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SCA/13370/2010 25/ 25 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13370 of 2010
=====================================
BALVANTBHAI
VADAJI CHAUHAN - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s)
=====================================
Appearance
:
MR KG PANDIT for Petitioner(s)
: 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
None for
Respondent(s) : 2 - 4.
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 19/10/2010
ORAL
ORDER
1.0 Petitioner
is before this Court praying that:
“9(A) That
Your Lordships be pleased to admit this petition by passing suitable
directions in form of mandamus and/or certiorari and/or in the nature
of any order upon respondents more particularly respondent no. 2 (The
Deputy Secretary, Panchayat Gram Gruh Nirman & Gram Vikas Vibhag)
and no. 4 (The Deputy Secretary, Gujarat Gram Seva Satta Pasandgi
Mandal – GPSC) herein above to permit the petitioner to resume
duties, pursuant to the orders at Annexure ‘C’ issued by respondent
no. 2 dated 6.10.2009 for the post of Junior Clerk Grade-III, on any
suitable terms and conditions, which may be deemed fit, just and
proper to this Hon’ble Court and in the interest of justice, equity
and fair play and in view of the decision rendered by the Division
Bench of Hon’ble Delhi High Court and for which
the daily newspaper report have been annexed to this petition at
Annexure ‘H’.”
1.1
It will be necessary in this case to refer to the relief prayed as
interim relief in this petition, which reads as under:
“9(B) Pending
hearing and final disposal of this petition, Your Lordships be
pleased to pass suitable directions upon respondent no. 2 and/or no.
4 herein above by restraining them and/or their servants, agents,
etc., the petitioner to resume duty, pursuant to the orders at
Annexure ‘C’ dated 6.10.2009 in Junior Clerk Grade – III for
the post in which he has been eligible after due verification by
respondents herein above, on any suitable terms and conditions which
may be deemed fit, just and proper to this Hon’ble Court and in view
of the decision rendered by the Division Bench
of Hon’ble Delhi High Court and for which the daily newspaper report
have been annexed to this petition at Annexure ‘H’.”
1.2 The
petitioner has also prayed for following interim relief:
“9(C) Pending
hearing and final disposal of this petition, Your Lordships further
be pleased to pass suitable directions upon the respondents to permit
the petitioner to resume his duties in Junior Clerk Grade – III
pursuant to the order at Annexure ‘C’ dated 6.10.2009 on condition of
final outcome and/or judgment which may be delivered by this Hon’ble
Court in Criminal Appeal No. 442/2009 (sic. 442/2003) subjudice
before this Hon’ble Court, on any suitable terms and conditions which
may be deemed fit, just and proper to this Hon’ble Court and in view
of the decision rendered by the Division Bench of Hon’ble Delhi High
Court annexed to this petition at Annexure ‘I’.”
2.0 The
learned advocate for the petitioner invited attention of the Court to
the following facts:
2.1 That
the petitioner had approached this Court by filing Special Civil
Application No. 701 of 2009, which came to be heard and disposed of
by this Court (Coram: Honourable Mr. Justice MR Shah) by judgment and
order dated 9th March 2009. The learned advocate for the
petitioner invited attention of the Court to the operative part of
the order, which reads as under:
“For
the reasons stated above, petition succeeds. The impugned order
dated 15.12.2008 rejecting the application for appointment on
compassionate ground is quashed and set aside and
concerned respondents are directed to reconsider the case of the
petitioner for appointment on compassionate ground and pass
appropriate order within 2 (two) months from the date of receipt of
copy of this order.”
3.0 The
learned advocate for the petitioner then invited attention of the
Court to an order passed by the Division Bench of this Court in Misc.
Civil Application No. 1924 of 2003 in Special Civil Application No.
701 of 2009, which was filed because the authorities did not comply
with the directions issued by the learned Single Judge of this Court
(supra). The learned advocate for the petitioner submitted
that the authorities came forward with an affidavit in reply, which
is referred to in the judgment and order of the Division Bench dated
2nd February 2010, a copy of which is produced at Annexure
‘D’ to this petition, relevant part of which reads as under:
“Respondent
No. 2 and 3 have filed affidavit in reply along with a
communication dated 7.10.2009 whereunder the petitioner is ordered to
be given an appointment on ad-hoc basis on the fixed pay of
Rs.2,500/-, subject to certain conditions enumerated in the order.”
3.1 The
Court was pleased to discharge the Notice with no costs.
4.0 The
learned advocate for the petitioner then invited attention of the
Court to Annexure ‘C’, order dated 6th October 2009,
Annexure ‘C-1’ – communication dated 8th October
2009 and then submitted that there is conviction recorded against the
petitioner in a Sessions Case No. 97 of 2002 by
judgment and order dated 7th April 2003 by the learned
Fast Track Court Judge, Modasa. So far as the petitioner is
concerned, he is accused no. 4 in the said Sessions Case and for an
offence punishable under Sec. 186 of the Indian Penal Code, the
petitioner is awarded ‘ 03 months’ Rigorous Imprisonment’ and
‘Rs.500/- Fine’ and in default ‘ 01
month’s Rigorous Imprisonment’ and under Sec.
135(3) of the Bombay Police Act, Fine of Rs.100/- and in default, 10
day’s Simple Imprisonment. (emphasis
supplied)
4.1 The
learned advocate for the petitioner submitted that the petitioner has
paid the fine. This fact is set out on the last page of the judgment
and order of the learned Fast Track Court Judge.
4.2 The
learned advocate for the petitioner submitted that against that
conviction, a Criminal Appeal is preferred before this Court being
Criminal Appeal No. 442 of 2003 and this Court (Coram: Honourable Mr.
Justice Sharad D. Dave, as he then was) admitted the same. The
learned advocate for the petitioner has produced a copy of the order
passed by this Court (Coram: Honourable Mr. Justice Sharad D. Dave,
as he then was) in Criminal Misc. Application No. 2734 of 2003 in
Criminal Appeal No. 442 of 2003. the order passed on 25th
April 2003 reads as under:
“1. Rule. Mr. A.J. Desai, learned APP waives service of rule for the respondent – State.
2. The petitioners have already been released on bail by the trial Court. The petitioners have (sic. are) convicted for offences punishable under Sections 186 of the Indian Penal Code and Section 135 of the Bombay Police Act and are sentenced to undergo simple imprisonment of three months (sic. order imposes ‘Rigorous Imprisonment’) and to pay a fine of Rs.500/- and in default of fine to undergo further simple imprisonment (sic. Rigorous Imprisonment) of one month by the learned Additional Sessions & Fast Track Judge, Modasa, by his judgment and order dated 07.04.2003 passed in Sessions Case No.97 of 2002.
3. In view of the above, same bail and fresh bonds for the petitioners. Rule is made absolute. D.S. permitted.”
4.3 The
learned advocate for the petitioner submitted that, ‘the actual
effect of the admission of appeal and granting same bail and fresh
bonds is that the conviction and sentence stands suspended and
therefore, the case of the petitioner should be considered for giving
appointment to the post of Junior Clerk Grade III’.
4.4 On
this submission being made, the learned advocate for the petitioner
was requested to show the law that in absence of a specific order of
suspending the conviction, how it can be construed that the
conviction is suspended, the learned advocate for the petitioner
deemed it proper to leave this argument at that stage and did not
pursue it further.
5.0 The
learned advocate for the petitioner then invited attention of the
Court to the Division Bench judgment of the High Court of Delhi in
the matter of Writ Petition (C) No. 2068 of 2010 dated 25th
August 2010 and practically read the whole of the judgment with a
view to see that the Court is convinced to follow a same course of
action. The learned advocate for the petitioner relied upon the
following Paras of the judgment, which are reproduced for ready
perusal:
“20.
It is unfortunate that in India we are not marching ahead in the
comity of nations and prefer to be governed by the recruitment
processes which are a legacy of the British era; ignoring that the
purpose of governance then was to rule and the purpose of governance
now is to serve.
21.
We have prefaced our decision with the statement whether pendency of
a criminal proceeding or for that matter a conviction by a competent
court of law may justify eyebrows to be raised, but would it justify
the shutting of one‟s eye?
22.
Now, a man can be booked for the offence of over-speeding and perhaps
may be convicted for parking his motor vehicle in a non-parking area.
Would this man be of a character, compelling in public interest and
for public good, not to induct him in public service? The answer
would be in the negative. As against that, a man has committed murder
or has broken into a departmental store and stolen cash. Would this
man be of a character, compelling in public interest and for public
good, not to induct him in public service. The answer would be in the
affirmative.
23.
Not to induct persons with a criminal background in public service,
is based on the premise that considerations of public policy, concern
for public interest, regard for public good would justify a
prohibition. Thus, the primary consideration is, whether public
interest and public good would be jeopardized if a person with a
criminal background is inducted in public service. And this takes us
straight to the core of the issue, whether brush with penal law would
justify the eyes to be closed against the offender or only such brush
with penal law which is of a higher degree of criminality. If the
answer is in the negative, the further question: what should be the
higher degree of criminality which would justify the eyes being shut
to such person needs to be addressed.
24.
With respect to the first two examples given by us in para 22 above,
none would argue that for such trivial offences the eyes must be shut
against the offender, and with regard to the next two, everybody
would agree that the eyes should be shut to such a person who has to
be ignored. We concede that the examples are in the extreme, but they
certainly help us in understanding as to the process of reasoning
required to be adopted to decide as to on which side of the
border-line a case would fall.
25.
& 26…
27.
We do not intend to make a catalog of reported decisions as to what
misdemeanours should normally attract the penalty of removal or
dismissal from service. We may simply state that with respect to
conviction for grave and serious offences alone, on the anvil of
public interest and for public good, Courts have held that the
offender has rendered himself unfit to continue in office and in
extreme cases summary dismissal or removal from service by invoking
Article 311 of the Constitution is also held justified.
28…
29.
Looking through the prism of case law pertaining to when can the door
be shown to a government servant and by doing reverse engineering we
can safely say that what is good for the door to be shown, is good
for prohibiting entry through the door, and thus while denying public
employment with respect to the offence committed by a person, it can
be said, and we say so, that it may be a serious violation of the
constitutional right of a citizen to be fairly treated in the matter
of public employment if trivial offences committed by the citizen
would justify the State shutting its eyes and denying employment.
30.
& 31…
32.
It is unfortunate that in India, the Government does not come out
with white papers of the deliberations at various seminars, but we
find a reference made to the „All India Seminar on Correctional
Service‟ held at New Delhi in March 1969, to consider and lay
guidelines pertaining to the problem of rehabilitation of
ex-convicts, with emphasis on the need for their employment under the
government. Vide OM dated 2.2.1973, No.6857-GSI-72-2755, the State of
Haryana has listed the penal offences which have been treated as
grave, serious and involving moral turpitude. The said OM lists the
under-noted penal offences as grave, serious and involving moral
turpitude, disentitling the convict to public employment; the
offences are:- Sections 120-A, 121-A, 122 to 124, 161, 161-1A, 165,
167, 181, 182, 193 to 201, 205, 209, 293, 302, 304, 307, 354, 359,
362, 363 to 366, 366-A, 366-B, 367 to 373, 376, 377, 379, 380, 391,
392, 398 to 400, 403, 404, 406 to 409, 417 to 421, 449, 450, 453 to
458, 465 to 468, 471 to 476, 477-A, 489-A, 489-B, 489-C, 489-D,
489-E, 493 to 498 of the Penal Code.
33.
We are a little surprised at the list as it excludes offences such as
promoting enmity or doing acts prejudicial to maintenance of harmony
i.e. offences punishable under Section 153-A IPC. It excludes
offences pertaining to mutiny and its abetment i.e. offences under
Sections 131 to 136 IPC. But we do not comment. However, what we find
is, the common thread of including all offences against women and
such offences which are punishable with imprisonment for life as also
imprisonment for a term exceeding three years and above. We get a
clue. Offences which do not carry a mandatory sentence of
imprisonment and it to be imprisoned the term is less than 3 years
and the offender can be let off with payment of fine, are not
included in the said list. It is an undisputed fact that there are no
rules to guide the authorities in Delhi Police as to in what cases
despite acquittal, the person can be kept out of service or can be
deprived of employment.
34.
That apart, as generically understood, offences involving moral
turpitude can be classified with reference to the act being one which
shocks the moral conscience of the society in general and this can be
determined with reference to the motive of the offender i.e. whether
the motive which led to the act was a base one or alternatively
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.
35…
36.
Life is too precious to be staked over petty incidents and the cruel
result of conviction for petty offences being the end of the career,
the future and the present, of young and inexperienced persons cannot
blast their life and their dreams.
37.
In a growing democracy, where the systems are failing and the weak
and the downtrodden are hardly given the opportunity to sharpen their
intellect thereby diminishing the ability of their consciousness to
act as a mirror to their acts and actions, it is high time that the
executive brings into place a policy where summary/ordinary
conviction should not be treated as a conviction for entry or
retention in government service.
38.
Till then, it would be the duty of the Court to interpret the law by
harmonizing human sufferings and human wants, delinquencies and
criminal tendencies; conscious of the fact that passengers on
Spaceship Earth are the rich and the poor, the needy and the
well-off, the hungry and the well-fed, the educated and the
uneducated. The need of the hour is to understand that criminals are
not born and are not irredeemable brutes. Crime may be a disease but
not the criminal, who are a kind of psychic patients and to
understand, that anti-social maladies are mostly the result of social
imbalances. It must be remembered that on the one hand, social
stresses, for various reasons, explosively mount in the real world‟s
hard environs and the harsh remedy of heartless incarceration and
ouster from society deepens the criminality. The swing of the
pendulum to the humanist side requires respect for the worth of
personhood and the right of every man and woman in its residual human
essence.
39.
What is the gravamen of the allegation constituting the act committed
by the respondent which was treated as voluntarily causing hurt is
not known to us. What was the nature of insult heaped upon the
complainant which attracted the offence punishable under Section 504
IPC and what was the act which attracted the crime of criminal
intimidation is also not known. But from a trinity of the three i.e.
the alleged offence punishable under Section 323 IPC, Section 504 IPC
and Section 506 IPC we can safely presume that the allegation against
the respondent was of abusing the complainant and threatening to beat
him followed by simple beating.
40.
All these offences are non-cognizable and needless to state are
bailable. No moral turpitude, as generically understood, is involved.
The acts do not shock the moral conscious of the society and with
reference to the motive do not evidence a person with depraved
character. The offences are not of the kind which would justify
dismissal or removal from service, if the respondent had committed
the same if in service.
41.
Thus, being charged with the said offences, of which the respondent
has ultimately been acquitted, would not be a bar and cannot be
treated as a bar to seek public employment and on being successful at
the entrance exam, to be denied the same.
42.
to 52…
53.
The respondent was born on 21.05.1987. The age of the respondent when
he was made an accused in the Non-Cognizable Report would be 19
years. The trivial offence of what he was charged of, in which he has
been acquitted, cannot make him a criminal of a kind where public
interest requires his non-induction in the Police force and that too
as a Sub-Inspector (Executive) and that means his duties would be
clerical and not with arms and surely not on the streets requiring
him to deal with public. Assuming that the petitioner did the acts of
which he was accused of, the same is a trivial brawl which he had in
the village. Some fist blows with choicest abuses in tandem were
hurled at the victim.”
5.1 While
reading Para 33, the attention of the learned advocate was drawn to
the following part of that Para:
“We
are a little surprised at the list as it excludes offences such as
promoting enmity or doing act prejudicial
to maintenance of harmony i.e. offences punishable under Section
153-A IPC. It excludes offences pertaining to mutiny
and its abetment i.e. offences under Sections 131 to 136 IPC. But we
do not comment…” (emphasis
supplied)
5.2 It
was inquired from the learned advocate for the petitioner as to which
list is referred to in this Para 33, the learned advocate at the
first brush replied that the list given by the Division Bench in its
judgment but later on corrected himself by reading Para 32. While
reading Para 32, the learned advocate for the petitioner submitted
that this is the opinion of a Division Bench of a High Court but
later on he corrected himself by saying that this is in the nature of
recommendations made at the end of a Seminar which was ‘All India
Seminar on Correctional Service’. Relevant part of Para 32 reads as
under:
“It
is unfortunate that in India the Government does not come out with
while papers of the deliberations at various seminars but we
find a reference made to the All India Seminar on Correctional
Service held at New Delhi in March 1969 to consider and lay
guidelines pertaining to … rehabilitation of ex-convicts with
emphasis on the need for their employment under the Government.”
(emphasis supplied)
5.3 It
was inquired as to whether is it the suggestion of the learned
advocate that conviction in petty offences should be made additional
qualification for getting Government job, the learned advocate for
the petitioner submitted that he is only bringing to the notice of
this Court the observations made by the Division Bench of a High
Court.
5.4 The
further part of Para 32 reads as under:
“Vide
OM dated 2.2.1973, No.6857-GSI-72-2755, the State of
Haryana has listed the penal offences which have been treated as
grave, serious and involving moral turpitude. The said
OM lists the under-noted penal offences as grave, serious and
involving moral turpitude, disentitling the convict to public
employment; the offences are:- Sections…” (emphasis
supplied)
5.5 It
is with regard to this list, issued by the State of Haryana that the
Division Bench expressed surprise.
6.0 The
learned advocate placed emphasis on Para 53, wherein, it is stated
that, ‘the respondent was born on 21.05.1987. The age of
the respondent when he was made an accused in the Non-Cognizable
Report would be 19 years…”
6.1 The
learned advocate without giving the actual date of birth of the
petitioner, without setting out the actual age of the petitioner
submitted that that the petitioner is also of a ‘tender age’. The
Court is not able to understand as to what meaning should be assigned
to this word ‘tender age’.
6.2 The
further part of Para 53 reads as under:
” The
trivial offence of what he was charged of, in which
he has been acquitted, cannot make him a criminal of a kind where
public interest requires his non-induction in the Police
force and that too as a Sub-Inspector
(Executive)…” (emphasis
supplied)
6.3 The
learned advocate submitted that in case on hand the offence involved
is trivial. This submission is made by the learned advocate without
referring to the nature of the offence and without referring to the
role played by the petitioner along with other co-accused, who were
10 in number, including petitioner, they were 11 in all.
6.4 The
other part of Para 53 reads as under:
“and
that means his duties would be clerical and not with arms and surely
not on the streets requiring him to deal with public…”
6.5 On
perusal of the judgment of Sessions Case No. 97 of 2002, Para 1 of
which reads as under:
“(1) A
complaint was lodged on dt. 06/05/2002 before P.S.I. Shri L.N. Dixit
in Modasa Rural Police Station by Shri Natvarbhai Jodhabhai, a Head
Constable of the same Police Station that, iterruption in the duty
as a Government servant was made by Lalaji Amaraji & Other 15
persons of village Kabola and that, an intimidation for killing was
given by abusing him and that, the loot of the papers of
investigation and logbook which were with him was committed, and that
damage was caused to his motorcycle. The said complaint was received
by P.S.O. Shankarbhai Lakhabhai for registration of crime, he
registered the crime vide 1st C.R.No.
63/2002 in FIR register and its entry was made in the Police Station
Diary and it was forwarded to I/c. P.S.I. L.N. Dixit for
investigation. Upon receiving this investigation, P.S.I. Shri Dixit
had taken over its charge and the statements of the witnesses were
recorded in the investigation. The Panchnama of the place of
occurrence was drawn in presence of panchas and the accused persons
were arrested. As they voluntarily came forward and took out the
Muddamal, the same was seized. On completion of the investigation
against the accused persons and on finding sufficient evidence for
commission of offence, the charge-sheet as per Sections 186, 395,
336, 427 of IPC and 135 of the B.P. Act was produced before the Court
of Ld. Judicial Magistrate First Class, Modasa. The said complaint
was registered as a Criminal Case No. 1171/2002, but as the
Sessions Court has the jurisdiction to try one charge out of the
charges levelled against the accused persons, the Ld. Judicial
Magistrate First Class, Modasa passed an order exh. 8 (illegible) as
per Section 209 of Cr.P.C., the case against the accused was
committed to the Sessions Court, which was transferred to the
Assistant Court of Modasa for its disposal on merits. Ld. Assistant
Judge of Modasa issued charge-sheet against the accused persons on
dt. 04/12/2002. In the meantime, on establishment of a Fast Track
Court at Modasa the Sessions Judge had withdrawn this case from there
and transferred to this Court. Thereby, as there was violation of
provision of Section 409 of Cr.P.C. & direction given in the
judgment at the page no. 845 of 1995(1) GLR by the Hon’ble Gujarat
High Court, this Court wrote a request letter vide outward no. 8/2003
to the learned District Judge and attention was drawn for doing
needful in the matter, but as no co-operation was extended from
there, eventually, the proceedings against the accused persons were
tried further on merits. The brief facts of the case of prosecution
are as below…”
6.6 The
offence alleged against the petitioner and other co-accused is under
Section 186, 395, 396, 427 of IPC and Section 135-A of the Bombay
Police Act. It is mentioned that the accused abused the complainant,
threatened to kill, looted investigation papers and the Logbook and
damaged the motorcycle of the complainant. It is also stated that
this happened when the complainant went in investigation of another
offence registered at C.R. No. III – 46/2002 at Modasa Rural
Police Station.
7.0 From
the aforesaid facts, this Court is of the considered opinion that no
directions can be issued to allow the petitioner to join the
Government service during the pendency of the Criminal Appeal, which
is of the year 2003. If the petitioner is so keen, he ought to have
moved this Court for early hearing of that appeal because even when
he approached this Court by filing Special Civil Application No. 701
of 2009, conviction dated
7th April 2003 was staring in
his face and Criminal Appeal No. 442 of 2003 was pending before this
Court.
7.1 The
learned advocate for the petitioner has not placed on record any
details of efforts made by the petitioner to get that Criminal Appeal
heard at an early date. This shows that the petitioner seems to be
under impression that even if a Criminal Appeal is pending, he could
persuade the authorities and if not the authorities then this Court
to issue directions to give him appointment on compassionate ground.
8.0 This
Court is of the opinion that issuing of any such direction will be
miscarriage of justice and hence this petition is dismissed.
[
Ravi R. Tripathi, J. ]
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