IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.07.2008 CORAM: THE HON'BLE MR.JUSTICE P.K.MISRA AND THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN Writ Petition No.14048 of 2004 and WPMP.No.16559 of 2004 The Director of Sericulture, Foulks Compound, Anaimedu, Salem 636 001. .. Petitioner vs. 1. S. Panneerselvam S/o.M. Sivalingam 2. The Registrar, Tamil Nadu Administrative Tribunal Chennai 104. .. Respondents PRAYER : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records pertaining to the order of the Tribunal, the 2nd respondent herein, made in O.A.No.339 of 1992 dated 5.8.2003 and quash the same. For Petitioner : Mr.K. Elango Special Govt. Pleader For Respondent-1: Mr.P. Rajendran - - - O R D E R (Order of the Court was made by P.K.MISRA, J.) Heard the learned counsel appearing for the parties. 2. Respondent No.1 was appointed as Demonstrator in the Sericulture Department. Soon thereafter, he was involved in an offence relating to theft of sandalwood logs and a criminal case was registered. The trial court by judgment dated 30.4.1985, convicted Respondent No.1 and sentenced him to undergo rigorous imprisonment for six months. After such order of conviction, the departmental authorities by taking recourse to Rule 17(c)(i)(1) of TNCS (CCA) Rules, dismissed the present Respondent No.1 from service. At that https://hcservices.ecourts.gov.in/hcservices/ stage, Respondent No.1 filed an appeal against the order of conviction and ultimately the appellate court, while upholding the conviction, released the Respondent No.1 by applying Section 4 of the Probation of Offenders Act (in short P.O.Act) . Armed with the aforesaid order passed by the appellate court in the criminal proceedings releasing Respondent No.1 under Section 4 of the P.O. Act, Respondent No.1 filed O.A.No.339 of 1992 before the Tamil Nadu Administrative Tribunal (in short "Tribunal"). The Tribunal came to the conclusion that in view of the provisions contained in Section 12 of the P.O. Act, the factum of conviction cannot be a ground for dismissing the officer from service and ultimately allowed such Original Application and directed that he should be reinstated with all service benefits but without backwages. For coming to such a conclusion, the Tribunal appears to have placed reliance upon the decision of this Court reported in 2000 (IV) CTC 409 (P. SUBRAMANIAN v. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES). The judgment of the Tribunal is questioned by the Director of Sericulture in the present writ petition. 3. Learned counsel for the petitioner submitted that even though the present Respondent No.1 was released by applying Section 4 of the P.O. Act by the appellate court, such order does not take away the fact that Respondent No.1 had been convicted on allegation of theft of the sandalwood. Learned counsel, therefore, submitted that release of the present Respondent No.1 under Section 4 of the P.O. Act cannot be construed as a ground for not taking departmental action and the order passed by the Tribunal should be quashed. Learned counsel for the petitioner has brought to our notice several decisions of the Supreme Court including the latest decision reported in (2007) 9 SCC 86 (PUNJAB WATER SUPPLY SEWERAGE BOARD AND ANOTHER v. RAM SAJIVAN AND ANOTHER). 4. Learned counsel appearing for Respondent No.1 by placing strong reliance on the decision of this Court reported in 2000(IV) CTC 409 (P. SUBRAMANIAN v. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, TIRUCHIRAPALLI AND ANOTHER), submitted that the ratio of the aforesaid decision is squarely applicable to the present case and, therefore, the order of the Tribunal should not be interfered with. Learned counsel has also submitted in the alternative that even assuming that the aforesaid decision is not applicable, at any rate, there should have been a regular departmental proceedings before taking any action. He has further submitted that, at any rate, the allegations, on the basis of which a criminal case was initiated, did not relate to actual service of Respondent No.1 and that should not be taken as a ground for taking any disciplinary action. 5. Section 12 of the Probation of Offenders Act, 1958 reads as follows :- “12. Removal of disqualification attaching to conviction.—Notwithstanding anything contained in any other https://hcservices.ecourts.gov.in/hcservices/ 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.” 6. The scope of Section 12, particularly in the context of Sections 3 & 4 of the Probation of Offenders Act was considered by the Supreme Court in the case of the Divisional Personnel Officer, Southern Railway v. T.R.Chellapan reported in (1976) 3 SCC 190 = AIR 1975 SC 2216, wherein it was observed as follows :- “12. . . . 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 1968 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.” https://hcservices.ecourts.gov.in/hcservices/ 13. . . . In our opinion, however, Section 12 of the Act refers to only such disqualifications as are expressly mentioned in other statutes regarding holding of offices or standing for elections and so on. This matter was considered by a number of High Courts and there is a consensus of judicial opinion on this point that Section 12 of the Act is not an automatic disqualification attached to the conviction itself.” 7. Subsequently, after specifically referring to the above decision and analysing the position of law, it was held in (1990) 2 SCC 426 = AIR 1990 SC 987 (UNION OF INDIA v. BAKSHI RAM) as follows:- “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, 1985 Supp (2) 131]. 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 from which he was removed in view of his conviction does not therefore, arise. That seems obvious from the terminology of Section 12. . . . 13. Section 12 is thus clear and it only directs 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. For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands removed. That in effect is the scope and effect of Section 12 of the Act. But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct. Apparently, such a https://hcservices.ecourts.gov.in/hcservices/ view has no support by the terms of Section 12 and the order of the High Court cannot, therefore, be sustained." (Emphasis supplied) 8. It is no doubt true that in P. Subramanian's case (cited supra) the learned single Judge has referred to both the decisions above, while coming to the conclusion that in view of the release of the person concerned in the said case by virtue of Section 12 of the Probation of Offenders Act, no punishment should have been imposed. For coming to the aforesaid conclusion, the learned single Judge has also placed reliance upon the decision of the Supreme Court in 1981 SCC (cri) 637 (AITHA CHANDER RAO v. STATE OF A.P.), wherein it was observed that as the appellant was released on probation, this may not affect his service career in view of Section 12 of the Probation of Offenders Act. 9. Similarly reliance was placed by the learned single Judge on the decision reported in AIR 1985 SC 1278 (RAJBIR v. STATE OF HARYANA), wherein the Supreme Court after releasing the convicted person on probation of good conduct, observed :- “5. We are of the view that in the peculiar facts of the case, the conviction should not affect his service.” 10. The decision of the Supreme Court in Bakshi Ram’s case was followed subsequently in (1997) 11 SCC 571 (ADDITIONAL D.I.G. OF POLICE, HYDERABAD v. P.R.K. MOHAN), wherein it was observed :- “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 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 the 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.” 11. Learned single Judge also placed reliance upon an earlier decision of another learned single Judge of this Court reported in 1986 LW (Crl.) 58 (GOPALAN, In re), wherein the learned single Judge, while applying the provisions of Section 4(1) of the Probation of Offenders Act, further observed :- https://hcservices.ecourts.gov.in/hcservices/ “I would like to make it clear that as contemplated under Section 12 of the Probation of Offenders Act, the petitioner shall not suffer disqualification if any attaching to this conviction. …” 12. Learned single Judge also relied upon another decision of a learned single Judge of this Court reported in 1989 Crl.L.J. 1161 (STATE BY ASST. INSPECTOR OF LABOUR, NAGERCOIL v. S. RADHAKRISHNAN), wherein the learned single Judge after holding the accused guilty under Section 25 of the Tamil Nadu Weights and Measures (Enforcement Act), 1958, applied Section 3(1) of the Probation of Offenders Act and observed that release of the accused under Section 3(1) of the Act should not be construed as disqualification attached to conviction under Section 12 of the Probation of Offenders Act. 13. Apart from the above decisions of the Supreme Court and the Madras High Court, the learned single Judge in Subramanian’s case also placed reliance upon a Division Bench decision of the Karnataka High Court, wherein the Division Bench, while applying Section 3 of the Probation of Offenders Act, observed : “8. ... We also make it clear that as provided under section 12 of Probation of Offenders Act and as observed by their Lordships of the Supreme Court in the case of Rajbir v. State of Haryana, AIR 1985 SC 1278: 1985 Cri LJ 1495 his conviction shall not suffer disqualification for holding the post and continuing in service." 14. After referring to all the above decisions, the learned single Judge proceeded to observe:- “ 15. . . . Though section 12 of the Probation of Offenders Act does not preclude the department from taking action against his misconduct leading to the offence or his conviction thereon as per law and as observed by Their Lordships in Divisional Personnel Officer v. T.R. Challappan, AIR 1975 SC 2216, the conviction of a delinquent employee simpliciter without anything more will not result in his automatic dismissal or removal from service. Added to this, the learned Sessions Judge in order to protect his services, released him under Section 3 of the Probation of Offenders Act. In the light of the above factual and legal position referred to above, the impugned proceedings of the first respondent dated 13.3.98 is quashed and he respondents are directed to reinstate the petitioner in service with all service benefits and without salary and other monetary benefits for the period in which he was not in service,……” https://hcservices.ecourts.gov.in/hcservices/ 15. It is but natural for the employee / respondent to place strong reliance upon the aforesaid decision of the learned single Judge, which supports his case to a large extent. But the crucial question is whether such observation of the single Judge can be followed, particularly in the light of the observations made by the Supreme Court in several decisions and more particularly the latest decision reported in (2007) 9 SCC 86 (PUNJAB WATER SUPPLY SEWERAGE BOARD AND ANOTHER v. RAM SAJIVAN AND ANOTHER). 16. Before adverting to the ratio of the decision in the above Supreme Court case, it would be also appropriate to notice that the observation of the Supreme Court in Aitha Chander Rao’s case was specifically held to be not binding as a precedent by the Supreme Court in (1998) 2 SCC 383 (HARICHAND v. DIRECTOR OF SCHOOL EDUCATION), wherein it was observed as follows :- “6. The order in the case of the said Rao was delivered on an appeal against conviction. The conviction was sustained but, having regard to the peculiar circumstances of the case, the said Rao was released on probation and it was added that “this may not affect his service career in view of Section 12 of the Probation of Offenders Act”. We do not find in the order in Rao case any discussion of the provision of Section 12 or of the meaning of the words “disqualification, if any attaching to a conviction of an offence under such law” therein. The order cannot, therefore, be regarded as a binding precedent upon the point. 7. In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words “disqualification, if any, attaching to a conviction of an offence under such law” therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.” (Emphasis added) 17. It is interesting to note that the aforesaid decision of the Supreme Court was not at all cited before the learned single Judge in P. Subramanian’s case. 18. The Supreme Court in the decision reported in (2007) 9 SCC 86 (cited supra), after specifically referring to the decisions of the Supreme Court in Chellapan’s case, Aitha Chander Rao’s case https://hcservices.ecourts.gov.in/hcservices/ and Bakshi Ram’s case, Harichand’s case as well as the celebrated case of the Union of India v. Tulsiram Patel reported in (1985) 3 SCC 398, observed:- “14. It is, however, one thing to say that prior to passing of the order of termination, a disciplinary proceeding should have been initiated, but it is another thing to say as has been stated by the High Court that only because the respondents were let off on probation, the same should not affect his service career at all.” 19. It is no doubt true that the decision of the Supreme Court in T.R. Chellapan’s (AIR 1975 SC 2216) case was by a Bench consisting of three Judges, whereas the subsequent decision in Bakshi Ram’s (AIR 1990 SC 987) case was by a Bench consisting of two Judges. However, one should not lose sight of the fact that in the later decision, T.R. Chellapan’s case has been specifically considered and analysed. Law is well settled that when an earlier decision of the Supreme Court is specifically considered and analysed and any observation is made expounding a particular position of law, it is such later decision which is binding on the High Court because law is deemed to have been settled in such later decision. The position, however, may be different where subsequent Bench of a lower strength does not take note of an earlier decision of a co- ordinate strength or larger strength, in which event the earlier decision may be followed. 20. In our considered opinion, in fact, there is no conflict in the opinions expressed in T.R. Chellapan’s case and the other decisions subsequently rendered. In such view of the matter, we do not think it would be appropriate for us to follow the decision of the single Judge in P. Subramanian’s case. 21. In the present case, criminal case was initiated on the basis of the allegation that the concerned employee had committed theft of sandalwood logs. The trial court had convicted and sentenced the accused (present Respondent No.1) to undergo six months R.I. However, the appellate court, while confirming the finding of guilt, applied Section 4 of the Probation of Offenders Act. As has been observed in several decisions of the Supreme Court including the decision reported in (2007) 9 SCC 86 (cited supra), release of a person under P.O. Act does not take away the effect of finding of guilt in a criminal case. Article 311 of the Constitution envisages that ordinarily a person can be punished by conducting departmental proceedings. However, there is an exception to this. If the order of punishment is based on conduct, which led to conviction in a criminal case, such a person can be punished even without holding a formal enquiry. The formal enquiry is dispensed with in such cases, because there is already a finding regarding the guilt relating to https://hcservices.ecourts.gov.in/hcservices/ same person. The Department has followed Rule 17(c)(i)(1) of the TNCS (CCA) Rules, which contemplates that on a person being convicted in a criminal case, by issuing notice, the departmental authorities can take appropriate action. 22. As observed by the Supreme Court in T.R. Chellappan's case, a notice was required to be given to enable a person to give his explanation relating to seriousness of the allegations. In the present case, such an opportunity had been given. Since it is now well settled that release of a person by applying the provisions of the P.O. Act would not take away the effect of conviction, we do not think that there was any justification for the Tribunal to give direction for reinstatement. As a matter of fact, such a course was frowned upon by the Supreme Court in (2007) 9 SCC 86 (cited supra). 23. The other contention of the Respondent No.1 to the effect that committing theft of sandalwood did not relate to the duty of the Respondent No.1 is only stated to be rejected and by no stretch of imagination it can be said that such action would not amount to misconduct. 24. For the aforesaid reasons, we allow the writ petition and confirm the order of dismissal passed by the Department. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dpk To 1. The Director of Sericulture Foulks Compund, Anaimedu, Salem 636 001 + 1 CC To Mr.P.Rajendran, Advocate SR NO.38563 W P No.14048 of 2004 GR(CO) SRA(25/09/2008) https://hcservices.ecourts.gov.in/hcservices/