Kerala High Court
Anand John vs Zonal Manager on 14 September, 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938
WA.No. 2072 of 2016 (J) IN WP(C).19697/2015
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AGAINST THE JUDGMENT IN WP(C) 19697/2015 DATED 14-09-2015
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APPELLANT(S)/PETITIONER IN WPC. :-
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ANAND JOHN, AGED 28 YEARS,
MALIAKAL HOUSE, N.CHALAKUDY,
CHALAKUDY P.O., TRISSUR - 680 307.
BY ADVS.SRI.C.V.MILTON
SRI.T.P.PRADEEP
RESPONDENT(S)/RESPONDENTS IN WPC. :-
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ZONAL MANAGER, BANK OF INDIA,
ZONAL OFFICE OF BANK OF INDIA,
KERALA ZONE, K.K.ROAD, KALOOR TOWERS,
COCHIN - 682 017.
BY SRI.JAWAHAR JOSE, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22-11-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MOHAN M. SHANTANAGOUDAR, C.J
&
SATHISH NINAN, J.
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W.A. No.2072 of 2016
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Dated this the 22nd day of November 2016
J U D G M E N T
Mohan M. Shantanagoudar, C.J The judgment dated 14.9.2015 passed in W.P.(C) No.19697 of 2015 is called in question in this appeal by the unsuccessful writ petitioner.
2. The records reveal that the Chalakudy Branch of the respondent Bank invited application for permanent appointment to the post of Sub Staff (Sepoy) while the appellant was working there in such post on temporary basis. The appellant submitted application and the Bank selected him to the post of Sub Staff (Sepoy) subject to submission of satisfactory proof of eligibility like caste certificate in the prescribed format, certificates of educational qualifications, proof of age etc. However, it is made clear that the appointment of the appellant and confirmation thereafter in the Bank is subject to receipt of satisfactory police verification of his character and antecedents. The offer letter dated 29.11.2014 given by the Bank is produced in the writ petition as Ext.P2. Subsequently, on 7.2.2015, the Bank issued a letter to the appellant W.A. No.2072 of 2016 -: 2 :- as per Ext.P3 informing him that as per the police verification report received, they found that he is not suitable for the post and hence, the offer of appointment given by them stands revoked. Questioning such revocation of appointment, the appellant approached this Court by filing the above writ petition, which came to be dismissed by the impugned judgment.
3. It is not in dispute that the appellant was charged for the offences punishable under Section 118(e) of the Kerala Police Act, 2011 and Section 185 of the Motor Vehicles Act, 1988. The same was registered in C.C. No.4871 of 2013. In the said matter, the appellant pleaded guilty and was convicted and sentenced to undergo imprisonment till the rising of the court and to pay a fine `2,000/- for offence under Section 118(e) of the Kerala Police Act and `1,000/- for offence under Section 185 of the Motor Vehicles Act. He was also charged for the offence punishable under Section 118(a) of the Kerala Police Act, for which, a case was registered as C.C. No.2681 of 2013. In the said matter also, the appellant pleaded guilty and was convicted and sentenced to undergo imprisonment till the rising of the court and to pay a fine of `2,500/-.
4. At the time of filing the application seeking permanent appointment, the appellant had given an affidavit cum undertaking as per Ext.R(B), the relevant portion of which reads thus :- W.A. No.2072 of 2016 -: 3 :-
"2. I hereby declare that I have no criminal antecedents. In case of verification, if there is any adverse report from the concerned authorities, my appointment shall be liable to be terminated."
The Bank, based on the aforementioned orders passed by the criminal court convicting the appellant for the offences punishable under Sections 118(a) and 118(e) of the Kerala Police Act and Section 185 of the Motor Vehicles Act as well as on the ground that he had suppressed those facts in his affidavit by mentioning that he had no criminal antecedents, revoked the offer of appointment.
5. Learned counsel for the appellant, however submits that the two offences, wherein the appellant was convicted are petty offences relating to drunken behaviour; one in public and another, while driving a vehicle under the influence of alcohol and the same do not amount to the offence involving 'moral turpitude'.
6. Sri.Jawahar Jose, learned counsel appearing on behalf of the Bank, taking us to the material on record, submits that the offences committed by the appellant repeatedly on two occasions fall within the definition of 'moral turpitude', inasmuch as in the drunken condition, the appellant was found to be creating nuisance to the public. He further submits that the appellant has suppressed in his affidavit by declaring that he does not have any criminal antecedents, though he was convicted in the two matters mentioned W.A. No.2072 of 2016 -: 4 :- supra. On all these grounds, he prays for confirmation of the judgment passed by the learned Single Judge in the writ petition, by which, the action of the Bank refusing appointment to the appellant was confirmed.
Learned counsel further relied upon the judgment of the Delhi High Court in Bank of Maharashtra & Another v. Om Prakash Malvaliya [ILR (1997) II Delhi p.135] in support of his case to contend that the offences committed by the appellant squarely falls within the meaning of offence involving 'moral turpitude'.
In Bank of Maharashtra's case (cited supra), the learned Single Judge of Delhi High Court while considering the question as to whether the offence does or does not involve 'moral turpitude', has summarised as under :-
"11. The test which can be applied for judging whether an offence does or does not involve "moral turpitude" can be summarised as follows :
(1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general;
(2) whether the motive which led to the act was a base one; and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.
W.A. No.2072 of 2016 -: 5 :-
12. It is not possible to lay down any abstract standard which constitutes moral turpitude. There are certain criminal offences like theft, robbery, criminal breach of trust, misappropriation of property, which directly involve moral turpitude. In such cases, no elaborate investigation is required to find out the depraved conduct of the delinquent employee. If the offence does not show any element of vileness, deprivity and weakness of character of the offender the disciplinary authority is required to consider the facts and circumstances of the case to find out whether the motive which led to the conviction was deprave. It is a settled law that "moral turpitude" cannot be applied in its widest term. However, the ratio decidendi of the various cases indicate that the question whether a certain offence involves "moral turpitude" or not will necessarily depend on the circumstances in which the offence is committed. It is not in every punishable act that can be considered to be an offence involving moral turpitude. Any criminal conviction per se does not amount to "moral turpitude". So it follows that when an employee is convicted on criminal charge his dismissal cannot be automatic, unless, there is a specific rule in that regard."
We agree with the observations made by the Delhi High Court that if the act leading to a conviction was such as would shock the moral conscience of society in general, if the motive which led to the criminal act was a base one and if on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the W.A. No.2072 of 2016 -: 6 :- society may fall under the definition of 'offence involving moral turpitude'. However, we hasten to add that it is not possible to lay down any abstract standard, which constitutes 'moral turpitude'. Each case has to be dealt with based on the facts and circumstances of that case. However, it is settled law that 'moral turpitude' cannot be applied in its widest term. Every criminal conviction per se does not amount to 'moral turpitude'.
7. But, in the matter on hand, looking to the provisions, for which the appellant is convicted, we are of the opinion that the offences committed by the appellant may not be said to be involving 'moral turpitude'. In this context, it is relevant to quote the provisions of Sections 118(a) and 118(e) of the Kerala Police Act and Section 185 of the Motor Vehicles Act. Sections 118(a) and (e) of the Kerala Police Act, which read thus :-
"118. Penalty for causing grave violation of public order or danger.- Any person who,-
(a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself; or xx xx xx xx
(e) knowingly does any act which causes danger to public or failure in public safety; or xx xx xx xx"
W.A. No.2072 of 2016 -: 7 :-
Section 185 of the Motor Vehicles Act reads thus :-
"185. Driving by a drunken person or by a person under the influence of drugs.- Whoever, while driving, or attempting to drive, a motor vehicle,-
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both."
Section 185 of the Motor Vehicles Act is applicable when, a person drives or attempting to drive a motor vehicle has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser or is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
Here, it is not a case, where the appellant is stated to have been used narcotic drugs etc. On the other hand, it is a case, wherein, the appellant was found in a public place in drunken condition or was driving the vehicle in both the cases registered against him. W.A. No.2072 of 2016 -: 8 :-
Section 118(a) of the Kerala Police Act can be invoked when a person is found in a public place in an intoxicated manner or rioting condition or incapable of looking after himself. Three possibilities are available to invoke this section. There is nothing on record to show that the appellant was in a rioting condition. Section 118(e) of the Kerala Police Act can be invoked when a person, who knowingly does any act which causes danger to public or failure in public safety. This appears to be a bit grave offence. However, in our considered opinion, that may not come within the definition of offence involving 'moral turpitude'.
8. As mentioned supra, each and every judgment of conviction cannot be treated as the judgment of conviction relating to offence involving 'moral turpitude'.
In this context, it is relevant to note a recent judgment of the Supreme Court in Avtar Singh v. Union of India and others [2016 (4) KHC 359 (SC)], wherein, the Apex Court has observed thus :-
"(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
W.A. No.2072 of 2016 -: 9 :-
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee."
In the said judgment, the Apex Court, after noticing various decisions, summarised as under :-
"(1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
(2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government orders instructions/rules, applicable to the employee, at the time of taking the decision.
(4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :
(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
W.A. No.2072 of 2016 -: 10 :-
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/ serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. W.A. No.2072 of 2016 -: 11 :-
(9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
(10) For determining suppression or false information attestation/ verification form has to be specific, not vague.
Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
9. Since we find that the offences committed by the appellant as mentioned supra do not fall under the definition of 'offence involving moral turpitude', the contention of the respondent cannot be accepted. Section 10 of the Banking Regulation Act, 1949 clearly states that no banking company shall employ or continue the employment of any person, who has been convicted by a criminal court for an offence involving 'moral turpitude'. Thus, if any person is involved in an offence involving 'moral turpitude', it is not open for the Bank to appoint him. W.A. No.2072 of 2016 -: 12 :-
But, in the matter on hand, we find that the offence committed by the appellant may not be trivial in nature, but it will not come within the definition of 'offence involving moral turpitude'.
10. The second point raised by the respondent Bank is that the appellant has suppressed the orders of conviction passed against him in his affidavit submitted along with the application. The said submission also cannot be accepted, inasmuch as we do not find any suppression in the affidavit filed by the appellant along with the application. The said affidavit reads thus :-
"AFFIDAVIT-CUM UNDERTAKING I, ANANAD JOHN aged 27 years S/o Johny M.O., residing at Maliakkal House, North Chalakudy, Kattipokkam, Pin :
680307 Thrissur District, Kerala do hereby solemnly and states as follows :
1. I have been selected for employment in Bank of India as Sepoy
2. I hereby declare that I have no criminal antecedents.
In case of verification, if there is any adverse report from the concerned authorities, my appointment shall be liable to be terminated.
3. I also understand that if police verification report is not received within a reasonable period, Bank will be justified to cancel my candidature/appointment. All the facts stated above and related to employment are true and correct to the best of my knowledge, information and belief."
W.A. No.2072 of 2016 -: 13 :- Looking to the affidavit filed by the appellant, it is amply clear that he had declared that he has no criminal antecedents. We have no reason to disbelieve the appellant in his submission that he was never under the impression that the two petty offences referred to above were considered to be his 'criminal antecedents' and it was for that reason that it was not indicated in the affidavit.
11. It is not in dispute that the appellant has been working in the Bank as a temporary employee since five years. Except the aforementioned two small incidents, he was not involved in any other offences. The offences are committed in the year 2013. Till this date, no other crime is registered against him. We also find that there is no record to show that the offence of drinking etc. are committed during the course of his duty.
Having regard to the totality of the facts and circumstances, in our considered opinion, leniency can be shown in favour of the appellant. Accordingly, the impugned judgment stands set aside and the appeal is allowed.
Sd/-
MOHAN M. SHANTANAGOUDAR CHIEF JUSTICE Sd/-
SATHISH NINAN JUDGE Jvt/23.11.2016