High Court
Legal Reasoning
1 WP 15111.2022-1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.15111 OF 2023Sanjay Baban Selar,age 45 years, Occ. Agri,R/o. At Post Padali Rajangaon,Tq. Parner, District Ahmednagar.PetitionerVersus1.State of Maharashtra,Through the Secretary,Rural Development and Panchayat Raj Department, Government of Maharashtra,Mantralaya, Mumbai.2.Chief Executive Officer,Zilla Parishad, Ahmednagar,At Post, Tq & Dist Ahmednagar3.Block Development Officer,near B.S.N.L. Office,Parner, Tq. Parner, Dist. Ahmednagar.4.Sarpanch,Grampanchayat Padali Rajangaon,At Post Padali Rajangaon,Tq. Parner, Dist. Ahmednagar.Respondents....________________________________________________Mr. S.B. Rajebhosale, advocate for petitioner.Mr. S.P. Joshi AGP for respondent no.1.Mr. K.N.Lokhande, Advocate for respondent nos.2 and 3.Mr. N.S. Shah, Advocate for respondent no.4._________________________________________________CORAM :S. G. CHAPALGAONKAR, J.Reserved on :June 13, 2025.Pronounced on:July 15, 2025. 2 WP 15111.2022-1.odtJUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finally byconsent of the parties.2.Present writ petition takes exception to the order dated1.9.2023, passed by the Chief Executive Officer, Zilla Parishad,Ahmednagar, upholding the order dated 17.02.2023 passed by BlockDevelopment Officer, Parner thereby confirming order dated17.10.2022 passed by Sarpanch, Grampanchayat, Padali Rajangaonthereby dismissing the petitioner from service of Village Panchayat.3.Brief facts, giving rise to the present petition, are asunder :-The petitioner was appointed as Peon on establishmentof Village Panchayat, Padali Rajangaon. On 9.1.2012 he was givenappointment order w.e.f. 1.9.2005. Thereafter, he was confirmed inservice.4.On 26.11.2015, Crime No.182 of 2015 had beenregistered against petitioner for offenses punishable under section354, 337, 323, 504, 506 of Indian Penal Code, alleging that on26.11.2015 while informant, her mother-in-law and her son were atHome, petitioner/accused demanded dues of water tax. Informant 3 WP 15111.2022-1.odttold him that her husband had gone out for some work and on hisreturn, tax would be paid. However, petitioner threatened her todisconnect water connection. He caught hold her hands andoutraged modesty. When her mother-in-law intervened, petitionerpushed her.5.In deference to registration of FIR, investigation wascompleted, charge-sheet was filed and in R.C.C. No.136 of 2016.Petitioner was put to trial. On conclusion of Trial, learned J.M.F.C.Parner convicted petitioner for offences under sections 323, 352 ofthe Indian Penal Code and sentenced him to suffer RigorousImprisonment for one month, but acquitted of the offencespunishable u/s 354, 337, 504, 506 of the IPC.6.Petitioner filed Criminal Appeal no.15 of 2021 beforeSessions Court. Eventually, substantive sentence was suspended videorder dated 17.3.2021 till disposal of the appeal. However, on thebasis of conviction recorded by learned J.M.F.C. in R.C.C. No.136 of2016, respondent no.4 dismissed petitioner from service. Petitionerfiled appeal against dismissal before Block Development Officer, whoaffirmed order of respondent no.4. Aggrieved petitioner preferredrevision before the Chief Executive Officer, Ahmednagar, whodismissed the revision. In backdrop of sequence of events 4 WP 15111.2022-1.odtmentioned above, present petition is filed assailing dismissal fromservice and impugning orders passed by the Appellate and revisionalauthorities.7.It appears that during pendency of this petition, on30.11.2023, criminal appeal no.15 of 2021 filed by petitioner hasbeen allowed by learned Sessions Judge, Ahmednagar therebysetting aside order of conviction and sentence passed by LearnedJ.M.F.C. Resultantly, petitioner has been acquitted. Immediately, on28.03.2024 petitioner submitted his representations to ChiefExecutive Officer, Zilla Parishad, Block Development Officer andGrampanchayat seeking reinstatement in service, however no actionis taken by them. Accordingly, petitioner amended petition andincorporated the prayer clause E-1, seeking directions againstrespondent no.4 for re-instatement with continuity of service andfull back wages from date of dismissal of in view of the judgmentand order of acquittal, particularly, in view of Rule 11 of BombayVillage Panchayats Servants (Recruitment and Conditions ofService), Rules, 1960 (for short Rules of 1960).8.Mr. S.B. Rajebhosale, learned advocate appearing forpetitioner assails order of dismissal passed by respondent no.4,firstly on the ground that same has been passed without following 5 WP 15111.2022-1.odtprinciples of natural justice as petitioner was not served with showcause notice or given opportunity of putting his defence. Secondly,although, petitioner was tried for various offences in R.C.C. No.136of 2016, ultimately, conviction was recorded only for the offencesunder section 352 and 323 of the IPC, which does not involve moralturpitude. Respondent No.4 wrongly assumed petitioner’s convictionunder section 354 of the IPC, which shows non-application of mind.Mr. Rajebhosale would further submit that looking to the scheme ofsection 61 (1) of Maharashtra Village Panchayats Act, 1959, andRules of 1960 framed thereunder, dismissal from service cannot beordered without looking to nature of allegations and his conductleading such conviction. Lastly, he submits that petitioner has beenacquitted by the Appellate Court, therefore, whole basis ofpetitioner’s dismissal from service has been vitiated. Eventually,respondent no.4 is under obligation to re-instate the petitioner. Mr.Rajebhosale, in support of his contentions, relies upon theobservations of this Court in case of Ashok Govindrao Sardar Vs. TheChief Executive Officer, Amravati and others reported in 2016(2)ALL MR 413 and observations of Supreme Court in case of SaharaIndia (Firm) Vs. Commissioner of Income Tax Central and anotherreported in (2008) 14 SCC 151.
Legal Reasoning
6 WP 15111.2022-1.odt9.Per contra, Mr. N.S.Shah, learned advocate appearingfor respondent no.4 and Mr. K.N. Lokhande, learned advocateappearing for respondent nos.2 and 3 justifies impugned orderscontending that conduct of petitioner was unbecoming of the PublicServant. He was convicted by the competent court on conclusion oftrial and his dismissal from service is consequence of convictionunder service Rules. Mr. Shah by inviting attention of this Court toArticle 311 of the Constitution of India, strenuously submits that, incase of dismissal from service in deference to conviction on criminaltrial, deliberation or Departmental Inquiry need not be preceded todismissal. In such cases adherence to rule of Audi alteram partemdoes not require. In support of his contentions, he relies uponobservations of Supreme Court of India in cases of Hari Pada KhanVs. Union of India and others reported in (1996) 1 SCC 536 andTrikha Ram Vs. V.K. Seth and another reported in 1987 (supp) SCC39.10.Having considered the submissions advanced, it isapposite to refer to relevant provisions under the MaharashtraVillage Panchayats Act as well as Rules of 1960 framed thereunder,which reads thus :- 7 WP 15111.2022-1.odtThe Maharashtra Village Panchayats Act, 1959(specifically Section 61) - 61.(1)] A panchayat may appoint such servants as maybe necessary for the proper discharge of its duties underthis Act and pay their salaries from the village fund. ASarpanch may also, in cases of emergency, engage suchtemporary servants as he may deem necessary. Apanchayat may, from time to time, by written order, fine,suspend or dismiss any servant appointed by it; but anappeal shall lie against any such order passed by thepanchayat to the 6 [Block Development Officer], withinone month from the date of the communication of theorder to the servant. 7 [An application for revision maybe made to the Chief Executive Officer against thedecision of the Block Development Officer in suchappeal: Provided that, no such application shall beentertained if it is not made within a period of onemonth from the date of such decision:Provided further that, no such appeal or application shallbe decided unless the servant of the panchayat is givenan opportunity of being heard.] [(2) Without prejudice to the power of a panchayatunder sub-section (1), the State Government may 2[make rules to regulate recruitment and] the terms andconditions of service of servants appointed under sub-section (1).] 11.Plain reading of aforesaid provision shows that thePanchayat is empowered to appoint servants for proper discharge ofits duties. Panchayat is further empowered to suspend or dismissany servant, so appointed, by written order. Any such order passedby Panchayat is subjected to the decision by the appellate authorityi.e. Block Development Officer and revisional authority i.e. C.E.O.Similarly, the State Government is empowered to make the rules to 8 WP 15111.2022-1.odtregulate recruitment and terms and conditions of the services ofservants appointed under sub-section (1).12.Pertinently, State Government has framed the BombayVillage Panchayats Servants (Recruitment and Conditions of service)Rules, 1960 in exercise of powers conferred under section 176 of theAct. Rule 3 provides for disqualification and reads thus :-3. Disqualifications :-No person shall be employed as a servant of thepanchayat, if - (a) he is not of good character; or. (b) he has been dismissed for misconduct from theservice of any other panchayat or any local body or fromGovernment service; or (c) he has been convicted by a Criminal Court of anyoffence relating to elections or involving moralturpitude.Similarly, Rule 11 states as under :- 11. Panchayat not to reinstate person convicted in Criminal Court :-The panchayat shall not reinstate any panchayat servantwho has been convicted in a Criminal Court unless he ishonorably acquitted in appeal or revision.13.The harmonious reading of aforesaid provisionsdefinitely depicts that village Panchayat is empowered to dismiss itsemployee, however, there is no specific provision regulatingprocedure to be adopted before dismissal on account of conviction is 9 WP 15111.2022-1.odtordered. The harmonious reading of section 61 with relevant rules,depicts that a person who has been convicted by Criminal Court ofan offence involving moral turpitude is disqualified for employmentof servant of the village Panchayat. Therefore, village Panchayat cancertainly dispense service of employee who has incurreddisqualification on conviction for an offense involving moralturpitude.14.Now turning back to facts of the present case, it can beobserved that, although petitioner was charge-sheeted for offensespunishable under sections 354, 337, 323, 504 and 506 of the IndianPenal Code, ultimately, he was convicted only for offensespunishable under section 352 and 323 and sentenced forimprisonment of one month. The impugned dismissal orderassumes that petitioner has been convicted for offences undersections 323 and 354 of the IPC. Even resolution of Panchayatdated 11.10.2022 erroneously assumes and records that petitionerhas been convicted for such offence. Unfortunately, Chief ExecutiveOfficer, Zilla Parishad, Ahmednagar as well as Block DevelopmentOfficer in their communications dated 29.4.2022 and 12.5.2022instructed respondent no.4 Panchayat to initiate action againstpetitioner under section 61 of the Village Panchayats Act assuming 10 WP 15111.2022-1.odtthat petitioner has been convicted for offence punishable undersection 354 and 323 of the IPC. It is, therefore, eminent that actionof petitioner’s dismissal from service was on misconception of factthat he has been convicted for offence under section 354.Pertinently, petitioner was not heard or served show cause noticebefore passing impugned order of dismissal from service. It is tritethat while considering penalty to be imposed against convictedemployee, Disciplinary Authority will have to take into accountconduct of the delinquent employee, gravity offence committed byhim and its impact i.e. likely to have at the administration. Hence,it was incumbent upon respondent No. 4 to ascertain if conviction ofpetitioner is for offences involving moral turpitude that bringsdisqualification against him under Rule 3 of 1960 Rules fromcontinuing his employment with Panchayat.15.The term “Moral Turpitude” is defined in Black’s LawDictionary as under :-"Conduct that is contrary to justice, honesty, or morality. In thearea of legal ethics, offenses involving moral turpitude such asfraud or breach of trust. Also termed moral depravity.Moral turpitude means, in general, shameful wickedness-soextreme a departure from ordinary standards of honest, goodmorals, justice, or ethics as to be shocking to the moral sense ofthe community. It has also been defined as an act of baseness,vileness, or depravity in the private and social duties which oneperson owes to another, or to society in general, contrary to theaccepted and customary rule of right and duty between people." 11 WP 15111.2022-1.odt 16.The Allahabad High court in case of Baleshwar Singhvs District Magistrate and Collector reported in AIR 1959 All 71elaborated term ‘Moral Turpitude’ thus :-"The expression `moral turpitude' is not defined anywhere.But it means anything done contrary to justice, honesty,modesty or good morals. It implies depravity and wickednessof character or disposition of the person charged with theparticular conduct. Every false statement made by a personmay not be moral turpitude, but it would be so if it disclosesvileness or depravity in the doing of any private and socialduty which a person owes to his fellow men or to the societyin general. If therefore the individual charged with a certainconduct owes a duty, either to another individual or to thesociety in general, to act in a specific manner or not to so actand he still acts contrary to it and does so knowingly, hisconduct must be held to be due to vileness and depravity. Itwill be contrary to accepted customary rule and duty betweenman and man."17.In present case, conviction of the petitioner was foroffenses under section 323 and 352 of IPC, which can not be termedoffenses involving moral turpitude. Further, from contents of theFIR, one can observe that while petitioner was discharging his dutyof recovery of panchayat taxes, on allegations by family members ofthe defaulter, offence had been registered. So, in such cases, unlessvillage Panchayat forms opinion as to nature of allegations andeffect on administration, action like dismissal from service, havingserious impact on petitioner-employee could not have been takenonly on basis of conviction by Court.
Decision
12 WP 15111.2022-1.odt18.In present case, if respondent No. 4 could have providedopportunity to petitioner to put up his stand before passing dismissalorder, definitely he would have brought to the notice of respondentno.4 nature of offence for which he has been convicted. Pertinently,Rule (3) of 1960 rules provides disqualification of employee as aservant of Panchayat, only when, he is convicted by the CriminalCourt for offenses relating to elections or involving moral turpitude.Therefore, respondent no.4 could have dismissed petitioner/employee only on recording satisfaction that he incurreddisqualification in deference to conviction for the offences involvingmoral turpitude. In the present case, conviction of petitioner undersection 352 or 323 can not be encompassed within prescribeddisqualification under Rule 3. The impugned order is a non-speaking order. It only records that petitioner has been convictedby court. Patently it depicts non-application of mind and arbitraryexercise of powers vested with Panchayat. There is no deliberationas the conduct of petitioner leading to conviction. Therefore, thisCourt holds that action taken by respondents under section 61 is notin conformity with constitutional mandate under Article 14 and 21.19.Although, Mr Shah, learned advocate appearing forrespondent no.4 heavily relied upon decisions of the Supreme Court 13 WP 15111.2022-1.odtin case of Hari Pada Khan And Trikha Ram (supra), both the casesare distinguishable on facts from present case.20. In case of Hari Pada Khan, relying upon provisions ofstanding orders, the applicability of principles of natural justice wasdispensed with hence Supreme Court observed that non-observanceof principles of natural justice was not fatal.21.In case of Trikha Ram referring to Article 311 (2)Second proviso it is held that civil servant convicted for criminaloffence, not entitled for hearing by disciplinary authority inDepartmental Inquiry before imposing punishment of dismissal.Even, such observations are in the facts of that case, which areclearly distinguishable from the present case. Pertinently in case ofShankar Dass vs Union of India and Another reported in (1985) 2SCC 358 Supreme court while dealing with Article 311 (2) ofconstitution of India observed in para no 7 thus :- 7. It is to be lamented that despite these observations ofthe learned Magistrate the Government chose to dismiss theappellant in a huff without applying its mind to the penaltywhich could appropriately be imposed upon him in so far ashis service career was concerned. Clause (a) of the secondproviso to Article 311 (2) of the Constitution confers on theGovernment the power to dismiss a person from service "onthe ground of conduct which has led to his conviction on acriminal charge". But that power like every other power hasto be exercised fairly, justly and reasonably. Surely, theConstitution does not contemplate that a Governmentservant who is convicted for parking his scooter in a no- 14 WP 15111.2022-1.odtparking area should be dismissed from service. He mayperhaps not be entitled to be heard on the question of penaltysince Cl. (a) of the second proviso to Art. 311 (2) makes theprovisions of that article inapplicable when a penalty is to beimposed on a Government servant on the ground of conductwhich has. led to his conviction on a criminal charge. But theright to impose a penalty carries with it the duty to act justly.Considering the facts of this case, there can be no twoopinions that the penalty of dismissal from service imposedupon the appellant is whimsical.22.Pertinently, in the present case, conviction and sentenceimposed against the petitioner has been set aside by the appellateauthority during pendency of this petition. However, even withoutlooking to aforesaid subsequent events, this Court holds that only onthe basis of conviction and sentence imposed in the criminal caseagainst petitioner for offences which do not involve moral turpitude,petitioner could not have been dismissed from service that too undermisconception that he has been convicted for the offence undersection 354. It would not be out of place to mention here thatalthough, employer can dispense services of employee convicted byCourt, employer will have to apply mind to the circumstancesleading to conviction, particularly when conviction is not for graveoffence. Even in such case, employee needs to be given anopportunity to put up his stand against proposed action based onconviction. The punishment should be after evolution of conduct 15 WP 15111.2022-1.odtand impact on administration. None of the above aspects consideredbefore passing impugned order. 23.In result writ petition succeeds and allowed in terms ofprayer clauses “A” to “E”. Rule is made absolute in above terms. WritPetition stands disposed off. ( S. G. CHAPALGAONKAR ) JUDGE...aaa- (f)