High Court of Punjab and Haryana, Chandigarh
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Bhupinder Kaur v. Union of India - CWP-5307-2004  RD-P&H 4480 (20 July 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.5307 of 2004
Date of decision: 27.7.2006
Mrs. Bhupinder Kaur v. Union of India and others
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Ms. Reena Bains, Advocate, for the petitioner.
Mr. Raman Sharma, Advocate, for respondent Nos. 1 to 4.
Mr. Arun Palli, Advocate for respondent No.5.
This writ petition has been filed seeking a direction to Bharat Petroleum Corporation Limited to cancel allotment of gas agency in favour of respondent No.5 and allot the same to the petitioner or her unmarried unemployed graduate daughter, Gurjinder Kaur.
Case set out in the writ petition is that on 28.8.1989, a gas agency was allotted to Malwinder Kaur at Ahmedgarh under Unemployed Graduate Scheme. She was married to respondent No.5 in the year 1993.
She died on 10.4.1996 on account of harassment by respondent No.5.
Respondent No.5 was allotted interim distributorship of the said agency on 7.5.1996, which was regularised on 31.7.1996. On 18.3.2001, the petitioner raised an objection to allotment made in favour of respondent No.5 on the ground that he was not eligible in view of Clause 9 of the criteria for allotment disentitling a person convicted for any criminal offence involving moral turpitude and/or economic offence (other than Freedom struggle) and against whom charges have been framed. Vide order dated 20.9.2001 (Annexure P.3) in CWP No.14277 of 2001, this court directed respondent No.4, the Territory Manager, Bharat Gas Bharat Petroleum Corporation Limited, Lalru, District Patiala to decide the petitioner's representation. The same was decided vide order dated 13.12.2002 (Annexure P.5). It was observed that conviction of respondent No.5 under sections 326/323 IPC did not involve any moral turpitude in view of judgment of this court dated 24.11.1989 in CWP No.704 of 1987. It was also mentioned that the CWP No.5307 of 2004 2
petitioner and her daughter had filed Suit No.233 dated 12.6.1996 which had been dismissed. It is further submitted that respondent No.5 was also convicted on 14.3.2001 (Annexure P.6) for perjury. It was held that the said respondent at the time of his conviction under section 326/323/34 IPC on 26.7.1996 made a false statement that when his wife died on 10.4.1996, she left a son aged 3-4 months who was being looked after by him. In fact, the son at the time of birth was still born. The petitioner has also relied upon finding recorded by the consumer forum in its order dated 21.10.1999 (Annexure P.7) in complaint No.110 to the effect that respondent No.5 was committing irregularities in delivering gas by over-charging and was, thus, not rendering proper service. Reliance has also been placed on FIR No.81 dated 5.5.2001 under section 3 of the Essential Commodities Act (Annexure P.12).
Respondent No.5 in his written statement has relied upon order dated 10.12.1997 in injunction proceedings holding that on the death of Malwinder Kaur, agency came to an end under Clause 27, which was re- allotted to respondent No.5 and, thus, no injunction could be issued.
Reliance is also placed on order Annexure R.5 acquitting respondent No.5 of the charge of his having kicked his wife in stomach and cheated her.
Annexure P.13 is judgment of the Fast Track Court dated 20.9.2004 dismissing appeal against order dated 14.3.2001 convicting respondent No.5 for perjury.
As per stand of respondent Nos. 2 to 4 Bharat Petroleum Corporation Limited, conviction under sections 323/324/34 IPC does not involve moral turpitude and conviction for perjury has not attained finality; decision of consumer forum was not sufficient to terminate distributorship and FIR regarding Essential Commodities Act was still pending investigation.
On 22.5.2006, when the matter was heard, record was produced and following order was passed:-
"Learned counsel for respondent No.4 states that proceedings have been initiated against respondent No.5 for termination of distributorship on account of his being involved in a criminal case and decision in that regard CWP No.5307 of 2004 3
will be taken within one month from today, as per Clause 28 of the Memorandum of Agreement dated 29.7.1996. It is made clear that if no decision is taken, the Chief Divisional Manager, Bharat Petroleum Corporation Ltd., Chandigarh will remain present in person on the next date. A copy of the order be sent to the officer concerned.
List again on 24.7.2006.
Copy of the order dasti on payment."
Thereafter, C.M.No.11226 of 2006 has been filed on 4.7.2006 seeking to place on record certain documents. Annexure R.1 is notice dated 12.10.2004 suspending sales and requiring to show cause as to why distributorship be not terminated under Clause 28 which provides for termination of distributorship on being involved in any criminal offence relating to moral turpitude. Reference is made to judgment dated 20.9.2004 in Criminal Appeal No.46 of 17.4.2001, upholding conviction for perjury.
Annexure R-5 is order dated 15.12.2004 noticing that since revision petition was admitted against conviction, the agency was restored subject to decision in the said revision petition.
Learned counsel for the petitioner submitted that stand taken by respondent No.4 cannot be legally upheld. Mere fact that a revision petition was pending, was not enough to ignore conviction of respondent No.5 by two courts below for perjury, which clearly involved moral turpitude.
Reliance is placed on a judgment of Hon'ble the Supreme Court in K.C.Sareen v. CBI, Chandigarh, 2001 Crl.L.J.4234, Para 11, wherein it was observed:-
"11....When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to CWP No.5307 of 2004 4
hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence, it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction." In view of above legal position, we are unable to uphold the stand taken by respondent No.4.
We, accordingly, set aside notice dated 12.10.2004 and direct respondent No.4 to take a fresh decision in accordance with law within one month from the date of receipt of a copy of this order.
(Adarsh Kumar Goel)
July 27, 2006 Judge
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