Misconduct is when an employee does something wrong either by doing something, not doing something, or through their behavior. This may justify some disciplinary action being taken by the employer. Misconduct is wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts.

Misconduct can be considered an unacceptable or improper behavior, especially for a professional person. Misconduct includes something seen as unacceptable as well as criminal offenses e.g. deceptive manipulation."Gross Misconduct" can lead to immediate dismissal because it is serious enough and possibly criminal, e.g. stealing or sexual harassment. Misconduct refers to an action, rather than neglecting to take action, or inaction which could be referred to as poor performance.

Government Servants play a very important role to run the administration of the Country. They are important constituents of the administrative set up of the nation. They are pillars of the Government Departments on whose shoulders the responsibility to implement the Government policies lies.

They provide public services to the citizens at the grass root level and in the same way, they forward grievances of the public, their representations and demands to higher ups for their effective resolution. It is only because of loyalty of Government Servants. The Government Servants have different work culture and responsibilities as compared to their counterparts in private sector.

Introduction
Misconduct is a ground for the termination of employment of the workers in an organisation or industrial concern. Misconduct means any act of the Servant that is detrimental to the property and reputation of the employer as well as the business concern. Misconduct can be any act that comes into fold in model standing orders or the standing orders of the business concern specially framed in consonance with the needs and requirement of the organisation.

Not just the loss to the employer but also the general peace and tranquility of the organisation is a driving factor in determining whether a particular act or omission is misconduct or not. Black's Law dictionary defines 'Misconduct' as "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".

Further regarding employer employee relationship it says, "Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when the conduct of employee 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 Misconduct is not necessarily 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. Misconduct' covers a large area of human conduct. It can be an act that prejudices the smooth functioning of the establishment where the actor is employed.

Grounds for misconduct can be trivial such as neglect of work or more serious like insubordination or riotous behaviour during working hours. Misconduct is a generic term and means a conduct amiss; to mismanage; wrong or improper conduct, bad behaviour; unlawful behaviour or conduct. It includes malfeasance, misdemeanor, delinquency and offence.

The term does not necessarily imply corruption or criminal intent. Thus, misconduct is a generic term while specific misconduct likes disobedience of orders; insubordination, neglect of work etc. are species thereof. However, "misconduct" and "negligence" are different notions. Some kinds of negligence may amount to misconduct, while some others may not amount to misconduct.

There may be negligence in performance of a 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 thereby attributable to negligence would be such as to be irreparable or resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of negligence. Carelessness can often be production of more harm than deliberate wickedness or malevolence.

The word "misconduct" though not capable of a precise definition, its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of duty.

It may involve moral turpitude; it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of duty; the act complained of bears forbidden quality or character Misconduct under the Indian Service Law Page 6 of 27 police constable on duty intakes heavy alcohol, it constitutes gravest misconduct, warranting dismissal from service. While general misconduct is a problem for employers, gross misconduct is a reason for swift disciplinary action, usually dismissal.

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 can be noted that at present, there is neither law nor rule clarifying the contents of the concept of 'Reasonable Opportunity' as envisaged in Art.311 of the Constitution of India. It is for the Courts to ascertain whether or not the law or the rules available provide for a reasonable opportunity to a Civil Servant. Consequently, diverse judgments creating confusion are being passed by the Courts.

Therefore, in the considered opinion of the researcher it is high time to re-examine Art.311 of the Constitution of India as at present, it is being misused to give immunity cover to dishonest Civil Servants or Government servants of doubtful integrity. 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
A nation's image, position and standing in the International affairs in the21st Century largely depend upon the dedication, capability, efficiency and effectiveness of its Government Servant/ Civil Servant. In democracies where leadership transitions take place, it is often within Parliament and the Cabinet.

But more often than not, political transition also takes place throughout the entire administration where key roles in Government Ministries and Departments also change hands and card-carrying members characterized by mutual suspicion and occasionally by conflict as well, arising from conflicting role interpretation.

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 thinkers, speedy decision-makers, and crisis managers 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 have been undertaken for delinquent Government Servant/Civil Servant for displaying a pivotal role in misconduct.

Review Of The Literature
A brief review of the literature relating to the present study been detailed as follows: - Harold J. Laski's valuable treaties entitled "Parliamentary Govt. in England" & "The Growth of Administrative Discretion" gives a wonderful account of the Home Civil Service of England tracing down its history its relevance for the day and the impact it has had on the English Society and politics as a whole. Similarly Herman Filner's "The British Civil Service" (London 1937 P. - 14 & 15) is also a classic source of "The Role of the Civil Service in the Modern World".

We also find good research in Herman Filner's classic treatise on "The Theory and Practice of Modern Government", where he has attempted in-depth analysis with comprehension, original research & first hand observation highlighting the crucial problems of the Civil Service. Constitutional and Administrative Law by John Alder and Constitutional Law by E.C.S. Wade & Godfrey Philips have tremendous impact on Civil Service & Civil Servant.

Other books on Indian Constitutional Law like Durgadas Basu's shorter Constitution of India and the Introduction to Constitution of India on the services under the Union and the State, Dr. Base gives importance to Civil Service and interpretation, recruitment and conditions of Service to be regulated by legislation subject to the provisions of the Constitution.

Research Methodology
The researcher in the present research has adopted Doctrinal or Non-Empirical Method for collecting required data. This research has based its findings, inter alia, on analytical and critical studies. To come up with pertinent findings and to provide credible recommendations, this study will utilize two sources of data i.e., primary and secondary.

Primary sources, such as, Constitution and Recommendations of Government of India, Disciplinary Proceedings Statutes, Conduct Rules, Regulations, Commission Reports, Case Laws, etc., available in the library and on the Internet will be perused for collection of data. In addition to these, Secondary sources like for e.g., Commentaries written by various authors, reports published by Independent Agencies, Papers presented in different Conferences and Seminars, Articles published in Law Journals, 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:

• 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.
• If the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his employer.
• If the act or conduct of an employee makes it unsafe for the employer to retain him in service.
• The act or conduct of the employee is so grossly immoral that all reasonable men will say that the employee cannot be trusted.
• If the act or conduct of the employee is such that the employer cannot rely on the faithfulness of his employee.
• If the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly.
• If the employee is abusive or if he disturbs the peace at the place of his employment.
• If he is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of employer and employee.
• If the employee is habitually negligent in respect of the duties for which he is engaged.
• If the neglect of the employee though isolated, tends to cause serious consequences.

Important Judicial Recommendation & Leading Cases

During the last seven decades, Article 311 has come for interpretation before our courts in a number of cases regarding dismissal or removal of civil servants from service. In this following paper, an attempt is made to examine critically some of the leading judicial pronouncements by the apex court in the context of delinquent civil servant.

Satish Chandra's Case

In Satish Chandra Anand v. Union of India,1 the petitioner accepted a temporary job on the condition that he would be governed by the Central Service (Temporary Service) Rules, 1949 which provided for termination of service by a month's notice on either side. Soon his services were terminated by serving on him one month notice. Thereupon, the petitioner moved the Supreme Court under Article 32 of the Constitution and contended that his termination has been made in gross violation of the provisions of Articles 14 and 16 of the Constitution. He alleged discrimination as well as the denial of the constitution protection afforded by Article 311 to the other civil servants.

Shyam Lal's Case

Article 311 again came for interpretation before the Supreme Court in the case of Shyam Lal v. State of Uttar Pradesh 2 where the appellant was compulsorily retired from service under Article 465A of the Civil Service Regulations which provided punishment for specific acts of gross misconduct. In fact the charges were leveled and an enquiry was conducted but he was informed that the enquiry was purely informal and confined to finding of facts only whether he should be retired compulsorily.

Later, he challenged the order stating that it amounted to removal from service within the meaning of Article 311 of the Constitution. It was further alleged that the rule permitting such retirement without assigning any reason was void as contravening the provisions of Art.

Dhingara's Case

In Purshotam All Dhingra v. Union of India 5 the appellant joined the railway service as a signaler in 1924 and was later promoted to the post of chief controller in 1950 (a class III post). In 1951 he was appointed to officiate in class II service. The civil servant filed a writ in the High Court. The court ruled that since Mr. Dhingra was not given an opportunity to show cause against the action proposed to be taken in regard to him, the provisions of article 311 were violated and hence the action taken against him was illegal. However, a Division Bench of the same High Court reversed this ruling and hence Mr. Dhingra moved the Supreme Court. Article311.

Judgement By The Court In Recent Unbecoming Of Government Servant In India

Union Of India & Others v. B. Dev, Petitioner committed the offence under Section 7, 13(1) (d) of the Prevention of Corruption Act, 1988 and the petitioners conduct was unbecoming of the Government under Section 7 and 13(I) (d) of Prevention of Corruption Act, 1988 and thereby acted in a manner unbecoming of Government Servant and have violated the instructions issued by the Hon'ble High court in Circular No.6/2002 and thereby acted in a manner unbecoming of a Government Servant.

Ministry Of Finance & Another v. S.B Ramesh, Negligence in performance of the duty and has failed to maintain devotion to duty and acted in a manner unbecoming of Government Servant violating Rule 3(1) (ii) duty and has failed to maintain devotion to duty and acted in a manner unbecoming of Government Servant violating under the Rule 3(1) (iii) of CCS gross negligence in performance of his duty and thereby failed to maintain devotion to duty and acted in a manner unbecoming of Government.

Servant V. Sreenivasan v. Union of India, The lawful communications sent to the residence of Shri N.Vinod Kumar, committed an act unbecoming of Government Servant and thereby continues to be absent without leave application/permission committed an act of unbecoming of Government Servant and thereby violated Rule 15- A (1) of CCS (Conduct) rules 1964 wherein no Government Servant shall sublet Government accommodation allotted to him. An inquiry officer was appointed.

Suggestive Measures And Remedies Against Imposition Of Penalties For Committing Misconduct

Misconduct has many subspecies and a lot of varied acts of the employees can be considered within the ambit of misconduct. Termination, dismissal and suspension are the remedies available to the employer in case there is a proved misconduct on the part of the employee.

Regarding termination, no hierarchy is visible which places certain acts of misconduct over the others in determining punishment for such an act. A point worth noting is that only proved misconduct can be said to be the ground of termination of the employment. Incompetence or failure to work efficiently is not cited as the grounds of termination of employment.

Evidences are hard to adduce and in our adversarial system it becomes tough on the employer to get the termination of employee, even if there is misconduct on the part of the employee. A Government Servant being not satisfied with the decision of the Disciplinary Authority has the following remedies against the order passed against him.

Conclusion
It is important to strike a balance between the requirements of social justice and the need for industrial efficiency in our country. Looking at the case-law, one may conclude that the concepts pertaining to the relationship between misconduct and termination do not carry a fixed meaning before the Courts.

Much depends on the facts and circumstances of each case. A vague terminology results only in wastage of the Courts' time. Though there are clear cut categories of as what qualifies as misconduct in the model standing orders like habitual late coming or theft or fraud, there are a few hazy areas like habitual negligence and gross negligence interpretation of which depends upon cases and specific circumstances.

The courts and legislature need to be more specific and certain about some acts qualifying as misconduct or not. Uncertainty breeds inefficiency in the system and legal tangles sometimes break the continuity of moving wheels of commerce and economy. More consistency is needed for industrial matters. At the same time, the courts also must remain the watchdog in case there is an encroachment on the rights of the employees.

An employer may face difficulties, owing to the usage of a wide range of concepts relating to employee misconduct, when trying to prove the acts of an employee as misconduct. The application of strict standards by the Courts cannot benefit the employers, causing harm to the efficiency of the economy. It would be desirable if certain fixed standards were evolved by the Courts so as to ensure the quick disposal of cases and to dispel the darkness that surrounds 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: [email protected] Website: 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.
7. www.manupatra.com
8. www.judis.nic.in
9. https://sg.inflibnet.ac.in
10. Service Law in India, Mallick M.R., Eastern Law House, Calcutta, India.

Award Winning Article Is Written By: Mr.Mayank Kansal, LLM, 2nd Semester (2023-2024) - ICFAI Law School, the ICFAI University, Dehradun

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