COURT NO. 3, ARMED FORCES TRIBUNAL, PRINCIPAL BENCH, NEW DELHI T.A. No. 60 of 2010 Delhi High Court W.P (C) No. 621 of 2003

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1 COURT NO. 3, ARMED FORCES TRIBUNAL, PRINCIPAL BENCH, NEW DELHI T.A. No. 60 of 2010 Delhi High Court W.P (C) No. 621 of 2003 IN THE MATTER OF:...Applicant Through Shri P.D.P Deo counsel for the Applicant. Versus Union of India and Others...Respondents Through: Shri Ankur Chhiber counsel for the Respondents CORAM: HON BLE MR JUSTICE MANAK MOHTA, JUDICIAL MEMBER, HON BLE LT GEN M.L. NAIDU, ADMINISTRATIVE MEMBER Date: JUDGMENT 1. The petition/application was first filed on 05/02/2003 before the Hon ble Delhi High Court. It was transferred to this Tribunal on its formation on 28/10/ The applicant vide this writ petition has prayed for quashing the order of denial of promotion to the rank of Subedar dated 30/05/1995 (Annexure P-1) and rejecting his representation Page 1 of 17

2 vide letter dated 06/02/1998 (Annexure P-10). He has also prayed for directing the respondents to promote him as Subedar with effect from 01/04/1995 with all consequential benefits including pensionary benefits and payment of gratuity amount. 3. The facts of the case are that the applicant was enrolled in the Army as a clerk on 02/08/1971 and was promoted up to the rank of Naib Subedar on 01/12/ On 30/05/1995 the applicant was approved for the rank of Subedar with seniority to take effect from 01/04/1995. However, his promotion was withheld under Para 3 (a) (iii) of the Army order 20/81 because of his involvement in a criminal murder case treating it as a case of moral turpitude lodged against him. It is submitted by applicant that in May 1993 when he was on leave, he came to his village at Patna where he was falsely implicated in a criminal case alongwith others for committing murder and was taken to judicial custody on 21/05/1993 and latter on released on bail on 25/09/1993. The case is stated to be still pending under trial before Session Judge, Patna. Page 2 of 17

3 5. The applicant contends that on ASC Records (Supply) and on 20/10/1995 (Annexure P-3) the Officer Commanding of the unit requested and sent a letter to the Records with a copy to AHQ, ST-12 to invoke the provisions of Army Order 20/81 stating the applicant was not involved in criminal case involving moral turpitude or lack of integrity. Again in 1996 and 1997 matter for invoking the clause under AO 20/81 was taken up by the respective Officers Commanding of the units, but no action was taken to promote the applicant as a Subedar. Since the applicant was not promoted to the rank of Subedar, he was discharged on completion of his term in the rank of Naib Subedar on 31/08/ The applicant further contends that on 10/12/1997, he put up his representation to Ministry of Personnel, Public Grievances and Pension, New Delhi for necessary relief and intervention on this matter. On 06/02/1998 (Annexure P-10) Directorate General of Supply & Transport intimated him regarding rejecting his case for promotion and the other relief, while informing him that since he had not been promoted to the rank of Subedar and he was discharged from service on completion of his terms of engagement he is not entitled for any Page 3 of 17

4 relief. In Dec 2001 and Jan 2002 his representations to the ASC Records were also rejected. 7. The applicant also filed the writ petition CWJC No.4264/1998 before the Hon ble Patna High Court in 1998 and the same was dismissed on 19/04/1999 on grounds of territorial jurisdiction. However, the Hon ble Court granted liberty to the applicant to make appropriate representation to the authority concerned for the payment of retirement benefits. The applicant filed representation to the CDA (Pension) in Apr 1999 which was rejected by the CDA (P) Allahabad on 28/06/1999 by a reasoned order. The applicant once again filed LPA in 1999 and JMC in 2000 which were also dismissed by Hon ble Patna High Court. 8. The respondents in their reply contended that applicant was granted part of annual leave w.e.f to During that leave period he was arrested by the Bihar Police at Patna in a criminal case under Sections 147/148/149/302 & 337 I.P.C. and under the provisions of the Arms Act for the offence of shooting to death of a co-villager on He was released on bail on Subsequently, he was posted to HQ 19 Infantry Division w.e.f It was contended that Page 4 of 17

5 the applicant was due for promotion to the rank of Paid Acting Subedar w.e.f In that respect a certificate to the effect that applicant was not involved in any disciplinary/vigilance/ criminal case as per A.O. 20/1981 (Annexure R-3) was required. That was called from the said division where the applicant was serving. HQ 19 Infantry Division taking cognizance of the criminal case pending against the applicant failed to forward the noninvolvement certificate. Therefore, the applicant could not be promoted to the rank of Paid Acting Subedar. The applicant was discharged from service w.e.f on completion of term of engagement as applicable to the rank of Naib Subedar. 9. In reply, it was also contended that as the applicant was involved in a criminal case he was not entitled to DCRG and commutation of pension in terms of Rule 3(b) of Pension Regulation of Army Part-I, 1961 as inserted vide CS No.152/VII/76 (Annexure R-5). However, the applicant was granted provisional pension of Rs.1057/- per month w.e.f for life vide CCDA (P) Allahabad PPQ No.S/1330/97. The DCRG and commuted value pension will be released after the honourable acquittal of the applicant by the Court on finalisation of the criminal case. It also contended that applicant Page 5 of 17

6 had filed writ petition before the Hon ble Patna High Court, which was dismissed on with liberty to file representation for retiral benefits. The representation was also disposed of vide order dated The applicant also filed rejoinder to the reply filed by the respondents reiterating the grounds contended earlier and further submitted that as there was a gap of more than four years between alleged institution of the criminal case i.e. on and the date of retirement on Therefore, he was entitled for the full pension. The respondents also filed additional affidavit again stating that the pension will be finalised only after the disposal of the criminal case proceedings. 11. Arguments were heard and the records perused. During the course of arguments, learned counsel for the applicant again stressed that his promotion to the rank of Subedar was denied due to his involvement in criminal case bearing moral turpitude on the basis of A.O. No.20/1981. Clause 3(a)(iii) of the A.O. reads as under: 3. In order, therefore, to obviate occurrence of cases of this nature, the following procedure is laid down: - Page 6 of 17

7 (a) Before ordering promotion, substantive or action, the Office will obtain clearance from the unit/formation where an individual is serving regarding his non-involvement in any disciplinary, vigilance or criminal case. If an individual is reported to be involved in any of the following cases, a ban on his promotion will be imposed: - (i) Disciplinary Cases: Where formal congnizance of offence has been taken. (ii) (iii) Vigilance Cases: Where a report from the SPE/CBI has established a prima facie case against the individual. Criminal Cases: Where a person is facing prosecution by Government in a Court of Law on a matter involving moral turpitude or lack of integrity. 12. Learned counsel for the applicant stressed that before judging a case of moral turpitude the authorities has to examine the intention, nature, quality and involvement in the offence of the person concerned. Merely on the pendency of the criminal case one cannot be held to be involved in a case of moral turpitude. Learned counsel for the applicant, in support of his contention, drew our attention towards the notes given in Book Advanced Law Lexicon as published by P. Ramantha Aiyar, 3 rd Edition 2005:- Page 7 of 17

8 (i) Act of killing a person is normally attributed to a feeling of hurt or revenge, an act of personal vendetta. Per se an act of murder will not come within the broad concept of moral turpitude. Kuldeep Singh Vs State of Punjab, AIR 1994 P & K 242, 247. (Punjab Cooperative Societies Act, (1961), S.17, 26). (ii) It is the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory prohibitions MPLJ 870 at 872. (MP Industrial Employment (Standing Orders) Rules, 1963, Standing Order 12 (1) (a)). (iii) Offence involving moral turpitude depends upon the quality of crime. Brij Kishore Shukla Vs MPSRT Corporation, 1995 (5) SLR (MP) Learned counsel for the applicant in support of his contention cited the judgment given in Kuldeep Singh & Ors. vs. State of Punjab & Ors. AIR 1994 P&H 242, in which the Punjab & Haryana High Court observed as under: Whether an offence involves moral delinquency is a question of fact depending on the public morals of the time; common sense of community and context and purpose for which the character of offence is to be determined. In common parlance moral turpitude means baseness of character. Concise Oxford Dictionary defines moral concerned with goodness or badness of character or disposition or with distinction between right and wrong... virtuous in general conduct... Page 8 of 17

9 Turpitude means baseness, depravity, wickedness. Thus any act which contrary to good morals from society s point of view will come within the ambit of moral turpitude. Dealing with the term moral turpitude this Court in case reported as Durga Singh Vs State of Punjab, AIR 1957 Punjab 97, held as under:- The term moral turpitude is 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. 14. He also cited the judgment given by the Hon ble Apex Court in Pawan Kumar vs. State of Haryana & Ors. (1996) 4 SCC 17, in which the Hon ble Court with regard to moral turpitude has observed as under: "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. The government of Haryana while considering the question of rehabilitation of exconvicts took a policy decision on February 2, 1973 (Annexure E in the Paper Book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government Page 9 of 17

10 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 :... The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not : (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) whether the motive which led to the act was a base one. (3) 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. 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. Page 10 of 17

11 15. During the course of arguments it was also contended that as per the liberty given by Hon ble Patna High Court the applicant also submitted representation for retirement benefits, but that was also not properly adjudicated. The applicant is entitled for full pension benefits as there is a gap of more than 4 years between the date of arrest and the date of retirement. Thus, a prayer is made to promote the applicant to the rank of Subedar and award him all the consequential benefits including pensionary benefits. 16. Learned counsel for the respondents reiterated that as per the policy No.20/1981 the applicant was not entitled for promotion as he was involved in a murder case. The said case is still pending. It is contended that the main allegation of shooting and killing is against the applicant and as the applicant is facing a case of murder, a most heinous offence, which reflects and adversely affects his image, character and lowers the prestige in the society, he has rightly been held involved in a case of moral turpitude. It is further submitted that the authorities cited by learned counsel for the applicant do not help the applicant s case. On the contrary, the Apex Court in Hikmat Ali Khan vs. Ishwar Prasad Arya & Ors. (1997) 3 SCC 131 has observed that a Page 11 of 17

12 person is involved in a case of attempt to murder will be deemed to be involved in moral turpitude. Para 6 of the said judgment reads as under: - 6. We will now come to D. C. Appeal No. 17-A of 1984 filed by the appellant which raises the question whether the punishment imposed by the Disciplinary Committee of the Bar Council of U. P. in its (order) dated March 25, 1984, is adequate having regard to the gravity of the mis-conduct of respondent No. 1. The misconduct of respondent No. 1 that has been found established is that he had assaulted his opponent, Shri Radhey Shyam with a knife in the Court room and he has been convicted of the his offence under Section 307, IPC and has been sentenced to rigorous imprisonment for a period of three years. It has also been found established that the name of respondent No. 1 was contained in Register No. 8 maintained at Kotwali Badaun which is a register wherein the names of bad characters are entered. The acts of mis-conduct found established are serious in nature. Under Sub-section (3) of Section 35 of the Act the Disciplinary Committee of the State Bar] Council is empowered to pass an order imposing punishment on an advocate found guilty of professional or other mis-conduct. Such punishment can be reprimand [Clause (b)], suspension from practice for a certain period [Clause (c)] and removal of the name of the advocate from the State roll of advocate [Clause (d)], depending on the gravity of the mis-conduct found established. The punishment of removal of the name from the roll of advocates is called for where the misconduct is such as to show that the advocate is unworthy of remaining in the profession. In this context, it may be pointed Page 12 of 17

13 out that under Section 24(A) of the Act a person who is convicted of an offence involving moral turpitude is disqualified for being admitted as an advocate on the State roll of advocates. This means that the conduct involving conviction of an offence involving moral turpitude which would disqualify a person from being enrolled as an advocate has to be considered a serious misconduct when found to have been committed by a person who is enrolled as an advocate and it would call for the imposition of the punishment of removal of the name of the advocate from the roll of advocates. In the instant case respondent No. 1 has been convicted of the offence of attempting to commit murder punishable under Section 307, IPC. He had assaulted his opponent in the Court room with a knife. The gravity of the mis-conduct committed by him is such as to show that he is unworthy of remaining in the profession. The said misconduct, therefore, called for the imposition of the punishment of removal of the name of respondent No. 1 from the State roll of advocates and the Disciplinary Committee of the Bar Council of U. P., in passing the punishment of debarring respondent No. 1 from practising for a period of three years, has failed to take note of gravity of the misconduct committed by respondent No. 1. Having regard to the facts of the case the proper punishment to be imposed on respondent No. 1 under Section 35 of the Act should have been to direct the removal of his name from the State roll of advocates. The appeal filed by the appellant, therefore, deserves to be allowed. Page 13 of 17

14 17. He also cited the judgment given in Allahabad Bank & Anr. vs. Deepak Kumar Bhola (1997) 4 SCC 1. In that judgment the Hon ble Supreme Court has held as under: 8. What is an offence involving "moral turpitude" must depend upon the facts of each case. But whatever may 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. 18. Learned counsel for the respondents also cited the judgment decision given in J. Jaishankar vs. Government of India & Anr. (1996) 6 SCC 204 in which the Hon ble Apex Court held: 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. 19. It was also contended that as the applicant was facing criminal case yet that has not been finalised, therefore, he was not entitled for DRC and full pensionary benefits. That aspect has Page 14 of 17

15 rightly been considered by the concerned authority and he had been intimated accordingly. 20. We have considered the rival submissions. Admittedly, at present the applicant is facing criminal trial in a murder case and the said case is pending disposal, his name was mentioned in the FIR, thereafter, challan has been filed and after taking cognizance of the offence, the case is pending under murder trial. Therefore, at this stage, any comment on the merit of the case is not desirable, but to our mind it reflects his image and reputation in society, thus until the case is pending he would be held involved in criminal case bearing moral turpitude, which, under the abovementioned policy A.O. 20/1981, debars him for promotion. 21. We have perused the notes as well as the observations made in the judgments cited by the applicant. In case of Kuldeep Singh (supra) the matter was related to Punjab Cooperative Societies election petition and under Rule 14 of Rules of 65 under the Act involving in a criminal case of moral turpitude was in different shape. But the factual aspect of this case is different. Thus, that case is not helping the contention of the applicant. Page 15 of 17

16 Likewise, in another case of Pawan Kumar (supra) in which the petitioner was found guilty in a case of an offence against obscenity under Section 294 of IPC. That type of offence was not enlisted in the list of offences published by the State of Haryana showing the offences of moral turpitude. Secondly, the offence of obscenity cannot be equated with the offence of murder. Thus, this judgment also does not help the contention of the applicant. 22. On the contrary, the Hon ble Apex Court in case of Hikmat Ali Khan (supra) and in case of J. Jaishankar (supra) has observed that even if a person is involved in a case of attempt to murder under Section 307 IPC or in a case of Section 509 IPC it will be deemed to be a case of moral turpitude. Other case cited by the respondent also support the same. Thus, on the basis of aforesaid discussion, the applicant, who was though recommended for promotion to the rank of Subedar, but as he was found involved in a criminal case being of moral turpitude, his promotion was rightly been withheld. No interference is warranted at this stage. We have also considered the contention raised with regard to the pension and DCRG issue. The applicant filed representation in this respect. The concerned authority has considered all the issues as the applicant is facing criminal trial, Page 16 of 17

17 still case has not been finalised. Therefore, considering the provisions of Regulations 3 & 4 of Pension Regulations, 1961 the applicant is not entitled to full pension and DCRG benefits. He has already been granted provisional pension and that has been revised as per rules on (Annexure R/E). 23. On the basis of the aforesaid discussion, the present application is liable to be dismissed. The same is hereby dismissed. No orders as to costs. M.L. NAIDU (Administrative Member) MANAK MOHTA (Judicial Member) Announced in the open Court on this 04 th day of March, 2011 Page 17 of 17

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