advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, May 26, 2017

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.”- convicted under sec.323 I.P.C. - In the present case by the time the benefit of acquittal of the co- accused was pressed in service and claim was raised by the respondent, Dharam Singh had already expired. In the circumstances, we direct that the respondent shall be entitled to all the benefits in terms of the judgment under appeal except the payment of back wages. All the other consequential benefits be computed and released to the respondent within two months from the date of this Judgment. With the aforesaid modification, the appeal stands disposed of.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.  6066   of 2017
                (Arising out of SLP (Civil) No.21622 of 2015)



State of  Haryana and Another                                 …. Appellants

                                   Versus

Ved Kaur                                           …. Respondent


                               J U D G M E N T



Uday Umesh Lalit, J.



1.    Leave granted.


2.    The  appellants  seek  to  challenge  the  judgment  and  order  dated
25.08.2014 of the High Court of Punjab and Haryana at Chandigarh  passed  in
LPA No.1353 of 2014 (OM), affirming the view taken by the  Single  Judge  of
the High Court on 22.01.2014 in CWP No.14998 of 2007.


3.    One Dharam Singh (since deceased and represented  by  his  widow,  the
respondent herein) was working as JBT teacher  in  Education  Department  in
State of Haryana since 07.10.1967.  He and two others were  convicted  under
Section 304 Part-II IPC vide judgment and order passed by  the  trial  court
on 29.10.1994 and were sentenced to undergo rigorous imprisonment  for  four
years.  On the basis of said  conviction  and  sentence,  Dharam  Singh  was
dismissed from service,  without  holding  any  enquiry,  vide  order  dated
28.03.1995 on the ground that he was convicted and sentenced for an  offence
involving moral turpitude.


4.    While the appeal preferred against  the  judgment  of  conviction  and
sentence was pending, Dharam Singh expired  on  11.12.2002  and  his  appeal
abated.  Subsequently the appeal of the co-accused was  partly  allowed  and
they were acquitted of the offence under Section 304 Part II  IPC  but  were
convicted under Section 323 read with Section 34 IPC.  The role of  the  co-
accused was admittedly similar to that of Dharam Singh.


5.    After the acquittal of the co-accused, the respondent called upon  the
State to set aside the order of dismissal of her husband  in  the  light  of
the finding recorded by the appellate court and to release all  the  service
benefits to which her deceased husband  was  entitled.   This  claim  having
been rejected,  the  respondent  filed  CWP  No.10134  of  2005   which  was
disposed of by the High Court directing the State to  reconsider  the  claim
of the respondent.  The matter was, therefore,  reconsidered  by  the  State
but the claim was again rejected.


6.    The rejection of claim was challenged  afresh  by  the  respondent  by
filing CWP No.14998 of 2007 which was allowed by the  Single  Judge  of  the
High Court, relying on the instructions dated 26.03.1975 issued by State  of
Haryana wherein offences involving “moral  turpitude”  stand  enlisted.   It
was observed that the offence under Section 323 IPC did not fall under  said
category of offences.  It was further observed that the role  attributed  to
the deceased husband of the respondent  was  similar  to  that  of  his  co-
accused and that the appellate court had held that the  death  in  the  case
was not because of the  injuries  attributed  to  the  accused  but  it  was
because of renal failure.


7.    The decision of the Single  Judge  was  questioned  by  the  State  by
filing Letters Patent Appeal No.1353 of  2014  (OM).    Affirming  the  view
taken by the Single Judge, the Division Bench dismissed  the  aforesaid  LPA
and held the respondent to be entitled to all consequential benefits.


8.    The instructions dated  26.03.1975  which  were  relied  upon  in  the
present case, had been considered by this Court in Pawan Kumar v.  State  of
Haryana and another[1] and paragraph 12 of  the  decision  is  relevant  for
present purposes.  The said paragraph was as under:

“12.   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.  The  Government  of
Haryana while considering the  question  of  rehabilitation  of  ex-convicts
took  a  policy  decision  on  2-2-1973  (Annexure  E  in  the  Paper-book),
accepting the recommendations of the Government of India,  that  ex-convicts
who were  convicted  for  offences  involving  moral  turpitude  should  not
however be taken in government  service.  A  list  of  offences  which  were
considered involving  moral  turpitude  was  prepared  for  information  and
guidance in that connection. Significantly Section  294  IPC  is  not  found
enlisted in the list of offences constituting  moral  turpitude.  Later,  on
further consideration, the Government of Haryana on  17/26-3-1975  explained
the policy decision of 2-2-1973 and decided to modify the  earlier  decision
by streamlining determination of moral turpitude as follows:

“… The following terms should ordinarily be applied  in  judging  whether  a
certain offence involves moral turpitude or not;

whether the act leading to a conviction was such as could  shock  the  moral
conscience of society in general.

whether the motive which led to the act was a base one.

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.

Decision in each case will, however, depend  on  the  circumstances  of  the
case and the competent  authority  has  to  exercise  its  discretion  while
taking a decision in accordance with the above-mentioned principles. A  list
of offences which involve 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.”

Section 294 IPC still remains out of the list. Thus the  conviction  of  the
appellant under  Section  294  IPC  on  its  own  would  not  involve  moral
turpitude depriving him of the opportunity to serve  the  State  unless  the
facts and circumstances, which led to the conviction, met  the  requirements
of the policy decision above-quoted.”



9.    The aforesaid decision shows that Section 294 IPC was not part of  the
list of offences appended to the instructions dated 26.03.1975 and  as  such
it was held by this Court that  the  conviction  of  the  appellant  therein
under Section 294 IPC would not involve moral  turpitude  depriving  him  of
the opportunity to serve the State unless the facts and circumstances  which
led to his conviction, met the requirement of the policy decision.


10.   In the aforesaid context, decision of the Division Bench of  the  High
Court of Punjab  and  Haryana  in  State  of  Haryana  and  another  v.  Ram
Chander[2]  on  which  reliance  was  placed  by  the  respondent,  is  also
significant wherein same instructions dated 26.03.1975  were  considered  by
the Division Bench and paragraphs 11 and 12 of the  said  decision  were  as
under:

“11.  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.


12.   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.”


11.   In the aforesaid decision of the Division Bench, the conviction  under
Section 323 was not held to constitute  one  involving  moral  turpitude  in
terms of the test laid down  in  instructions  dated  26.03.1975.    In  the
premises, the decision of the Division Bench affirming that  of  the  Single
Judge in the present case does not call for any interference.   However,  it
must be noted at this stage  and  it  was  fairly  accepted  by  Mr.  Tushar
Bakshi, learned Advocate appearing for the respondent that in  view  of  the
decision of this Court in State Bank of India and another v. Mohammed  Abdul
Rahim[3] the order regarding payment of backwages as directed by the  courts
below needed modification.  Paragraph 12 of said decision was as under:
“The respondent was acquitted on 22-2-2002,  the  demand  for  reinstatement
was made by him on 22-4-2002  and  he  was  reinstated  in  service  by  the
appellant bank on 7-11-2002.  On  the  view  that  we  have  taken,  at  the
highest, what can be said  in  favour  of  the  respondent  is  that  he  is
entitled to wages from the date he  had  lodged  the  demand  for  the  same
following his acquittal, namely, from  22-4-2002,  until  the  date  of  his
reinstatement, if the same has not already been  granted  by  the  appellant
Bank.”


 12.  In the present case by the time the benefit of acquittal  of  the  co-
accused was pressed in service and  claim  was  raised  by  the  respondent,
Dharam Singh had already expired.  In the circumstances, we direct that  the
respondent shall be entitled to all the benefits in terms  of  the  judgment
under appeal except the payment of back wages.  All the other  consequential
benefits be computed and released to the respondent within two  months  from
the date of this Judgment.  With  the  aforesaid  modification,  the  appeal
stands disposed of.



………………………J.
(Adarsh Kumar Goel)




…………………..……J.
(Uday Umesh Lalit)

New Delhi,
May 03,  2017
-----------------------
[1]   (1996) 4 SCC 17
[2]    LPA No.95 of 2013 (O&M) decided on 18.02.2013
[3]   (2013) 11 SCC 67

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.