* THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO AND THE HON’BLE SRI JUSTICE K.G. SHANKAR + WRIT PETITION NO.32588 OF 2010 % 18.02.2011 # The State of A.P., rep. By its Prl.Secy, Transport , Roads & Buildings (Transport) Department, Secretariat, Hyderabad and another. .....Petitioners Vs. $ 1. I. Raghu Babu and another. .....Respondents ! Counsel for the petitioners: G.P. for Services-II ^ Counsel for the Respondents: Sri M.P.Chandramouli for caveator (R-1) <GIST: > HEAD NOTE: ? Cases referred 1.(1996) 4 SCC 17 2. AIR 1995 SC 1364 3. AIR 1966 SC 671 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.NO.32588 OF 2010 And W.V.M.P.No.02 of 2011 ORDER: (Per the Hon'ble Sri Justice Nooty Ramamohana Rao) This writ petition is taken up for final disposal with the consent of the learned Government Pleader for Services –II as well as Sri M.P.Chandramouli, learned counsel for the 1st respondent employee. The 1st respondent while working as a Senior Assistant in the Office of the Regional Transport Officer, Anakapalle, Visakhapatnam District, has been trapped successfully by the Anti Corruption Bureau (henceforth for brevity referred to as ‘the ACB’) on 09-04-1998, while accepting illegal gratification of Rs.4,000/- from an agent, hence, the 1st respondent has been charge-sheeted in C.C.No.18 of 1999, on the file of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam. The learned Sessions Judge after a full- fledged trial convicted the 1st respondent by his judgment dated 21-02-2006 and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.4,000/-, in default of payment of which amount, the 1st respondent was ordered to suffer simple imprisonment for three months. The 1st respondent has preferred Criminal Appeal No.278 of 2006 before this Court and entertaining Criminal M.P.No.298 of 2006 in the said Appeal, this Court passed an order suspending the sentence of imprisonment imposed on the 1st respondent on his executing a bond for Rs.10,000/- with two sureties for the like sum. The said criminal appeal is still pending. In view of his conviction for an offence involving moral turpitude, a show-cause notice was issued on 30-06- 2007, proposing to dismiss him from service. Aggrieved by the said show-cause notice, the 1st respondent has approached the Andhra Pradesh Administrative Tribunal (for short ‘the Tribunal’) and instituted O.A.No.4503 of 2007. Entertaining the said O.A., the Tribunal by it’s orders dated 24-08-2007 injuncted the respondents therein not to issue any further orders pursuant to the impugned show-cause notice dated 30-06-2007 and directed the O.A., itself to be posted for orders after four weeks, so that, in the mean time, the respondents can file their counter affidavit. It is averred that a detailed counter affidavit has been filed before the Tribunal on 02-11-2007 requesting the Tribunal to vacate the interim orders passed by it on 24-08-2007, but no orders have been passed so far. Hence, the present writ petitioner has been filed. Entertaining the writ petition, this Court passed an interlocutory order granting interim suspension of the order passed by the Tribunal on 24-08-2007, hence, the 1st respondent has moved vacate application W.V.M.P.No.02 of 2011. We have heard the learned Government Pleader for Services – II and Sri M.P. Chandramouli, learned counsel for the 1st respondent. The learned Government Pleader would contend that the State Government is entitled to take into consideration the conviction handed down to the 1st respondent employee for an offence involving moral turpitude after a full-fledged trial by the learned Sessions Judge and hence, the State Government has exercised the power available to it under Rule-25 of the A.P. Civil Services (Classification, Control & Appeal) Rules, 1991, (henceforth referred to as ‘the CCA Rules’) and issued him a show-cause notice proposing to impose the punishment of dismissal. The State Government has absolute competence to initiate action in terms of Rule-25 of the CCA Rules and hence, the Tribunal has committed gross error of jurisdiction in entertaining O.A.No.4503 of 2007 instituted by the 1st respondent employee herein and, above all, without assigning any reasons, whatsoever, has injuncted the State Government from passing any further orders pursuant to the show-cause notice dated 30-06-2007. Therefore, the learned Government Pleader would contend that the Tribunal has exceeded its jurisdictional limits in passing the order dated 24-08-2007. It is further contended by the learned Government Pleader that every government servant is liable to maintain good conduct through out his tenure of employment and even beyond thereafter. If a government servant has been convicted of a criminal charge, the conduct of such an employee is bound to be taken into account and consideration and the State Government can invoke the power available to it under Rule-25 of the CCA Rules. Since no employee should be condemned unheard, the show-cause notice was drawn and issued to the 1st respondent herein on 30-06-2007. So long as the conviction of an offence involving moral turpitude is staring at the 1st respondent, he cannot make any grievance out of the exercise carried out by the State Government, hence, the learned Government Pleader would submit that the orders passed by the Tribunal, ex facie, are illegal. Per contra, Sri M.P. Chandramouli, the learned counsel for the 1st respondent would contend that the 1st respondent has been falsely implicated and that is the reason why the criminal appeal has been entertained by this Court and that the criminal appeal itself is likely to be taken up for hearing very shortly and the 1st respondent employee has fair chances of success in the said criminal appeal. Therefore, the State Government, without properly applying its mind to the relevant facts, has mechanically issued the show-cause notice on 30- 06-2007 and since, the State Government has not applied its mind properly, to prevent miscarriage of justice, the Tribunal has entertained the O.A., instituted by the 1st respondent herein. The learned counsel for the 1st respondent would further contend that if the State Government is permitted or allowed to proceed further in the matter, nothing remains in the O.A., for the Tribunal to consider the issue later on. Therefore, the learned counsel would submit that the interim order passed by the Tribunal is perfectly valid and legitimate. The learned counsel would further submit that more than three years after the interim order has been passed by the Tribunal, the State Government has instituted this writ petition and what has not been found objectionable for the past, over three years, could not have become objectionable overnight. The basic fact, which is beyond any pale of doubt, is that the 1st respondent employee has been convicted by the competent criminal court for an offence committed by him under the Prevention of Corruption Act. It is also hardly in doubt that an offence under the Prevention of Corruption Act, involves moral turpitude. The Supreme Court in PAWAN KUMAR v. STATE OF HARYANA[1] has pointed out the following: “ "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.” One of the important tests evolved in the said judgment for deciding as to whether a particular offence involves moral turpitude or not is to find out as to whether the act committed by the individual leading to his conviction was such as it could shock the moral conscience of the society in general or not. Every civil servant holds his office during the pleasure of the President or the Governor of the State, as the case may be. Thus, a sense of security of tenure has been encapsuled around the employment of a civil servant. They are paid wages properly commensurate to the nature of duties and responsibilities discharged by them. Every civil servant also earns, as a matter of course, a hike in his emoluments every year by way of sanction of an increment, unless the same is withheld as a measure of punishment. The pay structure and allowances of every civil servant also get revised upwardly to neutralize the inflationary trends. Most importantly, every civil servant occupies a status of his own and the attached honour of serving the State. When his basic and essential requirements are adequately taken care of by the State, there is nothing improper for the State, expecting, in return, integrity in absolute terms from him. Therefore, the State does not expect its civil servants to resort to unethical practices of getting privately gratified for performing their official acts and duties. Any such conduct of suspect integrity on the part of a civil servant coupled with acceptance of illegal gratification is bound to have a spillover on the morale of the society at large. Above all, such acts on the part of civil servants will have a dent and corrosive effect on the credibility of the institutional mechanism of governance of the State. Therefore, a civil servant, who has been found guilty by a competent criminal court to have committed an offence punishable under the Prevention of Corruption Act is liable to be treated to have committed an office involving moral turpitude and he cannot be retained in public service any longer. The State is not expected and required to wait for the outcome of an Appeal or a Revision preferred against any such conviction. It is, therefore, totally incompatible for the State to retain men convicted for offences involving moral turpitude in its rank and file. In fact, the Supreme Court in so many words has pointed out the said principle in its judgment rendered in DEPUTY DIRECTOR OF COLLEGIATE EDUCATION (ADMINISTRATION) v. S. NAGOOR MEERA[2], which is 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, it may not be advisable to retain such person in service. As stated above , if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice. Notwithstanding the base conduct exhibited by the 1st respondent, which led to his conviction, the State is required to provide him an opportunity of hearing as a part of its scheme of adherence to the time-honoured values of natural justice. Hence, it issued the show- cause notice dated 30-06-2007. In fact, Rule 25 of the CCA Rules, does contemplate exercise of power for dismissing from service such civil servants, who have been convicted for offences involving moral turpitude. Therefore, the show-cause notice dated 30-06-2007 is a perfectly legitimate-exercise indulged in by the State and no exception can be drawn thereto. However, the Tribunal has entertained the O.A., instituted by the 1st respondent herein against a show- cause notice. We have the benefit of going through the pleadings setup by the 1st respondent before the Tribunal in O.A.No.4503 of 2007. It was not even remotely suggested that the State Government lacks power or competence to issue the impugned show-cause notice to him. Therefore, there was no cause of action that arose for the Tribunal to entertain O.A.No.4503 of 2007 at all. Without any proper cause of action, the 1st respondent could not have initiated legal proceedings before the Tribunal. It is, therefore, a speculative case filed by the 1st respondent so that he can continue in service without any demur till the criminal appeal is decided by this Court. Let us have a look at Section 19 of the Administrative Tribunals Act, 1985, to ascertain the jurisdictional limits of the Tribunal, created thereunder. It makes it clear that “ a person aggrieved by any order” pertaining to any matter within the jurisdiction of the Tribunal, as conferred by Section 15 of the said Act, can make an application to the Tribunal for redressal of such a grievance. Unless a person is aggrieved, he could not have approached the Tribunal invoking its jurisdiction. A show-cause notice could not have accorded any cause of action for the 1st respondent employee to have approached the Tribunal so long as it is issued by a competent person. Cause of action is varyingly defined and, at any rate, the bundle of facts leading up to a determinative order of the rights of the parties, is essentially needed. In the instant case, no such order has emanated as yet. Entertaining the O.A., by the Tribunal and passing an order of injunction against the State has resulted in miscarriage of justice. The State, which is otherwise legitimately entitled to take into account and consideration the conduct that led to conviction of an offence involving moral turpitude committed by the 1st respondent, has been successfully stalled from doing so. The Tribunal ought to have applied its mind carefully before mechanically passing an order of injunction restraining the State from proceeding further in the matter. Further, the Tribunal has not made any assessment with the regard to the balance of convenience before passing an order of injunction. The order passed by the Tribunal is bereft of reasons. Reasons reflect the area of application of mind. Every Tribunal, vested with administrative or quasi-judicial or judicial functions, has to necessarily assign reasons for its conclusions. Long years ago, Chief Justice Koka Subba Rao, while emphasizing the necessity to set out reasons by any Administrative Tribunal, which has been entrusted with the task of deciding a lis, has said this in MADHYA PRADESH INDUSTRIES v. UNION OF INDIA[3]: “Our Constitution posits a welfare State, it is not defined, but its incidents are found in Chapters III and IV thereof, i.e., the Parts embodying fundamental rights and directive principles of State Policy respectively. “Welfare State” as conceived by our Constitution is a State where there is prosperity, equality, freedoms and social justice. In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necessary concomitants of a Welfare State. But arbitrariness in their functioning destroys the concept of a welfare State itself. Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the tribunals within bounds. A reasoned order is a desirable condition of judicial disposal.” Though the learned counsel for the 1st respondent is right in pointing out that the State Government has taken more than three years to call in question the orders passed by the Tribunal on 24-08-2007 and urged that a writ petition should not have been entertained against an interlocutory order passed by the Tribunal, but nonetheless, to prevent further miscarriage of justice, this Court has exercised the power of its judicial review. Orders of the nature, passed by the Tribunal, if are allowed to remain unchallenged, the State will become the victim for having an employee with a proven misdemeanor to continue in its ranks. We find enough justification behind the State moving this Court because the Tribunal has made no attempt to vacate the interim order passed by it as well as dispose off the O.A., instituted by the 1st respondent herein promptly. Since, we have noticed that the State Tribunal has exceeded its jurisdictional limits in entertaining this O.A., no useful purpose would be served by our directing the State Tribunal to pass final orders in the said O.A. Hence, we dismiss O.A.No.4503 of 2007 as not maintainable. We direct the Tribunal to record that the O.A.No.4503 of 2007 stands dismissed. For the foregoing reasons, the writ petition stands allowed and the W.V.M.P.No.02 of 2011 stands dismissed. No costs. --------------------------------- Nooty Ramamohana Rao, J --------------------- K.G.Shankar, J Note: LR copy to be marked. (bo) mrk February 2011 [1] (1996) 4 SCC 17 [2] AIR 1995 SC 1364 [3] AIR 1966 SC 671