Civil Appeal No 480 of1973 A On appeal by Certificate from the Judgment and Decree dated 10101972 of the High Court of Delhi in Letters Patent Appeal No 38071
Mrs Indra Sawhney for the Appellant
VC Mahajan GD Gupta CV Subba Rao and RN Poddar for the Respondents
The Judgment of the Court was delivered by CHANDRACHUD CJ
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 
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  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 DK 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  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 RN 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 must be 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 
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 160799 which was entrusted to the appellant as a Cash cleric he deposited Rs 110799 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 
 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 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 3112 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
NVK Appeal allowed


Summary:
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 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  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 3112 of the Constitution
The appellant s first appeal was dismissed but the 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  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 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 
166F H In the instant case it is therefore not possible to accept the reasoning of the Single Judge in the Second Appeal
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 entitlel to be heard on the question of penalty since clausea of the second proviso to Article 3112 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