^^—Y-^^^^ <^ i-(XJi crlt^ f^f^tf^djL^ ?fd~Th<^ '^ BEFORE THE HON'BLE HIGH COURT OF CHHATISGARH AT BILASPUR W.P.NO. 830/2004. PETmONER. 1.SHRIRAMMISHRA, S/0 SUDARSAN MISHRA. XEROX OPERATOR, OFFICE OF THE CHIEF GENERAL MANAGER, BHATGAON AREA, / SOUTH EASTERN COALFIELDS LIMITED, SURGUJA (C.G.) 2. GYANESHWAR MISHRA, S/0 SHRI RAM MISHRA, STENO TfPIST, OFFICE OF CHIEF GENERAL MANAGER, BHATGAONAREA, SOUTH EASTERN COALFIELDS LTD., SURGUJA (C.G.) VERSUS RESPONDENTS. 1. CHIEF GENERAL MANAGER BHATGAON AREA,A SOUTH EASTERN COALFIELDS LIOMITED, SURGUJA (C.G.) 2. GENERAL MANAGER, REGD. OFFICE, SEEPAT ROAD, P.B. N0. 60, S.E.C.L. BILASPUR (C.G.) ^ k° WRIT PET1TION UNDER ARTICLES 226 AND 227 QF THE CQNSTITUTIQN OF INDIA FOR THE ISSUANCE OF WRITS IN THE NATURE OF MANDAMUS, CERTIQRARI AND OR QRDERS (S) AND/OR DIRECTtON fS) IN THE NATURE OF WRITS. HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 830 of 2004 PetitioBers Shri Rem Misbra and enother Versiis Respoiidente Chief Genei-al Manager and anotber £<~^ Post for order on 1 September, 2006 Sd/- Satish K. Agnihotri Judge /2 ^7 HIGH COURTOF CHHATTISGARH ATBILASPUR Writ Petition No. 830 of 2004 Petitioners Shri Rain Mishra and another Versus Respondents Chief General Mauager aiid aiiotlier SB: Honl3le Mr. Justice Satish K. Agnihotei, J Shri K. R. Nair, Advocate for fhe petitioners. Shri P. S. Koshy, Advocate for the respondeuts. ORDRR ( /-$ September, 2006) The followmg order of the Court was passed by Satish K. fcri, J. 1. The petitioners, being aggrieved by the orrier dated 31.3.2004 (Annexure R/3 aiid R/3-A), pessed by the Chief Genei'el Manager, BhatgaoD Area, South Eastei'n Coalfields Limited (8ECL), whereby the petitioners were removecl fiDni service w.e.f, 1.4.2004, have filed this petifioa impugning the said orders and seekiiig quashing offl-ie charge-sheets <lated 20.12.2003 and 10.12.2003 (Annexiire P/l and P/2). 2. The siiaterial facts, leadiiig the ffling of this petition ynay shortly be steted ss follows. The petitioners were coiivicted for oflfences punisheble iinder Sections 304-B read with 34 and 201 of the Indian Peiial Code for having comniitted the dowiy deafh of dlaiighter-in-law of the petitioner No. 1 and have been sentenced fo iindergo rigorous miprisonment for 7 years and n'gorous imprisonme.at for two years with payment offine ofRs. 500/-, m defaiilt of payment of fine amount three montihs simple imprisonmejnt, each, respectivety, vide judgment dated 7.11.2003 'z^s^ passed by fhe 3rd Additional Sessions Judge, Soorajpur, District- Surgiija (F.T.C.) in Sessions Trial No. 393/2001. The appeal ffled thereon, being Criminal Appeal No. 203/2003, is pendmg consideration before this Coiirt, where.in tbe seTiteDces imiposed upon the petitioners have been siispended vide order dated 13.11.2003 (Annexurc P/1 1). 3. According to learoed connsel for the petitioners, the petitioners mede an application to the respondents/Coalfields Liiaited for peniiitting them to join their dnties, No order, according to fhe petitioners, was passed on the said application. The charge- sheets dated 20.12.2003 and 10.12.2003 were issued to the petitioners to the effect that their conviction in the criminal Cozirt aiiiouiits to miscondiict and they were called iipon to subiiiit their explaiiation to the charges, as to wliy they shoiild not be 1'einoved froin ser^ice ? The petitioners submitted their reply dated 7.4.2004 (Annexure P/5 and P/6), separately, admittmg thst fbe petitionei's have been convicted aiid sentenced by the trial court, the appeal against the jiidgxneDt passed by the tiial court is pending and tlie sentences imposed upon tlTieni have been siispended^ as stated ebove. Tt was fiirther stated that as per claiise 26.8 of the Standing Orders, the convictioii does not involve moi^l tui-pitiide. It is siibmitted that proper enqiiiry be held before taking any action against them. 4. After having considered their explanation, the show caiise notice dated 4/5.2.2004 (Annexiire R/1 and Annexiire R/l-A) were i^siied to the petitioDere, seeking tbeir explauation as to \vhy flie petitionei'8 be not renioved fix>m serurice as the conViction iiwolves moral tiii'pifiide. The reply (Annexiin3 R/2 and ABnexiire R/2-A) to the show caiise wes ffled by the petitionei's. It appears, having (i.-s^ ^- considered the rep1y filed by the pefitioners, the respoDdents/ Coalfields Ltd. passed the orrler of termmetion dated 31.3.2004 (Annexiire R/3 and R/3-A). 5, The ?nain qiiestion oflaw, involved in the presenf case is, as to whether the conviction for an ofFence piinishable under SectioD 304-B/34 and 201 ofthe I.P.C. involve moral tui-pitude ? Moral turpitude is clefined ia 'Advaaced Law Lexicon 3rd Edition", (page 3068), the relevsnt portion ofwhich is 3'eprodiiced herein below; <eMoral iijirpilude. Anyihing done con<ra?'y to jusiioe, hanesty, prin^ple, or good m.orals; an act of hajsefzess, znleness, or djepravity in ihe private and social duiies lifhich a main ozues to his fellorp man or to ^oc^ety in general, contrary io ihe ajowpfed and cf^tomaty f^le of right and duty hetween man andman. (Ame.Cya) 7. Condtj^. ihai is c^ntrary tojfisiic^ honesty^ or Tnorality. In the: area of legal eihics, offenses itwahnng ^nordl tufpitude" sucff. as frazid or breach of In^jsMrcfditionally mnke a person un^i to praciice law.-Also termed mjoral deprawty. 2. Miliiary laif}. Any concSuci for zffhich the applic^iMe pzjsnishnieni. is a dmhonorable dliscSifarge or cf>nftnement not less ihan one year. (Black, 7th Edn., 1999). <{Moral turpi^de means, in general, shamefizl zmckedness'so exirem^ a departfire from ordinwy stand(zrds afhonesi, good morafe^ J?^s<?'c^ or ethics as 1o he shocJking to the moral sense qf the community. li ha^ also heen defitwd as an aci of haseness, inleness, or depraznty in the priifaie and sodal duiies iDhich one person owes to anoiher, or io soaeiy in genjeral, confrary io ihe aoop.pied mzd a^stomafy n^le ofright and duty hefiveen people^ SO Am. Jur. 3d Lihel and Slander, S.165, ai4S4 (1995)9 and secondly as to whether the enqiiiry es contemplated iinder cleuse 28.1 of the Standing Orders is uecessaTy to establish whether the said conviction involved xnoral turpitiide or uot ? Gaf6v' 6, I have heairl Shri K. R, Nair, leanied coiinsel for the petitionei^ and Shri P. 8. Koshy, leamed coiiBsel for the respoiidents aod penised tbe dociinients appersded to the petition and also to the retiim. It is adixsitted that tJ^e petitioners were convicted for the offences punishable iinder Secfions 304-B read with 34 and 20 1 offhe Inclian Pena! Cocle for having coniinitted dowiy death of the daiigbter-in--1aw of the petitioner No.l and they have been senteDced to iindergo rigoi'oiis imprisoniiient for seven yeai's and iwa yeai^ with fine. Moi-al turpitude as defined is a condiict which is contrary to justice, hoiiesty or inorality or ethics as to shocking to the moral coiiscience of the coniniunity. The offences committed hy tiiie petitioners iiivolve moral tiii-pitiade, as it is not oiily contrary to jiistice, honesly or iBoi'ality biit it sbocks to the DiorRl conscience of the coiBmiinity. 7. Claiise 27 ofthe Q?rtifsed StRDding OiTlers provides for pei^alfies for misconcliiict. Claiise 28 provide^ for procediire for imposition of peiialty. Under claiise 28, 1 if RB eniployee is charged with a nKJscoBduct he shall be infonBed in wntitig of the aUegations against him by the competeiit aiifhority arsd shall be given aii opportunily to siibiiiit his explenation in writing within a period of not less than fhrce days, On i-eceipt of a worknian^ explanation when allegations are denied by hmi, an enqiiiry shall be held, nomially by an Officer or Ofiicers of the company appomted hy the nianagement. At the euquiiy, the workraaii concei'Ded shell be afforded reasonable opportuDily of defending hiiTiself Tbe worknien co3iiceiTied shall be entitled to be i^epresentecl or assisted by a co-worker or ofdce bearer of a trade iiBion ofwhich he is a Biember, ifso requested by hJB3 diuiDg the enqiiiiy. —— (-29/) 5-- 8. The acte of miscondiict are defined iu clause 26. Claiise 26 provides for Acts of Misconduct, Under clause 26.3 ^conviction iu any coiul of law for aiiy crisiiiiial offence involviiig moi-al tii3'pitiide? coiiies within the definitioil of miscondiict, The cosiviction of this natiire wherein the offence is agaiiist jtistice aiid morelity and shocks to the moral conscience of the comsiuinily, the ofFence involves moral ttirpituclc. In tlie case of VSe @f Haryasia asad a^iother1 in para 12 it is obsei-ved that "Moral tui'pitiide" is aii expressioii which is used in legal as also sociefal parlance to describe coxidiict which is iiiliereDtly bese, vi1e, depraved or haviiig aiiy coii33ection showing depravity. 9. Whether the eiiiqiiiry before iniposing punishnient of i^nioval of ses-vice is siecessasy io the facts ofthe case, where the convictioii of the petitioners for the ofFeTices piii^ishable iinder Sections 304- B read with 34 and 201 oftlie TndiaB PenRl Code have been held OT3 the basis of fiill trial by the crixainal Court. The enciuiiy, as provided uiider claiise 28.1 inay be a mere foniiality. In Second proviso to Article 31 1 of the Constitution of India it is provided thaf no eiiqTiiiy is uecessaiy where a person is dismissed or renioved or reduced in rank on the ground of a condiict which had led to his convictioD on a criminal charge. 10. In tbe preseiit case tbe petitioners were given show caiise notice eiid the petitioners bave filed their explaDation/repty to the show cause notice, the einployer efter heving considered the reply of the petifioner, passed tiie order of renioval froni service and as siich, DO eiiquiiy iinder claiise 28.1 of the C^rtified Standing Ord.ers is iiecessaiy. ? 6 '27^ ll.The Supreme Ck>m't m the case of Vtveka Na^d Sethi Vs. Chairmass, J & K Basik Ltd. asid others2, m para 22 has observed as iinder:- ^22. ne princlple of ^atura) jiAstic^^ ii is trite, is nx? un^zily h^rse. Whjen facts are a^nitted^ an encpMry ivauld he an empty fotmnlity Ez^en ihe prindple af estoppel unlt apply. {See Ginjeeawn Garewal (Dr) v. Dr. Surniti'a Dcish3} Tlze prindiples of natiAral ji^stic^ are required to be complied imih having regard to ihe fact sitfiafion ohtaining therein. It cannot he put in a sfraiijackei fofmula. It e^innot be applied m a r^aaAum without referenc^ io the relevant facsf^ and circumstanf^s of ihe case, (See State of Pfzyyah ?A Jagir Singh4 and Kamaiaka SRTC v. S.G. Kotttirappa5.)9 12, As a 1'esult and for the reasons aforeinentioned, this petitAon is dismissed. No order as to costs. Sd/- Satish K. Agnihotri Judge {(1996) 4 S.CC. 171) {(2005) 5 SCC 3372) Thakur