Sh. Charan Singh vs M.C.D.
2006 Latest Caselaw 1736 Del

JUDGMENT

Manju Goel, J.

1. The petitioner has challenged the order of his dismissal dated 20.6.2003 and subsequent order dismissing his appeal dated 17.3.2004. The petitioner was a Beldar in the Health Department of respondent No. 1, namely, the Municipal Corporation of Delhi. He was an accused in case FIR 578/96 of P.S.Mehrauli. He was convicted by Shri H.S.Sharma, Additional Sessions Judge, Delhi vide a judgment dated 18.9.2001 for the offence under Sections 307/34 IPC. There was an appeal from this judgment which was decided by this Court on 31.10.2001. The conviction was converted into under Sections 324/34 IPC. Having regard to the circumstances of the case and the nature of the offence as well as the character of the offender, the Court directed to release the petitioner and the other accused in that case on probation of good conduct. Petitioner and other accused were released for a period of two years on their entering into a personal bond in the sum of Rs. 10,000/- each with two sureties each in the like amount to appear and receive sentence as and when called upon during such period. The petitioner and other accused were directed to keep peace and be of good behavior during that period of the bond. The respondent served the petitioner with a notice to show cause on 19.8.2002 proposing the penalty of dismissal from service. As per the memo, the respondent having noticed the conviction and the order of probation and the conduct leading to petitioner's conviction in the criminal case, found that his further retention in the Municipal service was not desirable and proposed to impose upon him penalty by dismissal from service which would be a disqualification for future employment by invoking Regulation 9(i) of the DMC Services (Control & Appeal) Regulations, 1959. The memorandum further says that the petitioner was being given an opportunity of making a representation on the penalty proposed above. The order of penalty was imposed. After considering the representation of the petitioner, admittedly no formal charge-sheet was given and no inquiry was held, although the petitioner was given an opportunity to examine the records and also to get the advice or assistance of any municipal officer or employee for his defense. The penalty order of the Additional Director (Vigilance) confirmed the proposal of dismissal from service by invoking Regulation 9(i) of the DMC Services (Control & Appeal) Regulations, 1959. The representation/appeal of the petitioner was disposed of by the next order of 17.3.2004. All that this order says is that there was no new ground furnished by the petitioner which required a fresh consideration of his case.

2. The petitioner has challenged these two orders on the ground that the petitioner had been released on probation and was entitled to the benefit of being released on probation and could not have been deprived of his job. The petitioner has also named several persons who, after conviction, had been let off with minor punishment. In the counter affidavit it is pointed out that the inquiry could be dispensed with by virtue of the provisions of Regulation 9(i) and also under Article 311(2) and the conviction in the criminal case has sufficiently proved of his misconduct. It is further contended that the petitioner did not chose to represent his case by appearing in person before the disciplinary authority or the appellate authority and further that he has mislead the department by his letter dated 22.11.2001 wherein he had stated that he had been acquitted by the High Court.

3. Provisions of Regulation 9(i) and (ii) of the DMC Services (Control & Appeal) Regulations, 1959 are shown to me by the respondent. The provisions are as under:

9. Special procedure in certain cases. Notwithstanding anything contained in regulation 8:

(i) where a municipal officer of other municipal employee is removed or dismissed on the ground of conduct which has led to his conviction on criminal charge; or

(ii) where the authority empowered to remove or dismiss an officer or other employee is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in these regulations; the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit.

4. The petitioner is seeking protection under Section 12 of The Probation of Offenders Act, 1958, which is as under:

12. Removal of disqualification attaching to conviction. Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the 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 4, is subsequently sentenced for the original offence.

5. The respondent has not taken note of the effect of Section 12 of The Probation of Offenders Act, 1958. The respondent was fully aware of the fact that the petitioner had been released on a bond of good conduct and on probation. Section 12 of The Probation of Offenders Act, 1958 saves an offender, who had been released under the Act, from disqualification which attached to conviction. Hence the disqualification of being punished for misconduct in his service has also to be excluded by virtue of Section 12 of The Probation of Offenders Act, 1958. There can be no quarrel that Section 12 of The Probation of Offenders Act, 1958 will over-ride Regulation 9(i) of the DMC Services (Control & Appeal) Regulations, 1959. In the case of Trikha Ram v. V.K. Seth and Anr. the Supreme Court held that the benefit of Section 12 of The Probation of Offenders Act, 1958 can be extended to the service of the offender. The Government of India had an occasion to deal with the effect of Section 12 of The Probation of Offenders Act, 1958 through the disciplinary proceedings. The Deputy Director-General (Vigilance), P.&T., D.O. No. 3/16/71-Disc.II, dated 30.8.1971 came out with the following view:

(c) Under Probation of Offenders Act. In accordance with Section 4 of the Probation of Offenders Act, 1958, when any person is found guilty of having committed an offence and the Court is of the 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 to release him on probation of good conduct, it may direct that he be released on his entering into a bond with or without sureties for keeping peace and good behavior for a specified period. Section 12 of the same Act states that a person found guilty of an offence and dealt with under the provision of Section 4 shall not suffer disqualification, if any, attached to conviction of an offence under such law. It has been represented that persons convicted by Courts of Law and released under the Probation of Offenders Act are not liable to be removed or dismissed from service merely on the ground of their conviction in accordance with the provisions contained in Section 12 cited above.

The matter has been considered in consultation with the Ministry of Law and it has been held that the Disciplinary Authority is precluded under Section 12 of the Probation of Offenders Act from dismissing/removing an employee merely because he is convicted of an offence. That Ministry has held that the order of dismissal/removal, etc., of the employee should be on the ground of conduct which has led to his conviction and not the conviction itself.

6. The facts, mentioned above, clearly indicate that the provisions of Section 12 of The Probation of Offenders Act were altogether overlooked while imposing the penalty orders, impugned in this writ petition. No disqualification in the service could be attached to the petitioner on his being released on a bond of probation. The impugned orders are, therefore, bad and liable to be set aside.

7. It is pointed out that the petitioner committed misconduct by concealing from the authorities the actual order of his conviction as he stated in one of his letters that he had been acquitted. Suffice it to say that the petitioner was not punished because of this act of misconduct. Such an act is not excepted by Regulation 9(i) of the DMC Services (Control & Appeal) Regulations, 1959. If the respondent wanted to take disciplinary action against the petitioner on account of such mis-statement, a regular disciplinary action including serving a charge-sheet and an inquiry was required.

8. Be that as it may, the respondent has passed an order of dismissal against the petitioner only on the ground that he was convicted. As mentioned above, no disqualification on account of the conviction could be attached to the petitioner as he had been released on probation. The two impugned orders will, therefore, have to go.

9. In view of the above, the writ petition succeeds. The same is allowed. The impugned orders dated 20.6.2003 and 17.3.2004 are quashed. The petitioner shall be deemed to have continued in service and would be entitled to all the consequential benefits of the orders being quashed. Petitioner should immediately join the respondent and all dues of the petitioner payable consequent upon this judgment will be paid within a period of 80 days.

10. Copy of the judgment be given dusty to counsel for the parties so that the order can be promptly complied with.