- (1.) THIS writ petition for quashing the order of the Second respondent (the postmaster, Amritsar) dated September, 15, 1969, whereby the Petitioners was dismissed from service consequent upon his conviction under Section 420/511, and 465/471 of the Indian Penal Code in connection with the submission by him of false medical reimbursement claims, was admitted by the Motion Bench (myself and Suri J.) on July 16, 1970 to a Full Bench in view of the doubt entertained by the Bench about the correctness of the view expressed by a learned Single Judge of this Court (P. D. Sharma J.), in Kehar Singh v. Regional Employment Officer, chandigarh, 1967 Serv LR 527 (also reported in 1967-69 Punj L. R. 331), wherein it has been held that Section 12 of the Probation of Offenders Act, 1958 (hereinafter called the Act) prohibits the removal from service of a Government servant who after conviction has been dealt with under Section 3 or Section 4 of the Act, as conviction of such a Government servant cannot be taken into consideration for removing him from service.
(2.) THE facts which have led to the filing of his petition are neither complicated not disputed. The petitioner who was originally a temporary packer in the Postal department with effect from July 1948 (Annexure R-1) was appointed by respondent No. 2 as temporary Postman vide order dated September 12, 1950 (Annexure-R. 2 ). He took charge of that post on September 15, 1950, vide his charge report Annexure R-3. During the course of his employment as a Postman, he was convicted by a Judgment of the Criminal Court, dated March 20, 1969 (Annexure 'a' to the petition) for the commission of offences referred to in the opening sentence of this judgment on the finding that he had knowingly used a forged cash memo for claiming medical reimbursement and had tried to cheat the government in that manner. Instead of sentencing the petitioner to any term of imprisonment, the Magistrate released him on probation under Section 4 of the Act on his entering into a bond of Rs. 1000/-undertaking to appear and receive the sentence of imprisonment when called upon to do so during the period of six months from the date of the judgment. Subsequent to his conviction, the petitioner was dismissed from service by the order of his appointing authority (who is Respondent No. 2, the Postmaster, Amritsar), dated September 15, 1969 (Annexure 'b' ). The said order reads:-" whereas Shri Om Prakash son of Shri Charanjit Rai, Postman No. 37, amritsar H. O. (under suspension) was convicted on criminal charges under Ss. 120-B, 420/511, 467, 468 and 471/109 Indian Penal Code in the court case No. 153/67 (SPE Ambala F. I. R. No. 44/66) by the Court of Shri S. K. Jain, Special Judicial Magistrate, 1st class Punjab, Patiala on march 20, 1969 in connection with submission of false medical reimbursement claims by him; 1. the undersigned, now, therefore, dismiss Shri Om Prakash son of Shri Charanjit Rai Postman, Amritsar H. O. from government Service with effect from September 16, 1969, forenoon". The validity and legality of the above quoted order has been assailed in this petition filed on July 15, 1970, under Articles 226 and 227 of the Constitution.
(3.) THE argument relating to the order of dismissal being violative of Art. 311 (1) of the Constitution has not even been touched by the counsel at the hearing of the petition for the obvious reason that the Petitioner was appointed as well as dismissed by the same authority, namely, the Postmaster, Amritsar. Mr. Harbans lal, learned counsel for the petitioner, has put in the forefront the argument that section 12 of the Act prohibits the dismissal of the petitioner from service on account of his conduct which has led to his conviction as the petitioner has been dealt with under Section 4. The provisions of Sections 3, 4 and 12 of the Act may be noticed at this stage in order to appreciate the submissions made by the learned counsel for the parties. Those provisions are in following terms:--"3. When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or section 404 or Section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4, release him after due admonition. Explanation:--For the purpose of this section, previous conviction against a person shall include any previous order made against him under this section or Section 4.;