REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6423 OF 2010
(Arising out of SLP (C) NO. 4216 OF 2008)
SUSHIL KUMAR SINGHAL ...Appellant
Versus
THE REGIONAL MANAGER,
PUNJAB NATIONAL BANK ...Respondent
JUDGMENT
Dr. B. S. CHAUHAN, J.
1. Leave granted.
2. This appeal has been preferred against the Judgment
and Order dated 10.09.2007 passed by High Court of Punjab
& Haryana in Civil Writ Petition 14014 of 2007, by which the
High Court had dismissed the writ petition for quashing the
award dated 3rd January, 2007, passed by the Central
Government Industrial Tribunal-cum-Labour Court-II at
Chandigarh (hereinafter called as, “Tribunal”), by which the
Tribunal had upheld the dismissal of the appellant from
service on the ground of conviction of the appellant in criminal
case involving moral turpitude.
3. Facts and circumstances giving rise to the present case
are that the appellant was appointed as a Peon in the
respondent-Bank, Kaithal Branch, on 01.12.1971 and stood
confirmed on the said post vide order dated 28.12.1977. The
appellant was handed over cash of Rs.5000/-, to deposit the
same as dues for the Telephone Bill in the Post Office.
However, it was not deposited by the appellant, therefore, the
bank lodged FIR No. 171 under Section 409 of Indian Penal
Code, 1860 (hereinafter called “lPC”) against the appellant, on
27.04.1982, in Police Station, City Kaithal. Appellant was
tried for the said offence. After conclusion of trial, the
appellant was convicted by the competent Criminal Court vide
Judgment and Order dated 28.01.1988. The respondent-Bank
issued a Show Cause Notice dated 01.03.1988 to the
appellant, proposing dismissal from service and asked the
appellant to show cause within a period of seven days. The
appellant submitted the reply dated 08.03.1988. However, the
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respondent-Bank dismissed the appellant from service vide
order dated 09.03.1988.
4. Being aggrieved, the appellant raised an industrial
dispute under the Industrial Disputes Act, 1947 and the
matter was referred to the Tribunal. In the meanwhile, the
appeal filed by the appellant against the order of conviction
was decided by the appellate Court vide judgment and order
dated 29.5.1989. The appellate Court maintained the
conviction, but granted him the benefit of probation under The
Probation of Offenders Act, 1958 (hereinafter called as, “Act
1958) and released the appellant on probation. The Tribunal
made the award dated 03.01.2007, rejecting the claim of the
appellant and holding his dismissal from service to be justified
and in accordance with law.
5. Being aggrieved, the appellant challenged the said award
of the Tribunal by filing the writ petition No. 14014 of 2007,
before the High Court. His petition also stood dismissed vide
impugned Judgment and order dated 10.09.2007. Hence, this
appeal.
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6. Sh. Pradeep Gupta, learned counsel appearing for the
appellant, has submitted that once the appellant had been
granted the benefit of the Act, 1958, the respondent-Bank
ought to have considered his case for reinstatement, as the
benefit granted by the appellate Court under the provisions of
Act, 1958, had taken away “disqualification” by virtue of
Section 12 of the Act, 1958. The appeal deserves to be allowed
and the Judgment and Order of the High Court as well as the
Award of the Tribunal are liable to be set aside.
7. Per contra, Sh. Rajesh Kumar, learned counsel appearing
for the respondent-Bank, has vehemently opposed the appeal
contending that grant of benefit under the Act, 1958 takes
away only the punishment (sentence) and not the factum of
conviction, therefore, in case, an employee of the Bank stands
convicted in an offence involving moral turpitude, it is
permissible for the respondent-Bank to remove him from
service. Appeal lacks merit and is liable to be dismissed.
8. We have considered the rival submissions made by the
learned counsel for the parties and perused the record. The
facts of the case are not in dispute. The Trial Court has
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convicted the appellant under Section 409 IPC after recording
the finding of fact that the appellant had not deposited the
telephone bill in spite of receiving a sum of Rs. 5000/- for that
purpose on 26.04.1982 and he deposited the said amount
with the Bank on 27.07.1982 vide voucher (Exhibit PH).
Appellant had also taken away the Bicycle of the Bank. The
appellate Court maintained the conviction, however, it granted
the appellant the benefit of probation under the Act, 1958.
9. The sole question involved in this case is whether the
benefit granted to the appellant under the provisions of Act,
1958 makes him entitled to reinstatement in service.
The issue involved herein is no more res integra.
In Aitha Chander Rao Vs. State of Andhra Pradesh,
1981 (Suppl.) SCC 17, this Court held:-
“As the appellant has been released on
probation, this may not affect his service
career in view of Section 12 of the
Probation of offenders Act.”
10. The said judgment in Aitha Chander Rao (Supra) was
not approved by this Court in Harichand Vs. Director of
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School Education, (1998) 2 SCC 383, observing that due to
the peculiar circumstances of the case, the benefit of the
provisions of 1958 Act had been given to him and as in that
case there had been no discussion on the words
“disqualification, if any attaching to a conviction of an offence
under such law”, the said judgment cannot be treated as a
binding precedent. This Court interpreted the provisions of
Section 12 of the 1958, Act and held as under :-
“In our view, Section 12 of the probation of
offenders Act would apply only in respect
of a disqualification that goes with a
conviction under law which provides for
the offence and its punishment. That is
the plain meaning of the words
“disqualification, if any, attaching to a
conviction of an offence under such law”
therein. Where the law that provides for
an offence and its punishment also
stipulates a disqualification, a person
convicted of the offence but released on
probation does not by reason of Section
12, suffers the disqualification. It cannot
be held that by reason of Section 12,
a conviction for an offence should not
be taken into account for the
purposes of dismissal of the person
convicted from government service.”
(Emphasis added).
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11. In Divisional Personnel Officer, Southern Railway &
Anr. Vs. T.R. Chellappan, AIR 1975 SC 2216, this Court
observed that the conviction of an accused, or the finding of
the Court that he is guilty, does not stand washed away
because that is the sine-qua-non for the order of release on
probation. The order of release on probation is merely in
substitution of the sentence to be imposed by the Court. Thus,
the factum of guilt on the criminal charge is not swept away
merely by passing the order under the Act, 1958.
12. In Trikha Ram Vs. V.K. Seth & Anr, (1987) Supp. SCC
39, this Court had held that if a person stands convicted and
is given the benefit of the provisions of the 1958, Act, he can
be removed from service only on the ground that he stood
convicted. But by virtue of the provisions of Section 12 of the
1958, Act, his removal cannot be a “disqualification” for the
purposes provided in other Statutes such as the
Representation of the People Act, 1950. The same view has
been reiterated by this Court in Union of India & Ors. Vs.
Bakshi Ram, (1990) 2 SCC 426; Karam Singh Vs. State of
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Punjab & Anr., (1996) 7 SCC 748; and Additional Deputy
Inspector General of Police, Hyderabad Vs. P.R.K. Mohan,
(1997) 11 SCC 571.
13. In Shankar Dass Vs. Union of India & Anr., AIR 1985
SC 772, this Court has held that the order of dismissal from
service, consequent upon a conviction, is not a disqualification
within the meaning of Section 12 of the 1958, Act. The court
held as under :-
“There are Statutes which provide that the
persons, who are convicted for certain
offences, shall incur certain
disqualification; for example, Chapter III of
the Representation of Peoples Act, 1951
entitles ‘disqualification’ for Membership of
Parliament and State Legislatures, and
Chapter IV entitles ‘disqualification’ for
voting, contains the provisions which
disqualify persons convicted of certain
charges from being the Members of
Legislatures or from voting at election to
the legislature. That is the sense in which
the word ‘disqualification’ is used in
Section 12 of the Probation of Offenders
Act…….Therefore, it is not possible to
accept the reasoning of the High Court
that Section 12 of the 1958 Act takes
away the effect of conviction for the
purpose of service also.”
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14. In State of U.P. Vs. Ranjit Singh, AIR 1999 SC 1201,
this Court has held that the High Court, while deciding a
criminal case and giving the benefit of the U.P. First Offenders
Probation Act, 1958, or similar enactment, has no competence
to issue any direction that the accused shall not suffer any
civil consequences. The Court has held as under:
“We also fail to understand, how the High
Court, while deciding a criminal case, can
direct that the accused must be deemed to
have been in continuous service without
break, and, therefore, he should be paid
his full pay and dearness allowance
during the period of his suspension. This
direction and observation is wholly
without jurisdiction….”
15. In Union of India Vs. Trilochan Patel, AIR 1985 SC
1612, some part of the Judgment in T.R. Chellappan (supra)
was overruled by the Constitution Bench of this Court. But
the observations cited hereinbefore were not overruled.
16. In Punjab Water Supply Sewerage Board & Anr. Vs.
Ram Sajivan & Anr., (2007) 9 SCC 86, this Court explained
that the Judgment in Aitha Chander Rao (supra) did not lay
down any law as no reason has been assigned in support of
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the order. Thus, the same remained merely an order
purported to have been passed under Article 142 of the
Constitution of India. This Court allowed the disciplinary
authority to initiate the disciplinary proceedings in accordance
with law and pass an appropriate order, in spite of the fact
that in the said case, the court, after recording the conviction,
had granted benefits of the provisions of the Act, 1958 to the
employee.
17. In view of the above, the law on the issue can be
summarized to the effect that the conviction of an employee in
an offence permits the disciplinary authority to initiate
disciplinary proceedings against the employee or to take
appropriate steps for his dismissal/removal only on the basis
of his conviction. The word `Disqualification’ contained in
Section 12 of the Act, 1958 refers to a disqualification provided
in other Statutes, as explained by this Court in the above
referred cases, and the employee cannot claim a right to
continue in service merely on the ground that he had been
given the benefit of probation under the Act, 1958.
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18. Sh. Gupta, learned counsel for the appellant has placed
very heavy reliance on the Judgment of this Court in Shankar
Dass (supra) and submitted that this Court has held otherwise
in that case. We have gone through the entire judgment and
found that there is a complete fallacy in the submissions made
by Sh. Gupta in this regard. In fact, in that case, this Court
came to the conclusion that in spite of the fact that the benefit
of the provisions of Act, 1958 had been granted by the
Criminal Court, disciplinary proceedings could be initiated
against the employee. However, in the facts and circumstances
of the case involved therein, the Court asked the Management
to reconsider the issue of quantum of punishment. This Court
had taken note of the observations made by the Criminal
Court while granting the benefit of the Act, 1958, which are as
under :-
“Misfortune dogged the accused for about
a year……and it seems that it was under
the force of adverse circumstances that
he held back the money in question.
Shankar Dass is a middle-aged man and
it is obvious that it was under compelling
circumstances that he could not deposit
the money in question in time. He is not
a previous convict.”
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The Court also took further note of his other problems as
under :-
“The appellant was a victim of adverse
circumstances; his son died in February,
1962, which was followed by another
misfortune; his wife fell down from an
upper storey and was seriously injured; it
was then the turn of his daughter who
fell seriously ill and that illness lasted for
eight months.”
In the aforesaid facts and circumstances, this Court
asked the Management to consider whether some other lesser
punishment commensurate to the misconduct could be
awarded. In fact the punishment of dismissal was found to be
disproportionate to the delinquency committed by the
appellant therein. Had this Court intended to say that once
benefit of the Act, 1958 is extended to a delinquent, his
conviction also stands washed off, the court could have
directed the Management to re-instate the employee rather
than asking to impose a lesser punishment. Thus, the
submission so advanced by Shri Gupta is preposterous.
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19. This Court reconsidered the said case i.e. Shankar Dass
(supra) in Swarn Singh Vs. State Bank of India & Anr.,
(1986) Supp. SCC 566, and held that the provisions of Article
311(2) of the Constitution of India conferred the power on the
Government to dismiss a person on the ground of conduct
which has led to his conviction on a criminal charge. It is
thus, clear that it was open to the respondent-Bank to initiate
the disciplinary proceedings and impose the punishment in
view of the provisions of The Banking Regulation Act, 1949
(hereinafter called as, “Act 1949”).
20. Section 10(1)(b)(i) of the Act, 1949, reads as under :-
“No banking company –
(a) …….
(b) Shall employ or continue the
employment of any person -
(i) who is, or at any time has been,
adjudicated insolvent, or has
suspended payment or has
compounded with his creditors, or who
is, or has been, convicted by a
criminal court of an offence
involving moral turpitude."
(emphasis supplied)
The aforesaid provision makes it clear that the
Management is under an obligation to discontinue the services
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of an employee who is or has been convicted by a CriminalCourt for an offence involving moral turpitude.
21. Moral Turpitude means [Per Black’s Law Dictionary (8th
Edn.,2004)] :-
“Conduct that is contrary to justice,
honesty, or morality. In the area of legal
ethics, offenses involving moral turpitude
such as fraud or breach of trust. Also
termed moral depravity.
Moral turpitude means, in general,
shameful wickedness- so extreme a
departure from ordinary standards of
honest, good morals, justice, or ethics as
to be shocking to the moral sense of the
community. It has also been defined as
an act of baseness, vileness, or depravity
in the private and social duties which one
person owes to another, or to society in
general, contrary to the accepted and
customary rule of right and duty between
people.”
22. In Pawan Kumar Vs. State of Haryana & Anr., AIR 1996
SC 3300, this Court has observed as under:-
“`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.”
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23. The aforesaid judgment in Pawan Kumar (supra) has
been considered by this Court again in Allahabad Bank &
Anr. Vs. Deepak Kumar Bhola, (1997) 4 SCC 1; and placed
reliance on Baleshwar Singh Vs. District Magistrate and
Collector, AIR 1959 All. 71, wherein it has been held as
under:-
“The expression `moral turpitude’ is not defined
anywhere. But it means anything done contrary to
justice, honesty, modesty or good morals. It implies
depravity and wickedness of character or
disposition of the person charged with the
particular conduct. Every false statement made by a
person may not be moral turpitude, but it would be
so if it discloses vileness or depravity in the doing of
any private and social duty which a person owes to
his fellow men or to the society in general. If
therefore the individual charged with a certain
conduct owes a duty, either to another individual or
to the society in general, to act in a specific manner
or not to so act and he still acts contrary to it and
does so knowingly, his conduct must be held to be
due to vileness and depravity. It will be contrary to
accepted customary rule and duty between man
and man.”
24. In view of the above, it is evident that moral turpitude
means anything contrary to honesty, modesty or good morals.
It means vileness and depravity. In fact, the conviction of a
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person in a crime involving moral turpitude impeaches his
credibility as he has been found to have indulged in shameful,
wicked, and base activities.
25. Undoubtedly, the embezzlement of Rs.5000/- by the
appellant, for which he had been convicted, was an offence
involving moral turpitude. The Statutory provisions of the Act,
1949, provide that the Management shall not permit any
person convicted for an offence involving moral turpitude to
continue in employment.
26. In Manish Goel Vs. Rohini Goel, AIR 2010 SC 1099, this
Court after placing reliance on large number of its earlier
judgments held as under :-
“No Court has competence to issue a
direction contrary to law nor the Court
can direct an authority to act in
contravention of the statutory provisions.
The courts are meant to enforce the rule
of law and not to pass the orders or
directions which are contrary to what has
been injuncted by law.”
Thus, in such a fact-situation, it is not permissible for this
Court to issue any direction as had been issued in the case of
Shankar Dass (supra).
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27. In view of the above, we reach the conclusion that once a
Criminal Court grants a delinquent employee the benefit of
Act, 1958, its order does not have any bearing so far as the
service of such employee is concerned. The word
“disqualification” in Section 12 of the Act, 1958 provides that
such a person shall not stand disqualified for the purposes of
other Acts like the Representation of the People Act, 1950 etc.
The conviction in a criminal case is one part of the case
and release on probation is another. Therefore, grant of
benefit of the provisions of Act, 1958, only enables the
delinquent not to undergo the sentence on showing his good
conduct during the period of probation. In case, after being
released, the delinquent commits another offence, benefit of
Act, 1958 gets terminated and the delinquent can be made
liable to undergo the sentence. Therefore, in case of an
employee who stands convicted for an offence involving moral
turpitude, it is his misconduct that leads to his dismissal.
28. Undoubtedly, the appellant was convicted by the
Criminal Court for having committed the offence under
Section 409 IPC and was awarded two years’ sentence. The
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appellate court granted him the benefit of Act, 1958. The
Tribunal rejected his claim for re-instatement and other
benefits taking note of the fact that appellant was given an
opportunity by the Management to show cause as to why he
should not be dismissed from service. The appellant submitted
his reply to the said show cause notice. The Management
passed the order of dismissal in view of the provisions of the
Act, 1949. The Tribunal also took into consideration the
contents of the Bi-Partite Settlement applicable in the case
and rejected the appellant’s claim. The High Court considered
appellant’s grievance elaborately as is evident from the
impugned judgment. We could not persuade ourselves, in the
aforesaid fact-situation, that any other view could also be
possible.
29. In view of the above, we find no force in the appeal and it
is accordingly dismissed. No order as to costs.
…………………………….J.
(P.
SATHASIVAM)
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………………………..
…..J.
New Delhi, (Dr. B.S. CHAUHAN)
August 10, 2010
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