Kagitha Sathi Babu vs The State Of Andhra Pradesh
2021 Latest Caselaw 302 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.1414 OF 2021

ORDER:

This Writ Petition is directed against order of the

6th respondent postponing one increment without cumulative

effect, confirmed by the 5th respondent.

2. The question involved in this writ petition is with reference

to effect of conviction of an individual under Section 138 of

Negotiable Instruments Act (N.I. Act) and consequent punishment

imposed on him. Further consideration required is 'whether

acquittal later in the criminal appeal preferred against such

conviction and sentence attracts any disciplinary action, holding

that employee so found guilty for an offence under Section 138 of

N.I. Act, suffers from moral turpitude?

3. The facts in nutshell in this case are that the petitioner

unfortunately faced a criminal action in C.C.No.200493 of 2017,

on the file of the Court of Special Judicial Magistrate of First Class

for Prohibition & Excise Cases, Machilipatnam, and by the

judgment dated 10.06.2019, the petitioner was convicted and

sentenced to undergo Simple Imprisonment for six (6) months and

to pay a fine of Rs.3,50,000/-. Aggrieved thereby, the petitioner

preferred Criminal Appeal No.90 of 2019 on the file of the Court of

learned VI Additional District and Sessions Judge, Krishna, at

Machilipatnam. When the proceedings in Criminal Appeal were

pending, the learned Additional Sessions Judge has recorded

compromise terms and set aside the conviction by acquitting the

petitioner/accused for the offence punishable under Section 138

of N.I. Act. The conviction and sentence imposed upon the

petitioner were set aside. Thus, whatever stigma if at all so called,

suffered by the petitioner got effaced on account of this

circumstance.

4. However, on account of the above conviction and sentence,

the 6th respondent had issued a show cause notice, dated

29.06.2019 to the petitioner, calling for explanation as to why he

should not be dismissed from service attributing criminal

misconduct. A detailed explanation by the petitioner in relation

thereto denying such allegations, while asserting that whatever

criminal action initiated against him was of civil nature, which did

not have any bearing on his official duties without involving any

moral turpitude, was not accepted. Ultimately, the 6th respondent

by a final order dated 27.03.2020 passed the impugned order

imposing punishment of stoppage of one increment without

cumulative effect.

5. Appeal preferred to the 5th respondent thereupon, did not

yield any result in favour of the petitioner, who confirmed the

order of the 6th respondent.

6. It is the grievance, which the petitioner has chosen to raise

in this writ petition.

7. The petitioner is also complaining that on account of such

order, he is deprived of promotions as were due to him time to

time and particularly as Assistant Lineman and later as Lineman.

8. Sri Narasimha Rao Gudiseva, learned counsel for the

petitioner and Sri Y.Nagi Reddy, learned standing counsel for

respondents, addressed arguments, but fairly conceded that the

issue involved in the petition is squarely covered by the judgment

of this Court in W.P.No.12667 of 2020, dated 09.09.2020 and

requested to dispose accordingly.

9. Now, the point for determination is, 'Whether the impugned

orders of respondents 5 and 6 require interference upon a judicial

review in terms of Article 226 of Constitution of India?'

10. From the conspectus of facts in this case, it is clear that

respondents 5 and 6 had lost comprehension of nature of the

judgment suffered by the petitioner in the criminal case, viz.,

conviction and sentence. It was under Section 138 of NI Act. Any

proceedings under Section 138 of N.I. Act did not have the

trappings of a regular criminal case, which is otherwise tried for

offences under IPC. It is so laid down by Hon'ble Supreme Court

in KAUSHALYA DEVI MASSAND v. ROOPKISHORE KHORE11.

11. Being predominantly of quasi civil nature, an offence under

Section 138 of N.I. Act has more a profile of civil nature than

attracting any criminal culpability. Hence, question of moral

turpitude or attributing criminal misconduct thereby on account

of conviction and sentence under Section 138 of N.I. Act does not

arise. Merely because, in an action between the petitioner and his

brother, since he was found guilty, convicted and sentenced

thereby, in the facts and circumstances of the case, the

(2011) 3 SCR 879

respondents 5 and 6 could not have drawn such conclusions.

Thus, there is complete failure of appreciation of the facts and the

legal consequences to flow therefrom.

12. Learned counsel for the petitioner also relied on a judgment

of Kerala High Court in BSNL LIMITED v. SATHYANESA

KURUP.P.R2, and another judgment of Punjab and Haryana High

Court in JAGROOP SINCH v. PUNJAB STATE POWER

CORPORATION LTD. AND OTHERS3 in the same context, in

support of his contention that Section 138 of N.I. Act cannot affect

career and employment of any individual even if he is found

guilty, since such factor did not attract moral turpitude.

13. Having regard to the law thus required to be considered in

this respect and when very basis of the action of respondents

5 and 6 is on such premise of conviction and sentence of the

petitioner under Section 138 of N.I. Act it cannot be permitted to

hold the field against the petitioner. May be that the nature of

punishment awarded is minor. Yet, the consequences to flow there

from are serious. In the sense, on account of stoppage of an

increment apart from the financial benefit the petitioner gets

deprived of, though for a short period of one year, to be restored at

a later point of time, his promotional avenues get affected. When

such is the serious nature and effect of the orders now impugned,

in the backdrop of the situation seen in this case, such order

should be set aside. A manifest illegality requires to be corrected

in the interests of justice.

Judgment in OP (CAT) No.84 of 2020,dt. 20.10.2020 (Kerala High Court)

CWP No.26051 of 2014 (O&M) Dt. 08.05.2017 of P&H High Court

14. Therefore, this writ petition has to be allowed.

15. In the result, this writ petition is allowed setting aside the

orders of 6th respondent dated 27.03.2020 in Memo

No.SE/O/VJY/PO/Adm/JAO.I/U2/D.No.1181/20. The petitioner

is entitled for all the consequential benefits including promotion to

higher post on account of setting aside these orders. No costs.

All pending petitions, shall stand closed.

__________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date: 22.01.2021

IS

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.1414 OF 2021

Date: 22.01.2021

IS