Rajasthan High Court - Jaipur
Bhairu Singh vs Union Of India (Uoi) And Ors. on 28 July, 2003
Equivalent citations: RLW2004(3)RAJ1578, 2004(1)WLC459
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT Panwar, J.
1. This writ petition has been filed for issuing a direction to the respondents to withdraw the order of his dismissal from Army Service as well as the impugned order Annex.8 dated 5.2.2000, by which the petition filed by the petitioner was rejected by General Officer Commanding-in-Chief and taking the petitioner on duty as if such orders have not been passed.
2. The facts and circumstances giving rise to this petition, in brief, are that the petitioner was recruited by the Branch Recruitment Officer (for short, "B.R.O.") on 26.12.97 and the relevant Enrolment Form was filled-up by the Havaldar of B.R.O. Office and petitioner replied all the quarries made by the Havaldar. On being recruited, he had undergone the training and was waiting for attestation. A verification of character and antecedents was called from the District Magistrate, Jodhpur, who after due verification, sent the Verification Roll (Annx.3) stating therein that the petitioner was prosecuted in criminal case No. 52 dated 19.6.1994 for the offences under Sections 147, 148, 149, 447, 336, 353 and 332, IPC and after trial, he was convicted but given the benefit of Sections 4 and 12 of the Probation of Offenders Act, 1958, vide judgment and order dated 26.9.1996 of the Court of Judicial Magistrate, Balesar (Jodhpur). Thereupon a tentative charge-sheet was issued to the petitioner by the respondent Authority and respondents proceeded to record summary of evidence and ultimately the petitioner was tried by Summary Court Martial. Petitioner pleaded guilty before the Court Martial. Punishment of dismissal from service was awarded vide order dated 26.6.99. Against the order of dismissal from service, petitioner preferred an appeal but the same also stood rejected vide impugned order Annx.8 dated 5.2.2000. Hence this petition.
3. I have heard learned counsel for the parties and perused the record of the Case.
4. It has been contended by the learned counsel for the petitioner that Column No. 15 in the Enrolment Form pertains to past "conviction", but as no criminal case was pending against the petitioner, the word "NO" has been filled up in the form; the petitioner had been granted the benefit under the Probation of Offenders Act as the offence did not involve moral turpitude; in the verification roll it has categorically been mentioned by the District Magistrate that according to the judgment of the learned trial court, there would be no adverse effect on the Government service of the petitioner; petitioner was tried by Summary Court Martial for the offence under Section 44 of the Army Act, which envisages that if any person makes willfully false answer on enrollment, he will be punished under the Act but there was no such wilful false answer by the petitioner. Before the Court Martial, petitioner offered an unequivocal plea of guilty on being assured by the Presiding Officer holding the Summary Court Martial to take a lenient view and as such he could not put his defence in a proper way, but ultimately he was punished; he was given benefit of Section 12 of the Probation of Offenders Act prior to his joining the services under the respondents and the respondents could not have gone beyond the specific judgment of the learned trial court; and lastly he contended that the punishment awarded is disproportionate to the guilt.
5. On the other hand, learned counsel for the respondents supported the decision of the respondent authority.
6. On the basis of the contention raised by the learned counsel for the parties, in the instant case, the following questions arise for consideration and decision:-
(i) Whether the fact that the petitioner was prosecuted in a criminal trial is a material fact, the suppression of which would entitled the respondents to dismiss him from defence services on that ground?
(ii) whether the ultimate conviction but grant of benefit of probation to the petitioner would condone or wash out the conviction and consequences of suppression of the fact that he was prosecuted and convicted ?
(iii) Whether the suppression of the material fact would not by itself disentitle the petitioner to remain in service?
7. It is difficult to say that information which was required from the petitioner in Column No. 8 of the Enrolment Form was in respect of only those offences which were related to moral turpitude. Suitability for a post has several dimensions. Even if an offence is not related to moral turpitude, the motive behind commission of the offence, the circumstances in which the offence was committed, the manner of commission of the offence, the consequences arising from commission of the offence, may be relevant for the purpose of assessing the suitability of the candidate for a post. The fact that the petitioner was prosecuted in a criminal trial is a material fact, suppression whereof, when enquired about, would entitle the employer to inflict penalty in accordance with law. The petitioner was convicted by the criminal court. However, instead of sentencing him to any imprisonment, the trial Court granted the benefit under the Probation of Offenders Act to him, which does not obliterate the fact of prosecution and conviction by the Court. The suppression of such material fact by itself disentitles the petitioner to remain in Army services where norms of discipline need strictly be adhered to. All those persons who desire employment under the State must, therefore, be deemed to be under a legal duty to speak the truth to the employer not only while applying for the post but also when appearing in the written examination or during the interview or at any time thereafter. It is, therefore, absolutely necessary that a person who is desirous to be appointed in Disciplined Force, must consider it his duty to respond and to answer truly without committing "suppressio veri" and "suggestio falsi" while dealing with the employer or with the subjects.
8. I am fortified by view by the judgment of Larger Bench of this Court in Dharam Pal Singh and 4 Ors. v. The State of Rajasthan and Ors. (1). The law laid down by the Larger Bench of this Court squarely applies to the facts and circumstances of the case.
Effect of granting probation:-
9. The law is well settled by the Hon'ble Supreme Court that despite the accused having been released under the Probation of Offenders Act, 1958 (for short, "the Act, 1958"), stigma of the conviction is not wiped out on such release and punishment for misconduct of the accused, if he is in Government service, remains intact even if the benefit of Section 12 and 14 of the Act, 1958 is granted stating therein that the conviction does not suffer disqualification.
10. In Union of India (UOI) v. Bakshi Ram (2), the Apex Court held that in criminal trial, the conviction is one thing and sentence is another. The Court, while invoking the provisions of Sections 3 and 4 of the Act, 1958 do not deal with the conviction; but only deal with the sentence which the offender has to undergo. Instead of sentencing the offender, the court releases him on probation of good conduct; the conviction, however, remains intact and the stigma of conviction is not obliterated. Section 12 does not preclude the department from taking actions for misconduct leading to the offence of to his conviction thereon as per law. The section was not intended to exonerate the person from departmental punishment. It only directs that the offender "shall not suffer disqualification, if any, attaching to a conviction of an offence under such law." Such law in the context is other law providing for disqualification on account of conviction. For instance, if a law provides for disqualification of a person for being appointed in any office 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 effect is the scope and effect of Section 12 of the Act, 1958.
11. In Additional D.I.G. of Police, Hyderabad v. P.R.K. Mohan (3), the Apex Court reiterated the view earlier taken by it in Bakshi Ram's case (supra), and observed that it is settled law that Section 12 of the Act, 1958 does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The Section is not intended to exonerate the person from departmental punishment.
12. The issues involved herein are no more res-integra. The Hon'ble Supreme Court in Hari Chand v. Director of School Education (4), interpreted the provisions of Section 12 of the Act, 1958 and held as under:-
"In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. That is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12, suffers the disqualification. It cannot be held that by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.
13. In Ratan Lal v. Union of India and Ors. (5), this Court placed reliance upon Hari Chand (supra), and took the view that the benefit of probation under the Act of 1958 merely takes away the effect of sentence and not of conviction.
14. In Trikha Ram v. K. Seth and Anr. (6), the Hon'ble Apex Court has held that if a person stands convicted and is given the benefit of the provisions of the Act of 1958, his services can be terminated only on the ground that he stood convicted. But by virtue of the provisions of Section 12 of the Act, 1958, his removal cannot be a 'disqualification' for the purposes provided in other Statutes.
15. In Deputy Director of Collegiate Education (Admn.) v. S. Nagoor Meera (7), the Supreme Court has considered the controversy whether, when the accused is convicted by the criminal court, the disciplinary authority would still await the outcome of the case. The Apex Court opined that once the accused was convicted, it forms basis for taking the action under proviso to Article 311(2) of the Constitution, which will, however, be subject to ultimate result of the prosecution case. In the event the case ends in favour of the accused and honourably gets acquitted, then the authorities are required to reconsider the order of removal. That ratio also does not help the petitioner since he has already been convicted for the offences he was charged with and it is a disqualification though he was released on probation. The same view has been reiterated in Union of India (UOI) v. Bakshi Ram (8), Karam Singh v. State of Punjab and Anr. (9), and Addl. D.I.G. of Police, Hyderabad v. P.R.K. Mohan (10).
16. Similarly, in Shanker Das v. Union of India and Anr. (11), the Hon'ble Apex Court has held that the order of dismissal from service, consequent upon a conviction, is not a disqualification within the meaning of Section 12 of the Act, 1958. "There are Statutes which provide that the persons, who are convicted for certain offences, shall incur certain disqualification; for example, Chapter III of the Representation of Peoples Act, 1951 entitles 'disqualification' for Membership of Parliament and State Legislatures, and Chapter IV entitles 'disqualification' for voting, contains the provisions which disqualify persons convicted of certain charges from being the Members of Legislatures or from voting at election to the legislature. That is the sense in which the word 'disqualification' is used in Section 12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the High Court that Section 12 of the Act takes away the effect of conviction for the purpose of service also."
17. In Divisional Personnel Officer, Southern Railway and Anr. v. T.R. Challappan (12), the Hon'ble Supreme Court observed that the conviction of an accused, or the finding of the Court that he is guilty, does not stand washed away because that is the sine- qua-non for the order of release on probation. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.
18. In Dalbir Singh v. State of Haryana (13), the Hon'ble Supreme Court held that in serious nature of the cases the Court must dissuade from giving benefit of the Act.
19. Even if the trial Court or Appellate Court gives benefit of the Act, 1958 to the accused, it has no competence to observe that criminal prosecution/conviction shall not adversely affect the service of the accused.
20. In State of U.P. v. Ranjit Singh (14), the Hon'ble Apex Court has held that the High Court, while deciding a criminal case and giving the benefit of the Act, 1958, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. The Apex Court observed as under:-
"We also fail to understand, how the High Court, while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without break, and, therefore, he should be paid his full pay and dearness allowance during the period of his suspension. This direction and observation is wholly without jurisdiction. ......"
21. I have carefully gone through the order Annx. 4 dated 26.9.96 passed by the Judicial Magistrate, Balesar. It nowhere says that the conviction would not adversely affect the service career of the petitioner. Moreso, the criminal court has no competence to pass an order under the Probation of Offenders Act, 1958 inteferring with the service career of the convict.
Suppression of material fact:-
22. It is settled proposition of law that when a person approaches for employment, he should approach the employer not only with clean hands but with clean mind, clean heart and clean objective also. A Constitution Bench of the Hon'ble Supreme Court, in Naraindas v. Government of Madhya Pradesh and Ors. (15), has held as under:-
"Now, there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due process of judicial proceeding and, thus, amounts to contempt of Court."
23. Similar view has subsequently been reiterated by the Apex Court in The Advocate General, State of Bihar v. M.P. Khair Industries and Anr. (16), and Delhi Development Authority v. Skippers Construction and Anr. (17).
24. In Jai Kumar v. State of Madhya Pradesh (18), the Hon'ble Supreme Court has observed as under.-
"Justice is supreme and justice ought to be beneficial for society so that the society is placed in a better situation. Law Courts exist for the society and ought to rise up to the occasion to do the needful in the matter and as such ought to act in a manner so as to subserve the basic requirement of the society."
25. In State of Punjab v. Baldeo Singh (19), the Hon'ble Supreme Court observed as under:-
"In every case, the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself."
26. In the instant case, the petitioner is guilty of supressing the material fact that he was prosecuted and convicted in a criminal trial. He has not approached the employer with clean hands, clean mind and clean objective and hence the respondents were justified in dismissing him from services.
27. In view of the above, I find no merit in the writ petition and it is accordingly dismissed. However, there shall be no order as to costs.