D.A. Desai, J.
1. Petitioner Balubhai A. Khristi has questioned the correctness, validity and legality of the order dated 9th March, 1972 made by the third respondent dismissing the petitioner from the service of the Kaira District Panchayat and order Annexure 'X' dated 12th November 1973, by the second respondent, confirming me order of dismissal in appeal preferred by the petitioner as also the order dated 19th March 1975 made by the 4th respondent confirming the order of dismissal in the revision application preferred by the petitioner against the order dismissing the appeal made by the second respondent.
2. A few facts leading to the present petition may be stated. The petitioner was serving as a peon under the Kaira District Panchayat and at the relevant time was attached to the primary school at Petlad. In a raid carried out at one place in Petlad town by the local police on 1st November 1968 petitioner was alleged to be found gambling and along with several others was prosecuted for an offence under Sections 4 and 5 of the Bombay Prevention of Gambling Act and was tried by the Court of the Judicial Magistrate, First Class, Nadiad. Petitioner was convicted for an offence under Section 5 of the Bombay Prevention of Gambling Act and was sentenced to suffer imprisonment for a month and to pay a fine of Rs. 200 in default to suffer imprisonment for one week. Petitioner challenged the order of conviction and sentence in the Court of Session at Nadiad and the learned Sessions Judge, Nadiad, allowed the appeal and set aside the conviction and sentence imposed upon the petitioner. State of Gujarat carried the matter to the High Court in Criminal Appeal No. 586 of 1970 and this appeal of the State of Gujarat was allowed by the High Court and order to conviction and sentence made by the learned Judicial Magistrate, First Class was restored. Petitioner accordingly went to jail and suffered the imprisonment. During the period he was in jail he applied for leave which was granted.
3. Subsequently third respondent served a notice dated 25th August 1972 upon the petitioner calling upon him to show cause why the should not be dismised from service, because of his conviction for the offence under Section 5 of the Bombay Prevention of Gambling Act and sentence imprisonment having been suffered by the petitioner. Petitioner gave his imprisonment having been suffered by the petitioner. Petitioner have his reply to the show cause notice. Thereafter third respondent passed the impugned order dated 9th March, 1972 dismissing the petitioner from service of the Panchayat. The operative portion of the order may be reproduced here:
Accordingly Shri Khristi a peon having been convicted and sentenced for a gambling Case and he having suffered the same, he cannot be continued in service any more as a peon, and, therefore, in exercise of the power conferred by Rule 5 of the Gujarat Panchayats Service (Discipline and Appeal) Rules, 1964 lie is dismissed from service as peon from the date of the order.' Petitioner's appeal against this order to the second respondent and revision application to fourth respondent, having failed, he has filed the present petition challenging the aforementioned orders.
4. Mr. R.K. Abichandani, learned Advocate who appeared for the petitioner raised the following contentions at the hearing of this petition:
(1) Impugned orders are void ab initio as the Disciplinary Authority failed to follow the procedure prescribed in Rule 7 of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the 1964 Rules), and even if it is contended that in view of the provisions contained in Rule 10 it was not incumbent upon the Disciplinary Authority to follow the procedure prescribed in Rule 7, yet the order is bad and illegal because the Disciplinary Authority should have first it recorded its reasons as to why it did not consider expedient to follow the procedure prescribed in Rule 7; and further the Disciplinary Authority, without application of mind, merely proceeded to dismiss petitioner without considering the circumstances of the case as enjoined by the latter part of Rule 10.
(2) Fourth respondent was in error in placing reliance on Rule 4(3)(n) of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967 (hereinafter, referred to as 1967 Rules), as the proceedings did not involve any question of recruitment qualification that may have been prescribed against recruitment of certain persons but the same cannot ipso facto be applied for deciding a question whether on such disqualification being incurred by the person in service he should be dismissed.
(3) Even if it is to be held that a criminal charge by itself is sufficient to impose any major penalty on delinquent officer, without following the procedure prescribed in Rule 7, the rule must be so read as to imply that the conviction must be for an offence involving moral turpitude, and viewed from this angle, conviction for an offence under Section 5 of the Prevention of Gambling Act would not involve moral turpitude in the changed and changing features and notions of the society.
(4) Once the authority having sanctioned leave on the application made by the petitioner, revoking the order and cancelling the order granting leave and directing recovery of the leave salary paid to the petitioner without giving any opportunity to the petitioner to explain his position, the order causing pecuniary loss, such order having been passed in violation of the principles of natural justice is void ab initio.
5. First contention is that the order of dismissal is made without following the procedure prescribed in Rule 7 of the 1964 Rules and therefore, it is ab initio void. Rule 5 provides that any of the penalties therein mentioned, may for good and sufficient reasons and after following the procedure prescribed in the Rules, be imposed on a member of the Panchayat Service. One of the penalties described and which is a major penalty, is dismissal from service which would ordinarily be a disqualification for future employment. This penalty is imposed upon the petitioner. Rule 7 prescribes a detailed procedure for imposing major penalty. It is not necessary to reproduce Rule 7 because the procedure prescribed in Rule 7 has not been followed and the contention of the respondent is that in view of the provision contained in Rule 10 this procedure need not be followed Rule 10 of 1964 Rules reads as under:
Special procedure in certain cases: Notwithstanding anything contained in Rules 7, 8 and 9 where, a penalty is imposed on a panchayat servant on the ground of conduct which has led to his conviction on a criminal charge, and it is not considered expedient by the disciplinary authority to follow procedure prescribed in those rules, the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit.
There is a proviso to Rule 10 which is not necessary for the present discussion. Rule 10 starts with a non-obstante clause and carves out an exception to Rules 7, 8 and 9. Before imposing any major penalty as set out in Rule 5, it is incumbent upon the disciplinary authority to first hold a departmental enquiry in accordance with the procedure prescribed in Rule 7. If any major penalty is imposed without following the procedure prescribed in Rule 7, the order imposing the penalty is liable to be quashed on the ground that it is m violation of the statutory rules. But Rule 10 carves out an exception to Rule 7 in that where a penalty is imposed on a panchayat servant on the ground of conduct, which has led to his conviction on a criminal charge, and it is not considered expedient by the disciplinary authority to follow the procedure prescribed in the rules, the disciplinary authority may consider the circumstances of the case and pass such order thereon as it deems fit. Now, in this case, a major penalty is imposed on the petitioner, a panchayat servant, on the ground of conduct which has led to his conviction on a criminal charge. That is indisputable. Insuch circumstances, the disciplinary authority may not be expected to follow the procedure prescribed in Rule 7 if it resorts to Rule 10. In such a case, it is left to the discretion of the disciplinary authority to hold departmental inquiry in accordance with the procedure prescribed in Rule 7, but if the authority considers it not expedient to follow the procedure prescribed in Rule 7, it may dispense with the procedure and then proceed as prescribed in the latter part of Rule 10. The disciplinary authority can resort to Rule 10 if it complies with three pre-conditions before it can invoke Rule 10. In order to attract Rule 10, it must be shown that a major penalty is being imposed on a panchayat servant, (i) on the ground of a conduct which has led to his conviction on a criminal charge, and (ii) it is not considered expedient by the disciplinary authority to follow the procedure prescribed in these rules; and (iii) the disciplinary authority may consider the circumstances of the case and pass such order thereon as it deems fit. The provision contained in Rule 10 appears to be clear and unambiguous. If a major penalty is to be imposed upon a panchayat servant on the ground of conduct which has led to his conviction on criminal charge, it is open to the disciplinary authority to dispense with the procedure prescribed in Rule 7. But it must give some indication why it is not considered expedient by such disciplinary authority to follow the procedure prescribed in the rules. It is not in every case that the disciplinary authority whenever it wants to impose penalty on panchayat servant on the ground of conduct which has led to his conviction on a criminal charge that it can straightway dispense with the procedure prescribed in Rule 7. Conjunctive 'and' shows that before the disciplinary authority decides to dispense with the inquiry in accordance with the procedure prescribed in Rule 7, it must come to the conclusion that in the facts and circumstances of the case it is not considered expedient by such authority to follow the procedure prescribed in the rules. This requirement is not a mere mental acrobatic, it must find place somewhere in the record. When a statute provides that a certain thing which ought to be done but in the facts and circumstances of the case, it is not considered expedient to do that thing, the grounds for expediency must be made available. It is not a sort of a carte blanche no the authority that as soon as it has material for saying that an employee has been convicted on a criminal charge that a departmental enquiry may be scraigntway dispensed with. Nor can it be deemed to have been dispensed with merely because it is out held. Some attempt was made by Mr. C.V. Jani, learned Advocate who appeared for respondents Nos. 3 and 4 to contend that the provision contained in Rule 10 is part materia with Sub-clause (a) of the proviso to Clause (2) of Article 311 of the Constitution which provides that Clause (2) of Article 311 shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. A perusal of the relevant part of the proviso would show material difference between the language in which Sub-clause (a) of proviso to Clause (2) of Article 311 is couched and Rule 10. Clause (2) of Article 311 enacts what has been consistently held to be express constitutional enactment of the principles of natural Justice. Clause (2) of Article 311 of the Constitution provides that punishment referred to in Clause (1) of Article 311 cannot be imposed except after an inquiry in which delinquent has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry. This is a constitutional affirmation of the widely recognised principles of natural justice. To this constitutional provision there is a proviso which dispenses with the requirement of Clause (2) in a case where delinquent officer is to be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. There are no words such as 'and it is not considered expedient by the disciplinary authority to 'follow procedure prescribed in those rules' which are found in Rule 10. The framers of 1964 rules had before them the provision of Article 311 interpreted in various decisions of the Supreme Court for a period of nearly 14 years, and yet they made a departure in enacting Rule 10 when it further provided that even if the penalty is to be imposed for a conduct which has led to his conviction on criminal charge, yet the authority must be further satisfied that it did not consider expedient to follow the procedure prescribed in there rules. This requirement is not merely to be treated as an empty formality and by process of interpretation, it should not be denuded of any meaning. Specific enactment is after the experience of working of the Constitution and especially interpretation of Clause (a) of proviso to Clause (2) of Article 311 and therefore, these additional words found in Rule 10 should be given its due weight and meaning. The only meaning that can be assigned to it is that in every case where the disciplinary authority wants to dispense with the procedure prescribed in Rule 7, it must come to a conclusion that it is not considered expedient by the authority to follow that procedure and the grounds why he does not consider it expedient to follow the procedure must be found somewhere in the record. There must be some active application of mind to the requirement of Rule 10. It must find its place in contemporaneous record. Merely because inquiry is dispensed with it would be unfair to conclude that authority did not consider expedient to follow the procedure. Such an approach would be a premium on non-application of mind, circumventing the provision which is inserted 'for the protection of the servant. Mr. Jani however, in this connection referred to some of the observations in Divisional Personnel Officer v. T.R. Challappan : (1976)ILLJ68SC , a decision to which I would advert for another purpose a little later. Mr. Jani however pointed out that analysing the constitutional guarantee enshrined in Article 311, the Supreme Court has observed as under:
Proviso (a) to Article 311(2), however, completely dispenses with all the three stages of departmental inquiry when an employee is convicted on a criminal charge. The reason for the proviso is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegations against him and to make out his defence. In the criminal trial charges are framed to give clear notice regarding the allegations made against the accused, secondly, the witnesses are examined and cross-examined in his presence and by him: and thirdly, the accused is given full opportunity to produce his defence and it is only after hearing the arguments that the Court passes the final order of conviction or acquittal. In these circumstances, therefore, if after conviction by the Court a fresh departmental enquiry is not dispensed with it will lead to unnecessary waste of fine and expense and a fruitless duplication of the same proceedings all over again. It was for this reason that the founders of the Constitution thought that where once a delinquent employee has been convicted of a criminal offence that should be learned as a sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in Article 311(2) namely, dismissal, removal or reduction in rank.
But this observation was made in the context of the language in which proviso (a) to Article 311(2) is couched. There were no words which are to be found in Rule 10 and which I have reproduced hereinbefore. But even in the absence of such words, the Supreme Court has further observed: 'proviso (a) to Article 311(2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted.' Therefore, it cannot be said that as soon as a Panchayat servant is convicted of criminal charge any major penalty can be imposed upon him without anything more. It is crystal clear from the language of Rule 10 that the authority before taking any further action in the matter must come to the conclusion that it does not consider expedient to follow the procedure prescribed in Rule 7. No blanket power is conferred upon the authority to treat the procedure in Rule 7 as dispensed with. Undoubtedly, it confers a discretion on the authority, but as is well settled that discretion must be judiciously exercised, more so when the proceedings before the authority are quasi-judicial and there is no contest on the proposition that the disciplinary proceeding is quasi-judicial in character.
6. Even assuming for a moment that the authority had come to the conclusion that it did not consider expedient to follow the procedure prescribed in Rule 7, yet, Rule 10 enjoins a duty upon the disciplinary authority not straightway to proceed to impose penalty as soon as Panchayat servant is found to have been convicted on criminal charge, but that authority must consider the facts and circumstances of the case and pass such orders thereon as it deems fit. The authority in order to meet with the requirements of the latter part of the Rule 10 is under a duty to consider the circumstances attendant upon conviction on criminal charge and not as a matter of routine formality or a mandatory duty to proceed to impose major penpity, but has to pass such order as it deems fit. Rule 10 even if construed on the line of proviso (a) to Article 311(2), can be said to be enabling provision to dispense with a regular departmental enquiry; but it cannot be construed to mean that it enjoins a mandatory duty on the disciplinary authority to impose the penalty once there is a conviction on criminal charge. Where the authority has a discretion to consider the circumstances of the case to pass any order as it deems fit, the matter is left to the discretion of the authority even including the nature of penalty to be imposed. This is very much necessary because conviction on criminal charge can be for the most trivial to the most heinous offence. One can be convicted for a traffic offence, or for embezzlement of funds, or more serious offence of grievous hurt or even murder, but in each case it can be said that the employee has been convicted in criminal charge. As the conviction on criminal charge can be from a most trivial to heinous offence, the authority is under a duty to consider the circumstances of each case and to determine the quantum of penalty and this discretion is implied by the use of the expression 'as it deems fit'.
7. In Divisional Personnel Officer's case (supra), Supreme Court was concerned with Rule 14 of the Railway Servants (Discipline and Appeal) Rules 1963, Relevant portion of the rule runs as under:.the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.
The words in Rule 10 and in Rule 14 which was before the Supreme Court are pari materia. Requirements are identical. While interpreting the expression used in Rule 14, the Supreme Court held that the matter can be objectively determined only if the delinquent employee is heard and hi given a chance to satisfy the authority regarding the final orders that may be passed by the said authority. Such an inquiry would be a summary inquiry to be held by the disciplinary authority by giving a hearing to the delinquent employee. Even if the disciplinary authority holds that it does not consider expedient to hold a departmental enquiry, it is incumbent upon, as has been held by the Supreme Court to give an opportunity to the delinquent employee to put before the disciplinary authority circumstances of the case and then there must be active application of mind of the disciplinary authority to the circumstances of the case brought to its notice and in the light of those circumstances, adjudge the nature of the penalty, in any, to be imposed. Such provision confers power on the disciplinary authority to decide whether in the facts and circumstances of particular case what penalty, if any at all, should be imposed on the delinquent employee. Supreme Court has observed that 'it is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth.' The interpretation of the clause which is before me is concluded by this decision of the Supreme Court because it had an identical clause before it and clause was to be found in the Railway Servants (Discipline and Appeal) Rules, meaning thereby the rules enacted for the same purpose. The interpretation can be said to be concluded and no other view can be taken. Such a provision must be salutory. As said earlier, conviction on criminal charge may result from a minor offence or a grave and serious offence and all these relevant circumstances will have to be considered before an appropriate penalty can be imposed. If the disciplinary authority approaches the matter from this angle, that once there is conviction on criminal charge, there is nothing further required to be done but to straightway proceed to impose a major penalty, it would denude Rule 10 of its real meaning and effect and would lead to a grave injustice which cannot be readily remedied. Therefore, Rule 10 must receive the same interpretation which Rule 14 of the Railway Servants (Discipline and Appeal) Rules received at the hands of the Supreme Court. This approach is in consonance with the prevailing notions and trends in service jurisprudence and advances cause of justice in that before a penalty is imposed, opportunity should be given to the concerned employee to be heard either orally or in writing. This is rule of natural justice, salutory in character, and obedience to it must be insisted upon.
8. In this case, undoubtedly the petitioner is convicted on a criminal charge. There is nothing in the recorder in the affidavit-in-reply to show that the disciplinary authority, namely respondent No. 3, applied its mind to the requirement of Rule 10 by especially saying why it did not consider it expedient to follow the procedure prescribed in Rule 7. There is no material on record to show that this provision or requirement of Rule 10 was present to the mind of the disciplinary authority.
9. Mr. Jani, however, contended that before taking any action in this connection, the disciplinary authority did serve notice upon the petitioner Annexure 'A'. Notice dated 25th August 1972 was served by third respondent on the petitioner, calling upon him to show cause why he should not be dismissed from service because he has been convicted on criminal charge. Now, in response to this notice, petitioner gave a detailed reply and thereafter respondent No. 3 passed the impugned order dismissing the petitioner from Service. There is not the slightest reference in the impugned order or anywhere in record to the reply which the petitioner gave to respondent No. 3. There is nothing in the impugned order to show that the circumstances pleaded by the Petitioner were examined. Therefore, the first impugned order passed by the disciplinary authority suffers front two defects, namely, that there is nothing to show that why the disciplinary authority did not consider it expedient to follow the procedure prescribed in Rule 7. Secondly, even though it did serve notice, there is nothing to show that the explanation offered by the petitioner was taken into consideration, and the order suffers from the vice of total non-application of mind.
10. On this short ground alone, petition can be allowed. But, as the matter bad been argued on a wider canvass, I would like to dispose of some of the points made
11. The appeal preferred by the petitioner having been dismissed by the second respondent, petitioner preferred a revision petition to the fourth respondent. Fourth respondent dismissed the revision petition and confirmed the order of dismissal. While dismissing the revision petition, fourth respondent observed that as Rule 4(3)(ii) of the 1967 Rules provide that a person who has been convicted for an offence involving moral turpitude from being employed in Panchayat service and as offence under the Gambling Act is such which is looked upon with contempt by the society, it involves moral turpitude and in such a case the petitioner having been finally convicted by the High Court there is no reason to interfere with the order of dismissal at the stage of revision petition and accordingly the revision application was dismissed. Mr. Abichandani contended that a provision which may disqualify a person from being taken in service cannot be utilised to remove a person who is already in service unless it is shown to be a misconduct by 1964 Rules. Rule 4 (3) of 1967 Rules provides that no person shall' be appointed to any post in the Panchayat Service-(ii) if he was convicted of an offence which, in the opinion of the appointing authority, involves a moral turpitude. 1967 Rules provide for classification and recruitment to Panchayat Service. It prescribes disqualification for being appointed in Panchayat service. If any one who is a candidate for any post in Panchayat service is shown to have been convicted of an offence which in the opinion of the appointing authority involves moral turpitude, he is disqualified from being appointed in Panchayat Service. This provision has been referred to by fourth respondent while confirming the dismissal of the petitioner from service. Mr. Abichandani made a grievance that disqualification which might come in the way of a candidate for the Panchayat service, 'which, if incurred while in service need not be a ground for dismissal from service unless and utili a provision in the Discipline and Appeal Rules to that effect is made. Rule 5 of 1964 Rules provides that any of the penalties therein prescribed can be imposed for good and sufficient reasons after following the procedure prescribed in the rules. Major and minor penalty can be imposed for misconduct depending upon gravity of the misconduct and various relevant circumstances. When fourth respondent referred to Rule 4(3)(ii) of 1967 Rules he did not mean to suggest that disqualification therein prescribed is now being utilised for dismissal from service. He only referred to it to show as to what gravity should be attached to conviction on a charge of gambling providing conduct of gambling involves moral turpitude. Therefore, it cannot be said that the revisional authority relied upon something which was irrelevant and extraneous to the issue brought before him.
12. But this very aspect raises a wider question which needs examination. Rule 10 of 1964 Rules provides that without following the procedure prescribed in Rules 7, 8 and 9 if it is not considered expedient to follow such procedure, major or minor penalty can be imposed for conduct which has led to conviction on a criminal charge. A superficial reading of the rule may indicate that as soon as there is conviction on criminal charge some penalty must be imposed. It was urged that it is not the conviction which is the subject matter of enquiry or imposition of penalty, it is the conduct involved in the offence which can be the subject matter of enquiry or imposition of penalty. That is right. It is the conduct which can be adjudged as misconduct and which can be a gravamen of charge in a disciplinary proceeding and if proved can be the foundation for a penalty major or minor depending upon the gravity of the misconduct and extenuating, mitigating or aggravating circumstances in which misconduct came to be committed. The question however is whether that conduct which led to conviction on criminal charge is by itself judged misconduct which must attract some penalty. If conviction is for an offence, an offence attributable to a conduct which may either mean an act of omission or commission. It has to be ascertained before any penalty can be imposed that for the purpose of discipline rules, that conduct would amount to misconduct. There can be a conviction on criminal charge involving conduct which may not be misconduct from the point of view of the employer or from the stand point of discipline rules. Therefore, every conduct which may be found violating of some provision of a statute which is made penal need not be straightway dubbed as misconduct for the purpose of discipline so as to invoke penalty. Conduct which has been the subject matter of criminal charge and which has led to conviction must of necessity be a misconduct within the Discipline Rules so as to attract any penalty. It is here that one has to understand the expression in Rule 10 'conviction on criminal charge' to mean criminal charge for an offence and conviction for the same but every act or omission which is made penal is not misconduct but such act or omission which would involve moral turpitude. That was present to the mind of the fourth respondent and while at one stage Mr. Jani said that fourth respondent had an excursion into irrelevance, in my opinion he has taken vital aspect of the matter into consideration. Departmental proceedings are not taken because the man has been convicted. The proceedings are directed against the original misconduct of the Government Servant. Departmental punishment is therefore not a necessary and automatic consequence of conviction on a criminal charge. The competent disciplinary authority has to consider all the circumstances of the case and then make such orders in relation to the question of imposition of penalty on the government servant for his original conduct which has led to his conviction. An order imposing a punishment on a government servant simply because of his conviction on a criminal charge without reference to the conduct which led to the conviction is not sustainable.
13. The inference drawn by me that the expression 'conviction on criminal charge' which could afford basis for imposing penalty must be conviction on criminal charge for an offence involving moral turpitude stands reinforced by 1967 Rules which lays down disqualification for recruitment in panchayat service. Rule 4(3)(ii) of 1967 rules provide that no person shall be appointed to any post in panchayat service if he was convicted of an offence which, in the opinion of the appointing authority, involves moral turpitude. This may be styled as legislative exposition of the intent of the panchayat organisation as an employer. This is a pointer and provides a clue for interpretation of Rule 10 of 1964 rules. If conviction for any or every offence is not a disqualification for recruitment in Panchayat Service, it would be unimaginable after dispensing with the regular departmental enquiry a penalty of dismissal or removal from service can be imposed for conviction on criminal charge which may not be an offence involving moral turpitude; in other words, for any and every offence which in some cases may be trifle. It is unimaginable that a conviction on criminal charge for an offence not involving moral turpitude would not be a disqualification for entering into panchayat service, could a conviction for an offence not involving moral turpitude be even sufficient for dismissal from service. In fact, both rules relate to service and the discipline rule must get its colour and content from classification and recruitment rule. Every infraction of some rule made penal and visited with some penalty can be generally described as conviction on criminal charge. It would be startling to hold that in every such case the employee can be dismissed from service with impunity and without even a semblance of enquiry. Let me illustrate to bring out the startling result, if the meaning of the expression 'criminal charge' is not understood to mean conviction on a criminal charge involving an offence of moral turpitude. An employee may be convicted for not crossing the road at zebra crossing, for his child not being sent to school under Bombay Primary Education Act, for his child being found easing on a public road in his absence. In all such cases if the employee in convicted, it could be said that he was convicted on a criminal charge. Should he be dismissed at all and that too without an inquiry? That would be startling if not down right absurd. Such consequence could never have been intended by the framers of the Rule under examination. Before adopting the construction of an expression susceptible of two constructions. Court must consider the effect and consequence which would result from it, for they indicate the real meaning of the expression. There are certain results which the framer is prescribed not to intend, and the construction which would lead to any of them must be avoided. Therefore, Rule 10 must be interpreted to ascertain the true intent of the maker and of necessity it must be read to mean that the disciplinary authority can dispense with the departmental enquiry where a number of the panchayat service is convicted on criminal charge of the offence involving moral turpitute.
14. The next question then would be whether conviction on criminal charge for an offence under Section 5 of the Bombay Prevention of Gambling Act can amount to conviction on criminal charge for an offence involving moral turpitude. The important point would be whether gambling involves moral turpitude. The learned Advocates on either side addressed me at length on the question whether in the 20th century society with its fast changing values and panorama of morality and ethos, and in its onward march where it has reached both with regard to ethics and morality, gambling involves moral turpitude. It does appear in the context of the present day society that it would be too traditional, too moral, extremely religious and highly ethical to hold that gambling involves moral turpitude. One must examine the notions of the present day society and its reaction towards gambling. In other words, is gambling moral or immoral or merely something which decent would originally detest. Standard and yardstick must be of a common work-a-day man without inhibition and taboo and not of a highly religious or ethical person or moralist. In order to come to an appropriate conclusion whether gambling involves moral turpitude, it is also equally necessary to understand what is meant by expression 'moral turpitude'.
15. Connotation of word 'moral' differs from individual to individual at a given point of time and it has undergone change and acquired different connotation at different stages of social evolution, development and growth. It is not a static concept. That conduct is regarded as moral which conforms to the generally accepted rules which society recognised should govern everyone in his social and commercial relations with others regardless of whether these rates are enforceable as legal obligation. What is moral must be ascertained in context of time and the society in which the question is posed. When a primitive human being did not recognize any sanction except the sanction of religion, even the principles of hygiene had to be clothed in the dictum of morality and religion so as to create a sanction. With the advancement of the society, notions underwent a basic change and what was immoral say about two decades back would not even be frowned upon much less objected or detested. It was however said that what is prohibited by law would certainly not be moral if not immoral. It was said with some vehemence that law after all is nothing but codified morality. It is true that where moral edict may not carry any sanction except persecute no of oneself to be moral, when clothed in the form of a provision of law with penal sanction attached to it, it becomes enforceable and obedience can be dictated. That is true. Law may in a given situation said to be codified morality. But every codified provision does not inscribe within it a moral edict. Bigamy was once viewed with alarm on the footing that a woman is property and a close preserve of the husband and yet there is a strong movement to abolish the offence of adultery. Homosexuality is another social concept which has undergone a basic change in that in some of the Western countries, homosexuality is recognised and has ceased to be a moral edict or taboo or indulgence into it an infraction of law. Word 'turpitude' involves within its fold baseness, vileness, depravity in the private and social duties which man owes to his fellowmen or to society in general or something contrary to accepted rule of right and duty between man and man. (vide Corpus Juns Secundum Vol. 58 p. 1200. Word 'moral' may also involve those very ingredients. It has been rightly said by some of the American decisions that the word 'moral' preceding the word 'turpitude' adds nothing to it; it is a pleonasm which has been used only for the sake of emphasis. That American view has been accepted by Canadian Courts in King v. Brooks (1960) 129 Can. C.C. 239. Word 'moral' would extend to the inculcation of a desirable code of secular ethics, e.g. the secular virtues of honesty, fairplay, unselfishness and so on (vide Beddeley v. Inland Avenue Commissioners (1953) 2 All E.R. 233. It would immediately appear that expression' moral turpitude' involves tautology because the word moral does not seem to add anything to the meaning of the term, other than the emphasis which often results from tautological expression and served only to emphasize the nature of the wrong commuted. 'Moral turpitude' has been defined as meaning an act of baseness vileness, or depravity it 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. The term has also been defined as meaning anything done contrary to justice, honesty, principle, or good morals. It also includes wickedness, base or shameful character or base or shameful act. As a legal term 'moral turpitude' is defined as the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory malct prohibita. (vide 53 Corpus Juris Secundum p. 120 J. In Dwge Singh v. State of Punjab , police constable who was found heavily drunk on the road side was prosecuted under Section 34(6) of the Police Act and was convicted and upon this conviction on criminal charge he was dismissed from service. He filed a petition under Article 226 of the Constitution. The question therein raised was whether conviction for an offence of drinking would involve moral turpitude. While holding that conviction for being found drunk in public place should be held as involving moral turpitude, especially when such a person was serving in the police force, it was observed that the term 'moral turpitude' is rather vague and it may have different meanings in different contexts such as of different social groups. It was held that 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 fellowman or to society in general. In Mangali v. Chhakki Lal : AIR1963All527 , question arose in the context of a person whose nomination paper was rejected on the ground that because of past conviction for an offence under Section 60 of the M.P Excise Act, he stood disqualified for the office of Pradhan of a Gram Panchayat. Contention was that such a conviction does not involve moral turpitude. The test formulated was whether certain offence involves moral turpitude or not will depend on the circumstances in which the offence is committed. It is not every punishable act that can be construed to be an offence involving moral turpitude. The tests would be whether (1) the act leading fay 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 has to be looked down upon by the society. In Chandgi Ram v. Election Tribunal again the question arose in the context of office to be filled in by election. The petitioner was declared elected as Pradhan of a Gram Panchayat. Election was called in question by election petition in which it was alleged that the petitioner was convicted for an offence under Section 19(f) of the Arms Act having been in conscious possession of unlicenced firearm. The question was whether this conviction for the said offence involves moral turpitude. It was held that such an offence does not involve moral turpitude because it does not disclose conduct that is inherently base, vile or depraved and contrary to the accepted rules of morality whether it is or is not punishable as a crime. This last decision was questioned in Letters Patent Appeal and the decision of the Letters Patent Appeal is reported in Risal Singh v. Chhandgi Ram 0065/1966 in which the Division Bench affirmed the decision of the learned Single Judge. The division bench accepted the three tests formulated in Mangali v. Chhakki Lal (supra). In Gurbachan Singh v. Executive Magistrate, Samrala , it was held that whether a conviction for certain offence would involve moral turpitude so as to disqualify a person from continuing to hold office would depend on the nature of the duty that he is expected to perform. The ethical notions of the community amongst whom he moves or lives and who has returned him to the elected office would determine whether the acts for which he has been convicted and punished by the Criminal Court would shock the conscience of that community so much as to involve an element of moral turpitude in the commission of the offence. The view taken is that there is no single yardstick for assessing whether the particular offence involves moral turpitude. But the question whether conviction for certain offence would involve moral turpitude or not must be examined in the context of the office which a person holds. The view appears to be that in the case of holder of an elected office he must like Ceaser's wife be beyond reproach. A person who holds elective office 14 a person the electors have expected him to maintain certain standard of rectitude and if he fails to act upto the expectation he would be shocking their conscience and his function to that extent would involve element of moral turpitude. It may be noticed that the person concerned was Sarpanch who was convicted for having committed offences under Sections 324 and 326 of the Indian Penal Code. It thus appears both by the dictionary meaning as well as by decided cases that, conduct:' could be said to involve moral turpitude which would inculcate within the 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 map. 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.
16. The next Question that must be posed is whether in the context of the last quarter of the twentieth century, conviction for an offence of gambling would involve moral turoitude. It was said both by Mr. Takwani, learned Assistant Government Pleader, and Mr. C.V. Jani, learned advocate for other respondents, that pamblinp has been frowned upon and has been held to Fe immoral and unethical since times immemorial and that even in the fast changing notions of the society with an eye on the total parting with the past or revolutionary ideas about social cohesion, social relationship and interaction and inter play of social phenomena, gambling is still some thing which has not been clothed with respectability and that it does sheik the conscience of the society. It was said that even if Yudhishthira was virtue incarnate embodiment of religion (DHARM RAJ) yet his indiscretions, namely indulging in gambling and finally staking his beloved wife, brought him down in the estimate of the society. It was said that in all the pauranic stories including one of NALA the most virtuous men indulged into some sort of gambling, ruined themselves in the process and their conduct was considered blame-worthy, a moral if not immoral, or conduct which would certainly shock the conscience of the society. In this connection, my attention was drawn to State of Bombay v. R.M.D. Chamarbaugwala : 1SCR801 . The learned Chief Justice examined the ancient texts to find out how gambling has been looked upon by the humanity in its early childhood and during its onward march till modern times. After quoting from Rigveda Hymn XXXIV saying that gambling involves deceiving and the suffering of the family of the gambler led to gambling being condemned as vice. Mahasharata deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their kingdom and wife. Manu altogether condemned it outright. Yajnavalakya on the other hand sought to bring it under State control but he too suggested that gambling with false dice or other instruments should be branded and punished by the king. Kautilya also advocated State control of gambling and, as a practical economist and able administrator that he was, he was not averse to the States coffers being enriched by some revenue therefrom. Brihaspati dealing with Manu's texts has commented that gambling destroyed truth, honesty and wealth while other law givers permitted it when conducted under the control of the State so as to allow the king a share of every stake. The learned Chief Justice has concluded that such was the notion of the Hindu law-givers regarding the vice of gambling. Undoubtedly, gambling was treated as vice and was frowned upon in the past, but could we cling on to this out-dated wron-out notion with the fast expanding panorama of gambling direct and subtle in the society.
17. Let us bring into focus the situation as it exists in the latter half of the 20th century in which we are required to examine gambling vis-a-vis morality. Accepting the ratio in Chamarbaugwala's case that the Court should find out whether game is one of skill or mere luck or chance, any game of cards on stake as a general rule is treated as gambling leaving aside the cogitation of the law Courts on bridge or rummy. Test is whether a certain activity would shrck the conscience of the society. Keeping this yardstick in mind even the game of Bridge with very high stake in club rooms is gambling none-the-less. Rummy was once considered gambling outright. But again recognising changed mood and notions of the society the Courts have now changed its tune and Rummy played at high stakes in clubs is not considered gambling outright. That may be a strictly legal view. Conscience of the society is not shocked either with the game of Bridge played with high stake or Rummy played with high stakes, and at what high stake is Rummy played, one has only to know to believe it. In fact going to club and playing a game of card with stakes is considered fashionable and an emblem of social status. No one can claim lottery a game of skill. It is purely an activity in which gain or profit depends on chance, or sheer luck. It makes no difference as far as moral conscience of the society is concerned, whether the lottery is conducted by the State or by private individuals. Law has made its own distinction in this behalf namely a lottery by private individual would be gambling punishable under law but lottery under the State aegis is exempt. That may again be a bald legal jargaon. A legal position does not necessarily coincide with nor co-terminate with moral position. Legal edict and moral edict may stand a part of each other. Latest development in this behalf was brought to the notice of the Court by Mr. Abichandani who has brought daily issue of time of india dated 2nd July 1976 which carries a news item that the Maharashtra Government has decided to license casinos in the State and impose tax on the money staked on the games in casinos. Now, gambling is permitted in casinos. Maharashtra Government has not only gone to set up casinos but it is being done with a view to channelising gambling instinct of the human being so that they may not be victims of some perfidious element. That is however, neither here nor there because even if the casino is set up by the Maharashtra Government it permits gambling none-the-less. In fact I was informed that a regular bill for licensing casinos is already introduced in the Maharashtra State Assembly. I am not merely relying upon the newspaper item. I am on much firmer ground when I say that Maharasthra Government which is described as forward looking progressive Government which has completely relaxed prohibition and is now going to permit gambling by licensing casinos under its aegis, Tamil Nadu and Gujarat are probably the only States where prohibition laws are stricter. Prohibition was considered vice as bad as gambling in the past but today the view has undergone a radical change. In fact it is said that instinct to gamble and to drink are as old as humanity dating back to the emergence of Man. They may be curbed, they may be curtailed but they cannot be eliminated or wholly eradicated. They spring back as soon as control disappears. They may be channelised but they exist none-the-less. Can we say in this state of development of our Indian society in the last quarter of the twentieth century that a peon who probably staked a rupee on Varii Matka was guilty of such conduct as would involve such a degree of moral turpitude so as to entail dismissal from service?
18. Let me compare the situation. I even a Judge can buy a ticket of State lottery and if lucky enough on mv ticket being drawn winner on sheer luck no skill being involved not only I get rupees lac or more on a pure gambling chance but that it is being given wide publicity and till recently no tax was payable on this windfall. Larger prizes are offered on lottery with more attractive advertisements. It is inciting, instigating, provoking gambling instinct lying dormant, in every man to gamble. This peon rather than staking rupee one in the state lottery where be does not commit offence stupidly albeit unfortunately staked it in Varii Matka. But it is said that profit earned by lottery activities are utilised for State developmental activities such as education, cultural advancement etc. which is not true of Varii Matka. This peon merely committed an error in choosing Varii Matka stake holder rather than buying a State lottery ticket and he has in the process been sent to jail for one month and deprived of his very livelihood. Had he waited for some time he could as well have gone to casino to be set up by Maharashtra Government, and no misfortune would have befallen him. I am afraid, what was once a high moral principle namely not to indulge in gambling can now be styled as taboo only. I can describe the situation in a much more decorative language. I would rather stop here by saying that in the context of the present day society where the State not only indulges into gambling activity but by advertisement incites the citizens' gambling instinct in human beings to subscribe to this once condemned activity, it would be too much to say that this peon who was found giving stake to a Varli Matka stake holder has been guilty of such conduct as would involve moral turpitude so as to be dismissed from service. Conceding that it is not conviction that is the foundation for taking disciplinary action but the conduct which led to the conviction is the foundation, I must say that conduct herein disclosed is the same conduct which every purchaser of a State lottery ticket undertakes. While one may claim to be considered progressive forward looking individual enriching State coffers the other fellow loses his job and goes to jail. I have no grievance this man being sent to jail but that conduct cannot lead to deprivation of his livelihood. Therefore, viewed from all angles, I must reluctantly come to the conclusion that the order dismissing the petitioner from service is bad on all counts and deserves to be quashed and set aside.
19. It is not for a moment suggested that such conduct cannot be foundation of some disciplinary proceeding or some minor penalty. Court quashes the penalty as imposed. It is not suggested that no other penalty could have been levied out it is distinctly understood that no major penalty can be levied. It will be for the disciplinary authority to form an appropriate conclusion keeping in view the observations made in this judgment. Incidentally Mr. Jani wanted me to examine the proposition that even on the question whether gambling involves moral turpitude or not Court should not impose its views on the disciplinary authority. Disciplinary authority is a statutory body holding public office. That disciplinary authority should not impose its own personal high sounding moral or ethical views. It must fall in line with the views which the society in general has. Therefore, by this judgment I am not imposing my views on the disciplinary authority, I am only examining how the conscience of the society would react to the activities of the petitioner and the disciplinary authority is not independent of the society to which we all belong. Therefore, despite this judgment, if the disciplinary authority feels that according to its views the activity is so harmful as to merit punishment of dismissal that view may be its own personal view. It cannot be allowed to take the places of the considered view of the society. The disciplinary authority is also bound to examine the proposition from this angle whether the activity is such as would shock the moral conscience of the society. I have examined it from that angle and to that extent it is not open to the disciplinary authority now to say that such activity would shock the moral conscience. That is all what I am doing, lam not for a moment imposing my views on the disciplinary authority.
20. The last contention was that once the authority having sanctioned leave on application made by the petitioner revoking the order and cancelling the order granting leave and directing recovery of the leave salary paid to the petitioner without giving any opportunity to the petitioner to explain his position, the order causing pecuniary loss such order having been passed in violation of the principles of natural justice is void ab initio.
21. It is not in dispute that leave was granted. Mr. Jani told me that leave was granted suppressing the fact that the petitioner had been sent to jail and on false ground that he was sick. It may be true. It may be that petitioner wanted to suppress the fact that he was in jail. Once he was in jail his application for leave on the ground of sickness cannot be upheld. Question however is once leave was granted, could the other be set aside and direct leave salary to be recovered without giving opportunity to the petitioner to explain his conduct. This is not a question whether there is jurisdiction to pass such an order. Question is whether such an order could be made in violation of the principles of natural justice. Now it cannot be disputed that the impugned order does cause pecuniary loss in the sense that the leave salary was once paid and it is now sought to be recovered. Petitioner has leave to his credit in his leave account. He was entitled to enjoy that leave. Leave may be refused at the discretion of the competent authority. If leave is once granted and authority wants to cancel or revoke that order and simultaneously direct recovery of leave salary, it is an order which does cause pecuniary loss and petitioner ought to have been heard before making such order. Therefore, the order causing pecuniary loss having been made in violation of principles of natural justice deserves to be quashed and set aside. It would not bar any enquiry on that point by the disciplinary authority if he so decides. The order as at present made cannot be sustained and must be quashed and set aside.
22. Accordingly this petition is allowed by issuing a writ of mandamus quashing and setting aside the order dated 9th March, 1973 made by the third respondent and order in appeal made by the second respondent and order dated 9th March, 1973 made by fourth respondent and it is hereby declared that the petitioner continues in service. Respondents are directed to pay all the dues of the petitioner within a period of three months from today. It may be open to the disciplinary authority to make an enquiry, but in light of the observations made in this judgment. Order dated 14th July, 1975 directing leave salary to be recovered from the petitioner is quashed and set aside. Rule is made absolute as herein indicated with no order as to costs.