Dr. S.D. Nikam v. Gokhale Education Society Educational Trust

12. The dictionary meaning of ‘moral’ is as follows: The Oxford English Dictionary “Moral - … 1. Of or pertaining to character or disposition, considered as good or bad, virtuous or vicious; of or pertaining to the distinction between right and wrong, or good and evil, in relation to the actions, volitions, or character of responsible beings; ethical.” The Webster’s Third New International Dictionary “Moral - ….. 1 a. Of or relating to principles or considerations of right and wrong action or good and bad character; b. Of or relating to the study of such principles or considerations; 2. expressing or teaching a conception or right behaviour; 3 a. capable of being judged as good or evil or in terms of principles of right and wrong action: resulting from or belonging to human character, conduct or intentions; b. capable of right and wrong action or of being governed by a sense of right; 4. Of, relating to, or acting upon the mind, character or will.” The Black’s Law Dictionary “Moral - Pertains to character, conduct, intention, social relations etc.

1. Pertaining or relating to the conscience or moral sense or to the general principles of right conduct.

2. Cognizable or enforceable only by the conscience or by the principles of right conduct, as distinguished from positive law.

3. Depending upon or resulting from probability; raising a belief or conviction in the mind independent of strict or logical proof.

4. Involving or affecting the moral sense; as in the phrase “moral insanity”. Corpus Juris Secundum (Volume LVIII) “Moral - Manner, custom, habit, way of life, conduct pertaining to character, conduct, intentions, social relations, etc. Conduct is regarded as moral that conforms to the generally accepted rules which society recognizes should govern everyone in his social and commercial relations with others, regardless of whether those rules are enforceable as legal obligations. What is moral is the antithesis of that which involves turpitude.”

13. The dictionary meaning of the word ‘turpitude’ is as follows: The Oxford English Dictionary “Turpitude - Base or shameful character; baseness, vileness; depravity, wickedness.” “Turpitude: inherent baseness or vileness of principle, words or actions.” “Turpitude - In its ordinary sense, inherent baseness or vileness or principle or action; shameful wickedness’ depravity. In its legal sense, everything done contrary to justice, honesty, modesty or good morals. An action showing gross depravity.” “Turpitude” is a word of high emotional significance, suggesting conduct of such depravity as to excite feelings of disgust and contempt. The crime of simple hurt does not normally provoke any such reaction and consequently cannot be classed as an offence involving moral turpitude and it seems to me that there is no logical reason why the offence of murder, which in essence is only an aggravated form of hurt, should be held necessarily to involve moral turpitude. I am willing to concede that murders which are premeditated and planned in cold blood, those which the perpetrated for some base motive and those which are carried out with extreme ferocity and cruelty do involve moral turpitude, as they naturally evoke a spontaneous feeling of repulsion and condemnation in the mind. But a murder committed in the heat of a fight or in response to serious provocation could hardly be placed in the same category. (Harsukh Lal vs. Sarnam Singh, 1964 All LJ 1118; Mahak Singh vs. State of U.P., AIR 1999 All 274, 281)

14. Having noted the plain meaning of the words “moral” and “turpitude”, the meaning of the phrase “moral turpitude” in the legal parlance is also required to be seen. “Moral turpitude - … 1. an act or behaviour that gravely violates the moral sentiment or accepted moral standards of the community; 2. the morally culpable quality held to be present in some criminal offences as distinguished from others (permits may be denied for bad moral character.. or conviction for an offence involving moral turpitude.” “Moral turpitude - … 1. Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offenses involving moral turpitude – such as fraud or breach of trust – traditionally make a person unfit to practice law. - Also termed moral depravity.” Corpus Juris Secundum (Volume LVIII) “Moral Turpitude” has been defined as meaning an act of baseness, vileness, vileness, or depravity in the private and social duties which a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man and this definition has been given by a great many authorities and approved by all that have considered the question. The term has also been defined as meaning anything done contrary to justice, honesty, principle or good morals, everything done contrary to justice, honesty, modesty, or good morals, anything done knowingly contrary to justice, honesty, or good morals. “Moral turpitude” has also been defined to mean baseness, depravity, or wickedness, base or shameful character, a 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 mala prohibits. “Moral” in combination with “turpitude” us a tautological expression, and it has been said that the word “moral” does not seem to add anything to the meaning of the term, other than that emphasis which often results from tautological expression, and serves only to emphasize the nature of the wrong committed. Moral turpitude often involves the question of intent, and as a general rule unintentional wrong, or an improper act done without unlawful or improper intent, does not carry with it the germ of moral turpitude. Thus an act committed because of ignorance does not constitute moral turpitude. It is not necessary to prove a bad motive on the part of one in order to have it said that he is guilty of moral turpitude.” “Moral turpitude: Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man.

1. Conduct that is contrary to justice, honesty or morality. In the area of legal ethics, offenses involving moral turpitude such as fraud or breach of trust traditionally make a person unfit to practice law. Also termed moral depravity. 2. Military law. Any conduct for which the applicable punishment is a dishonorable discharge or confinement not less than one year. (Black, 7th Edn. 1999) “Moral turpitude means, in general, shameful wickedness – so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people.” 50 Am. Jur. 2D Libel and Slander, S. 165, at 454(1995).

15. A cumulative reading of the definition of the words “moral” and “turpitude” and the phrase “moral turpitude”, in the context of an offence involving moral turpitude would indicate, that such would be an offence which would attract the principles or considerations of right and wrong action or good and bad character which are capable of being judged as good or evil, or relating to or acting upon the mind, character or will; or pertains to character, conduct, intention involving general principles of right conduct; having relation to what the Society recognizes should govern everyone, in the social and commercial relations. What is moral is the antithesis of that which involves turpitude. It would also mean a base or shameful character; baseness, vileness; depravity, wickedness of actions and in the legal sense, everything done contrary to justice, honesty, modesty or good morals or an action showing gross depravity. This would thus exclude certain category of offences which do not involve and attract morality, baseness, vileness or depravity in the private and social duties or offence which do not involve the question of intent or an unintentional wrong having been committed or an improper act done without unlawful or improper intent or an act committed of ignoranc eof such principles.

16. Having considered the meaning of the phrase “moral turpitude”, we may also examine the legal position, which can be culled out from the decisions of the Courts in regard to the offences involving moral turpitude.

17. In Pawan Kumar vs. State of Haryana & Anr.2, the Supreme Court had an occasion to consider the expression “moral turpitude” as used in the legal as also societal parlance. The case before the Supreme Court was of a termination suffered by the appellant on the ground of conviction for an offence under section 294 of the Indian Penal Code. It is in such context, the Supreme Court considering the list prepared by the respondent-State, of offences involving moral turpitude, set aside the decision of the High Court and allowing the appellant’s case. The Supreme Court observed that the conviction of the appellant under Section 294 of the IPC would not involve moral turpitude. The Supreme Court examining the concept of moral turpitude held thus: “12. "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on February 2, 1973 (Annexure E in the Paper Book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not, however, be taken in Government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294, IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26th March, 1975 explained the policy decision of February 2, 1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: "..... The following terms should ordinarily be applied 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 of a depraved character or a person who was to be looked down upon by the society. Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude." Section 294 IPC still remains out of the list. Thus the conviction of the appellant under Section 294, I.P.C. on its own would not involve moral turpitude depriving him the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirement of the policy decision above-quoted.

14. Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are, therefore, necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine upto a certain limit, say upto Rs.2000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever.”

18. The decision of the Supreme Court in Pawan Kumar (supra) is referred with approval in the subsequent decisions of the Supreme Court in the case of Mohammed Imran vs. State of Maharashtra & Ors.[3] and in the case of State of Madhya Pradesh & Ors. vs. Bhupendra Yadav[4].

19. In State Bank of India & Ors. vs. P. Soupramaniane[5], the respondent before the Supreme Court was working as a messenger in State Bank of India at Puducherry, who came to be discharged from service, on being convicted of an offence, alleged to be involving moral turpitude. He was charged under sections 307 and 324 of Indian Penal Code. In the criminal proceedings, the trial Court held that there was no material to convict the respondent under section 307 of Indian Penal Code. However, the trial Court convicted the respondent under Section 324 of IPC and sentenced him to undergo imprisonment for three months. The motive for the crime was stated to be an earlier dispute between two groups belonging to different political parties. The conviction was affirmed by the appellate court. The appellate court, however, released the respondent on probation as it was of the opinion that the respondent was a fit person to be dealt with under Section 360 of Cr.P.C. One of the reasons given by the appellate court to release the respondent on probation, was that the respondent was employed as a messenger in a bank and any sentence of imprisonment would affect his career. Despite this, the respondent was discharged from service on the ground of his conviction by a criminal court for an offence involving moral turpitude. The petitioner approached the High Court against his discharge. The learned Single Judge of the High Court dismissed the respondent’s writ petition. A writ appeal was filed by the respondent, in which the Division Bench of the High Court set aside the order passed by the learned Single Judge on the ground that the purpose of the order of the criminal court, would stand defeated if the respondent is discharged from service. The Supreme Court affirmed the judgment of the appeal court granting reinstatement of service to the respondent. It is in such context, the Supreme Court examined the concept of moral turpitude. The relevant observations of the Supreme Court are required to be noted, which reads thus: “13. Ordinarily, the tests that can be applied for judging an offence involving moral turpitude are: a) Whether the act leading to a conviction was such as could shock the moral conscience or society in general; b) Whether the motive which led to the act was a base one, and

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

14. The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are: the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society.

15. According to the National Incident–Based Reporting System (NIBRS), a crime data collection system used in the United States of America, each offence belongs to one of the three categories which are: crimes against persons, crimes against property, and crimes against society. Crimes against persons include murder, rape, and assault where the victims are always individuals. The object of crimes against property, for example, robbery and burglary is to obtain money, property, or some other benefits. Crimes against society, for example, gambling, prostitution, and drug violations, represent society’s prohibition against engaging in certain types of activities. Conviction of any alien of a crime involving moral turpitude is a ground for deportation under the Immigration Law in the United States of America. To qualify as a crime involving moral turpitude for such purpose, it requires both reprehensible conduct and scienter, whether with specific intent, deliberateness, willfulness or recklessness.

16. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, the NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorised as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorised as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. In the instant case, there was no motive for the respondent to cause the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the respondent does not involve moral turpitude. As the respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service.”

20. In Anand John vs. Zonal Manager, Bank of India, Cochin[6], the appellant therein was charged with an offence punishable under section 118(e) of the Kerala Police Act, 2011 and Section 185 of the Motor Vehicles Act, 1988, being crimes registered against him at the concerned police station. In the said proceedings, the appellant pleaded guilty and was convicted and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs.2,000/- for the offence under Section 118(e) of the Kerala Police Act and Rs.1,000/- for the offence udner section 185 of the Motor Vehicles Act. The appellant was selected to the post of Sub Staff (Sepoy) subject to submission of satisfactory proof of eligibility inter alia of all documents which were subject to receipt of satisfactory police verification of his character and antecedents. However, on the premise of such criminal proceedings as initiated against the appellant, the respondent-bank issued a letter to the appellant informing him that as per the police verification report received by it, the appellant was not suitable for the post and hence the offer of appointment issued to him stands revoked. This was questioned by the appellant before the Kerala High Court.

The learned Single Judge of the High Court dismissed the Writ Petition filed by the appellant. However, the Division Bench in the proceedings of a writ appeal examined the question, as to whether the appellant could be said to be guilty of an offence involving moral turpitude. The Division Bench also referring to the decision of the Delhi High Court in the case of Bank of Maharashtra vs. Om Prakash Malvaliya[7], made the following observations: “8. Learned counsel further relied upon the judgment of the Delhi High Court in Bank of Maharashtra v. Om Prakash Malvaliya [ILR (1997) II Delhi p.135] in support of his case to contend that the offences committed by the appellant squarely falls within the meaning of offence involving ‘moral turpitude’.

9. In Bank of Maharashtra’s case (cited supra), the learned Single Judge of Delhi High Court while considering the question as to whether the offence does or does not involve ‘moral turpitude’, has summarised as under:-

10. We agree with the observations made by the Delhi High Court that if the act leading to a conviction was such as would shock the moral conscience of society in general, if the motive which led to the criminal act was a base one and if on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society may fall under the definition of ‘offence involving moral turpitude’. However, we hasten to add that it is not possible to lay down any abstract standard, which constitutes ‘moral turpitude’. Each case has to be dealt with based on the facts and circumstances of that case. Every criminal conviction per se does not amount to ‘moral turpitude’.

12. Section 185 of the Motor Vehicles Act reads thus:- “185. Driving by a drunken person or by a person under the influence of drugs. - Whoever, while driving, or attempting to drive, a motor vehicle,- (a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or (b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with find which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.”

13. Section 185 of the Motor Vehicles Act is applicable when, a person drives or attempting to drive a motor vehicle has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser or is under the influence of a drug to such as extent as to be incapable of exercising proper control over the vehicle.

19. Since we find that the offences committed by the appellant as mentioned supra do not fall under the definition of ‘offence involving moral turpitude’, the contention of the respondent cannot be accepted. Section 10 of the Banking Regulation Act, 1949 clearly states that no banking company shall employ or continue the employment of any person, who has been convicted by a criminal court for an offence involving ‘moral turpitude’. Thus, if any person is involved in an offence involving ‘moral turpitude’, it is not open for the Bank to appoint him. But, in the matter on hand, we find that the offence committed by the appellant may not be trivial in nature, but it will not come within the definition of ‘offence involving moral turpitude’.

21. In our opinion, the decision in Anand John’s case (supra) would be squarely applicable in the facts of the present case.

22. Mr. Joshi’s reliance on the decision of the Punjab and Haryana High Court in Darshan Singh (supra) is also quite apposite. In such decision, the Court has observed that road accidents are, often, the result of an error of judgment or mechanical failures. It was observed that the accidents can also occur on account of the fault of the other vehicle and hence in such cases, it would not be justified or rational to hold that the driver is guilty of an offence involving moral turpitude in the absence of mens rea. We fully subscribe to these eloquent observations.

23. In the light of the above discussion, we are more than satisfied that respondent nos. 1 and 3 were not correct, and/or were illegal, to hold that merely because the petitioner was involved in a motor vehicle accident leading to the FIR in question, under which he was arrested and suffered custody for more than 48 hours, the petitioner was likely to be guilty of an offence involving moral turpitude. We may observe that normally in a motor vehicle accident, unless the circumstances speak otherwise, there can be no question of any mens rea or a criminal intent. In the facts of the present case, it cannot be held that the petitioner should suffer suspension on the ground of he being involved in an offence involving moral turpitude. Thus, the action on the part of respondent nos. 1 and 3 to suspend the petitioner by the order impugned in the present proceedings would be patently illegal. We are accordingly inclined to allow the Writ Petition by the following order: O R D E R a) The petition stands allowed in terms of prayer clauses (a) and (c), which reads thus: “a) Issue appropriate Writ/Order for quashing and setting aside the impugned order of suspension dated 28.11.2022 which has been issued by respondent no. 1 to be illegal, arbitrary and without following proper procedure. c) Issue appropriate Writ/Order directing the respondents to permit petitioner to work as Associate Professor on his original post on such terms as this Hon’ble Court may deem fit and proper.” b) Needless to observe that as now the petitioner is reinstated, the petitioner would be required to be paid the regular salary for the entire period of suspension till reinstatement and for which the respondents are at liberty to make appropriate proposal to the State Government. c) We clarify that the observations in the present judgment are made only in the context of the issue before the Court, that is of the petitioner’s suspension. This observation shall not prejudice the contentions of the parties in any criminal proceedings in relation to the accident in question. d) Rule is made absolute in the above terms. No costs. (JITENDRA JAIN, J.) (G. S. KULKARNI, J.) Designation: PS To Honourable Judge