Delhi High Court
Sanjay Prasad vs Union Of India & Anr. on 19 September, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 6th September, 2011
% Judgment pronounced on: 19th September, 2011
+ WP(C) No.3667/2011
SANJAY PRASAD ..... Petitioner
Through: Mr.Shankar Raju, Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr.Anuj Aggarwal, Adv. for R-1.
Mr.R.V.Sinha with Ms.Sangita
Rai, Advs. for R-2 to 5.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
By this writ petition preferred under Articles 226 and 227 of the
Constitution of India, the petitioner has called in question the legal
WP(C) No.3667/2011 Page 1 of 20
pregnability of the order dated 2.2.2011 passed by the Central
Administrative Tribunal, Principal Bench (for short „the tribunal‟) in O.A.
No.439/2011 whereby the tribunal has declined to interfere with the order of
punishment imposed by the disciplinary authority and the stamp of approval
given to it by the appellate authority.
2. The facts, in a nut shell, are that the petitioner was working as a
Daftari in the Income Tax Department and was posted in the office of Chief
Commissioner of Income Tax-VIII, ITO, New Delhi. A prosecution was
launched against him for offences punishable under Sections
419/467/468/471/120-B/511 of the Indian Penal Code (for short „the IPC‟).
During the pendency of the trial, the petitioner had preferred a criminal
revision before the learned Additional Sessions Judge assailing the order
framing charge under Section 419 of the IPC. During the pendency of the
revision, the criminal trial proceeded with the other charges. The learned
Additional Sessions Judge, vide order dated 22.2.2006, quashed the charge
framed under Section 419 of the IPC on the ground that no offence under
Section 419 of the IPC had been disclosed against the revisionist. Despite
the said order, the petitioner was convicted for offences under Section 419
WP(C) No.3667/2011 Page 2 of 20
read with Section 120-B of the IPC along with the offences under Sections
511 and 471 of the IPC. Being grieved by the said judgment of conviction
and the order of sentence, the petitioner preferred an appeal and the
appellate Court, while affirming the conviction, extended him the benefit
under Section 360 of the Code of Criminal Procedure (for short „the CrPC‟).
Eventually, he executed a bond and was released on probation of good
conduct.
3. After the petitioner was released on probation of good conduct, he
submitted a representation on 27.8.2007 to revoke his order of suspension
and to reinstate him. The authorities, instead of considering his
representation, decided to proceed against him and, accordingly, issued a
memorandum on 3.10.2007 and thereafter, vide notice dated 23.11.2007,
asked him to submit a representation on the proposed penalty of removing
him from service.
4. Being dissatisfied with the said notice, the petitioner preferred O.A.
86/2008 which was disposed of on 28.5.2008 with the direction to the
competent authority that in the event the applicant prefers a representation
WP(C) No.3667/2011 Page 3 of 20
against the memorandum dated 3.10.2007, it should be decided by passing a
reasoned order within one month. As the factual narration would further
uncurtain, the petitioner submitted a reply to the show cause notice dated
9.6.2008. The disciplinary authority, on consideration of the fact that the
petitioner had been convicted on criminal charges, found that the petitioner
was unfit to be retained in service. Being of this view, the punishment of
removal was imposed on him.
5. Aggrieved by the order of removal, the petitioner filed a statutory
appeal and as there was delay in disposal of the appeal, he preferred O.A.
No.970/2010 wherein the tribunal directed the appellate authority to dispose
of the appeal by passing a cogent and germane order within a period of two
weeks. Thereafter, the appellate authority passed an order on 8.9.2010
affirming the decision of the disciplinary authority. The said orders came to
be assailed before the tribunal.
6. It was contended before the tribunal that when the learned Additional
Sessions Judge had discharged him for the offence punishable under Section
419 of the IPC, the trial court could not have proceeded with the said
WP(C) No.3667/2011 Page 4 of 20
charge. The tribunal took note of the fact that the petitioner was working as
a Daftari and had committed fraudulent encashment of refund order and
hatched a criminal conspiracy in pursuance of which he went to the Reserve
Bank of India to deliver the fraudulent refund order and the same would
clearly come within the ambit of moral turpitude and hence, the order of
removal is justified. Being of this view, the tribunal declined to interfere.
7. We have heard Mr.Shankar Raju, learned counsel for the petitioner,
Mr.Anuj Aggarwal, learned counsel for the respondent No.1 and
Mr.R.V.Sinha along with Ms.Sangita Rai, learned counsel for the
respondents No.2 to 5.
8. Mr.Shankar Raju, learned counsel for the petitioner, has contended
that the tribunal should have taken note of the fact that despite the petitioner
having been discharged, he is illegally convicted under Section 419 of the
IPC and, therefore, it would have been advisable to remit the matter to the
disciplinary authority to reconsider the whole thing regard being had to the
doctrine of proportionality. It is also urged by him that as the petitioner was
extended the benefit of probation, the said aspect should have weighed with
WP(C) No.3667/2011 Page 5 of 20
the tribunal. It is canvassed by Mr.Raju that the finding recorded by the
tribunal that the petitioner was convicted in respect of the offences
involving moral turpitude is not sustainable in law as the conviction in
respect of the offences do not relate to moral turpitude.
9. Mr.Anuj Aggarwal, learned counsel for the respondent No.1 and
Mr.R.V.Sinha along with Ms.Sangita Rai, learned counsel appearing for the
respondents No. 2 to 5, contended that even if the petitioner is deemed to be
acquitted under Section 419 of the IPC, the other offences are grave in
nature and, hence, the conclusion arrived at by the disciplinary authority
cannot be found fault with. The learned counsel for the respondents would
further submit that the offences do come within the sphere of moral
turpitude and, therefore, the service of the petitioner has been rightly
dispensed with.
10. To appreciate the complete scenario, it is appropriate to refer to the
judgment passed by the learned Magistrate. True it is, that the petitioner
had been discharged under Section 419 of the IPC but the learned
Magistrate in the trial had passed the following order:
WP(C) No.3667/2011 Page 6 of 20
"I have considered the rival contentions made
before me. In view of the fact that the accused
Sanjay Prashad is a first time offender a lenient
view is taken against him. He is sentenced to
Rigorous Imprisonment for a period of 2 months
for the offence u/s. 419 IPC read with 120-B
IPC. Further I sentenced the accused Sanjay
Prashad Rigorous Imprisonment for a period of 2
months for the offence u/s. 420 IPC read with
section 511 IPC. I also sentenced the accused
Rigorous Imprisonment for a period of 2 months
with fine for a sum of Rs.10,000/- for the offence
u/s. 471 IPC, in default of payment of fine the
accused shall undergo Simple Imprisonment for a
period of one month. It is clarified that all the
sentences shall run concurrently and benefit of
section 428 Cr.P.C. is being given to the accused
for the period already undergone by him.
In view of the fact that the accused Sunil
Kumar is involved in as many as 5 other cases, I
am of a considered view that he does not deserve
any leniency. He is sentenced to Rigorous
Imprisonment for a period of three years for the
offence u/s. 420/511 IPC. I further sentenced him
Rigorous Imprisonment for a period of three
years for the offence u/s. 467/120-B IPC and fine
for a sum of Rs.10,000/-, in default of payment of
fine the accused shall undergo simple
imprisonment for a period of one month. The
accused is further sentenced to Rigorous
Imprisonment for a period of three years and
fine for a sum of Rs.10,000/- for the offence u/s.
468/120-B IPC, in default of payment of fine the
accused shall undergo simple imprisonment for a
period of one month. I also sentenced the accused
WP(C) No.3667/2011 Page 7 of 20
Rigorous Imprisonment for a period of three
years for the offence u/s. 471/120-B IPC."
11. In the appeal, the learned Additional Sessions Judge maintained the
judgment of conviction and proceeded to state as follows:
" 10. So far as sentence is concerned, this
appellant Sanjay Prasad were given RI for the
period of 2 months for the offence U/s 419 IPC
R/W section 120-B IPC. Further he was sentenced
RI for the period of 2 months for the offence U/s.
420 R/W section 511 IPC and RI for two months
and a fine of Rs.10,000/- for the offence
punishable U/s. 471 IPC. He was also given
benefit of section 428 of Cr.P.C. Since he has
already remained in J/c for two months so he is
sentenced for the period already undergone. The
fine he has already deposited.
11. The Ld.Counsel for the appellant and
appellant both request that since this is his first
offence and he is a government servant working in
I.T.Department and offence has been committed
might be due to some misunderstanding etc. So the
appellant may be given benefit of Probation of
Offender Act and of section 360 of Cr.P.C.
12. I considered all the facts and circumstance
of the matter and found that this is a case where
benefit of section 360 of Cr.P.C. can be given to
the appellant. I consider the antecedents and also
the circumstance in which the offence was
committed. I am of the view that it would be
WP(C) No.3667/2011 Page 8 of 20
proper if the appellant is released on Probation of
good conduct instead of sentencing to him at-once
any punishment. Accordingly, I grant him the
benefit of section 360 of Cr.P.C. The appellant is
directed that he would be released on his entering
into a bond of Rs.20,000/- with one surety in the
like amount as he is to appear and hear the
sentence if called upon during the period of 3 years
and in the meantime he is to maintain good
conduct and behavior. The fine amount deposited
by the appellant would be taken as cost of
litigation."
12. The disciplinary authority, by the order dated 7.7.2008, referring to
Rule 19 of the CCS (CCA) Rules, had passed the following order:
" AND WHEREAS Shri Prasad, by presenting
the refund order to RBI on 17.05.2005 for
encashment, criminally conspired and attempted to
commit offences of cheating by impersonation and
to dishonestly induce delivery of cash by
presenting a forged refund order as genuine. He
had not gone to the bank to discharge his official
duty assigned by his supervisory officer. He had
no obligation to take and present the said refund
order to RBI. The criminal offence committed by
Shri Sanjay Prasad is of grave nature and cannot
be taken lightly as it involves conduct of a
Government servant attempting misappropriation
of tax payer‟s money by illegal and fraudulent
means. Shri Prasad has been found guilty of the
charges under sections 419, 420 & 471 of IPC read
with sections 120B & 511 of IPC which have been
WP(C) No.3667/2011 Page 9 of 20
proved and the conviction upheld both by the Trial
Court and the Sessions Court. He deserves a major
penalty by way of removal from service. Being a
case involving criminal charge, it would not be
proper to allow Shri Prasad to work as public
servant. I am, therefore, satisfied that keeping in
view the gravity of criminal conduct, Shri Sanjay
Prasad deserves to be removed from the service."
The appellate authority has given reasons to concur with the order
passed by the disciplinary authority.
13. In this regard, we may refer with profit to the decision in In re 'P' An
Advocate; AIR 1963 SC 1313 wherein the Constitution Bench, while
dealing with the facet of moral turpitude in the context of delinquency by an
„Advocate-on-record‟, has held thus:
"It is true that mere negligence or error of
judgment on the part of the Advocate would not
amount to professional misconduct. Error of
judgment cannot be completely eliminated in all
human affairs and mere negligence may not
necessarily show that the Advocate who was
guilty of it can be charged with misconduct, vide
In re A Vakil, ILR 49 Mad 523: (AIR 1926 Mad
568) and in the matter of an Advocate of Agra,
ILR (1940) All 386: (AIR 1940 All 289 (SB)).
But different considerations arise where the
negligence of the Advocate is gross. It may be
that before condemning an Advocate for
misconduct, courts are inclined to examine the
WP(C) No.3667/2011 Page 10 of 20
question as to whether such gross negligence
involves moral turpitude or delinquency. In
dealing with this aspect of the matter, however, it
is of utmost importance to remember that the
expression "moral turpitude or delinquency" is not
to receive a narrow construction. Wherever
conduct proved against an Advocate is contrary to
honesty, or opposed to good morals, or is
unethical, it may be safely held that it involves
moral turpitude. A willful and callous disregard
for the interests of the client may, in a proper case,
be characterised as conduct unbefitting an
Advocate. In dealing with matters of professional
propriety, we cannot ignore the fact that the
profession of law is an honourable profession and
it occupies a place of pride in the liberal
professions of the country. Any conduct which
makes a person unworthy to belong to the noble
fraternity of lawyers or makes an advocate unfit to
be entrusted with the responsible task of looking
after the interests of the litigant, must be regarded
as conduct involving moral turpitude. The
Advocate-on-record like the other members of the
Bar are Officers of the Court and the purity of the
administration of justice depends as much on the
integrity of the Judges as on the honesty of the
Bar. That is why dealing with the question as to
whether an Advocate has rendered himself unfit to
belong to the brotherhood at the Bar, the
expression "moral turpitude or delinquency" is not
to be construed in an unduly narrow and restricted
sense."
[Emphasis supplied]
WP(C) No.3667/2011 Page 11 of 20
14. In J.Jaishankar v. Government of India & Anr., 1996 SCC (L&S)
1372, the appellant was convicted for an offence under Section 509 IPC and
sentenced to pay a fine of Rs.100/-. The employee sought a reference under
Section 10 of the Industrial Disputes Act, 1947 for adjudication of his
dismissal from service. The Central Government declined to refer the
dispute. Being dissatisfied, a writ petition was filed before the learned
Single Judge. The learned Single Judge allowed the petition. In appeal, the
Division Bench modified the order and on the basis of a concession given
by the respondent, the order of dismissal was converted into discharge from
service without retiral benefits. However, the Division Bench directed to
pay him gratuity, as payable, in accordance with law. In appeal, reliance
was placed on the decision in Pawan Kumar v. State of Haryana & Anr.,
AIR 1996 SC 3300. Their Lordships have held thus:
"In view of the admitted position that the
conviction of the petitioner for an offence under
Section 509 IPC had attained finality, it
undoubtedly involves moral turpitude as it is
impermissible for such an employee to continue in
service. When a government servant is dismissed
from service on conviction by a criminal court
involving moral turpitude, it automatically leads to
removal from service, without further enquiry.
WP(C) No.3667/2011 Page 12 of 20
Can a worker be put on a higher pedestal than as a
government servant? The obvious answer is „No‟.
In view of the conviction for moral turpitude of
the petitioner and due to conviction for an offence
under Section 509 IPC, the order of dismissal was
rightly passed. The recommendation made by this
Court was made after noticing the trivial offences
like traffic offences, municipal offences and other
petty offences under the IPC which do not involve
moral turpitude. This Court recommended to
Parliament to step in and make necessary
alteration in law so that consequence of the
conviction and sentence would suitably be
modulated and mitigated in the light of the
judgment. That ratio is clearly inapplicable to the
facts of this case. As a fact, on the basis of
concession made by the learned counsel for the
respondents, the Division Bench of the High Court
modified the order of dismissal to one of discharge
from service without consequential retiral benefits
but with payment of gratuity in accordance with
law. The learned Single Judge was obviously in
error in directing reference to the Industrial
Tribunal. We do not, therefore, find any illegality
warranting interference."
[ Emphasis added]
15. In Durga Singh v. The State of Punjab, AIR 1957 Punjab 97, it has
been opined thus:
"The term "moral turpitude" is a rather vague one
and it may have different meanings in different
contexts. The term has generally been taken to
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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. Even
if the words "involving moral turpitude" are held
to be implied in "conviction on a criminal charge"
in Proviso to Art. 311(2) it appears to me clear that
if a member of the Police Force is guilty of having
been found drunk at a public place or to have
become habituated to liquor and if he is convicted
by a criminal Court, then his conviction should be
held as involving moral turpitude. It appears to
me rather incongruous that persons who are
habituated to liquor and are found drunk in public
places should be allowed to remain in Police Force
to bring such persons to book. I have, therefore,
no hesitation in rejecting this contention on behalf
of the petitioner. I accordingly hold that the
petitioner in the present case was not entitled to
protection under Art. 311(2) of the Constitution."
16. In Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1,
the respondent was visited with an order of suspension which was
challenged on the ground that solely because there was an allegation that the
employee had entered into a criminal conspiracy, it could not be regarded
that an offence involving moral turpitude had been committed by him and,
therefore, the Bank had no jurisdiction to pass the order of suspension. The
WP(C) No.3667/2011 Page 14 of 20
High Court quashed the order of suspension and directed full payment of
salary and allowances to the respondent. In that case, their Lordships posed
a question as to what is an offence involving moral turpitude in the context
of handling of accounts of the bank and expressed the view as follows:
"8. What is an offence involving "moral turpitude" must
depend upon the facts of each case. But whatever may be
the meaning which may be given to the term "moral
turpitude" it appears to us that one of the most serious
offences involving "moral turpitude" would be where a
person employed in a banking company dealing with
money of the general public, commits forgery and
wrongfully withdraws money which he is not entitled to
withdraw.
9. This Court in Pawan Kumar v. State of Haryana
(1996) 4 SCC 17: 1996 SCC (Cri) 583 (SCC at p.21)
dealt with the question as to what is the meaning of
expression "moral turpitude" and it was observed as
follows:
" ‟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."
This expression has been more elaborately explained in
Baleshwar Singh v. District Magistrate and Collector
where it was observed as follows:
"The expression 'moral turpitude' is not defined
anywhere. But it means anything done contrary to
justice, honesty, modesty or goods morals. It
WP(C) No.3667/2011 Page 15 of 20
implies depravity and wickedness of character of
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 fellowmen 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."
17. In State of Punjab & Ors. v. Ram Singh, AIR 1992 SC 2188, a
three-Judge Bench was dealing with the dismissal of an employee on the
ground that he had misconducted himself as per Rule 16.2(1) of the Punjab
Police Manual, 1934 inasmuch as he was heavily drunk and had become
uncontrollable. Their Lordships referred to the clause which provided that
dismissal shall be awarded only for the gravest acts of misconduct or as the
cumulative effect of continued misconduct proving incorrigibility and
complete unfitness for police service, and in making such an award, regard
shall be had to the length of service of the offender and his claim to pension.
WP(C) No.3667/2011 Page 16 of 20
In that context, their Lordships referred to the meaning given to the term
"misconduct" in Black‟s Law Dictionary and in P. Ramanatha Aiyar‟s Law
Lexicon, Reprint Edition 1987 and eventually expressed the view as
follows:
"Thus it could be seen that the word 'misconduct' though
not capable of precise definition, its reflection receive its
connotation from the context, the delinquency in its
performance and its effect on the discipline and the
nature of the duty. It may involve moral turpitude, it
must be improper or wrong behaviour; unlawful
bahaviour, wilful in character; forbidden act, a
transgression of established and definite rule of action or
code of conduct but not mere error of judgment,
carelessness or negligence in performance of the duty;
the act complained of bears forbidden quality or
character. Its ambit has to be construed with reference to
the subject-matter and the context wherein the term
occurs, regard being had to the scope of the statute and
the public purpose it seeks to serve. The police service is
a disciplined service and it requires to maintain strict
discipline. Laxity in this behalf erodes discipline in the
service causing serious effect in the maintenance of law
and order."
18. We have referred to the said decision as it highlights that a
misconduct may involve moral turpitude and the whole ambit has to be
construed with reference to the subject matter.
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19. In Mahak Singh v. State of UP & Ors., AIR 1999 Allahabad 274,
the Bench referred to the decision in Harsukh Lal v. Sarnam Singh, 1964
ALL LJ 1118 wherein the observations of Hon‟ble V.Broome, J. were
reproduced which read as follows:
" „Turpitude‟ is a word of high emotional significance,
suggesting conduct of such depravity as to excite
feelings of disgust and contempt. The crime of simple
hurt does not normally provoke any such reaction and
consequently cannot be classed as an offence involving
moral turpitude and it seems to me that there is no
logical reason why the offence of murder, which in
essence is only and aggravated form of hurt, should be
held necessarily to involve moral turpitude. I am willing
to concede that murders which are premeditated and
planned in cold blood, those which the perpetrated for
some base motive and those which are carried out with
extreme ferocity and cruelty do involve moral turpitude,
as they naturally evoke a spontaneous feeling of
repulsion and condemnation in the mind. But a murder
committed in the head of a fight or in response to serious
provocation could hardly be placed in the same
category."
20. In the said case, as the petitioner had committed murder of his step
mother, the Bench expressed the view that the act was one of moral
turpitude.
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21. Regard being had to the concept of moral turpitude, as has been
enunciated in the afore-mentioned authorities, there can be no scintilla of
doubt that in the case at hand, when the petitioner has been convicted for
offences under Sections 471, 420, 511, 467/120-B and 468/120-B of the
IPC, the same definitely comes within the concept of moral turpitude.
Mr.Raju, learned counsel for the petitioner, has contended that when he has
been extended the benefit of release on probation, a lenient view should
have been taken. It is worth noting, there is difference between a judgment
of conviction and eventual order of sentence. The learned appellate Judge
has affirmed the judgment of conviction passed by the learned trial Judge
but has extended the benefit under Section 360 of the Code of Criminal
Procedure. As long as the conviction remains, the facet of moral turpitude
remains alive.
22. We will be failing in our duty if we do not take note of the additional
submission of Mr.Raju, learned counsel for the petitioner, to the effect that
the tribunal would have been well advised to take note of the decision in
Roop Chand v. Gopi Chand Thelia, AIR 1989 SC 1416 that when the
petitioner could not have been convicted under Section 419 of the IPC and
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the authorities have adverted to the same, in this factual backdrop, the
doctrine of proportionality should have been invoked. True it is, the
petitioner was discharged under Section 419 of the IPC but the conviction in
respect of rest of the offences did remain and, therefore, the factum of moral
turpitude could not have been ignored. In such a circumstance, the
punishment of dismissal passed against the petitioner does not shock our
judicial conscience and he does not deserve to be leniently dealt with and,
therefore, the doctrine of proportionality does not get remotely attracted.
23. In view of the aforesaid analysis, we do not perceive any merit in this
writ petition and, accordingly, the same stands dismissed without any order
as to costs.
CHIEF JUSTICE
SEPTEMBER 19, 2011 SANJIV KHANNA, J.
sv WP(C) No.3667/2011 Page 20 of 20