1. In this application, the applicant has impugned the orders passed by the Disciplinary Authority, i.e., the Presidential order dated 10.6.2002 which has been passed in furtherance of the Hon'ble High Court's order dated 29.8.2001.
2. The brief relevant facts of the case are that the applicant, who was a Development Officer in the office of respondents, was prosecuted on a bribery charge and was convicted and sentenced by the Special Court to two years rigourous imprisonment (RI) and a fine of Rs. 2000 vide judgment/order dated 23.12.1995. He had filed Criminal Appeal No.247/95 against this order and had obtained stay vide order dated 27.12.1995, which had stayed the operation of the sentence. He was given a notice by the respondents and was proceeded against and dismissed from service vide order dated 16.10.2000 passed by the President in exercise of power under Rule 19(1) of CCS (CCA) Rules, 1965, (hereafter referred to as "the Rules"). This order had been challenged by the applicant in an earlier application filed before this Tribunal (O.A.-2316/2000). The Tribunal had accepted the contention of the applicant that because of his obtaining the stay order from the Hon'ble High Court in the Criminal Appeal No. 247/95, the conviction and sentence were non-existent. Accordingly, the O.A. was allowed and he was ordered to be reinstated but deemed to be continued under suspension till disposal of the criminal appeal. Feeling aggrieved by the order of the Tribunal dated 19.3.2001, the respondents/Union of India had filed a writ petition before the Hon'ble High Court on the ground that the interim stay order in the Criminal Appeal will not wipe out the applicant's conviction and operate as a bar against any departmental action against him. The Hon'ble High Court, vide its order dated 29.8.2001 has noted that while the matter was under consideration by them, the applicant's Criminal Appeal No. 247/95 had been disposed of by the competent Appellate Court by order dated 3.8.2001 by affirming his conviction, though reducing his sentence to one of what he had already undergone and fine deposited, i.e., Rs. 2000. It has been noted by the Hon'ble High Court that taking into account the order dated 3.8.2001, the applicant's conviction stood affirmed by that Court and Competent Authority could take fresh appropriate disciplinary action against the applicant, observing also that the Tribunal's order had become of academic interest in the process. In this view of the matter, the Hon'ble High Court passed the following orders: "Impugned Tribunal order dated 19.3.2001 is left intact. It shall be open to Discilinary Authority to re-examine the matter and to take appropriate disciplinary proceedings against respondent under Rules taking in regard the judgment of this Court in Crl. A. No. 247/95 and pass appropriate orders within three months from receipt of this order. The authority shall also be free to deal with suspension period of respondent from the date of his re-instatement to the date of any further action in accordance with rules." 3. In furtherance of the aforesaid order of the Hon'ble High Court, the Disciplinary Authority has stated in the impugned order dated 10.6.2002 that it has issued the show cause notice vide Memorandum dated 14.12.2001 to the applicant. It is also stated that he has been given an opportunity to make a representation which has been carefully considered and on his request, an opportunity of personal hearing was also given on 5.2.2002. The Disciplinary Authority in accordance with the provisions of Rule 19(1) of the Rules had also consulted respondent No. 3/Union Public Service Commission (UPSC), as the applicant is a Group 'A' Gazetted Officer. Mr. S.S. Tiwari, learned Counsel has submitted that the impugned order passed by the Disciplinary Authority together with the advice tendered by the UPSC, whose advice has been referred to in that order, has been read together. Learned Counsel for applicant has very vehemently submitted that perusal of the advice of UPSC and in particular Paragraph 8, shows that there has been absolutely non-application of mind by the authority as well as that of the Disciplinary Authority while dealing with the applicant's subsequent representation submitted by him after the aforesaid order of the Hon'ble High Court, under which further action had been taken against the applicant and the impugned order has been issued. It is, therefore, relevant to read Paragraph 8, which reads as under:- "The Commission observe that in his representation CO had mainly raised issued regarding validity of the proposed penalty of dismissal on the basis of the judgment of the Court of Hon'ble District Judge. He had also quoted a few cases of observations/judgments of various Courts regarding principles of natural justice and questioned the decision of the D.A. to initiate disciplinary action against him without obtaining sanction of the Competent Authority. The Commission observe that earlier also, when D.A. had issued orders for CO's dismissal, CO had submitted similar representation which had been considered by the Commission alongwith all other aspects relevant to the case before tendering their advice dated 17.3.1998 that CO be dismissed from service.
There has not been any material change in the case against the CO since then. The Commission further observe that even if the submissions of the CO is taken into account, one cannot ignore that the CO has been convicted of the offence of offering illegal gratification to another public servant and the charge has been fully established. The Hon'ble High Court have upheld his conviction and hence under Rule 19 of the CCS (CCA) Rules, 1965, the D.A. is fully competent to impose an appropriate major penalty on the CO without any further enquiry." 4. Learned Counsel for applicant has contended that the representation made by the applicant dated 31.12.2001 runs into several pages, including several annexures containing relevant judgments of the Hon'ble Supreme Court, which, he has contended, has not at all been looked into by the UPSC and the Disciplinary Authority. He has submitted that the UPSC has merely stated that they have considered his previous and similar representation along with all other aspects relevant to the case before tendering their advice dated 17.3.1998 and, therefore, simply came to the conclusion that there was no material change in the case against the applicant and had gone on to tender the advice to dismiss the applicant from service. He has emphatically contended that this is not in order or in accordance with rules or judgments of the Hon'ble Supreme Court. He has relied on the judgment of the Hon'ble Supreme Court in Shankar Dass v. Union of India and Anr., (1986) SCC (Cri) 242=1985(2) SLJ 454 (SC) and has contended that the mere conviction of the applicant in the criminal offence does not necessarily disclose any moral turpitude, which warrants the type of action that the respondents have taken. To the same effect, he has relied on Pawan Kumar v. State of Haryana and Anr., (1996) SCC (Cri) 583=1996(2) SLJ 9 (SC), M/s. Glaxo Laboratories (I) Ltd, v. Presiding Officer, Meerut, AIR(SC) and K.L. Kalra v.The Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361.
Mr. S.S. Tiwari, learned Counsel has submitted that under the Rules, i.e., the CCS (CCA) Rules, 1965 and CCS (Conduct) Rules, 1964, copies of which have been annexed to the representation submitted by the applicant dated 31.12.2001, there is no such thing as any misconduct in the facts applicable to the present case, i.e., of a Government servant offering a bribe to another Government servant. He has also contended that the Disciplinary Authority should have examined this issue with a view to see whether there was any moral turpitude, which he contends that there is none. He has also contended that these rules are vague and unclear and do not refer to the type of case which is that of the applicant and which can be stated to involve any moral turpitude. He has also emphasised that the Hon'ble High Court while dealing with the Criminal Appeal No. 247/95 has taken into account the various circumstances, including the fact that the applicant had already undergone the trial for about 15 years and had reduced the sentence only to that already undergone which was present in the earlier penalty imposed. He states that these are all relevant circumstances, which the Disciplinary Authority ought to have applied its mind and having not done so, the impugned order dated 10.6.2002 passed by the Disciplinary Authority should be quashed and set aside. He has submitted that if necessary and if the Tribunal deems it fit, the matter may be remitted to the Disciplinary Authority and the UPSC to freshly and fully apply their mind, as ordered by the Hon'ble High Court in the order dated 29.8,2001, which he has contended, the authorities have not done, and thereafter, pass appropriate orders.
5. The above contentions have been equally emphatically controverted by Mr. R.N. Singh, learned Counsel for respondents, who has submitted that the impugned order has been passed by the Competent Authority fully in accordance with the Rules and the directions of the Hon'ble High Court.
We have also seen the reply filed by the respondents. Mr. R.N. Singh, learned Counsel has drawn our attention to the order passed by the Hon'ble High Court in Criminal Case No. 247/95. He has emphasised that in the circumstances of the case, even the learned Counsel appearing for the appellant, i.e., the applicant in the present case, was not in a position to challenge the order of conviction but had confined his arguments to the question of sentence only. He has also stated that the State has no objection if the sentence of the applicant is reduced to that already undergone. The learned Court, after taking into account the relevant facts and circumstances, came to the conclusion that the order of conviction cannot be faulted but sentence can be reduced. Mr.
R.N. Singh, learned Counsel has, therefore, submitted that the conviction has been upheld by the Appellate Criminal Court and only the sentence has been reduced to what has already been undergone by the applicant. He has referred to the annexures, including the rules, which are relied upon by the applicant himself (Annexures A-4 and A-7). He has submitted that with regard to the contention of the learned Counsel for the applicant that the case did not involve moral turpitude firstly that the list of type of cases covered by the expression 'moral turpitude' is only illustrative and not exhaustive. He has submitted that this annexure refers to the D.G.P. & T's letter dated 29.11.1972 and in any case, it is only an illustrative in nature. Under Rule 3-B of the CCS (Conduct) Rules, 1964 from which admittedly the learned Counsel for applicant had taken extracts, which are given in Annexure A-7 to the representation made by the applicant, Mr. R.N. Singh, learned Counsel has stated that Sub-rule (23) refers to various acts which amount to misconduct. He has submitted that the act indulged by the applicant amounts to misconduct, which is prejudicial to the interest of the master, i.e., Government of India and is not compatible with the discharge of the duties as a Government servant and also amounts to being grossly immoral and is of such a nature that the master/Government of India cannot rely upon regarding the faithfulness of their employee, which are all covered under Clauses (1) to (6) of Sub-rule (23). These various clauses are self-explanatory and quite clear to show that the action taken by the respondents is in no way unreasonable or arbitrary or harsh taking into account the fact that the applicant has been convicted by the Competent Criminal Court.
Further, he has added that under Sub-rule 23 (1) Clause (9), which refers to conviction by a Criminal Court, the act has been stated to amount to misconduct and here again, there is no ambiguity at all.
6. With regard to the judgments relied upon by the learned Counsel for applicant, learned Counsel for respondents has submitted that the judgments of the Hon'ble Supreme Court in M/s. Glaxo Laboratories (I) Limited's case (supra) and A.L. Kalra's case (supra) are distinguishable, as they dealt with rules applicable to those Organisations which are not in pari materia to the rules applicable to the present case, which are relied upon by the applicant himself. He has also contended that Para 12 of Pawan Kumar's case (supra) is fully applicable to the facts of the present case where it has been held that "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". He has relied on a subsequent judgment of the Hon'ble Supreme Court i n Allahabad Bank and Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1, wherein the judgments in Pawan Kumar's case (supra) and Baleshwar Singh v. Distt. Magistrate and Collector, AIR 1959 All 71, have been referred. The Hon'ble Supreme Court has quoted with approval the observations of the Hon'ble High Court in Pawan Kumar's case (supra) and Baleshwar Singh's case (supra) that "the expression 'moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals". They have also quoted with approval the aforesaid observations of the Hon'ble Supreme Court in Pawan Kumar's case (supra) on what is the meaning of the expression "moral turpitude". Learned Counsel has, therefore, submitted that taking into account the nature of the criminal offence for which the applicant has no doubt been convicted by the Competent Criminal Court, which involves offering bribe by the applicant to the former Director, Central Vigilance Commission (CVC), he has submitted that it cannot be held that the act is either honest or of good morals and, therefore, amounts to moral turpitude. He has submitted that the conviction has to be seen in the context of the facts and circumstances of the case and has emphasised that in the present case, even the applicant has not, in any way, disputed the fact of his conviction by the Criminal Court. Learned Counsel has submitted that these facts have been thoroughly examined by the UPSC and the Disciplinary Authority before passing the impugned order, which, in no way, is either against the Rules or arbitrary or illegal, which justifies the Tribunal setting the same aside, as contended by the learned Counsel for applicant. Mr. R.N. Singh, learned Counsel has, therefore, prayed that the O.A. may be dismissed with costs.
7. We have carefully considered the pleadings and submissions made by the learned Counsel for the parties, including the various judgments relied upon by them.
8. A perusal of the Hon'ble High Court's order dated 3.8.2001 in Criminal Appeal No. 247/95 shows that the applicant had not even attempted to challenge the order of conviction by the Criminal Court and, therefore, that order of conviction dated 23.12.1995 stands, by the Competent Authority. The Appellate Court has only dealt with the sentence imposed on the applicant which has been reduced to that already undergone and it has, therefore, upheld the order of conviction.
9. Rule 19(1) of the Rules provides special procedure in certain cases, notwithstanding anything contained in Rule 14 to Rule 18 for the Disciplinary Authority to take such action as it deems fit where any penalty is imposed on a Government servant on the ground of conduct, which has led to his conviction on the criminal charge. The impugned order has been passed by the Disciplinary Authority in terms of these Rules. It is relevant to note that not only the learned Counsel for applicant does not dispute the fact that the applicant has been convicted by the Criminal Court of a criminal offence but does not also dispute or deny that he had attempted to give a bribe to another public servant which, he submits, is not in the discharge of his duties nor does it amount to moral turpitude. We are unable to agree with this contention because Rule 19(1) of the Rules clearly provides a special procedure in such cases, including a case where a Government servant has been imposed a penalty of conviction on a criminal charge. After the Appellate Authority's order dated 3.8.2001 confirming the order of conviction and only reducing the sentence had been passed, there is no bar on the part of the respondents in taking action under Rule 19(1) of the Rules. The contention of Mr. S.S. Tiwari, learned Counsel, based on the D.G.P. & T's. letter dated 29.11.1972 will not assist him with regard to the illustrative list of cases as to what amounts to moral turpitude, because the applicant has been dealt with under the Rules.
Under Rule 3-B(23) (1) & (9) of the CCS (Conduct) Rules, extracts of which have been annexed by the applicant himself at Annexure A-7, conviction by a Criminal Court has been stated as acts of omission amounting to misconduct for which action can be taken against the delinquent employee. Therefore, we find no infirmity or illegality in the procedure followed by the respondents in adopting the procedure laid down under Rule 19(1) of the Rules. We also find merit in the submissions made by the learned Counsel for respondents that under Sub-rule (23) of the Rules, Clauses 1 to 6 are also fully applicable to the facts in this case, as the act or conduct of the applicant which has led to his conviction by the Competent Criminal Court, is certainly prejudicial to the interests or reputation of the master, i.e., the Government of India and it cannot be stated that the master can rely on the faithfulness of the employee or expect him to discharge his function in a peaceful manner or that it is safe for the employer to retain him in service or that he can be trusted to discharge his responsibilities, as provided specifically in Sub-rule (23) of the Conduct Rules. The judgment of the Hon'ble Supreme Court in Pawan Kumar's case (supra) relied upon by the applicant does not assist him because the Hon'ble Supreme Court has observed clearly that "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. In the present case, the applicant does not deny the fact that he had tried to bribe another Government officer, i.e. the former Director, CVC and any amount of quibbling and explanations sought to be given by the learned Counsel for applicant to show that his conduct is not moral turpitude does not appeal to us. If such an action or conduct on the part of a Government, employee in trying to attempt to bribe another public servant is not to be considered as moral turpitude, we wonder what else would come within the expression "moral turpitude". The Hon'ble Supreme Court has in a catena of judgments also expressed the view that such acts should be dealt with by a heavy hand in accordance with law with which we fully and respectfully agree.
10. We have also considered the other submissions of the learned Counsel for applicant but do not find any merit in the same. In particular, Mr. S.S. Tiwari, learned Counsel has laid much emphasis on the judgment of the Hon'ble Supreme Court in Shankar Dass's case (supra). The facts in that case are distinguishable from the facts in the present case, as the Hon'ble Supreme Court was dealing with the facts arising under Section 12 of the Probation of Offenders Act, 1958 and that, it is not a disqualification for Government service. In the present case, the Competent Criminal Court has convicted the applicant who was a Government servant of a criminal offence, which has been upheld by the Appellate Court and, therefore, that judgment will not assist the applicant.
11. A perusal of the impugned order and the advice tendered by the UPSC/ respondent No. 3 shows that the applicant had been allowed to give a representation on 31.12.2001 this was, as correctly pointed out by Mr. R.N. Singh, learned Counsel, in pursuance of another memorandum issued by the respondents dated 14.12.2001. Apart from that, the applicant was also given an opportunity of personal hearing by the Competent Authority which has also been recorded in the impugned order.
No doubt, the UPSC has stated that they had earlier considered a similar representation made by the applicant along with all other aspects relevant to the case before tendering their advice dated 17.3.1998 and have observed that there has not been any material change in the case against the applicant since then. We are not impressed by the submissions made by the learned Counsel for applicant that this shown that the UPSC has merely considered only the earlier representation and have failed to apply their mind to the subsequent representation made by the applicant on 31.12.2001. We say so because in the advice given by the UPSC itself, which has been referred to repeatedly by the learned Counsel for applicant and quoted in Paragraph 3 above, they have stated that the Commission further observed that even if the submission of the applicant is taken into account, one cannot ignore that he has been convicted of the offence of offering illegal gratification to another public servant and the charge has been fully established. It cannot, therefore, be held that either the UPSC/respondent No. 3 or the Disciplinary Authority, i.e., the President in this case have tendered their advice or passed the order, respectively, without application of mind, which was one of the main grounds contended by the learned Counsel for applicant. A plain reading of the impugned order and advice, of the Competent Authorities, not only shows that they have fully applied their minds, but have also fully complied with the Rules and the principles of natural justice by affording an opportunity to the applicant to put forward his case.
12. In the facts and circumstances of the case and having regard to the settled law with regard to the power of the Court or Tribunal to interfere in such matters in exercise of the powers of judicial review, we find no justification to set aside the penalty order. The impugned order has been passed by the Competent Authority after taking into account all the relevant facts and circumstances of the case, including the conduct of the applicant and his conviction by a Criminal Court. In the circumstances, the penalty of dismissal from service docs not in any way shock the judicial conscience, with particular reference to the nature of the conduct of the applicant, to term it as excessive or disproportionate. Therefore, this ground also fails and as such, we see no justification to remit the matter to the respondents to pass any other lesser punishment order.
13. In the result, for the reasons given above, we find no merit in this application. O.A. fails and is accordingly dismissed. No order as to costs.