1. What is 'moral turpitude', what are the factors which may be taken into consideration while deciding as to whether a particular offence involves moral turpitude or not Whether the provisions of Art. 311 of the Constitution are applicable to an employee of a nationalised bank which is 'State' within the meaning of Art. 12 of the Constitution Is the provision of Rule 50(7) of State Bank of India (Supervising Staff) Service Rules (1977) illegal and void These are some of the questions raised by the petitioner who was an employee of a nationalised bank and who has been discharged from service on the ground that he was involved and convicted for offences involving 'moral turpitude'.
2. The petitioner was serving as an Officer Gr. II with the State Bank of India, respondent herein. He has been discharged from service by order dated September 7, 1981 (Annexure 'E' to the petition). He has challenged the legality and validity of the said order on the following grounds :
(1) That in the show-cause notice reference to certain false transportation bills which did not form part of the subject-matter of the charge, was also made and therefore the order suffers from non-application of mind;
(2) That the impugned order of discharge from service is passed by an authority lower in rank than that of the appointing authority. According to the petitioner, the appointing authority was the 'Local Board' while the impugned order has been passed by the Chief General Manager who is a lower authority and hence the order is bad;
(3) That Rule 50(7) of the State Bank of India (Supervising Staff) Service Rules (1977), under which the action is taken and the order is passed, is illegal and said and hence the order cannot be sustained; and
(4) That the offences for which the petitioner has been held guilty are not offences involving moral turpitude and the provisions of Rule 50(7)(i) will not be applicable to his case.
3. The petitioner was prosecuted for offences under Ss. 420, 468 and 471 of the Indian Penal Code on the allegation that he took treatment from Dr. G. T. Asudani, who was running a dispensary at Kubernagar, Ahmedabad, on June 20 and 21, 1977 (two days) for chronic bronchitis and paid him Rs. 10/- towards the aforesaid treatment. That he obtained a receipt dated August 7, 1977 from Dr. Asudani for Rs. 10/- but while submitting the same for reimbursement of medical expenses, he manoeuvred the figure of Rs. 10/- to Rs. 110/- and also manoeuvred the dates so as to appear to the State Bank authorities that he took treatment from the said Doctor from June 2, 1977 to June 21, 1977 and had paid him Rs. 110/-. As a matter of fact, he had taken treatment for two days only and paid Rs. 10/- only. But fraudulently obtained Rs. 100/- more and thereby cheated the Bank and for the purpose of this cheating he forged the receipts and thereby committed offences under Ss. 420, 486 and 471 of the Indian Penal Code. A criminal case being Criminal Case No. 599 of 1978 was instituted against the petitioner and the petitioner pleaded not guilty to the charge. On merits the learned Chief Metropolitan Magistrate, Ahmedabad before whom the case was conducted, held him guilty of the offences charged against him. The learned Magistrate however took an unduly lenient view of the matter and passed order on June 1, 1979; by which the petitioner was directed to pay an amount of Rs. 750/- as fine for the offence under S. 420 of the Indian Penal Code and further to pay an amount of Rs. 250/- as fine for offence under S. 468 read with S. 471 of the Indian Penal Code. No substantive sentence of imprisonment was imposed.
4. The Chief General Manager of the respondent-Bank issued a show cause notice dated June 7, 1980 and called upon the petitioner to show cause as to why the punishment of discharge from service as provided under Rule 50(7)(i) of the State Bank of India Service Rules, should not be imposed upon him. It appears that an order of discharge from service was passed by the Chief General Manager on July 1, 1980. That order was challenged by the petitioner before this High Court by filing a petition, being Special Civil Application No. 1654 of 1980 under Art. 226 of the Constitution of India. By consent of the parties the Court ordered that the discharge order be suspended and the petitioner be afforded an opportunity to show cause pursuant to the show cause notice dated June 7, 1980. By consent of the parties a detailed programme was fixed within which time the petitioner should give reply and before a particular date the respondent-authorities should give hearing and decision. As stated by the counsel for the petitioner, the petitioner submitted his reply but the same has not been produced on the record of his petition. In view of the inaccurate statements made with regard to the grounds taken in the written reply, it is not safe to refer to the averments made in the petition as to what grounds were taken by the petitioner before the departmental authorities. But it does appear that ground Nos. 2 and 3 which are sought to be raised here were not at all raised before the departmental authorities. They are :
Ground No. 2 : Power of the Chief General Manager to pass the impugned order.
Ground No. 3 : Legality and validity of Rule 50(7).
After affording an opportunity of being heard to the petitioner, the Chief General Manager of the Bank passed order dated September 4, 1981 holding that the conviction was in respect of very serious offences and in view of the fact that the petitioner was employed in a bank in view of the nature of duties he was expected to discharge in the bank, it would be detrimental to the interest of the Bank as well as to the interest of the public to retain such an official in service. It was further held that the authority was satisfied that the petitioner was convicted of offences involving moral turpitude. Therefore the impugned order discharging the petitioner from service from July 1, 1980 was passed.
5. The order is sought to be challenged on the ground that in show cause notice, Annexure 'B', there is a reference to certain false transportation bills. The bills according to the petitioner, did not form part of the subject matter of the charge and therefore reference to these bills shows that there was non-application of mind. If one reads the entire paragraph 1 of the show cause notice, it is clear that the reference to the aforesaid bills is only by way of preface. The said paragraph reads as follows :
'I write with reference to my letter No. C&1/8102 dated September 7, 1977, placing you under suspension for the alleged act of tampering with the Bank's books. Following the CBI's prosecution, further acts of submission of false medical bills and inflated/false transportation bills by you have come to light.'
The entire paragraph is by way of preface only. The real contents of the show cause notice start from paragraph 2 on wards. Therefore it cannot be said that, simply because a reference is made to certain other inflated/false transportation bills, there is non-application of mind. Hence the contention fails.
6. The second contention is that the impugned order has been passed by the Chief General Manager who is lower in rank than the appointing authority, i.e. the Local Board. To substantiate this contention, the petitioner has not produced on record his appointment order. In support of his contention he has relied upon the averments made by him in the petition. The relevant averments are in paragraph 15D of the petition. Therein the petitioner has stated that in his case as per the specific recruitment rules, i.e. the State Bank of India (Sub-Accountants and Head Cashiers) Service Rules, the appointing authority is the Local Board (Executive Committee) of the Bank. Even though the petitioner was specifically asked to produce his appointment order to the post of Officer Gr. II dated March 1, 1973, he has not been able to produce the same but he has insisted to rely upon the pleadings of the parties. As far as the averments made by the petitioner are concerned, he has not produced any appointment order showing that he was appointed by the Executive Committee. The petitioner however, relies upon the averments made by the respondent-authorities in paragraph 23 of the affidavit-in-reply wherein it has been stated that, when the petitioner was appointed as Officer Gr. II, the appointing authority was Local Board. While in the affidavit in-reply it is further stated that the Chief General Manager was made the appointing authority and the disciplinary authority in terms of the Resolution passed by the Executive Committee. In view of this state of pleadings of the parties, it is difficult to hold that the petitioner was appointed by the Executive Committee. It is not understood why the petitioner has failed to produce his appointment order. At this stage, i.e. during the course of the dictation of the judgment, Mr. Padiwal the learned junior of the counsel for the petitioner had produced a letter dated March 8, 1973 written by the Personnel Manager of the respondent-State Bank of India. The letter indicates that in terms of the State Bank of India (Sub-Accountants and Head Cashiers) Service Rules, he has been appointed as Officer Gr. II on six months' probation on a substantive salary of Rs. 500/- per mensem in the salary scale of Rs. 500-40-620-45-980-50-1030 with effect from March 1, 1973. The order nowhere shows that the appointment of the petitioner has been made by the Executive Committee. Therefore in this state of record, it cannot be held that the petitioner was appointed as Officer Gr. II by the Local Board, i.e. the Executive Committee of the respondent-Bank.
7. Assuming that the petitioner was appointed by the Executive Committee and he is able to substantiate the ground on factual basis, even then the contention is not legally tenable. The action is taken by the Bank under the provisions of Rule 50(7)(i) of the State Bank of India (Supervising Staff) Service Rules. The aforesaid provision of the Rule empowers the appointing authority to discharge an employee from Bank's services without any notice whatsoever in case he has been convicted of an offence involving moral turpitude. Rule 3(f) defines 'appointing authority.' In so far as it is relevant, it reads as follows :
'3(f) 'Appointing Authority' means :- (i) in the case of Officers Gr. II and Gr. I and of other employees to whom the salary scales applicable to Officers Gr. II and Gr. I generally apply with or without modification, the Chief General Manager concerned or the Managing Director according as the employee is serving in the Circle or in or under Central Office.'
The petitioner being as employee holding the post of Officer Gr. II in the Circle, the Appointing Authority would be the Chief General Manager as per the provisions of the aforesaid Rule. As per Rule 50(7)(i), it is the appointing authority who has the power to discharge an employee concerned from Bank's services, in case the facts and circumstances as mentioned in that provision are found against him. Thus as per the provisions of the aforesaid Rules, the Chief General Manager being the appointing authority, he has passed the impugned order and therefore it cannot be said that the order is passed by an authority lower in rank than the appointing authority.
8. Counsel for the petitioner further contended that at the time when the petitioner was appointed his appointing authority was the Local Board, i.e. the Executive Committee. According to him, subsequent change in the Rule by which the Chief General Manager is made the appointing authority, would not change the position. In his submission the initial appointing authority only would have power to remove him from the services. Any other authority, lower in rank than the initial appointing authority, would not have power to remove or to take any disciplinary action against him. In support of this submission, the counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Krishna Kumar v. Divisional Assistant E. E. Central Railway [1980-I L.L.J. 209]. The decision in question pertains to a railway employee to whom the provisions of Art. 311(1) of the Constitution were applicable. The protection afforded under Art. 311(1) is applicable to a person holding a civil post under the Union Government or in All India Service or Civil Service of a State or to a person holding a civil post under the Union or a State. This provision is not applicable to a Bank employee. The misconception has its roots in the belief that once a nationalised bank is held to be 'State' within the meaning of Art. 12 of the Constitution, all the provisions of the Constitution applicable to other government employees would also apply to such employees. By no stretch of reasoning an employee of a nationalised bank can be said to be holding a civil post under the Union Government or under State Government. The Counsel for the petitioner has not been able to make good this point except the forceful assertion that a bank employee should be held to be holding a civil post. On the mere reading of the provisions of Art. 311(1) of the Constitution, it is clear that this provision is not applicable to a bank employee like the petitioner. A nationalised bank like the respondent-Bank is 'State' within the meaning of Art. 12 of the Constitution. Such banks are instrumentalities of the State and fall within the scope of phrase 'other authorities' occurring in Art. 12 of the Constitution. Therefore the respondent Bank is 'State' within the meaning of Art. 12 of the Constitution. The employee of such banks and/or bodies are not the servants of the Union or that of the States (See Supreme Court decision in Sukhdev Singh v. Bhagat Ram [1975-I L.L.J. 399]. Hence the contention has got to be rejected.
The Supreme Court decision in the case of Krishnakumar (supra) cited by the counsel for the petitioner has no applicability to the facts and circumstances of the present case and it is of no assistance to him.
9. The counsel for the petitioner contended that the provision of Rule 50(7)(i) is illegal and void inasmuch as it does not provide for any appeal against the order that may be passed by the competent authority under that Rule. Simply because an appeal is not provided for, the Rule does not become illegal or invalid. Right of appeal is not an inherent right but it is a creature of a statute. If a statute does not provide for an appeal, if cannot be claimed as a matter of right. Simply because an appeal is not provided, a provision cannot be held to be illegal and void. No provision of law or any decision to support the contention has been pointed out to me.
10. Really speaking, the particular provision of the rule has to be tested in the back ground of the entire scheme of the rules in question. The provision must be tested on the rational basis and it should be examined with a view to find out as to whether it is reasonable or not. Hence the test would be 'Is the provision so unreasonable and irrational that it requires to be quashed on that ground'. Faced with this difficulty, the counsel for the petitioner submitted that the classification made in this Rule is not reasonable and no useful purpose would be achieved by making this classification and hence the rule is arbitrary. If one looks at the rule, it becomes clear that two broad categories have been carved out. Rule 50(7)(i) deals with the following categories of employees :
'An employee who has been adjudicated insolvent; or who has suspended payments or has compounded with his creditors; or who is or who has been convicted by a criminal court of an offence involving moral turpitude.'
In the case of these types of employees only, the appointing authority is empowered to discharge them from service without notice whatsoever, and no right of appeal is provided against such discharge. On the other hand Rule 50(7)(ii) is applicable to the employees who have 'been convicted of a criminal charge or on the strength of facts or conclusions arrived at by a judicial trial.' In case of such employees the Disciplinary Authority or the Appointing Authority as the case may be, may impose any of the penalties prescribed in Rule 49. Rule 49 provides for various types of minor as well as major penalties ranging from censure to dismissal. In cases of employees falling within Rule 50(7)(ii), the authority has discretion to impose any of the penalties prescribed in Rule 49 and the employees concerned has right of appeal against imposition of any such penalty.
11. The classification in two broad categories is based on rational basis. As far as the persons who are adjudicated insolvent and/or who have suspended payments or compounded with creditors and the persons who have been convicted of offences involving moral turpitude are dealt with by Clause (i) of Rules 50(7). They are considered totally unsuitable for being retained in service any longer. It must be realized that these rules govern the Bank employees. The banking business is to deal in public money. The bank receives money (i.e. deposits) from public at lower rate of interest. It advances the money (i.e. advance credits) at a higher rate of interest. The Bank is in a position to trade in money because it possesses the capital in the shape of general confidence of the people at large. 'Money' is the commodity in which a bank trades. Its capital for running the business is the general confidence of the public at large. No businessman can afford to get his 'capital' eroded. The surest way to build up the capital and to maintain its sustained growth is to see that the honesty and integrity of the employees employed by the Bank is above board. Thus the very foundation of the banking business rests on the integrity of its employees and on their creditworthiness. Once an employee has been adjudged to be guilty of an offence involving moral turpitude by a competent criminal court, by no stretch of reasoning it can be argued that he can be retained in service of a bank any longer. Such an employee cannot be retained even for a day in service. On the other hand, in case of employees falling in another category wide discretion is given to the authority concerned. An employee who is convicted on a criminal charge not involving moral turpitude is to be dealt with in accordance with the provision of this part of the rule i.e. Rule 50(7)(ii). It may be that an employee may be convicted of an offence which may not have any bearing on his honesty and integrity; say an offence of rash and negligent driving or of causing simple hurt in a heat of momentary outburst of anger. Say a technical offence on account of failure to comply with some mandatory provision of law. Such instances can be multiplied. In all such cases where offences do not involve 'moral turpitude' the authority has the discretion to impose any penalty prescribed under Rule 49. These are the two broad categories of employees covered by the provisions of Rule 50(7)(i) and 50(7)(ii). The classification has direct nexus with the banking business and the same is based on reasonable criterion. The criterion is the reasonable financial soundness and unquestionable honesty and integrity of the employees. On this basis the classification is made. Therefore it cannot be said that the classification is in any way unreasonable, much more so having regard to the nature of banking business and the duties to be performed by a bank employee.
12. The argument that no purpose whatsoever would be achieved by such classification is devoid of merit. A person is adjudged insolvent after a prolonged judicial trial. Similarly a person is held guilty of an offence involving moral turpitude by a competent criminal court after a protracted investigation and trial. After a lengthy trial an employee may be held guilty by a competent criminal court. This process itself would be very lengthy and time consuming. If a competent criminal court holds a person guilty of an offence involving moral turpitude no further inquiry by departmental authorities would be necessary. If an appeal is provided in such cases even against an order or original disciplinary authority, he cannot agitate any grounds on merits inasmuch as on merits he has been held guilty by a competent criminal court. The employee concerned may be in a position to say something with regard to penalty. But as stated above, it is quite reasonable that persons who are adjudged insolvent or who have suspended payments or who have been found guilty of an offence involving moral turpitude are not retained in bank service any longer. When an employee is being dealt with under the provisions of Rule 50(7)(i), the scope of inquiry will be very limited. It may be necessary only with regard to the identity of the employee and with regard to the question as to whether the offence for which the employee is convicted is an offence involving moral turpitude or not. In such cases, no further inquiry will be necessary. Therefore the contention that the provisions of Rule 50(7)(i) is unreasonable and arbitrary and there fore violative of Arts. 14 and 16 of the Constitution has no merits.
13. It was urged that in the instant case, an employee serving in a Bank and belonging to a lower middle class strata of the society has been tempted to indulge in the alleged unlawful activity of cheating, forgery and using forged document as genuine, for a paltry sum of Rs. 100/- (one hundred only). Hence, in view of the facts and circumstances of the case it was prayed that there was no moral turpitude involved in the offences proved against the petitioner and therefore action taken by the Bank by invoking the provisions of Rule 50(7)(i) is illegal and void.
14. It was urged that the concept of 'moral' itself is vague and not capable of being precisely defined. Moral values differ from time to time and place. Morals differs from society to society; even they differ from one social group to another social group. Even within the group, there may be different and distinct moral standards from one individual to another individual. Relying upon a decision of the Allahabad High Court in the case of Mangali v. Chhakki Lal, reported in A.I.R. 1963 Allahabad 527, the counsel for the petitioner submitted that, as to whether an offence involves moral turpitude or not should be decided by applying the following three tests :
1) Whether the act leading to a conviction was such as would shock the moral conscience of society in general;
2) Whether the motive which led to the act was a base one; and
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.
This High Court (Coram : D. A. Desai, J., as he then was) in the case of Balubhai Amidas v. State of Gujarat, reported in 19 G.L.R. 535, considered the concept of 'moral turpitude'. After referring to the aforesaid decision of the Allahabad High Court and various other decisions it has been observed as follows :
'..... It thus appears both by the dictionary meaning as well as by decided cases that, that conduct could be said to involve moral turpitude which would inculcate within its fold baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the accepted and customary rule of right and duty between man and man. In other words, it must be a conduct, involving grave infringement of the moral sentiment of the community which would shock the conscience of the society in which man lives and the conduct must be examined in relation to the office held by a person whose conduct is examined.'
The counsel for the petitioner submitted that the conduct of the petitioner does not involve grave infringement of the moral sentiment of the community, nor is it such that it would shock the conscience of the society in which we all live today. In his submission corruption is rampant. In politics and public life no one thinks of the so-called morals. People who earn and amass wealth by illegal means, that is, by indulging in blackmarketing, hoarding and/or even anti-national activities like smuggling, are not only looked up with reverent wage but they are also in position to influence the centres of power. They possess both power as well as commanding position and status in society. In such a society, if an officer of a bank has been tempted to indulge in unlawful activity and if he is involved in offences of cheating, forgery, etc. for a paltry sum of Rs. 100/- only, can it be said that in such a situation there will be a grave infringement of the moral sentiment of the community, will the conscience of the society be shocked Here is a petty bank officer. Examine his conduct in the aforesaid background of the moral values in our society and his position in the bank and the small amount involved in the case, can it be ever said to be an offence involving moral turpitude
15. The aforesaid argument is based on the assumption that the accepted moral norms of our society are those which appear to be prevailing in certain elite groups of the society. The moral norms of the society are not to be determined by making reference to the behaviour pattern of few, who live by exploiting others. This social group may appear to be in a strategic position so as to be able to influence centres of power. But it must be realised that, despite the strong resistance placed by a section of the people belonging to the established vested interest class of the society, this country has accepted as its national goal the establishment of a socialist society based on egalitarian principles. It may be that here and there a corrupt politician or a dishonest businessman may go scot free and may appear to be having his way. But that does not mean that the society approves of such behaviour and moral standards. The society is helpless because the persons responsible for bringing about change in the system have failed to perform the task of moulding the system suitably. In this connection the following observations from a decision of the Supreme Court may be noted :
'..... The utter failure of the system stems from the fact that it is an alien system unsuited to our genius. It has become static and non-functioning if not counter-productive. Both the Judges and the lawyers failed to suitably revise the system to suit the need of a republican form of Government and egalitarian society with emphasis on socio-economic justice ..... (S. P. Gupta and Others v. Union of India and Others A.I.R. 1982 S.C. 149 at page 463). Para 735, D. A. Desai, J.
16. We as a society have resolved to constitute ourselves into a sovereign socialist, secular democratic republic. Despite the fact that it may appear that moral values of the society are tumbling down, it can never be said that the accepted moral values of our society are such that one can continue in service, even after he is held to be guilty of offence of cheating, forgery, and using the forged document as genuine while holding an office in a public sector undertaking like a bank.
17. The moral values of the society and the object to be achieved by the society are to be found in our Constitution. The Constitution reflects the accepted national philosophy. It is a document with a social purpose and an economic mission. It promises socio-economic democracy to the millions of this country. It seeks to bring about a socio-economic order based on egalitarianism and social justice. Moreover, the country had chosen to pursue the path of economic development through National Plans. Hence it must be the duty of all enlightened citizens to protect the society from the onslaughts of private property and from the onslaughts of individuals and much more the individuals who are entrusted with the duty to manage the affairs of the society. Economic misbehavior by any one which affects the society at large must be considered to be a crime of first order against the society. Every economic crime should be considered to be a crime against the State and against the people. This is not easily understood and realised by the people because we have not made necessary changes in our criminal law. But that does not mean that the conduct of a person holding an office in a nationalised bank, should not be judged on the basis of these principles. Therefore, in the light of the aforesaid principles - say principles of socialist morals the conduct of the petitioner will have to be adjudged.
18. Banks have been nationalised in the years 1969-70. The very purpose of nationalisation was to see that the banks could be used as an instrument of social change. In this context when the conduct of the officers concerned is examined, the following conclusions are inescapable :
1. That the petitioner being an officer of a bank was required to handle the public money. He was therefore not dealing with private funds, but had to deal with public money every day. Hence he had a social accountability.
2. The offence of cheating, forgery and using the forged document as genuine by an officer of a bank is likely to shake the very foundation of banking industry, the foundation being 'general confidence of the public'. Moreover, the banking industry has its capital in the shape of general confidence of the public; it has no other capital to be employed in the working of the industry. Therefore, even slightest deviation of duty which is likely to erode the capital of the banking industry will surely be treated as shocking by all those who are engaged in banking industry.
3. Being an officer, he earned at least Rs. 1,500 to Rs. 2,000/- per month. It can never be said that he was constrained to indulge in the unlawful activity in question on account of the compelling necessities of life.
4. The petitioner has stooped down so low that he cheated the society for a paltry sum of Rs. 100/- even when he was drawing salary of Rs. 1,500/- to Rs. 2,000/- per month. Therefore, it must be concluded that his conduct could be said to involve 'moral turpitude', which would inculcate within its fold baseness, vileness or depravity.
5. As an officer in a public sector undertaking, he must be aware of his duty towards society. He should have behaved as a servant of the society with sense of obligation towards the society. He must have understood the twin purpose for which the public sectors have been established in this country, the removal of exploitation and the establishment of a society on egalitarian principles.
6. Instead, protecting the society from being raided and looted, he himself has raided the society. Thus, his conduct would certainly involve the grave infringement of the moral sentiments of the society in general.
19. True, the amount is very small but in such cases the action of the officer concerned is not to be judged on the basis of the magnitude of the amount. It is to be judged from the view point of the position held by him and the gravity and the baseness of the offence in question. The petitioner is guilty of trying to get something to which he was otherwise not entitled to. He acted against the interest of the society for his own benefit. While doing so he was acting against the interest of millions of other citizens who are certainly not as well place as the petitioner.
20. In above view of the matter, judging either from the traditional view point or from the view point of present day society which is wedded to the establishment of a society based on egalitarian principles and in which the public sector activity is expanding day by day, the conduct of the petitioner does involve 'moral turpitude'. Hence the argument that on the basis of the facts of this case, the petitioner cannot be said to have committed offences involving moral turpitude, has got to be rejected.
21. No other contention is raised.
22. In above view of the matter, the petition fails and is rejected. Rule discharged with cost.