Central Administrative Tribunal - Mumbai
Samunder Om Singh vs M/O Defence on 4 June, 2018
1 g OA No.429/2017 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH , MIJ1~mAI. Dated this Monday, the 04" day of June, 2018 CORAM: HON"BLE SHRI ARVIND J. RQHEE, MEMBER (J) HONBLE sum R. VIJAYKUMAR, MEMBER (A) Samander Om Singh, Age 33 years, Ex- Assistant Fireman, R/at Ex. P.No. 70213-K, R/at R-1, NCH Colony, Kanjarmarg (PW, ~ Mamba 400 078. .. Applicant. (By Advocate Shri Vicky Nagrani) . A Versas -
Z. Union ofIndia, Throagh the Secretary,
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Ministry ofDefence, South Block, E
New Delhi Z10 00]. E
2. The Chiefofthe Naval Stafiqntegrated Headquarter for DCP) M'inisz"ry ofDefence E (Navy) Dte of Civilian Personnel D-OO Wing, Sena Bhawan, New Delhi U0 00.7.
3. The Flag Oflicer Commanding in Chiefi Western Naval Command (HQ) Shahid Bhagat Singh Road, Mambai 23.
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4. The Admiral Saperintendent, Naval Dockyard, E E Mumbai 400 023. ..Respondents. (By Advocate Shri A.M".Sez'hna) ,5 E 0Acfileda9n ll¢0712QlZ ii Qrdeaaaesenned en 13@Qia2Ql8 011 0 4-E06-E2213 Q,, , ,B,_,,_D, E EB M E PER : SHRI ARVIND J. ROHEE, MEMBER (JUDICIAL) E The applicant , who was E working eus.Assistant Fireman j11"the E E office of Admiral Superintendent, Naval Dockyard, Mumbai under in _~_,__..
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2 OA No.429/2017
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respondent No . ii , approached this
Tribunal under Section 19 of the
Administrative 'Dribunals tun; 1985,
since aggrieved by time order passed by' the Disciplinary' .Authority thereby dismissing'ltUn from service on the strength of his conviction in a criminal prosecution, which order is confirmed by the Appellate Authority Emmi modified ix) that of removal from service by the Revisional Authority. The following reliefs are, therefore, sought :~ "8(a).. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and afler examining the same, quash and set aside the impugned order dated 11.06.2015, 30.06.2016 and order dated 02. 06.2017 with all consequential benefits. -
(b). This Hon'ble Tribunal may further be pleased to direct the Respondents to reinstate the Applicant w.e.f 03.11.2015 with all consequential benefits.
(c). Costs of the application be providedfor.
' (d). Any other andfurther order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed. "
2. The applicant was appointed as Assistant Fireman on 03.11.2008. '-'.===>-.;-.;-_;-=-_.-.-.-
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He continued. to work in the said capacity till Ina was dismissed from service. It is stated that on account imf his .language euui region to which he belongs, he was subjected ix) harassment kqr his colleagues and officers since the year 2009. Ihi is also stated that he was falsely implicated in a criminal prosecution instituted on the basis of'a complaint in Criminal case No.58/PW/2013 in the Court of Additional Chief _ Metropolitian Magistrate, 39" Court Mumbai for the offence punishable under Section 324, 323 and 504 of Indian Penal Code. The applicant was released on bail and he faced the trial. However, by the order dated l0.09.20l4 (Annexure A~4), he was found guilty" cxf the offence punishable under Section 324 of IPC and was sentenced to suffer rigorous imprisonment for four months and fine cm? Rs.3,000/~, ja1 default "U3 suffer simple imprisonment for one E §§i&b I -,,... .._.._.___........_.........................------ _ _ _ _ _ _ _ _ _ _ _ _ \ _ _ _ XX _______ _ _ _ _ _ _ _ _ __ -I .--.-..-|:_:_:..-.:::._._..~..._.._-._:;'.:...____...........::_:............q..,_ \---.----.---/=-'§=.':5.<. ./3,-. ::--------- -- 3,. V ---- -- _€ X ->> 5? 4 OA No.429/2017 month.
3. On the strength of the aforesaid conviction, the respondent No.4 served a show cause notice dated. ll.05.20l5 (Annexure..A~5) on time applicant. as ix; why Ina should not be dismissed from service. The applicant responded time said notice on 25.05.2015 (Annexure AF6) stating that he has challenged the order of conviction before the Appellate Session Court and the matter is pending. However, the impugned order dated ll.06.20l5 (Annexure A--
l) was passed. by the Disciplinary Authority (respondent No.4) and dismissed the applicant from service in exercise of the powers conferred under Rule l9(l) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short "CCS (CCA) Rules").
4. The applicant then jpreferred appeal against the said order to the respondent. No.3 on 01.08.2015 (Annexure AA7). It ins stated that e. §\\;>
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Nx E=%3~.i§E5 E 5 OA N0.429/2017 during pendency of time said appeal, the Session Court Mumbai vide order dated 03.11.2015 (Annexure 'A-8) allowed. the appeal against conviction and although the order of conviction was maintained, the applicant vans released (n1 probation of immmi behaviour int extending benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958 (for short 'PO.Act').
5. Thereafter, on the strength of the aforesaid order of the Session Court, the applicant submitted.&1 letter dated 23.11.2015 (Annexure .A--9) to the Disciplinary Authority' for Ina; reinstatement i11 service. However, since nothing was heard, ea reminder' representation dated 28.04.2016 (Annexure A~10) was forwarded.
6. _ In the meantime, the applicant inns challenged time order of dismissal passed kg: the Disciplinary" .Authorityy which. is 33 t confirmed. by """""""""""""E the """
Appellate 6 OA No.429/2017 Authority. This inns challenged i11 previous (Ni No.603/2016 before this Tribunal. However, vide order dated 23.08.2016, time said (Ni was withdrawn vmifli liberty ix) approach the Revisionary" .Authority. In pursuance of it, a Revision Petition dated 29.08.2016 Uuumnonm2.A~12) is preferred 13; the applicant ix) the respondent No.2. However, the said revision came to be dismissed by the impugned order dated 02.06.2017 (Annexure A=3) lmy modifying the order cxf dismissal 1x3 that of removal from serviced .Although the ground raised kqiijna applicant that he has been released on probation by the Session Court was considered, the order of dismissal was modified to that of removal holding that release cu1 probation amounts to conviction. -
7. It appears from. record. that the respondent No.3 has not passed any order (H1 the representation t dated 23.11.2015 (Annexure A~9) §:Ii%§\T§-ii<i?si§'i§§€i~i?§§€?§ET§i?_"
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submitted kn; the applicant for
reinstatement on the strength of the order passed. by" the Session Court \! G releasing lrhn cu1 probation axf good conduct. However, this aspect was considered by the Revisional Authority as stated above.
8. The impugned orders have been challenged on the following grounds as mentioned in the paragraph No . 5 of the OA . Those grounds are reproduced here for ready reference :--
"5(a). The impunged orders dated 11.06.2015, 30.06.2015 and 02.06.2017 are absolutely illegal and void.
(b). The Applicant submits that the impugned orders passed by the Respondents refusing to reinstate the Applicant in service is absolutely illegal and void. Although the Applicant was convicted by the Chief Judicial Magistrate of the oflence punishable under Section 324 IPC, the appeal of the Applicant has been partly allowed and the Applicant is released under the provisions ofProbation ofO]§'enders Act as well as Government of India instructions. Under Section 4 of the E Probation of Oflenders Act, 1958, the Court is powered to release an oflender \ on probation of good conduct after E looking into the nature of oflence and the character of the oflender. Thus the benefit of release on probation under Section 4 is granted only after the court is satisfied that the nature of oflence is 1 not serious and that his character is E ''''' /////--X? ~i?i:::*~-is flue or ii 8 OA No.429/2017 clean. These two aspects play an important role while deciding the penalty to be imposed under Rule 19 of CCS (CCA) Rules afier conviction of 1 Government servant. 1t is a settled law 1 1 that mere conviction does not 1 automatically entail or attract the 1 1 penalty of dismissal and that the 5 Disciplinary Authority is _required to 1 decide the nature of punishment afler 1 looking into the nature of the charge and character of the Government servant. Therefore once the nature of the offence and character of the oflender are certified by the Criminal Court, there is no question ofdismissing the government servant on the basis of 1 such conviction which ultimately leads 1 to release on probation ofgood conduct.
Secondly, Section 12 of the Probation of Ojfenders Act, 1958, provides as under :--
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"12. Removal of disqualification attaching to conviction :- Notwithstanding anything contend in any other law, the person found guilty of an ojfence and dealt with under the provisions of Section 3 or Section 4 shall not sujfer disqualification, any, attaching to a conviction of an oflence under such 1 law 1. 1 Therefore a government servant released on probation of good conduct under Section 4 cannot be made to sujfer the penalty of dismissal on the basis ofthe conviction.
(c) The Applicant further submits that under Government of India Instructions No.2(c) published under Rule 198 of the CCS (CCA) Rules (Dy.
Director General Vigil, P&T, D. O. No.3/16/71-DIHC-11 dt. 30.08.1971) a decision has been taken that the Disciplinary Authority is precluded under Section 12 of the Probation of Ojfenders Act fi/om dismissing / 1 removing an employee merely because ~- -".._...|.............._............_......................._...\ .__....,__ ___,_._: ......... ._.
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vris.ve\i%s.. an s E 9 011. No.-429/2017 he is convicted of an oflence. A copy of Government of India Instructions No.2(c) under Rule 19 is enclosed herewith and marked as Annexure A-14. Therefore as per the said instructions issued by the Government of India also the dismissal of the Applicant is not E maintainable in view of release of the Applicant under the provisions of Probation of Ofihnders Act.
(d). The Applicant further submits that the Respondent No.3 i. e. Appellate Authority have failed to apply his mind on the fact that the Applicant is released on probation despite the said fact was intimated to him well in advance while taking a decision as to whether the Applicant is to be reinstated in service or not. The Respondents have decided the case of the Applicant in a mechanical manner without appreciating the facts and circumstances in which the Applicant was convicted
(e). The Applicant further submits that in the case of Rcjbir V/s. State of Haryana, the Hon 'ble Supreme Court considered the fact that the Appellant was a Government Servant and that if the conviction and sentence were maintained he would loose his service. Afler taking into consideration the nature of ojfence and the character of the Appellant the Horfble Supreme Court maintained his conviction, but while releasing him on probation of good conduct under Section 4 of the Act, the Hon 'ble Supreme Court directed that in view of the peculiarfacts of the case, E the conviction should not a]j'ect his 1 service.
(79. In view of the provisions of Section 12 ofthe Probation of Offenders Act, the Government Servant, who has been dismissed on account ofconviction is entitled to reinstatement on his release on probation on good conduct under Section 4 ofthe Act. T'"'I.2:J-I-I:""'-'====""""'==1.:t;=.:-:-:I<;1i;;""""""""" \ """""""""""""""""""
E vu- 10 OA N0.429/2017 ' lg) The penalty of rernoval fi'Ot?'t service cannot be the antornatic and direct consequence of conviction of government servant. The Appellate Aathority is reg aired to go into the natnre of the ofence and the character of the Governrnent Servant. The satne yardstick is applied by the Criminal Coart while extending the benefit of Probation tinder the Probation of Ofienders Act, 1958. Once the nature of o]j"ence and character of offender are certified by the Crirninal Court while extending the benefit of probation, the Respondent are boand to talte into consideration the said two factors and reconsider the penalty of dismissal irnposed rnerely on account of conviction ofthe Government servant. I I I I I E I I I I :
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(h). The Respondents have not considered the fact and circ-antstances of the case of the Applicant and have rejected the request for reinstatennent in a mechanical rnanner. The Respondents have not taken into consideration the circan/zstances which are laid the conviction of the Applicant. Any said facts and circtanstances have been taken into consideration by the Hon'ble Sessions Conrt while releasing the Applicant on probation.
(i). _ The Applicant farther sabtnits that the Respondent No.2 without application ofrnind and being vindictive against the Applicant has rejected the request to reinstate the Applicant back in service. The Respondent No.2 has-
categorically accepted the fact that Section l2 itnposes bar on any action which intposes a disqaalfiication based 2 on conviction ofthe ofiender andfarther also accepts that it 2-nay not be appropriate to award penalty of distnissalfiwn service as it ntay act as a disqttal.t']'ication towards applying for fatare govt ernployee. Hovvever alerts the panishtnent to removal front service instead of disrnissal forrn service. The E Respondent have failed to consider the \ grounds as raised by the Applicant in 5 \" E ' ' >' r "t~Y<'»'-es? _ <* I' ... ... . .. ........ .......................................1:._._.._.._.:_.:1._:._.H._; J _ _ _ _ _ _ _ _ _ \ _ _ I ---- 2 1 E E I I :
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11 Oh. N0.429/2017 2 E the revision Petition. The Respondent I E E have not at all considered the Ojjice E:
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E Meinorandun-t relied noon by the E E Applicant. The Respondent have not E considered the fact and circumstances E of the case of the Applicant and have E rejected the request for reinstatement in a tnechanical rnanner The Respondents E have not taken into consideration the circumstances which laid to the E conviction of the Applicant. The E E Respondent No.2 has rnisinterpreted the 2 Section 4 and l2 of the probation of E ofienders Act. The Respondent No.2 have plainly stated that the facts of the E case ofRajbir are cotnpletely difi'erent I E without pointing out the said di/j'erence. The Respondent No.2 have erred in altering the punishtnent fiorn dismissal to reinoval frorn service. The punishment ofRemovalfi"orn service can be awarded only ajler conducting detailed enquiry as per CCS CCA Rules which is not at all conducted in the present case. Thus on this sole ground the Original Application deserves to be allowed."
In the OA, the following lnterim relief is also sought :~ "9. The Applicant subrnits that he have rnade out a pritna facie case for adrnission and grant of interim orders.
The Applicant has raised vital points in E E the present Original Application whereby challenging his order of rernoval fiotn E service. In such circurnstances, the respondents are required to be restrained E |:
EE fiont vacating the quarters. The issue of E E |:
continuation in quarter during pendency of original application is no more res» integra and is already decided by full bench of this Hon 'ble Tribunal in the case of D.N.Singh Vs. Union oflndia, recently followed by this Hon'ble Tribunal and further upheld by Hon'ble Bornbay High i Court. Therefore the balance of s convenience clearly lies in favour of the s M Applicant. Following interim orders are E E ..
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E 1 -------------- ;;;;_y;,~<-~rrrrrrrrrrr .a==r......as not <; 1r_*¢<sszs*u~s i'-2' at as as xnarssrrerx ins neat r 12 OA N0.4Z9/2017 therefore prayed :-
(a). Pending the hearing and final disposal of this Original Application, the Applicant be permitted to continue the quarter subject to norrnal license fees to be paid by the Applicant as per Rules.
(b). Ad-interirn orders in term of prayer clause (a) above may be granted. "
10. In the OA, interim relief restraining' the respondents from taking steps for vacation of the Government accommodation allotted to the applicant is also sought.
However, this Tribunal vide order dated 12.07.2017 directed the respondents not to take coercive steps regarding eviction of the applicant. from tine Government accommodation and he was directed to produce the evidence regarding deposit of occupation charges / licence fees / rent of the said accommodation from ijne date of dismissal from service i.e. ll.O6.20l5 at. the rate, which "was being deducted. :Emnn his monthly salary. This order was continue from time to time, which is still in force.
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I chronology of dates and events / I I I factual matrix is given, which is I= elaborately stated earlier. I E I I
12. It is stated that the I I Ii I applicant inns chargefisheeted before I I Criminal Court :fim: the offences IE I punishable. under Sections 323, 324 i I and 504 of the Indian Penal Code and since lna "was convicted for the offence punishable under Section 324 Is' Ii of' Indian. Penal. Code, Ihe Inns been rightly dismissed from service on the strength of time said conviction L_£7:T5flf_-CT _f-71?U ";TB_f-C T_f-%TM I"
I= by invoking" the provision. of IRule 19(1) of the CCS (CCA) Rules, 1965. 5 It is stated that simply because the I I applicant was subsequently release on probation of good behaviour, it 5 cannot be said that he is not 5 i E convicted. Hence, the impugned E orders are fully justified to be . -""-
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was placed cu11jna decision rendered _E 1! _!
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E. 1'I E. Education (Administration) .Madras Vs. S. Nagoor Meera, AIR 1.995 SC 1364, which was followed by this Tribunal in the recent decision of Shakeela Bano vs. Union of India and others. OA, jib therefore, liable to be dismissed.
13.. It is stated that the order of conviction sentencing the applicant ix) imprisonment stands merged with the Appellate order of Session Cknnfin- still time conviction was maintained and benefit of PO Act was extended to applicant, still the impugned orders are perfectly justified. by "virtue cxf the provisions of Rule 19(1) of CCS (CCA) Rules. The grounds raised in E OA are denied. It is stated that since the applicant was convicted by E E the Competent Criminal Court for the serious offence, his removal from """"""""""" a i i ésisi ei is§%4r?%§ii i '€i'%%<>"fi?%¥?§i%%%>%§i'?T*<\- ?~?\ 15 OA No.429/2017 service is justified, which shall I not be a disqualification for him as E per Section 12 of the PO Act for E getting further employment.
Considering tin? provisions of Section 12 of the PO Act, the punishment of dismissal was rightly modified ix) that cxf removal, since "'\-u it would not amount to any disqualification for fresh appointment. The Cflk is, therefore, liable to be dismissed.
14. During the period. from 05.01.2018 to 13.04.2018, heard Shri "Vicky EL. Nagrani, learned .Advocate for the applicant and the reply arguments cmf Shri. .A.M.Sethna, learned Advocate for the respondents.
15. Both the parties have placed reliance fini number (IE decisions rendered in the matter and they submitted compilation therefor. The E E same were exchanged and full opportunity' was giveni to .both the .. If . parties 13> make submissions and J /H . . . . . . .. a.:'?m'*~*"
$3? ?f\§'\i H51 I 1 16 GA No./129/2017 counter submissions on it. 161 We have .carefully* _gone through the entire pleadings of the parties including the documents submitted by them in support of their rival contentions.
FINDINGS 171 The only controversy involved for .resolution cxf this 'Tribunal iJ1 the present OA is whether the order passed by the Authorities dismissing / removing the applicant from service cni the ground (Hf his conviction. although ins is released on probation of good behaviour, is liable to I be set aside and consequently, the applicant is entitled to reinstatement.
18. Ens stated earlier, ii: is not disputed that initially the applicant suffered as conviction. by the Criminal Court for the offence E s punishable Lnuhn: Section 324 cxf the Indian Penal Code. However, the Appellate Session Court while ' .1 maintaining time order cxf conviction 5 Hy; 5,3? qgiika y E -=_§§,>y \,<?.;;"'"§""""" I 17 OA No.429/2017 extended the benefit of the provisions of PO Act to the E E applicant and the following E operative order is passed :~ E "J. The Criminal Appeal No.840 of E 2014 ts hereby partly allowed.
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2. The order of the conviction dated l 0"' September 2014 of the learned Addl. ChiefMetropolttan Magistrate, 38"' Court at Ballard Pier, Mumbat in C.C. No. 58/P W/201 3 for the oflence punishable under Section 324 of the Indian Penal Code is hereby confirmed but instead ofsentencing him, the benefits I ofProbation of Oflenders Act is extended i to the appellant as under :-
(a) The accused Samudrastngh Omstngh is to be released under Section 4 of the Probation of Offenders Act on his entering into a bond in the sum of Rs.l0,000/- with one surety in the like amount, to appear and receive sentence whenever called upon by this Court or the Trial Court within a period of two years and in the mean time to keep the peace and be ofgood behaviour.
3. The bail bond of the accused stands canceled.
4. The appellant / accused to deposit the amount of Rs.5,000/-» before the Trial Court within jifleen days fiom today for being paid to the injured Moreshwar Ktsan Dhanur resident of @ I 1! 5 I! =2 Macchtmar Nagar, l/13 Badwar Park, 1! Colaba, Mum bat 400 005 as compensation. -i
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5. The appellant / accused to E furnish the bonds before this Court.
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6. The Criminal Appeal IE No.840/2014 stands disposed ofi' II 1'-2
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19. It jj3 thus obvious that 'the "' h-nh.--
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be C@DSid€I€d. IN: is obvious that i informant ,/ injured. happens ix) be E time coworker an; Dockyard. In. the ii IE noon of 23.l2.20l2 a quarrel took :2 place between the applicant and I15 LE informant on account of allotment of duty. After completing the duty in z the evening, it is stated that near 5 J1
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his brother--in~law to the Government 1! Hospital :fimr treatment <mf injuries -:
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punishable under Sections 323, 324 kn"-mu
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view -to rehabilitate the youthful i 2 offenders, who are involved and N-Jun found guilty of offences not punishable with death or imprisonment for life, considering the fact anui circumstance cxf each case, benefit {IE provisions of Sections 3, 4 or 6 of the PO Act is extended to the accused found guilty -2
-2 and they are released ._ with or without surety cu: under supervision of Probation Officer for a particular period, for good behaviour, ill order ix) ensure non--
E recurrence of sun; such offence. In.
E E ii the event, breach of condition is
--._ E noticed, the accused can be called DJ-'.--
;:
.2 .i:.1, back for undergoing the sentence.
i i
22. It is, thus, obvious that .i| J although the applicant was not placed. behind. bars to "undergo 'the -2 sentence, a finding of his guilt i.e. his involvement. in commission &ILb L--L:1 H :1;3
of iflna said.<offence (Mi voluntarily causing hurt ix) the informant by E1 sharp weapon still holds good. \ .-I .-I"
-5
-2 .. . . . . . .. .. ... ... ), _ ,. , . . . ~» - ) - - - -- - ») . ,_ ,. ..... _ .~ . ) -- < - - --
> E E 'i -'K-'§T'?*'=F=\* > \\ "".:.'.'.i""""~t"\\ pram raw§v§ai<»m>>xe:aaI$55aiséézéasvr'@€@'1??-ii-'1-' I'I. |.
22 OA 910.429/2017 23 . During the course of arguments, the learned Advocate for 1E;
the applicant submitted that in view i., 4-:
i E E?;E of the provisions of Section 12 of EE §§;E the PO Act, when a person is found 1! guilty of an offence and dealt with 1! gi 1! gi =E under the provisions of Section 3 or E E i Section 4 of the PO Act, it shall E not suffer disqualification, if any, E attaching to a conviction of an Ln-
offence under such law and hence, L"I\ I\l I\ l § applicant is entitled to be E TE reinstated. The above provision of E IE Section interpreted 12 by of the PO Hon'ble Act has been Supreme i , Court in the Divisional Personnel 5% i Officer, Southern Railway Vs. Hbrl -U-.Ah--'nd Challappan, AIR 1975 SC 2216 in the IE Mn following words :~ 2 i "The words "attachtrzg to a conviction of an ojfeace urzder such law" tr; Section 12 refer to two contingencies :
(t) that there must be a dtsqualtficatiorz "lbhiuv-d=n-1"-Ji'nbd.Ifl---J'n resulting from a conviction,' and (£9 ;:
J that such disqualification must be provided by some law other than the Prohattorr of Oflenders Act. The Perzal '2.3.4.;b-
fillI E Code does not corztatrz arty such -E IE ii i dtsqualtficattorz. Therefore, it carmot he said that that Section 12 of the Act M-\'-J Tl contemplates an automatic disqualification attaching to a conviction and obliteration of the . __ ...; __________z - --.---.---.-.-.-,.--.---.-,.-._-:
--- ---------------------
... .. ___
.... \. --
#5'
_ ......., - v - ~ - ~ -z
\>-- *
- > -- - */ " ' " ' L "/ " - ---- ---- ---|-
-.fi __ 23 DA N0.-429/2017 2 criminal misconduct of the accused E Thus the conviction of a -delinquent E E employee simplicitor without anything more wilt not result in his automatic dismissal or removalfrom service. " hhid Ifl'bflI'L=4.\v'-J3I'"-
24. Turning ix) Rule 19(1) zxf CCS :;-M."
(CCAJ Rules, which. jprescribes special procedure is} certain cases, J-J-'-15-Jib! based on the conviction, the 5% applicant was initially dismissed :fimnn service kg? exercise (If powers '\.
E vested in the Disciplinary Authority 1""m-"m.I-
Ln under time aforesaid rule. However,
-:
.1
-:
subsequently since the applicant was released on probation of good bl'!'-SJ-
L-M behaviour, according to the applicant, tins provision cxf Section -z l2 of PO Act would be attracted and "u.; '. m_Iu based on it, he is entitled to LC.-':.3:I_?--3_ reinstatement. since &nnfl1 conviction does not amount to any i disqualification to continue in IE Govt. service. Ilt appears that the 5% order. releasing the applicant on probation has not been challenged by '1.--v hdI the prosecutbmi or by the applicant "J"
in the Hon'ble High Court and hence, it attained finalityz The question '--'-J .1-:
¢ \ =;=;-i_.<:%?ia'z'i '§?I#.?-I-Ii ?-331$?5=53%'?'i¥?=f-I3'=i$I¥5=3 /' F < ggfi w 2-'ll OA No.429/2017 .m-m. "mI for consideration is when the -J1 applicant ins released cn1 probation of good behaviour, still Ina can be dismissed from service on the strength of the conviction, although such persons shall not suffer disqualification attaching to a conviction as per Section l2 of the PO Act. In this behalf, it is "um-n obvious from the commentary on Rule 22 ;U1 Swamy's CCS MXEU Rules 2013 edition that a decision was taken how to deal with such a person. For the sake of convenience and ready reference, the text of the commentary is reproduced here :~
1.wm.Hm., ~Um.,"I "(b) Under Probation of Uflenders Act. -
In accordance with Section 4 of the Probation of Ofienders Act, 1958, when any person is found guilty of having committed an oflence and the Court is of the opinion that having regard to the circumstances of the case, including the nature of the o]j'ence and the character of the oflender, it is expedient to release him on probation of good conduct, it may direct that he be released on his entering into a bond with or without sureties for keeping peace and good behaviour for a specified period. Section 12 of the same Act states that a person found guilty ofan oflence and dealt with under the provisions of Section 4 shall not sufier disqualification, if any, attached to conviction of an oflence under such law. It has been represented that persons 1mm"rmMMmm"_=o.,ncm. m.IaU,_.n-"mIM'.
-m »-\Mu § =-.-~---------------;-_-_-_-_-_-_;;;;__f_ff_wH+*------------------------;-_--_-_-;-- } _,\.M.- *********** ---- j-- Q »$<}(E_;-<§E g%g_5fi\§§§3}"§'e:;;§~§ "§s"]@€\?}\K ,<'>$\ §,<§?'\\*> §§ .
-E
-z E
- 25 OA No.42?)/2017 -_{QJ-'JI :
E convicted by Court of Law and released under the Probation of Ofienders Act are not liable to be removed or dismissed from service merely on the ground of E :
their conviction in accordance with the E provisions contained in Section J2 cited E above. E The matter has been considered in consultation with the Ministry of Law E and it has been held that the Disciplinary Authority is precluded under Section l2 3 E of the Probation of Oflenders Act fiom .1 _l
-E dismissing / removing an employee merely because he is convicted of an oflence. That Ministry has held that the order of dismissal / removal etc, of the
-5 employee should be on the ground of -:
conduct which has led to his conviction and not the conviction itself "
25. It is thus obvious that while J \ E E considering if the applicant on the strength of conviction when found guilty of the charge cannot be
-s dismissed or removed from service simply on the strength of the said hm.- w,;"-
-:
E! :2 I1:
conviction and the Disciplinary E Authority has to consider the E conduct of the applicant which led E to his conviction, before passing i E order of his dismissal or removal. 1 :1
ii In this respect, it may be mentioned ii =§
-:
here that on conviction instead of -E sentencing offender to any corporal '-vfl'n'- nQLb3_d--' EE :25 2:
punishment, if he is released on .-"
I.»- probation of good conduct with or i ..................... ..
""""""""""""" i E ant vase? s?~<.'nn;s"i""' i E 2 2 E ,__...26 OA No.429/2017
without execution of Bond. Such person cannot be compared. with offender, who is released on bail on '~-J'vfl' \H.I'41\lLI-Q\'l execution of kxnuijpending trial for bumnm an offence against him. However, as stated earlier, conduct of such offence which led.tx>Ihis conviction i plays paramount role, which must be considered before amnfii offender (if 2 E E happens to be Government servant) is dismissed from service. The -2
-2 Disciplinary and Appellate Authority have not considered this aspect. ".._,-.,"-
The Revisionary Authority, however, considered times aspect anui modified L'~'m-:-W L-'n the order of dismissal to that of 2m.
EE;2 ;2 ;2 1.5-
removal cn1'the ground.tjnm: it would not amount; to= disqualification for E E \ further job. This ins obvious from E E 2 paragraph No.5 of the order passed kgr the Revisional .Authority' Iby E E E stating that when the applicant is E E released on probation of good conduct iuwkmr Section. 4, lwa cannot 5';
IE., .,:1;
be .made to suffer penalty of 31? ~ Ii .-"
_:
.-:' _.- .-""
_.-'
dismissal on the basis of 12'
-Ii
.i. /"
;E
5.!
.-----.-- -.--»-- __,_ -..,_,.-..-u-.--..s.2.-..-i,..-..........__....._._._.:._.:._._., ___________,,__:::_:_:._.¢_.___:.r_,_::___,_.,:.___1_r:___r ____ __ ii
5 / _ , . , . . » » . . . . . . .:-
2 ------ 2 ~~~~~~~ %'=~ 5;i
E
F
E
2
E
27 GA No.429/2017
'~1- E
E
conviction. After considering the 14
grounds on the basis of which the -E
applicant was convicted, the
following order has been passed by
the Revisional Authority :~ brhdI
-Q
"LHUI
"'6. AND WHEREAS, the grounds raised by the petitioner in his Revision Petition have been examined. The facts and circumstances in the case of Rajbir
- I-v ibid are completely dijferent than the facts and circumstances of the instant case and the same cannot be applied to the case in hand. On perusal of Sections 3, 4, 9 and T2 of the Probation of hfilhdllirbd LI.
-2
-2 E _|I T2 _I Ojfenders Act, it is noted that an order of release on probation comes into existence only afler the accused is found guilty and is convicted of the o/fence. Thus, the conviction ofthe accused or the 5E i finding of the Court that he is guilty
-2 cannot be washed out at all because that is the sine qua non for the order of release on probation ofthe oflender. The order ofrelease on probation is merely in substitution ofthe sentence to be imposed -2-2 by the Court. Further, the factum ofguilt 1! J on the criminal charge is not swept away IE
-2-2 merely by passing the order releasing the offender on probation. Under Sections 3, 4 or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to E be a conclusive proof -2
-2 1
7. AND WHEREAS. as per Section T2 of the Probation of Ojfenders E E Act, an offender who has been released 1 on probation shall not sufler E disqualification attaching to a conviction E of the ofience for which he has been Iil 1 A.,:
convicted. Section T2 imposed a bar on :1i\.
Eii any action which imposes a =2 2 disqualification based on the conviction i of the ojfender. Therefore, it may not be appropriate to award the penalty of -2 _:.1
-2
-. 'M. "Dismissal from Service " as it may act
-2 "-.1.;@.' 1.;.-
- - .- ............................ ................. . .. .. .__ ...-. .-.........................................._..._._...._._ ,_.__.: ,..,._._ _.__,_ _.______.__________________._.-1:: ......................... . ,
--------------------------------------- ' 1*' " >4?-E523-""'
- -.-; .¢' 28 OA N0.-429/2017 as a disqualification towards applying forfuture Govt. employment.
S. AND WHEREAS. on considering the case in its entirety, the conduct of the petitioner which led to his conviction and the legal provisions on the subject, the Revising Authority is of L"
the view that there is a need to alter the punishment of "Dismissal from Service" L-u"m"IJVibVI!-
awarded to the petitioner to "Removal fiom Service
9. NOW ACCORDINGLK the undersigned, in exercise of powers conferred vide MoD Order No.5 (5) / 82/D(Lab) dated 02 Dec Z983, as amended vide MoD Order No.5(26)/92/D(Lab) dated 0] Dec 1992 under Rule 29(l)(vt) of CCS (CCA) Rules, T965, as Revising Authority of Shri Samunder Om Singh, Ex-Asst Fireman P No.702l3K of B Naval Dockyard Mumbai, hereby modifies the penalty of "Dismissal from Service" to lI\ lI' \I ln Removalfiom Service "
261 While challenging" "the aforesaid finding, the learned Advocate for the applicant submitted that the applicant was not prosecuted for the offence involving moral turpitude such as outraging modesty' of ea woman, committing Hil'buIml-'NmL."-w heinous offence like lfiflfii or sexual harassment or subjecting wife to cruelty and he was involved only in causing hurt to his colleague that too on some altercation between them, it is necessary to set aside I-"L-J'I
-- -- -- ---------- ,_,-------------- r < ....=.- ru K qq sun r-
|I I E I '''l'|IQ-J-I'l
-2 29 DA No.429/2017
1|..-
E the order of removal and to reinstate the applicant. H .,:
:1;
:1;
.1
27. As against this, the learned -2
-2
-2 Advocate for the respondents -2 submitted that the impugned order is perfectly legal and correct since it E is not based on conviction simplicitor but is based on the M.-vJ conduct cni the applicant, which led to " his conviction, since he assaulted er fellow colleague in bl'L public jplace with. sharp "weapon causing injury to him. Such conduct E would definitely lead to the inference of unbecoming of a -2
-2 Government. servant, especially vdwn1 .1 _l he is working as Civilian employee it1 Navy inwkmr Ministry"cxf Defence.
Both the learned Advocates for the parties placed reliance on number of decisions ill support.cxf their above contentions, vdfirfl1 shall runs be considered in details.
28. During the course of the
-2-2 arguments, the learned Advocate for '...=1.
the applicant submitterl that since_ 1: 2
'i :1 .3 ,...\ . . , . . . . .. . . . . ... . . \.. . , . . . . . :; I, I .1 :._ :1;5,; :1 : __:_ :_ E _:___,= :__.E _:_ at :_,__:__._,: _ _ _ __ _ _ _ _ . . .. , . . . . . . . ,. .. , . . _ _ _ _ _ __ if "4 """""""'E '1-7;:...." K """"""""""T"""""$"Y'§'§> K?" '_
- = -- -- -
E r-
I :.
-2
-2 ".; x.-"um."
30 OA No.429/2017
E the benefit of the provisions of Section A of the PO Act is extended to time applicant and Ewe has Ibeen E released i.e. not put behind bars, by virtue of the provisions of the InT Section l2 of the PO Act referred :2 brhdbd-L-
FE above, this vdJJ_ not be a. disqualification for his E reinstatement; in service, since on §'2 1E 2% E earlier occasion on.tfiwa face of the iI2 EE IE conviction imposed. Eng the Trial E E Court, he has been. dismissed from E 2 service. In. support (IE this contention, he placed reliance on the decision rendered by this 1! LE Tribunal in OA No.l77/2010 Pragnesh -2
-2 =2 Kumar Pandya vs. Union of India and 2 E another decided on 17.08.2012.
i E
29. In that case, the question for E 2 E consideration. was whether" the applicant therein was entitled to J-Cm-2'~'-Q I:b 5%! J =2
-E reinstatement in service after -2
-2
-2
-2 revoking tin: order cxf dismissal cn1 E2 ;2 1E
-2 .1 the ground that.lwaIhas been ordered -2 to Ens released CH1 probation km? the
-,_M
-2II _l _l
-2 s Criminal Court, invoking the II
-2 \ -2
-
-- .-.:.-.:.-.~.-.:.-z_...,,.:-:--
-v'm"-v'\.2-' __ 31 GA No.429/2017 provisions contained iJ1"Uma PO Act. Perusal of the said judgment, 1! J however, shows that after considering time material cn1 record, this Tribunal came to the conclusion that the punishment of dismissal .2 E from service was harsh and hence, it '- J-'-J was modified to tflnu: of penalty of compulsory retirement, keeping in
-2 view the fact that the applicant is -2 approaching the age of -2 n-
superannuation and is, therefore, not likely to get any other binn- employment. However, time aforesaid finding recorded cannot nmmu1"Uo say that the aforesaid. order" has Ibeen -2 passed by considering the provisions of Section l2 of PO Act. This is so because the said provision which states that notwithstanding anything i .2 contained i11 any other"lunE for the :3:
J .!i Ii *2 EIii E time being lJ1 force, idflbenefit of IE I1! :3?
Sections 3 or 4 of the PO Act is 1! EE 2 E granted to the accused involved in a criminal prosecution and is accordingly released on probation of < --------------------------------- »/""""""" r E 32 OA No.429/2017 -2 good conduct, id: does run: mean that if the said accused.ims2a government mm"m.mur n
-2 servant at the time of commission of an offence, Ens should ins reinstated 32 .1 on the ground that conviction does 1! IE 1E not amount to disqualification.
',','",
-2 1
30. It is needless to say that the word 'disqualification' mentioned ll} Section IE2 of Edna PO Act implies the .reemployment after _l I _l
-2 dismissal cu: fresh employment after TE IE E the benefit of iflma HO Act is extendedt IH: is also held that for E contesting the election to the local body, smnfli release (mi probation.<of "E I2 good conduct by extending the E Ii benefit of Section 3 or 4 of the PO E-2 Act will not be affected and in that
-2 context time word. 'disqualification' -2
-2 will have ix; be interpreted. It Li ;2 1E 1E
-.2 I IE cannot be said. by any stretch of _E
-2 E imagination that the word 'disqualification' would. mean that .1:
u 2 E there is no impediment in E reinstatement of the government 2 servant if he suffers conviction but L-" -v-b0d--
-- - - - - -~ mvtx
-2
-2
-2
.
=2
u.. "u
33 OA No.429/2017
is released on probation of good E
E
conduct.
E
EE
31. The aforesaid legal position
has been elaborately discussed by E
E
this Tribunal js1 the. aforesaid (Ni human
No.17?/2010 in paragraph No.10 of "1_r.
EE
E2
the order passed.cu1"the strength of .E
.;:
.\i
J
-2
decision rendered by the Hon'ble E
E
;E
Supreme Court. The same is E
5E
reproduced here for ready
i
.1;
E
IE
reference :~ -E:
'E
TE-2
E
EE
:1:
"T0. The question whether release of the convicted person in a criminal -2
-2 case on a bond of good conduct under -2
-2 Sec.4 of the Act; will tpsofacto wipe out the stigma of conviction, is no more res integra, in view of the decision rendered by the Apex Court in Union ofTndia and Ors. Vs. Bahshi Ram T990 SCC (L&S)
288. In the above decision their Lordshzps held thus:---
"T0. In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The court while invoking the provisions ofSection 3 or 4 of -2
-2 the Act does not deal with the conviction; it only deals with E H the sentence which the E i ojfender has to undergo. E Instead of sentencing the ojfender, the court releases hon on tmobadon of good 3_--.
conduct. The conviction, -2 however, remains untouched and the stigma of conviction is not obliterated In the departmental proceedings the delinquent could be dismissed
-2 ....._ 2- :-.-.-.-.1.-.:: ------------------------------------ --
' '
- - ,- ,_ . .-w nu-
.. 34 DA NCL429/2017 Ln"-I-"h or removed or reduced in rank on the ground ofconduct which has led to his conviction on a crirninal charge [See Article 3ll(2)(b) of the Constitution and Tulsirarn Patel case I985 3 SCC 398].
The Court went on to say further as , E hereunder :-
"J3. Section l2 is thus clear and it only directs that the oflender "shall not sufler disqualification, Q' any, attaching to a conviction ofan oflence under such law. "
Such law in the context is other law providing for disqualification on account of conviction. For instance, if a L-v-uv-nu"
law provides for
disqualification of a person Lu"- v-JILOIl'>
for being appointed in any ofice or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands rernoved. That in eject is the scope and eflect of Section 12 of the Act. But that is not the sarne thing to state that the person who has been disrnissed fiorn I- .l'I service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct. "
32. Further interpreting the provisions of Section l2 of the PO hi;m-AMJ Act by which it is further held that it does not completely oblitezate the effect of any conviction is again based on the decision rendered .... » iii'/*'<"'*'==**** 35 GA N0.429/2017 by the Hon'ble Supreme Court in paragraph No.11 cnf"the order in the aforesaid OA, which reads as under :* "J l. In Divisional Personnel Officer, Southern Railway Vs. TR. ' Chellappan (1976) 3 SCC l90. Their Lordships of the Apex Court held thus:
"It was suggested that bbl'0Il'rbdhIr'I-"Mmmm-~lLnLMJ"d*vI|wm-'Ldb@ hlL"-nu bhdfl Section l2 of the Act completely obliterates the eflect ofany conviction and wipes out disqualfication attached to a conviction of an oflence under such law. mmm"., . .m-r.1 This argument, in our opinion, is based on a gross misreading of the provisions of Section J2 of the Act. The words "attaching to a conviction of an oflence under such fiflLm"~w 1"A~m".-
law " refer to two contingencies : (2) that there must be a disqualqication resulting fiom a conviction,' and (ii) that such disqualification must be provided by some law other than the Probation of Ofenders 1..m .I ' Act. The Penal Code does not sustain any such disqualification. Therefore, it cannot be said that Section J2 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the Lw- J'IOI d accused. It is also manifest that disqualification is mu-
essentially different in its connotation from the word 'misconduct'. "
--""'~"- - -< =---'----------------1:7:rr:1r:_v:::5:;_f_:_*;r:-'-'-"-' "-'-'-'//'.*.':_-_':!:_\'-
. . . ._ _ .. . . . .. . . .. is are &0lbrIOU"b-n'uvwnImunl.-'MIL'ml-Ib . -. .
35 OA NCL429/2017 L-brnu-ln4
33. From the aforesaid
- -1 discussion, it is obvious that simply because the applicant has Ibeen released cni probation cxf good .\% IE _I conduct by extending the benefit of Section =11 of the PO Act, he cannot Lbiin---l_'-.--\|'-Lnr._fi-I claim that he does not in fact suffer conviction (since found L. -. "'.b|-I. -.'
--.L-
guilty of the offence punishable under Section 324 of the Indian IE Penal Code by the Competent Criminal 1! _l Court) and hence, Ina.is entitled to be reinstated. This ins so because '". "-L.,1---.'mA_3.
reinstatement is possible only when the Government servant.:Ua acquitted of the offence on merit. As stated L-bl'!in--C4.\Q-'J- earlier, conviction and sentence are i.
.1 .15 WIi two different things and. while e.3_{ extending time benefit cxf Section 4 E of "the 1%) Act, the Criminal. Court mainly takes into consideration the bbrb-L brhd
-la
-5:i.m3..l_ _= '5.
sentence and not the conviction.
M Li The thing, however, remains that the In-'|-"'"H applicant is found guilty of the 5 ii1! offfence enni instead amt sentencing J ;E 1!
-:
_:| X .-
._ Jz
y / him in) any' corporal jpunishment Ioy
E
i
E
".t:r.t:''''r - - - -' > "'";2'$§§;Ci@'1"E§ii§§i;g,;i3=;§i3}]§{§;§gg;§§§?§§§§_;§§§§=g<;;§;};§;§?gi§{;;{=.1§>§u-$§r\\§<,?,E'iii?-17:4§§§.f&',?:?.I
i
37 OA No.429/2017
'," %
",.";," "
actually putting him behind bars, by extending time benevolent pmovisions of 1%) Act, Tm: is released on -2 probation of good behaviour with or s :
without surety or by placing him i s :
under supervision. ofi the Probation
-"I Officer for some periodn The main intention ll} doing an: is ix) ensure is
-z that the applicant does not indulge
-:
-2 jll committing euqr offence iai future -2
-:
-2 and to turn the good citizen. -s :3!
-z z E However, as stated earlier, there 2 will ins a stigma cni his part since 2 2 the Competent Criminal Court held him guilty for commission of offence ;:
charged, but released him on E E probation of good behaviour. In the context of time aforesaid situation, a finding of guilt i.e. his conviction would not come in his way for reemployment after cfismissal or removal from service or for fresh appointment if ins is not already in
-2 service at the time of commission of offence. _
34. From the aforesaid §§mm \ '-<-------"'----"""-"':.::.".:':::::'7.:; Q' Q """ rnrr rae~.Tenueue%s2= s M euqsrarssiriiii us »><><>»> E
-\r"
A as OA No.429/2017
discussion, we do not find any force in the contention of the learned Advocate for Tina applicant that since the I applicant has been released on probation of good behaviour and not put behind bars, he has not in fact been convicted or that he is entitled to be reinstated on this ground alone; In such circumstances of time case, although Disciplinary and Appellate Authority have not recorded elaborate reasons while imposing punishment of dismissal from service on the applicant based on the aforesaid conviction, the Revisional Authority has recorded some reasons and by taking recourse to the provisions of Section 12 of timaIH3.Act by wrongly interpreting it, converted dismissal into removal, solely with a view to see that this does not amount to any disqualification for his reemployment.
35. Turning to the other decision relied upon kn/"the applicant namely
-
.. ....... ... . . . .. . . . . . . .. . . , -E.3-_5;_;:1_;;:-5-5-;.55=5-:3-2-_;=_;;-;_;;;.;;_-E-_,-:=_:.;= . , . . . . . . . . , . -~ -» ---~-w j;
39 OA N0.429/2017 Rajesh Singh vs. State of Uttar Pradesh and others , Wri t Appeal No. 68661 of 2011 decided on 24.10.2017, by the Hon'ble High Court of Allahabad, the learned Advocate tin: the applicant tried to convince us that the applicant is entitled to reinstatement. However, perusal of the aforesaid decision would reveal that the petitioner therein was working as Lekha Pal in Consolidation Department of State Government. Offence Lnnhnc Sections 323 and 304 _Part II of the Indian Penal Code was registered against him, which was followed by his arrest. Later on, since the injured victim. died, offence under Section 302 of the IPC was added, however, the Trial Court found the petitioner guilty cm? all time offences and sentenced him to rigorous imprisonment- for life and fine of Rs.50,000/r.
36. The aforesaid order has been challenged. before the jHon'ble jHigh
-----~-
..................................................................................................................................... »< ./»:=.=ma:-'=r.<-:.2.=='-.= r.-'.-:e='='-'==. v YET"??? an exit is ivzéwsgx §§4'>'_§ _ 40 on No.429/2017 Courtu However, in the. meantime, based cni the order (Hf conviction, the petitioner was dismissed from service jpending appeal against the order of conviction. The said order is also challenged. His dismissal was based on the Government order dated. 12.10.1979 issued Int the Department.cmE Personnel, wherein it has been provided that in case sentence of life imprisonment on conviction iii imposed, Tina employee can Ina dismissed. Challenging the aforesaid. clause, ii: was icontended on behalf of the petitioner that the State Government order dated 12.10.1979 does not require compulsory termination of service of a convicted person, but has given a discretion to the department concerned to take action looking into facts of each and every case for the purposes of aforesaid submissiona Reliance suns placed on the decision rendered by the Hon'ble Supreme Court in Union of India Vs. \_.-' __.f' 1/'
-.= rfi _.................................. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _::__:E._-:-_-§-:_:_.-___,:,-._-.55-_.€:.;.;:_:_:_:._-._-_-:-§_.-_.;=_ ..-----.- _ k H-----u».:»§=»<~-§»~~w~-»-~ __,___, ,i.";§=»' :='=£€§3;%?az;<gm.-,;-==-.-.-=,i:-REE-?.Eiiiii?-E-I=I-iF5' v\. ".._.
:-?_:.--.-;.-.:'.-_r:-.-:-==.::-_: ?E:7' _ omiasv=2zen:-:-z'=to'=u§e's2R?E
-.~:'---.-'-.-.-.»....-........_~_.__'.._ QF51i$$§1'iii%'{>§<"4{<'§§1wZ'?3~'><'*/§€?gfi§5§§?3§€fi . -_ =. . .. -.__._.-_. _._ : _ _. :.. _ _.._ ...-P 41 OA i\iO.429/2017 Tulsi Ram Patel, 1.985 '(3) SCC 398, wherein. it tum; been. observed. that where a Disciplinary Authority comes to know ijunz a. Government servant has been convicted on a criminal charge, it must consider whether his conduct which led.tx:Ihis conviction was such. which. warrants imposition of penalty enui if so vdun: was that penalty it should be imposed. It is also held that while considering the aforesaid fact the Disciplinary Authority will not be justified in remappreciation of the evidence recorded by the Criminal Court while coming to a conclusion that the offence stands proved and recorded a conviction thereon. _It is only required ix; see time conduct (If the Government servant which led to his conviction at the time of commission of the offence and other attendant circumstances Ibrought cni record jJ1 the order of the conviction passed by the Criminal Court.
37. T It is, thus, obvious from the X.-' ~;,-_;; -, » - - - - » - » . . »- - » - - » - - » - -, ~ - ~ -, » » . ~ - | . A . ~ . , . . . . . » . » . . . . | . _ _ . .. ._.__._........_.:_.:::._.:._.::._...:._._.: .................................................................................... __ ..
,____J_$I"""""
""""""" *§§:i*§>f:'§'f $2 KK Eié Qty? 42 OA No.-429/2017 aforesaid. decision that ;U; is not that, order cfif dismissal ,/ removal can be passed blindly only based on time order cxf conviction, Inn; while doing so, conduct of applicant which led ix: the conviction Jneeds ix: be seen and taken into consideration and while doing so the Disciplinary Authority will have discretion to impose a penalty of dismissal / removal from servicek or any other lesser penalty too. In other words, conviction alone would not result in automatic dismissal from service. It is obvious that same is the scope 'Il-
of the Ehflra 19(1) of Tina CCS (CCA) Rules and as such, before imposing any penalty based.<n1 the conviction (which resulted in release on probation cxf good. Ibehaviour kg? extending the benefits of the provision cxf Section Z3 or 4 cit the PO Act), the conduct of the Government servant at the time of commission of EH1 offence enui other .- __.-
attendant. circumstances brought on
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43 OA NEL429/2017
record by the Criminal Court in its order of conviction will have to be considered. HIU1 the citation relied by the learned. Advocate for the applicant, Writ Petition. "was, however, dismissed. and. we fell to understand as to how the aforesaid decision is in any manner helpful to the applicant. We simply reject the contentions (Hf the learned Advocate for the applicant.
38. During the course of arguments, time learned Advocate for the applicant further submitted that the offence by which the applicant _-'-'--
was charged does not involve moral turpitude enni hence, Ina should kma reinstated. We do not find any force ill the contentions, although it may be stated that the offence punishable tnmkn: Section 324 cxf the IPC i.e. voluntarily causing hurt by dangerous weapon may not involve moral turpitude since it may not shock the moral conscious of . .;.
I /.
I;
society, which constitutes one of an %"~§\ e-W/1»? wen is 44 OA N0.-4129/2017 the ingredients ti: hold if time offence involves moral turpitude, as has been held by the Hon'ble High Court in Pawan Kumar Vs. State of Haryamz andotlu-zrs,(1996)4SCC17. It is needless to say that the offence punishable under Sections 302 (murder), 307 (attempt to commit- murder), 376 (commission of rape), 354 (outraging modesty of a woman), 306 (abatement of suicide), 498~A (Subjecting wife to Cruelty), Sexual harassment at the work - place, accepting gratification, demand of dowry etc are the few offences involving moral turpitude. However, times does run; mean that the offence which does not involve moral turpitude and if proved the Government servant in entitled to reinstatement on dismissal inime service based.cn1 the said conviction imposing corporal punishment or even after his release on probation <n5 good behaviour. This being so, we do no find any force in tine contention of -the ............r .............................. e §< xamenee fixes §e"\'e~<*<eE=Z<'ei'.~¥€€e".iW""" """"
1.-
45 DA No.429/2017
learned Advocate for the applicant that the applicant is entitled. to any relief.
39. The learned Advocate for the applicant also placed reliance on the following decisions :~ (1) State of Haryana and another Vs. Ved Kanr, Civil Appeal No. 6066/2017 (arising oat of SLP (Civil) No.2l622 of 2015 decided on 03.05.2017 (Supreme Conrt).
(ii) B.Melawati Vs. State of Andhra Pradesh and others, Writ Petition No.30762 of20] 7 decided on 23.10.2017, High Conrt ofAndhra Pradesh.
(iii) Government of NCT of Delhi and others Vs'. Jitendra Karnar, Writ Petition (Civil) No.5534 of 2013 decided on 03.09.2013, High Conrt ofDelhi.
(iv) Chetrarn Meena Vs'.
Cornrnissioner of Police, Central Administrative Tribanal, Principal Bench, New Delhi, OA No.1 88l/20] 1 decided on 20.12.2012. We have careful gone through the aforesaid citations.
40. We do not find that ratio laid down therein is any way helpful to time applicant jie coming tie the conclusion that tine impugned orders passed by tine authorities declining to reinstate the applicant in service is iii any':manner illegal, improper or incorrect.
41. Lastly, the learned Advocate ,, I /"re E€_E_-,;_:-E-:-3:;E5-E:_;:;:33:_}:.E_.__'-E3......................-.3.rr..-.......:._.:_._.::_._._._.:.?. ........................................... ..
_ 46 OA 510.429/2017 5 for the applicant vehemently relied on the decision lof the Hcn'ble E E Supreme Court in Rajbeer Vs. State of Haryana,.AIR 1985 SC 1278 decided on 01.05.1985 and submitted that the applicant therein although was convicted, was granted benefit of probation tny modifying time previous order of conviction imposing punishment for the offence punishable under Section 323 of the Indian Penal Code and it is specifically stated in order that the conviction should not affect his service. (M1 its basis, the learned Advocate for the applicant submitted that; the applicant Ibeing" similarly placed is entitled to similar relief as granted t£>"Uma applicant ll} the aforesaid case by the Hon'ble Supreme Court.
42. We have carefully" gone through the aforesaid judgment. It is obvious that initially" four persons including the applicant Rajbeer was convicted under Section 4 /r"' '"""'"""'"""*1'"""'i"""'5§,'_ ,.=».=>:aaaaaaae:-.=:-.$""v.-s.-.~>===9""~>.it-;1-:-:e;=====;<.,<F?=.e=»; _ -- ., _ ... .. '' ''' '''''' '''''''"'Y* ---- (X -4; gm {(5 g ,1; ,1; }§_§ "<33; g if???_____" 47 DA No.429/2017
304 Part II (Culpable Homicide not amounting to murder) Section 323 (causing hurt) of IPC both read with Section 34 (common intention) of IPC, by the 'Sessions Judge Dhiwani. They" appealed. to the Hon'ble High Court of Punjab and Haryana and the conviction of all except that of the co~accused Surajbhan under Section 304 Part ll was set aside, but the conviction under Section 323 of IPC along with sentence was maintained. All the four accused have challenged the aforesaid order of conviction by separate: application ifiir Special Leave. Only iii respect cxf Rajbeer notice was issued to the respondents confined to the guestion of extending time benefit of I%).Act to him.
43. After hearing" both. the sides, the Honible Supreme Court has passed the following order as stated in the paragraph Nos.4 and 5 :~ "4. From the judgment of the High Court it appears that though the I sentence imposed for the oflence Under Section 323 of the Code was ___ __.....-. §\,s.i'gT\=;e<¢.>e .. 48 DA N0.-429/2017 six months, the appellant and the co- accused had already sujfered over one year's imprisonment. Ordinarily, in a situation as here, there would be no need to interfere. Learned counsel for the appellant has, however, pressed the appeal as the appellant is in Government service and if the conviction and sentence are maintained, he would lose his service. Both the parties to the assault were close relations. There is no material on the record to indicate that the appellant had any previous conviction. In the absence of such evidence, we treat the appellant as a first ojfender. He is entitled to be admitted to the benefits ofprobation Under Section 3 of the Probation of Ojfenders Act, 1958, taking into consideration the circumstances of the case, direct that he shall be released on probation of good conduct Under Section 4 of the Act. The Chief Judicial Magistrate, Bhiwani, before whom the appellant is directed to appear within four weeks from today shall release him after due admonition. We do not consider it necessary to direct him to enter into a bond in the facts of the case.
5. We are of the view that in the peculiar facts of the case, the conviction should not ajfect his service. "
44. It is, thus, obvious from perusal 'of the aforesaid decision that in the peculiar facts and circumstances of that case, the Hon'ble Supreme Court extended the benefit of the provisions of PO Act to Rajbeer and since he was in 49 OA N0.429/2017 service, it is stated that the said conviction should not affect his service. IU1 other words, there was no occasion for the department to impose any punishment based on the said conviction.' IH: is needless to say that the said order' has been passed by the Hontble Supreme Court by virtue (ME the special power vested. in it and ratio laid. down therein cannot be said to be a precedent to be applied and followed in all the cases in which the benefit of the provisions of PO Act is extended to the Government servant and tme is released on probation of good behaviour, especially when in the present case, the applicant has not challenged the order of conviction and it is final and prior to that based on the order of conviction jpassed tn; the: Trial Court sentencing him to imprisonment, lme"was dismissed from service, which order was subsequently modified to that of e' Y """' X §'§*=%"-t:-*2-"-ie'-?"P5i7*Tl~'§°-ii-"=T;.i§*.'i£i§és;e;em;z_es;gsqreiissnmx mu is is 50 OA No.-429/2017 removal from service. IU1 any case, no relief can be granted to the applicant based on the aforesaid decision. We, therefore, reject the contention of the applicant.-
45. During the course of the arguments, the learned Advocate for the respondents tmme also placed reliance on the following decisions, which are mentioned in brief hereinbelow.
46. To begin with in Union of India and' others vs. .Bakshi .Ram, Civil Appeal No.l3l2/1990 decided on 01 . 03 . 1990, Manupatra/SC/0180/1990, 1-..-
the Hon'ble Supreme Court has an occasion tie deal. with. similar" case in which the respondent was released on probation of good conduct and the order of dismissal based on the conviction vmme challenged. The provisions (mi Section 12 cxf the PO tun: were interpreted.&nni ultimately the (Emmi. Appeal jpreferred kn? the Department was allowed. In that case, time respondents inns Constable . _.-"
-15:5: .-I";
_. _. _/.
..................................................... , .. ___ ,. ._. . .,____:rT_T_:___._____....
' "_"f"""""""""";""1I?--"""§"'""""'_'""1-'T-11"'52-;F.?;"?-Tl'III?-'4""" """"""""" \,< """?ef5;f5;:-_t';El}'E-ig.i_§§'\j§\'_\e_k_if_ie'<,ihfeegesy_ t3fifi§%K%§??§i§E'ii§§\5§§~? '"1; he
51 0A N0.429/2017
in Central Reserve Police Force. He
was charged for misbehaving with
wife of the fellow constable and he was tried for the offence under Section l0(l) of the Central Reserve Police Force Act, l949. The Magistrate: convicted time respondent for the said offence and sentenced him tie four months tif rigorous imprisonment. Department <iismissed the respondent from service, in view of conviction during pendency of the appeal before Special Judge. Sessions Judge upheld conviction, but released the respondent under PO Act. After expiry of period of good conduct, the respondent challenged his dismissal from service before Hon'ble High Court. _ Hon'ble High Court relying cue Section. l2 cni PO Act directed.lmie reinstatement with all. consequential. benefits, against which the present appeal was filed before Hon'ble Supreme Court.
47. Allowing the aforesaid appeal, it was held that Section l2 """"""""""" '\< ne'er" v 52 OA No.429/201? of the PO Act does not preclude the department from taking action for misconduct leading to the offence or to its conviction thereon as per law. IN: is further held that Section 12 does not state that the person who had been dismissed from service in view of his conviction is entitle tie reinstatement upon getting the benefit of probation of good conduct . The expression, "shall not sujfer any disqualfiication attaching to conviction" in Section 12 is also interpreted. The finding recorded by the Hon'ble Supreme Court in paragraph No. 9 to 13 is worth quoting, which is reproduced here for ready reference :* "9. In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The Court while invoking the provisions of Section 3 or 4 of the Act does not deal with the conviction,' it only deals with the sentence which the ojfender has to undergo. Instead of sentencing the ojfender, the Court releases him on probation of good conduct The conviction however, remains untouched and the stigma of conviction is not obliterated In the departmental ./' proceedings the delinquent could be
-------------------
53 OA N0.-429/2017 dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge,' (See Article 3l](2)(b) of the Constitution and Tulsiram Patel case :
11985] Supp. 2 SCR J3].
10. Section 12 ofthe Act does not preclude the department from taking action for misconduct leading to the oflence or to his conviction thereon as per law. The section wasnot intended to exonerate the person from departmental punishment. The question of reinstatement into service fiom which he was removed in view of his conviction does not therefore, arise.
That seems obvious fiom the terminology of Section 12. On this aspect, the High Court speak with one voice. The Madras High Court in R. Kumaraswami Aiyer T/. The Commissioner, Municipal Council Tiruvannamalai and Anr., [1957] Cri. L..l 225 and Embaru (P) VI Chairman Madras Port Trust, [1963] I LLJ 59, the Andhra Pradesh High Court in A.Satyanarayana Murthy Vs. Zonal Manager, Ll. C. AMNU/AP/008]/1969 :
AIR_l969AP37], the Madhya Pradesh High Court in Prem Kumar VI Union of India and Ors., [197]] Lab IC 823, the Punjab & Haryana High Court in Om Pralcash V The Director Postal Services (Post and Telegraphs Deptt.) Punjab Circle, Ambala and Ors., [1971] J SLR 643. The Delhi High Court in Director of Postal Services (Post and Telegraphs Deptt.) Punjab Circle, Ambala and Ors., [197]] 1 SLR
643. The Delhi High Court in Director of Postal Services and Anr. V. Daya Nand, MMNU/DE/0268/Z972 have expressed the same view. This view of the High Courts in the aforesaid cases has been approved by this Courting T.R.Challappan's case [1975] 2 SLR
587.
ll. In Trilcha Ram V. T/.K.Seth /i¥=§'\F§?rT*»l*¥5§§5i"i%i§i?<j52§"¥?§§?'?e"e?§iF%§L§'i?v E"? 5% 54 _, on No.429/2017 and Am., A/IANU/SC/0 718/Z98 7:
AIRl988SC285 this Court after referring to Section 12 has altered the punishment of dismissal' of the petitioner therein into "removal fi"om service", so that it may help him to secure future employment in other establishment.
l 2. Section l2 is thus clear and it only directs that the oflender "shall, not sufler disqualification, if any, attaching to a conviction of an oflence under such law ". Such law in the context is other law providing for disqualfiication on account of conviction. For instance, it a law provides for disqualuication of a person for being appointed in any oflice or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands removed. That in eflect is the scope and é3]_%I-?Cl of Section 12 of the Act. But that is not the same thing to state that the person who has been dismissed fiom service in view of his conviction is entitled to reinstatement upon getting the benefit ofprobation of good conduct. Apparently, such a view has no support by the terms of Section- J2 and the order of the High Court cannot, therefore, be sustained. J 3. In the result the appeal is allowed. The impugned order of the High Court is set aside. However, we alter the penal-ty of dismissal flom service into 'removal from service' as it was done in Trilcha Ram 's case. "
48. It is, thus, obvious that in the present case although the applicant was prosecuted for assaulting lfli3 colleague vfiifii sharp weapon, the same analogy will be J/I--A """"""""""" ---------------------" », an one vs <w"r"'1;1:\a 55 OA N0.-429/2017 applicable here. It cannot be said that simply because benefit of the provisions of PO Act is extended to him, the order of dismissal is liable to be set aside, treating it as if he has been acquitted of the said charge.
49. Another decision in Karen Singh Vs. State of Punjab and ano ther, Special Leave Peti ti on (Civil) No . .903/19.96 decided on
21. 09.1996, Manupatra/SC/O83/1996 is also relied upon in which the appellant and other accused were charged for the offences punishable under Sections 30.2/34, 323 and 324 of the Indian Penal Code. Session Court convicted appellant and other for offence under Sections 302/34, 324, 323 of Indian Penal Code. On appeal Hon'ble High Court set aside the conviction for the offence under Section 302/34 and 324 but upheld for the offence under Section 323 and the applicant was released on probation. On the strength of the ,__ - * ' '' ' ~.\ ,--- . ~ ,- | -..... ~ />--~ ----------------------------
''' ' ' ~ ~ -- _-,\:5','-;-§,=-._-.§1-_-_-_-.-;-.;-_-.-_-:-:1;____;-_,-.:_-=_4=_._-_._.:§_____;- ;-_jy._'jj_-5:. __._:: 1<:>:"--;<r::1*.-._, ' . _ e~§ii;sra.s' "" elf" 56 OA No.429/2017
_. \
said order, the appellant sought
reinstatement. However, authority
declined to reinstate him in
service. It was revealed that
conviction was cn11flua ground of his participation iJ1 causing time death of anni injury ix) one jperson. As appellant. was :member* of Discipline Police Force, it was observed that it was expected from.lfim1 Us prevent commission of crime rather to participate i11 crime. In sfirnv of it, it is held that the authorities were justified jll rejecting his claim :fiM: reinstatement. However, penalty of dismissal was altered to one of the removal from service.
50. It is obvious that fact of the present case are same in which time same analogy ire involved. The applicant vans released cni probation for offence under Section 324 of the Indian. Penal Code. As stated earlier, the Revisionary' Authority altered the dismissal to that of .-"" removal considering the facts and :5' n"
__,.-*"' 'I-
xi"
........_............................._. mi T'"""" '5F'\'*"'_'~:\' _ ?H?$i'§??'?
"Ts _ 57 DA No.-429/2017 circumstances of the case and conduct of applicant which led to conviction. .As such, 1U: cannot be said that the said decision is in any manner illegal and improper.
51. Another" decision. rendered. by the Hon'ble Supreme Court -in Civil .Appeal Nc.6423 of 2010 (arising out of SLP (C) No.4216 of 2008 decided on 10. 08.2010 _, Sushil Kumar Singhal vs. Divisional .Manager, Punjab National Bank, .Manupatra/SC/0578/2010 is also relied upon. In that case, the appellant was convicted by the Criminal Court under Section 409 of the Indian Penal Code for misappropriation of the Government funds. The respondent bank dismissed appellant from service, against which.lwe filed appeal" The Appellate Court maintained the order of conviction, however, released the appellant on probation. On the strength of his release on probation, he submitted . ___.1-"' f .-" -----'-'xx
-- """"""""""""""""""""""""""""""""""""""""" """""""""" J s evmziiermvie 58 GA N0.-429/2017 representation :fim: reinstatement km? setting aside the order of dismissal. However, the Tribunal passed award and rejected his claim for reinstatement. Writ Petition preferred against the said order was also dismissed by the Hon'ble High Court against which the pmesent appeal is filed before the Hon'ble Supreme Court.
52. .After considering the relevant provision of PO Act, it was held that once a Criminal Court guaranteed a delinquent employee benefit of PO Act, it order did not have any bearing so far as service of' employee concern. 11: was Iheld that. conviction 5M1 a. criminal. case was one part of case and release on probation was another. The employee could run; claim.e1 right ix) continue in service merely on the ground that he was given benefit under P0 Act. In that case, after being relieved on probation, the Appellant committed. another offence. Hence, _,_.,-=r'""
____________ _____ __ _->-.-,.M...-...-»..~.._.-_..._...:::_T __________ ._
- anisr<iiiiimsi.s!iieeiisAi 'A riiririiiiiiirr K 59 OA No.-429/2017 benefit of PO .Act gets terminated and appellant could be made liable to undergo sentence. The appeal was, therefore, dismissed confirming the order of Hon'ble High Court. -
53. In the present case, although aftemr being' released cn1 probation, there ins nothing cu1 record ix: show that during probation the applicant committed any other offence and he was cede ix; undergo tins punishment imposed on. lrun for the offence punishable under Section 324 of the Indian Penal Code;
54. It ins thus obvious from.'bhe
--.
above decision that release on probation of good conduct has nothing to <h> with lmrs service and consequently, the authorities are at liberty ix: take er decision cn1 the strength of his conviction in accordance with relevant rules, if a major punishment nxf dismissal / removal ,l compulsory' retirement cu:
any other lighter punishment should be imposedi IU1 any case, simply on ~-_-_;;_-;---------.-------t. _ _ _ .--.- -----.---.- ,. .--,.----.--.-..-|.-..."....-................... ........_._.._.:.___._..:._._.:._.:1._._.:_._.:._..:-;-_-1_--_---_-_-..-.-.-...-_.--.-)-.-.\-|"..,.-.-.-H|i..-:-_.;5...... .. § >3}? 11" '€".<"{3 ? 60 OA No.-429/2017 the strength of release on probation for the employee cannot claim reinstatement in service if major punishment ins imposed" However, as stated. and <iiscussed. earlier, this would not debar the Competent Authority" to pass an other appropriate order as provided in Rule 19(1) of CCS (CCA) Rules, which nmqr include continuance jri service with some minor penalty which shall wholly depend on nature of the offence and the attendant circumstances of each case in which the offence was committed.
55. In any case, in the present case since the applicant was charged with serious offence of .assaulting fellow' colleague with sharp "weapon in a public place, he does not deserve sympathy; For this reason, we do not find any force in the contention. of "the learned .Advocate for the applicant that the punishment of removal was harsh and it. should kma altered ix) any' other < \>. > '-* oi '<'§% we vsn=§'i._€s_?=?§3',%Ev;2X§{~i[i'i':%$"<'3'é;'€$,<>, E§K/ 61 OA No.42?!/2017 lighter' punishment, for time simple reason that 1fiua assault took pflace in public place causing bleeding injury ix) the informant cnmmr some dispute efixnn; allotment <xf duty which precedes the main incident of assault and applicant being responsible official working in Naval Dockyard under Ministry of Defence. .
56. .Another case relied. upon. by the respondents ii; the decision rendered by the Honible High Court of Madras in Writ Petition Nc.13925 of 2011 decided on 31 . 01 . 2012, C. Pilavadi Vs . State of Tamil Nadu, .Manupatra/TN/0448/2012. However, in that case, facts are cfistinct since although time punishment axf removal on conviction was set aside and petitioner permitted to join service, however, he was deprived of service benefits for suspension period. Adthough.j11'that case, the provisions cxf Sections J3, 4, 6 and 12 of the PO Act were also }/' an =11 s 62 OA N0.429/2017 considered, facts are different. It was held that a person who is dismissed. or .removed. from. service, in view of the conviction by the Criminal Court ims;not automatically entitled to reinstatement, upon getting benefit of release under PO Act. Ift is further held that provision of PO Act would go to show that during the gmnjrxi of probation supervision, control over offender is retained. by the Criminal Court and where ifl;"was substantiated that condition had been violated by offender released on probation, Court could sentence offender to undergo the original defence. Further, the order of conviction passed by the Criminal Court was not raveged merely by releasing offender on probation.
57; It is obvious that in that case, petitioner therein was convicted by Magistrate and said order of conviction was affirmed by Session Court, which instead of sent rd.
___»-
5; ------------------------ -- 4 .';.IrI..<"<T<. .........".='"*:"""""""'?'"""--"' r ;~ss=1E" iaesswvz *< >5 63 OA No.-129/2017 sentencing petitioner, released him on probation. As such, although petitioner was released, since conviction part was not set aside, he cannot claim benefit of the service benefit, although he was reinstated. by the order' passed. by the Hon'ble High Court in Writ Petition. Another' reason. recorded for not granting the service benefit is that petitioner still carried stigma of conviction on him although released on probation.
58. In the present case, although the applicant is not reinstated by the authorities, he cannot claim the said relief based on his release on probation simplicitor. As stated earlier, 'Tina Government employee found guilty of an offence and is convicted knn: instead cm? sentencing him to any punishment based on the said conviction, ;Lf released on probation, of good conduct, the authority' will be justified. in imposing Jmajor cm: minor' punishment _________________________________ _ ...,.,....,_-_-----2 , ------------------- 64 OA No.429/2017
on him depending upon nature of offence inui considering inns conduct and other circumstances which led to his conviction, as provided under Rule l9(l) of CCS (CCA) Rules.
59. In the aforementioned case, after considering the decision rendered by time Hon'ble Supreme Court in Bakshi Ram case (supra), it is held. in paragraph No.5 of the order, which is reproduced here for ready reference :--
"5. From a reading of the above observations contained in the pronouncements of the Apex Court, it is clear that a person, who has been dismissed or removed from service in view of his conviction by the criminal court, is not automatically entitled reinstatement upon getting the benefit of release under the probation of oflenders Act. In this regard, Section 9(3) and (4) ofthe Act may be usefully referred to. "
60. Learned Advocate for the respondents also relied on the decision rendered by Hon'ble High Court of Delhi in Writ Petition (C) No.3254/1992 decided on 24.08.2007, Satraj Singh Vs. Union of India and Others, .Manupatra DE/8421/2007. It '\ was a case of dismissal from service ._....~.' ' ..|' law
----- ~-T \~-----------------:_:I:-----------------------------------------------1-.-.-.-----------------:I1---:::-1r.1.-.1:;:-1::---------------::rq:§..r.-v--I-;:_'_______ _.E.:::.E.:::5.;:-;&;'-'\":_:_-;:!:'r.":"-"-"*<"-"'-'- } 3% 5;; """ """
65 OA N0.-429/2017 as per the provisions of Rule 161 (1) of the RPF Rules, 1987, since the applicant therein. suffered a conviction for the offence punishable under Section 323 of IPC read with Sections 120 enmi 121 of Indian Railways Act. Thus, on the strength sxf conviction, Ina was dismissed from service, against whicki the applicant approached} the Hon'ble High Court in the- present Writ Petition seeking ofirections to the respondents to reinstate him in service "with full back "wages from the date cxf jhis dismissal. The Appellant has also challenged the order' of conviction. before the Sessicmi Court ill which lni was released cnl probation runner Section 4 of the R0 Act, with further order that there shall be no adverse effect cni Ihis service. However, relying'<n1 the decision rendered by the Hon'ble Apex Court in Qbnnanéentiii 2Q?;, Battelisei ITB PQl§¢e_iYS¢.. . . . . .,Senieri-Binjalat ..... while ***ti "F k jimsx s iii E 66 on No.429/2017 exercising power to amend any order or to pass consequential or incidental orders Lnukmc Section 386
(e) of the Criminal Procedure Code, 1974, power" of .Appellate Court is limited tun passing axf orders which are permissible under Criminal Procedure Code or any other law. It is held that snnfilza power does not confer a jurisdiction upon Appellate Criminal Court ix: pass orders which tend ix: interfere in111 service cxf convict cm: affect rights chi party not before it. Zn; such, after passing order of conviction and extending" benefit. of jprovisions of the PO .Act, Criminal Court should not have issued any direction relating ix: service cxf the applicant, idnrfl1 is governed by Service Rules governing his condition of service. Hence, the directions issued by appellant court to the effect that conviction of petitioner shall not have any adverse effect on his service was \ E | --- - 2 > ...... r 3 r i 1
--
67 OA No.429/2017
held to be without jurisdiction and not binding on respondents. Writ Petition is, therefore, dismissed.
61. The aforesaid view finds support from previous decision rendered by Hon'ble Supreme Court in ,,,, , , , , ,_Ra1f;j Si;{1_c;h,,,,_,,, AIR in which it was held that the High Court while deciding a criminal case and giving the benefit of the [LE2 First Offenders Probation. Act, 1958 or similar enactment has no competence to issue any direction that the accused shall not suffer any civil consequences.
62. Ln the present case, although there was no such direction. issued by the Session Court while extending the benefit of the provisions of the PO Act to the applicant, the ratio laid down therein has no applicability to the present case.
63. Further reliance was placed on another decision rendered by Hon'ble High Court of Delhi in writ :5:::= | . I, a J .-
I.-""
Petition (Civil) na.2372/2010 .___..................... ..,,-...-.-.-<:-1;-L-3-i-_;_-_;:__f~;_5_E,-_?-1:----IIFir;F_.-CI____..-.-1.-.;,L-I;xv<-=::::--»~§%~}?'-£53E:EE:_H_:_K=__Q_:__z:5;_s;E¥&:_:_:c€>$_?.§_§:1§;¥££1§§§=_:_:_;_)_$.:.:............ ,....... . . \. . . . . . , . , __ "-"-'-- -»§&g§€é§w"".-...,€'§>§5 68 OA No.429/2017 In.-
decided on 18.04.2013, .Ajit .Knmar Vs. Commissioner of Police and Others, .Manupatre DE/1792/2013. It was a case where the petitioner was successful en: selection process for the post of Constable Executive in Delhi Police. However, he: was not offered appointment since the respondents took a view that in view of in; being guilty (Hf having committed' offence punishable under Section 308 of IPC, although he was released cni probation. for inxhfli he had furnished a bond to keep good behavior for two years, he is unfit to be appointed as a Constable in Delhi Police. l1;.is obvious that in the present case, the applicant was dismissed while in service and hence the said ratio is not strictly applicable ix). the present case, although larger question which falls for consideration in that case was whether petitioner having been released under Section 4 of P.O. Act . .--"J , does run; suffer* disqualification _..--"-
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69 0A N-3.429/2017
because (Hf Section 12 cxf said Act.
It was held that release of
Petitioner under Section 4 of
Offenders inn; would inn: obliterate
his 'act which constitutes offence
and he would not be entitled to any relief even on interpretation of Section 12 cif PK) Act. IU: is also held that run right lii said.tx> have accrued in favour of petitioner for appointment who was only on threshold of being appointed. As stated and discussed 'earlier, disqualification stated in Section 12 nxf the .lK) .Act pertains to consideration for fresh appointment or to contest election and it has nothing to-ch) with or ix: deal with the person inn: was already in Government service and dismissed/removed on the strength of conviction. "under* the relevant provisions of time .Act to claim reinstatement iJ1 service <ni the ground that release on probation does not constitute disqualification /"
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-- X» sviiaishiififiihiiiiiii %*311Tr "Kn-r¢»\>>r ;%<{</_ 70 OA 510.429/2017 for continuance in service.
64. It is, thus, obvious that scope of setting aside the order of dismissal passed under Rule 19(1) of CCS (CCA) Rules is limited, although while dealing with the case, the conduct which led.tx3 the conviction is required to be seen. Further, if the order of dismissal passed under Rule 19(1) of CCS (CCA) Rules can be questioned or inn: aside only ii: is shown that it has been passed by the incompetent authority. In. the present case, competency of Disciplinary Authority"luns not been challenged by the applicant.
65. Further, reliance: was jplaced on E1 decision. rendered kn? Honflble High Court of Patna in Civil Writ Petition No.8105 of 1996 decided on 22.06.2011, Laldhar Pandey Vs. State of Bihar and Others, Manupatra BH/0591/2011. It was again a case of dismissal from service on the ground that the Petitioner was convicted in criminal case although benefit of ....1.ff-:\:_::-E__.___......::-.-.-..<._:._._.:.:-_--\.----\.-\.--\.----\.-\.-"fi--\.:.;-'v:P- 5.................. .. »~T\\<."- _ ..._.. ._... ,..-.... .. ...._ ::;_:; XI I I \ I I I I I I IN \ _ __\___ __ _\v -»-- -» ---- > X '2 ?
71 OA No.-429/2017u-
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Sectbmn 4 of the PO Act was granted by Hon'ble High Court. The order of dismissal inns challenged cni the ground that without observing the direction of the Hon'ble High Court, the: respondent, .Appellat£a.Authority had- affirmed the dismissal order. However, ii; was luflri that the Appellate Authority was justified in holding that the seriousness of charges proved called for a suitable punishment ill as nnufll as dismissal from service. So far disciplinary proceeding was cmmcerned, all procedures were followed and after giving proper opportunity to the petitioner, impugned order was passed. Interpreting Tina provisions of Section 3 and 4 of the PO Act, it was further" held. that tuna benefit under those provisions was only with regard to sentence without having any effect on conviction. It- was specifically held that if conviction is there, ea Government employee Z cannot claim for reinstatement in \ ..................... .. L-----1:::r-£1_:;.:=_:§:_:_:_§_"_';'-'v-'-"-'-"-"-'-""Y">'.:'.-::r-'4:'.'.-.I'.-::1:-I$13fiE§fiE%.§§£.:.§.,:.$.£._§.:$.&.$§EE3ii:§5§_i§;f;-;:;::§;I;'§:§.'.-'-:-:--,->31-:-.->',./..>--- ...>-1-->--_s_"'\ -- -- géfifif 'xi & X? 3? xi § \{{ 72 OA No.429/2017 view of disqualification earned under Article 311 of the Constitution. cxf India. The said. analogy is applicable in the present case and simply because the applicant although ins convicted for the offence under Section 324 of IPC and benefit of tins provisions of Section 4 of the PO Act is extended to him, he cannot claim reinstatement on the said ground, since it is a stigma on his part and simply because he was not put behind bars on the strength. of the said conviction. This Tribunal does Jnot find any illegality or infirmity in the order passed by the Authorities which is on the strength of the conviction. by the Trial Court and the Appellate Session Court maintaining the conviction of the applicant inn; extending" benefit of the probation to him.
66. Another" decision. of Honible High Court of Delhi in LEA .No.457/2000 decided on 22.02.2008, F}zEl'?;'i§'<,Ei%°"""'"\>""s 73 OA No.429/2017 Union of India Through, The Secretary .Ministry' of' Defence and Chief of the.Army Staff vs. Hawaldar Ved .Prakash, Sangwan, .Manupatra DE/2961/2008 also involves similar question, in which the respondent therein was found guilty of the offence punishable under Section 323 of the JIKI and ultimately the Hon'ble Supreme (knnn; extended the benefit cxf probation."to than which according tm>1rnn does not amount to disqualification for receiving the pension and other pensionary benefits. Although issue involved is distinct in that case, the respondent therein. was not reinstated based. cni his release under the provisions of PO Act. 67, Another~ decision. rendered lg;
Hon 'bl-e Supreme Court in Civil
Appeal No.2992/1995 decided on
24.02.1995, Deputy Director of
Collegiate Education
(Administration) , Madras Vs . S.
Nagoor Meera, AIR 1995 SC 1364, in
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74 OA 940.429/2017
that case a show cause notice was
challenged. by vdmrfiz the respondent
was called upon to explain as to why he should not be dismissed from service in view of his conviction by the Criminal Court for accepting gratification. Ufiwa Tribunal granted the relief. However, on appeal it was held that until said conviction is set aside by Court, it may not be advisable 13> retain snnfli person jJ1 service. In the present case, as stated earlier based on the show cause znotice" dated 11.05.2015, the authorities have passed the impugned orders, after giving opportunity to applicant ix; respond jig 'which are found to be perfectly legal, correct and proper.
68. Another' decision rendered. by Hon'ble Supreme Court in CDA. Nos.5l95-5197/1998 decided cu:
14.09.2000, Wazir Chand vs. Union of India and Others, 2001 (6) SCC 596 is also relied upon. However, its perusal show that it pertains to _ _.... ....._ .. ,... me??? $R\r'\ 75 OA No.429/2017 Labour and Industrial law and. the issue involved was regarding charging of Penal rent for Government . accommodation of applicant.¢after rue; superannuation.
As such, it is not relevant to the present case.
69. Another' decision rendered. by the Hon'ble Supreme Court in Civil Appeal No.265l/1992 decided on 24.07.1992, -State of Punjab and others Vs. Ram Singh, Ex--Consta.ble, (l992) 4 SCC 54 is also relied upon. In that case, the disciplinary proceeding was initiated against the respondents under ERHAE 16(2) of Punjab Police Manual, 1994 for grave misconduct. The respondents was removed from service after conducting enquiry although the order of dismissal was set aside by the Court below, the Hon'ble Supreme Court held that it was a grave misconduct cnu the jpart <xE the respondents, who was a Gunman having service revolver 1&1 his jpossession "-"--"'"'-_jj';"'">'>;?.-.1::--'*'-"--"'11ff;"""'"""""'_f-E51-?_{{?-*"?$£-I-F"""""--"""""" """"""""""""""""""$2 '?<"'¢\§ Z 5? 76 OA No.42-9/2017 and while heavily drunk and roaming jJ1 market (M1 duty. Obviously, although ratio laid down cannot be denied, the issue regarding dismissal from service based on the conviction aumi release (M1 probation is not involved in the said cases.
70. Another' decision..relied. upon by the Hon'ble Supreme Court in Civil .Appeal .No.1323/1999, decided on 02.09.1997, Union of India and others Vs. Ramesh Kum, AIR 1997 SC 3531, although in that case, the respondents who was governed by Bombay Civil Service Rules was dismissed from service after holding disciplinary proceeding against him under CCS (CCA) Rules, 1965. Further, based on his conviction for some offence, the respondent was dismissed. from service. Ihe= said conviction inns challenged and the Appellate Court under Section 389 of the Criminal Procedure Code, 1974 avoids runny: going sentence pending criminal appeal since execution. of
-<'>'='~':~=>;;1;::g1'.'§;F-';='rI;'-'- W-"_§f2<"\"<'Z<'-T3'~'<F<T -tr13:"'""""""";r::*"-="-1%?-errE!i?£<'*ii?-5?EYew;s*<-vin A is was-">§i~n\'<3?%% iii'??? 9 77 OA NCL429/2017 sentence was suspended. In spite of it, it was held that conviction continues and is not obliterated.
71. In the present case, on appeal inns Session (knnn: maintained the conviction but extended the benefit of PO Aflta The core issue is the conviction continues although benefit of PO Act is extended and hence, the applicant is not justified in seeking reinstatement on the said ground, especially in absence of anything on record -to show that he has challenged the order of Session Court by' way of revision and.i1na Hon'ble Efiifli Court has set aside the said order and acquitted him of the charge.
72. Another' decision. rendered kn? Hon'ble Principal Bench, CAT, New Delhi in OA No.3168/2013 decided on 05;01.20l5, Sukhdeo Singh Karkhal Vs. Union of India, Manupatra/CA/0009/2015 relied upon by the respondents although pertains to punishment imposed after holding """"""" axggznegrengvmn;g@Té;§i%E§$E%%?"sE'§%% ' '?'"""*"€*» 78 OA No.429/2017 regular departmental proceeding, the issue regarding imoral turpitude is considered in it. It is stated that the term misconduct may involve moral turpitude enui it must be improper' or "wrong" behaviour or unlawful behaviour, willful in character, forbidden act, a transgression of some established and. definite rules of action, but not mere error of judgment, carelessness cm: negligence 311 performance of the duty. This view is based on the decision rendered by the Hon'ble Supreme Cbmrt 1J1 State of Punjab Vs. Ram Singh, AIR 1992 SC 2188 (supra).
73. As stated earlier, the misconduct (n1 the jpart <xf the applicant ill assaulting lmes fellow colleagues with sharp weapon in public place by raising quarrel, which is proved before the Criminal Court can safely be said to be his unlawful behaviour cm: forbidden act and hence, it may even amount to the .-. 'W'. |- -"'-
............................. -- ?*§"'*'W' 79 OA N0.429/2017 commission of offence involving moral 'turpitude. 111 this .respect, we do not find any force in the contentions of inns learned Advocate for the applicant since the offence does not involve moral turpitude and the applicant is entitled to reinstatement since ins is released on probation and is not sent to jail for undergoing any sentence.
74. Another' decision rendered. by Ernakulam. Bench of CAT in GA No.l80/00320/2017 decided on 06.06.2017, Sarath K..N. Vs. Flag Officer Commanding in Chief Headquarters, Southern Naval Command and others, .Manupatra/CA/0544/2017 is also relied upon. This case, however, involves the issue of termination from service, when the candidate was reported to be of bad character and. antecedents. IHence, without issuing notice, the termination order followed. The issue .involved ;ni time present; case is distinct as stated earlier and .\ | -'=-"'F-'/»>"co=>-='-av-vezn-=av 1. """" _ _ \ *3' T"? ">'<'">"*<"'\¥ *1"? 80 OA No.-429/2017
hence, time said decision in aforesaid or is not directly applicable to the present case.
75. Lastly, decision. rendered kn; the Hon'ble High Court of Bombay in Writ Petition No.89l/2010 decided on
06. 10 . 2017, Khizer Salim Vs . State of Maharashtra and others I .Manupatra/MH/2364/2014 is ' also _._,-P relied upon. In that case, the applicant seeks reinstatement. in service, who was previously dismissed when he was found to have been involved is1 serious crime like causing grievous hurt by deadly weapon. He, however, could. get acquittal Ibecause Ibenefit cu? doubt was extended 1M1 his favour. This was, however, before entering in service. The petitioner therein was then appointed &ns.Assistant Teacher in High School run by Zila Parishad, Beed. Holding that image of petitioner should.kna ideal and free from. any' doubt from students, who would be continuously in his contact . . . . .. . . . . . .. -;-,1 =;-_> _;.;=_:=-_-=-.-=.-'= . .. . . . . . ., . . . . .
-- "iauergvrmarrrv ; ;eu'1me 'M 2? I 81 OA N0.429/2017 Ii for purpose of education, if he was reinstated. However, since ii; was |.;| found that there was willful -.%- suppression Tina fact of his conviction :fimnn Department, Ina was IE II;
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considered Ix) be run; found ifii; for III I I Ii |I| the post and hence, he was dismissed from service. holding him dishonest.
II II! I Thus, in spite of securing acquittal Ii from Criminal Court, benefit of I I I reinstatement was not granted to I' I I I I him. It is obvious that facts of I1 I I I I II the said case are distinct since in I the present .case there is Jno I question cmf suppression cxf fact <mf II I I I conviction and dismissal is based on I I II conviction.
76. A.further factor that must be weighed.i11'Uma present case is that I the applicant was jpart cnf a. team I serving in the civilian wing of the I Ii I Navy, an establishment that requires disciplined functioning for its F.3Ifi»"I|?LlfiIL%Z effective working. The members serving particular functions have to II 'work together as ea team is: a ....... __ k M2::..::,...,,~~>->~>,...»¢-_ f -I 1 K 82 OA No.429/2017 harmonious fashion. Quarrels might occur but responses have necessarily to be kept within bounds and a members reaction cannot extend to E the intemperate levels cxf resorting to attacks with a sharp weapon. This has the effect of seriously damaging the Ixnnn culture essential for the job and grossly disorderly conduct can hardly find place in such. eni establishment Inn: might possibly be manageable in another I job that could provide fewer opportunities for outrageous behaviour. The action of removal by the respondents, therefore, does not 5 disable: the applicant from. seeking I some other job to his liking and E temperament. 2
77. From the above discussions, the following conclusions Iare mm' drawn:~ I (1) The applicant having been convicted for the ofleuce punishable under' Section 324 ofIPC by the Competent Criminal Court, but is released on probation ofgood behaviour as pet' the provisions of Section -4 of the PO Act, is hot entitled to reinstatement in service, by holding that such release does not amount to disqualification for a further continuance in .
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service in view ofsection J2 ofPO Act. (ifl A Based on the order of conviction, 1:
the -competent authority under CCS (CCA) 1. Rules is empowered to inflict any major or minor penalty on the applicant, as provided € i under Rule 19(1) of CCS (CCA) Rules, by considering his conduct which led to his conviction for the offence, awarded by the Criminal Court. FM ii.f M ,
(iii) Under Rule 19(1) of CCS (CCA) \ l Rules in cases in which conviction is for minor oflence and benefit of the provisions ofPO Act at is extended, in that event the Competent Authority under CCS (CCA) Rules in its discretion may not impose any penalty (major or minor) and the Government servant may be allowed to continue in service in spite of his conviction.
(iv) In the event the conviction is for the oflence involving moral turpitude then normally major penalty of dismissal/removal \ from service will be justfified to be imposed by the competent authority, of course afier considering his conduct which led to his conviction and other circumstances of the case.
(v) Even afier a Government servant is released on probation of good conduct by extending the benefit of the provisions ofP. O. Act on conviction, instead of inflicting any punishment on him, such release will have the E same eflect of conviction and the Government M servant cannot claim that since he is not put Y M E behind bars and since released on probation M \ 1:
t', M \ of good behaviour, he is entitled to be E continued in service or to reinstatement by #1 E setting aside order ofdismissal.
78. In the result, it is obvious that no case has been made out by E \ \ f' \| the applicant for interference by \ T' this Tribunal. It cannot be said 1 that the impugned orders .................................................................... ,__. . .. . . . . . . . \ , ~ . . . . .. i_--_,-;--;_1;;;;_-H;
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79._ The OA, therefore, stands , dismissed. The parties are, _,.,-
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