there was no misconduct committed by the petitioner in passing the orders of mutation so as to contemplate any action under Rule 170 of the Rajasthan Service Rules. The Inquiry Officer has clearly recorded a finding that there was no mala fide on the part of the petitioner and admittedly no party has come forward to show that such entry affected the legal rights of any person. The aggrieved party, if any, could have gone in appeal against the impugned order of mutation passed by the petitioner while working as Naib Tehsildar. It is not the case even of the State Government that by the impugned action of the petitioner, the State Government has been put to any monetary loss. Even if for arguments sake it may be assumed that the orders of mutation passed by the petitioner were without jurisdiction, such orders could have been challenged in appeal and in such kind of matter there was no misconduct on the part of the petitioner so as to award a drastic penalty of withholding of one-fourth pension of the petitioner for 5 years. In Union of India v. J. Ahmed. 1979 SLJ 308, their Lordships considered the scope of the term `misconduct'' under All India Service (Discipline and Appeal) Rules, 1955. Hon''ble Supreme Court has quoted 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, did not constitute such misconduct.
Thus, we are clearly of the view that in the facts and circumstances of the present case, there was no misconduct on the part of the petitioner so as to punish him by making any forfeiture of his pension.
13. On the issue of hostile and un-trustworthy witness, counsel for the petitioner has placed reliance on three judgments - (i) Gura Singh v. State of Rajasthan. AIR 2001 SC 330 Para 11, (ii)
Relevant portion of para 11 of Gura Singh (supra)
..It is for the Court of the fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be credit-worthy.
Relevant portion of para 13 of Chet Ram and Ors. (supra)
13. PW 5, in our opinion, has been wrongly declared a hostile witness to the prosecution. He has deposed that he too went to Kishori''s house on hearing her alarm and that PW 3, who had gone ahead of him had scaled over the wall and entered the house and opened the front door and thereafter he and Behari went inside the house and noticed the three respondents fleeing from Kishori''s house to their house by jumping over the partition wall. The only reason why PW-5 has been declared hostile was that he had failed to say that besides seeing the respondents running away, he had seen them also attacking Kishori. In the very nature of things PW 5 could not have seen the actual attack on Kishori or the removal of her jewels because he had entered the house only after PW-3 had gone inside and opened the front door. Naturally, by the time PW 5 went inside the house, the attack must have been over and as such, he would have been able to see only the respondents running away to their house. Except that he had not seen the actual attack on Kishori, PW-5''s evidence is in line with the evidence of PW 6 in all aspects. In fact, he has also stated that Buddhi and Puttu were carrying a knife and sooja respectively and that a lantern was burning in Kishori''s house on that night. The High Court has unfortunately failed to advert to any of these matters and has been carried away only by his stray statement in cross examination that Kishori was unconscious when he reached the house. The High Court has brushed aside his entire evidence which fully corroborates PW 3, merely on the ground he had been declared a hostile witness. The High Court has failed to bear in mind that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration.
Relevant portion of paras 12 and 13 of Syad Akbar v. State of Karnataka. (supra)
12. As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him ''hostile'' and had cross-examined him. We need say no more than reiterate what this Court said on this point in
even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence can not, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.
13. The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. Their credit, on material points, was hardly shaken. The Courts below, therefore, were not justified in brushing aside their testimony.
14. In all the aforesaid three judgments, it has been held that hostile witness cannot be said to be wholly untrustworthy witness and it is for the Court to decide which part of evidence of such a witness could still be relied upon.
15. In view of the aforesaid consideration of submissions as well as citations on the subject, my answer to the questions are as follows:
Question No. 1
16. "Misconduct" means misconduct arising from ill motive; acts of negligence, errors of judgment or innocent mistake, did not constitute such misconduct. The test must always be whether in addition to the failure to do the duty, partial or entire, which had happened, there had also been a failure to act honestly and reasonably.
Question No. 2
17. Mere error of judgment and any contradiction in the statements given before the police and the Court, consequential declaration as hostile witness will not constitute misconduct unless the Court declares the witness as untrustworthy and some adverse comments are made therein.
18. Having considered the pleadings, submissions and the aforesaid citations given in the preceding paras, I am of the view that in the present case, mere declaration of the petitioner as hostile witness will not constitute misconduct and no charge is made out against him.
19. Accordingly, the writ petition is allowed, the charge sheet dt. 30.05.2008 is quashed. In case any promotion(s) are made, then case of the petitioner will also be considered / reconsidered and appropriate orders will be passed within a period of three months.
