Laldhar Pandey vs State of Bihar and Others

Mridula Mishra, J.—Heard learned Counsel for the Petitioner and the State.

Petitioner''s prayer is for quashing the dismissal order, dated 20.05.1996, passed by the Inspector General of Police, Tirhut Range, Muzaffarpur, while disposing of appeal, preferred by the Petitioner against the punishment, awarded in a Disciplinary Proceeding. The impugned order has been challenged by the Petitioner on the ground that without observing the direction of the High Court, dated 12.01.1996, in C.W.J.C. No. 7425 of 1989, the Respondent, Appellate Authority, has affirmed the dismissal order. Further prayer of the Petitioner is for a direction to Respondents to treat him in service, giving all consequential benefits in accordance with law.

Petitioner was posted at Chapra as Constable in the year 1978, when in course of investigation of Bhagwan Bazar P. S. Case No. 19 (11) of 1978, he was made an accused for the offence punishable u/s 395 and 364(A) of the Indian Penal Code. F.I.R. was against unknown, in course of investigation, Petitioner was arrested on suspicion. He was put on Test Identification Parade and identified by the informant. On the basis of his confessional statement, looted money was also recovered. The Trial Court convicted the Petitioner in Sessions Trial No. 7 of 1979 u/s 395 of the Indian Penal Code. However, Criminal Appeal No. 650 of 1981, preferred by the Petitioner was heard along with Criminal Appeal No. 589 of 1981, preferred by another co-accused. The conviction and sentence of other Appellants were maintained, but in case of the Petitioner, though conviction was affirmed but so far sentence is concerned, he was awarded benefit of Section 4 of the Probation of Offenders Act (hereinafter referred to as "Act" for short), so that he may continue his job and may not lose his service. The benefit of Section 4 of the Act was granted to the Petitioner, considering that he was in Government Service at the relevant time.

A Departmental Proceeding had also been initiated against the Petitioner, appointing Shri L. P. Tondon, Dy. S.P., No. -I, as Conducting Officer. Petitioner has alleged that the Conducting Officer hurriedly proceeded and concluded an ex-party enquiry, recommending for dismissal from service. The enquiry report had been submitted without any hearing, contrary to the provisions of Police Manual. The S.P., Saran passed an order of dismissal from service by order dated 31.12.1989, on the basis of ex-party enquiry report. Even the dismissal order was not served. Petitioner came to know about the dismissal order from indirect sources and preferred an appeal, which was dismissed. The dismissal order was challenged by the Petitioner in C.W.J.C. No. 7425 of 1989, which was disposed of directing the Petitioner to file a fresh appeal before the Inspector General of Police, Tirhut Division, Muzaffarpur. The Inspector General of Police was directed to consider the prayer of the Petitioner afresh by speaking order, after taking into consideration the observations made in Criminal Appeal No. 589/1981 and 650/1981, as well as other relevant circumstances, leading to termination of the service of the Petitioner. The Petitioner was given liberty to file a comprehensive appeal with relevant documents, including the judgment passed in the Criminal Appeal. Inspector General of Police was directed to dispose of the appeal after hearing the representatives of the Petitioner as early as possible, preferably within three months. This order was passed, considering the fact that during the Departmental Enquiry, the Petitioner was undergoing treatment for Cancer at Chitranjan Cancer Hospital in between 30.09.1979 till July, 1981 and prior to that in between 26.11.1978 to 22.09.1979, he was in custody. Petitioner, as such, did not receive any notice and the ex-party enquiry report was submitted, recommending dismissal from service. As per the direction in the Writ Application, fresh Memo of Appeal was filed by the Petitioner, which was considered by the Appellate Authority, and by impugned order, appeal was rejected, affirming the order of dismissal from service, passed in the disciplinary proceeding. Issue raised for consideration in this application is, whether on account of release on probation u/s 4 of the Act in Criminal Appeal No. 650 of 1981, Petitioner could have been removed from his service, considering his conviction. In other words, what will be the effect of Section 12 of the Act, which relates to removal of disqualification, in case a Government Servant convicted for offence, punishable under Penal Code is released on probation u/s 4 of the Probation of Offenders Act.

The Probation of Offenders Act is a social legislation, which was enacted with an object to reform juvenile offenders and the first offender. However, the scope of Section 4 of the Act is much wider and it applies to any person, found guilty of having committed an offence for the first time, not punishable with death or imprisonment for life. While Section 12 of the Act states that person found guilty of such offences and dealt with u/s 3 or 4 of the Act, shall not suffer disqualification, attached to the conviction of an offence under any law. The disqualification attached to the conviction relates to the seriousness of the offence and the post, held by the Government Servant in criminal trial. Direction of the Court is supreme, while allowing benefit of Section 4 of the Act. On account of this benefit the sentence awarded on account of conviction is modified and by executing a bond, accused is allowed liberty and not sent to jail. However, the conviction is one thing and sentence is another. The Departmental enquiry and punishment awarded for misconduct is yet another aspect. While provision of Section 3 or 4 of the Act is invoked by the Court. It does not deal with the conviction. It only deals with the sentence, which the offender has to undergo. The Court in stead of sentencing the offender can release him on probation of good conduct or on consideration of any other connected material. However, the conviction part remains untouched and the stigma of conviction is not removed. In this circumstance, in the Departmental Proceeding, conducted, independently, of the criminal case, a delinquent can be dismissed or removed or reduced in rank on the ground of his conduct, which has led to his conviction on a criminal charge. Section 12 of the Act does not preclude the Department from taking action for misconduct, leading to the offence or to his conviction thereto, as per law. Section 12 does not exonerate the person from Departmental punishment.

In the present case, Petitioner was a Constable. He was dismissed from service on the ground of his involvement in an offence relating to Dacoity and kidnapping. Simply because subsequently, he was released u/s 4 of the Act, in a criminal appeal, Petitioner can not claim entitlement to be reinstated in service. Section 12 only directs that the offender shall not suffer disqualification, attached to conviction of offence, in the context is other law, provides for disqualification on account of conviction. If on account of conviction, any law provides for disqualification of person for being appointed in any office or for seeking election to any authority or body, that disqualification, by virtue of Section 12 stands removed. But that is not same, when the person has been dismissed from service in view of his conviction. Under Article 311(2)(a) of the Constitution of India, such employees earn disqualification and can not be allowed to remain in service. Similar view has been propounded in a decision reported in AIR 1998 SCC 788 Harish Chandra v. Director or School Education.

Counsel for the Petitioner has placed reliance on a decision reported in Bhagwati Prasad Dubey Vs. Food Corporation of India and Another, as well as Rajbir Vs. State of Haryana, In these two cases, the Petitioner was a Government employee, admitted to the benefits of Probation u/s 3 of the Probation of Offenders Act, taking into consideration the nature of offence and the character of the Appellant, but conviction was maintained and only the convict was released on probation of good conduct u/s 4 of the Act. In case of Rajbir v. State of Harayana, the nature of offence was quite distinct to the nature of offence in the present case. In case of Rajbir v. State of Harayana, the offence was u/s 323 of the Indian Penal Code and the occurrence had taken place in relation to some family dispute. So far the present case is concerned, Petitioner was convicted for his involvement in Dacoity and kidnapping. Being a member of Police Force, the relief, which was allowed to Rajbir, can not be allowed to the Petitioner. His case can not be equated with the Rajbir''s case. In the present case, so far conviction of the Petitioner is concerned, that was affirmed by the High Court. He was only granted benefit of Section 4 of the provision of Probation of Offenders Act, so that he may not have to go again to jail.

Counsel appearing for the State, on the other hand, has submitted that the Petitioner being a police personnel, was dismissed from service on the ground that he participated in Dacoity and kidnapping. A Police Personnel, being an employee of disciplined service, is expected to maintain highest standard of conduct and honesty. The Police Personnel are restrained, indulging in any such act, which can be termed as unbecoming of a person being member of Police Force. The involvement of a Constable in an offence like Dacoity and kidnapping is a serious matter, a matter of morale turpitude.

The Appellate Authority, as such, was justified in holding that the seriousness of charges proved against him called for a suitable punishment inasmuch as dismissal from service. So far Disciplinary Proceeding is concerned, all procedures were followed and after giving proper opportunity to the Petitioner, impugned order was passed.

In the facts and circumstances, I do not find any infirmity or illegality in the impugned order, awarding punishment of dismissal to the Petitioner. So far Petitioner''s claim regarding reinstatement in service on account of benefit awarded to him u/s 3 and 4 of the Probation of Offenders Act, is not sustainable. The benefit of Section 3 and 4 is only with regard to sentence without having any effect on conviction. If conviction is there, a Government employee can not claim for reinstatement in view of disqualification earned under Article 311 of the Constitution.

I do not find any merit in this application. Accordingly, it is dismissed.