Jai Singh vs Haryana State Co-operative Apex Bank Limited and Others

Daya Chaudhary, J.—The petitioner has approached this Court for issuance of a direction in the nature of Mandamus to the respondents to reinstate him in service with all consequential benefits. The petitioner was appointed as Clerk vide order dated 3.6.1995. During the period of his service, an FIR No. 84 dated 1.12.1995 under various sections, including sections 302 IPC was registered.

In the aforesaid FIR, the petitioner and twelve others were convicted and sentenced to undergo life imprisonment under Section 302 IPC, apart from other sentences vide judgment dated 28.5.2003. Aggrieved by the aforesaid order, the appeal bearing Crl. Appeal No. 524-DB of 2003 was filed by the petitioner which was allowed vide judgment dated 16.6.2006. setting aside the conviction awarded under Section 302 IPC. However, the conviction and sentence under remaining sections 326/149, 324/149 and 323/149 and 148 IPC were maintained. He was sentenced to undergo rigorous imprisonment for five years along with fine of Rs. 300/-.

During the pendency of criminal proceedings, the services of the petitioner were terminated vide order dated 16.6.2003 after taking into consideration the judgment of conviction and sentence under Section 302 IPC dated 28.5.2003 as it being an offence including moral turpitude. Even the appeal filed was dismissed vide order dated 2.4.2004.

Learned counsel for the petitioner submits that the impugned orders passed by the authorities are not only illegal but also against the service law. The only reason for dismissing the petitioner from service is that he was convicted under Section 302 IPC which constitutes gross misconduct and moral turpitude, however, in appeal this Court vide judgment dated 16.6.2006, set aside the conviction and sentence under Section 302 IPC, however, his conviction under various sections, including 326 IPC was maintained. Emphasizing the argument on the point that since section 326 IPC does not involve any moral turpitude or gross misconduct, the petitioner should have been reinstated in service with all consequential benefits. Even the similarly situated employee has been reinstated in service by the Transport Department.

A preliminary objection has been raised by learned counsel for the respondents that the writ petition is not maintainable, inasmuch as, the bank is a cooperative society is not amenable to writ jurisdiction under Articles 226/227 of the Constitution of India. Even an alternative remedy as provided under Section 115 of the Haryana Cooperative Societies Act has not been exhausted. Learned counsel for the respondents submits that since the petitioner was on probation and he was convicted by the trial Court under various sections, including Section 302 IPC, he was rightly dismissed from service.

I have given my thoughtful consideration to the arguments raised by learned counsel for the parties and have also gone through the records of the case.

Three questions are to be adjudicated upon by this Court which are as under:

"(i) Whether the writ petition is maintainable against the Cooperative Bank?

(ii) Whether, at this juncture, direction can be issued for exhausting the remedy available under Section 115 of the Haryana Cooperative Societies Act?

(iii) Whether, the petitioner is entitled to reinstatement in service with all consequential benefits?"

To adjudicate the matter, the aforesaid questions are to be dealt upon individually and one by one,

The question regarding the maintainability of the writ petition against the Cooperative Bank? has been settled by this Court in judgment rendered in District Red Cross Society, Sirsa v. Radha Kishan Rajpal and another 2005(1) RSJ 375 wherein it has been held that the Cooperative Society is to be treated as an instrumentality of the State. The ratio of the aforesaid judgment suggests that the writ petition filed against the Cooperative Bank is maintainable. Thus, the argument of learned counsel for the respondents that the writ petition is not maintainable, does not hold water.

The second point for determination is as to whether the petitioner should have firstly exhausted the remedy as provided under section 115 of the Act. To resolve the issue in controversy, let the facts be narrated so as to adjudicate the matter in a proper manner. The petitioner and others were convicted under various sections including section 302 IPC and he was dismissed from service on 16.6.2003. His appeal against the order of dismissal was also rejected by the appellate authority on 2.4.2004. However, this Court while deciding the appeal against the judgment of conviction and order of sentence on 16.5.2006 set aside the conviction under section 302 IPC but sentenced to undergo rigorous imprisonment for five years with default clause under various sections, including section 326/149 IPC. That being the position, the petitioner moved representation on 20.4.2007 which was rejected on 8.10.2008. Now in such like circumstances, what needs to be answered is that whether the petitioner is required to exhaust the remedy of revision and whether the writ petition is maintainable or not before the exhaustion of remedy of revision. The remedy of appeal was exhausted by the petitioner on dismissal of the same on 2.4.2004. On his acquittal under section 302 IPC, he moved representation on 20.4.2007 which was rejected on 8.10.2008. Now at this stage, to ask the petitioner to avail the remedy of revision after the lapse of period of five years before approaching this Court, would not be appropriate, inasmuch as, this Court has inherent powers under Article 226 of the Constitution of India to decide the case when there is flagrant error in the procedure of law. Thus, the writ petition is maintainable in the peculiar facts and circumstances of the case without first exhausting the remedy under Section 115 of the Act.

Now the last point for determination is as to whether the petitioner is entitled to reinstatement in service with all consequential benefits. The petitioner has been convicted under various sections, including section 326/149 IPC. The said offence does not involve any moral turpitude, as section 326 IPC does not figure in the list of offences constituting moral turpitude as mere causing hurt does not involve moral turpitude or conduct of the petitioner does not evince lack of honesty, modesty or good morals and, therefore, the petitioner is entitled to be reinstated in service. However, the petitioner could not work in the Bank on account of his conviction under section 302 IPC and later on he was acquitted in that very section, therefore, doctrine of "no work, no pay" is applicable and as such the petitioner is not entitled for any pay during the period he remained out of service. In the light of the aforesaid observations, the present petition is allowed.