KULDEEP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE six petitioners before us are Railway servants who were removed/dismissed from service because each one of them was convicted for an offence by a criminal court. They complain that notwithstanding the fact that they were given the benefit of the provisions of the Probation of Offenders Act (hereinafter called 'the Probation Act') they have been removed or dismissed. They have challenged their order of removal/dismissal on the grounds that it was contrary to the provisions of Section 12 of the Probation Act or at any rate inconsistent with the objects of that statute and that it is violative of the principles of natural justice as they were never heard before removal or dismissal. The learned Single Judge, before whom these petitions were presented, found it necessary to refer these cases to a Division Bench because Tyagi, J. in S.B. Civil Writ Petitions Nos. 481, 482 516, 517 and 600 of 1966 by his judgment dated December 19, 1969, had held that even in a case coveted by Clause (c) of the proviso to Article 311(2) of the Constitution of India the principles of natural justice had to be complied with Learned Single Judge who has referred these cases to us felt that in view of the Full Bench decisions of the Delhi and the Punjab High Courts, to which we shall presently refer, the view taken by Tyagi, J. requires reconsideration.

(2.) TO eliminate repetition we first propose to deal with general arguments which have been urged in all the cases Mr. Dave, leraned Counsel for one of the petitioner, urged that Section 12 of the Probation Act has removed all disqualifications attaching to a conviction; that it is a mile -stone in the evolution of penology intended to reform and rehabilitate an offender and if a conviction was treated as a disqualification for holding a civil post it would be contrary to the very objects of the Probation Act Once a criminal court had considered the circumstances of the case including the nature of the offence and the character of the offender and extended the benefit of the Probation Act the departmental authority, urged the counsel, should respectfully agree rather than throwing the offender out or employment.

(3.) LET us now examine some of the decided cases on this subject by various High Courts. The Madras Probation of Offenders Act, 1936 has Section 12A which is substantially the same as Section 12 of the Probation Act. R, Kumaraswami Aiyar v. The Commissioner, Municipal Council, Tiruvannamalai 1953 Cr. LJ 255 was a case of an Upper Division Clerk in a Municipal Office at Tiruvannamalai. He was charged for the offence of cheating and was convicted but instead of being sentenced in view of his youth he was given the benefit of Section 4(1) of the Madras Probation of Offenders Act. The Municipal Commissioner issued a memo to the petitioner directing him to show cause why his service should not be terminated. The petitioner submitted an explanation and pleaded Section 12A of the Probation of Offenders Act as a bar to disciplinary action. The petitioner moved the High Court of Madras for a writ of prohibition and Rajagopala Ayyangar, J. observed: In my view Section 12A is incapable of the construction sought to be put upon it on behalf of the petitioner. What the section says is 'shall not suffer any disqualification attaching to a conviction' & there is a vital distinction between a disqualification attaching to a conviction & the taking of proceedings consequent upon such a conviction. What Section 12A 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 disqualification attaching to the conviction within the meaning of Section 12A of the Probation of Offenders Act. In Embaru v. Chairman, Madras Port Trust 1963 (1) LLJ 49. Embaru was a fitter employed in the Madras Port Trust. He was convicted under Section 420 IPC (cheating). He was released Under Section 4 (1) of the Madras Probation of Offenders Act. He was dismissed on account of the conduct which led to his conviction. He presented a petition under Article 226 of the Constitution of India and Veeraswami, J., as he then was, observed that the true object of Section 12A of the Act was that a person released on prohibition shall be free from any disqualification attaching to a conviction for the offence concerned. But this did not mean that a probation order is a bar to an order of dismissal from service. The dismissal was not one attaching to a conviction and it did not automatically flow from it. It was only a consequence which was attached to or flowed from a conviction that was within the ambit of Section 12A and not any result which may be based upon a conviction The reasoning in Kumara -swami's case 1953 Cr. LJ 255 was adopted. The view taken by Veeraswami, J. was confirmed by a Division Bench in an appeal Under Section 15 of the Letters Patent. It is reported as P. Embaru v. The Chairman Madras Port Trust (1964) 2 MLJ 349.