2024 (9) TMI 1487 - HC - Indian Laws

Employee reinstated after dismissal based solely on Section 138 conviction without proper inquiry procedures

The HC set aside an employee's dismissal from service that was based solely on conviction under Section 138 of the Negotiable Instruments Act. The court ... Dismissal from service without inquiry - whether a conviction of an employee under the Negotiable Instruments Act would involve moral turpitude? - HELD THAT:- The Hon’ble Kerala High Court (Division Bench) in the case of Saseendran Nair [1995 (5) TMI 296 - KERALA HIGH COURT], has laid that an offence under Section 138 of the Act need not necessarily take within its wings the offence of cheating as per the Indian Penal Code. It has further been held that the question whether the act of issuing a cheque without sufficient funds will involve moral turpitude has to be considered de hors the element of cheating. Reference has also been made to the Corpus Juris Secendum as per which, moral turpitude implies something immoral in itself, regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not a crime. It further states that the term moral turpitude 'does not refer to conduct which, before it was made punishable as a crime, was generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed.” Though the past conduct may be a relevant consideration in a matter of this nature, when there was no enquiry and the dismissal is only on the account of a conviction by a Court without framing any definite charges, the aforesaid would not be a relevant consideration. This Court is fortified in reaching to the above conclusion in as much as the impugned order of dismissal dated 17.10.2014 does not refer to any past conduct of the petitioner and is issued only on the basis of the conviction of the petitioner in a proceeding under Section 138 of the NI Act. This Court is unable to agree with the procedure adopted for imposing the penalty of dismissal vide the impugned order dated 17.10.2014 and accordingly the same is set aside. Consequently, the petitioner is directed to be reinstated in service. Petition allowed. Issues:Challenge to order of dismissal from service without inquiry, non-compliance with service rules, whether conviction under Section 138 of Negotiable Instruments Act constitutes moral turpitude.Detailed Analysis:Issue 1: Dismissal without InquiryThe petitioner challenged the order of dismissal from service without any inquiry. The petitioner argued that a delinquent facing a proceeding is entitled to legal protection and a reasonable opportunity before any penalty is imposed. The petitioner contended that the dismissal was done without following the rules governing his services. The court noted that the suspension order did not specify any departmental proceeding and the dismissal order was issued immediately after the suspension without proper charges being framed. The court found that there was no proper application of mind by the appellate authority, and the dismissal lacked a valid inquiry process.Issue 2: Conviction under Section 138 of NI Act and Moral TurpitudeThe petitioner contended that a conviction under Section 138 of the Negotiable Instruments Act does not constitute moral turpitude as per the service rules. The court analyzed the relevant service rule, which allows disciplinary action for a conviction involving moral turpitude. The court referred to various legal precedents, including the Supreme Court and High Court judgments, to establish that an offense under Section 138 of the NI Act does not necessarily involve moral turpitude. The court emphasized that the past conduct of the petitioner should not be a relevant consideration when there was no proper inquiry and the dismissal was solely based on the conviction under the NI Act.JudgmentThe court set aside the order of dismissal dated 17.10.2014 and directed the reinstatement of the petitioner in service. The court clarified that there was no direction for the payment of back wages, leaving it to the authorities to decide on such a claim. The writ petition was allowed based on the lack of proper inquiry and the absence of moral turpitude in the conviction under Section 138 of the NI Act.