IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T)No.6713 of 2008. Decided on:1st July, 2011. Kuldip Kumar …….Petitioner. Versus State of H.P. …….Respondent. ________________________________________________ Coram The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting? Yes. For the petitioner: Mr.Dilip Sharma, Advocate. For the respondent: Mr.Anil Jaswal, Deputy Advocate General. ---------------------------------------------------------------- Justice V.K. Ahuja,J.(oral): Present petition was filed by the petitioner under Section 19 of the Administrative Tribunal’s Act, 1985 claiming the following reliefs: “i) That the impugned order dated 2.6.1999, at Annexure A-7 may be quashed and set aside and applicant may be held entitled to reinstatement in service with all consequential benefits including arrears of salary and seniority and further promotion etc. ii) That the period w.e.f. 18.11.1988 when applicant was placed under suspension till his re-instatement may be directed to be treated as on duty for all intents and purposes with all consequential benefits.” 2. The application was pending before the H.P. State Administrative Tribunal and on the abolition of the Tribunal, the same was transferred to this Court and was registered as a civil writ petition. A notice of 2 the petition was issued to the respondent and the reply was filed. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. The facts leading to the filing of the writ petition are that the petitioner joined as a Clerk in the Local Audit Department on 9.6.1977. Thereafter, he was promoted as Junior Auditor on 27.2.1978. On 18.11.1988, the petitioner was arrested in connection with an FIR registered under Section 302, 307 and 324 IPC. Thereafter, on 1.2.1989, he was put under suspension w.e.f. 18.11.1988. 5. It is further averred that vide judgment delivered by the Sessions Judge, Una on 19.10.1992, the petitioner was convicted. The appeal preferred by the petitioner against the judgment of the learned Sessions Judge was dismissed by this Court vide judgment dated 25.7.1994, against which an appeal was preferred before the Supreme Court, which was also dismissed on 26.9.1996. It is further averred that vide letter dated 29.7.1998 (Annexure P-2), the Joint Secretary (Home) to the Government of Himachal Pradesh conveyed to the Additional Director General of Prisons, Himachal Pradesh the decision of the Hon’ble Governor of Himachal Pradesh vide which, under Article 161 of the Constitution of India, the Hon’ble Governor had been pleased to grant pardon to the petitioner and a direction was issued to 3 release him forthwith. Thereafter, vide letter dated 31.7.1998 (Annexure P-3), the Additional Director General of Prisons, H.P. wrote to the Superintendent, Sub Jail, Shimla to release the petitioner forthwith. The petitioner was accordingly released on 31.7.1998 and he submitted his joining report to the Examiner, Local Audit Department, Himachal Pradesh on 1.8.1998 (Annexure P-4). 6. It is further averred that vide letter dated 12/13th April, 1999 (Annexure P-5), the petitioner was issued a show cause notice calling upon him to explain as to why he should not be dismissed from service, keeping in view the gravity of the criminal charges upon which he was convicted by the court of law. The petitioner submitted a detailed representation dated 1.5.1999 (Annexure P-6) alleging that as a result of the pardon granted by the Hon’ble Governor, the conviction had been obliterated and, therefore, on that basis, he could not have been punished. It was stated that vide order dated 2.6.1999 (Annexure P-7), the petitioner was granted pardon by the Home Department vide letter dated 29.7.1998 for offence under Section 302 IPC and the conviction and sentence awarded to him under Sections 307, 324 IPC and Section 27 of the Indian Arms Act, which he had already undergone, still subsisted and that the conduct which led to the conviction of the petitioner rendered his further retention in public service undesirable warranting imposition of major 4 penalty on him. Consequently, vide the impugned order, the petitioner was dismissed from service w.e.f. 2.6.1999. 7. The petitioner submitted a review application on 24.6.1999 to the Financial Commissioner- cum-Secretary (Finance) with a prayer to recall the order of dismissal. The Respondent, vide letter dated 28.4.2000, (Annexure P-9), informed that the review petition has not been addressed to the appropriate authority, as such, no action could be initiated by the Department. Therefore, feeling aggrieved by the impugned order of dismissal, the petitioner filed the present petition mainly on the following grounds: “(A) That it is well settled that once power of pardon is exercised by the Hon’ble Governor the convicted person is free not only from punishment imposed on him but also from all the penal consequences and dis-qualifications, as dis- entitle him from following his occupation and which are concomitant of the conviction. The effect of pardon is that it blots out the offence, that after wards it cannot be imputed to him to prevent the assertion of his legal right. The pardon has in substance the effect of wiping out the conviction itself. (B) That once the Hon’ble Governor granted pardon to the applicant, the conviction stood wiped out and consequently the respondent department could not have passed the impugned order of dismissal by making a reference to the misconduct which led to his impugned conviction. As such the impugned order of dismissal is without any foundation and liable to be quashed and set aside.” 8. It was also pleaded that the show cause notice was issued to the petitioner by the respondent Department assuming that the entire conviction subsisted 5 and hence on that basis, the penalty of dismissal of service was proposed to be imposed upon the petitioner. He pointed out in the reply to the show cause notice that he had been granted pardon by the Hon’ble Governor and as such the conviction did not subsist. However, he alleged that the respondent Department changed its stand and in the impugned order (Annexure P-7), it was stated that he was granted pardon only under Section 302 IPC and conviction under Sections 307, 324 IPC and Section 27 of the Indian Arms Act, for which he had already undergone imprisonment, still subsisted. Thus, it was alleged that due to this erroneous approach, the impugned order of dismissal was passed against the petitioner. 9. In the reply filed by the respondent, the facts, as have been mentioned above, have not been disputed except the plea taken in the reply in paras 4 and 6 that the conviction and sentence awarded to the petitioner under Sections 307, 324 IPC and Section 27 of the Indian Arms Act still subsisted, which the petitioner had already undergone. It was pleaded that the petitioner was granted pardon by the Hon’ble Governor only for life imprisonment and not for the offences for which he had already undergone the sentence. 10. The submissions made by the learned counsel for the petitioner were that the order of pardon passed by the Hon’ble Governor has an effect of wiping of the 6 punishment imposed upon the petitioner and as such the petitioner is not liable to be dismissed in view of the conviction imposed upon him. The learned counsel for the petitioner, in support of his submissions, had relied upon the decision in The Deputy Inspector General of Police, North Ranger, Waltair and another vs. D. Rajaram and others, AIR 1960 Andhra Pradesh 259. 11. Before I refer to the above decision cited by the learned counsel for the petitioner, I would like to reproduce Articles 72 and 161 of the Constitution of India, which had been discussed in the above case. Article 72 reads as under: “72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. – (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence – (a) in all cases where the punishment or sentence is by a Court Martial; (b) In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (c) In all cases where the sentence is a sentence of death. (2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.” Article 161 of the Constitution of India reads as under: 7 “161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases. – The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.” 12. A reference may also be made to Sections 401 and 402 of the Code of Criminal Procedure, 1898: “401. Power to suspend or remit sentences. – (1) When any person has been sentenced to punishment for an offence, the appropriate Government may at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for suspension or remission of a sentence, the appropriate Government, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted, is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted, may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (4A) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property. (6) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on 8 which petitions should be presented and dealt with : Provided that in the case of any sentence (other than a sentence of fine passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and – (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail, or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. 402. Power to commute punishment. – (1) The appropriate Government may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it:- death, imprisonment for life, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine. (2) Nothing in this section shall affect the provisions of section 54 or section 55 of the Indian Penal Code. (3) In this section and in section 401, the expression “appropriate Government” shall mean – (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (4A) of section 401 is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in other cases, the State Government. 13. Needless to say, the power has been exercised by the Hon’ble Governor under Article 161 of the Constitution of India, as shall be clear from the order Annexure P-2, dated 29.7.1998, which may be reproduced as under: “I am directed to refer to your letter No.4-1/90- Jails-II, Dated 7th August, 1997, on the subject cited above and to say that the Governor, Himachal Pradesh in exercise of the powers conferred by Article 161 of the Constitution of India, is pleased to grant pardon to Shri Kuldip Kumar, Life convict s/o Sh.Pirthi Chand, village Dhusara, Police Station, Amb, District Una, (H.P.) and order to release him forthwith.” 9 14. Therefore, the main question to be determined is the powers vested in the Hon’ble Governor under Article 161 and effect of the same. In the above decision, a Special Bench of three Judges of Andhra Pradesh High Court had considered the provisions of Articles 72 and 161 and also made a reference to Sections 401 and 402 of the Cr.P.C. (1898). 15. The brief facts of the above case necessary to be mentioned are that a Sub Inspector of Police and some Constables (respondents) were dismissed from service as they were convicted for certain offences. They filed appeals against their convictions and sentences in the High Court. Pending the appeals, the Andhra State was formed upon which the Government of the new State declared a general amnesty to all the prisoners by its order. After the respondents were released from jail, they withdrew their appeals as not pressed. Immediately thereafter, the respondents asked the concerned authorities for postings. Upon being told that they were already dismissed from service, they moved the High Court under Article 226 to quash the orders of dismissal. It was contended before the learned Single Judge, who heard the writ petitions, that the notification, dated 12.1.1954 had the effect of releasing the offenders from the consequences of the offences and that the offenders were free from all disabilities which attached to their convictions. Another contention advanced on behalf of the respondents was that the orders of dismissal, pending appeals to the 10 High Court, were illegal as they violate Police Standing Order No.77. Both these arguments prevailed with the learned Single Judge with the result that he quashed the orders impugned. Aggrieved by that order, the State of Andhra Pradesh had preferred these appeals which were heard by a Special Bench consisting of three Hon’ble Judges. 16. The observations made in paras 11, 14, 15, 16 and 17 are relevant and are being reproduced below: “(11) So, it is well settled that when a convicted person is pardoned, he is free both from the punishment imposed on him as also from all penal consequences and that such disqualifications as disentitle him from following his occupation and which are concomitant of the conviction are removed. Then, is the position arising out of the present notification analogous to the proclamation issued by the President of the United States in 1868 immediately after the rebellion. (14) This read in conjunction with paragraph 2 of Art. 72 shows that Governors, in regard to matters to which the executive power of the State extends, have powers similar to those of the President. It is seen that these two provisions confer distinct powers on Governors such as the grant of pardons, reprieves, respites or remissions of punishment or the commutation of any sentence and each has a distinct connotation. Articles 72 and 161 reproduce the sovereign powers possessed by the King of England. One of such powers is contained in the provisions of the Criminal Procedure Code, namely, Ss. 401 and 402 which will be adverted to presently. (15) It is evident from Art. 161 that the grant of pardon is not the same thing as the remission of a sentence in whole or in part. They are two different things having distinct operation. As already pointed out, the power of the appropriate Governments to grant remission of sentences is derived from Ss.401 and 402 of the Criminal Procedure Code……………………………….. (16) What we have now to determine is whether the Governor of the Andhra State exercised his power under the relevant provisions of the Criminal Procedure Code or under those traceable to Art. 161. Indisputably, Art. 161 is of much wider amplitude enabling the Governor to give an 11 unconditional and absolute pardon, while S.401 does not empower him to do any such thing. For solving this problem, we have to look to the terms of the notification. (17) It is true that the words ‘general amnesty’ were employed in the preamble to that order. That expression may lend some countenance to the argument that what was granted was a general pardon, since the meaning of the word “amnesty” is a general pardon. But that does not afford us much guidance in deciding the exact scope of the notification. It is plain from the concerned notification that the prisoners in the various jails in the State of Andhra were to be released to celebrate the inauguration of the Andhra State. The subsequent order makes it clear that what was remitted was the unexpired portion. Even independently of the second order, the notification of 12-1-1954 is explicit. Its purpose was to set the prisoners then in jails free.” 17. It was held by the Hon’ble Special Bench that it is difficult to say that the order granting general amnesty results in order of dismissal becoming null and void. If the officer succeeds in his appeal, he will be restored to the position, which he occupied before the order of dismissal. Finally, in para 25 of the judgment, it was observed as under: “(25) Assuming that the standing order has the effect that is attributed to it, we do not think that this Court will be justified in interfering with those orders in exercise of its power under Art. 226 of the Constitution. It should be noted that the appeals were withdrawn as not pressed even before the Writ Petitions were filed and, therefore, they were dismissed. This establishes that the convictions were finally upheld. So, even if the relief asked for is granted, and the respondents were restored to their old position, the next moment they will be dismissed. Thus, it is a mere formality, which does not give any relief of substance. This Court will not stultify itself by passing orders under Art.226 of the Constitution, which are ineffectual. So, this argument is also unsubstantial and has to be negatived.” 12 Consequently, the appeals filed by the Government were allowed and the writ petitions were dismissed. In deciding the above case, their Lordships had also referred to the pardon granted under that amnesty which was the subject of frequent consideration by American Courts also. A reference was also made to the decisions given in the cases before the Courts of the United States. 18. Reliance was also placed on the decision in Sarat Chandra Rabha and others vs. Khagendra Nath and others, AIR 1961 Supreme Court 334. The question being considered by their Lordships was as under: “A person convicted and sentenced to a term of rigorous imprisonment of more than two years is disqualified under S.7(b) when five years have not passed after his release from jail and the disqualification has not been removed by the Election Commissioner. The remission of his sentence under S.401, Criminal P.C. and his release from jail before two years of actual imprisonment would not reduce his sentence into one of a period of less than two years and save him from incurring the disqualification under S.7(b)……………………” 19. It was observed in para 4 of the above decision as under: “An order of remission does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court.” 13 20. On the other hand, the learned Deputy Advocate General has relied upon the decision of Hon’ble Supreme Court in K.M. Nanavati vs. The State of Bombay, AIR 1961 Supreme Court 112. Brief facts of that case necessary for present discussion are that the petitioner who was serving in the Indian Navy was arrested in connection with a charge of murder under Section 302 IPC. In due course, he was placed on trial before the Sessions Judge, Greater Bombay. The trial was by a jury. The jury returned a verdict of not guilty by a majority of eight to one. The learned Sessions Judge made a reference to the High Court under Section 307 Cr.P.C., disagreeing with the verdict of the jury. The reference was heard by a Division Bench of Bombay High Court. The High Court accepted the reference and convicted the petitioner under Section 302 of the IPC and sentenced him to suffer imprisonment for life vide judgment dated 11.3.1960. On the same day, the Governor of Bombay passed the following order: “In exercise of the powers conferred on me by Article 161 of the Constitution of India, I, Shri Prakasa, Governor of Bombay, am pleased hereby to suspend the sentence passed by the High Court of Bombay on Commander K.M. Nanavati in Sessions Case No.22 of IVth Sessions of 1959 until the appeal intended to be filed by him in the Supreme Court against his conviction and sentence is disposed of and subject meanwhile to the conditions that he shall be detained in the Naval Jail Custody in I.N.S. Kunjali.” 21. The convict filed a Special Leave against the order passed by the Bombay High Court on reference convicting the petitioner under Section 302 of the IPC 14 and sentencing him to imprisonment for life. Alongwith his petition for special leave, an application was filed by the petitioner praying that he may be exempted form surrendering under Order XXI Rule 5 of the Rules of the Court. He took up the plea that as a result of the order passed by the Governor of Bombay, he may be exempted from complying with the relevant rule of this Court. The matter related to the scope and extent of the powers conferred on the Governor under Article 161 of the Constitution and the matter was referred to a Constitutional Bench of the Hon’ble Supreme Court. The majority decision of the Hon’ble Supreme Court was as under: “The ambit of Art.161 is very much wider than Art.142 and it is only in a very narrow field that the power contained in Art.161 is also contained in Art.142, namely, the power of suspension of sentence during the period when the matter is sub-judice in the Supreme Court. Therefore, on the principle of harmonious construction and to avoid a conflict between the two powers it must be held that Art.161 does not deal with the suspension of sentence during the time that Art.142 is in operation and the matter is sub-judice in