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TMI Blog1975 (9) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court of Rajasthan. It was agreed at the Bar that as the points involved in all the three cases arc the same, they may be disposed of by one common judgment. We, therefore, propose to dispose of all the three cases by one common judgment indicating, however, the facts of each individual case, wherever necessary. As regards Civil Appeal No. 1664 of 1974 the respondent T.R. Challappan was a Railway-Pointsman working at Irimpanam on Olavakkot Division of the Southern Railway. On August 12, 1972 at about 3-30 P.M. he was arrested at the olavakkot railway station platform for disorderly drunken and indecent behavior and a criminal case under s. 51(A) of the Kerala Police Act was registered against him After due investigations the challan was presented before the Sub-Magistrate, Palghat who after finding the respondent guilty instead of sentencing him released him on Probation under s. 3 of the Probation of offenders Act. After the respondent was released the Disciplinary Authority of the Department by its order dated January 3, 1973 removed him from service in view of the misconduct which led to the conviction of the respondent on a criminal charge under s. 51(A) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Art. 226 of the Constitution and the High Court quashed the order by which the respondent was removed from service-hence the appeal by special leave by the Union of India against the judgment of the Rajasthan High Court. A close analysis of the facts of the cases of each of the respondents would doubtless reveal that the points involved in the three cases are almost identical, though the grounds on which the respective High Courts leave proceeded may be slightly different. Mr. S. N. Prasad appearing for the appellants in all the three cases raised three points before us: H (1) That s. 12 of the Probation of offenders Act con templates an automatic disqualification attached to the conviction and not an obliteration of the misconduct of the accused so as to debar the Disciplinary Authority from imposing penalties under the Rules against an employee who has been convicted for misconduct. (2) Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, is in terms similar to proviso (a) to Art. 311(2) of the Constitution and confers power on the appointing authority to pass an order of dismissal against an employee who is found guilty of a criminal offence witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but, though not happily worded it merely indicates the nature of the penalty impossible by the disciplinary authority if the delinquent employee has been found guilty of conduct which has led to his conviction of a criminal charge. Rule 14 of the Rules of 1968 appears in Part IV which expressly contains the procedure for imposing penalties. Further more, r. 14 itself refers to rr. 9 to 13 which contain the entire procedure for holding a departmental inquiry. Rule 6 of Part III gives the details regarding the major and minor penalties. Finally r. 14(1) merely seeks to incorporate the principle contained in proviso (a) to Art. 311(2) of the Constitution which runs: thus (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of o, those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given reasonable opportunity of making representation of the penalty proposed, but only on the basis of the evidence adduced during such inquiry: Provided that this clause shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. This matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by this provision as also by the Departmental Rules is dispensed with. In these circumstances, therefore, we think that r. 14(1) of the Rules of 1968 only incorporates the principles enshrined in proviso (a) to Art. 311(2) of the Constitution. The words 'where any penalty is imposed' in r. 14(1) should actually be read as 'where any penalty is impossible', because so far as the disciplinary authority is concerned it cannot impose a sentence. it could only impose a penalty on the basis of conviction and sentence passed against the delinquent employee by a competent court. Furthermore the rule empowering the disciplinary authority to consider circumstances of the case and make such orders as it deems fit clearly indicates that it is open to the disciplinary authority to impose any penalty as it likes. In this sense, therefore, the word 'penalty' used in r. 14(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing 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. Similarly the relevant part of s. 4(1) of the Act runs thus: notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the mean, time to keep the peace and be of good behaviour. Sections 9(3) (4) of the Act read as under: 9. (3) If the Court, after hearing the case is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith- (a) sentence him for the original offence; or (b) where the failure is for the first time, then, without prejudice` to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees. (4)If a penalty imposed under clause (b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulting from a conviction; and (ii) that such disqualification must be provided by some law other than the Probation of offenders Act. The Penal Code does not contain any such disqualification. Therefore, it cannot be said that s. 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused. it is also manifest that disqualification is essentially different in its connotation from the word 'misconduct'. Disqualification cannot be an automatic consequence of misconduct unless the statute so requires. Proof of misconduct may or may not lead to disqualification, because this matter rests on the facts and circumstances of a particular case or the language in which the particular statute is covered. In the instant case neither Art. 311(2) proviso (a) nor r. 14(1) of the Rules of 1968 contain any express provision that the moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311 (2) proviso (a) is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show cause notice. Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed: What Section 12 removes is a disqualification attaching to a conviction. In my opinion neither liability to be departmentally punished for misconduct is a disqualification, nor it attaches to the conviction. Disqualification its ordinary dictionary meaning connotes something that disqualifies or incapacitates. To disqualify a person for a particular purpose means to deprive that person of the qualities or conditions necessary to make him fit for that purpose. It was further observed by the High Court: The other reason why Section 12 of the Act does not help the petitioner is that the departmental proceedings are not attached to the conviction of the offence. Departmental proceedings are not taken because the man has been convicted. The proceedings are directed against the original misconduct of the Government servant. No part of Section 12 is intended to exonerate a Government servant of his liability to departmental punishment for misconduct. This provision does not afford immunity against disciplinary proceedings for the original misconduct. What forms basis of the punishment is the misconduct and not the conviction. A Full Bench of the Delhi High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t suffer disqualification, if any, attaching to a conviction of an offence under such law'. The words can only be read so as to remove the disqualification which under some law may attach to a person on account of his conviction. For instance, if a person is convicted of an offence, he is disqualified from standing for election to the Central or State Legislatures. But if such a person is given benefit under the Probation of offenders Act then by virtue of Section 12 of that Act the disqualification for that purpose (standing for election) will stand removed. A Division Bench of the Delhi High Court in Iqbal Singh v. Inspector General of Police, Delhi Ors. A.1. R.1970 M.P.-240(1971) 2 S.L.R 257 took a contrary view but that decision has been overruled by a later decision of the Full Bench of the same High Court in Director of Postal Services v. Daya Nand (Supra) to which we have already referred to. Even the Rajasthan High Court in its judgment concerning Civil Appeal No. 891 of 1975 has endorsed the view taken by the Madras High Court and followed by the other High Courts. We find ourselves in complete agreement with the view taken by the Madras High Court as referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 which incorporates the principle contained in Art. 311(2) proviso (a). This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T. R. Challappan in Civil Appeal No. 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where to major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee who has been convicted of a criminal charge by force of proviso (a) to Art 311(2) of the Constitution. In other words, the argument was that to cases where proviso (a) to Art. 311(2) applies a departmental inquiry is completely dispensed with and the disciplinary authority can on the doctrine' of pleasure terminate the services of the delinquent employee. We however refrain from expressing any opinion on this aspect of the matter because the cases of all the three` respondents before us are cases which clearly fall within r. 14 of the Rules of 1968 where they have been removed from service without complying with the last part of r. 14 of the Rules of 1968 as indicated above. In none of the cases has the disciplinary authority either considered the circumstances or heard the delinquent employees on the limited point as to the nature and extent of the penalty to be imposed if at all. On the other hand in all these cases the disciplinary authority has proceeded to pass the order of removal from service straightaway on the basis of the conviction of the delinquent employees by the criminal courts. For the reasons given above the High Courts of Kerala and Rajasthan were, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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