The Gauhati High Court recently came to the rescue of an employee, who had invoked its writ jurisdiction to challenge an order of dismissal from the service. The dismissal order had been upheld by the appellate authority as well.
Brief Facts:
The Petitioner was appointed as a cleaner boy in a Tea Research Association. During his employment, a complaint under Section 138 of the Negotiable Instruments Act, 1881, was registered against him, which resulted in his conviction and sentence of 6 months in jail along with a penalty of ₹2 lakhs. As a result, the petitioner was arrested and remanded to judicial custody, which prevented him from attending to his duties.
The petitioner had filed an appeal before the Sessions Court. On 15th October 2014, he was granted bail. On 13th November, the sentence was stayed. On 8th December, the appeal was rejected. Meanwhile, on 15th October, the respondent authorities issued an order of suspension, with effect from 4th September i.e. the date of arrest. On 17th October, the order of dismissal from service was passed. After that, the petitioner submitted further representations, including legal notice in which he did not get any relief.
In the writ petition, the petitioner argued that the dismissal was made without any inquiry and that the Rules governing the service were not followed. He also argued that a conviction under Section 138 of the NI Act does not constitute a charge of moral turpitude. The respondent argued that the petitioner did not have a clean track record and had been penalised in the past.
High Court’s Observations:
The High Court noted that the suspension order did not specify that any departmental proceeding was contemplated, rather it revealed that on earlier occasion the petitioner was penalised because he was absent from his duties due to his arrest in the proceedings under NI Act. Two days after the suspension order, dismissal order was passed which mentioned arrest and imprisonment under Section 138 of the NI Act as the only reason. The HC also noted that the appellate authority simply affirmed the dismissal order without independent application of mind.
As per the applicable Rules, disciplinary action could be taken if there’s a conviction by a Court for any offence involving moral turpitude.
The Court found that the case laws make it amply clear that the offence u/s. 138 of the NI Act would not involve moral turpitude. It said, “The Hon'ble Kerala High Court (Division Bench) in the case of Saseendran Nair v. General Manager, State Bank of Travancore and Ors., has laid that an offence under Section 138 of the Act need not necessarily take within its wings the offence of cheating as per the Indian Penal Code. It has further been held that the question whether the act of issuing a cheque without sufficient funds will involve moral turpitude has to be considered de hors the element of cheating. Reference has also been made to the Corpus Juris Secendum as per which, moral turpitude implies something immoral in itself, regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not a crime. It further states that the term moral turpitude "does not refer to conduct which, before it was made punishable as a crime, was generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed”."
The High Court further relied on the case of Kaushalya Devi Massand v. Roopkishore Khore, wherein the Supreme Court laid down that,
"Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones..."
The bench, presided by Justice Sanjay Kumar Medhi, stated that though past conduct may be a relevant consideration in a matter of this nature, the impugned order of dismissal did not refer to the petitioner's past conduct and was issued only on the basis of the conviction under Section 138 of the NI Act.
Hence, the High Court set aside the impugned dismissal order and directed that the petitioner be reinstated in service.
However, the HC made it clear that if the petitioner claims payment of back wages, the authorities will have to make an appropriate decision.
Read the Judgement @LatestLaws.com:
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