IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE DR JUSTICE G.YETHIRAJULU WRIT PETITION NO : 3382 of 2003 Between: Talluri Subhakara Babu s/o Babjee State Bank of India., Gokavaram.,East Godavari District. ..... PETITIONER AND 1 Corporate Centre.,State Bank of India, State bank Bhavan.,Madam Cama Road, Mumbai. 2 G.M.,Appointing Authority., State bank of India.,Bank Street.,Koti, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to To issue a Writ order or direction more particularly a writ in the nature of Writ of mandamus declaring the impugned order passed by the 2nd respondent vide proceedings No.HRD/1696 dated 07-02-2003 as illegal, arbitrary and void and consequently set aside the same. Counsel for the Petitioner :MR.KAKARAVENKATA RAO Counsel for the Respondent No.: MR.E.MADAN MOHAN RAO The Court made the following : THE HON'BLE MR JUSTICE C.V.RAMULU W.P.No.3382 of 2003 ORDER: This writ petition is filed questioning the proceedings No.HRD/1696 dated 17.2.2003 passed by second respondent, in discharging the petitioner from the service of the Bank, without conducting any enquiry and without issuing any show cause notice as arbitrary and illegal. It is the case of the petitioner that he joined the service of State Bank of India, in the year 1986, as Clerk-cum-Cashier. According to him, absolutely there was no complaint, whatsoever, against him, in discharging duties as an Officer of the Bank. He had passed all the departmental and other required tests, and became eligible for promotion to the post of Trainee Officer, and in fact, promoted as Trainee Officer in the year 1999. According to the petitioner, he married in the year 1987 and blessed with two sons. However, due to interference of in-laws, his wife used to ill-treat him and she was in the habit of raising disputes for petty issues. However, having regard to the welfare of the children, petitioner tolerated the harassment meted out to him with a view to keep the matrimonial home intact. While that being so, in the year 1996-97, parents of the petitioner acquired some landed property with their self- earnings in Kotturu village, out of which, an extent of about three-and-half acres of land was got registered in the name of the petitioner. That had become a major cause for quarrel between petitioner and his wife everyday. Her demand was that the property, which was registered in his name, should be transferred in her name. Despite all his persuasion and patient forbearance, she did not leave the matter and made life miserable by raising quarrel everyday on one pretext or the other. She had gone to the extent of filing false and bogus police complaint against him and his family members before I-Town Police Station, Rajahmundry and got it registered under Sections 498-A and 323 of IPC with the help of her brother, who was working in S.P. office. She did not even spare his old aged mother and widowed sister. The petitioner was kept under illegal custody and tortured by the police. The criminal case in C.C.No.158 of 1998 had come up for trial before the learned II Additional Judicial First Class Magistrate, Rajahmundry and vide judgment dated 2.9.2002, the learned Magistrate acquitted the petitioner of the charges under Section 498-A IPC, but found guilty under Section 323 IPC, thereby convicted and sentenced the petitioner to undergo simple imprisonment for a period of three months and to pay a fine of Rs.300/-. It appears, aggrieved by the discharge of the petitioner of the offence under Section 498-A IPC, the wife of the petitioner filed Crl.R.C.No.1638 of 2002 before this Court and aggrieved by the conviction and sentence under Section 323 IPC, petitioner filed Crl.A.No.214 of 2002 on the file of the learned II Additional District and Sessions Judge, Rajahmundry. The said appeal was transferred to this Court and numbered as Transfer Crl.A.No.938 of 2006 and they were pending It appears, in the meanwhile, wife of the petitioner sent a fax copy of the judgment of the trial Court to the Chief Manager (Accounts), SBI. Then petitioner was orally asked not to attend to duties, and he was asked to proceed on leave, since a clarification was awaited from the Local Head Office in view of judgment of the Criminal Court. Initially, he applied leave for 10 days and thereafter extended the leave till he received the impugned order dated 17.2.2003. According to the petitioner, the intensity of the influence brought over by his wife in getting the impugned order served upon the petitioner at Rajahmundry by deputing an Officer i.e. System Administrator of Secunderabad branch, all the way to Rajahmundry five months after the judgment of the Criminal Court was clear. The impugned order was passed discharging the petitioner from service on the ground that consequent upon his conviction by the Criminal Court, it was decided to discharge him from Bank’s service in terms of Section 10(1)(b)(i) of Banking Regulation Act, 1949 read with Rule 68(7)(i) of State Bank of India Officers’ Service Rules (for short “Service Rules”) from the date of conviction i.e. 2.9.2000. Aggrieved thereby, the present writ petition is filed. A detailed counter affidavit has been filed on behalf of respondents denying the allegations made by the petitioner and asserting that it is an admitted fact that the petitioner was an accused in Crime No.352 of 1997 under Sections 498-A and 323 IPC. The Additional Judicial First Class Magistrate, Rajahmundry, after an elaborate trial in C.C.No.158 of 1998, convicted the petitioner to undergo simple imprisonment for three months and also imposed with a fine of Rs.300/- for the offence committed under Section 323 IPC vide judgment dated 2.9.2002. Thus, the conviction of the petitioner being on account of an offence involving moral turpitude, the prohibition or the embargo for continuance of services of the petitioner in the Bank, as provided under Section 10(1)(b)(i) of Banking Regulation Act read with Rule 68(7)(i) of Service Rules has automatically come into operation and the Bank has been left with no other option, but to dispense with the services of the petitioner. The said provision speaks that “no Banking Company shall employ or continue the employment of any person who has been convicted by a Criminal Court of an offence involving moral turpitude”. Thus, the proceedings No.HRD/1696 dated 7.2.2003 being in compliance of the said statutory provisions cannot be challenged by the petitioner. Having regard to the rigour contained under the provisions of Section 10(1)(b)(i) of the Banking Regulation Act, inter alia refraining the Bank from either employing or continuing the employment of any person who has been convicted by a criminal court of an offence involving moral turpitude, no show cause notice is required to be issued before dispensing with the services of such an employee. As a matter of public policy and in public interest and for public good that a Government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. Thus, the impugned order was passed in view of orders of conviction passed by competent criminal court and as per the requirements of service regulations. Therefore, the writ petition is devoid of merits and liable to be dismissed. The learned senior counsel appearing for petitioner Sri E.Manohar strenuously contended that the impugned discharge order was passed with retrospective effect. No discharge order could be passed with retrospective effect. On this count alone, the discharge order is liable to be declared as arbitrary and illegal. The learned senior counsel further submitted that the offence, under which the petitioner was convicted i.e. Section 323 IPC (simple hurt) cannot attract the concept of ‘moral turpitude’ requiring the petitioner discharging from service. Moral turpitude cannot be attributed to the conduct of the petitioner since he was convicted by a criminal court and imposed with a fine. Simple hurt cannot be brought under the offences involving ‘moral turpitude’. The learned senior counsel further invited the attention of the Court to the very judgment rendered by this Court in Crl.R.C.No.1638 of 2002 and Transfer Crl.A.No.938 of 2006 dated 22.8.2006, whereunder the learned Judge insofar as sentence was concerned, while appreciating the evidence, made some observations, which read as under: “Then coming to the sentence, the learned counsel for the appellant/accused pleaded that the provisions of Section 360 Cr.P.C., may be invoked and the accused may be admonished. In fact, such a plea was put-forward before the lower Court and it did not accede to that plea. Being an employee, more particularly, when he is working as Cashier in a nationalized bank and his wife being an educated lady, then worked as Teacher, the accused is expected to behave in a cultured way, but he acted as an uncultured ruffian in beating the wife. Therefore, I do not think this is a fit case where the provisions of Section 360 Cr.P.C. can be invoked. Quarrels between wife and husband are common. Even as per PW-1, the accused was affectionate towards her for a long time and the fact that he purchased two house-sites in her name itself demonstrates his affection. In these circumstances, I feel it would be just that some fine is imposed, instead of giving punishment of imprisonment. Therefore, I modify the sentence of imprisonment into that of fine. Besides imprisonment, the accused was also sentenced to pay a fine of Rs.300/-. Apart from the fine of Rs.300/-, he can be punished with further fine of Rs.1,000/-.” The learned senior counsel further relied upon the judgments in PAWAN KUMAR v. STATE OF HARYANA AND ANOTHER[1] and KULDEEP SINGH AND OTHERS v. STATE OF PUNJAB AND OTHERS[2] and submitted that neither the act of the petitioner can be classified as ‘moral turpitude’ nor the respondents could have passed the impugned order for the alleged involvement of petitioner in a crime that arose outside employment. Per contra, the learned counsel appearing for respondent Sri E.Madan Mohan Rao strenuously contended that conviction for the offence under Section 323 IPC is also a moral turpitude. Moral turpitude varies from society to society. Here it is a case where the petitioner being an officer of the Bank involved in causing simple injury to his wife and he was convicted by a competent Criminal Court, may be by imposing a fine. Therefore, the offence for which the petitioner was convicted can be classified as ‘moral turpitude’ and thus the petitioner was rightly discharged from service in terms of Section 10(1)(b)(i) of Banking Regulation Act read with Rule 68(7)(i) of the Service Rules. In this regard, the learned counsel also relied upon the judgment in UNION OF INDIA v. TULSIRAM PATEL[3] and drawn attention of the Court to paragraph 148 of the said judgment; “The Respondent, Tulsiram Patel, was a permanent auditor in the Regional Audit Office, M.E.S., Jabalpur. It appears that orders were issued by Headquarters, C.D.A. C.C., Meerut, stopping the increment of the Respondent for one year. One Raj Kumar Jairath was at the relevant time the Regional Audit Officer, M.E.S., Jabalpur. On July 27, 1976, the Respondent went to Raj Kumar's office and demanded an explanation from him as to why he had stopped his increment whereupon Raj Kumar replied that he was nobody to stop his increment. The Respondent then struck Raj Kumar on the. head with an iron rod. Raj Kumar, fell down, his head bleeding. The Respondent was tried and convicted under Section 332 of the Indian Penal Code by the First Class Judicial Magistrate, Jabalpur. The Magistrate instead of sentencing the Respondent to imprisonment applied to him the provisions of Section 4, of the Probation of Offenders Act, 1958, and released him on his executing a bond of good behaviour for a period of one year. The Respondent's appeal against his conviction was dismissed by the Sessions Judge, Jabalpur. The Controller General of Defence Accounts, who was the disciplinary authority in this case, imposed upon the Respondent the penalty of compulsory retirement under clause (i) of Rule 19 of the Civil Services Rules. The said order was in the following terms : "Whereas Shri T. R. Patel, Pt. Auditor (Account No. 8295888) has been convicted on a criminal charge, to wit, under Section 332 of LP.C., Whereas it is considered that the conduct of the said Shri T. R. Patel, Pt. Auditor (Account No. 8295888) which has led to his conviction, is such as to render his further retention in the public service undesirable, Now therefore, in exercise of, the powers conferred by Rule 19(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 the undersigned hereby direct that the said Shri T. R. Patel, Pt. Auditor, (Account No. 8295888) shall be compulsorily .retired from service with effect from 25-11-1980" and submitted that this is not a case where the petitioner deserves any sympathy, therefore the writ petition is liable to be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned proceedings and other material made available on record. The short question that arises for consideration in this writ petition is whether the conviction of the petitioner under Section 323 IPC and the sentence of imposing fine of Rs.1,000/- could satisfy the definition of ‘moral turpitude’ as is mentioned in Section 10(1)(b)(i) of Banking Regulation Act read with Rule 68(7)(i) of Service Rules. The facts are not in dispute. How the crime arose and what was the reason for committing such crime may not be necessary to be gone into. Admittedly, petitioner was convicted under Section 323 IPC for causing simple hurt to his wife, which according to the respondents, comes under ‘moral turpitude’. Before going into the merits of the case, it may be necessary to notice Section 10(1)(b)(i) of Banking Regulation Act, 1949 and Rule 68(7)(i) of Service Rules, which reads as under: Section 10(1)(b)(i) of Banking Regulation Act “Prohibition of employment of Managing Agents and restrictions on certain forms of employment (1) No banking company (b) shall employ or continue the employment of any person (i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who, is or has been, convicted by a criminal court of an offence involving moral turpitude. Rule 68(7)(i) of the State Bank of India Officers Service Rules “Notwithstanding anything contained in sub-rules (2), (3) and (4), where an officer is at any time or has been adjudicated insolvent or has suspended payments or has compounded with his creditors or is or has been convicted by a criminal court of an offence involving moral turpitude, the Appointing Authority may discharge the officer from the Bank’s service without any notice whatsoever, and no appeal shall lie against such discharge.” It is also pertinent to extract section 323 of Indian Penal Code, which reads as under: “Section 323 - Punishment for voluntarily causing hurt: Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both”. Every offence committed, may be, against the moral standards of the society, but every offence need not be a ‘moral turpitude’. The apex Court in various judgments has indicated what would be ‘moral turpitude’ and what is not. In the judgment relied upon by the learned senior counsel for petitioner in PAWAN KUMAR’s case (supra), the Supreme Court at paragraphs 11 and 12 observed as under: “11. The totality of the situation thus is that since the appellant was tried summarily under Section 260 and has been sentenced to pay a fine of Rs. 20 on his entering the plea of guilt, he could not have filed an appeal against the same. Procedural barbs thus coil the appellant, causing repercussions not only to his service career but in being branded for ever as "unfit" for Government service. This is the rancour and the sting which hurts the appellant most, not the payment of fine of the paltry sum of rupees twenty, but the consequences which have visited him, due to the act/s covered under Section 294, I.P.C. leading to the conviction per se being treated as involving moral turpitude. 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 February 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, I.P.C. is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26th March, 1975 explained the policy decision of February 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: (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) whether the motive which led to the act was a base one. (3) 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, I.P.C. still remains out of the list. Thus the conviction of the appellant under Section 294, I.P.C. on its own would not involve moral turpitude depriving him the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirement of the policy decision above- quoted.” The judgment reported in KULDEEP SINGH’s case, at paragraph 14, it was held that the act of killing a person is normally attributed to a feeling of hurt or revenge; an act of personal vendetta. Per se an act of murder will not come within the broad concept of ‘moral turpitude’ as interpreted by Courts. Insofar as ‘Moral turpitude’ is concerned, it is a phrase that can hardly be defined with accuracy. Normally, as this phrase is understood, it is used in law with reference to crime, which refer to conduct that is inherently base, vile or depraved and contrary to the accepted rules of morality. The words ‘moral turpitude’ do not refer to conduct which made punishable as a crime was generally not regarded as a wrong or corrupt, whether it is or is not punishable as a crime. The meaning assigned to the words ‘moral turpitude’ in various dictionaries is an act of baseness, vileness, or the depravity in private and social duties, which man owes to his fellow men or to society in general, contrary to accepted and customary rule of right and duty between man and man. The word ‘turpitude’ is also explained as inherent baseness or vileness of principles or action; shameful wickedness depravity. From the above, it is clear that necessarily every act punishable in law would not amount to an offence involving moral turpitude. The act must be harmful to society in general or contrary to accepted and customary rules or rights and duties between man and man. Simple violation of a particular statute cannot amount to commission of offence of act involving moral turpitude. No absolute standardization can be laid down for deciding whether a particular act is to be considered one involving moral turpitude. The general tests which should be applied and which should in most cases be sufficient for enabling one to arrive at a correct conclusion on the question requires to be examined in each case. Every false, mala fide 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. May be, Section 10(1)(b)(i) of Banking Regulation Act contemplates that prohibition of employment of Managing Agents and restrictions on certain forms of employment in view of conviction by Criminal Court of an offence involving moral turpitude, but that does not mean that the offence, for which the petitioner was convicted cannot be said to be either offence constituting ‘moral turpitude’ or serious offence, which requires the petitioner to be kept out of employment, nor the crime has taken place during and in the course of discharge of duties. Further, Rule 68(7)(i) of Service Rules also contemplates that where an officer has been convicted by a Criminal Court of an offence involving ‘moral turpitude’, the Appointing Authority may discharge the officer from the Bank’s service without any notice whatsoever. That does not mean that every offence can be brought under ‘moral turpitude’ and the petitioner could have been discharged from the service of the Bank by invoking the said provision. Here it may be necessary to notice that the crime committed by the petitioner was out of some domestic commotion and the observations made while disposing of the Appeal and Criminal Revision case, as noticed above, would also indicate that there was no situation, which would indicate the attitude of the petitioner in committing offence involving ‘moral turpitude’. Therefore, I am of the opinion that the conclusions reached by the Appointing Authority that the petitioner was involved in moral turpitude as contemplated under Section 10(1)(b)(i) read with Rule 68(7)(i) of Service Rules are liable to be set aside. Further, the order of discharge passed against the petitioner, in the circumstances, could not have been given with retrospective effect. Thus, on both the counts, the impugned order is liable to be set aside. The judgment relied upon the learned counsel for respondents has no relevance to the facts of the case, therefore there is no necessity of delving in detail. In the result, the writ petition is allowed and the impugned proceedings are set aside. The respondents are directed to reinstate the petitioner with continuity of service; and attendant benefits notionally, but without any back wages. The respondents shall reinstate the petitioner into service within a period of one month from the date of receipt of a copy of this order. No order as to costs. ____________ C.V.RAMULU, J Date: 2.5.2008 DA [1] AIR 1996 SC 3300 [2] AIR 1994 P&H 242 [3] AIR 1985 SC 1416