Ved Prakash vs State of Haryana

Rajiv Narain Raina, J.—The petitioner was a Driver in the office of the Executive Engineer, PWD (Public Health), Palwal. While driving the official Jeep he met with an accident on 22.08.1991 in which a child died. FIRs No. 147 to 150 of 1991 were registered against several including the petitioner. The petitioner was convicted u/s 304-A IPC vide order dated 01.08.1997 by the Judicial Magistrate, 1st Class, Palwal and sentenced to undergo imprisonment for one year and nine months. His appeal to Sessions Court was dismissed on 06.09.1997. His Criminal Revision before this Court met with the same state on 04.02.2000. On account of conviction in a criminal case, the petitioner was dismissed from service under Rule 4(2) x of Haryana Civil Services (Punishment and Appeal) Rules, 1987 vide order dated 11.08.2000 w.e.f. 04.02.2000 the date when the petitioner''s appeal was dismissed by the Additional Sessions Judge, Faridabad. Since the appeal was not decided the petitioner approached this Court through C.W.P. No. 1600 of 2004 which was disposed of on 25.08.2005 with a direction to the respondents to decide the appeal within three months. He made representation claiming reinstatement. The Appellate Authority in the process of deciding the appeal fell upon an order passed by the then Chief Engineer dated 24.4.2002 in departmental appeal dated 27.11.2001 filed by the petitioner and discovered that even prior to the order dated 25.08.2005 i.e. the date when this Court dismissed C.W.P. No. 1600 of 2004 the punishment order was set aside. The Chief Engineer is stated to have passed the following order:-

"In view of the above the punishment awarded by Superintending Engineer, PWD. Public Health Circle Rewari vide his above said order dated 11.8.2000 is set aside which is neither sustainable nor applicable. The case be decided by Superintending Engineer, PWD. Public Health Circle Rewari on merits and as per Haryana Civil Services (P & A) Rules 1987 and guide lines issued vide Chief Secretary to Govt. Haryana circular No. 1449-551-75/6324 dated 17/26.3.1975. It is therefore ordered accordingly."

Since the punishment order was set aside, the Superintending Engineer, PWD Public Health Circle, Rewari was asked to decide the case on merits. The appellate authority then passed the order dated 07.12.2007. In the process of that decision making, the petitioner furnished an affidavit (P-5) that since there was a move to reinstate the petitioner he gave up rights to past service, pay, arrears and other benefits of prior service and expressed willingness to serve in the Water Services Sanitation Division, Rewari either on the post of Driver or any other post. He was reinstated on 20.02.2008 the date of the order passed by the Superintending Engineer as Water Pump Operator.

Aggrieved by blacking out 19 years of past service on the strength of the affidavit submitted by him and accepted by the department for fresh appointment, the petitioner approached this Court claiming that the affidavit giving up legal rights of past service was obtained under duress and that he be considered reinstated on the strength of the earlier order dated 24.04.2002 reinstating the petitioner by setting aside the dismissal order.

On notice of motion being issued, the respondent-Department has contested the case by filing written statement. It is explained that the petitioner was given fresh appointment on a vacant post of Water Pump Operator-II Group-C keeping in view the guidelines of the Government of Haryana dated 17/26.3.1975. The policy circular dated 17/26.3.1975 dealt with the subject of rehabilitation of ex-convicts released from jails and of making them eligible for appointment under Government. The relevant part of the instructions read as follows:-

"This matter has been further considered by the Government and it has been decided that instructions issued in para. 2 of Haryana Government''s letter dated the 2nd February, 1973 referred to above should be modified as follows:-

(i) Persons who are detuned under the Borstal Act or who, after conviction under the offences which do not involve moral turpitude, are released under the probation of offenders Act instead of being confined to Jail, should not suffer any disability in respect of obtaining Government service.

(ii) With regard to the employment of ex-convicts on release from Jail, a uniform policy will not be possible and each case should be considered on its own merits. The appointing authority should, in such cases, make detailed enquiries and satisfy himself fully that he ex-convict has reformed himself after release from Jail and nothing adverse about his conduct has come to notice after his conviction, and he is thus suitable for Government service. The enquiries should invariably be made through the Police Department and, if the Police Department consider it necessary to obtain a report from any other Department, they should proceed to do so.

(iii) Ex-convicts convicted of offences involving moral turpitude should neither be taken nor retailed in Government service. The following tests should ordinarily be afflied in judging whether a certain offence involves moral turpitude or not:-

(1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general.

(2) Whether the motive which led to the act was a base one.

(3) Whether on account of the act having been committed the perpetrator could be considered to be depraved character or a person who was to be looked down upon by the society.

Decision in each case will however, depend upon the circumstances of case and the competent authority has to exercise its discrete on while taking a decision in accordance with the above mentioned principle. A list of offences which involve moral turpitude is enclosed for your information and guidance. However, cannot be said to be exhaustive and there might be offences which are not include in--,which in certain situations and circumstances may involve moral turpitude."

In matters of rehabilitation, the State is at liberty to consider which cases involve moral turpitude or not and to consider each case on its own merits.

The petitioner has filed a replication to the written statement in which the pleas taken in the writ petition are reiterated. In the main, it is contended that the affidavit on the basis of which the petitioner was given fresh appointment surrendering 19 years of past service was procured with mala fide intention and by misuse of power. The affidavit was obtained under compulsion.

Learned counsel for the petitioner submits that the affidavit should be ignored since it is opposed to public policy and is hit by the provisions of Section 23 of the Contract Act as explained in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, by the Supreme Court.

The State in its written statement has denied that the affidavit was procured from the petitioner with any mala fide intention. No coercive method was used to obtain the affidavit which was tendered by the petitioner on his free will and thus bears legal sanctity. Therefore, the fresh appointment is legal and valid and in accordance with the a policy circular of 1975 of rehabilitation of ex convicts. The Chief Engineer had set aside the order and directed the Superintending Engineer to decide the case on merits in accordance with Haryana Civil Services (Punishment and Appeal) Rules, 1987 and the guidelines issued by the Chief Secretary to Government Haryana Circular dated 17/26.03.1975. Since the petitioner was convicted, sentenced and remained in jail for offences under Sections 279/337/338 and 304-A IPC, the dismissal order following conviction was legally sound.

The principal argument of the learned counsel for the petitioner rests on the un-communicated order of the Chief Engineer dated 24.04.2002 reproduced above. The punishment imposed was set aside but reinstatement was not granted and that issue was ordered to be considered afresh. That is how the petitioner was given fresh appointment as Water Pump Operator. The respondent-State relies on a decision of the Division Bench of this Court in Rishi Dev (Ex. Driver No. 194) Vs. State of Haryana and Others, wherein it has been held that a driver who is convicted u/s 304-A IPC has no right to be retained in service. This judgment was relied upon by the State when this matter was heard on 15.10.2012 on which the counsel for the petitioner had prayed for time to study the case and make further submissions. I have heard the learned counsel for the parties but am not much impressed by the principle attack-submission of the learned counsel that the affidavit was procured under duress or in abuse of authority or that merely because the State was in a dominating position it imposed itself on a weak person who had no other option. Should this Court hold that the affidavit deserves to be ignored altogether and reinstatement ordered on the post of driver by wishing away the conviction? I think not. This is for the reason that adopting such course would completely wash away the conviction, sentence and imprisonment for causing death by negligence and to make it vanish into oblivion. This would not send the correct message. It would not be in public interest. The choice of job in lieu of job lost depends on many factors including qualifications, availability of vacancy, third party rights which are likely to be affected by entry into new cadre etc. In the first place, the respondents were under no bounden duty to reinstate a convicted employee whose conviction was based on proof of criminal negligence in the performance of duties in his field of work. But they were obliged to act in terms of the policy of rehabilitation of ex convicts, which has a wholesome reformatory purpose in the modern age and which they did by offering fresh appointment. The fresh appointment was made in exercise of powers validly drawn under the 1975 guidelines of the Haryana Government and therefore it cannot be said to be unjustified merely because the past service was deleted. The petitioner is not without a job. He was found guilty in a case involving moral turpitude and conviction having been upheld by this Court I find no sufficient ground to interfere in the matter and would dismiss the petition.

Ordered accordingly.