Babu Lal And Anr. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 120 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioners by this writ petition seek quashing of the letters No. LPI/IP/529/Delhi/2002 and letter No. LP/LP/494/Delhi, both dated 9.2.2002, intimating the petitioners of the termination of their porter licenses. Petitioners also seek direction to the respondents to restore their porter licenses with badge Nos. 529 and 494 respectively, or to issue fresh porter license/ badge numbers, as may be feasible. Petitioners had been working at Old Delhi Railway Station as porters since 1983-84. Their licenses were renewed from time-to-time after every two years. Badge number of petitioner No. 1 is 529 and that of petitioner No. 2 is 494.

2. On 23rd December, 2000 petitioners were found by the respondents illegally canvassing and arranging berths/seats in train Katihar Express. Vide order dated 5.3.2001, the Porter licenses of the petitioners were suspended by the respondent.

3. Petitioners were booked under Sections 144 /180 of the Indian Railways Act and Kalandra was filed before the Special Railway Magistrate. The prosecution examined as its witnesses, members of the raiding party. Certain objections were taken regarding non-recovery of towels, etc. It was alleged that the petitioners had occupied seats by spreading towels on the berth inside the coach and were offering seats at the rate of Rs. 10/- per seat. Petitioners pleaded not guilty. The Railway Magistrate after recording of evidence and conclusion of trial, convicted the petitioners vide judgment dated 30.10.2001 and sentenced them to undergo simple imprisonment for three months and fine of Rs. 500/- each.

4. Petitioners thereupon filed an appeal before the Addl. Sessions Judge, who upheld the conviction. He rejected the petitioners' argument about absence of public witnesses and there being material discrepancy in the statements. However, considering that petitioners were not previous convicts and had been working as licensed porters. The Addl. Sessions Judge held that he was not, therefore, inclined to sentence them to any term of substantive imprisonment. Petitioners were released on probation under the Probation of Offenders Act, 1958 for a period of one year on their entering into a bond of Rs. 6,000/- with one surety, to come and receive sentence whenever called upon and to keep peace in the meanwhile. The surety bonds were duly furnished.

5. Learned Counsel for petitioners submits that the respondents without given any opportunity of showing cause or making a representation to the Divisional Commercial Superintendent, had illegally suspended the license of the petitioners vide order dated 5.3.2001 pending the decision in the case under Sections 144/180 of Railways Act.

Thereafter vide letter No. LPI/LP/529/Delhi/2002 dated 9.2.2002, the license/ badge were terminated by the Competent Authority and this was communicated by the aforesaid letter.

6. Learned Counsel for the petitioners has assailed the order of termination of license on two grounds:

(i) Firstly despite request made on 20.3.2002 to provide detailed order of termination of license and to disclose reasons for passing of such an order so that petitioners could make an appropriate representation to the Divisional Commercial Superintendent, the same was not heeded to by the respondent.

(ii) In the alternative it is contended that in case, the termination has been done on account of the conviction made by the Special Magistrate, the same would be illegal as in the appeal the petitioners had been released under the Probation of Offenders Act, 1958 and in terms of Section 12 the disqualification would not attach to the conviction and petitioners cannot be made to suffer.

7. To appreciate contention of Counsel for the petitioner Section 12 of the Probation Offenders Act, 1958 is reproduced as under:-

"Removal of disqualification attaching to conviction--Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under 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, is subsequently sentenced for the original offence."

It would also be relevant to reproduce Clause 8 of the license condition, appearing at page 47 of the paper book. The said terms and conditions provide for cancellation by the Station Master/Station Superintendent for any misconduct including conviction in Court of law for any offence.

8. Notwithstanding that the license shall be liable to be cancelled by the Divisional Commercial Superintendent at any time without assigning any reason therefore. This license may be suspended for a period not exceeding 15 days at a time or may be cancelled by the Station Master/Station Superintendent for any misconduct, namely,--

(a)    Catching or alighting a train in motion;
 

(b)   dies Courteous behavior towards passengers and /or causing damage to their luggage;
 

(c)    Charging of rate excess of the rates of porterage notified by the Railway Administration from time-to-time from the passengers;
 

(d)   Rough handling of the railway luggage;
 

(e)    Disobedience of the lawful orders of authorities mentioned in Clause-I;
 

(f)    Unauthorised absence from work;
 

(g)   Conviction in a Court of law for any offence;
 

(h)   Any other misconduct causing annoyance/harassment to the passengers. 
 

9. Learned Counsel for the respondent very candidly states that respondents have acted under Clause 8(g) and the termination of the licenses was on account of conviction by the Special Magistrate.
 

10. Scope and effect of Section 12 of the Probation of Offenders Act, 1958 providing for removal of disqualification attached to conviction of a person who is released on probation of good conduct is no longer res integra. In Union of India and Ors. v. Bakshi Ram reported at , the Supreme Court noted that in criminal trial the conviction was one thing and sentence another. Departmental punishment for misconduct was yet a third facet. This was a case where a Constable in the Central Reserve Police was dismissed from service on ground of conviction for an offence under Section 10 of the Central Reserve Police Force Act. He was subsequently released under Section 4 of the Probation of Offenders Act by the Appellate Court. The Supreme Court held that by virtue of Section 12 he would not be entitled to reinstatement. The Court observed that:

"Section 12 is clear and it only directs that the offender 'shall not suffer disqualification, if any, attaching to a conviction of an offence under such law'. Such law in the context is other law providing for disqualification on account of conviction. For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands removed. That in effect is the scope and effect of Section 12 of the Act. But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct."

11. Reference is invited to the decision of Supreme Court in Harichand v. Director of School Education reported at . The appellant had been convicted under Section 408 of the Indian Penal Code and sentenced to imprisonment, but released on probation under Section 4(1) of the Probation of Offenders Act, on furnishing a bond and surety, was removed from service. The Court rejected appellant's contention that the conviction could not have been taken into account for removing the appellant from Government service in view of Section 12 of the Probation of Offenders Act, 1958. The Court held that:

"In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, offence should not be taken into account for the purposes of dismissal of the person convicted from Government service."

12. Applying the principles enunciated in the aforesaid judgments of the Supreme Court, it would be seen that in the instant case it is not any disqualification attaching to conviction under any law. It is the term of the license which gives to the respondent the right to terminate the license of a person convicted of an offence. Accordingly, Section 12 per se does not get attracted. Even otherwise, if Section 12 was applicable as held in the cases of Harichand v. Director of School Education (supra), and Union of India v. Bakshi Ram (supra), it does not preclude the consideration of the factum of conviction to be taken into account for the purpose of dismissal or retention of the person from service. The submission of learned Counsel for the petitioner in this regard is, therefore, without merit.

13. Learned Counsel for the petitioner had also placed reliance on a number of judgments namely U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors. reported at , B.C. Chaturvedi v. Union of India and Anr. reported at and Shri Nirankar Prasad Seth (since deceased) through his LRs v. Commissioner, MCD and Ors. reported at 1995 (IV) AD (Delhi) 410 to urge that the Court would interfere where the authority conducted the proceedings or held the inquiry against the delinquent officer inconsistent with the rules of natural justice. These authorities also note that Court may interfere where the punishment/penalty awarded shocks the judicial conscience. There is no dispute with regard to the above well settled propositions that in case of violation of principle of natural justice or where the punishment awarded is wholly disproportionate so as to shock the judicial conscience, the Court could interfere to mould the relief to do complete justice between the parties.

14. In the instant case the petitioners who were porters had been working since 1983, but for the incident in question which took place on 23.12.2000, there is nothing adverse reported for them. The license of the porters had been suspended on 5.3.2001 and subsequently cancelled by the impugned orders following the conviction. After the release of the petitioners on probation for keeping peace and good conduct, nothing adverse has been brought to the notice of the Court. The porters who belong to the economically weaker section have, in my view, been adequately punished by suspension/cancellation of their porters license for a period of over three years for the misconduct and offence committed. It would be extremely harsh if they were to be deprived for all times from either rehabilitating themselves or earning their livelihood, especially considering that a porter cannot follow any other vocation in view of the limitation of education and training.

15. In view of the foregoing discussion, it is directed that upon the petitioners applying to the Railway Authorities for grant of porter license, such an application be considered on merits and if they are otherwise eligible, they be granted license on the standard terms and conditions.

The writ petition is allowed in the above terms.