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PETITIONER: HARICHAND

       Vs.

RESPONDENT: THE DIRECTOR OF SCHOOL EDUCATION

DATE OF JUDGMENT:       14/01/1998

BENCH: S.P. BHARUCHA, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. BHARUCHA, J.      The respondent  has been  served  but  has  put  in  an appearance.      The appellant was convicted of an offence under Section 408 of  the Indian  Penal  Code  and  sentenced  to  undergo rigorous imprisonment  for a  term of two years and to pay a fine of  Rs. 1,000/-.  In appeal,  the Sessions Court upheld the conviction  but set aside the sentence and directed that the appellant  be released  on  entering  a  bond  for  good conduct in  the sum  of Rs.  5,000/- and furnishing a surety for the like amount.      By  reason   of   the   appellant’s   conviction,   the respondent, in whose employ the appellant was, dismissed him from Government service. The dismissal was challenged by the appellant in  a writ  petition filed  before High  Court  of Punjab and  Haryana. By  the order  dated 25th  March, 1985, which is  under appeal,  the  writ  petition  was  summarily dismissed.      Learned counsel  for the  appellant submitted  that the conviction could  not have  been taken  into account for the purposes of  removing the  appellant from Government service by reason  of the  provisions of Section 12 of the Probation of Offenders  Act, 1958,  the  operative  portion  of  which reads:      "Notwithstanding anything contained      in any  other law,  a person  found      guilty of an offence and dealt with      under the  provisions of  Section 3      or  Section   4  shall  not  suffer      disqualification, if any, attaching      to a conviction of an offence under      such law".      Learned counsel drew our attention to the order of this Court in  the case of Aitha Chander Rao V/s. State of Andhra Pradesh [1981  (Supp.)  SCC  17].  The  said  Rao  had  been convicted under  Section 304A  of the  Indian Penal Code and sentenced to undergo two years rigorous imprisonment and pay and pay a fine of Rs. 500/-. On appeal to this Court against the judgment  of the  High Court  affirming the  conviction,

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this Court found no reason to interfere on the merits of the appeal. The  only question that it considered was whether it was an  appropriate case  in which  the appellant  before it could be released on probation. The Sessions Judge had found that there was some amount of contributory negligence on the part of  the of the said Rao. Having regard "to the peculiar circumstances of  this case" it was thought to be a fit case to release  the said  Rao on probation. The Court added,  As the appellant  has been  released on  probation this may not affect his  service career  in view  of Section  12  of  the Probation of Offenders Act"      The order  in the case of the said Rao was delivered on an appeal  against conviction.  The conviction was sustained but, having  regard to  the peculiar  circumstances  of  the case, the  said Rao  was released  on probation  and it  was added that  "this may  not affect his service career in view of Section  12 of the Probation of Offenders Act". We do not find in  the order  in Rao’s  case  any  discussion  of  the provision  of   Section  12  or  of  the  meaning  of  words "disqualification, if  any, attaching  to a conviction of an offence under  such law"  such therein.  The  order  cannot, therefore, be  regarded as  a  binding  precedent  upon  the point.      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 the 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 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,  suffer 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.      The appeal is dismissed. No order as to costs.