Punjab-Haryana High Court
Ved Kaur vs State Of Haryana And Another on 22 January, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
C.M. NO.16738 OF 2012 (O&M)
CIVIL WRIT PETITION NO.14998 OF 2007 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JANUARY 22, 2014
Ved Kaur
.....Petitioner
VERSUS
State of Haryana and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Jaspal Singh Maanipur, Advocate,
for the petitioner.
Mr. Sunil Nehra, Sr.DAG, Haryana,
for the State.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
C.M. No.16738 of 2012
Prayer in this application is for disposal of the writ petition in the light of the judgement passed by this Court in Civil Writ Petition No.3221 of 2010 (Ram Chander Vs. The State of Haryana and another), decided on 17.7.2012, Annexure A-1.
With the consent of the counsel for the parties, the main writ petition is taken up for hearing and disposal.
The application stands disposed of.
Khurmi Rakesh 2014.01.24 10:02 I attest to the accuracy and integrity of this document C.M. NO.16738 OF 2012 (O&M) CIVIL WRIT PETITION NO.14998 OF 2007 :{ 2 }: Civil Writ Petition No.14998 of 2007
Petitioner, who is widow of Sh.Dharam Singh, who was a J.B.T Teacher in Education Department, Haryana, and joined the said post on 7.10.1967 on adhoc basis and thereafter was regularised on 8.4.1968, was dismissed from service vide order dated 28.3.1995, Annexure P-1, with retrospective effect from 29.10.1994, on account of conviction and sentence under Section 304 Part II read with Section 34 IPC for a period of four years RI and fine of ` 250/-.
Petitioner alongwith his co-accused preferred an appeal i.e. Criminal Appeal No.501 SB of 1994 `Jai Parkash and others Vs. State of Haryana' against the order of conviction and sentence. During the pendency of the said appeal, Dharam Singh expired on 11.12.2002. An application was preferred by the legal representative of Dharam Singh i.e. the petitioner herein, which was allowed vide order dated 25.3.2004 and Smt.Ved Kaur, petitioner herein, was impleaded as a legal representative. The said appeal was decided by this Court vide judgement dated 7.7.2004, Annexure P-4, wherein qua two other appellants, namely, Jai Parkash and Rajbir, the offence committed by them was found to be under Section 323 read with Section 34 IPC and the sentence was reduced to rigorous imprisonment for one year each. As regards, Dharam Singh, husband of the petitioner, the appeal was deemed to be abated.
Thereafter, the petitioner preferred a legal notice to the District Primary Education Officer, Bhiwani-respondent No.2, for grant of service benefits of her husband, who would be entitled to setting-aside of the impugned order of dismissal in the light of the fact that the offences for Khurmi Rakesh 2014.01.24 10:02 I attest to the accuracy and integrity of this document C.M. NO.16738 OF 2012 (O&M) CIVIL WRIT PETITION NO.14998 OF 2007 :{ 3 }:
which the conviction would stand against her husband, would not fall within the ambit of an offence to be of such a nature, which would involve moral turpitude. Support was also sought from the Haryana Government instructions dated 26.3.1975, Annexure P-2, wherein the instructions clearly specify the offences which would fall within the term `moral turpitude'. When no action was taken by the respondents, the petitioner filed Civil Writ Petition No.4944 of 2005, which was disposed of by this Court vide order dated 29.3.2005, directing the respondents to decide the legal notice served by the petitioner by passing a speaking order within a period of two months. Thereafter, the impugned order dated 6.6.2005, Annexure P-5, has been passed by the District Primary Education Officer, Bhiwani (respondent No.2), rejecting the claim of the petitioner.
The petitioner challenged the order dated 6.6.2005, Annexure P-5 by filing Civil Writ Petition No.10134 of 2005, which was disposed of by the Division Bench of this Court vide order dated 30.1.2006 while relying upon a judgement of the Supreme Court reported as Mohinder Singh and another Vs. State of Punjab and others, 2003 (2) Recent Criminal Cases 346 and direction was issued to the respondents to reconsider the claim of the petitioner in the light of the said judgement and pass a speaking order within a period of four months. In pursuance thereof order dated 25.7.2006, Annexure P-7, has been passed by respondent No.2, where again the claim of the petitioner stands rejected. It is this order, which is challenged by the petitioner in the present writ petition.
It is the contention of counsel for the petitioner that in the light of the judgement of Hon'ble Supreme Court in the case of Mohinder Singh Khurmi Rakesh 2014.01.24 10:02 I attest to the accuracy and integrity of this document C.M. NO.16738 OF 2012 (O&M) CIVIL WRIT PETITION NO.14998 OF 2007 :{ 4 }:
(supra), the conduct of the petitioner in the commission of offence, for which he has been convicted, has to be looked at by the respondents while deciding his claim as to whether he is to be retained in service or not. He, on this basis, contends that conduct of husband of the petitioner has, therefore, to be looked at in the light of the observations and the findings recorded by this Court vide its judgement dated 7.7.2004. His submission is that the husband of the petitioner was initially convicted by the trial Court under Section 304 read with Section 34 IPC, which, on an appeal, has now been converted to conviction under Section 323 read with Section 34 IPC qua two other co-appellants, namely, Jai Parkash and Rajbir. Although the appeal of husband of the petitioner has been stated to be deemed to have been abated but the role of the petitioner and the evidence against him has been taken note of by the learned Single Judge and, therefore, the case of husband of the petitioner being on better footing than that of Jai Parkash and Rajbir, his claim or his conviction cannot be taken beyond the offence for which the co-accused have been convicted. He places reliance upon the instructions dated 17/26.3.1975, Annexure P-2, to contend that an offence under Section 323 IPC, which does not involve moral turpitude as per these instructions, would not sustain and, thus, the order of dismissal of husband of the petitioner deserves to be set-aside. Reliance has also been placed upon the judgement of this Court in Ram Chander's case (supra).
On the other hand, counsel for the respondents submits that merely because husband of the petitioner has been convicted for an offence under Section 304 read with Section 34 IPC, would not entitle his reinstatement in service as in the appeal, which has been preferred by him, Khurmi Rakesh 2014.01.24 10:02 I attest to the accuracy and integrity of this document C.M. NO.16738 OF 2012 (O&M) CIVIL WRIT PETITION NO.14998 OF 2007 :{ 5 }:
the conviction, as such, has not been altered in his case and rather the appeal has been ordered to be deemed to have been abated. He contends that even if the conduct of husband of the petitioner is to be seen, there is specific attribution of use of lathi for giving blows on the hip and back of deceased, Jaivir. He, on this basis, contends that the petitioner would not be entitled to the benefit of the judgement of this Court dated 7.7.2004. He further states that the offence of kidnapping was also attributed to husband of the petitioner. He further contends that allegations against husband of the petitioner and his co-accused are also of kidnapping of Jaivir and, therefore, it cannot be said that the petitioner has not committed an offence, which would not involve moral turpitude. Contention has further been raised that the instructions dated 17.3.1975, Annexure P-2, are not exhaustive but are only indicative in nature. He, however, could not dispute the fact that offence of Section 323 IPC does not find mention in the said list. He accordingly prays for dismissal of the writ petition.
I have considered the submissions made by counsel for the parties and with their assistance have gone through the records of the case.
The facts, as have been recorded above, are not in dispute and, therefore, are not being referred to herein again. In the light of the judgement of the Hon'ble Supreme Court in the case of Mohinder Singh (supra), the case of the petitioner has to be looked at from the point of view that whether conduct of husband of the petitioner attracts commission of any offence, for which he has been convicted involves moral turpitude.
Reference in this regard, therefore, needs to be made to the judgement passed by learned Single Judge in the appeal preferred by husband of the Khurmi Rakesh 2014.01.24 10:02 I attest to the accuracy and integrity of this document C.M. NO.16738 OF 2012 (O&M) CIVIL WRIT PETITION NO.14998 OF 2007 :{ 6 }:
petitioner alongwith other co-accused i.e. Criminal Appeal No.501 SB of 1994 `Jai Parkash and others Vs. State of Haryana'. In the said judgement, the role attributed to the petitioner is that he alongwith other three persons has forcibly taken away Jaivir to the house of Jai Parkash and thereafter had inflicted injuries on him. Dharam Singh used his lathi and inflicted injuries on the back and hips of the deceased. On the basis of these allegations, no charge was framed against any of the accused for kidnapping. The charges were framed under Section 302 IPC read with Section 149 IPC. The husband of the petitioner alongwith other co-accused was convicted for an offence under Section 304 read with Section 34 IPC by the trial Court. The argument, thus, of the counsel for the State that offence of abduction was committed by husband of the petitioner would not, therefore, be sustainable.
As regards the offence having been converted to Section 323 read with Section 34 IPC qua Jai Parkash and Rajbir is concerned, a perusal of the judgement would show that after going into the evidence of the case, including the medical evidence, the Court had come to a conclusion that the cause of death in the case was not because of the injuries which were attributed to the accused but was because of renal failure. On the basis of said finding, this Court had proceeded to hold that offence committed by Jai Parkash and Rajbir alongwith others was under Section 323 read with Section 34 IPC. The role of husband of the petitioner was similar to that of other co-accused, who had also inflicted injuries upon deceased, Jaivir, which was not found to be the cause of his death. At worse, the case of husband of the petitioner can be equated with that of two other co-accused, who had preferred an appeal alongwith the husband of the petitioner, Khurmi Rakesh 2014.01.24 10:02 I attest to the accuracy and integrity of this document C.M. NO.16738 OF 2012 (O&M) CIVIL WRIT PETITION NO.14998 OF 2007 :{ 7 }:
namely, Jai Parkash and Rajbir. Although the appeal of husband of the petitioner was ordered to be deemed to have abated but had he survived, he could have been only convicted for an offence under Section 323 read with Section 34 IPC. This, thus, negates the second argument of the counsel for the State.
As regards the contention of counsel for the respondents that the instructions dated 17.3.1975 are illustrative and are not exhaustive and, therefore, although offence under Section 323 IPC has not been specifically mentioned therein, the same would bring it within the term `moral turpitude'. The said contention also cannot be accepted in the light of the fact that offences, which have been treated as illustrative in the list, would indicate that an offence of the nature, for which husband of the petitioner has been convicted, is not reflected therein because similar nature of offences, which are mentioned in the list, can only be, if committed, included in the offences, which would involve moral turpitude. That being not so and the conduct of the husband of the petitioner, as has been referred to above, I am of the considered view that dismissal of husband of the petitioner was not in consonance with law. The claim of the petitioner in this writ would be covered in her favour by the ratio of law laid down by this Court in Ram Chander's case (supra).
Further the Division Bench judgment of this Court in State of Haryana and another Vs. Ram Chander, 2013 (3) RSJ 11, which was an appeal preferred against the order passed by this Court in Ram Chander's case (supra), while dealing with similar nature of the offences, proceeded to hold that conduct of the employee has to be seen and after observing the Khurmi Rakesh 2014.01.24 10:02 I attest to the accuracy and integrity of this document C.M. NO.16738 OF 2012 (O&M) CIVIL WRIT PETITION NO.14998 OF 2007 :{ 8 }:
same, the Division Bench had held that it would not involve moral turpitude.
In view of the above, the present writ petition is allowed. The impugned order dated 25.7.2006, Annexure P-7, is hereby quashed. The petitioner is held entitled to all consequential benefits, proceeding on the assumption that husband of the petitioner was in service till superannuation or till his death, whichever is earlier. The said benefits be released to the petitioner within a period of two months from the date of receipt of copy of this order. Further consequential benefits be released to the petitioner within a further period of two months thereafter.
January 22, 2014 ( AUGUSTINE GEORGE MASIH )
khurmi JUDGE
Khurmi Rakesh
2014.01.24 10:02
I attest to the accuracy and
integrity of this document