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PETITIONER: DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY & ANR.

       Vs.

RESPONDENT: T.R.

DATE OF JUDGMENT15/09/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1975 AIR 2216            1976 SCR  (1) 783  1976 SCC  (3) 190  CITATOR INFO :  O          1985 SC1416  (5,63,107,108,109,113,114,115,  RF         1986 SC 555  (6,8)  F          1989 SC 662  (9)  F          1990 SC 987  (8,11)  R          1991 SC 385  (4)

ACT:      Probation of  offenders  Act  1958,  s.12  and  Railway Servants (Discipline  and Appeal)  Rules, 1968,  r.14 (1)  - Release on  probation under  the Act-  Effect  power to take disciplinary action.

HEADNOTE:      Rule 14(1)  of the  Railway  Servants  (Discipline  and Appeal) Rules,  1968 provides that not withstanding anything contained in  rr.9 to 13, where any penalty is imposed  on a railway servant  on the  ground of  conduct which has led to his  conviction  on  a  criminal  charge,  the  disciplinary authority may  consider he  circumstances of  the case’  and make such orders thereon as it deems fit,      Section 12  of the  Probation of’  Offenders Act, 1958, provides that  not with  standing anything  contained in any other law a person found guilty of an offence and dealt with under the  provisions of  s.3 or  s.4  shall  not  suffer  a disqualification, if  any, attached  to a  conviction of  an offence under such law.      The respondents  were found  guilty  of  certain  minor offences and  instead of  being sentenced,  were released on probation under the provisions of the Probation of offenders Act. The  concerned  Disciplinary  Authorities  however,  re moved them  from service  on the  ground of their conviction without any  further opportunity  to  the  respondents.  The respondents challenged  the orders  of removal  and the High Court quashed the orders.      Dismissing the appeals to this Court, ^      HELD: (1)  The conviction  of the  delinquent  employee would be  taken as sufficient proof of misconduct, and then, the authority will have to hold a summary inquiry  as to the nature and  extent of  the penalty  to  be  imposed  If  the authority is  of the opinion that the offence is too trivial

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or of  a technical  nature it  may not impose any penalty in spite of  the conviction. If the authority is of the opinion that the  employee has  been guilty  of  a  serious  offence involving  moral   turpitude,  and   therefore  it  was  not desirable or conducive in the interests of administration to retain such  a person in service, the disciplinary authority has the  undoubted power,  after hearing  the  employee  and considering the  circumstances of  the case,  to inflict any penalty without  any further  departmental inquiry. As there was  no  such  application  of  mind  and  consideration  of circumstances the  orders of  removal  are  rightly  quashed [795H-796E, H]      (2) The  view of  the Kerala  High Court,  that as  the Magistrate released  the 7 delinquent employee on probation, no penalty  was imposed  and that therefore r.14 (1) did not apply, is  not correct.  The word  ’penalty’ in  the rule is relatable to the penalties to be imposed by the Disciplinary Authorities under  the Rules  and not to the sentence passed by a  criminal court.  Because, so  far as  the disciplinary authority is  concerned it  could only  impose a penalty and not a  sentence, just as a criminal court, after conviction, does not  impose a penalty but passes a sentence. Hence, the words "where  any penalty  is imposed" in r.14 (1) should be read  as   ’where  any   penalty  is   impossible’  by   the Disciplinary Authority. [787E-F; 788A-R; 789D-H] 2-L1127SCI/75 784      (3) If  the Magistrate did not choose, after convicting the accused,  to pass   any sentence on him but released him on probation  it could  not be  said  that,  the  stigma  of conviction is  completely washed  out or obliterated or that no disciplinary action could be taken under r. 14(1). [790B- C]      Sections 3,  4 and  9 of the Probation of offenders Act show that  an order  of’ release  on  probation  comes  into existence only  after the  accused is  found guilty   and is convicted of  the  offence.  Such  an  order  is  merely  in substitution of  the sentence from a humanist point of view. The control  over the  offender is  retained by the criminal court and  where it  is satisfied that the conditions of the bond had  been broken by the offender, who has been released on probation  the Court  can sentence  on the  basis of  the original  conviction,   showing  that   the  guilt   is  not obliterated. [790H-791D]      (4) The  words disqualification,  if any attaching to a conviction of  an offence  under such law, in s. 12 mean (1) that there  must be  a disqualification  resulting from    a conviction; and  (ii) that  such  disqualification  must  be provided by  some law  other than the Probation of offenders Act. It  could not  be contended that the ‘disqualification’ referred to is the ’liability under r. 14(1) to disciplinary action  without  a  departmental  enquiry’,  and  that  such disqualification is  removed by  release on  probation.  The disqualification must he an automatic disqualification; such as regarding  holding of  officer or standing for elections, as a consequence of’ the conviction. Rule 14(1) incorporates the principle  contained in  proviso (a) to Art. 311(2). But neither of  these provisions  contain any  express provision that the  moment a person is found guilty of misconduct of a criminal charge  he will  have to be automatically dismissed from service.  These provisions  are merely  enabling and do not enjoin  or confer  a mandatory  duty on the disciplinary authority  to   pass  an  order  of  dismissal,  removal  or reduction in  rank the  moment an employee is convicted. The proviso to  Art. 311(2)  was enacted  because, when  once  a

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delinquent employee has been convicted of a criminal offence at a  trial, where he had a full and complete opportunity to contest  the  allegations,  that  should  be  treated  as  a sufficient proof  of his  misconduct, and  the  disciplinary authority  may   be  given  the  discretion  to  impose  the penalties referred  to in  Art. 311(2),  without  holding  a fresh full-dress  departmental inquiry.  If r.  I’’  of  the Probation  of  offenders.  Act  completely  wipes  out  this liability to  disciplinary action  on the basis that it is a ’disqualification’ under  the section then it would be ultra vires     as  it  would  be  in  direct  conflict  with  the Constitutional provision. [788G-H; 789C-D, 791F 792F]      R.  Kumaraswami  Aiyar  v  The  Commissioner  Municipal council, Tiruvannamai  and another   [1957] Cri. L. J. .255, 256 Om  Prakash v.  The Director  Postal Services (posts and Telegraphs   Deptt.) Punjab Circle, Ambala and others,  A.I. R. 1973 Punjab 1, 4; Director of Postal Services and Anr. v. Daya Nand, [1972] S.L.R. 325, 341, Embaru v. Chairman Madras Port Trust  [1963] 1  L.L.J. 49. Akella Satyanarayana Murthy v. Zonal  Manager.  Life  Insurance  Corporation  of  India, Madras. A.I.R.  1969 A.P. 371, 373 and Premkumar v. Union of India and  others,  [1971]  Lab.  &  Ind.  Cases  823,  824. approved.      (5) Therefore  the Rajasthan  High Court  was wrong  in giving 1  wide connotation  to the  word ’consider’ in r. 14 and holding  that it  requires the disciplinary authority to hold a  detailed determination of the matter once again. The rule-making authority  deliberately used the word ’consider’ and not  ’determine’ because,  the latter  word has  a  much wider scope.  the word ’consider’ merely connotes that there should be  active application  of mind  by the  disciplinary authority after  considering the  entire circumstances of to case in  order to  decide the  nature and  the extent of the penalty to  be imposed  on the  delinquent employee  on  his conviction  on   a  criminal  charge.  This  could  only  be objectively determined  if the  delinquent employee is heard and given  a chance  to satisfy  the authority regarding the final orders that may be passed The provision merely imports the rule  of natural justice that before taking final action the  delinquent   employee   should   be   heard   and   the circumstances objectively considered. [795B-795D] 785

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1664 of 1974.      Appeal by  Special Leave  from the  judgment and  order dated the  18th December,  1973 of  the Kerala High Court in original Petition No.860 of 1973 and      Civil Appeals Nos. 891-892 of 1975      Appeal by  special leave  from the  judgment and  order dated the  25th January, 1974 of the Rajasthan High Court in S.B.  Civil   Writ  Petitions   Nos.  352  &  1826  of  1971 respectively.      S. N.  Prasad, for the appellants (in all the appeals). .      S. M.  Jain, V.  S. Dave  and Inder  Makwana,  for  the respondent (In C.A. No. 891/75)      The Judgment of the Court was delivered by      FAZAL ALI, J.-Civil Appeal Nos. 1664 of 1974 and 891 of 1975 are  appeals   by special  leave directed  against  the judgments of  the Kerala  High Court dated December 18, 1973 and  the  Rajasthan  High  Court  dated  January  25,  1974,

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respectively allowing  the writ  petitions filed  before the High Courts  by the  respondents concerned. Civil Appeal No. 892 of  1975 has also been filed against the judgment of the Rajasthan High Court dated January 25,  1974 with respect to the respondent Abdul Hamid whose petition was allowed by the same judgment  of the  High Court  dated January  25,  1974, which was  decided in  favour of  the respondent Narsing. It would thus appear that the cases of the respondents Narsingh and Abdul  Hamid had  been decided by one common judgment of the High Court of Rajasthan.      It was agreed at the Bar that as the points involved in all the three cases arc the same, they may be disposed of by one common  judgment. We,  therefore, propose  to dispose of all the  three cases   by  one common  judgment  indicating, however,  the   facts  of  each  individual  case,  wherever necessary.      As regards Civil Appeal No. 1664 of 1974 the respondent T.R. Challappan was a Railway-Pointsman working at Irimpanam on Olavakkot Division of the Southern Railway. On August 12, 1972 at  about 3-30  P.M. he  was arrested  at the olavakkot railway station platform for  disorderly drunken and indecent behavior and a criminal case  under s.  51(A) of  the Kerala Police Act was registered against  him After due investigations the challan was presented  before the  Sub-Magistrate, Palghat who after finding the  respondent guilty  instead  of  sentencing  him released him  on Probation  under s.  3 of  the Probation of offenders  Act.   After  the  respondent  was  released  the Disciplinary Authority  of the Department by its order dated January 3,  1973 removed  him from  service in  view of  the misconduct which  led to the conviction of the respondent on a criminal  charge under  s. 51(A)  of the  Police Act.  The order removing the respondent from service merely shows that it proceeded on the basis of the 786 conviction of  the accused in the criminal case and there is nothing A  to show  that the  respondent  was  heard  before passing the  order. The  Kerala High  Court held that as the respondent was released by the criminal court and no penalty was imposed  on him,  therefore, r.  14(1) under  which  the respondent was  removed from service did not in terms apply. The High  Court accordingly  quashed the order passed by the Disciplinary Authority and allowed the writ petition.      In Civil Appeal No. 891 of 1975 the respondent Narsingh was working  as a  Railway Khallasi  working at  the Railway Workshop at  Jodhpur and  was found  to be  in possession of stolen  copper   weighing  4  Kilos  and  600  Grammes.  The respondent was  prosecuted and was ultimately,. convicted by the Trial  Magistrate under  s.  3  of  the  Indian  Railway Property (Unlawful  Possession) Act,  1966.  On  appeal  the learned   Additional    Sessions   Judge,   Jodhpur,   while maintaining the  conviction of  the respondent set aside the sentence and  released him on probation under the provisions of the Probation of offenders Act. On the basis of the order of conviction  passed by  the Criminal  Court the  Assistant Personnel officer  (W), who  was the  Disciplinary Authority removed the  respondent from  service  by  his  order  dated February 26,  1971 and  the departmental appeal against this order was  eventually rejected.  Thereafter  the  respondent moved the  High Court  in  its  writ  jurisdiction  and  the petition was  allowed   by the  High Court  and the order of removal from  service was  quashed  by  the  High  Court  of Rajasthan.      In Civil  Appeal No.  892 of  1975 the respondent Abdul Hamid was  a second  fireman  at  the  Railway  Workshop  at

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Jodhpur and he was prosecuted and ultimately convicted under s. 420  of the  Indian Panel Code by the Special Magistrate, Jaipur by his order dated September 9, 1970. The Magistrate, however,  instead  of  sentencing  him  ordered  him  to  be released on  probation under the provisions of the Probation of offenders  Act. The  Assistant Mechanical Engineer by his order dated  February 3,  1971, removed  the respondent from service on  the ground of his conviction by a criminal court and the  departmental appeal against this order filed by the respondent was  rejected on  March 2,  1971. Thereafter  the respondent moved  the Rajasthan High Court under Art. 226 of the Constitution  and the  High Court  quashed the  order by which the  respondent was  removed  from  service-hence  the appeal by  special leave  by the  Union of India against the judgment of the Rajasthan High Court.      A close  analysis of  the facts of the cases of each of the respondents  would  doubtless  reveal  that  the  points involved in the three cases are almost identical, though the grounds on  which the respective High Courts leave proceeded may be  slightly different.  Mr. S.  N. Prasad appearing for the appellants  in all  the three  cases raised three points before us: H           (1)  That s.  12 of the Probation of offenders Act                con templates  an automatic  disqualification                attached  to   the  conviction   and  not  an                obliteration of the misconduct 787                of  the   accused  so   as   to   debar   the                Disciplinary    Authority    from    imposing                penalties under the Rules against an employee                who has been convicted for misconduct.           (2)  Rule 14  of the  Railway Servants (Discipline                and Appeal)  Rules, 1968, is in terms similar                to  proviso   (a)  to   Art.  311(2)  of  the                Constitution  and   confers  power   on   the                appointing authority  to  pass  an  order  of                dismissal against  an employee  who is  found                guilty of  a criminal  offence without giving                any  further   notice   to   the   delinquent                employee. further,  r. 14  does not  in terms                contemplate  that  the  appointing  authority                will  consider   the  penalty   after  either                hearing the accused or after ordering special                inquiry.           (3)  That in  the absence of any provision similar                to r.  14 the  Government is entitled. in the                exercise of its executive power, to terminate                the services  of. the  employee who  has been                convicted of  a criminal  charge without  any                further departmental inquiry.      Learned counsel  appearing for the respondents in Civil Appeal No.  891 of 1975 as also Civil Appeal No. 892 of 1975 contested the  contentions raised  by the  counsel  for  the appellants and submitted that the judgment of the High Court laid down  the correct  law and  that the mere fact that the delinquent employee  has been convicted of a criminal charge cannot ipso  facto result  in his  automatic dismissal  from service.      We  have  given  our    earnest  consideration  to  the arguments advanced  before us by counsel for the parties. To begin with,  the Kerala  High Court  appears to have allowed the writ petition solely on the ground that the order of the Magistrate releasing  the respondent  T.  R.  Challappan  on probation  did  not  amount  to  imposition  of  penalty  as contemplated by  r. 14  of the  Railway Servants (Discipline

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and Appeal)  Rules, 1968-hereinafter  called ’the  Rules  of 1968’, and  therefore the  order passed  by the Disciplinary Authority was  illegal. In order to understand it, it may be necessary to  examine the  scope and  object of r. 14 of the Rules of  1968 which  will also  throw a  great light on the second point  which has  been dealt  with at great length by the Rajasthan  High Court,  namely the import of the closing part of  r. 14  where  the  disciplinary  authority  has  to consider the  circumstances of  the case  before making  any order      In the  instant case  we are concerned only with clause (1) of r. 14 of the Rules of 1968 which runs thus:           "Notwithstanding anything  contained in rules 9 to 13 .-           (1)  where any  penalty is  imposed on  a  railway                servant on  the ground  of conduct  which has                led to his conviction on a criminal charge, 788                the disciplinary  authority may  consider the                circumstances  of  the  case  and  make  such                orders thereon as it deems fit. " The word  penalty imposed  on a  railway  servant,  in,  our opinion, does  not refer  to a sentence awarded by the Court to the  accused on  his conviction,  but, though not happily worded  it  merely  indicates  the  nature  of  the  penalty impossible by  the disciplinary authority if  the delinquent employee has  been found  guilty of conduct which has led to his conviction of a criminal charge. Rule 14 of the Rules of 1968  appears  in  Part  IV  which  expressly  contains  the procedure for imposing penalties. Further more, r. 14 itself refers to rr. 9 to 13 which contain the entire procedure for holding a departmental inquiry. Rule 6 of Part III gives the details regarding  the major and minor penalties. Finally r. 14(1) merely seeks to incorporate the principle contained in proviso (a)  to Art.  311(2) of the Constitution which runs: thus           "(2)  No   such  person   as  aforesaid  shall  be      dismissed or  removed   or reduced in rank except after      an inquiry in which he has been informed of the charges      against him and given a reasonable opportunity of being      heard in  respect of  o, those  charges and where it is      proposed, after such inquiry, to impose on him any such      penalty, until he has been given reasonable opportunity      of making  representation of  the penalty proposed, but      only on  the basis  of the evidence adduced during such      inquiry:      Provided that this clause shall not apply-      (a)  where a  person is dismissed or removed or reduced           in. rank on the ground of conduct which has led to           his conviction on a criminal charge; " An analysis of the provisions of Art. 311(2) extracted above would  clearly   show  that  this  constitutional  guarantee contemplates three  stages of departmental inquiry before an order of  dismissal, removal  or reduction  can  be  passed, namely, (1)  that on  receipt of  a  complaint    against  a delinquent employee charges should be framed against him and a departmental  inquiry should  be held  against him  in his presence; (ii)  that after  the report  of the  departmental inquiry is  received he  appointing authority must come to a tentative conclusion  regarding the penalty to be imposed on the delinquent  employee; and  (iii)  that  before  actually imposing the  penalty  a  final  notice  to  the  delinquent employee   should be  given to  show cause  why the  penalty proposed against  him be  not imposed on him. Proviso (a) to Art. 311(2),  however, completely  dispenses  with  all  the

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three states  of departmental  inquiry when  an employee  is convicted on  a criminal  charge. The reason for the proviso is that  in a  criminal trial the employee has already had a full and  complete opportunity  to contest  the  allegations against him  and to  make out  his defence.  In the criminal trial charges  are framed to give clear notice regarding the allegations  made   against  the   accused,  secondly,   the witnesses are  examined and  cross-examined in  his presence and  by   him;  and  thirdly,  the  accused  is  given  full opportunity 789 to produce  his defence  and it  is only  after hearing  the arguments  that   the  Court   passes  the  final  order  of conviction or  acquittal. in these circumstances, therefore, if after  conviction  by  the  Court  a  fresh  departmental inquiry is  not dispensed  with, it will lead to unnecessary waste of time and expense and a fruitless duplication of the same proceedings all over again. it was for this reason that the founders  of the  Constitution thought that where once a delinquent employee has been convicted of a criminal offence that  should  be  treated  as  a  sufficient  proof  of  his misconduct and  the disciplinary  authority may be given the discretion to  impose the  penalties  referred  to  in  Art. 311(2), namely,  dismissal, removal or reduction in rank. It appears to  us that  proviso (a) to Art. 311(2) is merely an enabling provision  and it  does  not  enjoin  or  confer  a mandatory duty  on the  disciplinary authority  to  pass  an order of  dismissal, removal or reduction in rank the moment an employee  is convicted. This matter is left completely to the discretion  of the  disciplinary authority  and the only reservation made  is that  departmental inquiry contemplated by this  provision as  also by  the  Departmental  Rules  is dispensed with.  In these circumstances, therefore, we think that r.  14(1) of  the Rules  of 1968  only incorporates the principles enshrined  in proviso  (a) to  Art. 311(2) of the Constitution. The words ’where any penalty is imposed’ in r. 14(1) should  actually be  read as  ’where  any  penalty  is impossible’, because so far as the disciplinary authority is concerned it  cannot impose a sentence. it could only impose a penalty  on the  basis of  conviction and  sentence passed against  the  delinquent  employee  by  a  competent  court. Furthermore the  rule empowering  the disciplinary authority to consider  circumstances of  the case and make such orders as it  deems fit  clearly indicates  that it  is open to the disciplinary authority to impose any penalty as it likes. In this sense,  therefore, the  word ’penalty’ used in r. 14(1) of the  Rules of  1968 is  relatable to. the penalties to be imposed under  the Rules  rather than  a penalty  given by a criminal court.      Another important  aspect  of  the  matter  is  that  a criminal court after. conviction does not impose any penalty but passes  a  sentence  whether  it  is  one  of  fine,  or imprisonment or  whipping   or the  like. The Penal Code has been on the statute book for a large number of years and the rule-making authority was fully aware of the significance of the words  ’conviction’ and  ’sentence’  and  if  it  really intended to  use the  word ’penalty’  as an  equivalent  for ’sentence’ then  it should have used the word ’sentence’ and not ’penalty.  In these  circumstances we are satisfied that the word  ’penalty’ has.  been used  in juxtaposition to the other connected  provisions of  the Rules  appearing in  the same Part  The view  of the  Kerala High  Court, there fore. that as  the Magistrate  released the delinquent employee on probation no  penalty was  imposed as  contemplated   by  r. 14(1) of  the Rules  of 1968  does not  appear to  us to  be

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legally correct  and must be overruled Nevertheless we would uphold the  order of  the Kerala  High Court. On the ground. that the  last Dart  of r.  14 of  the Rules  of 1968  which requires the‘ consideration of the circumstances 790 not having been complied with by the disciplinary authority, the A  order of  removal  from  service  of  the  delinquent employee was rightly quashed.      This brings  us to  the  consideration  of  two  inter- connected questions, namely, as to what is the effect of the order of  the Magistrate  releasing the accused on probation and the  effect of  s. 12 of the Probation of Offenders Act. It was  suggested by  the respondents that if the Magistrate does not  choose, after  convicting the  accused to pass any sentence on  him, but  releases him  on probation  then  the stigma  of   conviction  is   completely  washed   out   and obliterated and,  therefore, r.  14(1) of  the Rules of 1968 will not  apply in  terms. We  are, however, unable to agree with this  somewhat broad  proposition.  A  perusal  of  the provisions of  the Probation of offenders Act, 1958, clearly shows that  the mere  fact that  the accused  is released on probation does  not obliterate the stigma of conviction. The relevant portion  of the  Probation of  offenders Act, 1958, hereinafter referred to as ’the Act’ runs thus .           " ....  notwithstanding anything  contained in any      other law  for the  time being  in force the Court may,      instead  of   sentencing  him   to  any  punishment  or      releasing him  on probation  of good    conduct  under-      section 4, release him after due admonition." Similarly the relevant part of s. 4(1) of the Act runs thus:           " ....  notwithstanding anything  contained in any      other law  for the  time being in force, the Court may,      instead of  sentencing him  at once  to any punishment,      direct that he be released on his entering into a bond,      with  or   without  sureties,  to  appear  and  receive      sentence when  called  upon  during  such  period,  not      exceeding three  years, as the Court may direct, and in      the mean,  time to  keep  the  peace  and  be  of  good      behaviour." Sections 9(3) & (4) of the Act read as under:      "9. (3)  If  the  Court,  after  hearing  the  case  is      satisfied that  the offender  has failed to observe any      of the  conditions of the bond or bonds entered into by      him, it may forthwith-           (a)  sentence him for the original offence; or           (b)  where the  failure is  for  the  first  time,                then, without  prejudice‘ to  the continuance                in force  of the  bond,  impose  upon  him  a                penalty not exceeding fifty rupees.           (4)If a  penalty imposed  under clause (b) of sub-      section (3) is not paid within such period as the Court      may fix,  the Court  may sentence  the offender for the      original offence :" These provisions would clearly show that an order of release on probation  comes into existence only after the accused is found guilty 791 and is  convicted of the offence. Thus the conviction of the accused or  the finding,  of the  Court that  he  is  guilty cannot be washed out at all because that is the sine qua non for the  order of  release on probation of the offender. The order of  release on  probation is merely in substitution of the sentence  to be imposed by the Court. This has been made permissible by  the statute with a humanist point of view in order to  reform youthful offenders and to prevent them from

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becoming hardened  criminals. The  provisions of  s. 9(3) of the Act  extracted above would clearly show that the control of the  offender is retained by the criminal court and where it is  satisfied that  the conditions  of the bond have been broken by  the offender  who has been released on probation, the  Court  can  sentence  the  offender  for  the  original offence. This  clearly shows that the factum of guilt on the criminal charge  is not  swept away  merely by  passing  the order releasing the offender on probation. Under ss. 3, 4 or 6 of  the Act,  the stigma  continues and the finding of the misconduct resulting  in conviction must be treated to be, a conclusive proof.  In these  circumstances, therefore we are unable to  accept the  argument of  the respondents that the order of  the Magistrate releasing the offender on probation obliterates the stigma of conviction.      Another point  which is  closely  connected  with  this question is  as to the effect of s. 12 of the Act which runs thus:           "Notwithstanding anything  contained in  any other      law, person  found guilty  of an offence and dealt with      under he provisions of section 3 or section 4 shall not      suffer  disqualification,   if  any,   attaching  to  a      conviction of an offence under such law." It  was   suggested  that   s.  12  of  the  Act  completely obliterates the  effect of  any conviction and wipes out the disqualification attached  to a  conviction  of  an  offence under such law. This argument, in our opinion, is based on a gross misreading  of the provisions of s. 12 of the Act. The words "attaching  to a  conviction of  an offence under such law" refer  to two  contingencies: (1)  that there must be a disqualification resulting  from a conviction; and (ii) that such disqualification  must be  provided by  some law  other than the Probation of offenders Act. The Penal Code does not contain any  such disqualification.  Therefore, it cannot be said that  s.  12  of  the  Act  contemplates  an  automatic disqualification attaching  to a conviction and obliteration of the  criminal misconduct  of  the  accused.  it  is  also manifest that  disqualification is  essentially different in its connotation from the word ’misconduct’. Disqualification cannot be  an automatic consequence of misconduct unless the statute so requires. Proof of misconduct may or may not lead to disqualification,  because this matter rests on the facts and circumstances  of a  particular case  or the language in which the particular statute is covered. In the instant case neither Art. 311(2) proviso (a) nor r. 14(1) of the Rules of 1968 contain any express provision that the moment a 792 person is  found guilty of a misconduct on a criminal charge he will  have to  be automatically  dismissed from  service. Article 311  (2) proviso  (a) is an enabling provision which merely dispenses with the various stages of the departmental inquiry  and   the  show   cause  notice.  Rule  14  despite incorporating the  principle of  proviso (a)  to Art. 311(2) enjoins on  the  discriplinary  authority  to  consider  the circumstances of the case before passing any order. Thus, in our opinion,  it is a fallacy to presume that the conviction of a  delinquent employee simpliciter without any thing more will result  in his  automatic  dismissal  or  removal  from service.      It was,  however, suggested  that r. 14(1) of the Rules of 1968 is the provision which contains the disqualification by dispensing  with the  departmental inquiries contemplated under rr.  9 to  13 of  the said  Rules. This  cannot be the position. because  as we  have already  said r.  14(1)  only incorporates the principle of proviso (a) to Art. 311(2). If

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s. 12  of the Probation of offenders Act completely wipe out the disqualification  contained in  Art. 311(2)  proviso (a) then it  would have become ultra vires as it would have come into direct  conflict with the provisions of the proviso (a) to Art.  311(2). In  our opinion,  however, s. 12 of the Act refers to  only  such  disqualifications  as  are  expressly mentioned in  other statutes regarding holding of offices or standing for elections and so on. This matter was considered by a  number of  High Courts  and there  is a  consensus  of judicial opinion  on this point that s. 12 of the Act is not an automatic  disqualification attached  to  the  conviction itself.      In R.  Kumaraswami Aiyar  v. The Commissioner Municipal Council, Tiruvannamalai  and another(1) Rajagopala Ayyangar, J., as he then was, observed as follows.           "If for  instance the petitioner is dismissed from      service because  he has been found guilty of an offence      involving moral  turpitude it cannot be said that he is      suffering  from   a  disqualification  attaching  to  a      conviction. What  S. 12-A  has in  view is an automatic      disqualification flowing  from a  conviction and not an      obliteration of  the misconduct  of the  accused. In my      judgment the  possibility of  disciplinary, proceedings      being taken  against a  Person found  guilty is  not  a      disqualification attaching to the conviction within the      meaning of S. 12-A of the Probation of offenders Act." The same  view was  endorsed by the Full Bench of the Punjab and Haryana  High Court in Om Prakash v. The Director Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala and other(2) where it was observed:           "What Section  12 removes  is  a  disqualification      attaching  to  a  conviction.  In  my  opinion  neither      liability to  be departmentally punished for misconduct      is a disqualifica- (1) 1957 Cri. L, J. 255, 256.       (2) A. T. R. 1973 Punjab                                                         1, 4 793      tion,   nor    it   attaches    to   the    conviction.      "Disqualification"  its   ordinary  dictionary  meaning      connotes something  that disqualifies or incapacitates.      To disqualify  a person  for a particular purpose means      to deprive  that person  of the qualities or conditions      necessary to make him fit for that purpose." It was further observed by the High Court:           " The  other reason why Section 12 of the Act does      not  help  the  petitioner  is  that  the  departmental      proceedings are  not attached  to the conviction of the      offence. Departmental proceedings are not taken because      the  man   has  been  convicted.  The  proceedings  are      directed  against   the  original   misconduct  of  the      Government servant. .......... No part of Section 12 is      intended to  exonerate  a  Government  servant  of  his      liability to  departmental punishment  for  misconduct.      This  provision   does  not   afford  immunity  against      disciplinary proceedings  for the  original misconduct.      What forms  basis of  the punishment  is the misconduct      and not the conviction.      A Full  Bench of  the Delhi  High Court  in Director of Postal Services  and Anr. v. Daya Nand(1) held the same view and observed thus:           " Firstly, the ordinary meaning of ’qualification’      is the  possession of some merit or quality which makes      the possessors  eligible to  apply for  or to  get some      benefit. The word ’disqualification’ used in section 12      has the opposite meaning It imposes a disability on the

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    person to  whom the  disqualification  is  attached  in      applying   for    or   getting    such   benefit.   The      disqualification  contemplated   by   section   12   is      something attached to the conviction, namely, something      which is a consequence or the result thereof. Instances      of such  disqualification may  be found  in  a  statute      statutory rule  or in  administrative  practice.  Under      section 108  of the Representation of People Act, 1951,      a person  is disqualified  to he a member of Parliament      or State  Legislature if  he is  convicted  of  certain      offences.  It   would   also   be   an   administrative      consideration in  entertaining applications for jobs or      for grant  of licences  to  disfavour  an  applicant  a      convict. Such  a disqualification is removed by section      12. This  meaning of  disqualification does not include      the  reason  who  a  hearing  prior  to  punishment  is      dispensed with  by proviso (a) to Article 311(2) of the      Constitution. Secondly  the object  of section 12 is to      remove a  disqualification attached  to conviction.  It      does not ’go beyond it ’ (1) 1972 S.L.R., 325.341 794      The decision in R. Kumaraswami Aiyar’s case (supra) was followed in  a later case in Embaru v. Chairman, Madras Port Trust.(1)      The Andhra  Pradesh High  Court in Akella Satyanarayana Murthy v.  Zonal  Manager,  Life  Insurance  Corporation  of India, Madras(2)  appears to  have taken the same view where it was observed thus:           " ..  we are  of the  view that what Section 12 of      the  Central   Act  has   in  view   is  an   automatic      disqualification flowing  from a  conviction and not an      obliteration  of   the  misconduct   of  the   official      concerned. The  disciplinary authority is not precluded      from proceeding under Regulation 89(4) ."      The Madhya  Pradesh High  Court also took the same view in Premkumar  v. Union  of India  and others(3) where it was observed:           " We have heard the learned counsel at some length      but we  find ourselves  unable to  agree with the above      contention. The  relevant  words  of  the  section  are      ’shall not  suffer disqualification,  if any, attaching      to a  conviction of  an offence  under such  law’.  The      words  can   only  be   read  so   as  to   remove  the      disqualification which  under some  law may attach to a      person on account of his conviction. For instance, if a      person is  convicted of  an offence, he is disqualified      from standing  for election  to the  Central  or  State      Legislatures. But  if such  a person  is given  benefit      under the  Probation of offenders Act then by virtue of      Section 12  of that  Act the  disqualification for that      purpose (standing for election) will stand removed."      A Division Bench of the Delhi High Court in Iqbal Singh v. Inspector  General of  Police, Delhi  &  Ors.(4)  took  a contrary view  but that  decision has  been overruled  by  a later decision  of the  Full Bench of the same High Court in Director of Postal Services v. Daya Nand (Supra) to which we have already referred to.      Even  the   Rajasthan  High   Court  in   its  judgment concerning Civil  Appeal No.  891 of  1975 has  endorsed the view taken  by the  Madras High  Court and  followed by  the other High  Courts. We  find ourselves in complete agreement with the  view taken by the Madras High Court as referred to above and  as endorsed  by  the  Delhi,  Rajasthan,  Punjab, Andhra Pradesh and Madhya Pradesh High Courts.

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    We now come to the third point that is involved in this case, namely, the extent and ambit of the last part of r. 14 of the Rules of 1968. The concerned portion runs thus:           "The  disciplinary   authority  may  consider  the      circumstances of  the case and make such orders thereon      as it deems fit: " (1) [1963] I L. L.J.49.           (2) AIR. 1969 A.P. 371,373 (3) [1971] Lab. & Ind. Cases 823,824         (4) A.1. R.1970                                               M.P.-240(1971)                                                  2 S.L.R 257 795 In this  connection it  was contended by the learned counsel for the  appellants that this provision does not contemplate a full-dress  or a  fresh inquiry  after hearing the accused but only  requires the  disciplinary authority  to impose  a suitable penalty  once it  is  proved  that  the  delinquent employee has  been  convicted  on  a  criminal  charge.  The Rajasthan High Court in (civil Writ Petition No. 352 of 1971 concerning Civil  Appeal No.  891 of  1975 has  given a very wide connotation  to the  word ’consider’ as appearing in r. 14 and  has held  that the word ’consider’ is wide enough to require  the  disciplinary  authority  to  hold  a  detailed determination of  the matter.  We feel  that we are not in a position to  go to  the extreme limit to which the Rajasthan High Court  has, gone.  The word ’consider’ has been used in contradistinction to  the word  ’determine’. The rule-making authority deliberately  used the  world ’consider’  and  not ’determine’ because  the word  ’determine’ has  a much wider scope. The  word ’consider’ merely connotes that there could be active  application  of  the  mind  by  the  disciplinary authority after  considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be  imposed on  the delinquent employee on his conviction on  a  criminal  charge.  This  matter  can  be  objectively determined only  if the  delinquent employee is heard and is given a  chance to satisfy the authority regarding the final orders that  may be  passed by  the said authority. In other words, the  term ’consider’  postulates consideration of all the aspects,  the pros  and cons of the matter after hearing the aggrieved  person. Such  an inquiry  would be  a summary inquiry to  be held  by  the  disciplinary  authority  after hearing the  delinquent employee. It is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which  is dispensed with under r. 14 of the Rules of 1968 which  incorporates the  principle  contained  in  Art. 311(2) proviso  (a). This  provision confers  power  on  the disciplinary authority  to decide  whether in  the facts and circumstances of  a particular  case what penalty if at all, should be  imposed on the delinquent employee. It is obvious that in  considering this  matter the disciplinary authority will have  to take  into account  the entire  conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration  and other  extenuating circumstances  or redeeming features  if any present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T. R. Challappan in  Civil Appeal  No. 1664  of 1974 where a stern warning or  a fine  would have  been sufficient  to meet the exigencies of  service. It  is possible  that the delinquent employee may  be found guilty of some technical offence, for instance, violation  of the  transport rules  or  the  rules under the  Motor Vehicles  Act and  so on,  where  to  major penalty may  be attracted.  It is  difficult to lay down any hard and fast rules as to the factors which the disciplinary

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authority would  have to consider, but I have mentioned some of these  factors by  way  of  instances  which  are  merely illustrative  and   not  exhaustive.  In  other  words,  the position is  that the  conviction of the delinquent employee would be taken as sufficient proof of misconduct and then 796 the authority  will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee  and in the course of the inquiry if the authority is  of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite  of the conviction. This is very salutary provision which has  been enshrined  in these  Rules and  one  of  the purposes for  conferring this  power is  that in cases where the disciplinary  authority is satisfied that the delinquent employee is  a youthful offender who is not convicted of any serious  offence   and  shows  poignant  penitence  or  real repentence he may be dealt with as lightly as possible. This appears to  us to  be the scope and ambit of this provision. We must,  however, hasten  to add  that  we  should  not  be understood as laying down that the last part of r. 14 of the Rules of  1968 contains  a licence to employees convicted of serious offences  to insist  on reinstatement. The statutory provision referred to above merely imports a rule of natural justice in  enjoining that before taking final action in the matter the  delinquent employee  should  be  heard  and  the circumstances of  the case  may be  objectively  considered. This is  in keeping with the sense of justice and fair-play. The disciplinary  authority has  the undoubted  power  after hearing  the   delinquent  employee   and  considering   the circumstances of  the case  to inflict  any major penalty on the delinquent  employee without  any  further  departmental inquiry if the authority is of the opinion that the employee has  been  guilty  of  a  serious  offence  involving  moral turpitude and,  therefore, it  is not desirable or conducive in the  interests of  administration to retain such a person in service.      Mr. S. N. Prasad appearing for the appellants submitted that it  may not be necessary for the disciplinary authority to hear  the  accused  and  consider  the  matter  where  no provision like  r. 14  exists. because  in  such  cases  the Government can,  in the  exercise of  its executive  powers, dismiss, remove  or reduce in rank any employee who has been convicted of  a criminal  charge by  force of proviso (a) to Art 311(2) of the Constitution. In other words, the argument was that to cases where proviso (a) to Art. 311(2) applies a departmental inquiry  is completely  dispensed with  and the disciplinary authority  can on  the  doctrine’  of  pleasure terminate  the  services  of  the  delinquent  employee.  We however refrain  from expressing  any opinion on this aspect of  the   matter  because   the  cases  of  all  the  three‘ respondents before us are cases which clearly fall within r. 14 of  the Rules  of 1968  where they have been removed from service without complying with the last part of r. 14 of the Rules of  1968 as  indicated above. In none of the cases has the disciplinary authority either 797 considered  the   circumstances  or   heard  the  delinquent employees on  the limited  point as to the nature and extent of the penalty to be imposed if at all. On the other hand in all these  cases the disciplinary authority has proceeded to pass the  order of  removal from service straightaway on the basis of  the conviction  of the delinquent employees by the criminal courts.      For the  reasons given  above the High Courts of Kerala

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and Rajasthan were, in the Circumstances, fully justified in quashing the orders of the disciplinary authorities removing the respondents from service. The appeals therefore fail and are accordingly  dismissed but in view of somewhat unsettled position of  law on  the  question  involved  we  leave  the parties to bear their own costs. V.P.S.                                    Appeals dismissed. 798