State of Haryana and another vs Ram Chander

A.K. Sikri, C.J.—The minimal facts which need to be mentioned for deciding the present appeal are the following. The respondent herein was appointed as skilled worker on 01.06.1978 in the office of Heat Treatment Centre, Faridabad on adhoc basis, albeit this appointment was through employment office in Bahadurgarh. In the year 2004, he was transferred to the Labour Department and was repatriated to his parent department on 19.01.2010.

In the year 1984, when the respondent was working as skilled worker in his parent department, he was implicated in FIR No. 200 of 1984, which was registered with Police Station Narela, Delhi. This FIR was under Sections 323, 324 read with Section 34 as also Section 452 of the Indian Penal Code. Learned Additional District and Sessions Judge, Delhi acquitted the respondent vide judgment dated 03.06.1989. The State, however, preferred appeal there against before the High Court of Delhi. This appeal (Criminal Appeal No. 09 of 1990) resulted in over-turning the judgment of the learned Additional District and Sessions Judge and conviction of the respondent under the aforesaid provisions. With this conviction, the respondent was also awarded sentence of imprisonment for the period already undergone by him, as he had remained in jail for some period at the trial stage. For conviction u/s 452 of the Indian Penal Code, a fine of Rs. 500/- was also imposed, which the respondent deposited.

When the FIR was registered in the year 1984 against the respondent and two others under the aforesaid provisions, the respondent was arrested as well, He was placed under suspension w.e.f. 01.10.1984. However, on his acquittal by the trial Court, he was taken back in service on 09.08.1996. After the conviction by the Delhi High Court, the respondent was served with show cause notice dated 01.01.2010 as to why his services be not terminated because of his conviction. He replied, but the same was not found satisfactory. Vide orders dated 11.02.2010, his services were terminated.

Challenging this termination, the respondent preferred the petition, which has been allowed by the learned Single Judge vide judgment dated 17.07.2012. It is this judgment which is under appeal before us.

A perusal of the impugned judgment of the learned Single Judge would disclose that as per instructions dated 26.03.1975, the services could be terminated on conviction, if the offence for which an employee is convicted involves moral turpitude. The learned Single Judge opined that the offence under Sections 323, 324 and 452 of the Indian Penal Code for which the respondent was convicted does not come within the ambit of the expression ''moral turpitude''.

In this backdrop, the very question which falls for consideration is as to whether on conviction of the respondent for the offence under Sections 323, 324 and 452 of the Indian Penal Code, the appellants could pass the order of termination.

We find from the impugned order dated 11.02.2010 passed by the competent authority terminating the services of the respondent with immediate effect that reference is made to Rule 7(2)(b) of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter referred to as P&A Rules, 1987). Rule 7(2)(b) of the P&A Rules, 1987 deals with special procedure in certain cases and, inter alia, lays down that procedure prescribed in Rule 7 for holding regular departmental inquiry would not apply under certain circumstances. This Rule reads as under:-

7(2)(b) The provisions of the foregoing sub-rule shall not apply where any major penalty is proposed to be imposed upon a person on the ground of conduct which has led to his conviction on a criminal charge; or where an authority empowered to dismiss or remove him, or reduce him in rank is satisfied that, for some reasons to be recorded by him in writing, it is not reasonably practicable to give him an opportunity of showing cause against the action proposed to be taken against him, or where in the interest of the security of the State it is considered not expedient to give to that person such an opportunity.

It is clear from the above that when it is proposed to impose major penalty upon a person on the ground of conduct, which led to his conviction on a criminal charge, it is not necessary to hold the inquiry. So far so good. The question is as to whether, the major penalty can be imposed on every kind of criminal charge leading to conviction. That aspect is regulated by instructions dated 26.03.1975. We would like to point out at the outset that these instructions relate to rehabilitation of ex-convicts released from jail and deal with the question of making them eligible for appointment under government. It is stated in these instructions that under certain circumstances, the conviction would not be a bar for making such convicts eligible for appointment. Obviously, therefore, when a person is eligible for appointment inspite of such a conviction, as a fortiori, if he is already in the employment his services cannot be terminated in those cases of conviction, which do not make a person ineligible for appointment. What are these cases? Instructions dated 26.03.1975 stipulate such cases.

A reading of these instructions indicate that spirit behind these instructions is based on reformation and rehabilitation of ex-convicts so that every kind of conviction does not render such ex-convicts ineligible for appointment and to ensure that they are able to secure employment on their own merits after release from jail, Relevant portion of these instructions reads as under:-

(i) Persons who are detained under the Borstal Act or who, after conviction under the offences which do not involve moral turpitude, are released under the Probation of Offenders Act instead of jail, should not suffer any disability in respect of obtaining Government service.

(ii) With regard to the employment of ex-convicts on release from jail, a uniform policy will not be possible and each case should be considered on its own merits. The appointing authority should in such case, make detailed enquiries and satisfy himself fully that the ex-convict has reformed himself after release from jail and nothing adverse about his conduct has come to notice after his conviction and he is thus suitable for government service, the enquiries should invariably be made through the Police Department and if the Police Department consider it necessary to obtain a report from any other department, they should proceed to do so.

(iii) Ex-convicts convicted of offences involving moral turpitude should neither be taken nor retained in government service. The following tests should ordinarily be affled in judging whether a certain offence involves moral turpitude or not:-

(a) Whether the act leading to a conviction was such as could shock the conscience of society in general.

(b) Whether the motive which led to the act was a base one.

(c) Whether on account of the act having been committed the perpetrator could be considered to be of depraved character or a person who was to be looked down upon by the society.

Decision in each case will, however, depend upon the circumstances of the case and the competent authority has to exercise his discretion while taking a decision in accordance with the above mentioned principle. A list of offences which involves moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences, which are not included in it but which in certain situations and circumstances may involve moral turpitude.

Following principles can be culled out, as contained in the aforesaid instructions:-

(a) Those who are involved in moral turpitude should not be taken in government service.

(b) Those who are convicted of offences, which do not involve moral turpitude or those who are released under the Probation of Offenders Act, should not suffer any disability in respect of obtaining government service.

(c) With regard to those convicted of offence not involving moral turpitude, laying down uniform policy, is not possible and it is left to the appointing authority in each case to make detailed inquiry and satisfy himself fully that ex-convict has reformed himself after release from jail and nothing adverse about his conduct has come to notice after his conviction. Such an inquiry is to be made invariably through Police Department.

(d) What amounts to moral turpitude is also stated in para (iii) of the instructions.

(e) Discretion is given to the competent authority while taking decision in accordance with principle mentioned in these instructions.

On the basis of these instructions, when competent authority is to invoke its power under Rule 7(2)(b) of the P&A Rules, 1978, the first question would be as to whether the offences for which the employee is convicted constitute moral turpitude. If the answer is in the affirmative, it would be open to the competent authority to pass the order of termination without holding inquiry. However, if the offences for which an employee is convicted have no shades of moral turpitude, the disciplinary authority has to look into the attendant circumstances leading to the conduct of such an employee to see whether he is suitable for rejection in government service or not.

In the present case, offences under Sections 323, 324 and 452 of the Indian Penal Code for which the respondent was convicted would not constitute moral turpitude on the touchstone of the test laid down in the instructions dated 26.03.1975.

It follows from the above that merely on conviction, termination could not be automatic and the disciplinary authority was supposed to exercise its discretion keeping in view the circumstances under which the respondent was convicted and was supposed to record satisfaction to the effect that such a conviction had rendered him unsuitable for government service. However, in the present case, reading of the show cause notice dated 01.01.2010 demonstrates that after recording the factum of conviction of the respondent by the High Court of Delhi, the show cause notice was issued only because of his conviction. It would be of significance to note that in reply to the show cause notice, the respondent had submitted in detail that mere conviction is not a ground to impose the punishment. He had referred to the judgment of the Supreme Court in State of M.P. and Others Vs. Hazarilal, and the judgment of this Court in Kulwant Singh Vs. The Dy. District Primary Education Officer and Another, . He had also categorically submitted that he was convicted for an offence which does not come under moral turpitude; that he had rendered 32 years'' outstanding service and, therefore, should not be inflicted with any major punishment; and that he had a big family and was the sole bread earner and except the job in question he had no other source of income. However, none of these submissions of the respondent were considered while passing the termination order dated 11.02.2010. In a parrot like manner, the language of show cause notice is repeated and in so far as the reply is concerned, with bald observation that the same is considered and not found satisfactory, the order of termination has been passed. Such an order would not stand judicial scrutiny.

As not only the reformatory spirit behind instructions dated 26.03.1975 was glossed over, the disciplinary authority even failed to look into the legal position brought to its notice by the respondent.

In Hazarilal (supra), the Supreme Court reminded the disciplinary authority of its role in such cases, by making the following pertinent observations:-

An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. Respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence.

The Tribunal, in our opinion, rightly placed reliance upon the decision of this Court in Shankar Dass Vs. Union of India (UOI) and Another, wherein this Court commended the judgment of a Magistrate of Delhi as he had let off the appellant therein u/s 12 of the Probation of Offenders Act stating:-

Misfortune dogged the accused for about a year...... and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958.

Despite the said observation Shankar Das was dismissed from service. This Court held:-

It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.

We express similar dis-satisfaction in this case.

It would also be significant to note that in the aforesaid judgment, the Supreme Court re-emphasized that the legal parameters of judicial review has undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality which is followed by the Supreme Court in many cases.

In that case, the respondent was convicted in a criminal trial and fined Rs. 500/- only. The Court found that conviction did not involve moral turpitude or was not a heinous offence. Applying the principle of proportionality, it was held that removal of the respondent from service on the basis of such a conviction was totally unjust.

In No. 871181334 Ex. No. 871181334 Ex. Ct. Sheo Govind Singh Vs. Inspector General of Police, CS, CRPF and The Principal, C.R.P.F., the Supreme Court has taken note of certain judgments of the High Courts with approval which explain the meaning of moral turpitude. Following passages from this judgment would bring home the conceptual parameters of ''moral turpitude'':-

The meaning of term ''turpitude'' and ''moral turpitude'' has been given in Black''s law Dictionary, Fourth Edition, as follows:-

Turpitude - In its ordinary sense, inherent baseness or vileness of principle or action; shameful wickedness; depravity. In its legal sense, everything done contrary to justice, honesty, modesty, or good morals. State Vs Anderson 117 Kan 230; Hughes Vs State Board of Medical Examiners, 162 Ga. 246 : 134 S.E. 42, 46. An action showing gross depravity. Traders & General Ins. Co. Vs Russell, Te & Civ. App. 99; S.W. 2-d 1079, 1084.

Moral Turpitude-A term of frequent occurrence in statutes, especially those providing that a witness; conviction of a crime involving moral turpitude may be shown as tending to impeach his credibility. In general, it means neither more nor less than "turpitude", i.e. anything done contrary to justice, honesty, modesty, or good morals.

A Division Bench of Rajasthan High Court in Inder Lal Vs. Lachhuram and Another, has considered this aspect and took note of various Indian and foreign judgment and also quoted Bartos Vs United States District Court, for District of Nebraska, C.C.A. Neb., 19 F. 2d 722, 724, wherein the Court held as under:-

An act of baseness, vileness, or depravity, in the private and social duties, which a man owes to his fellow-men, or to society in genial, contrary to the accepted and customary rule of right and duty between man and man" and "conduct contrary to justice, honesty, modesty or good morals.

The Court further observed as under:-

It would appear from the above that the meanings given to the terms; ''turpitude'' and ''moral turpitude'' indicate almost the same type of failing in the man''s character or moral make-up. In our view, no absolute standard or no hard and fast rule can be laid down for deciding whether a particular act should be considered as one involving moral turpitude, because it could mostly depend on the facts and circumstances in which the act or omission is committed whether it involves moral turpitude or not.

The Court placed reliance on the judgment of Allahabad High Court in Buddha Pitai Vs. Sub-Divisional Officer Malihabad and Others, wherein the Allahabad High Court held as under:-

Now, coming to the second question, learned counsel has urged that in deciding the question whether an offence involves moral turpitude, the Court should confine its consideration only to the nature of the offence and it should not be swayed in its opinion by the facts and circumstances in which it was committed.

Whether an offence involves moral turpitude, will depend on its nature and circumstances in which it is committed. An offence of a certain class may generally be considered to involve moral turpitude but it may not be so if committed in particular circumstances, for example, an offence of murder may ordinarily involve moral turpitude but if it is committed in a spirit of patriotism or with a laudable object, it may not shock the public conscience and instead of being decried by the public the offender may be considered a hero. Again an offence of theft will generally be considered mean, vile and anti-social and a thief would be simply scorned at. However, if a starving and emaciated person steals food is caught, prosecuted and convicted, people will take a charitable and sympathetic offender''s conduct and his offence may not be considered as involving moral turpitude. Thus, the case of every offence will have to be judged in the light of the circumstances in which it is committed. It is not the gravity of the offence or the quantum of punishment imposed on a person which will determine such question.

The Supreme Court in Pawan Kumar Vs. State of Haryana and another, dealt with the question as to what is the meaning of 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 elaboration 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 weakness 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.

When we scan through the facts of the present case, we find that the FIR lodged against the respondent herein was of the year 1984. He was initially acquitted by the learned Additional District and Sessions Judge, Delhi. However, he was convicted by the High Court of Delhi in appeal vide judgment dated 16.04.2007. Thus, this conviction came 23 years after the incident in which the respondent was implicated. Because of this lapse of time, even the High Court of Delhi chose not to put him in jail again, but it felt contented with awarding the sentence of imprisonment already undergone and for Section 452 of the Indian Penal Code, fine of Rs. 500/- was imposed. The spirit behind such an order of sentence itself is indicative of the fact that the respondent did not deserve the order of termination from service in the year 2010, by which date, he had rendered 32 years of service on the basis of offence committed by him in the year 1984. That too which did not involve moral turpitude. We, thus, are of the opinion that the learned Single Judge has rightly set aside this order. We do not find any merit in this appeal, which is dismissed with costs of Rs. 10,000/-.