IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20/02/2003 CORAM THE HONOURABLE MR. JUSTICE E. PADMANABHAN W.P. NO. 1705 OF 2000 K.K. Janarthanam @ Jafer .. Petitioner -Vs- Canara Bank, rep. by its Dy. General Manager Circle Office Chennai. .. Respondent Petition filed under Article 226 of The Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr. G.Rajan For Respondent : Mr. T.R.Sathiyamohan :ORDER 1. The petitioner prays for the issue of a writ of certiorarified mandamus to call for and quash the proceedings of the respondent in Ref. No.CNC SSW 11094 E113(i) RJN dated 12.1.2000 and quash the same and direct the respondent to reinstate the petitioner with continuity of service with all backwages. 2. The petitioner was a clerk in the respondent Bank since 1981 and he was posted to various Branches. The petitioner was prosecuted for offence under Section 420 IPC in C.C. No.272 of 1992 on the file of the Judicial Magistrate-I, Tirunelveli. The Judicial Magistrate convicted the petitioner to undergo rigourous imprisonment for one year as well as pay a fine. Being aggrieved, the petitioner preferred C.A. No.114 of 1999 on the file of the Sessions Court, Tirunelveli. Pending the appeal, the respondent Bank, by proceedings dated 12.1.2000, on coming to know about the conviction, in exercise of powers conferred under Regulation 21 (3)(a) read with Regulation 21 (4) of Chapter XI of the Canara Bank Staff Regulations, dismissed petitioner from the service of the bank from the date of conviction. Challenging the said dismissal, the petitioner moved the present writ petition, as according to him when the criminal appeal is pending before the Sessions Court, the dismissal is arbitrary and illegal, besides it is in violation of principles of natural justice. Challenging the said dismissal based upon conviction, the present writ petition has been filed. 3. Pending the writ petition, the petitioner moved Crl.M.P.208 of 200 0 in C.A. No.114 of 1999 on the file of the 2nd Additional Sessions Judge, Tirunelveli, with the consent of the complainants, for leave to compound. The learned Sessions Judge granted leave as the complainants have filed a consent affidavit and the offence being compoundable under Section 420. The Appellate Court, in exercise of powers conferred under Section 320 (5) granted leave as a result of which the learned Sessions Judge passed orders under Section 320 (8) of The Code of Criminal Procedure. Based upon this order of the learned Sessions Judge, Mr.Rajan, learned counsel appearing for the writ petitioner mainly contended that the conviction having been set aside and the dismissal being based upon conviction, the order impugned has to be quashed and a mandamus should be issued to reinstate the petitioner with all benefits. 4. Per contra, Mr.Sathiyamohan, learned counsel appearing for the respondent Bank contended that the writ petitioner was prosecuted for offence under Section 420 I.P.C., as he cheated 16 persons by representing to them that he will arrange for securing jobs to them in Saudi Arabia and he had received Rs.1.40 lakhs in all, took those persons to Mumbai and left them stranded there and the petitioner absconded from the place. As against the petitioner's wife, she was chargesheeted as a accomplice to her husband and in certain cases she issued a cheque in her name. After examination of 31 witnesses and fullfledged trial, the Judicial Magistrate convicted the petitioner and his wife and imposed the punishment of rigourous imprisonment for one year, besides a fine of Rs.5,000/= by judgment dated 15.7.99. 5. Based upon the conviction, the Board of Directors of the respondent Bank, on a consideration of the conviction and in exercise of powers conferred under Regulation 21 (3)(a) read with Regulation 21 (4), dismissed the petitioner from service under Regulation 4 (a) of Chapter XI of Canara Bank Employees Service Regulation. 6. It is contended that in terms of Section 10 (1)(b)(i) of the Banking Regulations Act, 1949, no banking company shall employee or continue employment of any person, who is or at any time has been convicted for an offence involving moral turpitude. The various allegations set out in the affidavit filed in support of the writ petition has been denied and it is a fact that the petitioner was convicted. Hence, it is contended that on the date when the order was passed there was a valid conviction and based upon conviction punishment of dismissal was imposed and the compounding claimed by t he petitioner will not exonerate the petitioner nor it is an acquittal on merits by the appellate court and, therefore, the order of dismissal is not liable to be interfered. It is further contended that the respondent Bank has taken into consideration of the entire facts, the judgment of the Sessions Court and, thereafter, imposed the punishment of dismissal. It is contended that the compounding will not in any manner exonerate the petitioner and the compounding would mean that the petitioner has accepted the offence, which involves moral turpitude and, therefore, no interference is called for with the order of dismissal passed by the respondent Bank. 7. The points that arise for consideration in this writ petition are :- "i) Whether compounding of offence by the appellate court is a meritorious acquittal and, consequently, whether the order of dismissal is liable to be set aside and reinstatement has to be ordered with all consequential benefits? ii) What is the effect of compounding of offence and whether compounding of offence under Section 320 (8) amounts to acquittal on merits ? iii) To what relief, if any, the petitioner is entitled to ?" 8. There is no controversy that 16 persons complained to the Police against the writ petitioner and his wife. The police investigated the complaint, laid a charge sheet in C.C. No.272 of 1992 on the file of Judicial Magistrate-I, Tirunelveli. The Judicial Magistrate, after full trial, convicted the petitioner and sentenced him to under-go rigourous imprisonment for a period of one year and to pay a fine of Rs.5,000/=. The petitioner's wife, who was the 2nd accused, was also convicted and sentenced to rigourous imprisonment for a period of six months and to pay a fine of Rs.2,500/=. The Judicial Magistrate-I convicted the petitioner by judgment dated 15.7.99. By the impugned proceedings dated 12.1.2000, the Board of Directors of the respondent Bank, who is the competent authority, after considering the conviction, in exercise of powers conferred under Regulation 21 (3)(a) read with Regulation 21 (4) of Chapter XI, imposed the punishment of dismissal from service from the respondent Bank. 9. As against the conviction, the petitioner preferred an appeal on 2 .8.99, but the appeal was taken on file on 13.8.99 and the petitioner was enlarged on bail on 19.8.99. The 2nd Additional Sessions Judge, Tirunelveli, by order dated 25.8.2000, granted leave to compound the offence as all the 16 complainants have sworn to an affidavit and expressed their consent. The compounding was ordered and leave was granted under Section 320 (5) of The Code of Criminal Procedure and, consequently, the petitioner was acquitted under Section 320 (8) of The Code of Criminal Procedure and appeal was disposed of accordingly. The above facts are not in dispute. 10. After the said compounding, as well as order passed under Section 320 (8) of The Code of Criminal Procedure, the writ petitioner moved the respondent Bank, while placing the fact that the Criminal Court granted leave to enter into a compromise and the petitioner was permitted to compound the offence committed by him under Section 420 I.P.C. The appellate court passed an order under Section 320 (8). The respondent Bank dismissed the said appeal/representation as pointed out by the learned counsel for the respondent. Though the said order has been passed pending the proceedings, the learned counsel for the petitioner contended that this Court could examine the points raised in this writ petition and even the formality of amending the prayer to include the proceedings of the Appellate Court need not be insisted. 11. The conviction in this case is admitted and the petitioner has been convicted to undergo rigourous imprisonment for one year and pay a fine of Rs.5,000/= in default to undergo rigourous imprisonment. Section 320 (5) of The Code of Criminal Procedure confers powers on the appellate court to grant leave to compound in respect of compoundable offences. In this case, the 16 complainants appeared before the learned Additional Sessions Judge, Tirunelveli, filed affidavits of compromise entered and after receipt of certain sums from the petitioner and leave was granted to compound the offence. On the leave being granted to compound, the petitioner has been acquitted under Section 320 (8) of The Code of Criminal Procedure. Section 320 (8) of The Code of Criminal Procedure reads thus :- "The composition of an offence under this Section shall have the effect of an acquittal of the accused with whom the offence has been compounded." 12. The compounding of the offence has been allowed with the leave of the Court pending the appeal by the learned 2nd Additional Sessions Judge to enter into a composition by the petitioner (who is the accused) with the complainants. The petitioner, the accused, compounded with the complainants. In this respect, we have to examine the effect of composition of offence. A reading of Section 320 (8) just provides that such composition shall have the effect of an acquittal of the accused with whom the offence has been compounded. But it is not acquittal. However, by the composition, the petitioner has entered into a compromise as a result of which an order has been passed under Section 320 (8), which would only mean that he is protected from being sentenced or saved from undergoing sentence, but it will not have the effect to clear his character vindicating his conduct. 13. In DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY VS. T.R. CHELLAPPAN reported in 1976 (3) SCC 190, the Supreme Court had occasion to consider the case of a delinquent employee convicted by a criminal court, but released on probation, where the Supreme Court held that conviction is not obliterated by merely releasing the delinquent under The Probation of Offenders Act, 1958. The Apex Court approved the decision of this Court in R.KUMARASWAMY IYER VS. COMMISSIONER, MUNICIPAL COUNCIL, TIRUVANNAMALAI reported in 1956 (2) MLJ 562. 14. In UNION OF INDIA & ANOTHER VS. TULSIRAM PATEL & OTHERS reported in 1985 (3) SCC 398, a five Judges Bench of the Supreme Court did not agree with the approach adopted in Chellappan's case (1976 (3) SCC 1 90) with respect to the interpretation placed on Rule 14 of The Railways Service Rules. In Tulsiram's case (1985 (3) SCC 398), the Apex Court sustained the powers of the employer based upon conviction and indicated the procedure to be followed. It may not be necessary to refer to details of the said pronouncement or the legal principles laid down therein in detail in this writ petition. 15. In GOVIND DAS VS. STATE OF BIHAR reported in 1997 (11) SCC 361, it was contended that the appellant has been acquitted in the criminal case, the order of termination of his service should have been set aside. In the said case, while finding that the acquittal of the appellant is based on the view that charges are not proved beyond reasonable doubt and the standard of proof required to prove the charge of misconduct in departmental proceeding is not the same as required to prove the criminal charge, the Supreme Court held that the acquittal of the appellant in the criminal case would not be made the basis for setting aside the order of termination of the service of the appellant passed in the disciplinary proceedings on the basis of evidence adduced in the departmental enquiry. 16. In the present case, a perusal of the service rules, which is relevant and has a bearing provides that an employee of the bank, when convicted, he may be dismissed with effect from the date of conviction or be given any lesser punishment or discharge under Regulation 11. The Regulation further provides that in the event of acquittal, the competent authority may proceed against the delinquent regarding misconduct and if after enquiry it is decided not to continue the employee in service, he shall be liable only for termination of service with three months pay and allowance in lieu of notice and he shall be deemed to have been on duty during the period of suspension. The said clause merely refers to an employee being convicted on a criminal charge and it does not speak of sentence or punishment awarded. 17. In DEPUTY DIRECTOR OF COLLEGIATE EDUCATION VS. NAROOR MEERA reported in 1995 (3) SCC 377, while examining the question as to whether suspension of sentence by the appellate court, whether there could be disciplinary proceedings under the rules, in that context, the Apex Court, while pointing out that mere suspension of sentence by the appellate court is not a bar for departmental proceedings. The Apex Court held that when once a Government servant is convicted of a criminal charge, it is not necessary to await for the appeal or revision as the case may be, but pass orders. However, if the Government servant/accused is acquitted on appeal, the order could always be revised and the Government servant could be reinstated with benefits to which he would have been entitled to had he continued in service. 18. In HARI PADA KHAN VS. UNION OF INDIA reported in 1996 (1) SCC 536 , the validity of rule which enables the Government to dismiss without holding a domestic enquiry was challenged. While holding that the principles of natural justice has no application when the authority concerned is of the opinion that it would be inexpedient to hold an enquiry, besides holding that natural justice cannot supplant, but supplement the law. The rule impugned has been held to be valid. In that context, the Apex Court held thus :- "4. It is seen that the rule has been made by the Corporation with the intention to prevent an employee of the Corporation served with a charge-sheet and arrested in furtherance thereof, from continuing in service. Of course it would be subject to the result of the trial. Continuance of the officer involved in an offence would be an affront to good and disciplined conduct of workmen. His continuance in service of the Corporation would demoralise the service. Therefore, it was most expedient in the public interest not to hold any further enquiry and terminate his services forthwith. However, it would be subject to the result of the trial. 5. The doctrine of principle of natural justice has no application when the authority concerned is of the opinion that it would be inexpedient to hold an enquiry and that it would be against the interest of security of the Corporation to continue in employment the offender-workman when serious acts are likely to affect the foundation of the institution. In Union of India v. Tulsiram Patel, a Constitution Bench of this Court upheld the validity of the similar provisions under Article 311 of the Constitution. Recently, in SLP (C) No. 11659 of 1992 the matter had come up before this Court on 13-11-1995, where the validity of a pari materia provision was questioned. This Court upheld the validity stating that the above clause will operate prospectively. 6. A contention has been raised by Mr Krishnamani that in Tulsiram Patel case this Court had upheld the validity of the rule subject to the principle of natural justice. It is needless to mention that the principle of natural justice requires to be modulated consistent with the scheme of the rules. It is settled law that the principle of natural justice cannot supplant but can supplement the law. In that view of the matter, the rule having been made to meet specified contingency the principle of natural justice by implication, stands excluded. We do not think that the rule is ultra vires of Articles 14 and 21 as stated earlier." 19. In DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAYS VS. T.R. CHELLAPPAN reported in 1976 (3) SCC 190, Fazil Ali,J., (as he then was), speaking for the Bench, held thus :- "11. This brings us to the consideration of two interconnected 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. Rule 14(i) 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 Section 3 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 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 meantime to keep the peace and be of good behaviour. Section 9(3) and (4) of the Act reads 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 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 sirte 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 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 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. 12. 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, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. 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: (i) 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 18 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 311(2) proviso (a) nor Rule 14(i) of the Rules of 196 8 contain any express provision that the moment a 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 principles of proviso (a) to Article 311(2) enjoins on the disciplinary 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 anything more will result in his automatic dismissal or removal from service." 20. In a case where the delinquent, an employee was convicted for an offence by the criminal court, but released under Section 4 of The Probation of Offenders Act, 1958, while examining the release under Section 4 of The Probation of Offenders Act, as well as Section 12 of the said Act, in UNION OF INDIA VS. BAKSHI RAM reported in 1990 (2) SCC 426, the Apex Court held thus:- "10. In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The court while invoking the provisions of Section 3 or 4 of the Act does not deal with the conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the court releases him on probation of good conduct. The conviction however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge [See Article 311(2)( b) of the Constitution and Tulsiram Patel case]. 11. Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The section was not intended to exonerate the person from departmental punishment. The question of reinstatement into service