definition of Misconduct

CASE NO.: Appeal (civil) 6835 of 2000

PETITIONER:
Institute of Chartered Financial Analysts of India & Ors

RESPONDENT:
Council of the Institute of Chartered Accountants of India & Ors

DATE OF JUDGMENT: 16/05/2007
………………………………………………………….
Somewhere in this matter is held:
We are herein concerned with the term 'misconduct'. The word
'misconduct' which in generic sense would mean, as held in Probodh Kumar
Bhowmick v. University of Calcutta and Ors. 1994 (2) C.L.J. 456 is as
under:

"Misconduct, inter alia, envisages breach of discipline,
although it would not be possible to lay down
exhaustively as to what would constitute conduct and
indiscipline, which, however, wide enough to include
wrongful omission or commission whether done or
omitted to be done intentionally or unintentionally. It
means, 'improper behaviour; intentional wrong doing on
deliberate violation of a rule of standard or behaviour':

Misconduct is a transgression of some established and
definite rule of action, where no discretion is left except
what necessity may demand; it is a violation of definite
law a forbidden act. It differs from carelessness.
Misconduct even if it is an offence under the Indian
Penal Code is equally a misconduct."

[See also State of Punjab and Others v. Ram Singh Ex. Constable - AIR
1992 SC 2188 : (1992) 4 SCC 54 and B.C. Chaturvedi v. Union of India
(1995) 6 SCC 749].

Interpretation of law is the job of the superior court. An opinion of an
expert is not beyond the pale of judicial review. It would certainly not be so
when the statutory authority transgresses its jurisdiction. A decision taken in
excess of jurisdiction would render the same a nullity. [See Vasu Dev Singh
& Ors. v. Union of India & Ors. 2006 (11) SCALE 108]

If a notification issued under a statute is a law within the meaning of
Article 13(3)(a) of the Constitution, the same is liable to be struck down if it
is contrary to any of the fundamental rights guaranteed under the
Constitution of India. [See Indian Express Newspapers (Bombay) Private
Ltd. and Others v. Union of India and Others, (1985) 1 SCC 641]. In our
opinion the notification dated 03.08.1989 issued by respondent No.1 violates
Articles 14 and 19 (1) (g) of the Constitution and is hereby quashed.