Shanker Dass Vs. Union of India &
ANR [1985] INSC 53 (12 March 1985)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) DESAI, D.A.
SEN, AMARENDRA NATH (J)
CITATION: 1985 AIR 772 1985 SCR (3) 163 1985
SCC (2) 358 1985 SCALE (1)391
CITATOR INFO: R 1985 SC1416 (127) RF 1989
SC1185 (29)
ACT:
Constitution of India 1950, Article 311 (2)
and Probation of Offenders Act 1958, Sections 3,4 and 12- Employee-Prosecuted
and convicted for breach of trust- Released under the Probation of Offenders
Act-Dismissed from service summarily consequent upon conviction-Dismissal order
whether permissible and valid-Right to impose penalty carries with it a duty to
act justly.
Words & Phrase:
'disqualification'- Meaning of sectioa 12 Probation
of Offenders Act, 1958 .
HEADNOTE:
The appellant was employed as a Cash Clerk in
a Department under the administrative control of the Government of India. He
was prosecuted for breach of trust in respect of a sum of Rs. 500. He repaid
the amount and pleaded guilty to the charge. The Magistrate accepting the plea
convicted the appellant under i section 409 of the Indian Penal Code, but
having regard to the peculiar circumstances relating to the crime and the
adverse circumstances in which the appellant was placed, when he committed the
offence, viz. his son died during the period, his wife fell down from an upper
storey and was seriously injured, his daughter fell ill and that illness lasted
for about eight months; released him under section 4 of the Probation of
Offenders Act, 1958 As a result of this conviction, the appellant was dismissed
from service sum- marily, The appellant filled a suit for setting aside his
dismissal from service, contending that since he was released under the Probation
of Offenders Act 1958, it was not permissible for the authorities to impose the
penalty of dismissal from service. The suit was dismissed on the ground that
since the appellant was convicted of a criminal charge he was liable to be
dismissed under clause (a) of the second proviso to Article 311(2) of the
Constitution.
The appellant's first appeal was dismissed,
but the second appeal to the High Court was allowed by a Single Judge OD the
ground that by virtue of the provision contained in section 12 of the Probation
of Offenders Act 1958, the 164 appellant could not be dismissed from service
without affording him a reasonable opportunity of being heard, as required by
Article 311 (2) of the Constitution. The Letters Patent Appeal I of the
Government of India against the judgment was allowed by a Division Bench.
Allowing the appellant's appeal to this
Court, ^
HELD: 1. The judgment of the Division Bench
of the High Court in the Letters Patent is set aside, and the appellant shall
be reinstated in service forthwith, with full back wages from the date of
dismissal until reinstatement. 1168El
2. Section 12 of the Probation of Offenders
Act, 1958 provides that notwithstanding anything contained in any other law, a
person found guilty of an offence and dealt with under the provisions of
section 3 or 4 thereof, "shall not suffer disqualification ' attaching to
a conviction for an offence under such law. The order of dismissal from service
consequent upon a conviction is not a "disqualification" within the
meaning of section 12. There are statutes which provide that persons who are
convicted for certain offences shall incur certain disqualifications.
For example, Chapter Ill of the
Representation of the People Act, 1951, entitled "Disqualifications for membership
of Parliament and State Legislatures" and Chapter IV entitled
"Disqualifications for Voting'' contain provisions which disqualify
persons convicted of certain charges from being members of legislatures or from
being members of legislatures or from voting at elections legislatures. That is
the sense in which the word disqualification-' is used in section 12 of the Probation
of Offenders Act, 1958. [166F-H] In the instant case, it is therefore not
possible to accept the reasoning of the Single Judge in the Second Appeal.
3. Clause (a) of the second proviso to
Article 31 l (2) of the Constitution confers on the Government the power to
dismiss a person from service "on the ground of conduct which has led to
his conviction on a criminal charge". But, that power, like every other
power has to be exercised fairly, justly and reasonably. The Constitution dose
not contemplate that a Government servant who is convicted for parking his scooter
in a no-parking area should be dismissed from service. He may, perhaps not be
entitle(l to be heard on the question of penalty since clause(a) of the second
proviso to Article 311(2) makes the provisions of that.
Article inapplicable when a penalty is to be
imposed on a Government servant on the ground of conduct which has led to his
conviction on a criminal charge. But the right to impose a penalty carries with
it the duty to act justly. [168B-C] In the instant case, the Government chose
to dismiss the appellant in a huff without applying its mind to the penalty
which could appropriately be imposed upon him in so far as his service career
was concerned. Considering the facts of the case, there can be no two opinions
that the penalty of dismissal from service imposed upon the appellant is
whimsical. [167H; 168D] 165
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. . 480 of1973 A On appeal by Certificate from the Judgment and Decree dated
10.10.1972 of the High Court of Delhi in Letters Patent Appeal No. 380/71.
Mrs. Indra Sawhney for the Appellant.
V.C. Mahajan, G.D. Gupta, C.V. Subba Rao and
R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. Cases which evoke sympathy come frequently before the Courts.
But, pity, not often. The case before us has a unique story to tell, the story
of a crime committed under the stress of personal misery, compounded by the
apathy of the Establishment and the appalling delays of law. Ironically, the
silver lining is furnished by the bravery of a broken man who has been fighting
against injustice for the last 23 years. When justice is done, or so the judges
believe, the conscience is assuaged. But in this case, despite our doing all
that can be done for the appellant within the framework of law, we have an
uneasy conscience. Delay not only defeats justice and robs it of its immediate
relevance to the parties but it shakes the very confidence of the people in the
desire and ability of law courts to assist them when they need that assistance
most.
The appellant was retrenched by the Ministry
of Rehabilitation, Government of India in 1960, whereupon he was employed as a
Cash Clerk by the Delhi Milk Supply Scheme Department, which is under the
administrative control of the Government of India. In 1962, he was prosecuted
for breach of trust in respect of a sum of Rs. 500. He repaid that amount and
pleaded quality to the charge. Accepting that plea, the learned Magistrate,
First Class, Delhi, convicted him under section 409 of the Penal Code but, in
view of the peculiar circumstances relating to the crime and the criminal, he
released him under section 4 of the 166 Probation of Offenders Act, 1958. As a
result of the conviction, the appellant was dismissed from service summarily,
with effect from April, 14, 1964.
The appellant filed a suit in 1966 in the
court of the Sub Judge, First Class, Delhi for setting aside his dismissal from
service, mainly on the ground that since he was released under the Probation of
Offenders Act, it was not permissible to the authorities to visit him with the
penalty of dismissal from service. That suit was dismissed on the ground that
since the appellant was convicted of a criminal charge, he was liable to be
dismissed under clause (a) of the second proviso to Article 311 (2) of the
Constitution. The deree of the trial court was confirmed by the learned
Additional Senior Sub-Judge, Delhi in January 1968. The appellant filed Second
Appeal No. 142 of 1968 in the High Court of Delhi, which was allowed by D.K.
Kapur, J.
On April, 13, 1971. The learned Judge
accepted the contention of the appellant that, by reason of provision contained
in section 12 of the Probation of Offenders Act, he could not be dismissed from
service without affording him a reasonable opportunity of being heard, as
required by Article 311 (2) of the Constitution. The Government of India filed
a Letters Patent appeal against that judgment, which was allowed by Jagjit
Singh and R.N. Aggarwal, JJ. On October 10, 1972. This appeal of the year 1973
has come up for hearing in this Court more than 11 years after it was filed.
Section 12 of the Probation of Offenders Act
must be placed out of way first. It provides that not withstanding any thing
contained in any other law, a person found guilty of an offence and dealt with
under the provisions of section 3 or 4 "shall not suffer
disqualification" attaching to a conviction for an offence under such law.
The order of dismissal from service consequent upon a conviction is not a
disqualification" within the meaning of section 12. There are statutes
which provide that persons who are convicted for certain offences shall incur
certain disqualifications.
For example, Chapter III of the
Representation of the People Act, 1951, entitled "Disqualifications for
membership of Parliament and State Legislatures" and Chapter IV entitled
"Disqualifications for Voting contain provisions which disqualify persons
convicted of certain charges from being members of legislatures or from voting
at elections to legislatures. That is the sense in which the word
"disqualifica- 167 tion" is used in section 12 of the Probation of
Offenders Act. There-fore, it is not possible to accept the reasoning of the
learned Single Judge of the Delhi High Court.
But though this is so the ultimate order
passed by the learned single Judge has to be upheld. It can be supported on grounds
other than the one on which it rests.
The learned Magistrate First Class, Delhi,
Shri Amba Prakash was gifted with more than ordinary understanding of law.
Indeed he set an example worthy of emulation. Out of the total sum of Rs.
1,607.99 which was entrusted to the appellant as a Cash cleric, he deposited
Rs. 1,107.99 only in the Central Cash Section of the Delhi Milk Scheme.
Undoubtedly, he was guilty of criminal breach
of trust and the learned Magistrate had no option but to convict him for that
offence. But, it is to be admired that as long back as in 1963, when section
235 of the Code of Criminal Procedure was not on the Statute book and later
refinements in the norms of sentencing were not even in embryo, the learned
Magistrate gave close and anxious attention to the sentence which, in the
circumstances of the case, could be passed on the appellant. He says in his
judgment The appellant was a victim of adverse circumstances; his son died in
February 1962, which was followed by another misfortune; his wife fell down
from an upper storey and was seriously injured: it was then the turn of his
daughter who fell seriously ill and that illness lasted for eight months. The
learned Magistrate concluded his judgment thus:
"Misfortune dodged the accused for about
a year... ............... and it seems that it was under the force of adverse
circumstances that he held back the maney in question. Shankar Dass is a middle
aged man and it is obvious that it was under compelling circumstances that he
could not deposit the money in question in time. He is not a previous convict.
Having regard to the circumstances of the case, I am of the opinion that he
should be dealt with under the Probation of Offenders Act, 1958." It is to
be learned that despite these observations of the learned Magistrate, the
Government chose to dismiss the appellant in a huff, without applying its mind
to the penalty which could H 168 appropriately be imposed upon him in so far as
his service career was concerned. Clause (a) of the second proviso to Article
311 (2) of the Constitution confers on the Government the power to dismiss a
person from service "on the ground of conduct which has led to his
conviction on a criminal charge". But, that power, like every other power,
has to be exercised fairly, justly and reasonably. Surely the Constitution does
not contemplate that a Government servant who is convicted for parking his
scooter in a non- parking area should be dismissed from service. He may,
perhaps, not be entitled to be heard on the question of penalty since clause
(a) of the second proviso to Article 311(2) makes the provisions of that
article inapplicable when a penalty is to be imposed on a Government servant or
the ground of conduct which has led to his conviction on a criminal charge. But
the right to impose a penalty carries with it the duty to act justly.
Considering the facts of this case, there can be no two opinions that the
penalty of dismissal from service imposed upon the appellant is whimsical.
Accordingly, we allow this appeal, set aside
the judgment of the Delhi High Court dated October 10, 1972 and direct that the
appellant shall be reinstated in service forthwith, with full back wages from
the date of his dismissal until reinstatement. The Government of India will pay
to the appellant the costs of the suit, the First Appeal, the Second Appeal,
the Letters Patent Appeal and of this Appeal which we quantify at Rupees five
thousand. The appellant will report for duty punctually at his former place of
work on April 1, 1985.
In this brief judgment, we have referred to
many unhappy facts. We must mention one more. We had adjourned this appeal
after hearing it a while, in order to enable the Government to consider whether
the appellant could be reinstated in service with a reasonable adjustment in
the payment of back wages. The learned counsel appearing on behalf of the Union
of India showed us a letter written by a Deputy Secretary stating that the
Hon'ble Minister of Agriculture desired him to say that the Court should decide
the case on merits. We have done our modest best in that regard.
N.V.K Appeal allowed.
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