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PETITIONER: SHANKER DASS

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT12/03/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) DESAI, D.A. SEN, AMARENDRA NATH (J)

CITATION:  1985 AIR  772            1985 SCR  (3) 163  1985 SCC  (2) 358        1985 SCALE  (1)391  CITATOR INFO :  R          1985 SC1416  (127)  RF         1989 SC1185  (29)

ACT:        Constitution  of India  1950,  Article  311  (2)  and Probation of  Offenders  Act  1958,  Sections  3,4  and  12- Employee-Prosecuted  and  convicted  for  breach  of  trust- Released under the Probation of Offenders Act-Dismissed from service summarily consequent upon conviction-Dismissal order whether  permissible   and  valid-Right  to  impose  penalty carries with it a duty to act justly.      Words & Phrase:       ’disqualification’- Meaning of sectioa 12 Probation of Offenders Act, 1958 .

HEADNOTE:        The  appellant was  employed as  a Cash  Clerk  in  a Department  under   the  administrative   control   of   the Government of  India. He  was prosecuted for breach of trust in respect  of a  sum of  Rs. 500.  He repaid the amount and pleaded guilty  to the  charge. The Magistrate accepting the plea convicted  the appellant  under i  section 409  of  the Indian  Penal  Code,  but  having  regard  to  the  peculiar circumstances  relating   to  the   crime  and  the  adverse circumstances in  which the  appellant was  placed, when  he committed the  offence, viz. his son died during the period, his wife  fell down  from an  upper storey and was seriously injured, his  daughter fell  ill and that illness lasted for about eight  months; released  him under  section 4  of  the Probation of  Offenders  Act,  1958  As  a  result  of  this conviction, the  appellant was  dismissed from  service sum- marily,        The  appellant filled  a suit  for setting  aside his dismissal  from   service,  contending  that  since  he  was released under  the Probation  of Offenders Act 1958, it was not permissible for the authorities to impose the penalty of dismissal from service. The suit was dismissed on the ground that since  the appellant was convicted of a criminal charge he was liable to be dismissed under clause (a) of the second proviso to Article 311(2) of the Constitution.        The  appellant’s first  appeal was dismissed, but the

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second appeal  to the  High Court  was allowed  by a  Single Judge  OD  the  ground  that  by  virtue  of  the  provision contained in  section 12  of the  Probation of Offenders Act 1958, the 164 appellant  could  not  be  dismissed  from  service  without affording him  a reasonable  opportunity of  being heard, as required by Article 311 (2) of the Constitution. The Letters Patent Appeal  I of  the Government  of  India  against  the judgment was allowed by a Division Bench.      Allowing the appellant’s appeal to this Court, ^      HELD: 1. The judgment of the Division Bench of the High Court in  the Letters Patent is set aside, and the appellant shall be  reinstated in  service forthwith,  with full  back wages from the date of dismissal until reinstatement. 1168El        2. Section 12 of the Probation of Offenders Act, 1958 provides that  notwithstanding  anything  contained  in  any other law,  a person  found guilty  of an  offence and dealt with under  the provisions of section 3 or 4 thereof, "shall not suffer  disqualification ’ attaching to a conviction for an offence  under such  law. The  order  of  dismissal  from service   consequent    upon   a   conviction   is   not   a "disqualification" within  the meaning  of section 12. There are statutes  which provide  that persons  who are convicted for certain  offences shall incur certain disqualifications. For example, Chapter Ill of the Representation of the People Act, 1951,  entitled "Disqualifications  for  membership  of Parliament   and State Legislatures" and Chapter IV entitled "Disqualifications for  Voting’’  contain  provisions  which disqualify persons  convicted of  certain charges from being members  of   legislatures  or   from   being   members   of legislatures or  from voting at elections legislatures. That is the sense in which the word disqualification-’ is used in section 12 of the Probation of Offenders Act, 1958. [166F-H]        In  the instant case, it is therefore not possible to accept the  reasoning of  the Single  Judge  in  the  Second Appeal.      3. Clause (a) of the second proviso to Article 31 l (2) of the  Constitution confers  on the Government the power to dismiss a  person from  service "on  the ground  of  conduct which has  led to his conviction on a criminal charge". But, that power,  like every  other power  has  to  be  exercised fairly, justly  and reasonably.  The Constitution  dose  not contemplate that  a Government  servant who is convicted for parking his scooter in a no-parking area should be dismissed from service.  He may,  perhaps not be entitle(l to be heard on the  question of  penalty since  clause(a) of  the second proviso to  Article 311(2)  makes the  provisions  of  that. Article inapplicable  when a  penalty is  to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. [168B-C]        In  the instant case, the Government chose to dismiss the appellant  in a  huff without  applying its  mind to the penalty which  could appropriately be imposed upon him in so far as  his service  career was  concerned. Considering  the facts of  the case,  there can  be no  two opinions that the penalty  of   dismissal    from  service  imposed  upon  the appellant is whimsical. [167H; 168D] 165

JUDGMENT:

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    CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  . 480 of1973 A      On appeal  by Certificate  from the Judgment and Decree dated 10.10.1972  of the  High Court  of  Delhi  in  Letters Patent Appeal No. 380/71.      Mrs. Indra Sawhney for the Appellant.      V.C. Mahajan,  G.D. Gupta,  C.V.  Subba  Rao  and  R.N. Poddar for the Respondents.      The Judgment of the Court was delivered by      CHANDRACHUD,  C.J.  Cases  which  evoke  sympathy  come frequently before the Courts. But, pity, not often. The case before us  has a  unique story to tell, the story of a crime committed under the stress of personal misery, compounded by the apathy  of the Establishment and the appalling delays of law. Ironically,  the silver  lining  is  furnished  by  the bravery of  a broken  man  who  has  been  fighting  against injustice for the last 23 years. When justice is done, or so the judges  believe, the conscience is assuaged. But in this case, despite  our doing  all  that  can  be  done  for  the appellant within  the framework  of law,  we have  an uneasy conscience. Delay  not only  defeats justice  and robs it of its immediate  relevance to  the parties  but it  shakes the very confidence  of the  people in the desire and ability of law courts  to assist  them when  they need  that assistance most.      The  appellant   was  retrenched  by  the  Ministry  of Rehabilitation, Government  of India  in 1960,  whereupon he was employed as a Cash Clerk by the Delhi Milk Supply Scheme Department, which is under the administrative control of the Government of  India. In  1962, he was prosecuted for breach of trust  in respect  of a  sum of  Rs. 500.  He repaid that amount and  pleaded quality  to the  charge. Accepting  that plea, the  learned Magistrate, First Class, Delhi, convicted him under  section 409 of the Penal Code but, in view of the peculiar  circumstances   relating  to  the  crime  and  the criminal, he released him under section 4 of the 166 Probation of  Offenders  Act,  1958.  As  a  result  of  the conviction,  the   appellant  was   dismissed  from  service summarily, with effect from April, 14, 1964.      The appellant  filed a suit in 1966 in the court of the Sub  Judge,   First  Class,  Delhi  for  setting  aside  his dismissal from  service, mainly  on the ground that since he was released  under the  Probation of  Offenders Act, it was not permissible  to the  authorities to  visit him  with the penalty of  dismissal from  service. That suit was dismissed on the  ground that  since the  appellant was convicted of a criminal charge,  he was liable to be dismissed under clause (a) of  the  second  proviso  to  Article  311  (2)  of  the Constitution. The  deree of the trial court was confirmed by the learned  Additional Senior  Sub-Judge, Delhi  in January 1968. The  appellant filed  Second Appeal No. 142 of 1968 in the High Court of Delhi, which was allowed by D.K. Kapur, J. On  April,   13,  1971.   The  learned  Judge  accepted  the contention of  the appellant  that, by  reason of  provision contained in  section 12  of the Probation of Offenders Act, he could not be dismissed from service without affording him a reasonable  opportunity of  being heard,  as  required  by Article 311 (2) of the Constitution. The Government of India filed a  Letters Patent  appeal against that judgment, which was allowed  by Jagjit  Singh  and  R.N.  Aggarwal,  JJ.  On October 10,  1972. This  appeal of the year 1973 has come up for hearing  in this  Court more  than 11 years after it was filed.      Section 12  of the  Probation of  Offenders Act must be

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placed out  of way  first. It provides that not withstanding any thing  contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or  4 "shall  not suffer  disqualification" attaching to a conviction for  an offence  under such  law.  The  order  of dismissal from service consequent upon a conviction is not a disqualification" within  the meaning  of section  12. There are statutes  which provide  that persons  who are convicted for certain  offences shall incur certain disqualifications. For example, Chapter III of the Representation of the People Act, 1951,  entitled "Disqualifications  for  membership  of Parliament and  State Legislatures"  and Chapter IV entitled "Disqualifications  for   Voting  contain  provisions  which disqualify persons  convicted of  certain charges from being members of  legislatures or  from  voting  at  elections  to legislatures.  That   is  the   sense  in   which  the  word "disqualifica- 167 tion" is  used in  section 12  of the Probation of Offenders Act. There-fore,  it is not possible to accept the reasoning of the learned Single Judge of the Delhi High Court.      But though  this is so the ultimate order passed by the learned single  Judge has  to be upheld. It can be supported on grounds other than the one on which it rests.      The learned  Magistrate First  Class, Delhi,  Shri Amba Prakash was  gifted with more than ordinary understanding of law. Indeed  he set  an example  worthy of emulation. Out of the total  sum of  Rs. 1,607.99  which was  entrusted to the appellant as  a Cash  cleric, he deposited Rs. 1,107.99 only in the  Central Cash  Section  of  the  Delhi  Milk  Scheme. Undoubtedly, he  was guilty  of criminal breach of trust and the learned  Magistrate had no option but to convict him for that offence.  But, it is to be admired that as long back as in 1963,  when section 235 of the Code of Criminal Procedure was not  on the  Statute book  and later  refinements in the norms of  sentencing were  not even  in embryo,  the learned Magistrate gave  close and anxious attention to the sentence which, in  the circumstances of the case, could be passed on the appellant.  He says  in his judgment The appellant was a victim of  adverse circumstances;  his son  died in February 1962, which  was followed  by another  misfortune; his  wife fell down from an upper storey and was seriously injured: it was then the turn of his daughter who fell seriously ill and that illness lasted for eight months. The learned Magistrate concluded his judgment thus:           "Misfortune dodged the accused for about a  year... ...............  and it  seems that  it was under the  force of  adverse circumstances that he held back the maney in question. Shankar Dass is a middle aged man and it is  obvious that  it was  under compelling  circumstances that he  could not deposit the money in question in time. He is  not   a  previous   convict.  Having   regard   to   the circumstances of  the case,  I am  of the  opinion  that  he should be  dealt with  under the Probation of Offenders Act, 1958."      It is  to be learned that despite these observations of the learned  Magistrate, the Government chose to dismiss the appellant in  a huff,  without  applying  its  mind  to  the penalty which could H 168 appropriately be  imposed upon  him in so far as his service career was  concerned. Clause  (a) of  the second proviso to Article  311   (2)  of   the  Constitution  confers  on  the Government the  power to  dismiss a  person from service "on the ground  of conduct  which has led to his conviction on a

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criminal charge".  But, that  power, like every other power, has to  be exercised  fairly, justly  and reasonably. Surely the Constitution  does not  contemplate  that  a  Government servant who  is convicted  for parking his scooter in a non- parking area  should be  dismissed  from  service.  He  may, perhaps, not  be entitled  to be  heard on  the question  of penalty since  clause (a)  of the  second proviso to Article 311(2) makes  the provisions  of that  article  inapplicable when a  penalty is  to be imposed on a Government servant or the ground  of conduct  which has led to his conviction on a criminal charge.  But the  right to impose a penalty carries with it  the duty  to act  justly. Considering  the facts of this case,  there can be no two opinions that the penalty of dismissal  from   service  imposed  upon  the  appellant  is whimsical.      Accordingly,  we  allow  this  appeal,  set  aside  the judgment of  the Delhi High Court dated October 10, 1972 and direct that  the appellant  shall be  reinstated in  service forthwith, with  full  back  wages  from  the  date  of  his dismissal until  reinstatement. The Government of India will pay to  the appellant  the costs  of  the  suit,  the  First Appeal, the  Second Appeal, the Letters Patent Appeal and of this Appeal  which we  quantify at Rupees five thousand. The appellant will  report for  duty punctually  at  his  former place of work on April 1, 1985.      In this  brief  judgment,  we  have  referred  to  many unhappy facts.  We must  mention one  more. We had adjourned this appeal after hearing it a while, in order to enable the Government  to  consider  whether  the  appellant  could  be reinstated in  service with  a reasonable  adjustment in the payment of  back wages.  The learned  counsel  appearing  on behalf of the Union of India showed us a letter written by a Deputy  Secretary  stating  that  the  Hon’ble  Minister  of Agriculture desired  him to say that the Court should decide the case  on merits.  We have  done our  modest best in that regard. N.V.K                                        Appeal allowed. 169