*THE HONOURABLE SRI JUSTICE NOOTY RAMAMOHANA RAO +W.P. No.13599 of 2009 %18-09-2009 #Lakdev Ashok ….petitioner Vs. $ Government of A.P., rep. By its Principal Secretary (Revenue Vigillance- VII) Department an another. …. Respondents !Counsel for the Appellants: Sri P. Narasimha Rao Counsel for the Respondents: G.P. for Revenue <Gist : >Head Note: ? Cases referred: 1. (2008) 1 SCC (L&S) 611 2. 1997(3) Supreme 147 : AIR 1997 SC 1125 3. (1996) 4 SCC 17 4. AIR 1995 SC 1364 5. 1995(2) SCC 513 6. 2001 AIR SCW 3339 7. 1997(5) Scale 660 8. AIR 1995 SC 1364 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 13599 of 2009 ORDER: This writ petition has been instituted seeking a declaration that the dismissal from service of the writ petitioner ordered by the State Government through their G.O.Ms. No. 575, dated 8.6.2009 as illegal. The writ petitioner was working as Mandal Revenue Inspector at the relevant point of time. The Inspector of Police, Anti Corruption Bureau, Sanga Reddy, Nizamabad Range, has filed charge sheet against the writ petitioner on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad, alleging the commission of offences under Sections 7 & 13(1)(d) r/w Section 13(2) of The Prevention of Corruption Act, 1988 by the petitioner. It is alleged that the original complainant approached the writ petitioner with a request to enter his name and the names of his brothers in the pahanis and in the `record of rights’ based upon certain orders passed by the civil court. For discharging this official act, the writ petitioner was alleged to have demanded a sum of Rs.18,000/- as illegal gratification. Since the complainant was not willing to pay for this illegal gratification, he lodged a complaint with the Anti Corruption Bureau on 7.2.2002. Accordingly, a trap has been laid by the ACB and when the writ petitioner has demanded and accepted a sum of Rs.10,000/- as part of illegal gratification, on 8.2.2002, he has been apprehended. Apart from recovering the illegal gratification from his possession, the phenolphthalein test conducted on the fingers of his both hands yielded a positive result. Hence, the writ petitioner has been proceeded against in CC No. 17 of 2003 before the Principal Special Judge for SPE & ACB Cases, Hyderabad. After a full- fledged trial in the matter, by the judgment and order dated 6.3.2009, the writ petitioner has been convicted, of the charges framed against him under Section 248(2) of the Criminal Procedure Code. The writ petitioner was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/-, in default of payment, he was ordered to undergo Rigorous Imprisonment for a period of one month. The writ petitioner has carried the matter by way of Criminal Appeal No. 287 of 2009 to this court. A Misc. Petition was moved therein seeking suspension of the execution of sentence passed by the Principal Special Judge for SPE & ACB Cases, Hyderabad on 6.3.2009 in CC No. 17 of 2003. Entertaining the said Crl Misc. Petition, this court was pleased to pass an order on 18.3.2009 to the following effect: “The sentence of imprisonment imposed on the petitioner alone is suspended on the same terms as ordered by the trial court.” Coming to know of the conviction handed down by the criminal court, the State Government examined the matter and considered that the conduct of the writ petitioner which led to such a conviction was such that his further continuation in public service was undesirable and consequently orders were passed through G.O. Ms. No. 575, Revenue (Vigilance VII) Department, dated 8.6.2009 dismissing the writ petitioner from service with immediate effect, exercising the power available under clause (X) of Rule 9 read with sub-rule (2) of Rule 35 of the Andhra Pradesh Civil Service (Classification, Control and Appeal) Rules, 1991. It is this order, which came to be challenged by the writ petitioner in this writ petition. I have heard Sri P.Narasimha Rao, learned counsel for the petitioner. Learned counsel would submit that the conviction handed down by the criminal court in CC No. 17 of 2003 has not attained finality and in fact an appeal preferred by the writ petitioner against the same was admitted and it is pending in this court and this court has already suspended the execution of the sentence imposed by the criminal court and therefore the State Government is not at all justified in proceeding against the writ petitioner and passing the impugned order of imposing the punishment of dismissal from service. According to the learned counsel, any prudent administration would have waited for the criminal appeal preferred by the writ petitioner to be decided by this court, instead of proceeding in haste to dismiss a public servant. A careful watch on the conduct and performance of duties of an employee, contends the learned counsel, would be a sufficient safeguard against any possible recurrence of unbecoming conduct by such employees. According to the learned counsel, the judgment and conviction handed down by the criminal court before it has attained finality, is not liable to be acted upon at all as the appellate court is entitled to reverse such a conviction, both on fact and law, if it is satisfied that such a conviction is not justifiable. Further, learned counsel would urge that the proportionality of punishment which is needed to be imposed upon an employee convicted of a criminal offence is needed to be weighed properly and carefully and the parameters in that regard have been laid down by the Supreme Court in the judgment rendered by it in State of Madhya Pradesh v. Hazarilal[1]. Contrary to the principles set out therein, the State Government has passed the impugned order and hence it warrants interference. Further, the learned counsel would urge that Section 28 of the Administrative Tribunals Act, 1985, which has ousted the jurisdiction of this court to entertain service disputes, is not an absolute bar for this court to entertain the above writ petition inasmuch as the power of judicial review available to this court cannot be taken away by any legislation. Further, the Administrative Tribunals Act has proceeded upon a misconception that power of judicial review is available exclusively only to the Supreme Court and that such a power is not available to this court. This apart, the judgment rendered by the Supreme Court in L.Chandra Kumar v. Union of India[2] has also recognised the power of this court to entertain the writ petitions relating to and touching upon the service disputes of the government employees. Further, the learned counsel would urge that there is a difference of opinion between the judgments rendered by two different Division Benches of this court on the issue relating to the power of the State to proceed against a person convicted of an offence involving moral turpitude and such a difference of opinion is incapable of being resolved by the Andhra Pradesh Administrative Tribunal and hence it is only proper that this writ petition should be entertained by this court. The following questions fall for consideration in this writ petition. (1) Whether the conviction handed down by a competent criminal court against which an appeal is pending can form reasonable basis for an action to be taken by the State or not? (2) What is the effect of suspending the execution of sentence during the pendency of the criminal appeal, in contrast to suspension of the conviction handed down by the criminal court? (3) Whether this court has got power to entertain, at the very first instance, a writ petition wherein a serious dispute exists relating to the interpretation of the conditions of service of a public servant? A civil servant of the Union or the State holds his office during the pleasure of the President or the Governor, as the case may be. Consequently every civil servant is required to maintain and exhibit certain standard of conduct. What constitutes the good conduct required to be exhibited at all times by such civil servants, has, with varying degrees of precision, been codified and notified as Conduct Rules governing the service concerned. It is therefore imperative that a civil servant, being a servant of the State 24 hours a day and 365 days a year, is liable to maintain and bear all through good moral conduct. He has to set an example for the larger society to emulate him. The State, functions through the various human agencies and resources available at its disposal in the form of various classes of civil servants. Therefore, the State has considered it appropriate to retain such personnel on its rolls so long as they bear the good and decent conduct. Any person holding a civil post or a member of a civil service, if suspected of not bearing the requisite moral conduct, even when he is not physically rendering any services to the State, say beyond the normal office hours or on public holidays or when he is on approved leave of absence, he is still liable to be proceeded against for not bearing the requisite standards of conduct. It does not lie in the mouth of a civil servant to plead that his conduct is in no way directly relevant for discharge of the functions to the State. Therefore, the State Government is perfectly legitimate and justified in its expectation that persons who do not bear the requisite moral conduct are liable to be dealt with appropriately. In fact, it is this philosophy, which is enshrined under Clause (a) of the Second Proviso to Article 311(2) of our Constitution when it has been set out that a person who has been convicted of a criminal charge, obviously involving moral turpitude, need not be continued in service and he can be dismissed or removed from service on the ground of his conduct that led to such a conviction. In such situations the protection, which is otherwise available under Article 311(2) will not be available. It is for the competent authority to decide which of the 3 major punishments is called for, proportionate to the gravity of offence held established by a civil servant. It will be appropriate to notice that it is not the conviction of every offence that can act as a catalyst for the State to swing into operation. Hence, conviction handed down for minor offences or offences not involving moral turpitude, is not liable to be taken note of or into consideration. The civil servant who is convicted of an offence involving moral turpitude alone is liable to be proceeded against. The question relating to what class of offences constitute moral turpitude and which others do not attract the elements of moral turpitude has been considered and appropriately dealt with by the Supreme Court in Pawan Kumar v. State of Haryana[3]. In the said judgment, the Supreme Court held as under: “…. Thereafter the opinion of the District Attorney, Bhiwani was sought. He opined that the offence punishable under Section 294 IPC was not a serious offence which could involve moral turpitude and the sentence of fine of Rs. 20 imposed on the appellant was not likely to embarrass him in the discharge of his duties and therefore there was no legal bar for his retention in service. A reference was also made to the Legal Remembrancer to the Government of Haryana, soliciting his opinion. This officer opined that it would not be desirable to appoint the appellant in government service since he had been convicted under Section 294 IPC, involving an offence of moral turpitude, as otherwise the very purpose of verification of character/antecedents would be frustrated. On the collection of such material, decision was taken and the services of the appellant were terminated vide order dated 30.9.1984, as no longer required. 6. Challenging this order the appellant went in suit for declaration before the Civil Court, describing the order terminating his services as against law, equity, good conscience, and violative of principles of natural justice, claiming that he continued to be in service entitled to all benefits of service including salary etc. The State and the Chief Medical Officer resisted the suit. The only contentious issue which sprung up from the pleadings of the parties was : Whether the order dated 30.9.1984 about the termination of service of the plaintiff is wrong, illegal and liable to be set aside as alleged ? 7. The trial court decided the said issue against the appellant. The lower appellate court on appeal affirmed the same. The High Court too in second appeal concurred with the decision of the courts below, basically on two grounds, namely, (i) that the conviction of the appellant under Section 294 IPC revealed an act which per se constituted moral turpitude; and (ii) the order of termination of service, bare facedly, on its plain language was not stigmatic. All the same it was never disputed by the defendants-respondents that since the character and antecedent verification had revealed the conviction of the appellant under Section 294 IPC, that was the reason why the services of the appellant were dispensed with and not regularised. Hence this appeal. 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 IPC 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 offence 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 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. 14. Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine upto a certain limit, say upto Rs. 2000 or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever.” Let us note how `The Living Webster Encyclopedic Dictionary’ of the English Language described the following expressions: depraved : Corrupted; Perverted; immoral base : of illegitimate birth; morally low; without dignity of sentiment; mean – spirited; befitting or characteristic of an inferior person or thing; Unworthy; menial; not classical or refined; of little comparative value. vile : Wretchedly bad; highly offensive or objectionable; repulsive or disgusting, as to the senses or feelings; morally base, depraved or despicable. Therefore, the elements of moral turpitude are attached to only certain classes of offences, which are considered to be incompatible with a decent social order. Civilised society is not expected to bear the rough of the presence of such individuals amongst themselves. The conduct which led to the conviction of an offence which involves moral turpitude has therefore come to be recognised as offering a reasonable basis for the State to initiate action against such civil servant in terms of Article 311 of our Constitution. Undoubtedly, seeking gratification for rendering an official act is recognised as a form of corruption. Corruption in public services will have the demoralising effect on the efficacy and efficiency of the State. The State through its regular grants by making budgetary provision has been paying all its civil servants, within its means of economic capacity, reasonably commensurate salary and allowances. Every civil servant is therefore paid for rendering services to the State. Therefore, for performing his official duties and functions – ironically even when one does not perform such functions – the State pays for him without fail. It is only by way of approved punitive action, the payment of salary can be withheld. Otherwise, as a matter of course, every civil servant gets remunerated appropriately by the State. When once the State itself has been paying up for the services rendered by such civil servants, it is perfectly legitimate for the State to expect its civil servants not to aspire for further gratification from private sources. It has therefore, come to be recognised that demanding or accepting any such illegal gratification amounts to a form of corruption. Hence, as a public policy, the State is not entitled to tolerate corruption amongst its public servants. State’s, as also Larger public interest, demand, no tolerance to be shown to corruption. Corruption is a form of moral perversion and perverted integrity. It stems from a dishonest and putrefactive decomposition of intellect. Hence it is recognised as reflective of base conduct of an individual. Hence, such an offence attracts mortal turpitude. The principle enshrined under clause (a) of the second proviso to Article 311 has fallen for consideration on several occasions, before the Supreme Court. But, however, a useful reference to the case of Dy. Director of Collegiate Education (Administration), Madras v. S.Nagoor Meera[4] can be had, wherein, it was held as under: (3 ) ON 27/10/1993 the Deputy Director of Collegiate Education issued a notice to the respondent calling upon him to show cause why he should not be dismissed from service in view of his conviction by the criminal court. The show cause notice expressly recites that in as much as the High Court has only suspended the sentence, his conviction is still in force. The notice also recites the nature of the offence for which the respondent was convicted. (4) SOON after receiving the show cause notice, the respondent filed Original Application No. 6851 of 1993 before the Tamil Nadu Administrative Tribunal. His submission, which has been upheld by the Tribunal is that inasmuch as the sentence imposed upon him by the criminal court has been suspended by the appellate court (High Court), no proceedings can be taken for terminating his services under and with reference to clause (a) of the second proviso to Article 311 (2) of the Constitution of India. The Tribunal has quashed the aforesaid show cause notice on the following reasoning : "therefore, it is clear that once the sentence has been suspended admitting the appeal, the criminal proceedings of the Lower Court which ended in conviction and sentence of the applicant is being continued in the appellate court and it can end only when the proceedings in the appellate court come to an end. Till then the applicant cannot be proceeded under the provisions of the T. N. C. S. (C. C. A) Rules as has been done in this case. Yet another flaw is that there has been inordinate delay of two years and eight months after the conviction and sentence was passed by the Lower Court in issuing the impugned show cause notice. This inordinate delay is unexplained. Therefore, the show cause notice to the applicant is not sustainable in law till the appellate court disposes of the Criminal Appeal. " (5) THE correctness of the said order is questioned by the Deputy Director of the Collegiate Education this appeal. (8) WE need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311 (2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal. (9) THE Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of action under clause (a) of the second proviso to Article 311 (2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311 (2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz. , to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311 (2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311 (2 ). (10) WHAT is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court,