1 D.B. CIVIL SPECIAL APPEAL (W) NO.448/2006 Hanuman Singh Vs. District & Sessions Judge, Merta City 24.10.2007 HON'BLE MR JUSTICE RAJESH BALIA HON'BLE MR JUSTICE BHANWAROO KHAN Mr. SN Trivedi, for the appellant. Mr. S. Ladrecha, Addl. Govt. Advocate. Heard learned counsel for the appellant. The appellant was found during the period of probation to have indulged into forging the signature of the Presiding Officer of the Court where he was serving and for creating a document under his seal and authority. His services were terminated during probation with reference to the aforesaid conduct. That was on 7.8.1981. The termination order was challenged before this Court which was quashed on 29.1.1991 and the special appeal against the same was dismissed on 20.1.1993. The review petition was also dismissed on 23.8.1995. It was on the premise of the order of termination passed on 7.8.1981 founded on the alleged misconduct, the order being penal in character and punishment 2 could not have been imposed without holding enquiry into the alleged misconduct by the disciplinary authority in accordance with law. During this period, for the same incident, petitioner was subjected to criminal trial for offence under Sections 465 and 471 IPC, challan for which was filed on 11.9.1981. The said trial was concluded on 2.11.1999 and the incumbent was convicted under Section 465 IPC. However, he was ordered to be released on probation under Sec. 4 of the Probation of Offenders Act, 1958 and it was also observed that effect of Section 12 will have no adverse effect on his services on account of conviction. The order of the trial Judge was affirmed in appeal by the learned Additional District Judge, Parbatsar vide its order dated 12.7.2004. The revision petition preferred against the same was dismissed by this Court vide order dated 18.1.2005. Thereafter on 9.3.2006, the impugned charge-sheet was issued in respect of misconduct for which he was earlier removed by terminating the probation and thereafter the same was quashed in the writ petition filed by the petitioner- appellant which became final only in the year 1995. But since at that time trial in respect of 3 the same misconduct was pending, no immediate action was taken against the petitioner-appellant awaiting the result of trial. The contention of the petitioner before the learned Single Judge as well as before us is that since he has already been dismissed once for the same misconduct which has been set-aside by this Court and notwithstanding having been convicted he has been given benefit of being released on probation under the Probation of Offenders Act with no adverse effect on his service, no adverse effect on service can take place for the same conduct at this distance of time. Law is well settled by a chain of decisions of the Supreme Court that the effect of releasing on probation after being convicted for an offence involving moral turpitude may not become a disqualification seeking an employment but the fact of conviction and its stigma is not taken away so as to exclude it from consideration for the purpose of removing him from service. Section 12 of the Probation of Offenders Act says notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of 4 section 3 or section 4 of the Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. The expression “shall not suffer disqualification” has received consideration by the highest court of the land. It was stated as far as back in The Divisional Personnel Officer, Southern Railway and Another V/s T.R. Challappan, AIR 1975 SC 2216 that Section 12 does not contemplate automatic disqualification of a person released on probation. Thus, the conviction of a delinquent employee simpliciter without anything more will not result in his automatic dismissal or removal from service. In Shankar Dass V/s Union of India and Another, AIR 1985 SC 772 the scope of word 'disqualification' used in Section 12 was explained thus :- “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, 5 1951, entitled “Disqualification 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 “disqualification” is used in Section 12 of the Probation of Offenders Act.” In Tritha Ram V/s V.K. Seth and Another, AIR 1988 SC 285, the Supreme Court held that it is statutorily provided that an offender released on probation shall not suffer disqualification attaching to a conviction and hence instead of dismissal from service appellant was removed from service so that order of punishment did not operate as a bar and disqualification for future employment with Government. Thus, the punishment which results in disqualification for future employment was found to be not inflictable but any other punishment including that of removal was held to be imposable in case the alleged act and omission of the incumbent proved amounts to misconduct for which he could face departmental enquiry for punishment. In Additional D.I.G. Of Police, Hyderabad V/s P.R.K. Mohan, 1998 SCC (L&S) 245, the Supreme Court held that Section 12 was not intended to exonerate the offender from 6 departmental punishment. It only provides that the offender shall not suffer disqualification if any, attaching to a conviction. Similar view was taken by the Supreme Court in Harichand V/s Director of School Education, AIR 1998 SC 788 that the Government servant on being convicted but released on probation, his conviction can be taken into account for removing him from service. At the same time, the Court also cautioned that the power of dismissal, removal or termination of Government servant on the basis of his conviction has to be exercised fairly, justly and reasonably and deprecated the practice of imposing penalty without applying its mind which could properly be imposed so far service career was concerned and any such omission without application of mind was held liable to be set- aside. Keeping in view the aforesaid principle the action of the respondents in issuing a charge-sheet inviting attention to all these facts and circumstances and inviting him to place his point of view in response to the interim action cannot be said to be without jurisdiction nor it can be held to be suffering from any infirmity keeping in view that finality of 7 conviction was only attached in January, 2005. There is no reason to apprehend that the Disciplinary Authority will not take into account all the material including his long service record and his conduct through out this period before reaching its conclusion whether to impose any punishment now for the alleged misconduct and if so about the appropriate punishment to be imposed now keeping in view the principle enunciated by the Apex Court in this regard. Accordingly, the appeal fails and is hereby dismissed. (BHANWAROO KHAN),J. (RAJESH BALIA),J. /rm