Bses Rajdhani Yamuna Power Ltd. vs Union Of India & Ors.
2010 Latest Caselaw 3500 Del

      * IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     W.P. (C) No. 14237/2006


%                           Judgment reserved on : 15.01.2010
                            Judgment delivered on : 28.07.2010

BSES, Rajdhani Yamuna Power Ltd.                      ...... Petitioner

                      Through: Mr. Sandeep Prabhakar
                               with Mr. Prerna Mehta and
                               Mr. Amit Kumar, Advs.

                           versus

Union of India & Ors.                      ..... Respondent

                      Through: Mr. Sumit Kumar Singh
                                with Ms. Sonia Mathur, Advs. for R-1.
                                Mr. Anuj Aggarwal, Adv. for
                                Respondent/Workman.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                        Yes.

2.     To be referred to Reporter or not?                     Yes

3.     Whether the judgment should be reported
       in the Digest?                                         Yes

KAILASH GAMBHIR, J.

*

1. By this petition filed under Article 226/227 of the

Constitution of India, the petitioner seeks quashing of the Award

dated 17.12.2005 passed by the Labour Court X, Karkardooma

Courts in ID No. 63/1998 whereby the reference was answered

in favour of the respondent/workman.

2. Brief facts of the case relevant for deciding the present

petition are that the respondent no.2 was in the employment of

the Delhi Vidyut Board as a peon since 25.10.1978. He was

involved in a criminal case and on 4.5.1993 was convicted u/s

148/302/323/149 IPC and was sentenced to undergo life

imprisonment but was granted bail on 4.6.1993. Thereafter,

respondent no.2 filed a criminal appeal before the Hon'ble High

Court of Punjab and Haryana wherein the High Court held him

guilty of offences u/s 323/149/148 IPC while the charge of

Section 302 was dropped against him. On his release on bail in

1996, he again joined the DVB and worked till 17.4.1996, but

was arrested again on 22.4.1996 to undergo imprisonment. On

30.9.1996, the services of the respondent no.2 were terminated

on the grounds of moral turpitude, which order he challenged by

raising an industrial dispute bearing ID No.63/1998 whereby

vide order dated 17.12.2005 the Labour court ordered

reinstatement of the respondent no.2 with back wages and

consequential benefits. Feeling aggrieved with the same the

petitioner has preferred the present petition.

3. Mr. Sandeep Prabhakar, counsel for the petitioner

submitted that the learned Labour Court failed to appreciate

the fact that respondent No. 2 was not convicted for committing

a petty offence but he was involved in the commission of a

serious criminal offence, which resulted in the murder of one

lady, namely, Premwati. Counsel further submitted that in fact

respondent No. 2 was convicted under Sections

148/302/323/149 IPC and was sentenced to undergo life

imprisonment by learned Trial Court and it is only in appeal

preferred by him that Section 302 IPC was dropped against him

and respondent No. 2 was held guilty for committing offences

under Sections 323/149 IPC. The sentence of respondent No. 2

was also accordingly reduced by the Appellate Court and

respondent No. 2 was directed to undergo rigorous

imprisonment for a period of six months under Section 323/149

IPC and for the same period under Section 148 IPC with both the

sentences to run concurrently. Counsel thus submitted that the

services of respondent No. 2 were rightly terminated as per

Rule 10 (ii) of DESU (DMC) Service (C&A) Regulations, 1976,

which envisage the removal or dismissal of an employee on the

ground of his conduct which has ultimately to his conviction.

Counsel for the petitioner further submitted that the acts

committed by respondent No. 2 clearly constitute moral

turpitude as the same disclosed the depravity in his conduct and

behaviour. The contention of the counsel for the petitioner was

that the learned Labour Court has narrowly interpreted the

broad concept of "moral turpitude", which is an expression used

in legal and societal parlance to describe conduct, which is

inherently base, vile, depraved or having any connection

showing depravity in doing of any private or social duty, which

the person owes to his fellow men or society in general.

Counsel for the petitioner further submitted that the

labour Court has wrongly applied the judgment of Pawan

Kumar vs State of Haryana & Ors. AIR 1996 SC 3300, to

the facts of the present case. The contention of the counsel for

the petitioner was that in Pawan Kumar's case (supra) the

employee was sentenced to pay a fine of Rs. 20/- after he had

admitted his guilt for committing an offence under Section 294

IPC and under no circumstances the facts of the said case can

be equated with the facts involved in the present case. Counsel

for the petitioner further submitted that even in case of a civil

servant, the protection under Article 311(2) of the Constitution

of India is not available to him as he can be removed from his

services on the basis of his conduct which led to his conviction

on a criminal charge. In support of his arguments counsel for the

petitioner placed reliance on the following judgments:-

1. J. Jaishankar vs Government of India & Anr. 1996 SCC

(L&S) 1372;

2. Pawan Kumar vs State of Haryana & Anr. AIR 1996 SC

3300;

3. Karam Singh vs State of Punjab & Anr. 1996 SCC (L&S)

668.

4. Refuting the said submissions of counsel for the petitioner,

counsel for the respondent at the outset submitted that this

Court while exercising power under Article 226 of the

Constitution of India would not re-appreciate the findings of

facts arrived at by the Tribunal as no illegality or infirmity in it

has been pointed out by the petitioner. Counsel for the

respondent further submitted that respondent No. 2 was

ultimately convicted for committing an offence under Section

323/149 IPC and so far as the offence under Section 302 IPC is

concerned, he was let off and, therefore, it cannot be said by

any stretch of imagination that respondent No. 2 was guilty of

committing any serious or heinous crime. Counsel for the

respondent No. 2 further submitted that the learned Labour

Court rightly placed reliance on the judgment of the of the Apex

Court in Pawan Kumar's case (Supra) as in both the cases

i.e. one before the Apex Court and in the present case the

offence involved is a petty offence. Counsel for respondent No. 2

also submitted that one can be involved in the commission of

such a petty offence under many circumstances and some times

one suffers conviction for diverse reasons and, therefore, to

award punishment of termination to such a person would not

only be harsh, but would be doing serious injustice to an

employee. Counsel thus submitted that the offence committed

by respondent No. 2 does not constitute an offence amounting

to moral turpitude and the same was nowhere connected with

the duties of respondent No. 2 or occurred at the office

premises during the course of his duties. In support of his

arguments counsel for the respondent placed reliance on the

following judgments:-

1. State of M.P. & Ors. vs. Hazarilal 2008-II-LLJ-715 (SC)

2. Glaxo Laboratories (I) Limited vs. Labour Court, Meerut

& Ors. 1984 (I) LLJ 16. (SC)

3. Karam Singh vs State of Punjab & Anr. 1996 LAB. I.C. 1272.

(SC)

4. State of West Bengal & Ors. Vs. Ram Nagina

Dubey1992 (64) FLR 272. (Cal HC)

5, Bhagwati Prasad Tiwari Vs. Regional Manager, Bank of

Baroda, Branch Manager, Bank of Baroda & Ors. W.P. No.

41636/98 (Allahabad HC)

6. Krishnankutty Vs. Senior Supt. Of Post Offices, Ernakulam

& Ors. 1976 (I) LLJ 175. (Kerala HC).

7. On-Dot Couriers and Cargo Ltd. vs Anand Singh Rawat

W.P.(C) No. 4197/2008 (Delhi High Court).

5. I have heard learned counsel for the parties at

considerable length and gone through the records.

6. The petitioner management has approached this Court

feeling aggrieved by the order passed by the learned Labour

Court thereby directing the reinstatement of the respondent

workman with continuity of service and other consequential

benefits but without grant of any backwages. The core issue

raised by the counsel for the petitioner is that the acts

committed by respondent No. 2 which led to his conviction

under Sections 323/148/149 IPC constituted moral turpitude

and, therefore, he was rightly dismissed from his service by the

petitioner management under Regulations 10(ii) of the DESU

(DMC) Service (C&A) Regulations, 1976 read with Section 95 of

the DMC Act, 1957.

7. The expression "moral turpitude" is not defined anywhere.

Whether an offence involves moral delinquency is a question of

fact depending on the public morals of the time; common sense

of community and context and purpose for which the character

of offence is to be determined. In common parlance „moral

turpitude‟ means baseness of character. Concise Oxford

Dictionary defines 'moral' as 'concerned with goodness or

badness of character or disposition or with distinction between

right and wrong..... virtuous in general conduct; 'Turpitude'

means "baseness, depravity, wickedness". Thus any act which is

contrary to good morals from society's point of view will come

within the ambit of 'moral turpitude'. Dealing with the term

'moral turpitude' the High Court of Punjab & Haryana in the

case of Durga Singh vs. State of Punjab, AIR 1957 Punjab

97, held as under :--

"The term "moral turpitude" is rather vague one and it may have different meanings in different contexts. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellow- man or to society in general. It has never been held that gravity of punishment is to be considered in determining whether the misconduct involves moral turpitude or not."

It would be thus evident that the expression "moral

turpitude" encompasses an act of immorality, dishonesty or is a

conduct which is inherently base, vile, depraved or having any

connection showing depravity in doing of any private or social

duty, which a person owes to his fellow man or to the society in

general and the act of killing a person is normally attributed to

a feeling of hurt or revenge; an act of personal vendetta.

8. As per the counsel for the petitioner since respondent No.

2 was convicted and sentenced for a period of six months and

his act of taking law in his own hands in inflicting lathi blows on

Premvati clearly shows that the case of the respondent No. 2 is

covered under Regulations 10(ii) of the DESU (DMC) Service

(C&A) Regulations, 1976 read with Section 95 of the DMC Act,

1957, which permits the employer to dismiss an employee

whose conduct led to his conviction on a criminal charge and

also for the commission of such offence involving moral

turpitude punishable under the Indian Penal Code. However, the

learned Labour Court set aside the dismissal of the respondent

workman based on the decision of the Hon'ble Apex Court in

Pawan Kumar vs State of Haryana & Ors.(supra). The

learned Labour Court also found that it would be a case of

causing great injustice to the workman who has worked with the

management for about 18 years and to terminate his services

only for the reason that he was involved or convicted for a minor

offence under Section 323/149 IPC that too for an incident which

never occurred in the office premises or in the office hours.

9. No doubt the petitioner was initially convicted for

committing an offence under Section 148/302/323/149 IPC but

later on in the appeal before the Punjab & Haryana High Court,

the order of conviction against petitioner under Section 302 IPC

was set aside and it held him guilty for committing offence

under Section 323/149/148 IPC. In the order passed by the

Hon'ble Punjab and Haryana High Court, it was clearly observed

that respondent No. 2 was not even present and he along with

other accused entered the scene of occurrence later in time. It

was also observed that respondent No. 2 did not entertain any

common intention with the main accused but was liable to be

punished for their individual acts. Based on the said findings, the

order of conviction and sentence against respondent No. 2

under Section 302 IPC was set aside and for his individual acts

along with others he was held guilty under Section 323/149/148

IPC.

10. The question that arises is that with the reduction of the

said sentence, whether respondent No. 2 goes out of the

purview of Regulations 10(ii) of the DESU (DMC) Service (C&A)

Regulations, 1976 read with Section 95 of the DMC Act, 1957 or

he can still be removed from his service taking his conviction

under Sections 323/149/148 IPC as a case of moral turpitude

under the Indian Penal Code. It is not in dispute that the said

order of dismissal was passed by the management only after the

reduction of his sentence by the High Court of Punjab and

Haryana and not at the time when he was committed by the

Sessions Court under Section 302 IPC. In Pawan Kumar

(supra), the services of the employee were terminated as while

in service he was held for summary trial under Section 294 IPC

by the Trial Court whereupon a fine of Rs. 20/- was imposed on

him after having admitted his guilt. The Apex Court after

defining the term moral turpitude came to the conclusion that

the conviction of the appellant under Section 294 IPC on its own

would not involve moral turpitude depriving him the opportunity

to serve the State. No doubt the instant case is not near to the

facts of the case of Pawan Kumar as the respondent has

suffered a sentence of six months period after being held guilty

for committing offence under Sections 323/149/148 IPC. But the

facts of the instant case would be more nearer to a decision of

the Apex Court in the case of State of M.P. & ors vs

Hazarilal (2008) 3 SCC 273 wherein the employee was facing

prosecution under Section 323 read with Section 34 IPC and was

sentenced to undergo one month simple imprisonment, but in

the appeal his sentence was reduced to a fine of Rs. 500/-. In

this case also Rule 19 of M.P. Civil Services (Classification,

Control and Appeal) Rules, 1966, which is identical to the

aforesaid Regulations 10(ii) of the DESU (DMC) Service (C&A)

Regulations, 1976 read with Section 95 of the DMC Act, 1957

was invoked and the Hon'ble Apex Court held as under:-

"7. By reason of the said provision, thus, "the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge", but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted.

8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. Respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence."

11. It would be thus evident that the Apex Court clearly

held that the statutory discretionary power like any other power,

before taking any decision to dismiss or remove the employee,

has to be exercised fairly, justly and reasonably. In the facts of

the present case also the petitioner before passing the order of

dismissal against respondent No.2, did not take care of the fact

that ultimately respondent No. 2 was held guilty for committing

offence under Sections 323/148/149 and the incident in which

respondent No. 2 was found involved has taken place in his

native village among his own family members.

12. Right to impose penalty or take action for misconduct

carries with it a duty to act justly. Punishment cannot be

disproportionate to the act done. Therefore, it would not be just

to the respondent to deprive him of his employment for a petty

offence. Also in the analogy of the discussion of the Apex Court

in case of State of M.P. & Ors. Vs. Hazari Lal (Supra) it

would be clear that the offence u/s 323/148/149 IPC on the part

of the respondent canot be brought within the ambit of moral

turpitude.

13. Hence, in the light of the above discussion, there is

no merit in the present petition and the same is hereby

dismissed.

July 28, 2010                          KAILASH GAMBHIR,J