Gujarat High Court
Balvantbhai vs State on 19 October, 2010
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
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SCA/13370/2010 25/ 25 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13370 of 2010
=====================================
BALVANTBHAI
VADAJI CHAUHAN - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s)
=====================================
Appearance
:
MR KG PANDIT for Petitioner(s)
: 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
None for
Respondent(s) : 2 - 4.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 19/10/2010
ORAL
ORDER
1.0 Petitioner is before this Court praying that:
"9(A) That Your Lordships be pleased to admit this petition by passing suitable directions in form of mandamus and/or certiorari and/or in the nature of any order upon respondents more particularly respondent no. 2 (The Deputy Secretary, Panchayat Gram Gruh Nirman & Gram Vikas Vibhag) and no. 4 (The Deputy Secretary, Gujarat Gram Seva Satta Pasandgi Mandal - GPSC) herein above to permit the petitioner to resume duties, pursuant to the orders at Annexure 'C' issued by respondent no. 2 dated 6.10.2009 for the post of Junior Clerk Grade-III, on any suitable terms and conditions, which may be deemed fit, just and proper to this Hon'ble Court and in the interest of justice, equity and fair play and in view of the decision rendered by the Division Bench of Hon'ble Delhi High Court and for which the daily newspaper report have been annexed to this petition at Annexure 'H'."
1.1 It will be necessary in this case to refer to the relief prayed as interim relief in this petition, which reads as under:
"9(B) Pending hearing and final disposal of this petition, Your Lordships be pleased to pass suitable directions upon respondent no. 2 and/or no. 4 herein above by restraining them and/or their servants, agents, etc., the petitioner to resume duty, pursuant to the orders at Annexure 'C' dated 6.10.2009 in Junior Clerk Grade - III for the post in which he has been eligible after due verification by respondents herein above, on any suitable terms and conditions which may be deemed fit, just and proper to this Hon'ble Court and in view of the decision rendered by the Division Bench of Hon'ble Delhi High Court and for which the daily newspaper report have been annexed to this petition at Annexure 'H'."
1.2 The petitioner has also prayed for following interim relief:
"9(C) Pending hearing and final disposal of this petition, Your Lordships further be pleased to pass suitable directions upon the respondents to permit the petitioner to resume his duties in Junior Clerk Grade - III pursuant to the order at Annexure 'C' dated 6.10.2009 on condition of final outcome and/or judgment which may be delivered by this Hon'ble Court in Criminal Appeal No. 442/2009 (sic. 442/2003) subjudice before this Hon'ble Court, on any suitable terms and conditions which may be deemed fit, just and proper to this Hon'ble Court and in view of the decision rendered by the Division Bench of Hon'ble Delhi High Court annexed to this petition at Annexure 'I'."
2.0 The learned advocate for the petitioner invited attention of the Court to the following facts:
2.1 That the petitioner had approached this Court by filing Special Civil Application No. 701 of 2009, which came to be heard and disposed of by this Court (Coram: Honourable Mr. Justice MR Shah) by judgment and order dated 9th March 2009. The learned advocate for the petitioner invited attention of the Court to the operative part of the order, which reads as under:
"For the reasons stated above, petition succeeds. The impugned order dated 15.12.2008 rejecting the application for appointment on compassionate ground is quashed and set aside and concerned respondents are directed to reconsider the case of the petitioner for appointment on compassionate ground and pass appropriate order within 2 (two) months from the date of receipt of copy of this order."
3.0 The learned advocate for the petitioner then invited attention of the Court to an order passed by the Division Bench of this Court in Misc. Civil Application No. 1924 of 2003 in Special Civil Application No. 701 of 2009, which was filed because the authorities did not comply with the directions issued by the learned Single Judge of this Court (supra). The learned advocate for the petitioner submitted that the authorities came forward with an affidavit in reply, which is referred to in the judgment and order of the Division Bench dated 2nd February 2010, a copy of which is produced at Annexure 'D' to this petition, relevant part of which reads as under:
"Respondent No. 2 and 3 have filed affidavit in reply along with a communication dated 7.10.2009 whereunder the petitioner is ordered to be given an appointment on ad-hoc basis on the fixed pay of Rs.2,500/-, subject to certain conditions enumerated in the order."
3.1 The Court was pleased to discharge the Notice with no costs.
4.0 The learned advocate for the petitioner then invited attention of the Court to Annexure 'C', order dated 6th October 2009, Annexure 'C-1' - communication dated 8th October 2009 and then submitted that there is conviction recorded against the petitioner in a Sessions Case No. 97 of 2002 by judgment and order dated 7th April 2003 by the learned Fast Track Court Judge, Modasa. So far as the petitioner is concerned, he is accused no. 4 in the said Sessions Case and for an offence punishable under Sec. 186 of the Indian Penal Code, the petitioner is awarded ' 03 months' Rigorous Imprisonment' and 'Rs.500/- Fine' and in default ' 01 month's Rigorous Imprisonment' and under Sec. 135(3) of the Bombay Police Act, Fine of Rs.100/- and in default, 10 day's Simple Imprisonment. (emphasis supplied) 4.1 The learned advocate for the petitioner submitted that the petitioner has paid the fine. This fact is set out on the last page of the judgment and order of the learned Fast Track Court Judge.
4.2 The learned advocate for the petitioner submitted that against that conviction, a Criminal Appeal is preferred before this Court being Criminal Appeal No. 442 of 2003 and this Court (Coram: Honourable Mr. Justice Sharad D. Dave, as he then was) admitted the same. The learned advocate for the petitioner has produced a copy of the order passed by this Court (Coram: Honourable Mr. Justice Sharad D. Dave, as he then was) in Criminal Misc. Application No. 2734 of 2003 in Criminal Appeal No. 442 of 2003. the order passed on 25th April 2003 reads as under:
"1. Rule. Mr. A.J. Desai, learned APP waives service of rule for the respondent - State.
2. The petitioners have already been released on bail by the trial Court. The petitioners have (sic. are) convicted for offences punishable under Sections 186 of the Indian Penal Code and Section 135 of the Bombay Police Act and are sentenced to undergo simple imprisonment of three months (sic. order imposes 'Rigorous Imprisonment') and to pay a fine of Rs.500/- and in default of fine to undergo further simple imprisonment (sic. Rigorous Imprisonment) of one month by the learned Additional Sessions & Fast Track Judge, Modasa, by his judgment and order dated 07.04.2003 passed in Sessions Case No.97 of 2002.
3. In view of the above, same bail and fresh bonds for the petitioners. Rule is made absolute. D.S. permitted."
4.3 The learned advocate for the petitioner submitted that, 'the actual effect of the admission of appeal and granting same bail and fresh bonds is that the conviction and sentence stands suspended and therefore, the case of the petitioner should be considered for giving appointment to the post of Junior Clerk Grade III'.
4.4 On this submission being made, the learned advocate for the petitioner was requested to show the law that in absence of a specific order of suspending the conviction, how it can be construed that the conviction is suspended, the learned advocate for the petitioner deemed it proper to leave this argument at that stage and did not pursue it further.
5.0 The learned advocate for the petitioner then invited attention of the Court to the Division Bench judgment of the High Court of Delhi in the matter of Writ Petition (C) No. 2068 of 2010 dated 25th August 2010 and practically read the whole of the judgment with a view to see that the Court is convinced to follow a same course of action. The learned advocate for the petitioner relied upon the following Paras of the judgment, which are reproduced for ready perusal:
"20.
It is unfortunate that in India we are not marching ahead in the comity of nations and prefer to be governed by the recruitment processes which are a legacy of the British era; ignoring that the purpose of governance then was to rule and the purpose of governance now is to serve.
21. We have prefaced our decision with the statement whether pendency of a criminal proceeding or for that matter a conviction by a competent court of law may justify eyebrows to be raised, but would it justify the shutting of one‟s eye?
22. Now, a man can be booked for the offence of over-speeding and perhaps may be convicted for parking his motor vehicle in a non-parking area. Would this man be of a character, compelling in public interest and for public good, not to induct him in public service? The answer would be in the negative. As against that, a man has committed murder or has broken into a departmental store and stolen cash. Would this man be of a character, compelling in public interest and for public good, not to induct him in public service. The answer would be in the affirmative.
23. Not to induct persons with a criminal background in public service, is based on the premise that considerations of public policy, concern for public interest, regard for public good would justify a prohibition. Thus, the primary consideration is, whether public interest and public good would be jeopardized if a person with a criminal background is inducted in public service. And this takes us straight to the core of the issue, whether brush with penal law would justify the eyes to be closed against the offender or only such brush with penal law which is of a higher degree of criminality. If the answer is in the negative, the further question: what should be the higher degree of criminality which would justify the eyes being shut to such person needs to be addressed.
24. With respect to the first two examples given by us in para 22 above, none would argue that for such trivial offences the eyes must be shut against the offender, and with regard to the next two, everybody would agree that the eyes should be shut to such a person who has to be ignored. We concede that the examples are in the extreme, but they certainly help us in understanding as to the process of reasoning required to be adopted to decide as to on which side of the border-line a case would fall.
25. & 26...
27. We do not intend to make a catalog of reported decisions as to what misdemeanours should normally attract the penalty of removal or dismissal from service. We may simply state that with respect to conviction for grave and serious offences alone, on the anvil of public interest and for public good, Courts have held that the offender has rendered himself unfit to continue in office and in extreme cases summary dismissal or removal from service by invoking Article 311 of the Constitution is also held justified.
28...
29. Looking through the prism of case law pertaining to when can the door be shown to a government servant and by doing reverse engineering we can safely say that what is good for the door to be shown, is good for prohibiting entry through the door, and thus while denying public employment with respect to the offence committed by a person, it can be said, and we say so, that it may be a serious violation of the constitutional right of a citizen to be fairly treated in the matter of public employment if trivial offences committed by the citizen would justify the State shutting its eyes and denying employment.
30. & 31...
32. It is unfortunate that in India, the Government does not come out with white papers of the deliberations at various seminars, but we find a reference made to the „All India Seminar on Correctional Service‟ held at New Delhi in March 1969, to consider and lay guidelines pertaining to the problem of rehabilitation of ex-convicts, with emphasis on the need for their employment under the government. Vide OM dated 2.2.1973, No.6857-GSI-72-2755, the State of Haryana has listed the penal offences which have been treated as grave, serious and involving moral turpitude. The said OM lists the under-noted penal offences as grave, serious and involving moral turpitude, disentitling the convict to public employment; the offences are:- Sections 120-A, 121-A, 122 to 124, 161, 161-1A, 165, 167, 181, 182, 193 to 201, 205, 209, 293, 302, 304, 307, 354, 359, 362, 363 to 366, 366-A, 366-B, 367 to 373, 376, 377, 379, 380, 391, 392, 398 to 400, 403, 404, 406 to 409, 417 to 421, 449, 450, 453 to 458, 465 to 468, 471 to 476, 477-A, 489-A, 489-B, 489-C, 489-D, 489-E, 493 to 498 of the Penal Code.
33. We are a little surprised at the list as it excludes offences such as promoting enmity or doing acts prejudicial to maintenance of harmony i.e. offences punishable under Section 153-A IPC. It excludes offences pertaining to mutiny and its abetment i.e. offences under Sections 131 to 136 IPC. But we do not comment. However, what we find is, the common thread of including all offences against women and such offences which are punishable with imprisonment for life as also imprisonment for a term exceeding three years and above. We get a clue. Offences which do not carry a mandatory sentence of imprisonment and it to be imprisoned the term is less than 3 years and the offender can be let off with payment of fine, are not included in the said list. It is an undisputed fact that there are no rules to guide the authorities in Delhi Police as to in what cases despite acquittal, the person can be kept out of service or can be deprived of employment.
34. That apart, as generically understood, offences involving moral turpitude can be classified with reference to the act being one which shocks the moral conscience of the society in general and this can be determined with reference to the motive of the offender i.e. whether the motive which led to the act was a base one or alternatively 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.
35...
36. Life is too precious to be staked over petty incidents and the cruel result of conviction for petty offences being the end of the career, the future and the present, of young and inexperienced persons cannot blast their life and their dreams.
37. In a growing democracy, where the systems are failing and the weak and the downtrodden are hardly given the opportunity to sharpen their intellect thereby diminishing the ability of their consciousness to act as a mirror to their acts and actions, it is high time that the executive brings into place a policy where summary/ordinary conviction should not be treated as a conviction for entry or retention in government service.
38. Till then, it would be the duty of the Court to interpret the law by harmonizing human sufferings and human wants, delinquencies and criminal tendencies; conscious of the fact that passengers on Spaceship Earth are the rich and the poor, the needy and the well-off, the hungry and the well-fed, the educated and the uneducated. The need of the hour is to understand that criminals are not born and are not irredeemable brutes. Crime may be a disease but not the criminal, who are a kind of psychic patients and to understand, that anti-social maladies are mostly the result of social imbalances. It must be remembered that on the one hand, social stresses, for various reasons, explosively mount in the real world‟s hard environs and the harsh remedy of heartless incarceration and ouster from society deepens the criminality. The swing of the pendulum to the humanist side requires respect for the worth of personhood and the right of every man and woman in its residual human essence.
39. What is the gravamen of the allegation constituting the act committed by the respondent which was treated as voluntarily causing hurt is not known to us. What was the nature of insult heaped upon the complainant which attracted the offence punishable under Section 504 IPC and what was the act which attracted the crime of criminal intimidation is also not known. But from a trinity of the three i.e. the alleged offence punishable under Section 323 IPC, Section 504 IPC and Section 506 IPC we can safely presume that the allegation against the respondent was of abusing the complainant and threatening to beat him followed by simple beating.
40. All these offences are non-cognizable and needless to state are bailable. No moral turpitude, as generically understood, is involved. The acts do not shock the moral conscious of the society and with reference to the motive do not evidence a person with depraved character. The offences are not of the kind which would justify dismissal or removal from service, if the respondent had committed the same if in service.
41. Thus, being charged with the said offences, of which the respondent has ultimately been acquitted, would not be a bar and cannot be treated as a bar to seek public employment and on being successful at the entrance exam, to be denied the same.
42. to 52...
53. The respondent was born on 21.05.1987. The age of the respondent when he was made an accused in the Non-Cognizable Report would be 19 years. The trivial offence of what he was charged of, in which he has been acquitted, cannot make him a criminal of a kind where public interest requires his non-induction in the Police force and that too as a Sub-Inspector (Executive) and that means his duties would be clerical and not with arms and surely not on the streets requiring him to deal with public. Assuming that the petitioner did the acts of which he was accused of, the same is a trivial brawl which he had in the village. Some fist blows with choicest abuses in tandem were hurled at the victim."
5.1 While reading Para 33, the attention of the learned advocate was drawn to the following part of that Para:
"We are a little surprised at the list as it excludes offences such as promoting enmity or doing act prejudicial to maintenance of harmony i.e. offences punishable under Section 153-A IPC. It excludes offences pertaining to mutiny and its abetment i.e. offences under Sections 131 to 136 IPC. But we do not comment..." (emphasis supplied) 5.2 It was inquired from the learned advocate for the petitioner as to which list is referred to in this Para 33, the learned advocate at the first brush replied that the list given by the Division Bench in its judgment but later on corrected himself by reading Para 32. While reading Para 32, the learned advocate for the petitioner submitted that this is the opinion of a Division Bench of a High Court but later on he corrected himself by saying that this is in the nature of recommendations made at the end of a Seminar which was 'All India Seminar on Correctional Service'. Relevant part of Para 32 reads as under:
"It is unfortunate that in India the Government does not come out with while papers of the deliberations at various seminars but we find a reference made to the All India Seminar on Correctional Service held at New Delhi in March 1969 to consider and lay guidelines pertaining to ... rehabilitation of ex-convicts with emphasis on the need for their employment under the Government."
(emphasis supplied) 5.3 It was inquired as to whether is it the suggestion of the learned advocate that conviction in petty offences should be made additional qualification for getting Government job, the learned advocate for the petitioner submitted that he is only bringing to the notice of this Court the observations made by the Division Bench of a High Court.
5.4 The further part of Para 32 reads as under:
"Vide OM dated 2.2.1973, No.6857-GSI-72-2755, the State of Haryana has listed the penal offences which have been treated as grave, serious and involving moral turpitude. The said OM lists the under-noted penal offences as grave, serious and involving moral turpitude, disentitling the convict to public employment; the offences are:- Sections..." (emphasis supplied) 5.5 It is with regard to this list, issued by the State of Haryana that the Division Bench expressed surprise.
6.0 The learned advocate placed emphasis on Para 53, wherein, it is stated that, 'the respondent was born on 21.05.1987. The age of the respondent when he was made an accused in the Non-Cognizable Report would be 19 years..."
6.1 The learned advocate without giving the actual date of birth of the petitioner, without setting out the actual age of the petitioner submitted that that the petitioner is also of a 'tender age'. The Court is not able to understand as to what meaning should be assigned to this word 'tender age'.
6.2 The further part of Para 53 reads as under:
" The trivial offence of what he was charged of, in which he has been acquitted, cannot make him a criminal of a kind where public interest requires his non-induction in the Police force and that too as a Sub-Inspector (Executive)..." (emphasis supplied) 6.3 The learned advocate submitted that in case on hand the offence involved is trivial. This submission is made by the learned advocate without referring to the nature of the offence and without referring to the role played by the petitioner along with other co-accused, who were 10 in number, including petitioner, they were 11 in all.
6.4 The other part of Para 53 reads as under:
"and that means his duties would be clerical and not with arms and surely not on the streets requiring him to deal with public..."
6.5 On perusal of the judgment of Sessions Case No. 97 of 2002, Para 1 of which reads as under:
"(1) A complaint was lodged on dt. 06/05/2002 before P.S.I. Shri L.N. Dixit in Modasa Rural Police Station by Shri Natvarbhai Jodhabhai, a Head Constable of the same Police Station that, iterruption in the duty as a Government servant was made by Lalaji Amaraji & Other 15 persons of village Kabola and that, an intimidation for killing was given by abusing him and that, the loot of the papers of investigation and logbook which were with him was committed, and that damage was caused to his motorcycle. The said complaint was received by P.S.O. Shankarbhai Lakhabhai for registration of crime, he registered the crime vide 1st C.R.No. 63/2002 in FIR register and its entry was made in the Police Station Diary and it was forwarded to I/c. P.S.I. L.N. Dixit for investigation. Upon receiving this investigation, P.S.I. Shri Dixit had taken over its charge and the statements of the witnesses were recorded in the investigation. The Panchnama of the place of occurrence was drawn in presence of panchas and the accused persons were arrested. As they voluntarily came forward and took out the Muddamal, the same was seized. On completion of the investigation against the accused persons and on finding sufficient evidence for commission of offence, the charge-sheet as per Sections 186, 395, 336, 427 of IPC and 135 of the B.P. Act was produced before the Court of Ld. Judicial Magistrate First Class, Modasa. The said complaint was registered as a Criminal Case No. 1171/2002, but as the Sessions Court has the jurisdiction to try one charge out of the charges levelled against the accused persons, the Ld. Judicial Magistrate First Class, Modasa passed an order exh. 8 (illegible) as per Section 209 of Cr.P.C., the case against the accused was committed to the Sessions Court, which was transferred to the Assistant Court of Modasa for its disposal on merits. Ld. Assistant Judge of Modasa issued charge-sheet against the accused persons on dt. 04/12/2002. In the meantime, on establishment of a Fast Track Court at Modasa the Sessions Judge had withdrawn this case from there and transferred to this Court. Thereby, as there was violation of provision of Section 409 of Cr.P.C. & direction given in the judgment at the page no. 845 of 1995(1) GLR by the Hon'ble Gujarat High Court, this Court wrote a request letter vide outward no. 8/2003 to the learned District Judge and attention was drawn for doing needful in the matter, but as no co-operation was extended from there, eventually, the proceedings against the accused persons were tried further on merits. The brief facts of the case of prosecution are as below..."
6.6 The offence alleged against the petitioner and other co-accused is under Section 186, 395, 396, 427 of IPC and Section 135-A of the Bombay Police Act. It is mentioned that the accused abused the complainant, threatened to kill, looted investigation papers and the Logbook and damaged the motorcycle of the complainant. It is also stated that this happened when the complainant went in investigation of another offence registered at C.R. No. III - 46/2002 at Modasa Rural Police Station.
7.0 From the aforesaid facts, this Court is of the considered opinion that no directions can be issued to allow the petitioner to join the Government service during the pendency of the Criminal Appeal, which is of the year 2003. If the petitioner is so keen, he ought to have moved this Court for early hearing of that appeal because even when he approached this Court by filing Special Civil Application No. 701 of 2009, conviction dated 7th April 2003 was staring in his face and Criminal Appeal No. 442 of 2003 was pending before this Court.
7.1 The learned advocate for the petitioner has not placed on record any details of efforts made by the petitioner to get that Criminal Appeal heard at an early date. This shows that the petitioner seems to be under impression that even if a Criminal Appeal is pending, he could persuade the authorities and if not the authorities then this Court to issue directions to give him appointment on compassionate ground.
8.0 This Court is of the opinion that issuing of any such direction will be miscarriage of justice and hence this petition is dismissed.
[ Ravi R. Tripathi, J. ] hiren Top