Union of India vs Hawaldar Ved Prakash Sangwan

J.M. Malik, J.—The respondent Ved Prakash Sangwan was working as Havaldar in the Indian Army and was dismissed vide order dated 16.5.1994. He was denied pensionary benefits vide order dated 18.10.1996. Aggrieved by this situation he filed writ petition No. 556/1997 before this Court. The learned Single Judge vide order dated 4.5.2000 allowed the writ and directed the appellants to grant pensionary benefits to the respondent till 30.6.2000. In this Letters Patent Appeal (LPA) the appellants have called into question the order passed by the learned Single Judge. The facts germane to the present appeal are these. During leave the respondent had to face a criminal case. The accused was convicted for offences u/s 302 read with Section 149 of Indian Penal Code. All the accused were convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- each u/s 302 read with Section 149 IPC. They were further sentenced to undergo RI(rigorous imprisonment) for three months u/s 323 read with Section 149 IPC. On the basis of this conviction the petitioner was dismissed from service by the competent authority vide order dated 30.7.1991 in accordance with Rule 17 of Army Rules 1954 read with Section 20(3) of Army Act, 1950. He also received a similar order dated 18.8.1991. During the appeal, High Court reduced the sentences of all the accused. Barring the main accused, the remaining accused including the respondent were convicted u/s 323 of IPC. The sentence already undergone by the respondent was considered to be sufficient and he was released on the sentence already undergone by him. The Apex Court vide order dated 14.11.1994 gave the benefit of probation to the respondent u/s 360 Cr.PC but maintained the conviction of the respondent u/s 323 IPC. On 16.5.1994 a discharge certificate was issued by the Record Officer, OIC Records. On 2.6.1994 the Brigadier Commander informed the father of the respondent that respondent is not entitled to pension or other pensionary benefits in view of the circumstances detailed above. On 7.8.1994 the respondent made a representation to the Ministry of Defence. On 23.8.1994 the respondent made another representation to the OIC Records, Raj RIF Records Officer, Delhi Cantt., requesting that an order of dismissal may kindly be substituted by an order of discharge and an order of discharge may be passed so that he may draw pension and other benefits. His representation/appeal was rejected on 18.10.1996. Consequently the respondent filed the writ petition No. 556/1997 before this court on 8.1.1997 with the prayers that order of his dismissal dated 16.5.1994 be set aside, respondent be reinstated into service with all consequential benefits or in the alternative he should be paid pensionary benefits with interest on arrears of pension.

We have heard the counsel for the parties. The learned counsel for the respondent while defending the judgment of the Single Judge made few submissions. The main plank of his arguments was that the Hon''ble Supreme Court had given the benefit of probation in favour of the respondent and as such he is not to suffer from any disqualification, if any, attaching to a conviction of an offence under such law by virtue of Section 12 of Probation of Offenders Act, 1958 and would not affect his service or pension or his pensionary benefits. The respondent had a good record throughout during his service. His father also served the nation and had a good record. The respondent was convicted u/s 323 IPC simplicitor. This is a technical kind of offence. The respondent at this stage, does not want to rejoin the service. His only grievance is that he should be granted pensionary benefits. He also highlighted the fact that the order dated 30.7.1991 passed by Brigade Commander 170 Infantry Brigade dismissing the respondent with retrospective effect from 16.7.2000, is based on the judgment passed by the Additional Sessions Judge. The appellants did not try to wait for the decision to be given by the High Court and the Apex Court. It was alleged that the above said dismissal order was passed without the application of mind. It was, however, explained that order of dismissal was passed u/s 20(3) of the Army Act but without serving the mandatory notice under Rule 17 on 16.5.1994 as well. In order to embolden his case he has cited few authorities. In Shankar Dass Vs. Union of India (UOI) and Another, , it was held:

The order of dismissal from service consequent upon a conviction is not a "disqualification" within the meaning of Section 12. The word disqualification, is used in Section 12 in the sense in which certain statutes provide that persons who are convicted for certain offences shall incur certain disqualifications (e.g. Chapters III and IV of the Representation of the People Act, 1951).

In another case reported in Rajbir Vs. State of Haryana, it was held:

From the judgment of the High Court it appears that though the sentence imposed for the offence u/s. 323 of the Code was six months, the appellant and the co-accused had already suffered over one year''s imprisonment. Ordinarily, in a situation as here, there would be no need to interfere. Learned counsel for the appellant has, however, pressed the appeal as the appellant is in Government service and if the conviction and sentence are maintained, he would lose his service. Both the parties to the assault were close relations. There is no material on the record to indicate that the appellant had any previous conviction. In the absence of such evidence, we treat the appellant as a first offender. He is entitled to be admitted to the benefits of probation u/s 3 of the Probation of Offenders Act, 1958, taking into consideration the circumstances of the case, the nature of the offence and the character of the appellant. While maintaining his conviction we direct that he shall be released on probation of good conduct u/s 4 of the Act. The Chief Judicial Magistrate, Bhiwani, before whom the appellant is directed to appear within four weeks from today shall release him after due admonition. We do not consider it necessary to direct him to enter into a bond in the facts of the case.

We are of the view that in the peculiar facts of the case, the conviction should not affect his service.

(Emphasis added)

We are of the considered view that these authorities are not applicable to the facts of the present case. In Rajbir Vs. State of Haryana (supra) the Hon''ble Supreme Court directed that the conviction of the accused would not affect his service. These directions were given under Article 142 of the Constitution of India. This power vests only with the Hon''ble Supreme Court. It must be borne in mind that the above said authority does not lay down any principle. The above said particular order was passed due to peculiar facts of that case. Consequently, each case has to be decided on its own facts and merits. The authorities to be cited below make it crystal clear that benefit of probation merely protects the accused from other laws providing for disqualification on account of conviction and not from departmental punishment.

In Union of India and others Vs. Bakshi Ram, was pleased to hold:

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. On this aspect, the High Courts speaks with one voice. The Madras High Court in R. Kumaraswami Aiyar Vs. The Commissioner, Municipal Council and Another, and P. Embaru Vs. The Chairman, Madras Port Trust, ) the Andhra Pradesh High Court in A. Satyanarayana Murthy v. Zonal Manager, LIC, AIR 1959 AP 371, the Madhya Pradesh High Court in Prem Kumar Vs. Union of India (UOI) and Others, , the Punjab and Haryana High Court in Om Parkash v. Director Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala, (1991) 1 SLR 648 (P&H), the Delhi High Court in Director of Postal Services Vs. Daya Nand, have expressed the same view. This view of the High Courts in the aforesaid cases has been approved by this Court in The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others,

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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 view has no support by the terms of Section 12 and the order of the High Court cannot, therefore, be sustained.

In another authority reported in Additional D.I.G. of Police, Hyderabad v. P.R.K. Mohan, (1997) 11 SCC 571 it was held:

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 u/s 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 (supra)]. Therefore, the observation of the appellate court on the interpretation of Section 12 is not correct.

Our own High Court in case reference Ex Sub-Inspector, Man Singh Vs. Union of India and another, WP(C) No. 377/1993 decided on 19.10.2006 while relying upon the observations made by the Apex Court was pleased to hold:

Under the Army Rule 16(1) (a) r/w Army Act Section 71(r) which is para materia to Section 48(g) of the present Act, the Supreme Court rejected such a contention in the case of Union of India and Ors. vs Subedar Ram Narain being Civil Appeal No. 3609/96 decided on 15.9.98 where the Court held as under:-

For a person to be eligible to the grant of pension or gratuity it is imperative that he should not have been dismissed from service. The dismissal under the provisions of the Army Act is, therefore, a disqualification for getting pension or gratuity.

It was also submitted by Sh. Malhotra that Regulation 113(a) was discriminatory and, further, pension which is earned becomes the property of the person concerned and the same cannot be taken away. But no such contention was raised before the High Court. In any case we see no merit in the said contention. Firstly junior commissioned officers and commissioned officers belong to different classes. They are not similarly situated. Moreover pension is granted by the rules and regulations which can and do provide for the circumstances which would make a person ineligible to receive the same. Dismissal makes a junior commissioned officer dis-entitled to receive pension or gratuity. Regulation 113(a) is not in any way invalid. For the aforesaid reasons we come to the conclusion that unlike Regulation 16(a) which applies to the commissioned officers, in the case of noncommissioned officers other ranks and noncombatants (enrolled) the dismissal of such a person under the Army Act would ipso facto render him ineligible for pension or gratuity. The President, however, has a right in the case of a person dismissed under the provisions of the Army Act but in exceptional circumstances and at his discretion to grant service pension at a rate not exceeding that for which the individual concerned would have otherwise qualified had he been discharged on the same day.

There can be no conflictions on the point that the Apex Court in its order dated 11.4.1994 maintained the sentence of the accused/respondent. The conviction of the accused stands. For our benefit the above said order is reproduced as follows:

The appellant has been convicted for the offence u/s 323 IPC and has been sentenced for the period of imprisonment already undergone. The learned counsel for the appellant has pointed out that the appellant was employed as Havaldar in the Army and had served in the Army for more than 15 years and as a result of the sentence of imprisonment which has been imposed on his he has lost his job. The learned counsel submits that if instead of being sentenced to imprisonment the benefit of the provisions of Section 360 Cr.PC is granted to the Appellant he would be able to approach the authorities for consideration of his case.

We have considered the facts and circumstances of the case and having regard to the nature of the offence for which the appellant has been convicted we consider it a fit case in which the benefit of Section 360 Cr.PC should have been given to the appellant. The appeal is, therefore, allowed. The conviction of the appellant u/s 323 IPC is maintained but the sentence of imprisonment will stand substituted by an order for release on probation u/s 360 Cr.PC on his furnishing a personal bond with one surety to the satisfaction of the Additional Sessions Judge, Bhiwani to keep the peace and be of good behavior for a period of one year.

This must be borne in mind that the Hon''ble Supreme Court did not itself make any comments "for the consideration of his case" and left it open for the department to decide his departmental case. It appears that the Hon''ble Supreme Court did not think it proper to utilize its power under Article 142 of Constitution of India in favour of the respondent. The learned Single Judge vide its order dated 4.5.2000 had set aside the order dated 18.10.1996 denying the pensionary benefits to the respondent. The learned Single Judge had further directed that the appellants would grant pensionary benefits to the respondent in view of his past service and orders to that effect would be issued by the appellants on or before the 30.6.2000. The above said discussion takes the edge off the criticism of appellants, impugned order. The judgment given by the learned Single Judge is not legally sustainable. We accept the appeal herein and reverse the order passed by the learned Single Judge. The respondent has received pension by virtue of the order passed by the learned Single Judge. Whatever the money the respondent has received till now shall not be recovered. However, from now onwards no pension or other pensionary benefits be paid to the respondent. There shall no orders as to costs.