Anand Kumar Jain vs Chairman, State Bank of India and Others

Manindra Mohan Shrivastava, J.—By this petition under Article 226 /227, the petitioner has called in question the correctness and validity of respondent''s action in terminating the petitioner''s services vide order dated 29-04-2005 (Annexure P-15). The petitioner has prayed for quashing of the order impugned with a further prayer to direct reinstatement with full back-wages. Shorn of unnecessary details, the petitioner, who was working as Clerk-cum-Cashier in the services of the respondent-Bank, was charged of criminal act of commission of offence under Sections 294, 506-B, 323 /34 of the I.P.C. on the allegation that the petitioner compelled the security guard of the bank to write in favour of one Vinod Kumar Jain, and upon refusal, abused and assaulted. The allegation of abusing, threatening and then assaulting on co-employee during office hours, led to registration of offence and trial for the aforesaid offences which culminated in conviction, though only u/s 323 of the I.P.C. by which, petitioner was sentenced to undergo R.I. for three months vide judgment of conviction and order of sentence dated 31-07-2001 (Annexure P-2). Aggrieved by the aforesaid judgment and order of sentence, an appeal was preferred, which was decided vide order dated 24-12-2001 (Annexure P-3), by which, though conviction was maintained, sentence was reduced only to fine. Revision was preferred before this Court, which during (he pendency of this petition, was dismissed vide order dated 30-08-2012 passed in Criminal Revision No. 95 of 2002, copy of which is annexed along with an application dated 18-09-2012 for taking additional documents on record filed by the petitioner.

In the meanwhile, conviction of the petitioner also resulted in initiation of action against the petitioner for discharge from service on account of conviction in a criminal case involving moral turpitude in terms of Section 10(1)(b)(i) of Banking Regulations Act, 1949 (In short "the Act of 1949") (filed by the petitioner as Annexure P-10 and filed by the respondents as Annexure R-2/C). The petitioner submitted his reply vide Annexure P-11. Finally, the proceedings ended in issuance of impugned order dated 29-04-2005 (Annexure P-15) dismissing the petitioner from service with immediate effect.

This petition, as originally constituted, was filed on the allegation that by an oral direction, services of the petitioner have been discontinued, but when respondents filed their return placing on record, order of dismissal passed on 29-04-2005 (Annexure R-2/F), the petitioner was permitted to amend the writ petition to assail the correctness and validity of order dated 29-04-2005.

Learned Senior Counsel for the petitioner raised manifold contentions. It was argued that the respondents'' action of dismissing the services of the petitioner by treating offence u/s 323 of the I.P.C. involving moral turpitude is illegal as the offence u/s 323 of the I.P.C. cannot be said to be in the category of those offences, which involve element of moral turpitude. It is further contended that at the most, it could be treated to be a simple case of assault as it did not result in grievous injuries on the victim. He submits that the offence is only of petty nature. The circumstances, in which, offence was committed, it would only, at best, be termed as an act of indiscipline by an employee of assaulting and beating in a trivial matter. Therefore, viewed from any angle, it cannot be said to be an offence involving moral turpitude. In support of his submission, learned counsel for the petitioner placed heavy reliance on the judgment of High Court of Madhya Pradesh in the case of Dhan Singh Thakur v. State of M.P. & others, 2003 (I) MPJR Short Note No. 11, wherein it has been held that offence u/s 323 of the I.P.C. does not involve moral turpitude. Further, placing reliance on the judgment of Supreme Court in the case of Pawan Kumar Vs. State of Haryana and another, ), it has been contended that the offence u/s 323 of the I.P.C. is not covered under any of the three clauses mentioned by the Supreme Court in Para 12 of its judgment. Learned counsel for the petitioner submitted that the authorities ignored to consider that the appellate Court itself altered the sentence reducing it only to fine amount, which indicated triviality of the offence committed by the petitioner, in the circumstances discussed by the learned appellate Court. Therefore, for such a petty offence depriving the petitioner of his livelihood, is highly arbitrary and irrational. It was next contended that though the petitioner was given a notice for discharge only, contrary to the provisions contained in Shastri Award, the respondents proceeded to dismiss the petitioner from service, thereby violating the statutory terms of memorandum of settlement (Shastri Award) having statutory force under the provisions of Industrial Disputes Act. Learned counsel for the petitioner lastly submitted that while dismissing the revision petition filed by the petitioner vide order dated 30-08-2012, it was observed that conviction of the applicant will not affect his service. Therefore, the order of dismissal from service is liable to be recalled and the petitioner is entitled to be reinstated in service with full back-wages.

Per Contra, submission of learned counsel for the respondent-Bank, placing reliance on number of decisions, is that the petitioner was an employee of the bank and the alleged criminal act of assaulting a co-employee, who was a Security Guard in the bank, was committed during office hours, when Security Guard did not succumb to the pressure of writing in favour of one Vinod Kumar Jain, who had come along with the petitioner. According to him, this act of the petitioner, who was an employee of the bank, is an act which shows the conduct inherently base, vile and depraved. He further submitted that merely because it was an assault, it cannot be ignored in the special background that the petitioner being an employee of the bank, assaulted a co-employee, Security Guard of the bank during office hours, compelling the Security Guard to write in favour of one Vinod Kumar Jain. This indecent behaviour was looked down upon by colleagues and employees of the bank and general public. Therefore, in the present facts and circumstances of the case, the act of assaulting would involve moral turpitude. The bank was, therefore, left with no other option, but to dismiss the petitioner from service, in view of the provisions contained in Rule 10(1)(b)(i) of the Act of 1947. Further submission is that merely because the sentence of R.I. was converted into that of fine would not take away the colour of moral turpitude. The guilt of the appellant was affirmed by the appellate Court as also by the revisional Court, but looking to the circumstances, fine alone was imposed. He also submitted that the order passed in the criminal revision would not entitle the petitioner to reinstatement in service, because this fact was not brought to the notice of the Court of Revision that the petitioner already stood dismissed from service and writ petition was pending before this Court. In support of his submission, learned counsel for the respondent-Bank has relied upon the decisions in Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank, Allahabad Bank and Another Vs. Deepak Kumar Bhola, Rajendra Prasad Pandey Vs. Allahabad High Court and another, (All)) Mangali Vs. Chhakki Lal and Others, , Brij Kishore Shukla Vs. M.P.S.R.T. Corporation and Others, Arun Dixit Vs. Chairman and Managing Director, Bharat Petroleum Corporation Ltd. and Others, and order dated 05-07-2010 of Delhi High Court passed in the case of Ram Narain Sharma v. Canara Bank (RSA No. 121 of 2001).

I have given my anxious consideration to the submissions of learned counsel for the parties at the bar and also perused the records containing respective pleadings and documents.

Conviction of the petitioner for commission of offence u/s 323 of I.P.C. is not in dispute. The learned trial Court vide its judgment dated 31-07-2001 (Annexure P-2) held the petitioner and another accused guilty for commission of offence u/s 323 /34 of the I.P.C. and sentenced him to undergo R.I. for three months. In Criminal Appeal, the finding of guilt was not disturbed, however, the appellate Court reduced the sentence of R.I. of three months to fine of Rs. 1,000/- and in default, simple imprisonment of one month. Revision has also been dismissed vide order dated 30-08-2012 passed by this Court in Criminal Revision No. 95 of 2012.

A bare perusal of notice dated 18-02-2003 (Annexure P-10) and impugned order of dismissal from service passed on 29-04-2005 (Annexure P-15) revealed that the respondents have dismissed the petitioner from service treating it to be conviction on moral turpitude and thereupon holding that the petitioner cannot be continued in service in view of the provisions contained in Rule 10(1)(b)(i) of the Act of 1949. In order to appreciate the submission of learned counsel for the parties and to decide the issue involved in the case, it would be profitable to reproduce the relevant provisions contained in Rule 10(1)(b)(i) of the Act of 1949:--

Prohibition of employment of managing agents and restrictions on certain forms of employment.--(1) No banking company--

(a) * * *

(b) shall employ or continue the employment of any person--

(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is. or has been, convicted by a criminal Court of an offence involving moral turpitude;

(Emphasis supplied)

The aforesaid provision makes it clear that the management is under an obligation to discontinue the services of an employee, who is or has been convicted by the Criminal Court for commission of offence involving moral turpitude.

In the case of Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank, the Supreme Court in para 18 of its judgment held that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction.

Therefore, what needs to be examined is as to whether dismissal of the petitioner from service is in accord with the aforementioned provisions contained in the Act of 1949. In the light of contention made by learned counsel for the parties, the decision necessarily is to be based on the conclusion as to whether in the facts and circumstances of the present case, conviction of appellant u/s 323, I.P.C. should be taken as conviction for commission of offence involving moral turpitude within the meaning of the provisions referred to above.

As to what should be the meaning of the word "Moral Turpitude", learned counsel for the parties have placed several decisions before this Court, which need to be referred to. But before examining the import of word moral turpitude, it has to be noted that the provision of law, under which, action has been taken against the petitioner, nowhere defines moral turpitude. Learned counsel for the parties also could not bring to the notice of this Court any rules, regulations relating to conduct applicable to the petitioner, wherein word "moral turpitude" has been defined or explained. It is also not defined or explained under the provisions contained in the Indian Penal Code. According to Lexicon Webster Dictionary of English Language, the word "turpitude" means wickedness. According to Black''s Law Dictionary, the word "moral turpitude" means it involves baseness, vileness or depravity in the private and social duties which one person owes to another or to society in general, contrary to the accepted and customary rule of write (sic) and duty between man and man. In other words, it is an act or behaviour that gravely violates moral sentiments or accepted moral sentiment or accepted moral standards of the community and is a morally culpable quality held to be present in some criminal offences as distinguished from others. It is the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory prohibitions. Viewed in that narrow sense or in general term, of righteousness, society does not permit or approve of any offences being committed but then every act punishable in law is not offence involving moral turpitude. The circumstances, in which, crime has been committed and how the society views the commission of that offence in those circumstances is relevant. In order to find out whether in a. given case, offence is one, which involves moral turpitude, it would essentially be a question of fact, to be decided with reference to the facts of each case. Thus, the same offence may or may not involve moral turpitude and it would rather depend upon number of circumstances. An offence committed under one set of circumstances may involve moral turpitude and the same offence committed under a different set of circumstances may not.

The expression ''moral turpitude'' came up for consideration before the High Court of Allahabad in the case of Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, , the question, which arose for consideration was as to whether the conviction u/s 182 of the I.P.C., making false report was in respect of an offence involving moral turpitude. Answering this question in affirmative, it was observed:--

The expression ''moral turpitude'' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general.

In a later decision, in the case of Mangali Vs. Chhakki Lal and Others, , a learned single Judge of Allahabad High Court examined this aspect more elaborately by not only taking into consideration the judgment in the case of Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, but also in some other cases viz. Durga Singh Vs. The State of Punjab, It was held that the question whether certain offence involves moral turpitude or not necessarily depends upon the circumstances in which the offence is committed. It was further held that the test, which should ordinarily be applied for judging whether certain offence does or does not involve moral turpitude appears to be (1) whether the act leading to a conviction was such as could shock the moral conscience or society in general; (2) whether the motive which led to the act was a base one and; (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. It was also observed that no absolute standard can be laid down for deciding whether a particular act is to be considered one involving moral turpitude, but the tests indicated therein are the general test, which should be applied and which should, in most cases, be sufficient for enabling one to arrive at a correct conclusion on the question.

The view taken by the Allahabad High Court in the case of Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, was quoted with approval by the Supreme Court in the case of Allahabad Bank and another (supra) while dealing with the identical situation. The Supreme Court held thus:--

What is an offence involving "moral turpitude" must depend upon the facts of each case. But whatever may be the meaning which may be given to the term "moral turpitude" it appears to us that one of the most serious offences involving "moral turpitude" would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw.

This Court in Pawan Kumar Vs. State of Haryana and another, dealt with the question as to what is the meaning of the expression "moral turpitude" and it was observed as follows:

Moral turpitude'' is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.

This expression has been more elaborately explained in Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, where it was observed as follows:

The expression ''moral turpitude'' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man.

In our opinion the aforesaid observations correctly spell out the true meaning of the expression "moral turpitude". Applying the aforesaid test, if the allegations made against the respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and, therefore, the appellant had the jurisdiction to suspend him under the aforesaid clause 19.3.

In the case of Pawan Kumar Vs. State of Haryana and another, the Supreme Court in para 12 of its judgment observed that "Moral Turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.

In yet another decision in the case of Rajendra Prasad Pandey (1999 Lab IC 237 (All)) (supra), the view taken earlier in the case of Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, and Mangali Vs. Chhakki Lal and Others, was approved. On facts, in respect of offence against woman, it was held that the act of the petitioner therein was derogatory to the dignity of women, and therefore, involving moral turpitude.

The view taken earlier in the case of Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, and Mangali Vs. Chhakki Lal and Others, was approved by placing reliance upon the verdict of the Supreme Court in the case of Pawan Kumar Vs. State of Haryana and another,

In the case of Brij Kishore Shukla (supra), similar view was taken laying emphasis on the principle that whether offence involves moral turpitude or not would essentially depend upon the question of fact which is to be decided with reference to the facts of each case. Reference was also made to Corpus Juris Secundum in its relevant extract as under:--

While frequently general statement have been made to the effect that mere assault does not or may not, involve moral turpitude, or that assault and battery rarely involve moral turpitude, the rule would seem to be that assault and battery may involve moral turpitude and it may not, the difference depending on the circumstances, and whether an assault does or does not involve moral turpitude generally will be determined by the particular facts of each individual case. The statutes of various jurisdictions divide assaults into different degrees and many of the crimes which are included within such definitions are crimes that involve moral turpitude. Homicide may or may not involve moral turpitude depending on the degree of the crime.

In yet another decision involving case of a bank employee convicted of offence u/s 323, I.P.C., the issue was decided, after taking into consideration number of decisions of the High Court and the Supreme Court to conclude, in the case of Ram Narain Sharma (supra), that an offence involving moral turpitude would essentially depends upon facts and circumstances of each case. The act of a bank employee of assaulting a co-employee during office hours was held to be a case of commission of offence involving moral turpitude. The principles laid down in the aforesaid decisions were also relied upon and applied by the High Court of Madhya Pradesh in the case of Arjun Dixit (supra).

In a recent decision in the case of Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank, he Supreme Court reiterated well settled principles laid down in its earlier decisions in the case of Pawan Kumar Vs. State of Haryana and another, with particular reference and explanation of the word "Moral Turpitude" given in Black''s Law Dictionary. The Supreme Court held thus:--

In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked and base activities.

The principles, which have been laid down in the aforesaid decisions of the Supreme Court and various High Courts, unmistakably lay down that as to what should mean by moral turpitude and further that whether particular offence will involve moral turpitude would depend upon the facts and circumstances of a given case. It has, therefore, to be held that in a given set of circumstances and background, commission of offence may not involve moral turpitude but commission of that very offence in a different facts and circumstances may involve moral turpitude.

Thus, possession of illicit liquor by an ordinary village person may not involve moral turpitude because in villages such illicit possession is not taken seriously, but then possession of illicit liquor concealed in a bladder by a gunman of State Bank of India was held to be an offence involving moral turpitude in the case of Swarn Singh v. State Bank of India, 1986 (Supp) SCC 566 ). The aforesaid decision was considered by the High Court of Madhya Pradesh in the case of Brij Kishore Shukla (supra).

As has been observed hereinabove with reference to the relevant extracts of Corpus Juris Secundum, in a given case, mere assault may not involve moral turpitude, but on-application of principles discussed hereinabove, mere assault may involve moral turpitude, where an employee assaults another co-employee during office hours. In the case of Ram Narain Sharma (supra), the facts were almost identical. One bank employee assaulted other bank employee during office hours and was convicted for commission of offence u/s 323, I.P.C., in which, it was held that this was a case of commission of offence involving moral turpitude.

In the present case also, it would certainly amount to a case of moral turpitude and the element of moral turpitude arise in the peculiar facts and circumstances of the present case where the petitioner, who was a bank employee, had assaulted a co-employee, none other than the Security Guard, compelling him to write in favour of some other person. It was not a case of simple assault by the petitioner with any other person outside the duty hours. Therefore, in the peculiar facts and circumstances of the present case, criminal act of the petitioner would certainly amount to commission of offence involving moral turpitude. Learned counsel for the petitioner placed reliance on the judgment of the High Court of Madhya Pradesh in the case of Dhan Singh Thakur (supra). In that case, there was a verification of character and antecedent, the employee was not found fit to be retained in service and it was held that every false statement made may not involve moral turpitude. Therefore, in the peculiar circumstances of the said case, the High Court came to the conclusion that commission of offence u/s 323, I.P.C. did not involve moral turpitude. The facts of the case are completely distinguishable from the facts of the present case. On the other hand, in the case of Ram Narain Sharma (supra) it has been held, in an almost similar situation/that commission of offence u/s 323, I.P.C. would involve moral turpitude.

The other submission of learned counsel for the petitioner that though notice of discharge was given but then the petitioner was dismissed from service pales into insignificance because this Court finds that the exercise of power of dismissal from service, in the present case, in substance, is based on the provisions contained in Section 10(1)(b)(i) of the Act of 1949 referred to above which imposes obligation on an employee who is or has been convicted by a Criminal Court for an offence involving moral turpitude, as observed by the Supreme Court in para 22 of its judgment in the case of Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank,

Last submission of learned counsel for the petitioner also needs to be answered. Learned counsel for the petitioner submitted that while dismissing revision petition, this Court observed in its order that the conviction of the applicant will not affect his service, therefore, the order of termination passed is liable to be recalled. After going through the order dated 30-08-2012 passed by this Court in Criminal Revision No. 95 of 2002, it is found that the revision petition was summarily dismissed. It was not brought to the notice of the Court that the services of the petitioner have already been dismissed vide order dated 29-04-2005 which is subject-matter of challenge in this present writ petition. The date, on which, order has been passed in the revision, the petitioner already stood dismissed from service. The provisions contained in Section 10(1)(b)(i) of the Act of 1949 were not brought to the notice of the Court by any of the parties obviously for the reason that legality and validity of the order of dismissal was not an issue in the revision petition. Therefore, the petitioner is not entitled to any benefit on that ground. In the result, the writ petition deserves to be dismissed and is accordingly dismissed. There shall be no order as to costs.