MISCONDUCT RELATED TO NEGLIGENCE OF DUTY

By

Name of the Student: Sai Suvedhya R.

Roll No.: 2018LLB076

Semester: 5th

Subject: Labour Law - I

Name of the Program: 5 year (B.A., LL.B.)

Name of the Faculty Member: Mr. R. Bharat Kumar, Assistant Professor

Date of Submission: 05/01/2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

1
ACKNOWLEDGEMENT
The final outcome of this research paper required a lot of guidance and assistance from many
people and I am extremely fortunate to have got this all along the completion of my project
work. Whatever I have done is only due to such guidance and I would like to thank them for the
same.

I thank my respected Labour Law - I Professor - Mr. R. Bharat Kumar Sir, for giving me an
opportunity to do this research paper and for his unfailing support and guidance which enabled
me to finish it on time.

I would like to express my gratitude to DSNLU for providing me with all the required materials.

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TABLE OF CONTENTS

Introduction ------------------------------------------------------------------------------------------------- 04

Misconduct Defined ---------------------------------------------------------------------------------------- 05

Negligence in Performance of Duty --------------------------------------------------------------------- 06

Case Analysis ----------------------------------------------------------------------------------------------- 06

Conclusion -------------------------------------------------------------------------------------------------- 31

Bibliography ------------------------------------------------------------------------------------------------ 33

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INTRODUCTION

Misconduct has not been defined either in Industrial Disputes Act, 1947 or in Industrial
Employment (Standing Orders) Act 1946. Oxford Advanced Learner’s Dictionary gives the
meaning of misconduct as unacceptable behaviour, especially by a professional person. But the
dictionary meaning is not indicative of the diverse forms of connotation that statutes and judicial
pronouncements have carved out of it. 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 behaviour, wilful in character, improper or wrong behaviour”. Further regarding
employer employee relationship it says, “Misconduct, which renders discharged employee
ineligible for unemployment compensation, occurs when the conduct of employee evinces wilful
or wanton disregard of employer’s interest, as in deliberate violations, or disregard of standard of
behaviour 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.”

In P. Ramnatha Aiyar's Law Lexicon1 , the term 'misconduct' has been defined as under:

“The term 'misconduct' implies a wrongful intention, and not involving error of judgment.
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.”

A good place to find the meaning of the term ‘misconduct’ f would be the decision of the
Queen’s Bench Decision in Pearce v. Foster2 which decision was affirmed by the Supreme
Court of India in Govinda Menon vs. Union of India3. It was held in by Lopes, L J in Pearce that,
“If a servant conducts himself in a way inconsistent with faithful discharge of his duty in the
service, it is misconduct which justifies immediate dismissal. That misconduct, according to my
view, need not be misconduct in carrying of the service or the business. It is sufficient if it is
conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of

1
3rd Edition, at Page 3027
2
(1885) 15 QBD 114
3
1967 AIR 1274, 1967 SCR (2) 566

4
the master and the master will be justified, not only if he discovered at the time, but also if he
discovers it afterwards, in dismissing that servant”.

MISCONDUCT DEFINED

Misconduct spreads over a wide and hazy spectrum of industrial activity; the most seriously
subversive conducts rendering an employee wholly unfit for employment to mere technical
default are covered thereby. ‘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, misdemeanour, delinquency and offence. The
term does not necessarily imply corruption or criminal intent4. Thus, misconduct is a generic
term while specific misconduct like disobedience of orders, insubordination, neglect of work etc.
are species thereof5. However, “misconduct” and “negligence” are different notions. Some kinds
of negligence may amount to misconduct, while some others may not amount to misconduct.
However, misconduct has to be proved and cannot be inferred6. Lack of efficiency or attainment
of highest standard in the discharge of duty attached to public office would not ipso facto
constitute “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 malevolence7. 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

4
Bhagwat Prasad vs, Inspector General of Police, AIR 1970 Punj 81
5
G. S. Mishra vs, Union of India (1961) 3 FLR 195 (Cal)
6
Ram Krishna Ramnath vs Union of India, AIR 1960 Bom 344; ILR (1960) Bom 507; 60 Bom LR 445
7
Union of India vs J Ahmed, AIR 1979 SC 1022; 1979 Lab IC 792

5
behaviour, wilful in character; forbidden act, a transgression of established and definite rule of
action or code of conduct but not mere error of judgement, carelessness or negligence in
performance of duty; the act complained of bears forbidden quality or character. Thus where a
police constable on duty intakes heavy alcohol, it constitutes gravest misconduct, warranting
dismissal from service8.

NEGLIGENCE IN PERFORMANCE OF DUTY

There may be negligence in performance of duty and a lapse in performance of duty or error in
judgment in evaluating the developing situation or negligence in discharge of duty but they
would not constitute misconduct unless the consequences are directly attributable to negligence
as to be irreparable or the resultant damage would be so heavy that the degree of culpability
would be very high.9

CASE ANALYSIS

1) Gagan Bihari Mahala & Ors vs Unknown10

Facts:

The petitioners in the above 10 writ petitions were employees of the Orissa Forest Development
Corporation Limited. They have filed the writ petitions challenging the order passed by the
competent authority compulsorily retiring them from service.

Gagan Bihari Mahala, petitioner in W.P.(C) No.14213 of 2004; Bibhuti Bhusan Patra, petitioner
in W.P.(C) No.14214 of 2004; Dillip Kumar Kar, petitioner in W.P.(C) No.14215 of 2004;
Gangadhar Mahakud, petitioner in W.P.(C) No.14216 of 2004; Santosh Kumar Gochhayat,
petitioner in W.P.(C) No.14217 of 2004; and Manoj Kumar Mohanty, petitioner in W.P.(C)
No.14218 of 2004 were compulsorily retired from service on the basis of the minutes of the
proceedings of the Review Committee meeting in Baripada (R & B) Division under
Bhubaneswar (C) Zone held on 27 th and 28th June, 2003.

8
State of Punjab vs Ram Singh AIR 1992 SC 2188
9
Laxmi Shankar vs. Union of India, AIR 1991 SC 1074; (1991) 2 SCC 488
10
W.P.(C) NO. 14213 OF 2004

6
Bijay Kumar Mohanty, petitioner in W.P.(C) No.4524 of 2005; Madhusudan Swain, petitioner in
W.P.(C) No.4525 of 2005 and Debaraj Biswal, petitioner in W.P.(C) No.4706 of 2005 were
compulsorily retired from service on the basis of the minutes of the proceedings of the
Committee held on 10th June, 2003 in the office of the General Manager, O.F.D.C. Limited,
Berhampur (Com.) Zone and M. Manibabu Dora, petitioner in W.P.(C) No.4526 of 2005 was
compulsorily retired from service on the basis of the minutes of the proceeding of Committee
meeting held on 10th June, 2003 in the office of the General Manager, O.F.D.C. Limited,
Berhampur (C) Zone.

Reasoning:

The learned Senior Counsel Shri R.K. Rath and Shri Manoj Kumar Mishra challenged the
recommendation of the Review Committees and the order of compulsory retirement on three
grounds. The first ground was mala fide and the second and third ground relate to insufficiency
of materials based on the fact that the petitioners had been proceeded departmentally during their
tenure under the Corporation and they could be punished in those departmental proceedings. In
lieu of such punishment, an order of compulsory retirement could not have been passed. We
have already held that the allegation of mala fide has not been proved by any one of the
petitioner. Though allegations were made in the writ petitions that on the basis of complaint
lodged by the members of the Karmachari Sangha, two of the Committee members had been
proceeded with departmentally, no document has been placed before the Court to show that
either of the two Officers had been proceeded with departmentally on the basis of the allegations
made by any of the members of the Karmachari Sangha. Therefore, the case of the petitioners on
this ground fails. So far as the second and third grounds are concerned, we have perused the
recommendation made by the Committee in case of each of the petitioners and found that
materials were available before the Committee to make such recommendation. Since this Court
does not sit in appeal over the recommendation made by the Committee and also cannot examine
sufficiency of materials for arriving at a conclusion as to whether the recommendation is justified
or not, it is not open for the Court in exercise of judicial review to interfere with either the
recommendation made by the Committee or with the order of compulsory retirement. If the
Court is satisfied that the Committee was subjectively satisfied while recommending for
compulsory retirement, it has no jurisdiction to interfere.

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Judgment:

We, therefore, do not find any merit in any of the writ petitions and accordingly dismiss all the
ten writ petitions Writ petition dismissed.

2) H.P. Gupta v. Delhi Administration and Ors11

Facts:

H.P. Gupta the appellant herein while employed in the Vivekananda Mahila College, Vivek
Vihar Delhi (in short the College) affiliated to the University of Delhi was charge-sheeted with
the following Articles of charge:

"ARTICLE -1

When the main account of the College was checked by the Principal on 1st September, 1982 and
the cash balance was verified physically, a shortage of '41.01 (Rupees Forty One and paise one
only) was detected. The amount had apparently been misappropriated for his personal use, Shri
H.P. Gupta to us failed to maintain absolute integrity and his action amounted to
misappropriation of College funds.

ARTICLE - II

When the account books of Alumni Association were checked by the Principal in 1st September,
1982 and the physically verification of the cash belonging to Alumni Association was done, it
was detected that a sum of Rs. 989.67 (Rupees Nine Hundred Eight Nine and Paise sixty seven
only) was missing. The said amount had apparently been misappropriated for his personal
affairs. Shri H.P. Gupta thus failed to maintain absolute integrity and his action amounted to
misappropriation of College Funds.

ARTICLE - III

According to the existing orders the fees are to be accepted only from these students who are
declared successful and promoted to the next higher class. Nevertheless, Shri H.P. Gupta
accepted fees from three students without verifying the results, and in the case of two students

11
223 (2015) DLT 554

8
even after noting and receiving the College notification dated 27th July, 1982 whereby the names
of these students were removed from the College rolls. This resulted in permitting these students
to attend the classes to which they had not been promoted. This action on the part of Shri H.P.
Gupta not only shows complete and wilful neglect of duty but also placed the College in a highly
embarrassing position.

ARTICLE - IV

It has been noticed that while Kamlesh Kumari actually paid for fees on 16th August, 1982, Shri
H.P. Gupta stated in his note dated 13th August, 1982 that Kamlesh Kumari had already paid the
dues. Shri H.P. Gupta thus made a false statement deliberately misleading the administration for
same ulterior motive. This amounts to misconduct on his part."

The enquiry officer appointed by the Governing Body of the College after conducting an enquiry
held the first three charges to be proved and charge No. 4 to be partially proved. The disciplinary
authority served H.P. Gupta with a show cause notice proposing penalty of dismissal from
service. The disciplinary authority awarded termination of service with immediate effect under
Rule 67(vi) read with Rule 74(4)(ii) of the University Non- Teaching Employees (Term and
Condition of Service) Rules, 1971 (in short the Rules).

Aggrieved by the termination of service H.P. Gupta filed an appeal before the appellate authority
which converted the penalty of termination of service to that of compulsory retirement with
effect from the date of termination i.e. March 20, 1985 for the reason that the appellate authority
found that Article No. 1 and Article No. 2 of the charge-sheet were not proved, only Article No.
3 was proved and Article No. 4 was partially proved observing negligence. H.P. Gupta
challenged the order of compulsory retirement by way of a writ petition being W.P.(C) No.
2551/1991 which was dismissed vide the impugned order dated July 16, 2009, hence the present
appeal.

Issues:

9
H.P. Gupta challenged the order of compulsory retirement by way of a writ petition being
W.P.(C) No. 2551/1991 which was dismissed vide the impugned order dated July 16, 2009,
hence the present appeal

Reasoning:

The three witnesses against H.P. Gupta were Mrs. Neelam Bakshi, Senior-most Lecturer, Dr.
(Mrs.) Veer Bala, Bursar and Mr. K.B. Gupta, Section Officer (Administration) who were all
interested as Mrs. Neelam Bakshi and Dr. (Mrs.) Veer Bala were paid house-rent allowance in
excess and Shri K.B. Gupta was a near relative of the Principal. After having come to the
conclusion that it was only a case of negligence on the part of H.P. Gupta the appellate authority
could not have passed the order of compulsory retirement at the age of 39 when H.P. Gupta had
21 years of service left. Even as per the appellate authority in regard to first charge and the
second charge misappropriation was not proved but the petitioner's handling of the accounts left
much to be desired and third and fourth charge having been proved which were innocuous, the
punishment of compulsory retirement was too severe. The learned Single Judge noted that if it
was a case of no evidence or the findings were perverse not based on legally permissible
evidence, the punishment was liable to be set aside and unless the punishment imposed shocks
the conscience of the Court there was no scope of interference however failed to interfere on
facts.

Judgment:

Disposing of the appeal and setting aside the penalty of compulsory retirement inflicted upon the
appellant with effect from the date his services were terminated i.e. March 20, 1985 we direct
that the appellant would be paid 50% wages which he would have earned till he superannuated
from service. Treating the appellant to have opted for pension because the appellant so desires,
treating the appellant as in service and giving benefit of increments the last pay drawn by the
appellant would be computed and with reference to the same he would be paid pension from the
first month onwards post the month in which the appellant would have superannuated from
service. The appellant would pay to the college i.e. respondent No. 1 by means of a cheque the
management share contributed in his CPF account which appellant received together with
interest @ 6% per annum reckoned from the date he received the money till he pays back the

10
same and this would be done by the appellant within sixty days from today. Arrears of salary
directed to be paid as also arrears of pension to be paid by respondent No. 1 shall be disbursed to
him within four months from today failing which the same shall be paid with interest @ 6% per
annum till date of payment. Parties shall bear their own cost throughout.

3) Union of India & others v. Ms. Dolly Saxena12

Facts:

Respondent a Collector of Customs and Central Excise at the relevant time, was to adjudicate the
cases under Central Excise Act. She is charged to have dropped proceedings against the assessee
M/s J.K. Synthesis accused of evasion of customs duty of 1.21 crores or so. A charge sheet dated
28.1.1999 was issued to her charging her with negligence and recklessness in discharge of duties
and contravening Rule 3 of Conduct Rules, 1964. She made representations against this but
failed. She then filed OA No. 2199/99 claiming that she could not be subjected to disciplinary
proceedings on a charge of misconduct while exercising her quasi judicial functions. Petitioner
opposed this on the plea that charge sheet could not be questioned at the threshold and that
disciplinary proceedings could be taken for her negligence in the discharge of her duty causing
loss to public revenue.

disciplinary proceedings on a charge of negligence or reckless in the discharge of quasi judicial.

Issues:

Whether a Quasi Judicial Authority could be subjected to disciplinary proceedings under Service
Conduct Rules (SCR) on a mere charge of alleged negligence and recklessness in passing an
adjudicatory order?

Reasoning:

In the present case Tribunal has touched the correctness of charges at places which may not
sustain but that does not have any crucial importance for the outcome of this matter which
required to be decided on a harmonious reconciliation of two judgments of the Supreme Court in
Dhawan’s and Nagarkar’s cases. In the first case Apex Court formulated a list of cases, though

12
(2001) ILR 2 (DEL) 129

11
not exhaustive where disciplinary proceedings could be taken against officers while exercising
quasi judicial powers on the premise that such a situation involved the conduct of an officer in
the discharge of his/her duties and not the error or illegality committed while exercising quasi
judicial powers.

In Nagarkar’s case however the Court crystalised it further to hold that charge of mere
negligence in exercise of quasi judicial power would not constitute a misconduct to warrant a
disciplinary action unless it was accompanied by a further charge of undue favour shown by the
officer in dealing with the case.

It is true that in the list of cases given in Dhawan’s case a charge of negligence could also sustain
a charge sheet against the Quasi Judicial Authority but it was required to be read in the facts of
that case where the further charge was that officer had shown undue favour in the matter. This is
how it was distinguished by the Court in Nagarkar’s case laying down that there must be
something more alleged than a mere negligence flowing from a mistake of law to sustain the
charge sheet against the Quasi Judicial Authority.

Judgement:

We respectfully follow the ratio and reasoning of the Supreme Court judgment to hold a mere
charge of negligence or recklessness against an Officer in passing an adjudicatory order in
exercise of quasi judicial functions unaccompanied by any further charge of extraneous
considerations or quid pro quo in passing such order would not constitute a misconduct under the
relevant rules to justify disciplinary proceedings against the Quasi Judicial Authority. The reason
and rationale for this is not far to seek and is adequately brought out in the judgment supra. This
petition accordingly fails and is dismissed.

4) State Of U.P. v. Ramesh Chandra Mangalik13

Facts:

The respondent was appointed as an Assistant Engineer on 19.2.1963, in the Irrigation

Department of the State of U.P. He was later on posted as Assistant Engineer Incharge on
8.5.1979 against the vacant post of Executive Engineer in the Irrigation Construction Division,
13
2002 (2) SCT 305 (SC)

12
Matatila. It has been pointed out that as a consequence of some orders passed in the litigation
pending in this Court, relating to promotions to the post of Executive Engineer, the Assistant
Engineers were not being promoted as Executive Engineers but were posted a Assistant
Engineers In-charge.. The Junior Engineers and the Assistant Engineers working in any project
had been working under the overall supervision of the Assistant Engineer In-charge. During the
period 16.5.1979 to 29.3.1981, the respondent had been looking after the execution of the work
of the construction of Upper Rajghat Canal, Matalila and in that connection it was found that
there was substantial difference in construction of ground levels and there was change in
approved L-Section also. According to the Department changes of the alignments of L-Section
were made without the approval of the Chief Engineer. As a result of unauthorized changes, the
length of canal was increased by 63 metres. Apart from the above, other irregularities were also
noticed. It appears that a preliminary inquiry was made and thereafter a charge-sheet was served
upon the respondent on 6.4.1984 for regular departmental proceedings.

The respondent sought time for filing the explanation to the charge-sheet and demanded copies
of certain documents. Since all the documents as required by the respondent are said to have not
been made available to him, he had to file a reply ultimately on 8.4.1987 under protest. A
personal hearing was also asked for. The Inquiry Officer submitted his report on 28.7.1993 on
consideration whereof and after going through the other formalities, order of punishment was
passed on 21.4.1995 as indicated earlier.

Issues:

After holding disciplinary proceedings against the respondent Ramesh Chandra Mangalik, an
order of punishment was passed withholding his four increments of salary permanently and for
recovery of a sum of Rs. 24,822/-. The said order was challenged by the respondent in a writ
petition filed at the Lucknow Bench of the Allahabad High Court. The writ petition was allowed
by order dated 15.12.1999 setting aside the order of punishment and directing that the respondent
would be considered for promotion with effect from the date his juniors were promoted. All
consequential benefits were also allowed. The High Court came to the conclusion that the order
of punishment was bad in law since principles of natural justice have been violated in holding
inquiry due to non supply of copies of all the necessary and relevant documents and for not
affording a proper opportunity of hearing to the delinquent. It was also held that no basis for

13
arriving at the figure of the amount sought to be recovered was given. The State Government felt
aggrieved by the above order passed by the High Court in the writ petition. Hence, this appeal by
Special Leave.

Reasoning:

According to the respondent, he had itself detected the changes and other irregularities in the
work relating to construction of Upper Rajghat Canal but he got the whole thing corrected
without allowing any loss to occur to the Government. It has also been his case that the inquiry
proceedings initiated against him are mala fide and at the instance of one Shri Ahuja, the
Superintending Engineer. It has also been indicated that he was prosecuted in a criminal case of a
trap laid against him but he was acquitted of the charges. We may however clarify here that the
charges in the criminal case have no connection or bearing so far the departmental proceedings
in question are concerned. The main grievance of the respondent, as indicated earlier, has been
that principles of natural justice have been violated in holding the departmental inquiry against
him in as much as all the relevant documents have not been supplied to him nor adequate
opportunity of hearing was given. He was also not allowed to cross-examine a witness namely
Shri M.C. Jain. It is indicated that the respondent was asked by the Inquiry Officer to appear for
personal hearing on 8.6.1987 but the Inquiry Officer thereafter collected evidence and obtained
letters dated 16.11.1987 and 28.7.1988. But no opportunity was given to him to meet such
evidence.

Judgement:

In view of the discussion held above, we find that the judgment and order passed by the High
Court is not sustainable. The appeal is therefore, allowed and the order and judgment of the High
Court impugned in this appeal is set aside. There would however be no order as to costs.

5) P.B.Desai v. State Of Maharashtra14

Facts:

The appellant herein, a renowned surgeon, stands convicted of the offence punishable under
Section 338 r/w Section 109 of the Indian Penal Code, 1860 (hereinafter to be referred as the

14
2014 (1) ACR 918

14
‘I.P.C’). This conviction was delivered by the Additional Chief Metropolitan Magistrate, 47th
Court, Esplanade, Mumbai, vide judgment and order dated 05.07.2011. The -appellant was
sentenced to suffer simple imprisonment (SI) till the rising of the Court and to pay Rs. 50,000/-
as and by way of compensation, in default to suffer simple imprisonment for 3 months. This
conviction and sentence had been upheld by the ld. Additional Sessions Judge vide judgment
dated 22.03.2012 and is also confirmed by the High Court of Judicature at Bombay by way of
impugned judgment dated 15.10.2012. Still not satisfied, the appellant has challenged the
judgment of the High Court, by way of present appeal.

As we are, in this appeal, concerned with the validity of the conviction of the appellant under
Section 338, IPC, we would like to reproduce that provision at this stage:

“338. Causing grievous hurt by act endangering life or personal safety of others: Whoever causes
grievous hurt to any person by doing any act so rashly or negligently as to endanger human life,
or the personal safety of others, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine which may extend to one thousand rupees, or
with both.”

Issues:

Whether the alleged role of the appellant amounts to “doing any act” and whether it was so rash
or negligent as to endanger the life of the patient?

Reasoning:

No doubt, in the present case the appellant not only possesses requisite skills but also an expert
in this line. However, having advised the operation, he failed to take care of the patient.
Thereafter, at various stages, as observed by the courts below, he was held to be negligent by the
Maharashtra Medical Council and thus found to be guilty of committing professional
misconduct.

Thus, it was the appellant’s “duty” to act contractually, professionally as well as morally and
such an omission can be treated as an “act”. We again clarify that undoubtedly, within the realm
of civil liability, the appellant has breached the well essence of “duty” to the patient. -

15
Judgment:

For the aforesaid reasons, we have no option but to conclude that though the conduct of the
appellant constituted not only professional misconduct for which adequate penalty has been
meted out to him by the Medical Council, and the negligence on his part also amounts to
actionable wrong in tort, it does not transcend into the criminal liability, and in no case makes
him liable for offence under Section 338, IPC as the ingredients of that provision have not been
satisfied. We, therefore, allow this appeal and set aside the impugned judgments of the courts
below. No costs.

6) Ashwin Patel and Others v. Poonam Verma15

Facts:

Respondent 1 pursued a four years' course in Homoeopathic Medicine and Surgery and after
being declared successful in the examination conducted by the Homoeopathic Medical College,
Anand, Gujarat, he was awarded a Diploma in Homoeopathic Medicine and Surgery on the basis
of which he was registered as a medical practitioner in 1983. Initially, he joined a private nursing
home at Bombay where he worked, as he claims, as Chief Medical Officer from 1983 till he
opened his own private clinic in 1989 and took up private practice.

Pramod Verma, husband of the appellant, was Sales Manager in M/s. Encore Marketing P. Ltd.
where the last salary drawn by him is said to be Rs. 5700 out of which he maintained his family
comprising of himself, his wife and two children besides supporting the aged parents. On 4-7-
1992, Pramod Verma, who complained of fever was examined at his residence by Respondent 1
(Dr. Ashwin Patel) who kept him on Allopathic drugs for viral fever up to 6-7-1992 and,
thereafter, for typhoid fever. When condition of Pramod Verma deteriorated, he was shifted to
Sanjeevani Maternity and General Nursing Home of Dr. Rajeev Warty (Respondent 2) as an
indoor patient on 12-7-1992. This was done on the advice of Respondent 1. Verma received
treatment there till the evening of 14-7-1992 when he was transferred to the Hinduja Hospital in
an unconscious state where, after about four and a half hours of admission, he died.

15
(1996) 4 SCC 332

16
Reasoning:

A combined reading of the aforesaid Acts, namely, the Bombay Homoeopathic Practitioners'
Act, 1959, the Indian Medical Council Act, 1956 and the Maharashtra Medical Council Act,
1965 indicates that a person who is registered under the Bombay Homoeopathic Practitioners'
Act, 1959 can practise Homoeopathy only and that he cannot be registered under the Indian
Medical Council Act, 1956 or under the State Act, namely, the Maharashtra Medical Council
Act, 1965, because of the restriction on registration of persons not possessing the requisite
qualification. So also, a person possessing the qualification mentioned in the Schedule appended
to the Indian Medical Council Act, 1956 or the Maharashtra Medical Council Act, 1965 cannot
be registered as a medical practitioner under the Bombay Homoeopathic Practitioners' Act, 1959,
as he does not possess any qualification in Homoeopathic system of medicine. The significance
of mutual exclusion is relevant inasmuch as the right to practice in any particular system of
medicine is dependent upon registration which is permissible only if qualification, and that too,
recognised qualification, is possessed by a person in that system. He trespassed into a prohibited
field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act,
1956. His conduct amounted to an actionable negligence particularly as the duty of care
indicated by this Court.

Judgement:

For the reasons stated above.

(a) The appeal as against Respondent 1 is allowed and the judgment of the Commission, to that
extent, is set aside. The claim of the appellant is decreed as against Respondent 1 for a sum of
Rs. 3, 00, 000 payable to her within three months from today failing which it shall be recoverable
in accordance with law

(b) Medical Council of India constituted under the Indian Medical Council Act, 1956 as also the
State Medical Council under the Maharashtra Medical Council Act, 1965 to whom a copy of this
judgment shall be sent shall consider the feasibility of initiating appropriate action against
Respondent 1 under Section 15(3) of the Indian Medical Council Act, 1956 for his having
practised in Allopathic system of medicine without being registered with the Medical Council of
India or the State Medical Council as also without possessing the requisite qualifications

17
(c) The appellant shall be entitled to her costs which are quantified at Rs. 30,000.

7) State Of U.P v. Mundrika16

Facts:

The charge against the three accused persons related to the homicidal death of one Dharamdeo
caused on 20.10.1982 at about noon in village Raghunathpur, Police Station Harpur Budhat,
District Gorakhpur. Smt. Kabutra, PW.1, is the mother of the deceased Dharamdeo. She had an
agricultural land in village Raghunathpur wherein gram crop was sown at the time of the
incident. On 19.10.1982, four persons namely Ori, Lachhan, Ragghu and Musafir were seen up-
rooting the crop in the field of Kabutra which was objected to by her and her brother-in-law
Shyam Lal. On 20.10.82 again Ori and Lachhan were seen up-rooting the gram crop of Kabutra
and also ploughing into her field. Kabutra and Shyam Lal again protested. There was a scuffle.
Mundrika threatened that the entire family of Smt. Kabutra would be finished and he would see
the matter being settled through the police station.

Issues:

The State of Uttar Pradesh has filed this appeal by special leave putting in issue the judgment of
the High Court whereby Mundrika, Brindaban Mouria and Ram Asrey, the three accused
respondents have been acquitted setting aside the conviction of Mundrika under Section 302 and
the other two under Section 302/34, I.P.C. Brindaban Mouria, the accused respondent No. 2 had
expired during the pendency of appeal in the High Court.

Reasoning:

From a perusal of the judgment of the High Court it appears that Dharamdeo, the deceased, who
was apprehended by the police and was in their custody died during the course of his being
brought to the police station and being put up in the lockup. People of the village were agitated
on the death of Dharamdeo whilst in police custody and so the record was manipulated by police
and false story cooked up to hush up the incident. The High Court has made a strong observation
in this regard and directed the record of the police station to be thoroughly examined by holding
a departmental enquiry so as to bring to book such of the police personnel who may be found
16
(2001) 9 SCC 346

18
guilty of misconduct or negligence or dereliction of duty resulting into the death of Dharamdeo
whilst he was in the custody of police.

Having heard the learned counsel for the parties and having gone through the evidence available
on record, we are of the opinion that no fault can be found with the reasoning assigned and the
findings arrived at by the High Court.

Judgement:

The appeal is, therefore, dismissed. The judgment of the High Court acquitting the accused
respondents is maintained. We hope that departmental proceedings in accordance with the
observations made by the High court were initiated and pursued to their logical end. Appeal
dismissed.

8) Jacob Mathew v. State Of Punjab17

Facts:

Ashok Kumar Sharma, the respondent No. 2 herein filed a First Information Report with Police
Station, Division No. 3, Ludhiana, whereupon an offence under Section 304A read with Section
34 of the Indian Penal Code (for short “the IPC”) was registered. The gist of the information is
that on 15.2.1995, the informant’s father, late Jiwan Lal Sharma was admitted as a patient in a
private ward of CMC Hospital, Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt
difficulty in breathing. The complainant’s elder brother, Vijay Sharma who was present in the
room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No
doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us
and Dr. Allen Joseph came to the room of the patient. An oxygen cylinder was brought and
connected to the mouth of the patient but the breathing problem increased further. The patient
tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was
found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to
the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to
make the gas cylinder functional and in-between, 5 to 7 minutes were wasted. By this time,
another doctor came who declared that the patient was dead.

17
(2005) 6 SCC 1

19
Different standards cannot be applied to doctors and others. In all cases it has to be seen whether
the impugned act was rash or negligent. By carrying out a separate treatment for doctors by
introducing degree of rashness or negligence, violence would be done to the plain and
unambiguous language of Section 304A. If by adducing evidence it is proved that there was no
rashness or negligence involved, the Trial Court dealing with the matter shall decide
appropriately. But a doctor cannot be placed at a different pedestal for finding out whether
rashness or negligence was involved.

Issues:

(i) Is there a difference in civil and criminal law on the concept of negligence?; and (ii) whether a
different standard is applicable for recording a finding of negligence when a professional, in
particular, a doctor is to be held guilty of negligence?

Reasoning:

In our opinion, the factor of grossness or degree does assume significance while drawing
distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the
negligence has to be gross or of a very high degree.

The purpose of holding a professional liable for his act or omission, if negligent, is to make the
life safer and to eliminate the possibility of recurrence of negligence in future. Human body and
medical science both are too complex to be easily understood. To hold in favour of existence of
negligence, associated with the action or inaction of a medical professional, requires an in-depth
understanding of the working of a professional as also the nature of the job and of errors
committed by chance, which do not necessarily involve the element of culpability.

Judgement:

The appeals are allowed. The prosecution of the accused appellant under Sections 304A/34, IPC
is quashed. All the interlocutory applications be treated as disposed of.

9) Union Of India v. Dwarka Prasad Tiwari18

Facts:
18
(2006) 10 SCC 388

20
Respondent-Dwarka Prasad was posted as a constable with Central Reserve Police Force (in
short the 'CRPF') in F/74 Battalion, CRPF at Platoon Post, Jayanti Pura which was
accommodated in a building on Batala Amritsar Road- a sensitive and terrorist infested area. He
was on sentry duty from 1000 hrs. to 1200 hrs. on 31.8.1989 on the roof of the building. He had
been issued a 7.62 mm SLR and 40 rounds of ammunition. At about 1115 hrs, he fired one bullet
without orders and without any sufficient reason. A Court of Inquiry was conducted and it was
established that he alone was responsible for the firing in which he had sustained bullet injury in
his abdomen. Accordingly a departmental inquiry in terms of Rule 27 of the Central Reserve
Police Force Rules, 1955 (in short the 'Rules') was ordered alleging misconduct and
negligence/remissness in discharge of his duty in his capacity as a member of the Force. The
inquiry was conducted and the respondent-Dwarka Prasad was given opportunity to defend
himself. The inquiry officer found the respondent guilty of charges framed against him. After
consideration of the representation made by respondent-Dwarka Prasad, the Commandant
dismissed him from the services with effect from 20.01.1990 under Rule 27(a)(i) of the Rules.

Issues:

These two appeals are directed against a common judgment of the Madhya Pradesh High Court
at Jabalpur allowing the writ petition filed by the respondent-Dwarka Prasad who is the appellant
in the appeal relating to SLP(C) No. 15725 of 2006. The writ petition was partially allowed by a
learned Single Judge of the High Court holding that the punishment of dismissal from service
imposed on respondent-Dwarka Prasad was too harsh and was required to be substituted by an
appropriate lesser punishment.

Reasoning:

Finally, we come to the present case. It is not contended before us that any fundamental freedom
is affected. We need not therefore go into the question of "proportionality". There is no
contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to
"irrationality", there is no finding by the Tribunal that the decision is one which no sensible
person who weighed the pros and cons could have arrived at nor is there a finding, based on
material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor
CCSU tests are satisfied. We have still to explain "Ranjit Thakur (1987 [4] SCC 611)".

21
To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate
Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further
to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by
recording cogent reasons in support thereof. In a normal course if the punishment imposed is
shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the
Appellate Authority to reconsider the penalty imposed.

Judgement:

The impugned order of the High Court is set aside. The matter is remitted to the High Court to
re-hear the writ petition restricted to the question of quantum of punishment. The appeal filed by
respondent-Dwarka Prasad is without merit in view of the fact that his statement at different
stages during the departmental proceedings indicates that he has accepted that he himself was
responsible for the incident. In ultimate result the appeal filed by Union of India is allowed to the
extent indicated, while the appeal filed by Dwarka Prasad is dismissed. No costs.

10) Municipal Corporation of Delhi, Delhi v. Association of Victims of Uphaar Tragedy &
Others19

Facts:

These appeals relate to the fire at Uphaar Cinema Theatre in Green Park, South Delhi on
13.6.1997, resulting in the death of 59 patrons and injury to 103 patrons. During the matinee
show of a newly released film on 13.6.1997, the patrons of the cinema hall which was full were
engrossed in the film. Shortly after the interval, a transformer of Delhi Vidyut Board installed in
the ground floor parking area of Uphaar Cinema, caught fire. The oil from the transformer leaked
and found its way to the passage outside where many cars were parked. Two cars were parked
immediately adjoining the entrance of the transformer room. The burning oil spread the fire to
nearby cars and from then to the other parked cars. The burning of (i) the transformer oil (ii) the
diesel and petrol from the parked vehicles (iii) the upholstery material, paint and other chemicals
of the vehicles and (iv) foam and other articles stored in the said parking area generated huge
quantity of fumes and smoke which consisted of carbon monoxide and several poisonous gases.
As the ground floor parking was covered all round by walls, and the air was blowing in from the
19
(2011) 14 SCC 481

22
entry and exit points, the smoke and noxious fumes/smoke could not find its way out into open
atmosphere and was blown towards the staircase leading to the balcony exit. On account of the
chimney effect, the smoke travelled up. Smoke also travelled to the air-conditioner ducts and was
sucked in and released into the auditorium. The smoke and the noxious fumes stagnated in the
upper reaches of the auditorium, particularly in the balcony area. By then the electricity went off
and the exit signs were also not operating or visible. The patrons in the balcony who were
affected by the fumes, were groping in the dark to get out. The central gangway in the balcony
that led to the Entrance foyer could have been an effective and easy exit, but it was closed and
bolted from outside, as that door was used only for entry into the balcony from the foyer.

Issues:

Reasoning:

We agree with the MCD that it had no role to play in regard to increasing the height of the
parapet wall. The sanction for licence to construction granted in 1972 was in regard to a three
feet high parapet wall. The height of the said wall was increased by the Theatre owners in or
about 1973. The MCD was not the inspecting authority till 1994. There was no structural change,
modification or deviation after 1994. When MCD inspected the theatre, it would have seen a
theatre which was running for more than 20 years and that there was no recent change. In the
circumstances, MCD cannot be found fault with for not complaining about the wall.

Legal liability in damages exist solely as a remedy out of private law action in tort which is
generally time consuming and expensive and hence when fundamental rights are violated
claimants prefer to approach constitutional courts for speedy remedy. Constitutional courts, of
course, shall invoke its jurisdiction only in extraordinary circumstances when serious injury has
been caused due to violation of fundamental rights especially under Article 21 of the
Constitution of India. In such circumstances the Court can invoke its own methods depending
upon the facts and circumstances of each case.

Judgment:

Despite the concern shown by this Court, it is unfortunate that no legislation has been enacted to
deal with such situations. We hope and trust that utmost attention would be given by the

23
legislature for bringing in appropriate legislation to deal with claims in Public Law for violation
of fundamental rights, guaranteed to the citizens at the hands of the State and its officials.

11) Secretary, Ministry of Defence & Others v. Damodaran A.V. (Dead) through LRs. &
Others20

Facts:

A.V. Damodaran was enrolled in the Indian Army as Sapper in the Madras Engineers Group on
28.11.1979. After completion of basic training he was posted to 1st Engineer Regiment. A.V.
Damodaran was admitted to MI Allahabad and was diagnosed to be suffering from "Malaria"
B.T." on 24.6.1984. He was discharged from the hospital on 30.6.1984 and was again admitted
in the Air Force Hospital, Jhansi because he was suffering from "Hallucination". A.V.
Damodaran was transferred to the Command Hospital, Lucknow for management by a
psychiatrist on 5.7.1984. The disability of A.V. Damodaran was diagnosed as "Schizophrenia
(295)" in peace station in July 1984.

The legal representatives of respondent no. 1 herein filed an Original Writ Petition before the
High Court praying for grant of disability pension. By an order dated 20.12.2000 the learned
Single Judge has allowed the original petition and declared that the individual was eligible to get
disability pension under the provisions contained in the Pension Regulations for the Army, 1961
and such other enabling provisions. The Department filed a Writ Appeal before the High Court.
By an impugned order, the High Court has dismissed the said appeal finding no reason to
interfere with the discretion exercised by the learned Single Judge.

Issues:

Whether the High Court was justified in ignoring the report of the Medical Board in which it is
clearly mentioned that disability of A.V. Damodaran was neither attributable nor aggravated by
the military service?

Reasoning:

20
(2009) 9 SCC 140

24
I have heard the learned counsel for the parties. I am of the considered view that the Medical
Board is an expert body and its opinion is entitled to be given due weight, value and credence. In
the instant case, the Medical Board has clearly opined that the disability of Late Shri A.V.
Damodaran was neither attributable nor aggravated by the military service.

In my considered view, both the learned Single Judge and the Division Bench of the High Court
have not considered this case in proper prospective and in the light of the judgments of this
Court. The legal representatives of A.V. Damodaran are not entitled to the disability pension.
However, in the facts and circumstances of the case, in case some amount has been paid to the
legal representatives of A.V. Damodaran towards disability pension, the same may not be
recovered from them.

Judgement:

In the present appeal, the record reveals that in the opinion of the Medical Board no physical
contributory factor was elicited for the psychotic breakdown of the respondent. Thus, the
condition of military service cannot be said to have triggered the onset of schizophrenia in the
respondent. However, the possibility of the development of schizophrenia in the respondent as a
result of family stress and pressure (which is regarded as a factor triggering the onset of this
mental condition in some individuals cannot be ruled out totally. The respondent did not assail
the validity of the finding or the opinion of the Medical Board. On the contrary, the respondent
has placed reliance on the findings of the Board on the aspect of the extent of the respondent's
disability being 60%.

I fully endorse and agree with the conclusion arrived at by my esteemed brother Justice Dalveer
Bhandari that the legal representatives of the respondent A.V. Damodaran are not entitled to
disability pension but if any amount towards such disability pension has already been paid, the
same may not be recovered from the legal representatives. I also hold that the appeal stands
allowed in terms of the aforesaid order.

12) Union Of India v. West Punjab Factories Ltd21

Facts:

21
AIR 1966 SC 395

25
These three appeals raise common questions and will be dealt with together. They arise out of
two suits filed against the Government of India claiming damages for loss of goods which were
destroyed by fire on the railway platform at Morar Road Railway Station. One of the suits was
filed by Birla Cotton Factory Limited, now represented by the West Punjab Factories Limited
(hereinafter referred to as the factory). It related to six consignments of cotton bales booked from
six stations on various dates in February and March 1943 by the factory to Morar Road Railway
Station. In five of the cases, the consignment was consigned to J. C. Mills while in one it was
consigned to self. The consignments arrived at Morar Road Railway Station on various dates in
March. Delivery was given of a part of one consignment on March 7, 1943 while the remaining
goods were still in the custody and possession of the railway. On March 8, 1943 a fire broke out
at the Morar Road Railway Station and these goods were involved in the first and serve damage
was caused to them. It is not necessary to refer to the details of the damage for the matter is not
in dispute between the parties. The case of the Factory was that the damage and loss was caused
while the goods were in the custody and control of the railway administration and it was due to
misconduct, negligence and carelessness on the part of the railway administration. Consequently,
the suit was filed for Rs. 77,000 and odd along with interest upto the date of the suit and interest
pendente lite and future interest.

Issues:

These three appeals raise common questions and will be dealt with together. They arise out of
two suits filed against the Government of India claiming damages for loss of goods which were
destroyed by fire on the railway platform at Morar Road Railway Station. One of the suits was
filed by Birla Cotton Factory Limited, now represented by the West Punjab Factories Limited
(hereinafter referred to as the factory). It related to six consignments of cotton bales booked from
six stations on various dates in February and March 1943 by the factory to Morar Road Railway
Station.

Reasoning:

The mere fact that the consignee is different from the consignor does not necessarily pass title to
the goods from the consignor to the consignee, and the question whether title to goods has passed
to the consignee will have to be decided on other evidence. It is quite possible for the consignor

26
to retain title in the goods himself while the consignment is booked in the name of another
person. Take a simple case where a consignment is booked by the owner and the consignee is the
owner's servant, the intention being that the servant will take delivery at the place of destination.
In such a case the title to the goods would not pass from the owner to the consignee and would
still remain with the owner, the consignee being merely a servant or agent of the owner or
consignor for purposes of taking delivery at the place of destination. It cannot therefore, be
accepted simply because a consignee in a railway receipt is different from a consignor that the
consignee must be held to be the owner of the goods and he alone can sue and not the consignor.

Judgement:

The appeals, therefore, fail with this modification that the decretal amount would be reduced by
the amount of interest awarded for the period before the date of each suit. The rest of the decree
stands. The appellant will pay the respondents' costs - one set of hearing fee. In CA 603/63
interest will be calculated from 6th August 1962 in accordance with that order.

13) Trustees of The Port of Bombay v. Premier Automobiles Limited22

Facts:

The Premier Automobiles Ltd, hereinafter referred to as the plaintiffs, imported 13 cases of
machinery from Italy. Case No. 2 49, which is the subject-matter of the controversy before us,
contained an internal grinding machine weighing over 3 tonnes. It arrived in Bombay on
February 21, 1960, by S. S. Jalsilton Hall. The "Board", constituted under section 4 of the
Bombay Port T rust Act, 1879. for short the Act, was a body corporate with a perpetual
succession and a common seal. It was called "the Trustees of the Port of Bombay" and could sue
and be sued by that name. We shall, however, refer to it as "the Board" for that is how it has been
referred to in the Act and the impugned judgment. Since the Board was charged with the duty of
carrying out the provisions of the Act, and had, in particular, the duty, under section 61A(1) of
the Act, to take charge immediately upon the landing of any goods, it took charge of case No.
249 also on its landing in Bombay on February 21, 1960. The Board has in fact filed document
Ex. K to prove that the case was in a damaged condition when it landed on February 21, 1960,

22
(1981) 1 SCC 228

27
and that attention to that fact was drawn of the handling agents M/s Scindia Steam Navigation
Co. Ltd. It purports to be a contemporaneous document.

Issues:

Whether the High Court was right in taking the view that "apart from the claim in tort, the
plaintiffs also claimed for the breach of the Trusts' statutory liability under section 61B?

Reasoning:

In reaching that conclusion the High Court noticed the obvious facts that in paragraph II(b) of the
consent terms the trial court was required to assume that there was some misfeasance,
malfeasance or non-feasance of the persons handling case No. 249. The High Court also noticed
the two further facts (i) that there were three clear heads under which torts could be classified,
and by using them in paragraph 2 of section 87 of the Act, "the Legislature provided for
immunity of the Port Trust from torts committed by its employees", and (ii) that in so far as the
plaintiffs' claim in tort was concerned there could be no doubt that "it would fall within the ambit
of paragraph 2 of section 87 because misfeasance, malfeasance or nonfeasance (was) specifically
admitted".

Judgment:

In the result, the appeal succeeds and is allowed. The judgment and decree of the High Court are
set aside and the suit is dismissed. In the circumstances of the case, the parties shall pay and bear
their own costs throughout. Appeal allowed.

14) Malay Kumar Ganguly v. Sukumar Mukherjee23

Facts:

The patient (Anuradha) and her husband Dr. Kunal Saha (for short, "Kunal") were settled in the
United States of America. Anuradha, a child Psychologist by profession, was a recent graduate
from a prestigious Ivy League School (`Columbia University' in the New York State). Although
a doctor by profession, Kunal has been engaged in research on H.I.V/ AIDS for the past 15
years.
23
2009 (4) CALLT 40 (SC)

28
They left U.S.A. for a vacation to India on 24th March, 1998. They arrived in Calcutta on 1st
April, 1998. While in Calcutta, Anuradha developed fever along with skin rash on 25th April,
1998. On 26th April, Dr. Sukumar Mukherjee, Respondent No. 1 herein attended and examined
Anuradha at her parental residence on a professional call. Dr. Mukherjee assured the patient and
her husband of a quick recovery and advised her to take rest but did not prescribe her any
specific medicine. However, two weeks thereafter, i.e., on 7th May, 1998, the skin rash
reappeared more aggressively. Dr. Mukherjee was again contacted and as per his instructions,
Anuradha was taken to his chamber. After examining Anuradha, Dr. Mukherjee prescribed
Depomedrol injection 80 mg twice daily for the next three days. Despite administration of the
said injection twice daily, Anuradha's condition deteriorated rapidly from bad to worse over the
next few days. Accordingly, she was admitted at the Advanced Medicare Research Institute
(AMRI) in the morning of 11th May, 1998 under Dr. Mukherjee's supervision. Anuradha was
also examined by Dr. Baidyanath Halder, Respondent No. 2 herein. Dr. Halder found that she
had been suffering from Erithima plus blisters. Her condition, however, continued to deteriorate
further. Dr. Abani Roy Chowdhury, Consultant, Respondent No. 3 was also consulted on 12th
May, 1998.

Issues:

Would it amount to cleavage of opinion so as to enable the court to arrive at a safe conclusion
that no negligence is proved or there was no deficiency in service?

Reasoning:

In reaching that conclusion the High Court noticed the obvious facts that in paragraph II(b) of the
consent terms the trial court was required to assume that there was some misfeasance,
malfeasance or non-feasance of the persons handling case No. 249. The High Court also noticed
the two further facts (i) that there were three clear heads under which torts could be classified,
and by using them in paragraph 2 of section 87 of the Act, "the Legislature provided for
immunity of the Port Trust from torts committed by its employees", and (ii) that in so far as the
plaintiffs' claim in tort was concerned there could be no doubt that "it would fall within the ambit
of paragraph 2 of section 87 because misfeasance, malfeasance or nonfeasance (was) specifically
admitted". So even though there was no contractual bailment either according to the pleadings of

29
the parties. or on the wordings of section 61B, the responsibility of the Board was of the nature
aforesaid, as the bailee of the consignment by virtue of that section. In other words, in so far as
the "responsibility" of the Board for the loss, destruction or deterioration of the goods of which it
had taken charge was concerned, it was clearly that of a bailee, subject of course to the
reservations provided by the section. What then is the nature of a bailment? It may be mentioned
that we have gone through the pleadings and there is no justification for the view that the
plaintiffs based their claim on the breach of a mere statutory duty of the Board under section
61B.

Judgement:

In the result, the appeal succeeds and is allowed. The judgment and decree of the High Court are
set aside and the suit is dismissed. In the circumstances of the case, the parties shall pay and bear
their own costs throughout. Appeal allowed.

15) M.D., Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd24

Facts:

Army Welfare Housing Organization (for short “AWHO”) and Sumangal Services Pvt. Ltd. (for
short “Sumangal”) entered into an agreement for development of land and construction of a
composite housing project on a turn-key basis on approximately 17.9. acres of land situate on the
VIP Road, in the town of Kolkata. For the said purpose of draft agreement initially drawn up was
given finality by Articles of Agreement dated 28.8.1993. Certain terms and conditions, however,
had been altered therein with mutual consent.

The project was envisaged to be completed in three phases. Considerable progress was made in
the matter of construction of work in Phase I. The plots where the said work was being carried
out fell under the local administration of Gopalpur Arjunpur Gram Panchayat. The building plan
for Phase I was sanctioned by the said Gram Panchayat in September, 1991 in terms whereof 11
blocks of houses could be constructed. The said area, however, became a municipality in terms
of the West Bengal Municipal Act, 1932 known as Rajarhat Gopalpur Municipality. West
24
(2004) 9 SCC 619

30
Bengal Municipal Act, 1932, however, was repealed and replaced be West Bengal Municipal
Act, 1993.

It is not in dispute that pursuant to or in furtherance of the said agreement Sumangal entered into
negotiations with the owners of the agricultural lands for sale thereof wherefor sale deeds in
respect of 2.32 acres of land were executed by the owners in favour of AWHO. Sumangal
received the amount for consideration from AWHO paid to the owners upon furnishing a Bank
guarantee as also subject to the condition that it will get the said land converted into Bastu.

Issues:

Whether the award is vitiated as general conditions of contract had not been complied with?

Reasoning:

It is, therefore, not correct to contend that the said order was passed on consent of the parties. For
all intent and purport, Sumangal could not have consented to grant of such a prayer which would
virtually put a final seal over the disputes. We have hereto-before quoted the purported order
dated 1st September, 1997 which ex facie demonstrate that the arbitrator assumed jurisdiction to
pass the said interim order at the behest of AWHO. Furthermore, as noticed hereinbefore,
Sumangal filed a review application which was also dismissed in the manner noticed
hereinbefore. The said interim order was, thus, not passed with consent of parties. If the learned
arbitrator has no jurisdiction to pass an interim order, even by consent no such jurisdiction could
be conferred.

Judgment:

We, therefore, for the aforementioned reasons, while upholding Claim No. 1 of the award are of
the opinion that the award of the arbitrations in relation to Claim No. 2 must be set aside.
Consequently, no interest thereupon shall be payable. The I.A. No. 11 of 2002 is allowed to the
aforementioned extent. No costs.

CONCLUSION

Misconduct is a ground for the termination of employment of the workers in an organisation or

industrial concern. Misconduct means any act of the employee that is detrimental to the property

31
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 tranquillity of the organisation is a driving factor in
determining whether a particular act or omission is misconduct or not. 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. 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.

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.

32
BIBLIOGRAPHY

• Kulshreshtha’s Service Laws & Constitutional Remedies, Srinivasan S. T., Second

Edition, Capital Law House, Delhi, India.
• Service Law in India, Mallick M.R., Eastern Law House, Calcutta, India.
• Justice G.P Singh, ‘Principles of Interpretation of Statute’, EBC Publication, 2004.
• www.manupatra.com
• www.judis.nic.in
• https://indiankanoon.org/

33