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 No860 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 SB Civil Writ Petitions Nos
352  1826 of 1971 respectively
section N Prasad for the appellants in all the appeals
section M Jain V section Dave and Inder Makwana for the respondent In CA No 89175 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 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 TR Challappan was a Railway Pointsman working at Irimpanam on Olavakkot Division of the Southern Railway
On August 12 1972 at about 3 30 PM he was arrested at the olavakkot railway station platform for disorderly drunken and indecent behavior and a criminal case under section 51A 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 section 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 section 51A 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 141 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 section 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 Jodhpur and he was prosecuted and ultimately convicted under section 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 article 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 section N Prasad appearing for the appellants in all the three cases raised three points before us H 1 That section 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 article 3112 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 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 141 merely seeks to incorporate the principle contained in proviso a to article 3112 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 article 3112 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 article 3112 however completely dispenses with all the 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 article 3112 namely dismissal removal or reduction in rank
It appears to us that proviso a to article 3112 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 141 of the Rules of 1968 only incorporates the principles enshrined in proviso a to article 3112 of the Constitution
The words where any penalty is imposed  in r 141 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 141 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 141 of the Rules of 1968 does not appear to us to be 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 section 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 141 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 section 41 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 93  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
4If 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 becoming hardened criminals
The provisions of section 93 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 sections 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 section 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 section 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 section 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 section 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 article 3112 proviso a nor r 141 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 article 3112 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 141 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 141 only incorporates the principle of proviso a to article 3112
If section 12 of the Probation of offenders Act completely wipe out the disqualification contained in article 3112 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 article 3112
In our opinion however section 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 section 12 of the Act is not an automatic disqualification attached to the conviction itself
In R Kumaraswami Aiyar vs The Commissioner Municipal Council Tiruvannamalai and another1 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 section 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 section 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 vs The Director Postal Services Posts and Telegraphs Deptt Punjab Circle Ambala and other2 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  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
vs Daya Nand1 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 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 3112 of the Constitution
Secondly the object of section 12 is to remove a disqualification attached to conviction
It does not go beyond it  1 794 The decision in R Kumaraswami Aiyar s case supra was followed in a later case in Embaru vs Chairman Madras Port Trust1 The Andhra Pradesh High Court in Akella Satyanarayana Murthy vs Zonal Manager Life Insurance Corporation of India Madras2 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 894 
 The Madhya Pradesh High Court also took the same view in Premkumar vs Union of India and others3 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 vs Inspector General of Police Delhi  Ors4 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 vs 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
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 LJ49
2 AIR
1969 AP 371373 3 1971 Lab
 Ind Cases 823824 4 A1
R1970 MP 2401971 2 SLR 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 article 3112 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 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 section 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 3112 of the Constitution
In other words the argument was that to cases where proviso a to article 3112 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 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
VPS Appeals dismissed


Summary:
Rule 141 of the Railway Servants Discipline and Appeal Rules 1968 provides that not withstanding anything contained in rr9 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 s3 or s4 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 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 r14 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 r14 1 should be read as where any penalty is impossible  by the Disciplinary Authority
787E F 788A R 789D H 2 L1127SCI75 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 141
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 section 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 141 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 141 incorporates the principle contained in proviso a to article 3112
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 article 3112 was enacted because when once a 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 article 3112 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 vs The Director Postal Services posts and Telegraphs Deptt Punjab Circle Ambala and others AI R 1973 Punjab 1 4 Director of Postal Services and Anr
vs Daya Nand  341 Embaru vs Chairman Madras Port Trust Akella Satyanarayana Murthy vs Zonal Manager
Life Insurance Corporation of India Madras
AIR 1969 AP 371 373 and Premkumar vs 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