Allahabad High Court
Captain Dushyant Somal vs Governor, Reserve Bank Of India And Anr. on 28 August, 1991
Equivalent citations: (1992)IILLJ368ALL, (1991)2UPLBEC1194
ORDER S.R. Singh, J.
1.The petition in hand is for issuance of a writ, order or direction in the nature of certiorari quashing the order dated October 30, 1981 (Annexure-6 to the writ petition) passed by the Manager, Reserve Bank of India, Kanpur dismissing the petitioner, a Probationary Assistant Security Officer at Kanpur Office of the Bank from service in exercise of powers vested in him by Sub-regulation (3) of Regulation 46 of the Reserve Bank of India (Staff) Regulations, 1948 (hereinafter referred to as the Staff Regulations).
2. The petitioner was appointed as Assistant Security Officer (on probation) by an order dated July 11, 1980 on starting basic pay of Rs. 900/- per mensem in the scale of Rs. 900-50-1000-55-1110-60-1230-65-1360-70-1430-EB-70-1500-75-1800, besides allowances indicated in the appointment order, on the basis of which his emolument per mensem was calculated to be Rs. 1767/- at the rate then in force.
3. It appears that the petitioner married one Sushma Somal on May 10, 1973. A daughter Sweeta was born on September 16, 1974 and son Sandeep on April 1, 1975. Some time in 1976 relation between the husband and wife became estranged and they started living separately. The children were living with the mother, but it appears that son Sandeep was removed from her custody by the petitioner in 1977, whereupon the wife Sushma Somal moved an application under the Guardians and Wards Act seeking the custody of her minor son Sandeep. An ex parte order was passed in her favour and pursuant to that order she recovered the custody of her son with the help of police. But later on son again appears to have been forcibly taken away by the petitioner from the custody of the wife, whereupon she gave a report to the police, on the basis of which a case underSection 363 of the Indian Penal Code was registered against the petitioner. But the police could not search out the child, whereupon the wife of the petitioner filed an application under Article 226 of the Constitution of India in Delhi High Court for the issue of a writ of Habeas Corpus directing her husband to produce her son. A rule nisi was issued by the Delhi High Court, in response to which the petitioner filed a counter affidavit denying that he had ever kidnapped the child. The allegation of the petitioner was that the entire case had been fabricated to forestall any application by him under the Guardians and Wards Act seeking custody of his son on the ground that he (son Sandeep) had completed five years of age and therefore he (petitioner) was entitled to the custody of the son. The Delhi High Court accepted the case of the wife and held that Sandeep had been 'unauthorisedly' taken away from the lawful custody of his mother by the petitioner. A writ was accordingly issued and petitioner was directed to produce the child in the Court on December 17, 1980, so that the custody of the child could be given to the mother. The petitioner failed to produce the child, whereupon Delhi High Court held the petitioner guilty of contempt of court and accordingly directed him to be taken into custody and detained in Civil prison until he produces the child in the Court.
3A. An appeal, being Criminal Appeal No. 12 of 1981, was filed by the petitioner in the Hon'ble Supreme Court against the order of Delhi High Court committing him to civil prison for contempt of court and a Special Leave Petition being S.L.P. No. 1 of 1981 was also filed against the order of Delhi High Court under Article 226 of the Constitution. The Criminal appeal as also the Special Leave Petition were decided by the Hon'ble Supreme Court by common judgment and order dated February 18, 1981 (reported in (AIR) 1981 SC 1026), a copy of which has been annexed as Annexure-3 to the instant writ petition. The Supreme Court substituted the Delhi High Court's order for keeping detention of the petitioner in civil prison until he produces the child in the Court, by a sentence of three months simple imprisonment and a fine of Rs. 500/-.
4. While dealing with the submissions made on behalf of the petitoner as to the maintainability of the Habeas Corpus writ petition against a parent for the custody of a child, the Hon'ble Supreme Court was pleased to observe as below (Para 3 of (AIR) 1981 SC 1026):
"There can be no question that a writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. Nor is a person to be punished for contempt of court for disobeying an order of court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceedings. Were the person alleged to be in contempt is able to place before the court sufficient material to conclude that it is impossible to obey the order, the court will not be justified in punishing the alleged contem-ner. But all this does not mean that a writ of Habeas Corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom court has given such custody. Nor does it mean that despite the contumacious conduct of such a parent in not producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has not taken away the child and contending that it is, therefore, impossible to obey the order."
5. The conduct of the petitioner in forcibly snatching away the child from the lawful custody of the mother and not producing him in the court despite the order of the Court, as observed by the Hon'ble Supreme Court, is a 'contumacious' conduct of a parent.
6. The Manager, Reserve Bank of India, Kanpur took due and serious notice of the above observaion of Hon'ble Supreme Court and the following reported dbservation of the Delhi High Court made during the course of Habeas Corpus writ petition (Vide a report in 'the Hindustan Times' dated July 14, 1981):
"Mr. Somal is avoiding the warrants and being still retained as Assistant Security Officer in the RBI, a Government body. This is a thing which apparently should call for serious consideration by the Government Officials concerned."
7. On the facts stated hereinbefore, the Manager, Reserve Bank of India, Kanpur passed the order dated October 30, 1981 dismissing the petitioner from service in exercise of his power under Sub-regulation (3) of Regulation 46 of the Staff Regulations, as in his opinion, the petitioner was convicted of an offence involving gross moral turpitude within the meaning of said Regulation. The validity of this order, as noticed hereinbefore, is in challenge in the instant writ petition.
8. Sri A.K. Sharma, learned counsel for the ; petitioner, contended before me that Regulation 46(3) was not attracted for, according to him, conviction of the petitioner for committing civil contempt, was not a conviction for an offence involving moral turpitude. According to Sri Sharma, the act of commission or omission for which the petitioner was sentenced to simple imprisonment of three months did not constitute misconduct either so as to attract the provisions of Regulation 47(1) of the Staff Regulations; Sri Sharma also submttted that even if, on the facts of the case, the petitioner is held to be guilty of misconduct within the meaning of Regulation 46(1), his dismissal from service without affording an opportunity of hearing to him, was void ab initio, Sri V.K. Singh, learned Senior Chief Standing Counsel appearing for the respondents, refuted the submissions made by the learned counsel for the petitioner.
9. Having heard the learned counsel for the parlies, I am of the considered opinion as per discussion below that the impugned order of dismissal dated October 30, 1981 as maintained by the Appellate Order dated July 10, 1982 (Annexure 1 to the affidavit filed in support of the Agreement application) do not suffer from any illegality, nor do they call any interference by this Court under Article 226 of the Constitution.
10. For proper appreciation of the points raised by the learned counsel for the petitioner, it is necessary to quote the Regulations 46(3) and 47 of.the Staff Regulations. These Regulations are as below:
"46(3) An employee shall be liable to dismissal or to any of other penalties referred to in Regulation 47 if he is committed to prison for debt or is convicted of an offence which in the opinion of the Competent Authority, either involves gross moral turpitude or has a bearing on any of the affairs of the bank or on the discharge by the employee of his duties in the Bank, the opinion in this respect of the competent authority shall be conclusive and binding on the employee. Such dismissal or other penalty may be imposed as from the date of his committal to prison or conviction and nothing in Regulation 47 shall apply to such imposition."
"47 (1), Without prejudice to the provisions of other Regulations, an employee who commits a breach of the Regulation of the Bank, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Bank or in conflict with its instructions or who commits a breach of discipline or is guilty of any other act of misconduct, shall be liable to the following penalties:-
(a) reprimand (b) delay or stoppage of increment or promotion, (c) degradation to a lower post or grade or to a lower stage in his incremental scale (d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the employee(s) dismissal.
(2) No employee shall be subjected to the penalties (b), (c), (d) or (c) of Sub-regulation (1) except by an order in writing signed by the Governor in the case of an Officer other than an officer in Grade A or the Manager in the case of other employees and no such order shall be passed without the charge or charges being formulated so that he shall have reasonable opportunity to answer them in writing or in person, as he prefers, and in the latter case his defence shall be taken down in writing and read to him.
Provided that the requirements of this sub-regulation may be waived if the facts on the basis of which action is to be taken have been established in a court of law or Court Martial or where the employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements can be waived without injustice to the employee. In every case where all or any of the requirements of this sub-regulation are waived, the reasons for so doing shall be recorded in writing.
(3) The inquiry under this regulation and the procedure with the exception of the final order, may be delegated in case the employee against whom proceedings are taken is an officer or any Officer who is in a grade higher than such employee and in the case of other employee to any Officer in Class I. (4) An employee may be placed under suspension by the Officer empowered to pass the final order under this Regulation. During such suspension, he shall receive subsistence allowance equal to his substantive pay plus twenty five percent thereof, provided that if no penalty under Clauses (b) (c) (d) or (e) of the Sub-regulation (1) is imposed, the employee shall be refunded the difference between the allowance and the emoluments which he would have received but for such suspension and that, if penalty is imposed on him under the said clause, no order shall be passed which shall have the effect of compelling him to refund such subsistence allowance. The period during which an employee is under suspension shall, if he is not dismissed form the service, be treated as spent on duty or leave as the officer who passes the final order may direct."
11. For the applicability of the Regulation 46(3) of the Staff Regulations, employee must be convicted of an offence which in the opinion of the Competent authority, either involves gross moral turpitude or has a bearing on any of the affairs of the Bank or on the discharge by the employee of his duties in the Bank.
12. The expression 'offence' though not defined under the Staff Regulations as stated by the learned counsel, is defined inSection 12 of the Contempt of Courts Act, 1971 which provides that a contempt of court may be punished with simple imprisonment which may extend to six months or with fine, which may extend to Rs. 500/- or with both. In view of this it makes no difference whether it is civil contempt or criminal contempt, so long as the act of commission or omission of a person amounts to contempt of court. Every contempt of court in my considered opinion may attract Regulation 46(3) of the Staff Regulations, if it is held that the act of commission or omission constituting contempt of court involves gross moral turpitude or has a bearing on any of the affairs of the Bank or on the discharge by the employee of his duties in the Bank.
13. This brings me to the consideration of meaning and import of the expression 'Moral Trupitude' occurring in Regulation 46(3) of the Staff Regulations.
14. In Mangali v. Chhakki Lal, (AIR) 1963 All 527 a Learned Single Judge (Hon. A.P. Srivastava, J.) while interpreting the expression 'Moral Turpitude' occurring in Section 5-A of the U.P. Panchayat Raj Act observed that no absolute standard can be laid down for deciding whether a particular act is to be considered one involving moral turpitude, but he laid down following test to judge whether a particular offence involves moral turpitude:
(1) Whether the act leading to an offence was such as to shock 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 depravity character or a person who was to be looked down upon by the society.
15. In Durga Singh v. S.State of Punjab, (AIR) 1957 Punj 97, it was observed that the term 'moral turpitude' is rather vague one and it may have different meaning in different context. It was further held that 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 society in general.
16. In Risal Singh v. Chandgi Ram, (AIR) 1966 Punjab 393, a Division Bench consisting of Hon. A.N. Grover and Hon. S.B. Kapoor, JJ. seems to have taken the view that the moral turpitude implies depravity or wickedness of character of disposition.
17. "Morality is something altogether artificial and arbitrary" (Vide the Mother Vol. 8 page 143) and its notion may even vary from person to person, place to place and lime to time but that provides no justification to atleast public servant to flout the authority of law and show disrespect to constitutional institution viz., the judiciary in utter disregard to the imperatives of the fundamental duties enshrined in Clauses (e) and (j) of Article 51A of the Constitution. In a society overridden and overburdened by right-consciouness, it is high time that the people be made conscious by their fundamental duties which in my opinion are akin to moral duties. A deliberate act of commission or omission done in derogation of the fundamental duties, atleast by a public servant, would certainly tantamount to 'gross moral turpitude' for, in my opinion, a deliberate failure on the part of a public servant to perform a duty Constitutionally enjoined upon him is something which is bound to reflect his morals and it should be viewed with all seriousness, as otherwise the insertion of the fundamental duties in the Constitution by the Constitution Forty-Second Amendment Act, 1976 would not achieve its laudable objects. "The reign of law is the mind and will of God" said Dr. Radhakrishnan in his treatise "The Bhagwat Gita" and in that sense the petitioner was not only legally bound but it was his moral duty and obligation to have restored his son to the lawful custody of the mother in respectful obedience of the High Court's order passed in this regard after hearing the petitoner. The petitioner deliberately failed to perform his legal, moral and constitutional duty and therefore, such an act of commission or omission of the petitioner certainly involved 'Gross moral turpitude" within the meaning Of Regulation 46(3) of the Staff Regulations. In view of this, the opinion formed by the Punishing authority in exercise of its discretion under Regulation 46(3) is neither illegal nor improper warranting interference under Article 226 of the Constitution.
18. It is established from the judicial record that the petitioner was held guilty of un-authorisedly and forcibly removing his son from the lawful custody of his wife and he was held guilty for contempt of court in that he had failed to produce the child even after on order was passed in that regard by the High Court. The offence of contempt of court in the instant case did involve moral turpitude and in view of the above discussion it was certainly a case of gross moral turpitude.
19. In view of the above discussion, the second submission of Sri Sharma that Regulation 47(1) and not the Regulation 46 of the Staff Regulations could have been pressed into service provided the alleged misconducts of the petitioner were in relation to his duties, but in that event the punishment of dismissal from service ought not to have been inflicted without affording opportunity of hearing as contemplated by Regulation 47(2) of the Staff Regulations, does not survive. In any view of the matter, the petitioner was not entitled to opportunity of hearing in view of the proviso to Sub-regulation (2) of Regulation 47, which provides that the requirement of giving reasonable opportunity may be waived, if the facts on the basis of which action is to be taken have been established in a court of law or court-martial etc.
20. Lastly the petitioner having been punished for contempt of court, is not entitled to invoke extraordinary jurisdiction of this court under Article 226 of the Constitution, when the order of dismissal from service is based upon such contumacious act of the petitioner which led to his conviction and sentence for three months simple imprisonment under the provisions of the Contempt of Courts Act.
21. In the result the petition fails and is accordingly dismissed.
22. On the facts and circumstances of the case; I make no order as to costs.