Rajasthan High Court - Jaipur
Naresh Agarwal And Ors. vs State Of Rajasthan And Ors. on 28 February, 2001
Equivalent citations: 2001(4)WLN312
JUDGMENT Verma, J.
The petitioner Dr. Naresh Agarwal had qualified MBBS Examination in 1995 from RNT Medical College, Udaipur. The Principal RNT Medical College and Controller of Associate Groups of Hospitals, Udaipur had also given a certificate of his satisfactory behaviour in the college as far back on 16.3.1996, copy of which is attached as Annexure-I. (2). During the time of studies in MBBS in the College, because of certain dispute during elections of the Student's Union there was some hot deliberations amongst the students for which age group of students had also lodged an FIR in the year 1994 under Section 323 IPC. However, immediately thereafter the students had compromised on 31.8.1994 itself so far the offence under Section 323 IPC was concerned, but under Section 147 IPC, he was released under the Probation of Offenders Act as per Annexure-3.
(3). He had applied for the post of Medical Officer and was appointed on the post on 24.6.1998 on temporary adhoc basis. Lateron for regular selection, the vacancies were also advertised vide Annexure-4 on 22.9.1999. The petitioner was found suitable and was given appointment as per Annexure-5. Vide Annexure-6 his services have been terminated on 20.12.1999 on the plea that on character verification, it was found that he had been released under Probation of Offenders Act.
(4). The petitioner has challenged Annexure-6 staling therein; (i) for some incident amongst students themselves for which there was a dispute which dispute ended into a compromise and out of that compromise if any order was passed by the court under Probation of Offenders Act, it cannot be termed to be an offence involving moral turpitude; (ii) as per Rule 12 of the Rajasthan Medical & Health Service Rules, 1963, a character certificate from the Principal is required to be produced to the effect which shall relate to six months prior to making of the application which certificate was furnished; (iii) no moral turpitude was involved. The relevant Rule 12 is quoted as under:-
"Rule 12-Character-The character of a candidate for direct recruitment to the service must be such as to qualify him for employment in the service. He must produce a certificate of good character from the Principal/Academic Officer of the University or College in which he was last educated and two such certificates written not more than six months prior to the date of application from two responsible persons not connected with the College or University and not related to him."
"Note-(l) A conviction by a court of law need not of itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral turpitude or association with crimes of violence or with a movement which has as its object the over-throw by violent means of the government as by law established, the mere conviction need not be regarded as a disqualification."
"(2) Ex-Prisoners, who by their disciplined life while in prison and by Iheir subsequent good conduct have proved to be completely reformed, should not be discriminated against on grounds of their previous conviction for purposes of employment in the service. Those, who are convicted of offences not involving moral turpitude or violence, shall be deemed to have been completely reformed on the production of a report to that effect from the Superintendent. After Care Home or if there are no such Homes in a particular district, from the Superintendent of Police of that district."
"Those convicted of offences involving moral turpitude or violence shall be required to produce a certificate from the Superintendent. After Care Home endorsed by the Inspector General of Prisons, to the effect that they are suitable for employment as they have proved to be completely reformed by their disciplined life while in prison and by their subsequent good conduct in an After Care Home." It is pertinent to mention here that the post of Medical Officer is included in the Schedule appended to the Rules, 1963, as such the services are governed by the present set of rules."
(5). The petitioner had represented stating therein the facts as per representations copies of which are attached as Annexure 7 and 8; the petitioner also submits that there are many other doctors who were studying along with the petitioner at that time and were also involved in the dispute of election of the College, are still in service, even though no such plea can assist the petitioner in any way as his case is to be seen on its facts.
(6). To support his contention, the petitioner relies on a judgment Hanuman Singh v. State of Raj. and Anr. (1), on Sunder Lal v. State of Raj. and Anr. (2), Pawan Kumar v. State of Haryana and Anr. (3), and Bhanwar Lal Paliwal v. State of Rajasthan and Ors. (4).
(7). In the case of Hanuman Singh v. State of Raj. and Anr. (supra), it was held that the conviction under Section 147 and 323 IPC cannot be termed as conviction of offence involving moral turpitude. Relying on Rule 12, as reproduced above, it was held by this court that the rule making authority did not intend to exclude even convicts, Ex-prisoners, as also those convicted of offences involving moral turpitude, from the zone of consideration for the purpose of recruitment to the Subordinate Service in the Police Department and, therefore, so far as the rules of recruitment are concerned, fresh employment can be given to an Ex-Prisoners; there was hardly any justification for imposing major penalty on a Government employee, merely on the basis of his conviction for a criminal offence by a competent court of law, which does not involve of moral turpitude. It was further held that the absence of notice to show cause; there was violation of principles of natural justice in passing of the impugned order.
(8). This court in Sunder Lal v. State of Rajasthan and Anr., (supra), it was held that conviction under Section 325 r/w 34 IPC does not involve any moral turpitude and it could not be said that the petitioner in that case had conducted himself in such a manner as to invite penally of dismissal from service. The conduct of the petitioner when considered under Rule 4 of the Conduct Rules 1971, can be held to be improper and up becoming conduct amongst other things when he is convicted of an offence involving moral turpitude; whether in the course of discharge of his duties or otherwise. When a person is charged to have committed offence involving "moral turpitude" it may mean that such conduct is arising out of an act, which is dishonest, immoral or unethical. From the facts of the incident described above, it cannot be said that his conduct arose out of any act, which can be termed as dishonest, immoral or unethical.
(9). In Thakorbhai Bhagabhai v. D.D.O. Surat and Anr. (5), the petitioner was suspended on account of an offence said to have been committed under Section 323.
IPC. The suspension order was quashed and set aside on the ground that the alleged offence did not involve any moral turpitude in the conduct of the petitioner.
(10). The Supreme Court in Pawan Kumar v. State of Haryana (supra) had held that the conviction under Section 291 on its own would not involve moral turpitude depriving the official of the opportunity to serve the State unless the facts and circumstances, which had led to the conviction, meet the requirements of policy decision contained in the notification of the Slate Government. It was observed as under:-
"Moral turpitude" is an expression which is used in legal as also social parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on February 2, 1973 (Annexure E in Ihe Paper Book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however he taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the government of Haryana on 17/26th March, 1975 explained the policy decision of February 2, 1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows:"
(11). Division Bench of this court in Bhanwar Lal Patiwal v. State of Raj and Ors. (supra) had observed that where a government servant who commits a serious offence involving moral turpitude then certainly he should be placed under suspension.
(12). In the impugned order of termination Annexure-6, it has been mentioned that because of the verification made by the S.P., Udaipur, a confirmation had been received that the petitioner was punished in FIR No. 44/94 on 31.8.1994 and, therefore, in terms of the order of appointment, the services of the petitioner were terminated and was relieved from service.
(13). The order Annexure-6 shall cause a stigma on the petitioner. It would have been different matter if the authorities without mentioning the factum of conviction of the petitioner in FIR No. 44/94, would have terminated the services of the petitioner in accordance with the terms of appointment letter subject to its legality. The fact that the order itself is stigmatic is sufficient to sel aside the order which amounts to have passed by way of punishment.
(14). Apart from above, as has been discussed above, mere conviction is not sufficient to de-bar a person to hold civil post under the Stale. The authority ought to have applied its mind and the fact whether the circumstances leading to such conviction were such as to warrant to remove the official from service or that he cannot be retained in service because of seriousness of the allegations. It had been repeatedly held that any punishment under Section 323/147 of IPC does not amount to offence of moral turpitude. Even though this court had also held that the offence under Section 324/325 is not an offence of moral turpitude. As already held by this court that if any ex-convict or prisoners under the rules are not debarred for holding the civil post, it cannot be imagined as to how the petitioner during his studies of MBBS and during election of students in the College and having been involved with a petty offence, which offence was also compromised under Section 323 IPC and released under the Probation of Offenders Act and even continued the studies subsequent to that for about 2-3 years and having passed the MBBS examination, obtained the MBBS degree, even enrolled as doctor and having been appointed initially on temporary basis and then on selection basis, could be removed from the service for an offence which never amounted to moral turpitude. From the reading of the order it is very clear that he has been removed from service only because of conviction. It is also settled law that even though the conviction is of serious offence; conviction itself cannot be made a ground for removal from service; until and unless, the concerned authority applies its mind to the facts of the case and holds that the circumstances leading to and resulting in conviction and that such offence was of such a nature that a person is undesirable to be kept in a civil post; only and only then such an order could be held to be justified. But in the present circumstances, the order of removal cannot be sustained for the reasons and discussions mentioned above and is likely to be quashed.
(15). The writ petition is allowed. The impugned order is quashed. The petitioner shall be treated as on duty as if no such order had been passed. The petitioner shall be entitled to all consequential benefits as well.