IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 24066 of 2007(M) ---------------------------------- PETITIONER(S): ------------------ K.DEVADAS, CLERK/CASHER, UNION BANK OF INDIA, IDUKKI BRANCH (UNDER ORDER OF DISMISSAL), PARACKAL HOUSE, KALPATHY, P.O. PALAKKAD, NOW RESIDING AT UNNIBHAVAN,16/315 GARDER STREET, THURAKKAD, PALGHAT-1. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): -------------------- 1. THE GENERAL MANGER,(HRM) UNION BANK OF INDIA,CENTRAL OFFICE, NARIMAN POINT, MUMBAI (APPELLATE AUTHORITY CONSTITUED IN TERMS OF THE BIPARTITE SETTLEMENT, UNION BANK OF INDIA) 2. THE CHIEF MANAGER, DEPARTMENT OF PERSONNEL, NODAL REGIONAL OFFICE, ERNAKULAM, (DISCIPLINARY AUTHORITY CONSTITUED UNDER THE BIPARTITE SETTLEMENT). 3. UNION BANK OF INDIA, REPRESENTE BY CHAIRMAN AND MANAGING DIRECTOR, NARIMAN POINT, MUMBAI. BY ADV. SRI.A.S.P. KURUP, SC, UBI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ WP(C).No. 24066/2007(M) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SHOW CAUSE NOTICE DATED 03/07/2004. P2: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 23/07/2004. P3: COPY OF THE ORDER IN CRL.M.P.NO.2028/2004 IN CRL.A.NO.270/04. P4: COPY OF THE MEMORANDUM DATED 27/07/2004. P5: COPY OF THE REPRESENTATION DATED 07/08/2004. P6: COPY OF THE APPEAL FILED BY THE PETITIONER DATED 12/08/2004. P7: COPY OF THE ORDER DATED 08/11/2004. P8: COPY OF THE JUDGMENT DATED 05/10/2006 IN WPC.NO.34431/2004 P9: COPY OF THE ORDER ISSUED BY THE BANK DATED 09/04/2007. P10: COPY OF THE BIPARTITE SETTLEMENT IN RELATION TO THE DISCIPLINARY PROCEEDINGS. RESPONDENT'S EXHIBITS: R1A: COPY OF ORDER NO.CO.IRD.1233 DATED 21/02/2002 ISSUED BY THE APPELLATE AUTHORITY. R1B: COPY OF THE ORDER NO.ROT.PER.1151 DATED 31/05/2003. R1C: COPY OF JUDGMENT DATED 24/05/2004 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTOOR IN S.T.NO.3329/2001. R1D: COPY OF COMMUNICATION DATED 27/07/2004 FROM IDUKKI BRANCH TO NODAL REGIONAL OFFICE /TRUE COPY/ P.A. TO JUDGE SVS/ S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 24066 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2010 J U D G M E N T The petitioner, while working as a Clerk/Cashier in the service of the respondents, was directed to show cause why he should not be dismissed from service for having been convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a compensation of Rs.95,000/- in a proceedings of the Judicial First Class Magistrate's Court, Chittur under Section 138 of the Negotiable Instruments Act. The petitioner submitted an explanation. But not being satisfied with the same, the petitioner was dismissed from service. His appeal also did not meet with success. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: i) call for the entire records leading to the issuance of Exhibits-P4, P7 and P9 and to issue a writ of certiorari to quash the same; ii) declare that the conviction imposed on the petitioner for an offence under Section 138 of the Negotiable W.P.(C)No. 24066 of 2007 -2- Instruments Act will not constitute a gross misconduct entitling the respondents to dismiss the petitioner from service; iii) issue a writ of mandamus commanding and compelling the respondent to reinstate the petitioner to the service with all consequential benefits; 2. Exts.P4, P7 & P9 are the original and appellate proceedings of the Bank in the said matter. The contention of the petitioner is that, as per Ext.P10 Rules applicable to the employees of the Bank for having been convicted in a criminal case, an employee can be dismissed only if the offence for which he was convicted involves moral turpitude. According to the petitioner, an offence under Section 138 of the Negotiable Instruments Act does not involve moral turpitude as held by a Division Bench of this court in Saseendran Nair v. General Manager (1996 (2) KLT 482). Therefore according to the petitioner, the petitioner could not have been dismissed on the ground of conviction in a criminal case under Section 138 of the Negotiable Instruments Act is his contention. W.P.(C)No. 24066 of 2007 -3- 3. A counter affidavit has been filed on behalf of the respondents supporting the impugned action of the respondents. The counsel for the Bank would contend that, in Saseendran Nair's case (supra) the Division Bench has held in absolute terms that an offence under Section 138 will not involve moral turpitude under any circumstances. On the other hand the Division Bench only held that an offence under Section 138 will not normally involve moral turpitude. He would contend that, another Division Bench of this court has in M.A. Ibrahim Kannu v. State of Kerala and Anr. (I.L.R. 2006 (1) Kerala 311) has, after considering Saseendran Nair's case also, held that, an offence under Section 138 of the Act being an offence in the commercial practice cannot be taken as one involving moral turpitude in the absence of any other cogent materials to discern moral turpitude. Therefore according to him, once the employee is convicted of an offence under Section 138 of the Negotiable Instruments Act, although ordinarily the offence would not involve moral turpitude, if there are materials to W.P.(C)No. 24066 of 2007 -4- show that there is dishonesty on the part of the petitioner, moral turpitude can be inferred therefrom. In the petitioner's case, he would try to draw the inference of moral turpitude from the judgment of the criminal court convicting the petitioner which is produced as Ext.R1 (c) along with the counter affidavit as also prior conduct of the petitioner involving misconducts which proves the dishonest character of the petitioner. According to him, from that judgment it is clear that, the petitioner has taken a false defence before the court, which was not accepted by the court and therefore his state of mind is clear to the effect that he had a dishonest intention not to repay the amount covered by the cheque. From that circumstance he would want this court to countenance the action of the bank in dismissing the petitioner from service holding that his conviction under Section 138 of the Negotiable Instruments Act did involve moral turpitude. 4. I have considered the rival contentions in detail. W.P.(C)No. 24066 of 2007 -5- 5. Ext.P10 is the extract from the service rules applicable to the petitioner. The relevant provisions therein is as follows: “DISCIPLINARY ACTION AND PROCEDURE THEREFOR 1. A person against whom disciplinary action is proposed or likely to be taken shall in the first instance, be informed of the particulars of the charge against him and he shall have a proper opportunity to give his explanation as to such particulars. Final orders shall be passed after due consideration of all the relevant facts and circumstances. With this object in view, the following shall apply. 2. By the expression “offence” shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law. (a) When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted, and in such a case he may also be suspended. (b) If he be convicted, he may be dismissed with effect from the date of his conviction or be given any lesser form of punishment as mentioned in Clause 6 below.” x x x x x x x x x x x x x x x x (underlining supplied) From the same it is evident that a dismissal for conviction in a criminal case can be only if that conviction is for an offence involving moral turpitude. Therefore without a finding that the conviction of the petitioner was for an W.P.(C)No. 24066 of 2007 -6- offence involving moral turpitude the petitioner cannot be dismissed from service. Ext.P4 is the order of the bank dismissing the petitioner. It does not state as to whether the the action of the petitioner leading to his conviction under Section 138 of the Negotiable Instruments Act involved moral turpitude. It merely says that, since he has been convicted for a criminal offence he has been dismissed from service. The reasoning in Exts.P7 and P9 also do not reveal that there is a finding to the effect that the petitioner was convicted for an offence involving moral turpitude. 6. Of course, the learned counsel for the bank would refer me to paragraph 24 of Ext.P9 order in appeal wherein several earlier misconducts of the petitioner has been quoted which according to the counsel would go to support the contention of the bank that his conviction is one involving moral turpitude. I am not satisfied that the past conduct of the petitioner would spell out moral turpitude in a subsequent conviction under Section 138 of the Negotiable Instruments Act. W.P.(C)No. 24066 of 2007 -7- 7. In view of the fact that, the service rules permit dismissal on conviction for a criminal offence only if that offence for which he was convicted involves moral turpitude. The decisions in Saseendran Nair's case and Ibrahim Kannu's case (supra) would show that ordinarily an offence under Section 138 of the Negotiable Instruments Act would not involve moral turpitude in the absence of any other cogent materials to discern moral turpitude. Therefore the normal rule is that, the offence under Section 138 of the Negotiable Instruments Act does not involve moral turpitude. If a person alleges that an offence under Section 138 involves moral turpitude, it is for him to prove with cogent materials that the offence involves moral turpitude. Therefore in this case it is for the bank to prove that the petitioner's conviction under Section 138 of the Negotiable Instruments Act involves moral turpitude. Apart from the judgment of the criminal court, the bank has no other materials in support of their contention that the conviction of the petitioner is for an offence involving moral W.P.(C)No. 24066 of 2007 -8- turpitude. The fact that the petitioner took a defence in the criminal case which was rejected does not ipso facto leads to an inference of moral turpitude insofar as he is not being tried for that defence but being tried for an act constituting an offence under Section 138 by issuing a cheque without sufficient funds in his account and not paying the amount covered by cheque to the creditor despite receipt of notice as provided under the Act. Therefore, the respondents have not been able to show any circumstances which would enable me to draw the conclusion that, the petitioner was convicted for an offence involving moral turpitude. Therefore the impugned orders are quashed. But I am not inclined to give the petitioner full back wages insofar as I find that the petitioner has been consistently being hold up for misconducts as is clear from paragraphs 24 of Ext.P9 order which reads thus: “24. The perusal of past record reveals that Shri K. Devdas had joined Bank's services as peon on 07.07.1973 was promoted subsequently as Clerk/Cashier and in October 1988 was given the designation of Head Cashier Cat. 'C'. In terms of memorandum no.ROK/PER/3129 dated 24.01.2001 punishment of “Censure” was imposed on Shri. K. Devdas by Regional W.P.(C)No. 24066 of 2007 -9- Office, Kozhikode for issuing cheques without sufficient funds. Shri. K. Devdas was suspended from the services of the Bank by Nodal Regional Office, Ernakulam vide Order no.NRO/E/PER/521/01 dated 24.05.2001 when cash shortage of Rs.38,000/- was found on 29.03.2001 at Hemambika Nagar Branch. While working as Head Cashier Cat. 'C' at Hemambika branch, pursuant to the chargesheet no.CO:IRD:AS:MISC:201 dated 21.06.2001 enquiry was held against him and by an order dated 29.10.2001 punishment of compulsory retirement was imposed on Shri. K. Devdas. However, in appeal, the Appellate Authority has reduced the punishment of compulsory retirement to that of punishment of withdrawal of the special allowance of Head Cashier Cat. 'C' in February 2002. Also punishment of reduction by one stage in time scale of pay without cumulative effect was imposed on him vide Order no.ROT/PER/1151 dated 31.05.2004 for the misconduct of incurring excessive debts.” Further the Supreme Court has of late consistently held that backwages on reinstatement is not automatic, but depends on the facts and circumstances of each case. I am satisfied that this is a fit case where the petitioner can be denied backwages in full. Accordingly the petitioner shall be reinstated in service forthwith but without backwages. However, the period during which the petitioner was kept out of service shall count for all other service benefits except backwages. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/