CWP No.13407 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13407 of 1989 Date of decision : 16-07-2010 Bakshish Singh .... Petitioner VERSUS The State of Punjab ....Respondents CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Amit Chopra, Advocate, for the petitioner. Mr. J.S. Puri, Addl. AG, Punjab. KANWALJIT SINGH AHLUWALIA, J. (Oral) Bakshish Singh, who was posted as a Patwari, preferred the present writ petition with the prayer that a writ in the nature of certiorari be issued thereby quashing the order of termination dated 8.8.1989 (Annexure P-1) and he be reinstated in service. During the pendency of the writ petition, Bakshish Singh died and the present petition has been pursued by his widow Usha Rani. Before the arguments and controversy raised is dealt with, it would be necessary to give brief facts of the case. Admittedly, petitioner was working as a confirmed Patwari in the Revenue Department. He was named as an accused in a murder case. It was registered on 4.08.1973. The trial Court acquitted the petitioner for offence of murder. However, sentenced him to undergo RI for three years for offence under Section 325 IPC and two years under Section 324 IPC. Petitioner Bakshish Singh filed an appeal in this Court. His sentence was reduced from three years to two years. Finding of the trial Court affirmed by this Court in appellate CWP No.13407 of 1989 -2- jurisdiction, that the petitioner is guilty of offence under Section 325 IPC was accepted by the State, as no Special Leave Petition was filed. Petitioner was dismissed from service vide order dated 14.08.1975. Petitioner challenged the order of dismissal from service by filing a suit in the Civil Court. Civil Court decreed the suit vide judgment and decree dated 16.01.1982 and held dismissal of the petitioner from service to be bad in the eyes of law. State of Punjab preferred an appeal. District Judge, Gurdaspur vide Annexure P-2 dismissed the appeal filed by the State and furthermore held the petitioner to be entitled to all consequential reliefs. The State Government opted not to file any Regular Second Appeal after the judgment of the Appellate Court (Annexure P-2). On 17.08.1982 Collector of Gurdaspur issued a show cause notice to the petitioner as to why his services in consonance with the judgment (Annexure P-2) be not dismissed. An opportunity of hearing was afforded to the petitioner. Petitioner submitted his reply (Annexure P-4) on 3.09.1982. Collector, Gurdaspur after considering the reply on 18.04.1983 passed the order regarding the reinstatement of the petitioner as Patwari and petitioner was posted against a vacant Circle Kaler Kalan in Tehsil Gurdaspur. This is not denied that thereafter another show cause notice was issued to the petitioner on 31.07.1985 but the same was also kept pending. Later an audit party raised an objection regarding the continuation of the petitioner in service. To satisfy the audit objection, services of the petitioner were terminated vide Annexure P-1. It would be apposite here to reproduce following portion of the order:- CWP No.13407 of 1989 -3- “2. A notice was issued to the Respondent on 17.08.1982 as to why he should not be dismissed on account of the abovesaid convictions, but no action was taken on this notice and he was given posting as Patwari. Again another notice was issued on 31.07.1985, but it was also kept pending. The Audit pointed out this discripency as to why action has not been taken on these notices. A fresh notice was issued on receipt of the legal opinion on 9.9.1988. The legal opinion was that a fresh order of dismissal should be passed after observing legal formalities as the orders of Civil Court declaring the previous order of dismissal as illegal was based on technical grounds. The Respondent has filed reply to this notice stating that this is not a fit case for dismissal. He was given personal hearing also." Punishing Authority after expressing its opinion that action is required to be taken against the petitioner in order to satisfy audit objection for terminating the services of the petitioner held as under:- "3. I have considered the reply filed by the Respondent and his oral contentions. The Respondent was convicted under Section 325/323/149 and 324/323/149 and under Section 148 IPC. He has actually undergone the imprisonment. I am of the considered opinion that on account of this conviction, he is not fit to be retained in service. I, therefore, order his dismissal from the post of Patwari with immediate effect." Sh. Amit Chopra, Advocate appearing for the petitioner has advanced following arguments:- i) That the order of termination was assailed before the Civil Court. It had set aside the same and in consonance thereof to afford opportunity of hearing to the petitioner, a show cause notice was served upon him. Petitioner filed CWP No.13407 of 1989 -4- reply to the same and vide Annexure P-5 he was reinstated in the service. It is further submitted that again a show cause notice was issued on 31.07.1985 and on reply filed by petitioner, authorities took a conscious decision not to proceed against the petitioner. Counsel states that though there is no bar for the authorities to review administrative action but principles of fair play and equity demand that for an employee once for all matter should be settled at once. Such authorities at their will cannot re-open the issue and review the same unless there are compelling reasons to do so. Counsel states that a mere objection by an Auditor is not sufficient to reverse the conscious decision taken by the authorities twice. ii) The fact of conviction ipso facto is not sufficient to terminate the services of the petitioner. The authorities have to apply their mind as to whether the offence for which petitioner has been convicted constitute moral turpitude or not? iii) Offence under Section 325 IPC for which the petitioner was convicted will not constitute moral turpitude. To verify this submission, reliance has been placed on instructions issued by Government of Haryana where it has been specifically stated that offence under Section 325 IPC will not constitute moral turpitude. Counsel states that in the neighbouring State of Haryana offence under Section 325 IPC cannot be construed as one which fasten the employee with moral turpitude. Counsel for the petitioner has relied upon Shish Pal Singh versus The State of Haryana and Others, 1991 (2) S.C.T. 372 in a case of Haryana Government employee, this Court held that the list of offences which involve moral turpitude exclude offence under Section 325 IPC and employee was reinstated. Further reliance has CWP No.13407 of 1989 -5- been placed upon Mukhtiar Singh versus State of Punjab and others, 2007(2) RCR (Civil) 474 where Single Judge of this Court observed as under:- "9. Even to my mind, per se, an act of murder will not come within the broad concept of 'moral turpitude' as interpreted by the Courts. The case of the petitioner is on better footing since he has been convicted for an offence punishable under Section 307 of the Indian Penal Code (an attempt to murder). In such like circumstances, the contention of the learned counsel for respondent – Market Committee that the conviction of the petitioner is covered under term 'moral turpitude' is libale to be noticed only for the sake of rejection. Now reverting back to the facts of the case in hand, it is again admitted case of the parties that in response to the show cause notice mentioned above, the petitioner filed his reply/explanation (Annexure P-7) in which he categorically pleaded that he preferred an appeal before this Court for keeping his Chairmanship of the Market Committee intact, but even then on the basis of the conviction order passed by the learned Additional Sessions Judge, Sangrur, in a case registered against the petitioner under FIR No.164, the petitioner vide notification dated 10.04.2006 was removed as a member of the Market Committee, Lehraghagga with immediate effect. Moreover, the learned counsel appearing for the respondent – Market Committee has not been able to place on record any resolution with regard to the meeting as envisaged under Section 16 of the Act for removal of the petitioner as a Chairman. Sub Section 5(e) of Section 3 of the Act reproduced above, clearly spells out that no person shall be eligible to become member of the Board, which has been declared insolvent and sentenced by the criminal court for an offence involving moral turpitude and since the offence CWP No.13407 of 1989 -6- under which the petitioner has been convicted does not involve moral turpitude, the petitioner could not be removed from the membership nor he could be removed from the Chairmanship of the Market Committee and the impugned orders/letters are liable to be quashed. Thus, I am of the view that the respondent Nos.1 and 2 had no valid basis to remove the petitioner and it appears that the amended letters/orders have been passed so as to facilitate the appointment of respondent No.3 as a member/Chairman of the Market Committee." Further reliance has been placed upon Parvesh versus State of Haryana and others, 2009 (4) RCR (Criminal) 469 wherein it was held as under:- "9. The term 'moral turpitude' is not defined anywhere. This term is used in law for centuries. Though subject matter of many decisions by the Courts but its definition has not gained clarity by prolixity of statement. Various conflicting statements can be found concerning the term, some saying its vague, indefinite, lacking in precision or that it is susceptible of more than one interpretation. On the other, it has equally been said that it is well defined, easily understood and the term has received well known and established definition by some Courts. In some opinions, it is viewed that the term has no definite meaning and that it shifts and fluctuates in keeping with changes in the moral standards of people or country. This may be so when the term is solely viewed as question of morals. However, when private rights are being adjudicated, then these are determined by rules of Civil Law and not by morals. It is then the Civil law fixes a definite meaning to the term. 10. Generally speaking, moral turpitude has been defined as meaning an act of baseness, vileness or depravity in private and social duties which a man owes to CWP No.13407 of 1989 -7- his fellow men or society in general. This definition has been given by great many authorities and almost uniformly approved. Some time, the term is assigned as meaning anything done contrary to justice, honesty, principal or good morals or everything so done or anything so done knowingly. It is defined to mean baseness, depravity or wickedness, a shameful character; base or shameful act. As a legal term, it is defined as quality of a crime involving grave infringement of the moral sentiment of the community. However, it is noticeable that better reasoned views are quite in line with the definition that a man owes to fellow man etc. as noted above. It is a tautological expression. 11. Considerable difficulty is experienced in application of the term to facts in each case. Reason could be that the term does not refer to legal standards but largely refers to moral character and state of mind. There is no hard and fast rule as to what constitutes 'moral turpitude'. It often involves the question of intent. It signifies an inherent quality of baseness, vileness, depravity and, thus, an act inherent baseness etc. in private social or public duties which a man owes to his fellow being. Moral turpitude is not involved in every criminal act. Whether any particular conviction involves 'moral turpitude', may be a question of fact and frequently depending on surrounding circumstances. It is, thus, difficult to determine just what crimes do involve moral turpitude. There may be many reasons in this regard like concept of morals very according to community or time etc. Some crimes, however, are of such a nature that these do not involve moral turpitude. In between these two classes may be the cases where it would become a question of, fact to be determined if these involve moral turpitude or not. In such cases attendant circumstances would furnish the best guide. Severity of the punishment imposed may not control the issue. Ther eis a CWP No.13407 of 1989 -8- tendency to restrict the term to sexual crimes but the meaning certainly is much broader. Sexual crimes of course would fall within the scope of definition. Keeping in view the definition of the term, it may possible to say that mere assault, causing hurt etc. does not or may not involve moral turpitude. Whether it does or does not would depend upon particular facts of each case/individual case. Thus, homicide may or may not involve moral turpitude depending upon the degree of the crime and so would be the position regarding attempted homicide." In Parvesh case (Supra) further reliance was placed upon Pawan Kumar vs. State of Haryana, 1996(3) SCT 339 where moral turpitude was defined as 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. To same effect is the judgment rendered in Kulwant Singh versus The Deputy District Primary Education Officer, Gurdaspur, 1997 (1) SCT 282. This Court also in CWP No.10652 of 1999, titled as "Gurmail Singh versus State of Punjab and others" decided on 9.07.2010 had held as under:- "Having perused the orders of punishing as well as Appellate Authorities, this Court is of the view that the orders passed by both the authorities are general and vague in nature. No part of the judgment has been considered as to what was the genesis and origin of the occurrence, whether the petitioner was victim of circumstances or in fact he was guilty. Orders passed by both the authorities also reflect no application of mind to the extent whether conduct of the petitioner constitutes moral turpitude or not. The authorities had also not applied their CWP No.13407 of 1989 -9- mind as to what were the mitigating and aggravating circumstances. The authorities have also not opined whether punishmeant of termination was the only just answer or the petitioner could have been leniently dealt with." Sh. J.S. Puri, Addl. AG, Punjab appearing for the State has not been able to justify as to why once show cause notice was issued, petitioner had replied thereto and was reinstated, on what reasons he was subsequently dismissed in pursuance of third show cause notice. It can be safely inferred that the authorities were satisfied with the reply filed by the petitioner and had absolved him of the charges and, therefore, had reinstated the petitioner in service. Once that was done the only remedy with the aggrieved person was to file an appeal against the orders of the Collector. There was no justification for issuing show cause notice second time and third time. It would be pertinent to mention here that on the second show cause notice, no action was taken and the petitioner – employee was allowed to continue in service. In normal course, this Court ought to have remanded the matter to the authorities to decide the issue afresh and to examine whether conduct of the petitioner constitutes moral turpitude or not. But in the present case, petitioner had replied to the show cause notice and was reinstated. Furthermore, date of superannuation of the petitioner was 31.12.1990. The order of termination was passed on 8.8.1989, about one and a half year before the actual date of retirement. Petitioner has also died during the pendency of the writ petition and the present writ petition has been pursued by the wife to seek terminal benefits. Therefore, there CWP No.13407 of 1989 -10- is no hesitation to hold once order (Annexure P-5) was passed subsequent order (Annexure P-1) is not justifiable and is liable to be set aside as it was only passed to satisfy the audit objection. Present Writ Petition is accepted and order (Annexure P-1) is quashed. For the period for which the petitioner had not worked the maxim of no work no pay shall operate. He shall not be given any financial benefit. However, taking continuity of service into consideration, his terminal benefits shall be worked out and be paid to his wife within a period of three months of the date of receipt of a certified copy of this order. (KANWALJIT SINGH AHLUWALIA) 16-07-2010 JUDGE manju