Ombir vs State of Haryana and Others

Augustine George Masih, J.—Petitioner has approached this Court impugning the order dated 1.2.2011 (Annexure P-3) vide which his services were terminated by the General Manager, Haryana Roadways, Bhiwani-respondent No. 3 on the ground that he has been convicted by the Criminal Court for an offence u/s 323/325 read with Section 34 IPC and sentenced to undergo imprisonment for six months with a fine of Rs. 500 and further sentence of one year imprisonment with a fine of Rs. 1000 with a fine of Rs. 1500 awarded as compensation to the injured, against which the appeal preferred by the petitioner stands dismissed. It was held by the Punishing Authority that Section 325 IPC is an offence which would fall in the category of moral turpitude as per the Government instructions dated 2.2.1973 (Annexure R-1). Counsel for the petitioner contends that respondent No. 3 had passed the order of termination relying upon the instructions dated 2.2.1973 which stand modified by the instructions dated 17/26.3.1975 issued by the Chief Secretary to Government of Haryana (Annexure P-1). He contends that although under the instructions dated 2.2.1973, Section 325 IPC was mentioned as an offence involving moral turpitude but the said instructions stand modified vide instructions dated 17/26.3.1973 whereby this Section has been omitted and, therefore, the order terminating the services of the petitioner dated 1.2.2011 (Annexure P-3) cannot sustain.

Counsel for the respondents, on the other hand, contends that this contention of the counsel for the petitioner cannot be accepted as vide instructions dated 17/26.3.1975 (Annexure P-1) only para 2 of the Haryana Government letter dated 2.2.1973 stands modified whereas the details of the offences involving moral turpitude stand as it is and, therefore, the Punishing Authority has rightly relied upon the instructions dated 2.2.1973 to terminate the services of the petitioner. He further contends that the Punishing Authority can, while passing an order of dismissal/removal, look into the conduct of the employee and if it comes to a conclusion that it involves moral turpitude, the order has to be taken as such. Reliance in support of this contention has been placed upon the judgment of the Supreme Court in the case of Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank, . He accordingly, prays for dismissal of the writ petition.

Briefly the facts of the case are that the petitioner was appointed as a Conductor in the year 1989. While, he was serving the respondents, a criminal case i.e. FIR No. 32 dated 19.2.1999 was registered against him at Police Station Badhra under Sections 148, 323, 342, 447, 506, 427, 324, 325, 326, 149 IPC. After trial, he was convicted under Sections 323, 324 read with Section 34 IPC vide judgment dated 23.12.2009.

Petitioner preferred an appeal against the said judgment which was dismissed by the appellate Court vide judgment dated 19.11.2010. Revision preferred against the said order i.e. Crl. Rev. No. 3146 of 2010 stands admitted by this Court and the petitioner has been released on bail. After he was convicted by the trial Court and the appeal was dismissed, respondent No. 3 proceeded to terminate his services vide impugned order dated 1.2.2011 (Annexure P-3). A perusal of the said order would show that the Punishing Authority has merely relying upon the instructions dated 2.2.1973 issued by the Government of Haryana wherein offence u/s 325 IPC has been termed as one involving moral turpitude, which has led to the dismissal of the petitioner vide the impugned order. These instructions were reconsidered by the Government of Haryana and fresh instructions dated 17/26.3.1975 (Annexure P-1) were issued wherein para 2 of the Haryana Government letter dated 2.2.1973 stood modified. Para 2 of the instructions dated 2.2.1973 would show that this would deal with the offences which were to be termed as involving moral turpitude. A list of such offences which would constitute moral turpitude under various Sections of the Indian Penal Code was appended along with the said letter. In this list of offences, Section 325 IPC was also mentioned as one of the offences involving moral turpitude. In the subsequent instructions dated 17/26.3.1975, this para 2 stands modified and in pursuance thereto, list of offences involving moral turpitude has been recast and attached with the said letter in which Section 325 IPC is not mentioned. The effect thereof is that the said offence stands deleted from the offences which would involve moral turpitude. Firstly, the impugned order cannot be sustained on the ground that the Punishing Authority had relied upon the instructions dated 2.2.1973 which stood already modified vide instructions dated 17/26.3.1975 and secondly the subsequent instructions would have precedence over the earlier instructions. According to the instructions dated 17/26.3.1975 prevalent at the time when the impugned order dated 1.2.2011 (Annexure P-3) was passed, offence u/s 325 IPC is not mentioned therein to be one which would involve moral turpitude. If that be so, the impugned order cannot sustain and deserves to be set aside.

The judgment relied upon by the counsel for the petitioner would not be applicable to the facts of the present case as the Punishing Authority had not applied its mind as to the conduct of the petitioner in commission of the offence and has passed the order in a mechanical manner. Even the instructions which have been relied upon would not hold the field and as per the subsequent instructions issued by the Government of Haryana itself, offence u/s 325 does not involve moral turpitude. In view of the above, the present writ petition is allowed; impugned order dated 1.2.2011 (Annexure P-3) is hereby quashed.