Judgment:
M.R. Calla, J.
1. This special appeal is directed against the judgment and order dated August 13, 1998 passed by the learned single Judge, whereby the Writ Petition was dismissed. The Writ Petition was filed by the present Appellant against the Rajasthan State Electricity Board and the Executive Engineer (O & M), Rajasthan State Electricity Board, RGM, Kota. The Petitioner was working as a Helper Gr II with the Rajasthan State Electricity Board. On the ground of pendency of a criminal case, he was placed under suspension vide order dated July 13, 1978. On February 18, 1983, the Petitioner was convicted in a criminal case under Section 302 and 149, IPC. On the basis of this conviction, his services were put to an end vide order dated March 5, 1983. i.e. Schedule A with the Writ Petition.
2. The Petitioner had preferred an appeal against the conviction and sentence before this Court. The appeal was decided on January 24, 1986 and his conviction was converted under Section 323 IPC and the sentence already undergone by him was granted. On further appeal before the Supreme Court, the Petitioner was given the benefit of probation under the provisions of Probation of Offenders Act, 1958 (for short 'the Act') on April 26, 1989. In the meanwhile, the Petitioner preferred a Writ Petition being S.B. Civil Writ Petition No. 1499/1983, on April 5, 1983, and prayed that in view of the fact that the sentence passed against him was suspended in the criminal appeal, he may be taken back in service. After getting the benefit of probation under the provisions of the Act by the Supreme Court on April 26, 1989, the Petitioner had preferred yet another Writ Petition being S.B. Civil Writ Petition No. 38389, and later on withdrew the earlier Writ Petition No. 1499/1983 as the relief which had been claimed in the earlier Writ Petition could be pressed in the subsequent Writ Petition No. 3835/1989. His case was that he had been ultimately convicted only for the offence under Section 23, IPC and had also been released on probation under the provisions of the Act and, therefore, he could be taken back into service of the Respondent Board. S.B. Civil Writ Petition No. 3835/1989 was decided on November 17, 1983 with the direction that the Petitioner shall make a representation to the Department and the Department shall pass an appropriate order thereon. Against this order dated November 17, 1983 passed in S.B. Civil Writ Petition No. 3835/1989. the Petitioner preferred a special appeal before the Division Bench being D.B. Civil Special Appeal (Writ) No. 42/1994. This special appeal was decided on November 8, 1996 and the order as had been passed by the learned single Judge was upheld. The Petitioner thereafter submitted a representation on November 13, 1996 along with the copy of the High Court's Order dated November 8, 1996. This representation was decided on May 5/8, 1997 by the Executive Engineer (O & M) Rajasthan State Electricity Board, Ramganj Mandi. Aggrieved from this order dated May 5/8, 1997, the Petitioner preferred S.B. Civil Writ Petition No. 4019/1998 which was dismissed by the learned single Judge on August 13, 1998 and the same is the subject-matter of challenge in this special appeal.
3. During the pendency of the Appeal, five State Government Companies have stepped into the shoes of the Rajasthan State Electricity Board and, therefore, the cause title of the appeal was amended so as to read the names of the Respondents as under:
(1) Jaipur Vidyut Vitaran Nigam Ltd., Jaipur through CMD.
(2) The Executive Engineer (O & M), Jaipur Vidyut Vitaran Nigam Ltd., Jaipur.
4. Learned counsel for the Appellant has assailed the impugned judgment and order dated August 13, 1998 by saying that the removal order was passed against the Petitioner on the basis of his conviction and sentence under Section 302 r/w 149, IPC. Ultimately, the criminal case has resulted into his conviction under Section 323 IPC only and he had also been given the benefit of the provisions of the Act by the Supreme Court and, therefore, when he submitted the representation dated November 13, 1996 as per the directions of this Court in the Writ Petition and the Special Appeal, that representation cannot be said to have been rightly rejected as is obvious from the contents of the order dated May 5/8, 1997. A reading of the order as has been passed on May 5/8, 1997 by the concerned Executive Engineer would show that the authority did not apply its mind to the representation which had been made by the petitioner and the same was not considered in the correct perspective and with an objective approach. Learned counsel has submitted that a reading of the order itself shows that the representation has been rejected for the reasons which cannot be said to be germane. In support of his submissions as above, Shri Ashok Gaur has placed reliance on a decision of this Court in the case of Ashok Gaur v. State of Rajasthan, 1987 (2) Rajasthan LR 63.
5. Learned counsel for the Appellant during the course of arguments also candidly stated before us that in case the appellant is taken back in service, he will forego his claim for wages for the period during which he has not worked and so far as the intervening period is concerned, this Court may pass appropriate orders.
6. The Appeal has been opposed by Shri Ajay Rastogi, counsel for the Respondents. He submitted that the Appellant had been ultimately convicted under Section 323, IPC and even if he has been given the benefit of probation under the provisions of the Act, it is not incumbent upon the Respondents to take Petitioner back in service. He has further submitted that the Authority which passed the order dated May 5/8, 1997 after going through the entire history of the litigation has rightly rejected the Petitioner's representation and the order as has been passed by the learned single Judge which is impugned in this appeal, does not suffer from any infirmity. In support of his submission, he has placed reliance on a decision of the Supreme Court in Karam Singh v. State of Punjab AIR 1996 SC 3159 : 1996 (7) SCC 748.
7. He has further submitted that admittedly the Appellant who was appointed as Helper Gr.II in the year 1971 was placed under suspension on July 13, 1978 and was dismissed from service on March 5, 1983 and, therefore, he is not entitled to any relief whatsoever even if he is prepared to forego his back wages.
8. We have considered the submissions made on behalf of both the sides and have also gone through the cases as have been cited before us.
9. There is no dispute, rather it is the common case of the parties that the Petitioner was involved in the criminal case as a result of some private disputes with his neighbour and the conduct on the basis of which he was convicted had nothing to do with his conduct as an employee of the Board or nothing to do with discharge of duties as an employee of the Board. The Authority which considered and decided the representation submitted by the Petitioner, has rejected the representation for the following reasons:
(1) There is no direction by any Court either the District and Sessions Judge or the High Court or the Supreme Court to take the Petitioner back in service.
(2) In the representation dated November 13, 1996 which has been made to the Minister of Energy and the Secretary to Govt. Energy Department he had claimed entire back wages and other benefits.
(3) In the Service Rules of the Board, there is no provision to keep the convicted and sentenced persons in service nor there is any direction of any Court to take him in service.
(4) Therefore, no relief can be granted to the Petitioner on the basis of the representation.
10. We have read this order with regret no less than surprise. What was required to be considered by the Authority was as to whether in view of the ultimate conviction under Section 323 IPC only and in view of the fact that he had been granted the benefit of probation under the provisions of the Act, his conduct in the criminal case was such as to deny him the relief of taking him back in service and the offence committed by him involves moral turpitude? Instead of considering this aspect the Authority concerned has given reason which were not at all relevant for the purpose of deciding the representation. To say that there is no direction of any Court to take the Petitioner back in service, is wholly misplaced consideration. There is no question of any direction by any Court to take him back in service. The question was to decide his representation in the given facts of the case and it was obligatory for such authority itself to examine the facts of the case in which the offence was committed and to arrive at a decision as to whether it was an offence involving moral turpitude or that it would be contrary to the interest of the Board if he is taken back in service or as to whether there is any legal impediment so as to take him back in service or that it would be unduly harsh, excessive and disproportionate punishment in the facts and circumstances of the present case if the Petitioner is not taken back in service. To say that there is no provision in the Service Rules of the Board to keep the convicted and sentenced persons in service is rather irrelevant and not at all germane as obviously there cannot be any provision in the rules that convicted and sentenced persons be kept in the service but that does not mean that in no case a person convicted for an offence under Section 323 and given the benefit of probation, can be kept in service. Such employee if removed earlier on account of conviction and sentence under Section 302 IPC comes with the case that his conviction has been altered under Section 323, IPC only with the benefit of probation by the higher or highest Court the Authority has to consider the altered fact-situation, also has to see as to whether the offence involves any moral turpitude and as to whether he can be taken back in service or not?
11. So far as the decision of the Supreme Court in Karam Singh's case (supra) is concerned, no doubt the Court had only converted the penalty of dismissal into one of removal from service and in that case also, the conviction was ultimately upheld under Section 323 IPC only instead of conviction under Section 302 IPC, and the Appellant had been granted benefit of probation and the Supreme Court had also considered its earlier decision rendered in the case of Union of India v. Bakshi Ram AIR 1990 SC 987 : 1990 (2) SCC 426 : 1990-I-LLJ-498. However, the fact cannot be lost sight of that in that case, the consideration which prevailed with the Court was that he being a Constable at the relevant time and being a member of the disciplined force, was not expected to participate in the commission of crime, instead, he was expected to prevent the commission of crime, and therefore, the authorities were justified in rejecting his reinstatement. However, the penalty of dismissal was converted to one of removal. Such is not the fact-situation obviously in the present case. In the present case, the Petitioner was only working as a Helper Gr. II in Rajasthan State Electricity Board and once his conviction under Section 302 IPC had been converted to 323 IPC only and the Supreme Court has also granted the benefit of probation under the provisions of the Act, the reasoning of Karam Singh's case (supra) cannot be applied against the present Petitioner who was only Helper Gr. II. We have gone through the decision of the Division Bench of this Court in Ashok Gaur's case (supra), wherein the Court has dealt with misconduct under three different heads in Para No. 16 of the Judgment:
(a) misconduct relating to duty; (b) misconduct relating to discipline; and (c) misconduct relating to morality.
12. In the facts of the present case, we find that there is no question of any misconduct relating to duty or misconduct relating to discipline. So far as the misconduct relating to morality is concerned, it may be observed that present one is at the most a case of misconduct of committing an offence and it is not the case of even the Board that it was an offence involving moral turpitude. Every offence is certainly contrary to the accepted moral values of the society but it cannot be said that every offence involves moral turpitude. It will depend upon the facts and circumstances of each case as to whether the offence committed by an individual is an offence involving moral turpitude or not. It is nobody's case that in the case at hand the offence under Section 323 IPC for which the Petitioner has been ultimately convicted, involved moral turpitude. After his conviction for offence under Section 323 IPC, the Petitioner was granted benefit of probation and was released under the provisions of the Act. The Appellant, therefore, stood removed of the disqualification attached on account of such conviction according to Section 12 of the Act. Such conviction is not a disqualification for the purpose of seeking an employment in future, of course, after the removal of such disqualification under Section 12 of the Act, the conduct of the Petitioner which had led to his conviction cannot be said to have been obliterated and the order as had been passed in the instant case against the Petitioner to put an end to his service was certainly based on his conduct which led to his conviction but that was in the context of conviction under Section 302 IPC r/w Section 149 IPC, and could not be in the context of conviction under Section 323 IPC coupled with his release under the provisions of the Act at that time. The authority deciding the representation was, therefore, under an obligation to address itself as to whether on the basis of subsequent developments as above, the Petitioner could be taken back in service or not? The learned counsel for the Appellant has also invited our attention to the Employees' Conduct Regulations, 1976 framed in exercise of power conferred by Section 79 of the Electricity (Supply) Act, 1948. Rule 4 of the Rajasthan State Electricity Board Employees' Conduct Regulations, 1976 provides as under:
'4. Improper and unbecoming conduct -Any employee who:
(i) is convicted of an offence involving moral turpitude whether in the course of the discharge of his duties or not;
(ii) behaves in public in a disorderly manner unbecoming of his position as an employee of the Board, or
(iii) is proved to have sent an anonymous or pseudonymous Petition to any person in authority, or
(iv) leads an immoral life; shall be liable to disciplinary action.'
13. While Regulation 7 provides procedure for imposition of major penalties, Regulation 8 of the Employees (Classification Control and Appeal) Regulations, 1962 and Rule 8(b) thereof is reproduced as under:
'8. The procedure detailed above not be followed or any of its provisions waived in the following cases: (b) When the order of punishment such as dismissal, removal or reduction is based on facts, which have led to the conviction of the person in a Criminal Court, on a charge involving moral turpitude.'
14. The submission of the learned Counsel for the Appellant on the basis of Regulation 4(i) of Conduct Regulations quoted as above is that in absence of the finding that the Petitioner was convicted for the offence involving moral turpitude, he was not liable to disciplinary action. He had also made a reference to the Circular No. RSEB/OSD/C-985/D,3810, dated September 3, 1975, which provided for an action to be taken in cases where Board's Employees, are convicted on a criminal charge by a competent Court of law. This Circular provides in Para No. (ii) that on conviction of Board's employee by a Court of Law, the penalty imposed under Regulation 8(b) of the RSEB Employees (CC&A;) Regulations, 1962 should be commensurate with the gravity of the misconduct which led to his conviction. In a case where Board's employee has been convicted of an offence which is sufficient to render his further retention in service prima facie undesirable, action to dismiss, remove or compulsorily retire him from the Board's service should be taken promptly as soon as the conviction is pronounced by the Trial Court.
15. The learned counsel has submitted that these provisions have not been considered by the competent authority and it has neither considered nor decided as to whether the offence for which the Petitioner has been convicted under Section 323 IPC involved any moral turpitude. In any case, it cannot be said that the punishment of putting an end to his service is commensurate with the gravity of misconduct in this case, once it is found that the conviction is under Section 323 IPC only and he has been granted the benefit of provisions of the Act and the Authority dealing with his representation has neither considered nor determined as to whether the offence committed by the Appellant involved any moral turpitude.
16. In the light of the discussion as aforesaid, it is transparently clear that the Petitioner's representation has neither been considered constructively nor on the grounds which were relevant. It is also clear by the reading of the order rejecting the representation that the representation has been rejected on ground and for reasons which are not at all germane.
17. In our opinion, the Petitioner's representation has not received fair consideration. In any view of the matter, the Petitioner has already suffered the agony of litigation ever since 1983 and by now, we are in year 2002, and therefore, we do not find it necessary or expedient to remand the matter back for consideration afresh by the concerned authority, more particularly when the matter was referred to Lok Adalat and there also, the parties failed to settle the dispute. Whereas on behalf of the Petitioner the statement has been made that he does not claim any back wages for the intervening period, we find that this appeal deserves to be partly allowed in the following terms:
(1) The Appellant shall be taken back in service as Helper Gr. II i. e. the post he was holding at the time when he was removed from service.
(2) The Petitioner shall not get any back wages for the period in past right from the date of removal till the date he is allowed to join the duties in pursuance of this order which date shall not be later than March 1, 2002.
(3) So far as the counting of entire intervening period for the purpose of pension is concerned, we leave it for the authorities to pass appropriate orders in accordance with rules but it is made clear that in case the total aggregate of the period of service rendered by the Petitioner prior to the date of removal and after his joining now falls short of qualifying service for the purpose of pension, the authorities shall pass appropriate orders so that he gets pension along with other retiral benefits as if he had served for a period sufficient so as to entitle him to get the pension. It is again made clear that it would not mean that the respondents shall, in no case, give benefit of the period for which he was out of employment and it is left to them to pass appropriate orders in this regard. The Respondents shall also pass appropriate orders in accordance with relevant rules for the period of suspension suffered by the Appellant.
(4) The Petitioner shall be entitled to all consequential benefits in the matter of his pay etc. only on notional basis including the pension and other retiral benefits.
18. This appeal is accordingly allowed partly in the terms as aforesaid. The order dated August 13, 1998 passed by the learned single Judge as also the order dated May 5/8, 1997 passed by the authority rejecting his representation are hereby set aside. No order as to costs.