IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.11.2010 CORAM : THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.1689 of 2005 and WPMP.No.1875 of 2005 N.Rama. .. Petitioner V. 1. Tamil Nadu Civil Supplies Corporation Ltd., Rep. By its Chairman and Managing Director, No.42, Thambu Swamy Road, Kilpauk, Chennai-10. 2. The Regional Manager, Tamil Nadu Civil Supplies Corporation Ltd., Manicapalayam Housing Board, Nasiyanur Road, Erode-11. .. Respondents PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus to call for the records in connection with the order of the 2nd respondent bearing Ref.No.RM.Ed.Ref.7160/90/E10 dated 12.12.2003 and to quash the same and to direct the respondents not to proceed further pursuant to the same. For Petitioner : M/s.P.Chandrasekran. For Respondents : M/s.V.Selvanayagam. O R D E R
The writ petition is filed against the show cause notice dated 12.12.2003 issued by 2nd respondent and to quash the same and to direct the respondents not to proceed further pursuant to the said notice.
2. The brief facts which are relevant for consideration herein are as follows :
The petitioner was employed as packer in Thalavadi, Erode District in shop No.10 of the Tamil Nadu Civil Supplies Corporation Ltd., of the Thalavadi Erode from 26.05.1980 to 22.08.1990 and was then transferred to Erode on 22.08.1990. While so, there was monthly shop physical verification in Thalavadi shop in the course of which shortages are noticed leading to registration of criminal case in Cr.No.40 of 1991 for the offfence under Tamil Nadu Scheduled Commodities Act, 1955 against the petitioner and one bill clerk and also suspension of the petitioner on 06.09.1990 followed by issuance of charge memo and departmental enquiry. The departmental enquiry was concluded on 29.06.1992 and enquiry report was submitted to the disciplinary authority. The petitioner was issued second show cause notice along with enquiry report calling upon him to submit his explanation and the explanation submitted by him was not accepted and the petitioner was imposed penalty of five increment cut with cumulative effect in addition to recovery of Rs.17,500/- from his pay to the loss caused to the respondent corporation.
3. In the meanwhile, the criminal case registered against the petitioner and another culminated in STC.No.8 of 1993 and the petitioner was arrested for his nonappearance for the hearing in the criminal case and was remanded to judicial custody from November 2000 till 28.02.2003 for nearly 28 months and thereafter released on bail and the criminal case ended in an order of conviction and the petitioner was imposed sentence imprisonment of two years apart from fine of Rs.12,000/- for specific offence held to be proved and two years imprisonment was set off against the period of remand already undergone by him. Aggrieved against the order of conviction the petitioner has also preferred Criminal Appeal No.1712 of 2003 and as he has already suffered imprisonment for more period than the period of punishment imposed no order of stay of suspension was sought for and the appeal is pending before the High Court. While so, the petitioner was served with the notice impugned herein under regulation 5 of Chapter 5 of Tamil Nadu Civil Service Corporation Ltd., employees service regulations 1989 as to why action should not be initiated against him for his conviction for criminal offence. The correctness and validity of such show cause notice is impugned in the present writ petition.
4. The arguments advanced on the side of the petitioner against the show cause notice is two folds. Firstly, the respondent having chosen to hold departmental enquiry against the petitioner for the same charges and having passed final order in the disciplinary proceedings by imposing penalty upon the petitioner is estopped from proceeding against the petitioner on the basis of the conviction by the Criminal Court for the offence arising of out of the same misconduct. Secondly, the respondent is empowered to invoke the power under regulation 5 and to initiate action only in respect of conviction for the offence involving moral turpitude and not in respect of every order of conviction and the offence for which he is convicted is not of such nature involving moral turpitude.
5. Per contra, the learned counsel for the respondents, would seriously oppose the relief sought for herein by contending that though the departmental and criminal proceedings arose out of the same misconduct, the charges levelled against the petitioner and the offence for which he is convicted by the criminal court are entirely different and give rise to different cause of action. It is also contended that the offences for which he is convicted are for defalcation of corporation stock and money in CRS at Thalavadi as such the same is of such nature and is contrary to justice, honesty, modesty and good moral and is to be hence treated as offence involving moral turpitude covered under regulation 5.
6. I heard the rival submissions made on both sides.
7. The first ground on which the show cause notice is impugned herein is that the department is not empowered to initiate disciplinary action more than once for the same misconduct. In this regard it is to be seen that the charges against the petitioner and another is defalcation of stock and money amounting to act of misappropriation. The departmental action is separately initiated for the charges of breach of trust, violation of corporation regulations and causing loss to the society etc., and ended in the final order imposing penalty of with holding five increment with cumulative effect in addition to recovery of Rs.17,500/-. Whereas, the criminal case is registered for the offences u/s.6(2)&(3), 14(i)(a) of Tamil Nadu Schedule Commodities Order and r/w. Sec 7(1)(a)(ii) of Essential Commodities Act, 1955 which are as follows :
Section 6(2)&(3) : (2)The authorised dealer with whom the family card is registered shall on production of such card by the holder, make necessary entries in the card and supply the scheduled commodities not exceeding the quantities for which he is eligible.
(3) The authorised dealer shall not supply the scheduled commodities against any family card not registered with him or to non-card holder.
Section 14(1) (a)&(c) : Every authorised dealer shall –
(a) be held responsible for all the acts of commission and omission of his partners, agents, servants and other persons who are allowed to work in the shop;
(c) always maintain adequate stocks of the scheduled commodities.
Section 7(1)(a)(ii) : in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine.
8. The show cause notice which is impugned herein is issued by invoking regulation 5 which empowers the department to initiate separate action against an employee who suffered an order of conviction for offence involving moral turpitude without following the requirement of regulation 4 which provides for the procedure to be followed and the nature of the opportunity to be given to any delinquent in the course of conduct of disciplinary action.
9. As rightly argued by the learned counsel for the respondents, though earlier departmental action and proposed departmental action are arising out of the same misconduct, the basis for initiating first disciplinary action is the charges of violation of code of conduct, breach of trust and causing loss to the society whereas the basis for the proposed action is the order of conviction for specific offence, after full fledged trial by the criminal court. That being so, the petitioner cannot be permitted to say that both are arising out of same cause of action and the department is by applying the principle of estoppel barred from proceeding further with the proposed action.
10. Regarding the other contention that as the offence for which the petitioner convicted is not of such nature involving moral turpitude no action can be initiated under regulation 5 for the conviction suffered by the petitioner the same is again liable to be negatived for the following reason. The petitioner was as already referred to, convicted for the malpractice committed by him in the discharge of his duties towards public in the matter of supply of Essential Commodities to the family card holders mostly consisting of middle and lower middle class and lower income group. Though the expression moral turpitude is not defined any where but it generally refers to conduct that shocks the public conscience and conduct that is considered contrary to community standards of justice honesty and good morals and as conduct which is inherently base, vile and depraved.
11. In Iyer’s Lexicon,moral turpitude has been defined as here under “any act of baseness, wiliness or depravity in the private and social duties, which a man owes to his fellowmen or to a society in general contrary to the accepted customary rule or right and duty between man and man.”
12. The Hon’ble Supreme Court has in the judgment reported in (i) AIR1963 SCC 1313 in the matter of Mr. ‘P’ an Advocate; (ii) AIR 1962 SCC 1156 in Inder Lal V. Lal Singh and others; (iii) AIR 1992 SCC 2188 State of Punjab and others V. Ram Singh Ex. Constable; (iv) 1996 (4) SCC 17 in Pawan Kumar V. State of Haryana and another; and (v) 1997 1 LLJ 40 Allahabad Bank and another V. Deepak Kumar Bhola had occasion to deal with the meaning of expression “moral turpitude”. In the cases above referred Supreme Court has by referring to the earlier full court judgment of Allahabad High Court reported in AIR 1959 All.71 Baleshwar Singh V. District Magistrate and Collector has laid down the following observation in this regard.
1. Moral turpitude is a conduct which is contrary to honesty, justice, modesty, good characters and moral and inherently base, vile and depraved .
2. Must be improper, wrongful and unlawful behavior, willful character, forbidden act, a transgression of establishment of definite tool of action or code of conduct
3. Any act motivated by selfishness and committed by a person in his dealing with his fellowmen in which he is required to demonstrate a good moral standard, but he does with intention to make money or to enrich himself at the cost of others.
4. But not mere error of judgment carelessness or negligence in performance of duty the act complained of bears forbidden quality or character.
13. It is further observed in one of the cases by the Supreme Court that every punishable act is not offence involving moral turpitude and what is the offence involving moral turpitude depends upon the facts of each case and courts should be sensitive to the changing perspectives and concepts of morality and the standards and changing views of society.
14. If the proven act for which the petitioner is convicted in the course of his employment as packer in civil supplies corporation constituting an act of breach of trust and misappropriation of public money to the tune of Rs.17,500/- is appreciated in the light of the above legal position it is likely to lead to an inference that the act committed by the petitioner is in contravention of code of conduct and discipline of the institution in which he is employed and his duty towards fellowman as such the same has to be for the limited purpose of disposing of this writ petition necessarily construed as an offence involving moral turpitude as observed and explained in the judgments above referred to. That being so, the action of the respondent in issuing show cause notice in exercise of the power vested under regulation 5 of the Tamil Nadu Civil Service Corporation Ltd., employees service regulations cannot be said to be lacking in authority. However, the observation so made by this court in this writ petition as to whether the offence for which the petitioner convicted is involving moral turpitude or not will in no way deprive the right of the petitioner to submit his explanation before the disciplinary authority as to whether the offence for which he is convicted involves moral turpitude or not and as and when one such objection is raised the disciplinary authority is directed to decide the same independently without being influenced by the observation of court in this writ petition.
15. The last ground on which the impugned action questioned by the petitioner is the pendency of the appeal against the order of conviction. It is true that the petitioner was already detained in custody for more than the period of punishment and the appeal is pending against the order of conviction, but in the absence of any statutory rule or regulation exempting any action pending disposal of the appeal, the question of granting any protection to the petitioner in the given situation does not arise herein. However, it is for the petitioner to take appropriate steps to have the early disposal of the criminal appeal and simultaneously to make an appeal to the department to proceed further subject to the outcome of the appeal against conviction and as and when one such representation is made by the petitioner, the 2nd respondent is directed to duly consider the same.
16. With the above two observations, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
29.11.2010.
Internet : Yes/No
Index : Yes/No
tsh
To
1. Tamil Nadu Civil Supplies Corporation Ltd.,
Rep. By its Chairman and Managing Director,
No.42, Thambu Swamy Road,
Kilpauk, Chennai-10.
2. The Regional Manager,
Tamil Nadu Civil Supplies Corporation Ltd.,
Manicapalayam Housing Board,
Nasiyanur Road, Erode-11
K.B.K.VASUKI, J
tsh
order in
W.P.No.1689 of 2005
29.11.2010.