IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WA.No. 2095 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.24066/2007 Dated 20/10/2010 .................... APPELLANT(S): RESPONDENTS ---------------------------------------------- 1. THE GENERAL MANAGER (HRM) UNION BANK OF INDIA, CENTRAL OFFICE, NARIMAN POINT (APPELLATE AUTHORITY CONSTITUTED IN TERNMS OF THE BIPARTITE SETTLEMENT, UNION BANK OF INDIA. 2. THE CHIEF MANAGER, DEPARTMENT OF PERSONNEL NODAL RGIONAL OFFICER, ERNAKULAM (DISCIPLINARY AUTHORITY CONSTITUTED UNDER THE BIPARTITE SETTLEMENT. 3. UNION BANK OF INDIA, REPRESENTED BY CHAIRMAN AND MANAGING DIRECTION NARIMAN POINT, MUMBAI. BY ADV. SRI.A.S.P.KURUP, SC, UBI RESPONDENT(S): PETITIONER --------------------------------------------- K.DEVADAS, CLERK/CASHER, UNION BANK OF INDIA, IDUKKI BRANCH (UNDER ORDER OF DISMISSAL) PARACKAL HOUSE, KALPATHY, P.O.PALAKKAD NOW RESIDING AT UNNI BHAVAN, 16/315 GARDEN STREET, THURAKKAD, PALGHAT-1. ADV. SRI.P.C.SASIDHARAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/2/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 2095 OF 2010 ================== Dated this the 17th day of February, 2011 J U D G M E N T J.Chelameswar, C.J. Aggrieved by the judgment dated 20th of October 2010 in WP(C) No.24066/07, the respondents therein preferred the appeal. The sole respondent herein has been under the employment of the 3rd respondent/appellant herein. He was dismissed from service on the ground that he was convicted for an offence under Section 38 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for a period of one year and also to pay compensation of ` 95,000/- to the complainant. 2. The fact that the respondent suffered such a conviction is not in dispute. However, it appears that aggrieved by the judgment of the learned Judicial First Class Magistrate, Chittur, the respondent preferred an appeal in Criminal Appeal No.270/04 on the file of Sessions, Palakkad and the same is still said to be pending. In the meanwhile, the appellants dismissed the respondent from service invoking a rule which governed the service conditions of the respondent, which enables the WA No.2095/10 : 2 : appellants to dismiss an employee from the service if the employee is convicted for an offence. However, the expression 'offence' itself is defined to mean that offence involving moral turpitude. 3. Challenging the decision of the appellants to dismiss the respondent from service, the respondent herein approached this Court by way of the above mentioned writ petition after unsuccessfully availing departmental appeals. The only question that was argued before the learned Judge and before us is that whether an offence under Section 138 is an offence involving moral turpitude. 4. By the judgment under appeal, a learned Judge of this Court placing reliance on an earlier judgment of this Court in Saseendran Nair v. General Manager (1996(2) KLT 482) and also M.A.Ibrahim Kannu v. State of Kerala and another (I.L.R 2006(1) Kerala 311) recorded a finding that an offence under Section 138 of the Negotiable Instruments Act ipso facto is not an offence involving moral turpitude. The learned Judge therefore held that though the above mentioned two judgments recognised the possibility of a case where an offence under Section 138 may also involve moral turpitude on the part of the accused, the learned WA No.2095/10 : 3 : Judge held that the appellants herein had “not been able to show any circumstances which would enable me to draw the conclusion that the petitioner was convicted for offence involving moral turpitude.” 5. In Saseendran Nair v. General Manager 1996(2) KLT 482, a Division Bench of this Court dealing with the question whether offence under Section 138 is an offence involving moral turpitude opined that it is not necessary in every case that offence under Section 138 involve moral turpitude. In para 6 of the judgment, this Court held as follows:- 6. We are of the view, that an offence under S.138 of the Act need not necessarily take within its wings the offence of cheating as defined in S.415 of the Indian Penal Code. A cause of action for a criminal prosecution under S.138 of the Act will arise, not on the date of issuance of the cheque, but only when the drawer of the cheque fails to pay the amount within the statutory period after he is called upon by the payee through a notice. A person sometimes may issue a cheque knowing that there is no sufficient fund in his account but still with a hope that he would be able to make arrangements with his bankers to honour the cheque as and when it is presented by the drawee. S.138 is in fact incorporated in the Negotiable Instruments Act only to give more credibility for cheques and not to cover the areas which are already within the jurisdiction of criminal court for the offence of cheating. So, the question whether the act of issuing a cheque without sufficient funds will involve moral turpitude has to be considered de hors the element of cheating. 6. Again in para 12 in the said judgment, the Division WA No.2095/10 : 4 : Bench held as follows:- “12. We approve the said principle and hold that the question whether an offence would involve moral turpitude has to be decided on the facts of each case. All offences do not necessarily involve moral turpitude.S.138 of the Act is no exception to the said principle. On the facts of the case, we find no scope for holding that the offence found against the appellant has any reflection of moral turpitude.” 7. The appellants on coming to know of the conviction of the respondent issued Ext.P1 notice. The relevant portion reads as follows:- “Shri Devadas is informed that in terms of the provision of Section 10 (1) (b) (i) of the Banking Regulation Act, 1949, no Bank shall employ or continue the employment of any person who has been convicted of any offence involving moral turpitude. Accordingly, it has been decided to propose the penalty of dismissal on Shri.K.Devadas in terms of para 3 (b) c Bipartite Settlement dated 10.4.2002. Shri. K. Devadas is hereby called upon to submit his representation, if any, in the matter within 15 days of receipt hereof as to why the penalty of dismissal from the services of the Bank with immediate effect should not be imposed upon him. Should Shri. Devadas fail to submit his representation within the stipulated time as above, it would be deemed that he has nothing to submit and the matter will be dealt with on that basis.” 8. To Ext.P1 notice, the respondent replied that the cheque in question was issued as a security for certain loan borrowed by the respondent from one Mr.Sivaraman and WA No.2095/10 : 5 : according to the respondent most of the amount borrowed and due from Mr.Sivaraman was paid by the respondent except an amount of ` 5,000/- and the cheque given as security was misused by Mr.Sivaraman. 9. The defence taken by the respondent may be true or may not be true. But the appellants certainly were required to make some enquiry regarding the truth of the allegations made in defence by the respondent before reaching a conclusion that the respondent is guilty of offence involving moral turpitude. The mere fact that the respondent was found guilty of an offence under Section 138 by itself does not entitle the appellants to dismiss him from service as already noticed earlier in this judgment. In the circumstances, we do not see any merit in the appeal. The appeal is therefore dismissed. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp