RSA No.121/2001 Page 1 of 47 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No. 121/2001 Date of Decision: July 05, 2010 RAM NARAIN SHARMA ….Appellant Through: Appellant in person. Versus CANARA BANK …..Respondent Through: Mr. Jagat Arora and Mr.Rajat Arora, Advocates. % CORAM: HON’BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. 1. Impugned in this appeal is the judgment dated 7th July, 2001 and decree dated 31st July, 2001 of the First Appellate Court passed in appeal being RCA No.8/2000 against the appellant and RSA No.121/2001 Page 2 of 47 also the judgment and decree dated 14th January, 2000 of the Civil Judge passed in the original suit No.321/83 titled as „Ram Narain Sharma Vs. Canara Bank‟, whereby the suit filed by the appellant was dismissed. However, the Civil Judge modified the penalty of dismissal from service into one of removal from service. 2. Concisely, case of the appellant is that he was appointed as a Clerk in the Canara Bank on 19th May, 1973 and terms and conditions of his service were regulated by the Canara Bank Service Code. He was lastly appointed at Kamla Nagar Branch, Delhi. During his posting at Kamla Nagar Branch, relations between him and the Manager of the Branch, namely, Mr.B.P.Rao became strained and the Manager wanted his transfer but, when he failed in his efforts, he lodged a false complaint against the appellant with police on 4th July 1978, making allegations of assault on him. Appellant was accordingly charge sheeted in departmental enquiry but later on the enquiry was not proceeded with. Criminal proceedings were lodged against the appellant for an offence punishable under Section 308 of the Indian Penal Code (hereinafter referred to as „IPC‟). However, appellant suffered conviction under Section 323 IPC and he was released on probation under Section 4 of the Probation of Offenders Act (hereinafter referred to as „Act‟). RSA No.121/2001 Page 3 of 47 3. Succinctly, case of the respondent Bank in defence is that victim Mr.B.P.Rao, the then Manager of the Branch was not happy with the working of the appellant and he had demanded appellant‟s explanation for not doing his duties satisfactorily and carefully. Appellant was also served with a memo demanding his explanation and thereafter Manager had sent the report to his seniors about the callous work and conduct of the appellant. On 4th July, 1978 in between 11:00 AM to 12:00 Noon, appellant entered the office of the Manager, abused him and asked him as to why he was harassing him. Appellant thereafter lifted an iron rod and hit it on the head of the victim few times. The victim got two bleeding injuries which were got stitched by a medical practitioner in the said area. An information was also sent to the police. 4. After conviction of the appellant, Assistant Deputy General Manager, Staff Section, Delhi Circle passed an order dated 4th June, 1980 dismissing the appellant from the service of the Bank under Chapter XI, Regulation 21, Clause (3), Sub-clause (a) and Clause (4) of the Code. Appellant represented against his dismissal to the higher authorities but his representations were rejected on the ground that since he had been convicted by a criminal court, hence, his dismissal was proper. This resulted into filing of the present suit RSA No.121/2001 Page 4 of 47 by the appellant. 5. Appellant challenged the dismissal order on various grounds contending inter alia that procedure laid down in Chapter XI Regulations 7 to 20 of the Code, before awarding punishment, was not followed and the offence for which he was convicted did not involve any moral turpitude. The Executing Committee had a discretion under Regulation 21(3) either to dismiss the employee or to give him lesser punishment, as mentioned in Regulation 4 and such discretion has to be exercised in a fair and impartial manner. Appellant also raised a plea that after he was released on probation, the disqualification of conviction attached to him was released and the Bank could not have dismissed him from the service. 6. Trial Court formulated following two issues vide order dated 22nd March, 1984:- “1. Whether the pltf. is esstopped from raising dispute before the Civil court as alleged in Objection no. 2 of the WS? OPD. 2. Whether the dismissal of the pltf. vide order dt.4.6.90 is illegal, unjustified on account of grounds stated in the plaint? OPP” Vide detailed judgment dated 14th January, 2000, Civil Judge dismissed the suit. 7. Challenging the order of the Civil Judge, Appellant RSA No.121/2001 Page 5 of 47 filed the first appeal bearing RCA No. 8/2000 before the Additional District Judge, Delhi. While concurring with the findings of the Civil Judge, First Appellate Court dismissed the appeal. Hence, this appeal. 8. Following substantial questions of law were formulated on 29th October, 2004:- “1. Whether the offence said to have been committed by the Appellant under Section 323 of the IPC would amount to an offence of moral turpitude and if so, whether the Respondent was entitled to dispense with the inquiry in terms of Regulation 21 of Chapter XI of the Canara Bank Service Code? 2. Whether placing the Appellant on probation under the provisions of the Probation of Offenders Act would amount to conviction for an offence under the IPC? 3. Whether the order dated 4th June, 1980 dismissing the Appellant from service, as modified into an order of removal from service, was validly passed in accordance with law?” Substantial Question No. 1 9. Appellant has represented his case in person. It is submitted by him that he was found guilty for an offence punishable under Section 323 IPC only and holding him not of a bad character, he was released on probation under the Probation of Offenders Act. He also deposited the amount of Rs.250/- as compensation payable RSA No.121/2001 Page 6 of 47 to the injured and Rs.100/- as cost of the proceedings and also executed the personal bond and surety bond as was directed. He submitted that the Board mechanically granted approval of dismissal and after getting the approval, Deputy General Manager dismissed the appellant from services vide order dated 4th June, 1980 without giving any show cause notice or any opportunity of hearing as representations were dismissed. He has further submitted that he could not have been dismissed from services without any enquiry having been held as per Canara Bank Service Code (for short „CBSC‟). According to him, Appellate Court, therefore, failed to consider that an offence under Section 323 IPC falling under Delhi Petty Offence Rules is a summary trial case and did not involve any moral turpitude and indiscipline cannot be equated to immorality and therefore, it went wrong in dismissing the suit and changing the punishment from dismissal to removal from services. The court also failed to consider that the disciplinary authority had the power to inflict lesser punishment as per Regulation 21 (3) (a) provided in Regulation 4 of CBSC. 10. Mr. Jagat Arora assisted by Mr. Rajat Arora counsel for the respondent has submitted that appellant had assaulted the Manager during banking hours causing him serious injuries and RSA No.121/2001 Page 7 of 47 therefore, his act is an offence involving moral turpitude for which he has been convicted and sentenced by the Sessions Court. Therefore, his dismissal from services was in accordance with the Rules. He further argued that as per Regulation 21 of Chapter XI of CBSC, the employee if convicted can be dismissed with effect from the date of his conviction, though he can also be given any lesser punishment mentioned in Regulation 4 of the Chapter. He has further submitted that no departmental enquiry was required to be conducted as per the Rules, once the appellant was prosecuted and convicted for an offence involving moral turpitude and therefore, respondent Bank rightly dismissed him from services without holding any departmental enquiry keeping in mind the conviction of the appellant. 11. Moral Turpitude is not defined in any Statute but this term frequently occurs in various Statutes. In legal concept, this is a conduct which is considered contrary to community standards of justice, honesty or good morals. It has been described as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the accepted and customary rule of right and duty between man and man. It is an act or behaviour that gravely violates moral sentiment or RSA No.121/2001 Page 8 of 47 accepted moral standards of community and is of a morally culpable quality held to be present in some criminal offences as distinguished from others. Turpitude means a corrupt or depraved or degenerate act or practice. Moral turpitude refers generally to conduct that shocks the public conscience. Offences such as murder, voluntary manslaughter, kidnapping, robbery, aggravated assaults, breach of peace and disorderly conduct etc. involve moral turpitude. Conviction of crimes on moral turpitude may also disqualify someone from an employment opportunity. The precise definition of a crime that involves Moral Turpitude is not always clear. 12. In 'Pawan Kumar Vs. State of Haryana', AIR 1996 SC 3300, Supreme Court interpreted moral turpitude 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. In the said judgment, Supreme Court referred to policy decision of Government of Haryana dated 2nd February 1973, accepting the recommendations of Government of India that ex-convicts who were convicted for offences involving moral turpitude should not be taken in Government service and its subsequent decision dated 17th /26th March, 1975 explaining the policy decision of 2nd February 1973, and modifying the earlier RSA No.121/2001 Page 9 of 47 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.” 13. In 'Bank of Maharashtra & Anr. Vs. Om Prakash Malvaliya', ILR 1997 II Delhi, this Court discussed the dictionary meaning of the word 'moral turpitude' i.e. word 'moral' stands for 'right and wrong conduct, virtues, moral lessons or principles', and 'turpitude' stands for 'wickedness'. It referred to 'Durga Singh Vs. The State of Punjab, (1) AIR 1957 Punjab, wherein considering the facts the court defined „moral turpitude‟, it observed that:- “The term „moral turpitude‟ is rather vague one and it may have different meanings in different contexts. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellow- man or to Society in general. It has never been held that gravity of punishment is to be considered in RSA No.121/2001 Page 10 of 47 determining whether the misconduct involves moral turpitude or not.” 14. This Court further observed in para 11 and 12 of the judgment as below:- “(11) The test which can be applied for judging whether an offence does or does not involve “moral turpitude” can be summarised as follows: (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 baseone; and (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. (12) It is not possible to lay down any abstract standard which constitutes moral turpitude. There are certain criminal offences like theft, robbery, criminal breach of trust, misappropriation of property, which directly involve moral turpitude. In such cases, no elaborate investigation is required to find out the depraved conduct of the delinquent employee. If the offence does not show any element of vileness, deprivity and weakness of character of the offender, the disciplinary authority is required to consider the facts and circumstances of the case to find out whether the motive which led to the conviction was deprave. It is a settled law that “moral turpitude” cannot be applied in its widest term. However, the ratio decidendi of the various cases indicate that the question whether a certain offence involves “moral turpitude” or not will necessarily depend on the circumstances in which the offence is committed. It is not in every punishable act that can be considered to RSA No.121/2001 Page 11 of 47 be an offence involving moral turpitude. Any criminal conviction per se does not amount to “moral turpitude”. So it follows that when an employee is convicted on criminal charge his dismissal cannot be automatic, unless, there is specific rule in that regard.” 15. Now, it is to be seen if an offence under Section 323 IPC for which appellant was convicted involved moral turpitude, within the ambit of Regulation 21 of CBSC, for initiation of departmental enquiry against the appellant employee and for taking steps to prosecute him. 16. It is argued by the appellant that his conviction under Section 323 IPC does not involve moral turpitude because indiscipline cannot be equated to immorality. He has referred to Delhi Petty Offences Rules 1998, Rule 2, 3 (a), 11(2) and 12. True that an offence under Section 323 IPC falls in the definition of petty offence under this Rule. These Rules are applicable to petty offences triable by Special Metropolitan Magistrates. Special Magistrate is empowered to exercise same powers as conferred by the Criminal Procedure Code on Metropolitan Magistrates. 17. For the purposes of present appeal, it is irrelevant that conviction of the appellant under Section 323 IPC was for a petty offence. The fact remains he was convicted in a trial conducted by RSA No.121/2001 Page 12 of 47 the Additional Sessions Judge for an offence under Section 308 IPC and finding him guilty of lesser offence, he convicted him accordingly. What is relevant is whether an offence under Section 323 IPC involves moral turpitude. 18. In its legal sense, everything done contrary to justice, honesty, modesty, or good morals is moral turpitude. Although a vague term, it implies something immoral in itself, regardless of its being punishable by law. (Reference is made to Black's Law Dictionary, Fifth Edition). „Moral turpitude‟ cannot be applied in its widest term. Whether a certain offence involves „moral turpitude‟ or not will necessarily depend on the circumstances in which the offence is committed. Any criminal conviction per se does not amount to „moral turpitude‟ so, when an employee is convicted on criminal charge, his dismissal cannot be automatic, unless, there is a specific rule in that regard. 19. In the instant case, appellant was convicted for an offence under Section 323 IPC. Charges against the appellant were that on 4th July, 1978 during banking hours, while working as Clerk in Kamla Nagar Branch of the Bank, being dissatisfied with his work, Manager Mr. B.P.Rao, called him and advised him to improve RSA No.121/2001 Page 13 of 47 his work, lest he would report the matter to the Circle Office. On hearing this, appellant got angry and lost his temper, he shouted at the Manager. It seems that he left the office of the Manager and came back to his cabin and slapped him on his face. Not only this, appellant hit him on his head with a wooden board/iron rod and caused him head injuries. He was charged with an offence under Section 308 IPC. After trial, court convicted him for an offence under Section 323 IPC. Therefore, appellant was convicted for voluntarily causing simple hurt on the person of the Bank Manager, Mr. B.P.Rao. 20. Thus, it is clear that appellant while on duty as a Clerk of the Bank, which is a public institution, not only misbehaved with the Manager but also caused him injuries on his person by slapping him and hitting him on his head, resulting into two bleeding injuries on his head. This indecent behaviour of the appellant in the Bank premises during office hours, whereby he not only shouted at the Manager but also caused him physical injuries on his head, slapped him in presence of the customers and other employees involve moral turpitude. Other employees of the Bank, under the circumstances, would have no respect for such a Manager whose Clerk could misbehave with him and assault him in their presence and in the RSA No.121/2001 Page 14 of 47 presence of the customers. There was no provocation except that appellant was counselled by the Manager to do his official duties carefully. His indecent behaviour must have been looked down upon by his colleagues and other employees of the Bank in particular and by public who visited the Bank to transact business in general. 21. As discussed above, 'moral' stands for 'right and wrong conduct'. Conduct of the appellant, in this case, was not only wrong but was such which everyone would look down upon. He had no right to go back to the cabin of the Manager after coming out of it and then slapping and assaulting him. His behaviour, therefore, was a case of perversity and has to be called 'moral turpitude.' It is not material that he was convicted for an offence under Section 323 IPC. It is his behaviour as a subordinate towards his senior which constitutes „moral turpitude‟. No subordinate can be allowed to behave in an indecent manner and physically assault his senior in violation of office decorum and discipline. If appellant had any grievance against counselling or alleged reprimand by his Manager, he could have taken recourse to the Rule and procedure permissible as per Banking Regulations. Appellant was on public duty at the relevant time when he caused head injuries on the person of the Manager. His conduct obviously is inherently base, vile and RSA No.121/2001 Page 15 of 47 depraved and his conviction based on such an act was such that could shock the moral conscience of society in general and his fellowmen in particular. There was no motive for the appellant to commit an offence. There was nothing left to be proved before the enquiring authority. Under the circumstances, Bank was not required to hold an enquiry. 22. Trial Court as well as the Appellate Court were, therefore, right in holding that moral turpitude was involved in the offence committed by the appellant under Section 323 IPC for voluntary causing injuries on the person of the Manager within the meaning of Regulation 21 (1) of CBSC. 23. In 'Bhagwati Prasad Tiwari Vs. Regional Manager Bank of Baroda & Ors.' MANU UP 1743/2004, where appellant was appointed as Chowkidar in the respondent Bank. During Holi festival, he had some altercation with his neighbour, who later on filed a criminal complaint and he was convicted under Section 325 IPC, it was held that conviction of the appellant under Section 325 IPC involved moral turpitude and therefore, he was rightly dismissed from service. 24. In Omprakash Malviya's case (supra), appellant was RSA No.121/2001 Page 16 of 47 appointed as a Peon in the respondent Bank and was promoted as Daftri. He was arrested in a case under Sections 110 and 112 and convicted under Section 117 of the Bombay Police Act and the Bank, on the basis of his conviction, dismissed him from services. It was held by this Court that conduct of the appellant in office premises where he came in a drunken condition and used abusive and threatening language against his superiors amounted to moral turpitude. 25. Appellant has referred to ‘Dr. Naresh Agarwal & Ors. Vs. State of Rajasthan’, 2001(7)SLR 131, to emphasize that offence under Section 323 IPC being not an offence of moral turpitude, his services could not be terminated. In the said case, petitioner was a student when certain disputes arose between the students‟ union during elections and some hot deliberations amongst the students took place, and it resulted into registration of an FIR under Section 323 IPC, which was compromised. However, petitioner was convicted under Section 147 IPC and was released under Probation of Offenders Act. He was selected to the post of Medical Officer on temporary adhoc basis. He was found suitable and was given appointment against regular vacancy. Subsequently, his services were terminated on the plea that on character verification it was RSA No.121/2001 Page 17 of 47 found that he had been released on probation. Under the circumstances, this judgment is of no help to the appellant for the simple reason that the offence under Sections 323/147 IPC was committed by the petitioner as a student and not after his appointment as Medical Officer. Petitioner had furnished the character certificate from the Principle relating to period of six months prior to filing of the application as per Rule 12 of Rajasthan Medical Health Services Rules, 1963. It was, under those circumstances, that it was held that no moral turpitude was involved. Pawan Kumar’s case (supra) was referred to and considered by the High Court of Rajasthan while allowing writ petition of the petitioner. 26. He has also referred to ‘Jamil Ahmed Qureshi Vs. Municipal Council katangi & Ors.’, 1991 Supp (I) SCC 302. It is not applicable to the facts and circumstances of the case as in the said case, under the Rules, if such a person was convicted of moral turpitude, his new, employment in the company was barred and the said Rule was held valid. Here, in this case, this Court is not concerned with the vires of Regulation 21(a) of CBSC. 27. Another judgment referred to by the appellant is RSA No.121/2001 Page 18 of 47 ‘Haryana State Cooperative Supply & Marketing Federation Ltd. Vs. N.K. Sharma & Anr., 1997 SCC (L&S) 1766, in which the Apex Court held that where termination of service of an employee convicted by the competent court for an offence involving moral turpitude, the removal from service was valid. Thus judgment rather goes against the appellant. In this case, the Rules provided for termination of the appellant convicted by the Additional Sessions Judge for an offence involving moral turpitude and he was accordingly dismissed from services. Similarly, ‘Allahabad Bank & Anr. Vs. Deepak Kumar Bhola’, 1997 (76) FLR 98, rather goes against the appellant. It was held that respondent had committed an offence involving moral turpitude and simply because ten years had elapsed was not sufficient to allow him to come back to the sensitive post. 28. To appreciate the question raised by the appellant in this appeal, whether respondent Bank could dismiss him from services without holding domestic enquiry merely on his being punished for an offence, it is necessary to look into CBSC. Chapter XI of the Code speaks of disciplinary action. Regulation 21 lays down in case of offences. So far as Regulation 21 is relevant, it reads:- RSA No.121/2001 Page 19 of 47 “21. PROCEDURE IN CASE OF OFFENCES. (1) For the purpose of this Regulation the expression “offence” shall mean any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law. (2) (a) If in the opinion of the General Manager, any employee of the Bank has committed an offence, unless the employee be otherwise prosecuted, the General Manager may either himself take steps to prosecute