BERI, C. J. - (1.) THE six petitioners before us are Railway servants who were removed/dismissed from service because each one of them was convicted for an offence by a criminal court. THEy complain that notwithstanding the fact that they were given the benefit of the provisions of the Probation of Offenders Act (hereinafter called "the Probation Act") they have been removed or dismissed. THEy have challenged their order of removal/dismissal on the grounds that it was contrary to the provisions of sec. 12 of the Probation Act or at any rate inconsistent with the objects of that statute and that it is violative of the principles of natural justice as they were never heard before removal or dismissal. THE learned Single Judge, before whom these petitions were presented, found it necessary to refer these cases to a Division Bench because Tyagi,j. in S. B. Civil Writ petitions Nos. 481, 482, 516, 517 and 600 of 1966 by his judgment dated December 19, 1969, had held that even in a case covered by clause (c) of the proviso to Art. 311 (2) of the Constitution of India the principles of natural justice had to be complied with. Learned Single Judge who has referred these cases to us felt that in view of the Full Bench decisions of the Delhi and the Punjab and Haryana High Courts, to which we shall presently refer, the view taken by Tyagi J. requires reconsideration.
(2.) TO eliminate repetition we first propose to deal with general arguments which have been urged in all the cases. Mr. Dave, learned counsel for one of the petitioners, urged that sec. 12 of the Probation Act has removed all disqualifications attaching to a conviction; that it is a mile-stone in the evolution of penalogy intended to reform and rehabilitate an offender and if a conviction was treated a disqualification for holding a civil post it would be contrary to the very objects of the Probation Act. Once a criminal court had considered the circumstances of the case including the nature of the offence and the character of the offender and extended the benefit of the Probation Act the departmental authority, urged the counsel, should respectfully agree rather than throwing the offender out of employment. Mr. L. R. Bhansali, learned counsel for the Railway, urged that there was nothing in the Railway Establishment Code which said that a person who had been convicted was disqualified from holding a civil post in the Railway. The removal of disqualification under sec. 12 of the Probation Act relates to a disqualification, if any, attaching to a conviction for an offence under such law and, therefore, it was competent for the punishing authority to consider whether a person who has been given the benefit under the Probation Act should or should not be retained in the Railway service. He placed reliance on the decided cases and particularly on Omprakash vs. Director Postal Services (l) and Director of Postal Services vs. Dayanand (2 ). Let us now examine some of the decided cases on this subject by various High Courts. The Madras Probation of Offenders Act, 1936 has sec. 12-A which is substantially the same as sec. 12 of the Probation Act. R. Kumaraswami Aiyar vs. The Commissioner, Municipal Council, Tiruvannamalai (3) was a case of an Upper Division Clerk in a Municipal Office at Tiruvannamalai. He was charged for the offence of cheating and was convicted but instead of being sentenced in view of his youth he was given the benefit of sec. 4 (1) of the Madras Probation of Offenders Act. The Municipal Commissioner issued a memo to the petitioner directing him to show cause why his service should not be terminated. The petitioner submitted an explanation and pleaded sec. 12-A of the Probation of Offenders Act as a bar to disciplinary action. The petitioner moved the High Court of Madras for a writ of prohibition and Raja-gopala Ayyangar, J. observed, - "in my view sec. 12-A is incapable of the construction sought to be put upon it on behalf of the petitioner. What the section says is 'shall not suffer any disqualification attaching to a conviction' and there is a vital distinction between a disqualification attaching to a conviction and the taking of proceedings consequent upon such a conviction. What sec. 12-A has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the accused. In my judgment the possibility of disciplinary proceedings being taken against a person found guilty is not a disqualification attaching to the conviction within the meaning of sec. 12-A of the Probation of Offenders Act. " In Babaru vs. Chairman, Madras Port Trust (4) Babaru was a fitter employed in the Madras Port Trust. He was convicted under sec. 420 I. P. C. (cheating ). He was released under sec. 4 (1) of the Madras Probation of Offenders Act. He was dismissed on account of the conduct which led to his conviction. He presented a petition under Art. 226 of the Constitution of India and Veeraswami J , as he then was, observed that the true object of sec. 12 A of the Act was that a person released on probation shall be free from any disqualification attaching to conviction for the offence concerned. But this did not mean that a probation order is a bar to an order of dismissal from service. The dismissal was not one attaching to a conviction and it did not automatically flow from it. It was only a consequence which was attached to or flowed from a conviction that was within the ambit of sec. 12 A and not any result which may be based upon a conviction. The reasoning in Kumaraswami's case (3) was adopted. The view taken by Veeraswami, J. was confirmed by a Division Bench in an appeal under clause 15 of the Letters Patent. It is reported in P. Kabaru vs. The Chairman Madras Port Trust (5 ). The view taken in the aforesaid cases was adopted by a Division Bench of the Andhra Pradesh High Court in Akella Satyanarayama Murthy vs. Zonal Manager, Life Insurance Corporation of India (6), where the petitioner, Development Officer in the Life Insurance Corporation of India, was found guilty under sec. 409 of the Indian Penal Code (criminal breach of trust) but was released on probation of good conduct. He was dismissed and he challenged the order by a writ petition and the learned Judges of the Andhra Pradesh High Court adopting the reasoning in Kumaraswami's case (3) and Babaru's case (4) held that the disciplinary authority was not precluded from proceeding against an employee although he may be dealt with under sec. 12 of the Probation Act. In Premkumar vs. Union of India (7) the Madhya Pradesh High Court adopted the reasoning contained in the Andhra Pradesh High Court's judgment in Satyanayana's case (6 ).
(3.) IN Iqbal Singh vs. INspector General of Police (8), a Division Bench of the High Court of Delhi considered the effect of the Probation Act qua a police servant. The petitioner in this case was a Head Constable, who was convicted for offence under sec. 333/337 of the INdian Penal Code (grievous hurt to deter public servant from his duty), but was given the benefit of sec. 4 of the Probation Act. He was dismissed and the order was challenged by him on the ground that sec. 12 gave him the immunity from such dismissal. The learned Judges considering the provisions of sec. 12 and particularly the word "disqualification" after extracting the dictionary meaning of the word observed as follows: "the word 'disqualify' is also stated to mean making some one unfit for something. The further meaning given is that the person may be deprived within the meaning of the word 'disqualify' of any right or privilege. We are of the view, that the words 'disqualification, if any, attaching to conviction of an offence' as used in sec. 12 of the Act would include a person's losing his right or qualification to remain or to be retained in service. Sec. 12 of the Act clearly saves the convict from suffering, such disqualification attaching to his conviction. IN respect of his conviction, the petitioner had the protection of sec. 12 and he was saved from suffering any disqualification such as the one which resulted in his dismissal. The Full Bench of the Delhi High Court again considered the effect of S. 12 of the Probation Act in regard to the dismissal of a Government servant. This is Director of Postal Services vs. Dayanand (2 ). The petitioner in this case was charged for an offence under sec. 52 of the Indian Post Office Act, 1898 and was convicted but was given the benefit of sec. 4 of the Probation Act. He was dismissed. He claimed that of sec. 12 was a bar against his dismissal and it appears that the case of Iqbal Singh (8) was cited to support his case. The learned Judges in this case considered the meaning of the word "disqualification" in para 26 of the judgment and observed that the object of S. 12 was to remove a disqualification attached to a conviction. It did not go beyond it. The learned judges also observed that sec. 12 could not in the very nature of things modify the proviso (a) to Art. 311 (2) of the Constitution of India. In effect, it appears that the view taken in Iqbalsingh's case (8) was not accepted though the judgment does not appear to say so in so many words. In the Divisional Personal Officer, Northern Railway, New Delhi vs. Shri Pritam Singh (9) Suri, J. of the Punjab and Haryana High Court considered the case of a Railway Trains Clerk who was convicted under sec. 324 and 506 of the Indian Penal Code and sec. 120 of the Indian Railways Act. He was eventually convicted by the Magistrate under sec. 324 of the Indian Penal Code (causing hurt by sharp weapon ). The Government servant was reinstated but he was allowed only to draw subsistence allowance during the period of suspension. He claimed full payment under the Payment of Wages Act. The Authority under the Act allowed him his claim. The Railway Divisional Personnel Officer, who was the Paymaster in this case, agitated the matter before the High Court and in these circumstances the learned Judge observed that the employee was not to suffer any disqualification which was otherwise attached to the conviction for the offence. In this case it may be emphasised what the learned Judge considered was the effect of rule 2044 of the Railway Establishment Code for the payment of subsistence allowance. The learned Judge also, it appears, followed the decision in Iqbal Singh's case (8 ). ;