Shishir Kumar, J. - (1.) By means of the present writ petition under Article 226 of the Constitution of India the petitioner has approached this Court for quashing the order of suspension dated 12.10.1983 (Annexure-2 to the writ petition) and a writ of mandamus directing the respondents to continue on the post of Warder and to pay the salary with arrears from the date of suspension with 12% interest and to hold that no moral turpitude attached with Section 323 I.P.C.
(2.) The fact arising out of the present writ petition is that petitioner was appointed as Warder in the year 1981. In 1982, the petitioner was transferred to Bijnor Jail on the same post. An incident had taken place in the night of 11/12.10.1983 in the jail premises and an F.I.R. was lodged on 12.10.1983 at 8.15 a.m. in the morning. The respondent No. 1 has passed an order of suspension against the petitioner. An investigation was done by the Investigating Officer and the petitioner surrender before the Court and a trial took place and the petitioner was convicted. The appeal filed by the petitioner being Criminal Appeal No. 21 of 1990 was decided and the appeal of the petitioner was dismissed and the conviction of the learned trial Court under Section 307 I.P.C. has been converted into conviction under Section 323 I.P.C. only. The operative portion of the order passed by the IIIrd Additional District Judge, Bijnor is being quoted below: "For the discussion held above, this appeal is hereby dismissed on the aspect of facts. But the finding of conviction recorded by the trial Court Under Section 307 of the Indian Penal Code is hereby altered to a finding of conviction Under Section 323 of the Indian penal Code. Instead of sentencing them at one to any punishment, I direct that each of the two appellants be released on his entering into a personal bond of Rs. 2000 - with the bond of one surely in the like amount to appear and received sentence when called upon during the period of next two years and in the meantime to keep the peace and be of good behavior. Each of the two is further directed to furnish the said bonds before the trial Court within a period of seven days failing which he shall be liable to undergo rigorous imprisonment for one year only Under Section 323 for the Indian penal Code the trial Court shall enforce it after waiting the arrival of desired bonds for seven days from today."
(3.) Petitioner submits that in spite of the aforesaid judgment, the order of suspension has not been revoked and the petitioner is entitled to get the benefit of Section 12 of the Probation of Offenders Act. The same is being quoted below" 12. Removal of disqualification attaching to conviction-Notwithstanding anything contained in any other law, a person found guilty of an offence 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.";