Full Judgment Text
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PETITIONER:
DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY & ANR.
Vs.
RESPONDENT:
T.R.
DATE OF JUDGMENT15/09/1975
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1975 AIR 2216 1976 SCR (1) 783
1976 SCC (3) 190
CITATOR INFO :
O 1985 SC1416 (5,63,107,108,109,113,114,115,
RF 1986 SC 555 (6,8)
F 1989 SC 662 (9)
F 1990 SC 987 (8,11)
R 1991 SC 385 (4)
ACT:
Probation of offenders Act 1958, s.12 and Railway
Servants (Discipline and Appeal) Rules, 1968, r.14 (1) -
Release on probation under the Act- Effect power to take
disciplinary action.
HEADNOTE:
Rule 14(1) of the Railway Servants (Discipline and
Appeal) Rules, 1968 provides that not withstanding anything
contained in rr.9 to 13, where any penalty is imposed on a
railway servant on the ground of conduct which has led to
his conviction on a criminal charge, the disciplinary
authority may consider he circumstances of the case’ and
make such orders thereon as it deems fit,
Section 12 of the Probation of’ Offenders Act, 1958,
provides that not with standing anything contained in any
other law a person found guilty of an offence and dealt with
under the provisions of s.3 or s.4 shall not suffer a
disqualification, if any, attached to a conviction of an
offence under such law.
The respondents were found guilty of certain minor
offences and instead of being sentenced, were released on
probation under the provisions of the Probation of offenders
Act. The concerned Disciplinary Authorities however, re
moved them from service on the ground of their conviction
without any further opportunity to the respondents. The
respondents challenged the orders of removal and the High
Court quashed the orders.
Dismissing the appeals to this Court,
^
HELD: (1) The conviction of the delinquent employee
would be taken as sufficient proof of misconduct, and then,
the authority will have to hold a summary inquiry as to the
nature and extent of the penalty to be imposed If the
authority is of the opinion that the offence is too trivial
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or of a technical nature it may not impose any penalty in
spite of the conviction. If the authority is of the opinion
that the employee has been guilty of a serious offence
involving moral turpitude, and therefore it was not
desirable or conducive in the interests of administration to
retain such a person in service, the disciplinary authority
has the undoubted power, after hearing the employee and
considering the circumstances of the case, to inflict any
penalty without any further departmental inquiry. As there
was no such application of mind and consideration of
circumstances the orders of removal are rightly quashed
[795H-796E, H]
(2) The view of the Kerala High Court, that as the
Magistrate released the 7 delinquent employee on probation,
no penalty was imposed and that therefore r.14 (1) did not
apply, is not correct. The word ’penalty’ in the rule is
relatable to the penalties to be imposed by the Disciplinary
Authorities under the Rules and not to the sentence passed
by a criminal court. Because, so far as the disciplinary
authority is concerned it could only impose a penalty and
not a sentence, just as a criminal court, after conviction,
does not impose a penalty but passes a sentence. Hence, the
words "where any penalty is imposed" in r.14 (1) should be
read as ’where any penalty is impossible’ by the
Disciplinary Authority. [787E-F; 788A-R; 789D-H]
2-L1127SCI/75
784
(3) If the Magistrate did not choose, after convicting
the accused, to pass any sentence on him but released him
on probation it could not be said that, the stigma of
conviction is completely washed out or obliterated or that
no disciplinary action could be taken under r. 14(1). [790B-
C]
Sections 3, 4 and 9 of the Probation of offenders Act
show that an order of’ release on probation comes into
existence only after the accused is found guilty and is
convicted of the offence. Such an order is merely in
substitution of the sentence from a humanist point of view.
The control over the offender is retained by the criminal
court and where it is satisfied that the conditions of the
bond had been broken by the offender, who has been released
on probation the Court can sentence on the basis of the
original conviction, showing that the guilt is not
obliterated. [790H-791D]
(4) The words disqualification, if any attaching to a
conviction of an offence under such law, in s. 12 mean (1)
that there must be a disqualification resulting from a
conviction; and (ii) that such disqualification must be
provided by some law other than the Probation of offenders
Act. It could not be contended that the ‘disqualification’
referred to is the ’liability under r. 14(1) to disciplinary
action without a departmental enquiry’, and that such
disqualification is removed by release on probation. The
disqualification must he an automatic disqualification; such
as regarding holding of officer or standing for elections,
as a consequence of’ the conviction. Rule 14(1) incorporates
the principle contained in proviso (a) to Art. 311(2). But
neither of these provisions contain any express provision
that the moment a person is found guilty of misconduct of a
criminal charge he will have to be automatically dismissed
from service. These provisions are merely enabling and do
not enjoin or confer a mandatory duty on the disciplinary
authority to pass an order of dismissal, removal or
reduction in rank the moment an employee is convicted. The
proviso to Art. 311(2) was enacted because, when once a
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delinquent employee has been convicted of a criminal offence
at a trial, where he had a full and complete opportunity to
contest the allegations, that should be treated as a
sufficient proof of his misconduct, and the disciplinary
authority may be given the discretion to impose the
penalties referred to in Art. 311(2), without holding a
fresh full-dress departmental inquiry. If r. I’’ of the
Probation of offenders. Act completely wipes out this
liability to disciplinary action on the basis that it is a
’disqualification’ under the section then it would be ultra
vires as it would be in direct conflict with the
Constitutional provision. [788G-H; 789C-D, 791F 792F]
R. Kumaraswami Aiyar v The Commissioner Municipal
council, Tiruvannamai and another [1957] Cri. L. J. .255,
256 Om Prakash v. The Director Postal Services (posts and
Telegraphs Deptt.) Punjab Circle, Ambala and others, A.I.
R. 1973 Punjab 1, 4; Director of Postal Services and Anr. v.
Daya Nand, [1972] S.L.R. 325, 341, Embaru v. Chairman Madras
Port Trust [1963] 1 L.L.J. 49. Akella Satyanarayana Murthy
v. Zonal Manager. Life Insurance Corporation of India,
Madras. A.I.R. 1969 A.P. 371, 373 and Premkumar v. Union of
India and others, [1971] Lab. & Ind. Cases 823, 824.
approved.
(5) Therefore the Rajasthan High Court was wrong in
giving 1 wide connotation to the word ’consider’ in r. 14
and holding that it requires the disciplinary authority to
hold a detailed determination of the matter once again. The
rule-making authority deliberately used the word ’consider’
and not ’determine’ because, the latter word has a much
wider scope. the word ’consider’ merely connotes that there
should be active application of mind by the disciplinary
authority after considering the entire circumstances of to
case in order to decide the nature and the extent of the
penalty to be imposed on the delinquent employee on his
conviction on a criminal charge. This could only be
objectively determined if the delinquent employee is heard
and given a chance to satisfy the authority regarding the
final orders that may be passed The provision merely imports
the rule of natural justice that before taking final action
the delinquent employee should be heard and the
circumstances objectively considered. [795B-795D]
785
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1664 of
1974.
Appeal by Special Leave from the judgment and order
dated the 18th December, 1973 of the Kerala High Court in
original Petition No.860 of 1973 and
Civil Appeals Nos. 891-892 of 1975
Appeal by special leave from the judgment and order
dated the 25th January, 1974 of the Rajasthan High Court in
S.B. Civil Writ Petitions Nos. 352 & 1826 of 1971
respectively.
S. N. Prasad, for the appellants (in all the appeals).
.
S. M. Jain, V. S. Dave and Inder Makwana, for the
respondent (In C.A. No. 891/75)
The Judgment of the Court was delivered by
FAZAL ALI, J.-Civil Appeal Nos. 1664 of 1974 and 891 of
1975 are appeals by special leave directed against the
judgments of the Kerala High Court dated December 18, 1973
and the Rajasthan High Court dated January 25, 1974,
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respectively allowing the writ petitions filed before the
High Courts by the respondents concerned. Civil Appeal No.
892 of 1975 has also been filed against the judgment of the
Rajasthan High Court dated January 25, 1974 with respect to
the respondent Abdul Hamid whose petition was allowed by the
same judgment of the High Court dated January 25, 1974,
which was decided in favour of the respondent Narsing. It
would thus appear that the cases of the respondents Narsingh
and Abdul Hamid had been decided by one common judgment of
the High Court of Rajasthan.
It was agreed at the Bar that as the points involved in
all the three cases arc the same, they may be disposed of by
one common judgment. We, therefore, propose to dispose of
all the three cases by one common judgment indicating,
however, the facts of each individual case, wherever
necessary.
As regards Civil Appeal No. 1664 of 1974 the respondent
T.R. Challappan was a Railway-Pointsman working at Irimpanam
on Olavakkot Division of the Southern Railway. On August 12,
1972 at about 3-30 P.M. he was arrested at the olavakkot
railway station
platform for disorderly drunken and indecent behavior and a
criminal case under s. 51(A) of the Kerala Police Act was
registered against him After due investigations the challan
was presented before the Sub-Magistrate, Palghat who after
finding the respondent guilty instead of sentencing him
released him on Probation under s. 3 of the Probation of
offenders Act. After the respondent was released the
Disciplinary Authority of the Department by its order dated
January 3, 1973 removed him from service in view of the
misconduct which led to the conviction of the respondent on
a criminal charge under s. 51(A) of the Police Act. The
order removing the respondent from service merely shows that
it proceeded on the basis of the
786
conviction of the accused in the criminal case and there is
nothing A to show that the respondent was heard before
passing the order. The Kerala High Court held that as the
respondent was released by the criminal court and no penalty
was imposed on him, therefore, r. 14(1) under which the
respondent was removed from service did not in terms apply.
The High Court accordingly quashed the order passed by the
Disciplinary Authority and allowed the writ petition.
In Civil Appeal No. 891 of 1975 the respondent Narsingh
was working as a Railway Khallasi working at the Railway
Workshop at Jodhpur and was found to be in possession of
stolen copper weighing 4 Kilos and 600 Grammes. The
respondent was prosecuted and was ultimately,. convicted by
the Trial Magistrate under s. 3 of the Indian Railway
Property (Unlawful Possession) Act, 1966. On appeal the
learned Additional Sessions Judge, Jodhpur, while
maintaining the conviction of the respondent set aside the
sentence and released him on probation under the provisions
of the Probation of offenders Act. On the basis of the order
of conviction passed by the Criminal Court the Assistant
Personnel officer (W), who was the Disciplinary Authority
removed the respondent from service by his order dated
February 26, 1971 and the departmental appeal against this
order was eventually rejected. Thereafter the respondent
moved the High Court in its writ jurisdiction and the
petition was allowed by the High Court and the order of
removal from service was quashed by the High Court of
Rajasthan.
In Civil Appeal No. 892 of 1975 the respondent Abdul
Hamid was a second fireman at the Railway Workshop at
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Jodhpur and he was prosecuted and ultimately convicted under
s. 420 of the Indian Panel Code by the Special Magistrate,
Jaipur by his order dated September 9, 1970. The Magistrate,
however, instead of sentencing him ordered him to be
released on probation under the provisions of the Probation
of offenders Act. The Assistant Mechanical Engineer by his
order dated February 3, 1971, removed the respondent from
service on the ground of his conviction by a criminal court
and the departmental appeal against this order filed by the
respondent was rejected on March 2, 1971. Thereafter the
respondent moved the Rajasthan High Court under Art. 226 of
the Constitution and the High Court quashed the order by
which the respondent was removed from service-hence the
appeal by special leave by the Union of India against the
judgment of the Rajasthan High Court.
A close analysis of the facts of the cases of each of
the respondents would doubtless reveal that the points
involved in the three cases are almost identical, though the
grounds on which the respective High Courts leave proceeded
may be slightly different. Mr. S. N. Prasad appearing for
the appellants in all the three cases raised three points
before us: H
(1) That s. 12 of the Probation of offenders Act
con templates an automatic disqualification
attached to the conviction and not an
obliteration of the misconduct
787
of the accused so as to debar the
Disciplinary Authority from imposing
penalties under the Rules against an employee
who has been convicted for misconduct.
(2) Rule 14 of the Railway Servants (Discipline
and Appeal) Rules, 1968, is in terms similar
to proviso (a) to Art. 311(2) of the
Constitution and confers power on the
appointing authority to pass an order of
dismissal against an employee who is found
guilty of a criminal offence without giving
any further notice to the delinquent
employee. further, r. 14 does not in terms
contemplate that the appointing authority
will consider the penalty after either
hearing the accused or after ordering special
inquiry.
(3) That in the absence of any provision similar
to r. 14 the Government is entitled. in the
exercise of its executive power, to terminate
the services of. the employee who has been
convicted of a criminal charge without any
further departmental inquiry.
Learned counsel appearing for the respondents in Civil
Appeal No. 891 of 1975 as also Civil Appeal No. 892 of 1975
contested the contentions raised by the counsel for the
appellants and submitted that the judgment of the High Court
laid down the correct law and that the mere fact that the
delinquent employee has been convicted of a criminal charge
cannot ipso facto result in his automatic dismissal from
service.
We have given our earnest consideration to the
arguments advanced before us by counsel for the parties. To
begin with, the Kerala High Court appears to have allowed
the writ petition solely on the ground that the order of the
Magistrate releasing the respondent T. R. Challappan on
probation did not amount to imposition of penalty as
contemplated by r. 14 of the Railway Servants (Discipline
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and Appeal) Rules, 1968-hereinafter called ’the Rules of
1968’, and therefore the order passed by the Disciplinary
Authority was illegal. In order to understand it, it may be
necessary to examine the scope and object of r. 14 of the
Rules of 1968 which will also throw a great light on the
second point which has been dealt with at great length by
the Rajasthan High Court, namely the import of the closing
part of r. 14 where the disciplinary authority has to
consider the circumstances of the case before making any
order
In the instant case we are concerned only with clause
(1) of r. 14 of the Rules of 1968 which runs thus:
"Notwithstanding anything contained in rules 9 to
13 .-
(1) where any penalty is imposed on a railway
servant on the ground of conduct which has
led to his conviction on a criminal charge,
788
the disciplinary authority may consider the
circumstances of the case and make such
orders thereon as it deems fit. "
The word penalty imposed on a railway servant, in, our
opinion, does not refer to a sentence awarded by the Court
to the accused on his conviction, but, though not happily
worded it merely indicates the nature of the penalty
impossible by the disciplinary authority if the delinquent
employee has been found guilty of conduct which has led to
his conviction of a criminal charge. Rule 14 of the Rules of
1968 appears in Part IV which expressly contains the
procedure for imposing penalties. Further more, r. 14 itself
refers to rr. 9 to 13 which contain the entire procedure for
holding a departmental inquiry. Rule 6 of Part III gives the
details regarding the major and minor penalties. Finally r.
14(1) merely seeks to incorporate the principle contained in
proviso (a) to Art. 311(2) of the Constitution which runs:
thus
"(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank except after
an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being
heard in respect of o, those charges and where it is
proposed, after such inquiry, to impose on him any such
penalty, until he has been given reasonable opportunity
of making representation of the penalty proposed, but
only on the basis of the evidence adduced during such
inquiry:
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced
in. rank on the ground of conduct which has led to
his conviction on a criminal charge; "
An analysis of the provisions of Art. 311(2) extracted above
would clearly show that this constitutional guarantee
contemplates three stages of departmental inquiry before an
order of dismissal, removal or reduction can be passed,
namely, (1) that on receipt of a complaint against a
delinquent employee charges should be framed against him and
a departmental inquiry should be held against him in his
presence; (ii) that after the report of the departmental
inquiry is received he appointing authority must come to a
tentative conclusion regarding the penalty to be imposed on
the delinquent employee; and (iii) that before actually
imposing the penalty a final notice to the delinquent
employee should be given to show cause why the penalty
proposed against him be not imposed on him. Proviso (a) to
Art. 311(2), however, completely dispenses with all the
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three states of departmental inquiry when an employee is
convicted on a criminal charge. The reason for the proviso
is that in a criminal trial the employee has already had a
full and complete opportunity to contest the allegations
against him and to make out his defence. In the criminal
trial charges are framed to give clear notice regarding the
allegations made against the accused, secondly, the
witnesses are examined and cross-examined in his presence
and by him; and thirdly, the accused is given full
opportunity
789
to produce his defence and it is only after hearing the
arguments that the Court passes the final order of
conviction or acquittal. in these circumstances, therefore,
if after conviction by the Court a fresh departmental
inquiry is not dispensed with, it will lead to unnecessary
waste of time and expense and a fruitless duplication of the
same proceedings all over again. it was for this reason that
the founders of the Constitution thought that where once a
delinquent employee has been convicted of a criminal offence
that should be treated as a sufficient proof of his
misconduct and the disciplinary authority may be given the
discretion to impose the penalties referred to in Art.
311(2), namely, dismissal, removal or reduction in rank. It
appears to us that proviso (a) to Art. 311(2) is merely an
enabling provision and it does not enjoin or confer a
mandatory duty on the disciplinary authority to pass an
order of dismissal, removal or reduction in rank the moment
an employee is convicted. This matter is left completely to
the discretion of the disciplinary authority and the only
reservation made is that departmental inquiry contemplated
by this provision as also by the Departmental Rules is
dispensed with. In these circumstances, therefore, we think
that r. 14(1) of the Rules of 1968 only incorporates the
principles enshrined in proviso (a) to Art. 311(2) of the
Constitution. The words ’where any penalty is imposed’ in r.
14(1) should actually be read as ’where any penalty is
impossible’, because so far as the disciplinary authority is
concerned it cannot impose a sentence. it could only impose
a penalty on the basis of conviction and sentence passed
against the delinquent employee by a competent court.
Furthermore the rule empowering the disciplinary authority
to consider circumstances of the case and make such orders
as it deems fit clearly indicates that it is open to the
disciplinary authority to impose any penalty as it likes. In
this sense, therefore, the word ’penalty’ used in r. 14(1)
of the Rules of 1968 is relatable to. the penalties to be
imposed under the Rules rather than a penalty given by a
criminal court.
Another important aspect of the matter is that a
criminal court after. conviction does not impose any penalty
but passes a sentence whether it is one of fine, or
imprisonment or whipping or the like. The Penal Code has
been on the statute book for a large number of years and the
rule-making authority was fully aware of the significance of
the words ’conviction’ and ’sentence’ and if it really
intended to use the word ’penalty’ as an equivalent for
’sentence’ then it should have used the word ’sentence’ and
not ’penalty. In these circumstances we are satisfied that
the word ’penalty’ has. been used in juxtaposition to the
other connected provisions of the Rules appearing in the
same Part The view of the Kerala High Court, there fore.
that as the Magistrate released the delinquent employee on
probation no penalty was imposed as contemplated by r.
14(1) of the Rules of 1968 does not appear to us to be
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legally correct and must be overruled Nevertheless we would
uphold the order of the Kerala High Court. On the ground.
that the last Dart of r. 14 of the Rules of 1968 which
requires the‘ consideration of the circumstances
790
not having been complied with by the disciplinary authority,
the A order of removal from service of the delinquent
employee was rightly quashed.
This brings us to the consideration of two inter-
connected questions, namely, as to what is the effect of the
order of the Magistrate releasing the accused on probation
and the effect of s. 12 of the Probation of Offenders Act.
It was suggested by the respondents that if the Magistrate
does not choose, after convicting the accused to pass any
sentence on him, but releases him on probation then the
stigma of conviction is completely washed out and
obliterated and, therefore, r. 14(1) of the Rules of 1968
will not apply in terms. We are, however, unable to agree
with this somewhat broad proposition. A perusal of the
provisions of the Probation of offenders Act, 1958, clearly
shows that the mere fact that the accused is released on
probation does not obliterate the stigma of conviction. The
relevant portion of the Probation of offenders Act, 1958,
hereinafter referred to as ’the Act’ runs thus .
" .... notwithstanding anything contained in any
other law for the time being in force the Court may,
instead of sentencing him to any punishment or
releasing him on probation of good conduct under-
section 4, release him after due admonition."
Similarly the relevant part of s. 4(1) of the Act runs thus:
" .... notwithstanding anything contained in any
other law for the time being in force, the Court may,
instead of sentencing him at once to any punishment,
direct that he be released on his entering into a bond,
with or without sureties, to appear and receive
sentence when called upon during such period, not
exceeding three years, as the Court may direct, and in
the mean, time to keep the peace and be of good
behaviour."
Sections 9(3) & (4) of the Act read as under:
"9. (3) If the Court, after hearing the case is
satisfied that the offender has failed to observe any
of the conditions of the bond or bonds entered into by
him, it may forthwith-
(a) sentence him for the original offence; or
(b) where the failure is for the first time,
then, without prejudice‘ to the continuance
in force of the bond, impose upon him a
penalty not exceeding fifty rupees.
(4)If a penalty imposed under clause (b) of sub-
section (3) is not paid within such period as the Court
may fix, the Court may sentence the offender for the
original offence :"
These provisions would clearly show that an order of release
on probation comes into existence only after the accused is
found guilty
791
and is convicted of the offence. Thus the conviction of the
accused or the finding, of the Court that he is guilty
cannot be washed out at all because that is the sine qua non
for the order of release on probation of the offender. The
order of release on probation is merely in substitution of
the sentence to be imposed by the Court. This has been made
permissible by the statute with a humanist point of view in
order to reform youthful offenders and to prevent them from
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becoming hardened criminals. The provisions of s. 9(3) of
the Act extracted above would clearly show that the control
of the offender is retained by the criminal court and where
it is satisfied that the conditions of the bond have been
broken by the offender who has been released on probation,
the Court can sentence the offender for the original
offence. This clearly shows that the factum of guilt on the
criminal charge is not swept away merely by passing the
order releasing the offender on probation. Under ss. 3, 4 or
6 of the Act, the stigma continues and the finding of the
misconduct resulting in conviction must be treated to be, a
conclusive proof. In these circumstances, therefore we are
unable to accept the argument of the respondents that the
order of the Magistrate releasing the offender on probation
obliterates the stigma of conviction.
Another point which is closely connected with this
question is as to the effect of s. 12 of the Act which runs
thus:
"Notwithstanding anything contained in any other
law, person found guilty of an offence and dealt with
under he provisions of section 3 or section 4 shall not
suffer disqualification, if any, attaching to a
conviction of an offence under such law."
It was suggested that s. 12 of the Act completely
obliterates the effect of any conviction and wipes out the
disqualification attached to a conviction of an offence
under such law. This argument, in our opinion, is based on a
gross misreading of the provisions of s. 12 of the Act. The
words "attaching to a conviction of an offence under such
law" refer to two contingencies: (1) that there must be a
disqualification resulting from a conviction; and (ii) that
such disqualification must be provided by some law other
than the Probation of offenders Act. The Penal Code does not
contain any such disqualification. Therefore, it cannot be
said that s. 12 of the Act contemplates an automatic
disqualification attaching to a conviction and obliteration
of the criminal misconduct of the accused. it is also
manifest that disqualification is essentially different in
its connotation from the word ’misconduct’. Disqualification
cannot be an automatic consequence of misconduct unless the
statute so requires. Proof of misconduct may or may not lead
to disqualification, because this matter rests on the facts
and circumstances of a particular case or the language in
which the particular statute is covered. In the instant case
neither Art. 311(2) proviso (a) nor r. 14(1) of the Rules of
1968 contain any express provision that the moment a
792
person is found guilty of a misconduct on a criminal charge
he will have to be automatically dismissed from service.
Article 311 (2) proviso (a) is an enabling provision which
merely dispenses with the various stages of the departmental
inquiry and the show cause notice. Rule 14 despite
incorporating the principle of proviso (a) to Art. 311(2)
enjoins on the discriplinary authority to consider the
circumstances of the case before passing any order. Thus, in
our opinion, it is a fallacy to presume that the conviction
of a delinquent employee simpliciter without any thing more
will result in his automatic dismissal or removal from
service.
It was, however, suggested that r. 14(1) of the Rules
of 1968 is the provision which contains the disqualification
by dispensing with the departmental inquiries contemplated
under rr. 9 to 13 of the said Rules. This cannot be the
position. because as we have already said r. 14(1) only
incorporates the principle of proviso (a) to Art. 311(2). If
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s. 12 of the Probation of offenders Act completely wipe out
the disqualification contained in Art. 311(2) proviso (a)
then it would have become ultra vires as it would have come
into direct conflict with the provisions of the proviso (a)
to Art. 311(2). In our opinion, however, s. 12 of the Act
refers to only such disqualifications as are expressly
mentioned in other statutes regarding holding of offices or
standing for elections and so on. This matter was considered
by a number of High Courts and there is a consensus of
judicial opinion on this point that s. 12 of the Act is not
an automatic disqualification attached to the conviction
itself.
In R. Kumaraswami Aiyar v. The Commissioner Municipal
Council, Tiruvannamalai and another(1) Rajagopala Ayyangar,
J., as he then was, observed as follows.
"If for instance the petitioner is dismissed from
service because he has been found guilty of an offence
involving moral turpitude it cannot be said that he is
suffering from a disqualification attaching to a
conviction. What S. 12-A has in view is an automatic
disqualification flowing from a conviction and not an
obliteration of the misconduct of the accused. In my
judgment the possibility of disciplinary, proceedings
being taken against a Person found guilty is not a
disqualification attaching to the conviction within the
meaning of S. 12-A of the Probation of offenders Act."
The same view was endorsed by the Full Bench of the Punjab
and Haryana High Court in Om Prakash v. The Director Postal
Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala
and other(2) where it was observed:
"What Section 12 removes is a disqualification
attaching to a conviction. In my opinion neither
liability to be departmentally punished for misconduct
is a disqualifica-
(1) 1957 Cri. L, J. 255, 256. (2) A. T. R. 1973 Punjab
1, 4
793
tion, nor it attaches to the conviction.
"Disqualification" its ordinary dictionary meaning
connotes something that disqualifies or incapacitates.
To disqualify a person for a particular purpose means
to deprive that person of the qualities or conditions
necessary to make him fit for that purpose."
It was further observed by the High Court:
" The other reason why Section 12 of the Act does
not help the petitioner is that the departmental
proceedings are not attached to the conviction of the
offence. Departmental proceedings are not taken because
the man has been convicted. The proceedings are
directed against the original misconduct of the
Government servant. .......... No part of Section 12 is
intended to exonerate a Government servant of his
liability to departmental punishment for misconduct.
This provision does not afford immunity against
disciplinary proceedings for the original misconduct.
What forms basis of the punishment is the misconduct
and not the conviction.
A Full Bench of the Delhi High Court in Director of
Postal Services and Anr. v. Daya Nand(1) held the same view
and observed thus:
" Firstly, the ordinary meaning of ’qualification’
is the possession of some merit or quality which makes
the possessors eligible to apply for or to get some
benefit. The word ’disqualification’ used in section 12
has the opposite meaning It imposes a disability on the
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person to whom the disqualification is attached in
applying for or getting such benefit. The
disqualification contemplated by section 12 is
something attached to the conviction, namely, something
which is a consequence or the result thereof. Instances
of such disqualification may be found in a statute
statutory rule or in administrative practice. Under
section 108 of the Representation of People Act, 1951,
a person is disqualified to he a member of Parliament
or State Legislature if he is convicted of certain
offences. It would also be an administrative
consideration in entertaining applications for jobs or
for grant of licences to disfavour an applicant a
convict. Such a disqualification is removed by section
12. This meaning of disqualification does not include
the reason who a hearing prior to punishment is
dispensed with by proviso (a) to Article 311(2) of the
Constitution. Secondly the object of section 12 is to
remove a disqualification attached to conviction. It
does not ’go beyond it ’
(1) 1972 S.L.R., 325.341
794
The decision in R. Kumaraswami Aiyar’s case (supra) was
followed in a later case in Embaru v. Chairman, Madras Port
Trust.(1)
The Andhra Pradesh High Court in Akella Satyanarayana
Murthy v. Zonal Manager, Life Insurance Corporation of
India, Madras(2) appears to have taken the same view where
it was observed thus:
" .. we are of the view that what Section 12 of
the Central Act has in view is an automatic
disqualification flowing from a conviction and not an
obliteration of the misconduct of the official
concerned. The disciplinary authority is not precluded
from proceeding under Regulation 89(4) ."
The Madhya Pradesh High Court also took the same view
in Premkumar v. Union of India and others(3) where it was
observed:
" We have heard the learned counsel at some length
but we find ourselves unable to agree with the above
contention. The relevant words of the section are
’shall not suffer disqualification, if any, attaching
to a conviction of an offence under such law’. The
words can only be read so as to remove the
disqualification which under some law may attach to a
person on account of his conviction. For instance, if a
person is convicted of an offence, he is disqualified
from standing for election to the Central or State
Legislatures. But if such a person is given benefit
under the Probation of offenders Act then by virtue of
Section 12 of that Act the disqualification for that
purpose (standing for election) will stand removed."
A Division Bench of the Delhi High Court in Iqbal Singh
v. Inspector General of Police, Delhi & Ors.(4) took a
contrary view but that decision has been overruled by a
later decision of the Full Bench of the same High Court in
Director of Postal Services v. Daya Nand (Supra) to which we
have already referred to.
Even the Rajasthan High Court in its judgment
concerning Civil Appeal No. 891 of 1975 has endorsed the
view taken by the Madras High Court and followed by the
other High Courts. We find ourselves in complete agreement
with the view taken by the Madras High Court as referred to
above and as endorsed by the Delhi, Rajasthan, Punjab,
Andhra Pradesh and Madhya Pradesh High Courts.
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We now come to the third point that is involved in this
case, namely, the extent and ambit of the last part of r. 14
of the Rules of 1968. The concerned portion runs thus:
"The disciplinary authority may consider the
circumstances of the case and make such orders thereon
as it deems fit: "
(1) [1963] I L. L.J.49. (2) AIR. 1969 A.P. 371,373
(3) [1971] Lab. & Ind. Cases 823,824 (4) A.1. R.1970
M.P.-240(1971)
2 S.L.R 257
795
In this connection it was contended by the learned counsel
for the appellants that this provision does not contemplate
a full-dress or a fresh inquiry after hearing the accused
but only requires the disciplinary authority to impose a
suitable penalty once it is proved that the delinquent
employee has been convicted on a criminal charge. The
Rajasthan High Court in (civil Writ Petition No. 352 of 1971
concerning Civil Appeal No. 891 of 1975 has given a very
wide connotation to the word ’consider’ as appearing in r.
14 and has held that the word ’consider’ is wide enough to
require the disciplinary authority to hold a detailed
determination of the matter. We feel that we are not in a
position to go to the extreme limit to which the Rajasthan
High Court has, gone. The word ’consider’ has been used in
contradistinction to the word ’determine’. The rule-making
authority deliberately used the world ’consider’ and not
’determine’ because the word ’determine’ has a much wider
scope. The word ’consider’ merely connotes that there could
be active application of the mind by the disciplinary
authority after considering the entire circumstances of the
case in order to decide the nature and extent of the penalty
to be imposed on the delinquent employee on his conviction
on a criminal charge. This matter can be objectively
determined only if the delinquent employee is heard and is
given a chance to satisfy the authority regarding the final
orders that may be passed by the said authority. In other
words, the term ’consider’ postulates consideration of all
the aspects, the pros and cons of the matter after hearing
the aggrieved person. Such an inquiry would be a summary
inquiry to be held by the disciplinary authority after
hearing the delinquent employee. It is not at all necessary
for the disciplinary authority to order a fresh departmental
inquiry which is dispensed with under r. 14 of the Rules of
1968 which incorporates the principle contained in Art.
311(2) proviso (a). This provision confers power on the
disciplinary authority to decide whether in the facts and
circumstances of a particular case what penalty if at all,
should be imposed on the delinquent employee. It is obvious
that in considering this matter the disciplinary authority
will have to take into account the entire conduct of the
delinquent employee, the gravity of the misconduct committed
by him, the impact which his misconduct is likely to have on
the administration and other extenuating circumstances or
redeeming features if any present in the case and so on and
so forth. It may be that the conviction of an accused may be
for a trivial offence as in the case of the respondent T. R.
Challappan in Civil Appeal No. 1664 of 1974 where a stern
warning or a fine would have been sufficient to meet the
exigencies of service. It is possible that the delinquent
employee may be found guilty of some technical offence, for
instance, violation of the transport rules or the rules
under the Motor Vehicles Act and so on, where to major
penalty may be attracted. It is difficult to lay down any
hard and fast rules as to the factors which the disciplinary
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authority would have to consider, but I have mentioned some
of these factors by way of instances which are merely
illustrative and not exhaustive. In other words, the
position is that the conviction of the delinquent employee
would be taken as sufficient proof of misconduct and then
796
the authority will have to embark upon a summary inquiry as
to the nature and extent of the penalty to be imposed on the
delinquent employee and in the course of the inquiry if the
authority is of the opinion that the offence is too trivial
or of a technical nature it may refuse to impose any penalty
in spite of the conviction. This is very salutary provision
which has been enshrined in these Rules and one of the
purposes for conferring this power is that in cases where
the disciplinary authority is satisfied that the delinquent
employee is a youthful offender who is not convicted of any
serious offence and shows poignant penitence or real
repentence he may be dealt with as lightly as possible. This
appears to us to be the scope and ambit of this provision.
We must, however, hasten to add that we should not be
understood as laying down that the last part of r. 14 of the
Rules of 1968 contains a licence to employees convicted of
serious offences to insist on reinstatement. The statutory
provision referred to above merely imports a rule of natural
justice in enjoining that before taking final action in the
matter the delinquent employee should be heard and the
circumstances of the case may be objectively considered.
This is in keeping with the sense of justice and fair-play.
The disciplinary authority has the undoubted power after
hearing the delinquent employee and considering the
circumstances of the case to inflict any major penalty on
the delinquent employee without any further departmental
inquiry if the authority is of the opinion that the employee
has been guilty of a serious offence involving moral
turpitude and, therefore, it is not desirable or conducive
in the interests of administration to retain such a person
in service.
Mr. S. N. Prasad appearing for the appellants submitted
that it may not be necessary for the disciplinary authority
to hear the accused and consider the matter where no
provision like r. 14 exists. because in such cases the
Government can, in the exercise of its executive powers,
dismiss, remove or reduce in rank any employee who has been
convicted of a criminal charge by force of proviso (a) to
Art 311(2) of the Constitution. In other words, the argument
was that to cases where proviso (a) to Art. 311(2) applies a
departmental inquiry is completely dispensed with and the
disciplinary authority can on the doctrine’ of pleasure
terminate the services of the delinquent employee. We
however refrain from expressing any opinion on this aspect
of the matter because the cases of all the three‘
respondents before us are cases which clearly fall within r.
14 of the Rules of 1968 where they have been removed from
service without complying with the last part of r. 14 of the
Rules of 1968 as indicated above. In none of the cases has
the disciplinary authority either
797
considered the circumstances or heard the delinquent
employees on the limited point as to the nature and extent
of the penalty to be imposed if at all. On the other hand in
all these cases the disciplinary authority has proceeded to
pass the order of removal from service straightaway on the
basis of the conviction of the delinquent employees by the
criminal courts.
For the reasons given above the High Courts of Kerala
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and Rajasthan were, in the Circumstances, fully justified in
quashing the orders of the disciplinary authorities removing
the respondents from service. The appeals therefore fail and
are accordingly dismissed but in view of somewhat unsettled
position of law on the question involved we leave the
parties to bear their own costs.
V.P.S. Appeals dismissed.
798