i?^^^^t^' 'M'^ EiS;A:GH COURT OF JUDIC^i^TRE AT JABALPUR (MP? L,_ IN TH: WRIT PETITION N0. =^0^ j OF 1999 PETITIONER : Chhedilal Gupta, S/o Raghunandan Pj-asad^ Syx aged about 48 years^ Dy^Head Cashier(Terminated)» Resident of Mangla» Tah^ & Distt. Bilaspur, (MP). Versus - : !• Branch Manager, State Bank of India, Railway Colony, Bilaspur (MP)» „. 2. The Assistant General Manager (^isciplinary ^ Authority) State Bank of India, Regional Office, Bilaspur, Tahe & Distt, Bilaspur (MP)• RESPONDENTS WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSITUTION OP INDIA F€ HIGH COURT OP CHHAmSGARH. BILASPUR W.P.No.2021/1999 Chhedi Lal Gupta Vs. Branch Manager, State Baak of India, Raihvay Colony, Bilaspur and another. ORDBR '^ Postfor/4.08.2005 Sd/- Sunil Kumar Sinha Judge 3Ba ^ HIGH COURT OF CHHATTISGARH. BILA8PUR W.P.No.2021/1999 Chhedi Lal Gupta Vs. Braach Maaager, State Bank oflndia, Railway Colony, Bilaspur aad others Shri Sanjay K. Agrawal aad Ms. Pratibha Venna counsel for fhe petitioner, Shri P. Diwakar, Sr. Advocate wifh Shri KasifShakeel, counsel for fhe respondents, ORDBR (^ .8.2008) Sunil Kumar SInha. J. (1) This writ petition has been fUed for quashiag of fhe onder of dismissal (Aiinexurc P-7) passed on 18.2-1999 by the disciplmaiy authority, respondent no,2. (2) The facts of fhe case are that fhe petitioner was workmg as Deputy Head Cashier in the State Baak oflndia. He was tded for a Criminal Case under sections 3(l)(ii) and 3(l}(v) of the Scheduled Castes aad Scheduled Txibes (Prcvention of Atrocities) Act 1989 (heremafter referred to as <eihe Acf) vide Special Case No.71/1996. The special Coiirt convicted fhe petitfouer under section 3(l)(ii) of fhe Aforcsaid Act on 14, 10.1998. However he was acquitted of fhe chai^es fi^amed u/s 3(l)(v). The petitioner was sentenced to undergo Rigorous Iinprisonnient for two years and to pay a JBne of Rs.1000/-, in default ofpayment offme, to fiirther undergo R.I. for 3 inonfhs. This judgm.ent of conviction and senteace awaided to fhe petitioner was chaUenged before fhe High Coiut in Criminal Appeal No.2449/1998 ia whjbh fhe sentence awaided to fbe -2- ir ^^••^%'"-^^\ ^^-^^^^' petitioner was suspended vide order dated 30,10.1998. The appeal is stiU pendiag for its disposal. In the nieaawhUe, fhe BaaAc issued a memo to fhe petitioner callmg explanation regardmg the aforesaid conviction. The petitioner subniitted his reply on 21.1.1999 to fhe aforesaid inenio issued to him. Thereafiter fhe disciplmaiy aufhority wifhout conductmg any enquiry aad wifhout recording aay Gndin.g regardiag fhe nature <xhd character of iavolvement passed fhe impugned order dated 18,2,1999 disinissiag fhe petitioner froin seryice. It is agaiast fhis order, fhe petitiouer has filed fhis writ petition. (3) Learaed counsel for the petitioner subxnits fhat fhe impugaed order has been shown to have been passed in terms of section 10(l)(b)(i) of tiie Banking Regulation Act 1949 (For short 'Act of 1949) read with para 521(2)(b) of Shastri Award read with Desai Award with eflfect J&om 14.10.1998 i.e., the date of conviction, but none of fhese provisions give aa aufhorily to respondent no.2 to pass such aa order ofdisinissal on the basis of the conviction wifhout recording a findiag about the conviction of fhe petitioner for an ofiFence iavolviag mioral turpitude. He further submits fhat what is nieant by an ofifence iavolviag Dioral turpitude, referred to ia bofh of fhese provisions inentioned ia fhe impugaed order, was required to be taken note of by the disciplmary authority. There is no JGiidiag that fhe petitioner was guilty of aa offence involviEig nioral turpitude. In fact the ofifence under section 3(l)(ii) of fhe Act niay not be covered under aa ofiFence iavolviag raoral turpitude, therefore, fhis oider of punishment is bad ia law. ^ (4) On the ofher haad learaed coiinsel for the respondents submits fhat after fhe conviction of fhe petitioner, he was seryed wifh a notice and after considering fhe reply, the petitioner has righfly been dismissed fix>m sendce as such the act of the petitioner faUs wifhm fhe ambit of aa offence mvolvio^g moral turpitude. _^— (S) I have heard learaed counsel for the pardes at length aad have also perused the records ofthe writ petition. ^^^<-::^ ^FTK'-^.y:;-^ ^-^ (6) First of all, I quote fhe impugned order passed by the discipliaary aufhority : -ORbER Shri Chedilal 6upta. s/o Shri Raghunandan Pd. Dy. Head Cashier, State Bank of India, Railwa/ Colony Brandi, Bilcxspur (M.P) Regional office Bilaspur BftO/AOM/STAFF/321 Date: 18.2.1999 '< CONVICTEON BY SPECIAL COURT (ATROCTTCES) BILASPUft (M.P) It hois been brought to our notice that you have been convicted by the Court of Shri B.P.Mishra, Special Judge (^trocjties) Bihspur on 14.10.1998 under section 3(1)(2) <& 3(1)(5) of Prevention of Atrocities against S.C.S.T. Acl- 1989, in Criminal Case No.71/96 for 2 years rigorous imprisonment with a fine of fts.1000.00 2. I, as a Disciplinary Authority, have therefore decided to dismiss you from Bank's service in terms of Section 10(l)(b)(i) of Banking ReguJation Act 1949 read with paro 521(2)(b) of Sastri Award read with Desai Award witii effect from 14.10.1998 i.e., tiie date of conviction order passed by the Court Sd/- Asst. fieneral Atenager (Oisciplinary Authority)" (7) It appeara froxn para 2 of fhe order fhat siace the petitioner has been convicted by fhe Special Court iinder section 3(l)(ii) of fhe Special Act he has beendisniissed fix>in Bank>s service u/s 10(l)(b)(i) of the Act of 1949 and Paia 521(2)(b) of fhe Sastri -^- S^s^^^t:'^ ^ pa Award. Section 10(l^(b) (i) of the Banking Regulation Act, 1949 provides as under: 10. Prohibition of employinent of Managing Agwrvts ond restrict'tons on certain forms of employmcnt. fl) No banking company, (a) Shall employ or be managed by a Mainaging Agent; or (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 crimJnal court of an offence invotving morol turpitude ; or ( only ihe Relevant portion quote^ Para 520and 521 ofSastri Award is also quoted as under: "Section Tni—Proc^efurefar taking disciplinary action. 520. Under the subject of disciplinary action we deal with dismissat, suspension, waming or censure. fine, the making of adverse remarks and the stoppage of an increment. 521. A person agdnst whom disciplinary action is proposed or likely to be taken should. in the first instance, be informed of the particulars of tiie charge a9ainst him; he should have a proper opporhjnity to give his exptanation as to such particulars. Final orders should be passed after due consideration of all the relevant facts and circumstomces. With this object in view we give the following directions;- (1) By the expression "offence" shall be meant any offence invofving moral turyitude for which exn employee is liable to conviction and sentence under any provision of hw. (2) (a) When in the opinion of the motnagement an employee has committed an offence, unless he be otheruvise prosecuted, 1+ie bank may "hxke steps to prosecute him or get him prosecuted; and in such a case he may also be suspended. s 5" F^?^—:;'^.-! |^g|^g|i||i1 (b) If he be convicted he may be dismissed with effect from the date of his conviction or be given any lesser form of punishnient as mentioned in sub-paragraph of (5) below." ( only the Relevcint portion cjuoted^ (8) After bare perusal of fhe provisions of Banking rcgulation Act, 1949 it would appear fhat the discipHnary autih.ority caa remove a person JBnom his service on fhe basis of his conviction by a criminal court oxily when fhe person is convicted for an offence iavolvmg moral turpitude. The relevaiit provisions of Sastiy Award vide sub-para 1 of para 521 also provides fhat the exprcssion "offence" used ia fhis para^aph shall be meaat any offence iavolving Dioral turpitude for which an emiployee is liable for conviction and sentence under aay provision of law. Bofh these provisions go to show fhat fhere caanot be disimssal of aa employee unless he has been convicted for aa offence iavolvmg moral turpitude. After conviction of a person, if the oflTence convicted for has not been held to be aa ofifence involviag nioral turpitude then fhe person cannot be dismissed froin service iinder the aforesaid provisions. What is a moral turpitude is a matter of discussion and detenmnation by fhe conceraed aufhority at the appropriate stage. (9J The apex Court in the matter of Pexwan Kunwr -Vs- Stdte ofHfxnwna. and euwther f1996) 4 8CC wme 17 held that the ^nioral turpitude^ is an expression which is used ia legal as also societal parlance to describe conduct which is inherently base, vUe, depraved or haviag aay connection showing depravity. WhUe considermg fhe inatter the Apex Court bas also rcferred about the poUcy decision of Govenuaent of Haryana niodifymg fhe earUer decision by streamlining detenmnation ofnioral turpitude which is as foUows: ff..<.The followiag terms should ordiaarily be appUed in judgiag whefher a certaia ofFence mvolves moral turpitude or not; te&s^ a 6 (1) whefher the act leadiag to a conviction was such as could shock the moral conscience of sociely ia general. (2) Whefher the motive wtdch led to the act was abase one, m te—^-^ r"A^ (3) Whefher on account of the act having been committed the perpetrator could be considercd to be of a depraved character or a person wlio was to be looked down upon by fhe society, Decision m each case will however depend on fhe circumstances of the case and fhe conipetent aufhority has to exercise its discretion while takmg a decision. ia accordaace with the above mentioned principles, A Ust of offences which iavolve inoral turpitude is enclosed for your mformation and guidaace, This Ust, however, caoiiot be said to be exfaaustive and fhere might be offences which are not iacluded ia it but which ia certam situations aad circunistaaces miay iiivolve iiioral turpitude," (10( The iciaoral turpitude^ is a conduct that is contorary to justice, honesty or morality. In the area of legal ethics, offences mvolviag moral turpitude are such as fraud or breach of trust. aMoral turpitude xneaas, ia general, shaDiefiil wickedness ~ so extreine a deparhire firom ordiaary standaids of honest, good xiiorals, justice, or efhics as to be shocfcmg to fhe moral sense of fhe commimity. It has also been defined as an act of baseness, vUeness, or depravity iii fhe pnvate and social duties which one person owes to aaofher, or to society ia general, contrary to the accepted aad custoniary rule of right aad duty between people." (Please see Black's Law Dictionary, 7th Bdition, Page 1026^. (11) In common padaace 'moral tiirpitude^ means baseness of character, Concise Oxford Dictionaiy defiaes 'moral' as 'conceraed wifh goodness or badness of character or disposition or with distinction between right and wrong.,......virtuous ia general conduct,...../ The word ^turpitude" meaiis <ybaseness, depravity, ^> wickedness^. Thus aay act which is contrary to good inorals froin -?- society>s point of view wiU coxne wifhia fh.e aiabit of 'nioral turpitude?. (l2| In fhe light ofabove references, ifwe conclude fhe matter , it would appear fhat whefher aa ofiFence iavolves xaoral delmquency is a question of fact depending on fhe pubUc inorals of fhe time, coininon sense of comzaunity aad context and purpose for which fhe character ofoffence is to be detenamed. Any act resiiltiag iato conviction caanot be held to be per se iavolvuig aa oflTence of nioral turpitude. Therefore, on the basis of facts and circunistaaces of each case a decision witl have to be taken and fhe coinpetent aufhority has to exercise its discretion whUe takmg a decision in. accordaace with fhe broad pnnciples referred to above. If we aaalyze this case, on fhe principles, rcferred to above, and we examine fhe correctaess of the order, it would appear fhat the discipliaaiy aufhorily has not recorded any fiiidiag as to whefher fhe offence for which fhe petitioner has been convicted shaU involve moral turpitude or not. It has even not been said in fhe iaipugried order fhat the disndssal is being efiFected due to involvement of the petitioner ia aa oiBFence iavolviag inoral turpitiide. It has only been said in. fhe order fhat since ftie petitioner has been convicted for a pardciilar ofifence, fherefore, under fhe provisions referred to ia fhe order, which I have already referred to above, his services are dismissed. This fcmd of aa approach goes to show that the order has been passed wifhout appUcation of mind and fhe petitioner has been disimssed wifhout looking iato fhe gravity of fhe oflfence aad without detenmnmg as to whefher fhe act conmdtted by fhe petitioner iavolves inoral turpitude or not. (13) If we exaoime this case fix)m aaofher axigle it would appear fhat m fact a civil suit was pendiag between the petitioner aad the complaiaant which was dismissed and fhe fiu-st appeal is pendmg between them ia the Hi^h Court bearing F.A.No. 109/95. It appears frovi fhe contents of fhe ineiiio of appeal filed before fhis Court, that fhere was some agreement to sell between fhe -^ ^?$^-^:: Siil^-^^ petitioner/plaintiff aiid defendaat no.l aad a suit for specific perforaiance was filed. The suit was disniissed, fhercfore, fhe petitioner/plalatiff has filed the fimst appeal. The comLplaiaaat of the cruniaal case is defendaat no.2 (respondent no.2 in fhe High Court) aad she was also contesting the suit. It has also come in para 8 of fhe judgment of conviction dated 14.10. 1988 (Annexure P-2) fhat fhere is one haad-punip on the spot and fhe dirty/used water of fhe haad pump goes towards fhe house of fhe complaiaaat aad in fact, fhe petitioner has diverted fhe drainage (IVafc) carryiag waste water towards fhe court-yard of fhe complainaiit in which fhe dirty water aad excretoiy waste etc., are also flown, Furfher it has come in paras 10 & 11 fhat in fact, bofh fhe parties Le., fhe complamant and accused, were usiag tihis Nali and fhere is dispute about this NaK between fhein. It is ia this back groiuid fhe conviction aiid sentence has been awarded against tihe petitioner. (14) In fhe facts and circuinstaaces of fhe case, pardcularly ia this back gnoimd of findmg of fhe crimmal Coiut, when the discipliaary authonty has not rccorded the findiag about the iavolvenient of fhe petitioner ia comiiaission of aa oflfence involviag raoral turpitude, the impugD^ed order passed by the disciplinaiy aufhority cannot be sustaiaed as fhe saxne is ^ainst fhe provisions of section 10 of fhe Bankmg Regulation Act as also para 521 of the Sastry Award, The ^titioner has been disinissed contrary to law. The iiapugaed order Annexurc P-7 is quashed. The petitioner is entitled to be rciastated alongwith aU service benefits m accoidaace with law. _—— No orders as to the costs. g^y_ Sunil Kumar Sinha Judge /Rao/