IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 1076 OF 2004 (S/S) Har Sharan Das …………Petitioner. Versus State of Uttaranchal and others. …Respondents. Present: Mr. C.K. Sharma, Advocate for the petitioner. Mr. Dinesh Gahtori, Standing Counsel for the State of Uttarakhand/respondent nos. 1 and 2. Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. C.K. Sharma, Advocate for the petitioner and Mr. Dinesh Gahtori, Standing Counsel for the State of Uttarakhand/respondent nos. 1 and 2. 2. The petitioner is an employee of Cane Development Corporation and working at Kashipur, District Udham Singh Nagar, Uttarakhand. While the petitioner was working on the above post, as referred above, he was charged for an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 in Case Crime No. 2 of 1998, which was registered at Police Station Kashipur on 9.6.1998. In the trial pertaining to the aforesaid case, the petitioner was convicted for the offence, but the trial court gave benefit of Section 4 of the Probation of Offenders Act, 1958 (from hereinafter referred to as the Act) and did not pass any penal sentence on the accused i.e. the present petitioner. 3. Section 4 of the Act reads as under:- “4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which 2 the person is found guilty is of opinion that, having record to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, 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: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub- section (1), the court shall take into consideration report, if any, of the Probation Officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a 3 Probation Officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other manner as the court may having regarding to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the Probation Officer concerned.” 4. The petitioner was later dismissed from service vide order dated 9.12.2003. This order has been challenged by the petitioner in the present writ petition. The main ground for challenge by the petitioner is that since the benefit was granted to the petitioner under Section 4 of the Act and he was not sentenced, though convicted, the termination order was not liable to be passed against 4 him. In order to further strengthen his argument, the petitioner has relied upon Section 12 of the Act. Section 12 of the Act reads as under:- “12. Removal of disqualification attaching to conviction.--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: Provided that nothing in this section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence.” 5. Counsel for the petitioner Sri C.K. Sharma contends that merely because the petitioner has been convicted, but in view of the benefit granted to him under Section 4 of the Act, the conviction will not attract a disqualification under any law presently in force, in view of Section 12 of the Act. 6. In order to strengthen his argument, learned counsel for the petitioner has relied upon two judgments i.e. Additional D.I.G. of Police, Hyderabad Vs. P.R.K. Mohan (1997) 11 SCC 571 & Parupureddi Satyanarayana Vs. Zonal Manager & Disciplinary Authority, Indian Bank, Saifabad and another 1988(6) SLR Page 671. In Additional D.I.G. of Police Vs. P.R.K. Mohan (supra), the Apex Court has held as under:- “4. It is settled law that Section 12 of the Probation of Offenders Act, 1958 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 5 the person from departmental punishment. It was clarified; the section only directed that the offender shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Such law in the context is other law providing for disqualification on account of conviction. This Court, therefore, held that merely because a sentence of imprisonment has been substituted by an order passed under Section 12 of the Probation of Offenders Act, 1958, the effect of the conviction is not obliterated altogether and it would be open to authorities to take departmental proceedings on the basis thereof (see Union of India v. Bakshi Ram). Therefore, the observation of the appellate court on the interpretation of Section 12 is not correct. 5. But the learned Single Judge as well as the Division Bench while setting aside the order of punishment observed tat the authorities / department will not be precluded from taking appropriate disciplinary action against the delinquent. Since we have clarified the law on the subject, the only thing left for the authorities would be consider the effect of the modification in the order of sentence from imprisonment to probation and pass a fresh order whether under Section 12 of the CRPF Act or dehors that provision. We do not think it necessary to interfere as we have indicated the scope of the fresh order to be passed by the authorities. We dispose of this appeal accordingly with no order as to costs.” 7. In Parupureddi Satyanarayana Vs. Zonal Manager & Disciplinary Authority, Indian Bank, Saifabad and 6 another 1988(6) SLR Page 671, Andhra Pradesh High Court has held as under:- “10. In a case before the Supreme Court in Divisional Poersonnel Officer v. T.R. Challappan, A.I.R. 1975 S.C. 2216 the ambit and scope of Section 12 of the Probation of Offenders Act was considered. The Supreme Court while considering the legal effect of the words “attaching to a conviction of an offence under such law” occurring in Section 12 of the Probation of Offenders Act held that these words refer to two contingencies: (i) that there must be a disqualification resulting from 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 contemplates an automatic disqualification attaching to a conviction and obliteration 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. 11. In the case before me there is no doubt that in the order itself the termination of the services of the petitioner is based upon his conviction of an offence involving moral turpitude. But, taking into consideration the wording of Section 12 of the Probation of 7 Offenders Act and in the light of the interpretation of the same given by the Supreme Court as referred to above as well as the decision of this Court it has to be held that disqualification provisions of Section 12 of the Probation of Offenders Act. The wording of Section 12 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 Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law” clearly does not make a distinction between an offence involving moral turpitude and an offence in which there is no element of moral turpitude involved as such.” A perusal of the above rulings, show that the law is in fact quite contrary to what is being submitted before this Court. 8. The aforesaid argument of the petitioner is a complete misreading of Section 12 of the Act. The word “disqualification” in Section 12 of the Act would mean that in case any Act disqualifies a person, who has been convicted it will not be treated to be a disqualification, in case a benefit has been given to him under Section 3 or 4 of the Act. For the purpose of illustration, this “disqualification” would mean disqualification as is contemplated under Sub- section (3) of Section 8 of the Representation of Peoples Act, 1951 or under Section 267 (c) of the Companies Act, 1956 where a person is disqualified to be chosen as a member of either house of Parliament or Legislative Assembly or Legislative Council 8 of a State in case of his conviction, or for being made a Managing Director of a Company. 9. Sub-section 3 of Section 8 of the Representation of the People Act, 1951 reads as under:- “8. Disqualification on conviction for certain offences.-- (1)……… (2)…….. (3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub- section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]” 10. Section 267 of the Companies Act, 1956 reads as under:- “267. Certain persons not to be appointed managing directors.—No company shall, after the commencement of this Act, appoint or employ, or continue the appointment or employment of, any person as its managing or whole-time director who— (a) in an undischarged insolvent, or has at any time been adjudged an insolvent; (b) suspends, or has at any time suspended, payment to his creditors, or makes, or has at any time made, a composition with them; or 9 (c) is, or has at any time been, convicted by a Court [***] of an offence involving moral turpitude.” 11. In these cases, if such a person has been given benefit of Section 3 or 4 of the Act, the “disqualification” will not be attracted in his case. However, when a disciplinary proceedings is initiated against a person under the relevant rules, that cannot be treated as a “disqualification”. This has been the consistent view of different High Courts such as Delhi High Court in Iqbal Singh Vs. Inspector General of Police and others AIR 1970 Delhi 240, Punjab and Haryana High Court in Om Prakash Vs. The Director Postal Services (Post and Telegraphs Deptt.) Punjab Circle, Ambala and others AIR 1973 Punjab and Haryana 1 as well as the Apex Court in The Divisional Personnel Officer Southern Railway and another v. T.R. Challappan AIR 1975 SC 2216. 12. In view of the above, there is no force in the argument of the counsel for the petitioner. There is absolutely no anomaly in the impugned order dated 9.12.2003 (Annexure 6 to the writ petition). The writ petition is totally devoid of merit and is liable to be dismissed and is hereby dismissed. 13. At this stage, counsel for the petitioner Sri C.K. Sharma contends that he has certain dues with the department. The Court is, however, not going into this aspect as what was before the Court was only the validity of the termination order against the petitioner. The petitioner though is at liberty to make his claim, if any, 10 before the relevant Authorities for any dues, in case they are liable to be paid to the petitioner under the law presently in force in the State of Uttarakhand. 14. The instant writ petition is dismissed. No order as to costs. 15. Interim order, if any, stands vacated. (Sudhanshu Dhulia, J.) 15.2.2011 Rathour