Delhi High Court
Bses Rajdhani Power Ltd. vs Union Of India & Ors. on 4 July, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 14th March, 2011
% Judgment Pronounced on: July 04, 2011
+ LPA No. 647/2010
BSES RAJDHANI POWER LTD. ..... Appellant
Through: Mr. Sandeep Prabhakar, Ms.Prerna
Mehta & Mr.Amit Kumar,Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Anuj Agarwal, Mr.Jatin Rajput,
Advocates for Respondent No.1.
Ms.Ruchi Sindhwani and Ms.Megha
Bharara, Advocates for Respondent
No.3.
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
In this intra-court appeal, the assail is to the order dated 28.7.2010
passed by the learned Single Judge in WP(C) No.14237/2006 declining to
interfere with the award dated 17.12.2005 passed by the Labour Court X,
Karkardooma Courts in ID No.63/1998 whereby the reference was
answered in favour of the respondent-workman on the foundation that the
LPA 647/2010 page 1 of 32
order of termination which was passed on conviction for offences
punishable under Section 323/149/148 of the Indian Penal Code (for short
„IPC‟) did not tantamount to conviction for offences involving moral
turpitude and further the punishment imposed did not reflect proper
exercise of discretion vested in an employer while dealing with an
employee.
2. The facts which are essential to be enumerated are that the
respondent-workman was in the employment of Delhi Vidyut Board as a
Peon since 25.10.1978. On 4.5.1993, he was convicted in a criminal case for
offences punishable under Sections 148/302/323 and 149 IPC and
sentenced to undergo life imprisonment. The judgment of conviction and
the order of sentence were assailed in a criminal appeal before the High
Court of Punjab & Haryana wherein the High Court found him guilty of
offences under Sections 323/149/148 of IPC but the charges levelled
against him under Section 302 IPC were not found to have been proven. It
is worth noting that during the pendency of the criminal appeal, he was
released on bail and joined the services under Delhi Vidyut Board, till
17.4.1996 but was arrested again on 22.4.1996 to undergo remaining period
of imprisonment. On 30.9.1996, his services were terminated on the
LPA 647/2010 page 2 of 32
ground that he had been convicted for offences which involved moral
turpitude.
3. Being dissatisfied with the order of termination, an industrial
dispute was raised and eventually, it travelled to the Labour Court
forming the subject matter of ID No.63/1998. The Labour Court, by the
award dated 17.12.2005, directed his reinstatement with backwages and
consequential benefits.
4. Grieved by the aforesaid award, the present appellant, BSES
Rajdhani Yamuna Power Limited ( one of the companies that came into
existence after the bifurcation of the Delhi Vidyut Board), invoked the writ
jurisdiction of the Court for quashment of the order of reinstatement with
backwages and consequential benefits. It was contended before the learned
Single Judge that the respondent-workman was not convicted for
committing a petty offence but was involved in commission of a serious
criminal offence which involved moral turpitude. It was also urged that
the respondent-workman might have been acquitted under Section 302
IPC but was convicted under Section 323/149 IPC and sentenced to
undergo six months‟ rigorous imprisonment and also for the same period
LPA 647/2010 page 3 of 32
for the conviction under Section 148 IPC with the stipulation that both the
sentences shall run concurrently and, hence, the punishment is quite grave
involving moral turpitude. It was canvassed that if Rule 10(ii) of the DESU
(DMC) Service (C&A) Regulations, 1976 is scanned in proper perspective,
it would be quite clear that such a conviction constitutes moral turpitude
as the same discloses depravity in his conduct and behaviour but the
Labour Court has placed a narrow interpretation on the concept of moral
turpitude and, therefore, the award passed by the Labour Court was
absolutely vulnerable. On behalf of the appellant, decisions rendered in
J.Jaishankar v. Government of India & Anr.; 1996 SCC (L&S) 1372, Pawan
Kumar v. State of Haryana & Anr.; AIR 1996 SC 3300 and Karam Singh v.
State of Punjab & Anr.; 1996 SCC (L&S) 668 were pressed into service.
5. The aforesaid submissions were combated by the learned counsel for
the workman contending, inter alia, that the findings recorded by the
Labour Court are impeccable and do not warrant interference in exercise
of extraordinary jurisdiction. It was put forth that by no stretch of
imagination, the conviction in the case at hand can be construed as a
conviction in respect of offences involving moral turpitude. In support of
the said submissions, the learned counsel for the workman placed reliance
LPA 647/2010 page 4 of 32
on the decisions in State of M.P. & Ors. v. Hazarilal; 2008-II-LLJ-715 (SC),
Glaxo Laboratories (I) Limited v. Labour Court, Meerut & Ors.; 1984 (I)
LLJ 16 (SC), Karam Singh (supra), State of West Bengal & Ors. v. Ram
Nagina Dubey; 199 (64) FLR 272 (Cal HC), Bhagwati Prasad Tiwari v.
Regional Manager, Bank of Baroda, Branch Manager, Bank of Baroda &
Ors.; W.P.No.41636/98 (Allahabad High Court), Krishnankutty v. Senior
Supt. Of Post Offices, Ernakulam & Ors.; 1976 (I) LLJ 175 (Kerala High
Court), On-Dot Couriers and Cargo Ltd. v. Anand Singh Rawat; WP(C)
No.4197/2008 (Delhi High Court) and Pawan Kumar (supra).
6. The learned Single Judge referred to the 1976 Regulations framed
under Section 95 of the DMC Act, 1957 and also to few passages from
Durga Singh v. State of Punjab, AIR 1957 Punjab 97 and Pawan Kumar
(supra), and opined that the facts of the instant case would be nearer to the
decision of the Apex Court in the case of Hazarilal (supra) wherein the
employee was prosecuted under Section 323 read with Section 34 IPC and
sentenced to undergo one month simple imprisonment which was reduced
to a fine of Rs. 500/- in appeal. The learned Single Judge also referred to
the concept of discretion and proportionality and, eventually, held that the
LPA 647/2010 page 5 of 32
imposition of punishment was excessive and, hence, the award passed by
the Labour Court did not warrant interference.
7. We have heard Mr.Sandeep Prabhakar, learned counsel for the
appellant, Mr.Anuj Agarwal, learned counsel for the respondent No.1 and
Ms.Megha Bharara, learned counsel on behalf of Ms.Ruchi Sindhwani,
learned counsel for the respondent No.3. Despite service of notice, none
has appeared on behalf of the respondent No.2, the workman.
8. The seminal issues that emerge for consideration in the present
appeal are whether the conviction recorded against the second respondent
can be regarded as a conviction involving moral turpitude and whether
the punishment is disproportionate in the obtaining factual matrix. Be it
noted, the judgment of conviction is one under Sections 323/149 and 148
of the IPC. The submission of the learned counsel for the appellant is that
because of the acquittal of the offence punishable under Section 302 of IPC,
it cannot be said that other punishment does not relate to moral turpitude.
9. In this context, we may refer with profit to the order dated 0.09.1996
which reads as follows:
LPA 647/2010 page 6 of 32
" ORDER
Whereas Shri Jai Prakash, E. NO. 25719, Peon
under SE(C-III) had been convicted by the
Sessions Court Sonipat under Section 148 IPC &
Section 302 read with Section 148 IPC & Section
323 read with Section 149 IPC & sentenced him to
undergo life imprisonment in criminal case
registered against him under FIR No. Sl dated
22.02.1991 O.S.Rai Sonipat.
And whereas Shri Jai Prakash filed an appeal
before the High Court of Punjab & Haryana,
Chandigarh against the judgment passed by the
Sessions Court and he was released on bail.
And Whereas the Hon‟ble High Court of Punjab
and Haryana now vide their order dated
18.03.1996 held him guilty Under Section 323/149
IPC and also Under Section 148 IPC reducing the
life imprisonment to six months only and Shri Jai
Prakash has undergone the imprisonment and
has been released.
And whereas Shri Jai Prakash had begun to
absent himself from duty w.e.f. 18.04.1996
onwards.
And whereas Shri Jai Prakash in the above
manner has been convicted by two successive
Courts including the Hon‟ble High Court. His
involvement in the Criminal activity has been
clearly established through the Police
investigation and also during the regular trial of
his case in the court of law and as such there is no
need to institute a regular departmental inquiry.
And whereas the U/s therefore dispenses with
holding of any regular Department inquiry and
other proceedings to be conducted under
LPA 647/2010 page 7 of 32
Regulations 10(ii) of the DESU(DMC) Service
(C&A) Regulations, 1976 read with Section 95 of
the DMC Act, 1957.
And whereas in the totality of the circumstances
and after perusal of relevant records and careful
consideration of the case the U/s is of the opinion
that the conduct and character of Shri Jai Prakash
is such that he is not a liability to a public utility
organization like DESU and therefore the U/s
exercising the powers conferred on him in the
DESU(Delhi Municipal Corporation ) Service
(Control & Appeal) Regulation, 1976 has no
hesitation to impose the penalty of "dismissal
from service" which shall ordinarily be a
disqualification for future employment on Shri Jai
Prakash, E.No.25719, Peon.
The above orders are subject to recovery of dues
recoverable from him on any account."
10. Clause 14 of the Regulations, 1976 deals with the disciplinary action
for misconduct. Sub-clause 3 of the said clause enumerates what acts and
omissions shall be treated as misconduct. In the case at hand, as we are
only concerned with clause (q) of Clause 14 of the Regulations, 1976, the
same is reproduced below:
"(q) Any offence involving moral turpitude
which punishable under the I.P.C."
LPA 647/2010 page 8 of 32
11. First, we shall refer to the decision in Hazarilal (supra) as the
learned Single Judge has based his conclusion on the bedrock of the ratio
laid down therein. In Hazarilal (supra), the respondent, a peon in a
middle school, had assaulted one Ram Singh. He was prosecuted for the
commission of the said offence and was convicted by the trial Magistrate
under Section 323 read with Section 34 of the IPC and sentenced to
undergo one month‟s simple imprisonment. On an appeal being preferred
by him, the sentence was reduced to a fine of Rs.500/- only. The revision
preferred before the High Court was dismissed. It is worth noting that
after conviction, the services were terminated and the appeal preferred by
him also faced dismissal. Being grieved by the said action, the employee/
government servant preferred an application before the State
Administrative Tribunal which allowed the application holding that the
punishment of removal was grossly excessive. The State of Madhya
Pradesh preferred a writ petition before the High Court which was
dismissed. The Apex Court referred to Rule 19 of the MP Civil Service
(Classification, Control and Appeal) Rules, 1996 and interpreted the said
provision to convey that the disciplinary authority has been empowered to
consider the circumstances of the case where any penalty is imposed on a
LPA 647/2010 page 9 of 32
Government servant on the ground of misconduct which has led to his
conviction on a criminal charge but the same would not mean that
irrespective of the nature of the case in which he was involved or the
punishment which had been imposed upon him, an order of dismissal
must be passed. Their Lordships further opined that an authority which is
conferred with the statutory discretionary power is bound to take into
consideration all the attendant facts and circumstances of the case before
imposing an order of punishment and at that juncture, it must act
reasonably and fairly. Their Lordships referred to the doctrine of
proportionality and eventually came to hold that the appeal was bereft of
merit and, accordingly, dismissed the same. It is worth noting that Rule 19
of the MP Civil Service (Classification, Control and Appeal) Rules, 1996
only uses the words "conviction on a criminal charge" and the term
"moral turpitude" is not a part of the Rule. That apart, the peon was
convicted under Section 323 read with Section 34 IPC at his native place
and, therefore, their Lordships invoked the doctrine of proportionality. It
is submitted by the learned counsel for the appellant that the said decision
is distinguishable as in the said case, the employee/government servant
was convicted for inflicting a simple injury and was eventually sentenced
LPA 647/2010 page 10 of 32
to pay a fine of Rs.500/- but in the case at hand, the respondent was
convicted for offences punishable under Sections 302, 323, 148 and 149 IPC
and on an appeal, the conviction under Section 302 IPC was set aside on
technical grounds. The learned counsel for the respondent, per contra,
submitted that once the order of acquittal has been recorded in respect of
the offence under Section 302 IPC, the Court has to see the judgment of
conviction in respect of the offences and should not go into the facts. In
our considered opinion, the said decision is distinguishable regard being
had to the language employed in the Rule and also keeping in view the
nature of punishment.
12. In our considered opinion, what is required to be scrutinized is
whether the conviction for offence involves moral turpitude or not. That is
the fulcrum of the matter. If there is no moral turpitude in the commission
of the offence, there is no misconduct. In case there is moral turpitude, the
issue that would further emerge for consideration is whether the doctrine
of proportionality qua punishment is to be invoked.
13. The learned counsel for both the sides have relied on the decision
rendered in Pawan Kumar (supra). In the said case, their Lordships
LPA 647/2010 page 11 of 32
expressed the view that moral turpitude is an expression which is used in
legal as well as societal parlance to describe conduct which is inherently
base, vile, depraved or having any connection showing depravity. After so
stating, their Lordships referred to the policy decision of the State
Government which has stated thus:
"Decision in each case will, however, depend on the
circumstances of the case and the competent authority
has to exercise its discretion while taking a decision in
accordance with the above mentioned principles. A list
of offences which involve moral turpitude is enclosed
for your information and guidance. This list, however,
cannot be said to be exhaustive and there might be
offence which are not included in it but which in certain
situations and circumstances may involve moral
turpitude."
After analyzing the same, their Lordships proceeded to state that the
appellant therein was imposed with a fine of Rs.20/-. Be it noted, their
Lordships called for the judgment but only a copy of the
institution/summary register maintained by the Court of the Chief Judicial
Magistrate, First Class was produced. Thereafter, their Lordships
proceeded to state as follows:
".....Mere payment of fine of Rs.20/- does not go to
show that the conviction was validly and legally
LPA 647/2010 page 12 of 32
recorded. Assuming that the conviction is not open to
challenge at the present juncture, we cannot but
deprecate the action of the respondents in having
proceeded to adversely certify the character and
antecedents of the appellant on the basis of the
conviction per se, opining to have involved moral
turpitude, without satisfying the tests laid down in the
policy decision of the Government. We are rather
unhappy to note that all the three Courts below, even
when invited to judge the matter in the said
perspective, went on to hold that the act/s involved in
conviction under Section 294, I.P.C. per se established
moral turpitude. They should have been sensitive to
the changing perspectives and concepts of morality to
appreciate the effect of Section 294, I.P.C. on today‟s
society and its standards, and its changing views of
obscenity. The matter unfortunately was dealt with
casually at all levels.
"14. Before concluding this judgment we hereby draw
attention of the Parliament to step in and perceive the
large many cases which per law and public policy are
tried summarily, involving thousands and thousands of
people throughout the country appearing before
summary Courts and paying small amounts of fine,
more often than not, as a measure of plea-bargaining.
Foremost among them being traffic, municipal and
other petty offences under the Indian Penal Code,
mostly committed by the young and/or the
inexperienced. The cruel result of a conviction of that
kind and a fine of payment of a paltry sum on plea-
bargaining is the end of career, future or present, as the
case may be, of that young and/or inexperienced
person, putting a blast to his life and his dreams. Life is
too precious to be staked over a petty incident like this.
Immediate remedial measures are, therefore, necessary
in raising the toleration limits with regard petty
offences especially when tried summarily. Provision
LPA 647/2010 page 13 of 32
need be made that punishment of fine up to a certain
limit, say up to Rs.2,000/- or so, on a
summary/ordinary conviction shall not be treated as
conviction at all for any purpose and all the more for
entry into the retention in Government service. This
can brook no delay, whatsoever."
Regard being had to the factual matrix in the case of Pawan Kumar
(supra), we have no trace of doubt that the said decision is distinguishable
and, in fact, the learned Single Judge has also not placed reliance on the
same.
14. Presently, we shall proceed to deal with the concept of moral
turpitude and how it has been understood and interpreted. In Black‟s Law
Dictionary, (8th Edn., 2004), the term "moral turpitude" has been defined
thus:
"Conduct that is contrary to justice, honesty, or
morality. In the area of legal ethics, offenses involving
moral turpitude - such as fraud or breach of trust...
Also termed moral depravity....
„Moral turpitude means, in general, shameful
wickedness - so extreme a departure from ordinary
standards of honest, good morals, justice, or ethics as to
be shocking to the moral sense of the community. It has
also been defined as an act of baseness, vileness, or
depravity in the private and social duties which one
person owes to another, or to society in general,
LPA 647/2010 page 14 of 32
contrary to the accepted and customary rule of right
and duty between people.‟ "
15. In this context, we may refer to the Corpus Juris Secundum, wherein
„moral turpitude‟ has been described as follows:
"While frequently general statements have been made
to the effect that mere assault does not or may not,
involve moral turpitude, or that assault and battery
rarely involve moral turpitude, the rule would seem to
be that assault and battery may involve moral turpitude
and it may not, the difference depending on the
circumstances, and whether an assault does or does not
involve moral turpitude generally will be determined
by the particular facts of each individual case. The
statutes of various jurisdictions divide assaults into
different degrees, and many of the crimes which are
included within such definition are crimes that involve
moral turpitude. Homicide may or may not involve
moral turpitude depending on the degree of the crime."
16. In Ram Nagina (supra), the respondent was convicted under
Sections 147 and 325/149 of the IPC and on an appeal being preferred, the
learned Sessions Judge converted the same to one under Sections 147/323
of the IPC. The question that arose before the Calcutta High Court was
whether such a conviction would imply moral turpitude. The learned
Single Judge had opined that the conviction in respect of the offences
under Sections 149 and 323 of the IPC do not involve moral turpitude and,
LPA 647/2010 page 15 of 32
accordingly, set aside the punishment. On an appeal being preferred, the
Division Bench took note of the fact that the employee, being a constable,
was a member of the disciplined force and his involvement in the crime
did tantamount to moral turpitude and resultantly set aside the decision of
the learned Single Judge.
17. 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‟, 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
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
LPA 647/2010 page 16 of 32
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."
18. In J.Jaishanker (supra), 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
LPA 647/2010 page 17 of 32
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 (supra). 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. 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
LPA 647/2010 page 18 of 32
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 Supplied]
19. 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 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
LPA 647/2010 page 19 of 32
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."
20. 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
he 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 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
LPA 647/2010 page 20 of 32
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
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.
LPA 647/2010 page 21 of 32
It will be contrary to accepted customary rule and
duty between man and man."
21. 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. 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
LPA 647/2010 page 22 of 32
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."
22. 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. Be it noted, the factum of
disciplinary service and the requirement of maintaining strict discipline
have been taken into consideration in the said case.
23. 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
They 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
LPA 647/2010 page 23 of 32
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."
24. In the said case, as the petitioner has committed murder of his step
mother, the Bench expressed the view that the conviction was an act of
moral turpitude.
25. Regard being had to the basic concept of moral turpitude, we are
obliged to analyse whether the conviction in the case at hand can be
regarded to fall in the compartment of an offence involving moral
turpitude. It is worth noting that the appellant along with others was tried
for offences punishable under Sections 322, 133, 134, 149 and 148 of IPC
and sentenced to undergo rigorous imprisonment as has been indicated
earlier. In appeal, the Division Bench came to hold that the co-accused did
not share the common intention with the main accused Kalu for inflicting
LPA 647/2010 page 24 of 32
the injury that had caused death of the deceased and, hence, they were
liable to be punished for the individual acts. The Division Bench has
found that the injuries caused by others including the respondent No.2
were caused by blunt weapon and, hence, they are to be convicted under
Section 123/149 IPC. The Bench has also found that the offence against
them under Section 148 IPC is fully established. It is worth noting that
regard being had to the gap of time when the death occurred, the Division
Bench converted the offence from Section 302 to Section 304 Part I of IPC.
We have referred to the said facts only to highlight that the appellant was
found to have committed an offence under Section 148 IPC also. Section
148 of the IPC reads as follows:-
"148. Rioting, armed with deadly weapon.--
Whoever is guilty of rioting, being armed with a
deadly weapon or with anything which, used as a
weapon of offence, is likely to cause death, shall
be punished with imprisonment of either
description for a term which may extend to three
years, or with find, or with both."
26. It is worth noting that "rioting" is an offence under Section 147 of
the IPC. Section 148 is an accentuated form of rioting inasmuch as it
stipulates that the rioting has to be done being armed with a deadly
weapon or with anything which used as a weapon of offence is likely to
LPA 647/2010 page 25 of 32
cause death. The punishment is severe than what has been provided
under Section 147 of the IPC. The basic ingredients of an offence under
Section 148 are that there was an unlawful assembly, that there was use of
force or violence by the members of such an assembly, that the accused
was a member of such an assembly and that the accused, in prosecution of
the common object of such assembly, used force. The term „offence of
rioting‟ finds place in Section 146 of the IPC. It stipulates that whenever
force or violence is used by an unlawful assembly or any member thereof
in prosecution of the common object of such assembly, every member of
such assembly is guilty of the offence of rioting. The term „deadly weapon‟
has its own signification. As has been indicated in many an authority
which we have referred to herein before, the offence involving moral
turpitude has to adjudged regard being had to the moral and societal
paradigms.
27. The punishment under Section 323 of the IPC has a different contour
but when a person is convicted under Section 148 of the Act, it establishes,
in a way, the nature, attitude, proclivity and propensity of the person
concerned. The petitioner was working as a peon in the Delhi Vidyut
Board. He got himself involved in a criminal case of this nature and
LPA 647/2010 page 26 of 32
eventually, the conviction has been recorded under Sections 323/149 and
148 of the IPC. Regard being had to the conviction in respect of the nature
of an offence, as engrafted under Section 148 of the IPC, we are disposed to
think that it involves an offence involving moral turpitude and the
petitioner has been convicted to undergo rigorous imprisonment for six
months for the said offence. Both facts have their own signification
28. As is evident from the order passed by the learned Single Judge, he
has also referred to the doctrine of proportionality to give the stamp of
approval to the award passed by the Labour Court. In this context, we
think it appropriate to discuss under what circumstances the doctrine of
proportionality should be invoked or deserves to be invoked.
29. In Bharat Forge Co. Ltd. v. Utam Manohar Nakate; (2005) 2 SCC
489, it has been ruled thus.
"30. Furthermore, it is trite, the Labour Court or
the Industrial Tribunal, as the case may be, in
terms of the provisions of the Act, must act
within the four-corner thereof. The Industrial
Courts would not sit in appeal over the decision
of the employer unless there exists a statutory
provision in this behalf. Although its jurisdiction
is wide but the same must be applied in terms of
the provisions of the statute and no other.
LPA 647/2010 page 27 of 32
31. If the punishment is harsh, albeit a lesser
punishment may be imposed, but such an order
cannot be passed on an irrational or extraneous
factor and certainly not on a compassionate
ground.
32. In Regional Manager, Rajasthan SRTC v. Sohan
Lal; (2004) 8 SCC 218, it has been held that it is
not the normal jurisdiction of the superior courts
to interfere with the quantum of sentence unless
it is wholly disproportionate to the misconduct
proved. Such is not the case herein. In the facts
and circumstances of the case and having regard
to the past conduct of the respondent as also his
conduct during the domestic enquiry
proceedings, we cannot say that the quantum of
punishment imposed upon the respondent was
wholly disproportionate to his act of misconduct
or otherwise arbitrary."
30. The said principles were reiterated in Hombey Gowda Educational
Trust & Another v. State of Karnataka & Others; (2006) 1 SCC 430.
31. In this context, we may refer fruitfully to the decision in V. Ramana
Vs. A.P.S.R.T.C. and Ors.; (2005) 7 SCC 338 wherein it has been held thus:
"The common thread running through in all these
decisions is that the Court should not interfere
with the administrator's decision unless it was
illogical or suffers from procedural impropriety
or was shocking to the conscience of the Court, in
the sense that it was in defiance of logic or moral
standards. In view of what has been stated in the
Wednesbury's case the Court would not go into
the correctness of the choice made by the
LPA 647/2010 page 28 of 32
administrator open to him and the Court should
not substitute its decision to that of the
administrator. The scope of judicial review is
limited to the deficiency in decision-making
process and not the decision.
11. To put it differently unless the punishment
imposed by the Disciplinary Authority or the
Appellate Authority shocks the conscience of the
Court/Tribunal, there is no scope for interference.
Further to shorten litigations it may, in
exceptional and rare cases, impose appropriate
punishment by recording cogent reasons in
support thereof. In a normal course if the
punishment imposed is shockingly
disproportionate it would be appropriate to direct
the Disciplinary Authority or the Appellate
Authority to reconsider the penalty imposed."
32. In State of Rajasthan & Another v. Mohammad Ayub Naz; (2006) 1
SCC 589, their Lordships have expressed thus:
"10. This Court in Om Kumar and Ors. v. Union
of India; (2001) 2 SCC 386 while considering the
quantum of punishment/proportionality has
observed that in determining the quantum, role
of administrative authority is primary and that of
court is secondary, confined to see if discretion
exercised by the administrative authority caused
excessive infringement of rights. In the instant
case, the authorities have not omitted any
relevant materials nor has any irrelevant fact been
taken into account nor any illegality committed
by the authority nor was the punishment
awarded was shockingly disproportionate. The
punishment was awarded in the instant case after
considering all the relevant materials, and,
LPA 647/2010 page 29 of 32
therefore, in our view, the interference by the
High Court on reduction of punishment of
removal was not called for. "
33. In Chairman cum Managing Director, Coal India Limited and Anr.
Vs. Mukul Kumar Choudhuri and Ors.; (2009) 15 SCC 620, while dealing
with the doctrine of proportionality, the Apex Court, after referring to the
decision in Coimbatore District Central Coop. Bank v. Employees Assn.;
(2007) 4 SCC 669, has ruled thus:
"19. The doctrine of proportionality is, thus, well-
recognized concept of judicial review in our
jurisprudence. What is otherwise within the
discretionary domain and sole power of the
decision-maker to quantify punishment once the
charge of misconduct stands proved, such
discretionary power is exposed to judicial
intervention if exercised in a manner which is out
of proportion to the fault. Award of punishment
which is grossly in excess to the allegations
cannot claim immunity and remains open for
interference under limited scope of judicial
review.
20. One of the tests to be applied while dealing
with the question of quantum of punishment
would be: would any reasonable employer have
imposed such punishment in like circumstances?
Obviously, a reasonable employer is expected to
take into consideration measure, magnitude and
degree of misconduct and all other relevant
circumstances and exclude irrelevant matters
before imposing punishment."
LPA 647/2010 page 30 of 32
34. In State of U.P. v. Sheo Shanker Lal Srivastava and Others; (2006) 3
SCC 276, it has been held that the High Court should be very slow in
interfering with the quantum of punishment, unless it is found to be
shocking to one‟s conscience.
35. In the case at hand, when the offence committed by the respondent
is in the realm or sphere of moral turpitude and there is imposition of
sentence of rigorous imprisonment for a period of six months on two
counts (although with a stipulation that the sentences would run
concurrently), the punishment of termination cannot be said to be
shocking to the judicial conscience. We are disposed to think that the
punishment is not excessive or shockingly disproportionate. An
employee, who has been involved in an offence of moral turpitude, has no
right to continue in service. A lesser punishment would be contrary to the
norms. It is difficult to hold that such a punishment shocks the judicial
conscience or is totally unreasonable.
36. In view of our aforesaid premised reasons, we are unable to concur
with the view expressed by the learned Single Judge by which the learned
Single Judge has concurred with the award passed by the Labour Court
LPA 647/2010 page 31 of 32
and resultantly, the appeal is allowed and the order passed in the writ
petition as well as the award passed by the Labour Court are set aside.
There shall be no order as to costs.
CHIEF JUSTICE
JULY 04, 2011 SANJIV KHANNA, J.
sv LPA 647/2010 page 32 of 32