Adya Prasad Singh v. State of Bihar — 1998 DIGILAW 890 (PAT)

JUDGMENT : A. K. Ganguly, J. - This writ petition has been filed for a direction upon the respondents for fixing the salary of the petitioner in terms of the scale of pay which is commensurate with the second time bound promotion which allegedly had been given to the petitioner with effect from 1.4.1994. There is also a prayer for a direction upon the respondent to pay the petitioner the arrears of salary accrued as per the scale of pay on the basis of time bound promotion from 1.4.1984 till the date of voluntary retirement by the petitioner on 21.8.85. 2. The facts of this case in short are as follows:- The petitioner was appointed a compounder by the then District Board on 10th September, 1953 in the Pandarak District Board Dispensary. Thereafter, he was posted in the same capacity, at State Dispensary, Sanmera on 1.11.1961. Petitioner's claim is that his services were absorbed in the Government with effect from 1.9.1959. 3. From the counter affidavit it appears that the petitioner was an accused in connection with a criminal case and he was convicted and sentenced for life imprisonment from 28.2.1978 by the District & Sessions Judge, and the said ORDER :of conviction was affirmed by the division Bench of the High Court, by a JUDGMENT : and ORDER :dated 3rd July, 1985. In the concluding portion of the said JUDGMENT : of the Division Bench, it has been held as follows:- "As regards appellant Adya Singh, it has already been indicated above that the prosecution has succeeded in proving the guilt of this appellant that he killed the deceased Mahendra Singh intentionally by causing bullet injury to him by gun. As such, appellant Adya Singh is found guilty for the offence under section 302 I.P.C. and is hereby convicted for the same. The minimum punishment provided under Section 302 I.P.C. that is, imprisonment for life is awarded to him which would meet the ends of justice. His conviction under section 27 of the Arms Act is also awarded to him under this count." 4. It appears from a perusal of the said JUDGMENT : of the Hon'ble High Court that the incident took place on 24.10.1972 and allegation against the petitioner is one of killing his own brother over property dispute. 5. His conviction under section 27 of the Arms Act is also awarded to him under this count." 4. It appears from a perusal of the said JUDGMENT : of the Hon'ble High Court that the incident took place on 24.10.1972 and allegation against the petitioner is one of killing his own brother over property dispute. 5. In view of the aforesaid JUDGMENT : of the Sessions Judge and the High Court, the status of the petitioner is that of a person convicted for the offence of murder by courts of competent jurisdiction. It is surprising that a government servant with such antecedents has been given first time bound and second time bound promotion in Government service. This Court is further surprised to find that the suspension ORDER :passed against the petitioner for his detention for 24th October, 1972 to 5th March, 1973 has been set aside, by a Division Bench of this High Court. 6. The said ORDER :of suspension was challenged before a Division Bench of this Court. The learned Judges of the Division Bench of this Court came to a finding that the petitioner could not be suspended under Rule 100 of the Bihar Service Code for the offence with which he was charged namely the offence of murder as it does not amount to moral turpitude, and the suspension ORDER :of the petitioner was thus quashed. 7. This Court sitting singly finds it extremely difficult to accept this proposition laid down in the JUDGMENT : of the said Division Bench of this Court. It is difficult for this Court to accept that a person who is a Government Servant and commits the murder of his own brother over property dispute, is not a person who is guilty of moral turpitude. But the disturbed judicial conscience of this Court was relieved after the court's notice was drawn to a Full Bench JUDGMENT : of this Court in the case of Sarju Prasad Singh vs. the State of Bihar & ors." reported in 1987 P.L.J.R. page-285. But the disturbed judicial conscience of this Court was relieved after the court's notice was drawn to a Full Bench JUDGMENT : of this Court in the case of Sarju Prasad Singh vs. the State of Bihar & ors." reported in 1987 P.L.J.R. page-285. In that Full Bench JUDGMENT :, the word 'moral turpitude' in the context of Rules 99 and 100 of the Bihar Service Code was considered by the learned Judges and after considering the several cases on this point, the Hon'ble the Chief Justice S.S. Sandhawalia (as his lordship then was) while delivering the JUDGMENT : laid down three broad guide-lines to show whether an offence comes within the purview of moral turpitude. According to those guidelines: something which is (i) contrary to justice, honesty or good morals and involves a baseness of mind or attitude, (ii) which shocks the moral conscience of society in general, & (iii) something which will attach a depravity of character to the person guilty thereof amounts to moral turpitude. 8. In fact, the decision of the Division Bench in Adya Singh vs. The State of Bihar & ors. referred to above gave rise to the reference before the Full Bench. The learned Judges delivering the full Bench referred to the JUDGMENT : of Division Bench in paragraph 14 of its JUDGMENT : and on the basis of the aforesaid ratio held that the said JUDGMENT : is vitiated by basic error as in that JUDGMENT : the Court has failed to distinguish between any and every killing and specific charge of substantive murder under section 302. The learned Judges observed at paragraph 14 in the Full Bench JUDGMENT : as follows:- "With the deepest respect of the learned Judges of the Division Bench, it has to be held that the law has not been correctly laid down by them and the same is hereby overruled." 9. In view of Full Bench verdict, I hold that the petitioner is a government servant who has been convicted by courts of competent jurisdiction on criminal charge of murder which involves moral turpitude. 10. Now a look at the Constitutional provision in this regard is necessary. The relevant provision is under Article-311 (2), proviso (a). In view of Full Bench verdict, I hold that the petitioner is a government servant who has been convicted by courts of competent jurisdiction on criminal charge of murder which involves moral turpitude. 10. Now a look at the Constitutional provision in this regard is necessary. The relevant provision is under Article-311 (2), proviso (a). The said proviso, which is one of the exceptions to the doctrine of 'reasonable opportunity' provided under clause (2) of Article-311, is set out below:- (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges : Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed : Provided further that this clause shall not apply:- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge : 11. It is obvious that clause (a) is an enabling provision. In all cases of conviction on a criminal charge, even in cases of trivial offence, say for instance, parking the scooter in a no parking zone (See Sankar Das vs. Union of India, reported in A.I.R. 1985 Supreme Court Page-772), the Government cannot deprive the person of the benefit of clause (2) of Article 311, if they want to punish him by way of dismissal, removal or reduction in rank. So, the proviso confers a discretion on the authorities. But in case of murder the authorities have very little discretion in the matter. The discretion must be exercised reasonably and to further the object of the provision and not to frustrate, if the object of this constitutional provision is to underline that in government service the element of public interest is of the highest importance. But in case of murder the authorities have very little discretion in the matter. The discretion must be exercised reasonably and to further the object of the provision and not to frustrate, if the object of this constitutional provision is to underline that in government service the element of public interest is of the highest importance. While Constitution has made ample provision for ensuring security of tenure to the government servants by incorporating the doctrine of reasonable opportunity, it has also provided that the government servants with criminal antecedents should be deprived of that procedural and substantive safeguards before they are either dismissed, removed and reduced in rank. Public interest certainly demands that a government servant convicted of murder should not continue in government service. Continuance of such a government servant in service definitely dilutes the deterrence against crime. Secondly a government servant has to deal with the members of public in various important transaction, when members of the public know, as they come to know invariably, that they have to deal with a government servant with such a track record, the credibility and sanctity of government service is totally undermined and people lose confidence in its efficacy. 12. The respondents have therefore acted in gross abuse of their discretion by not imposing on the petitioner the departmental punishment he deserves as a result of his conviction on a charge of murder. Not only that the respondents have gone on, granting, first time bound promotion to the petitioner. Then accepted his prayer for voluntary retirement. Thereafter granted him second time bound promotion on 26.9.1987 with retrospective effect from 1.4.84. The ground for seeking voluntary retirement of the petitioner has of course not been disclosed by the petitioner any where in the writ petition. This writ petition has been filed for fixation of pay arising out of the second time bound promotion, and the arrears of salary arising out of such promotion with effect from 1.4.84. 13. Learned counsel for the petitioner relied on two decisions of the Supreme Court. First of them is in the case of B. J. Shelat vs. State of Gujarat & ors. reported in A.I.R. 1978 S.C. page-1109. In that case the scope and applicability of Bombay Civil Services (Conduct, Discipline and Appeal) Rules, 1932 particularly Rule-161 (2) (ii), proviso came up for consideration. First of them is in the case of B. J. Shelat vs. State of Gujarat & ors. reported in A.I.R. 1978 S.C. page-1109. In that case the scope and applicability of Bombay Civil Services (Conduct, Discipline and Appeal) Rules, 1932 particularly Rule-161 (2) (ii), proviso came up for consideration. Considering the provisions of those rules, the learned Judge held that 'An absolute right is conferred on the Government servant under Rule 161 (2) (ii) to retire by giving not less than three months' notice on his attaining the prescribed age. The learned Judges have further held that such a right is however subject to the proviso thereto. Under the proviso it is open to the Government to withhold permission to retire a Government servant when he is under suspension, or when against the persons concerned, departmental proceedings are pending or contemplated. The learned Judge also held that the appointing authority has no jurisdiction to take disciplinary action against Government Servant who had effectively retired. 14. This Court fails to understand the application to the fact of the present case the principles decided in the case of B. J. Shelat (supra). In the instant case no disciplinary proceeding has been initiated against the petitioner after he has been allowed to voluntarily retire. 15. Next case which has been cited by the learned counsel for the petitioner is in the case of Kirti Bhusan Singh vs. The State of Bihar & ors' reported in A.I.R. 1986 S.C. page-2216 : 1986 PLJR 43(SC). In that case the provisions of Bihar Pension Rules-116 and the Bihar Service Code, Rule-73(f) came up for consideration. The learned Judges on consideration of those provisions held that where a Government servant during the pendency of the departmental proceedings was permitted to retire on invalid pension on medical grounds even before he had attained the age of retirement, the subsequent ORDER :of Government dismissing him from service after revoking the earlier ORDER :would be unsustainable. Reasons for this view is that the ORDER :of retirement on medical grounds having become effective and final it was not open to the disciplinary authority to proceed with the disciplinary proceedings and to pass an ORDER :of punishment, in the absence of such a provision which entitled the State Government to revoke an ORDER :of retirement on medical ground. Reasons for this view is that the ORDER :of retirement on medical grounds having become effective and final it was not open to the disciplinary authority to proceed with the disciplinary proceedings and to pass an ORDER :of punishment, in the absence of such a provision which entitled the State Government to revoke an ORDER :of retirement on medical ground. The principle decided in the case of Kirti Bhushan Singh (supra) are also not applicable here, in as much as, in the instant case, no decision has been passed by the authorities concerned purporting to revoke the ORDER :of voluntary retirement. Of course, this Court does not know as has been noted earlier the grounds on which voluntary retirement was sought. Here the petitioner is complaining of the executive inaction in the matter of payment of salary of the petitioner which according to him is due arising out of grant of second time bound promotion and in support of his case the petitioner is relying on an ORDER :which has been passed in his favour directing such payment by an Executive Officer, but ultimately as no payment has been made of his arrears of salary arising out of second time bound promotion, he has approached this Court. 16. This Court is not only a Court of law, but is also a Court of equity and good conscious. While exercising power this Court is guided, especially while exercising the jurisdiction of writ court by equitable consideration. The Supreme Court has emphasised this aspect of the writ Court's power time and again. 17. In a recent JUDGMENT : of the Supreme Court in the case of Shangrila Food Products Ltd. & Anr. vs. Life Insurance Corporation of India & Anr. reported in 1996 (5) S.C.C. page-54, it has been observed that in exercise of jurisdiction under Article-226 of the Constitution, the High Court can take cognizance of the entire facts and circumstances of the case and pass appropriate ORDER :s to give the parties complete and substantial justice. It has further been held that the writ jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. 18. Keeping those principles in mind this Court cannot grant the petitioner's prayers. It has further been held that the writ jurisdiction of the High Court being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. 18. Keeping those principles in mind this Court cannot grant the petitioner's prayers. This Court is of the opinion that the authorities concerned have not exercised their discretion properly which is given to them under Article 311 Proviso (a), and the petitioner has been allowed to continue in service despite the fact that he is convicted on a charge of murder, and he has also been given first time bound and second time bound promotion also. It may be that this court is not directing the respondents to set aside those ORDER :s of promotions, but this Court, acting on a broad principles of equity and in a public interest, cannot grant the petitioner's prayer for payment of his claims of arrears arising out of such undue grant of promotion. The petitioner should not have been allowed to remain in service. Therefore, there is no question of granting him promotion. The petitioner is the recipient of a favoured treatment from the respondent authorities and the Court cannot be a party to the same. Therefore, this writ petition is dismissed. However there will be no ORDER :as to costs.