Sultan Singh vs Administrator, Nct Of Delhi & Ors.
2011 Latest Caselaw 1110 Del

    *        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       W.P.(C) 1825 OF 2008


+                             Date of Decision: 24th February, 2011

#       SULTAN SINGH                                 ...Petitioner
!                                Through: Mr. R.S. Soni, Advocate

                              Versus

$       ADMINISTRATOR,
        NCT OF DELHI & ORS.                     ...Respondents
                Through: Mr. Rajeev Sharma, Adv. for R-1 & R-2

        CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see the
   judgment? (No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest? (No)

                        JUDGMENT

P.K.BHASIN, J:

The petitioner was working as a head clerk in Lions Vidya

Mandir Secondary School, Kashmir House, New Delhi(hereinafter to

be referred to as „the School‟) where he had joined as a UDC on 16th

May, 1967. Sometime in the year 1994 a criminal case under Sections

420/467/468/471/409 of the Indian Penal Code was registered against

the petitioner at Chanakya Puri Police Station vide FIR No. 263/1994

on the complaint of the then acting Vice-Principal of the School. The

main allegation against him was that he had withdrawn a sum of about `

50,000/- from the GPF accounts of some of the teachers of the School

by forging documents. As a result of registration of that criminal case

against the petitioner he was suspended from service on 17th September,

1994 and during the period of his suspension he was paid subsistence

allowance as per rules. He was tried by the Court of concerned

Metropolitan Magistrate and finally he was held guilty also for the

commission of the offences punishable under Sections 463/465 and 471

IPC vide judgment dated 31st October, 2002 by the Court of Shri L.K.

Gaur, Metropolitan Magistrate, New Delhi. However, he was not

awarded any punishment and instead he was released on probation vide

order dated 11th December, 2002. The petitioner did not challenge his

conviction by filing appeal against the judgment of the convicting

Court.

2. On successful completion of the probation period of one year the

petitioner was re-instated by the management of the School w.e.f. 29th

January, 2003 but the management did not take any decision regarding

the payment of his salary and other allowances etc. for the period he

had remained under suspension i.e. from 17th September, 1994 to 28th

January, 2003 despite the petitioner having made representations to the

management of the School as well as to the Director of Education

(respondent no. 2 herein). After waiting for positive response from the

respondents regarding his request for payment of full salary and other

service benefits for the period of his suspension for over one year he

filed a writ petition in this Court (being W.P. (C) No. 12477/2004) in

which a prayer was made for issuance of writ of mandamus directing

the respondents to give him all the consequential benefits of full pay

and allowances, annual increments, benefits of continuity of service,

revised pay-scale etc. treating the period of his suspension as period

spent on duty. It appears that after the filing of the writ petition the

management of the school informed the Director of Education that the

period of suspension of the petitioner not to be treated as period spent

on duty and it be treated as Dies-Non and payment of pay etc. be

restricted to subsistence allowance already paid to him. However,

before that writ could be heard and disposed of the petitioner withdrew

the same on 1st May, 2006 as he was expecting some amicable

settlement with the respondents in that writ petition who are the

respondents in the present writ petitions also. After withdrawing that

writ petition the management of the School recommended to the

Director of Education vide letter dated 16th May, 2006 that the period of

suspension of the petitioner be treated as period spent on duty and he

should be given all the consequential benefits of pay and allowances

etc. as per Rules and also for inclusion of that period for the purposes of

giving him pensionary benefits. However, the respondents no. 1 and 2

did not accept that recommendation and vide letter dated 2nd August,

2007 the management of the School was informed that the request for

regularization of the period of suspension of the petitioner as proposed

by it had been rejected and the pensionary benefits had been approved

after excluding the period of suspension. Feeling aggrieved, the

petitioner once again approached this Court by filing the present writ

petition under Article 226 of the Constitution of India for issuance of an

appropriate writ directing the respondents no. 1 and 2 to pay to the

petitioner all the arrears to pay his salary and pensionary benefits for

the period of his suspension treating the same as period spent on duty.

3. This writ petition was opposed on behalf of respondents no. 1

and 2 as well as by the management of the School, respondent no. 3

herein, primarily on the ground that the petitioner was not entitled to

the various service benefits he was claiming since the fact was that he

had actually been convicted in a criminal case and his release on

probation did not change his status as a convict and the same also does

not exonerate him of the crime found by the Court to have been

committed by him.

3. Learned counsel for the petitioner had argued that once the

petitioner was re-instated after revocation of his suspension he could

not be deprived of any part of his salary and other allowances etc.

because of his having been convicted in the criminal case since in that

case he had not been awarded any sentence but was extended the

benefit of probation which in turn also gave the benefit to him under

Section 12 of the Probation of Offenders Act according to which

provision the conviction of the accused who is given the benefit of

probation is not to be considered a disqualification for any purpose and

since the stigma of conviction had been wiped off completely.

Therefore, counsel contended, merely because of the conviction of the

petitioner he could not have been deprived of the service benefits in

respect of the period of his suspension. This was the only ground

pressed to in service by the learned counsel for the petitioner placing

strong reliance upon one judgment of a Division Bench of this Court in

"Iqbal Singh Vs. Inspector General of Police and others", AIR 1970

Delhi 24.

4. The argument that since the petitioner was extended the benefit

of probation by the Criminal Court after finding him guilty the

respondents could not have refused to treat the period of his suspension

as period spent on duty is totally devoid of merit and the reliance placed

on the judgment of the Division Bench judgment of this Court in Iqbal

Singh‟s Case (supra) is also equally misplaced since that judgment has

already been overruled way back in 1972 by a Full Bench of this Court

in a judgment reported as 1972 LIC 736; "Director of Postal Services

v. Daya Nand". The Supreme Court also had in a judgment reported as

(1976) 3 SCC 190; "Divisional Personnel Officer, Southern Rly. v.

T.R. Chellappan", in which the effect of release of an employee-

accused on probation had come up for termination, noticed that Iqbal

Singh‟s judgment had been overruled by the Full Bench of this Court.

Regarding the scope of Section 12 of the Probation of Offenders Act

the Supreme Court had observed as under:

"11. This brings us to the consideration of two interconnected questions, namely, as to what is the effect of the order of the Magistrate releasing the accused on probation and the effect of Section 12 of the Probation of Offenders Act. It was suggested by the respondents that if the Magistrate does not choose, after convicting the accused, to pass any sentence on him, but releases him on probation then the stigma of conviction is completely washed out and obliterated, and, therefore, Rule 14(i) of the Rules of 1968 will not apply in terms. We are, however, unable to agree with this somewhat broad proposition. A perusal of the provisions of the Probation of Offenders Act, 1958, clearly shows that the mere fact that the accused is released on probation does not obliterate the stigma of conviction. The

relevant portion of Section 3 of the Probation of Offenders Act, 1958, hereinafter referred to as „the Act‟ runs thus:

"... notwithstanding anything 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 Section 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 meantime to keep the peace and be of good behaviour."

Section 9(3) and (4) of the Act reads 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 sub-section (3) is not paid within such period as the Court may fix, the Court may sentence the offender for the original offence."

These provisions would clearly show that an order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order of release on probation of the offender. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. This has been made permissible by the statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals. The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is retained by the criminal court and where it is satisfied that the conditions of the bond „have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence. This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation. Under Sections 3, 4 or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof. In these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction."

(emphasis supplied)

5. In Iqbal Singh‟s case (supra) the employee concerned was

suspended because of his involvement in some criminal case. After trial

he was convicted but was released on probation. Despite his release on

probation that employee was dismissed from service because of his

having been held guilty in the criminal case. That employee invoked

Section 12 of the Probation of Offenders Act while challenging his

dismissal from service by filing a writ petition. While allowing that writ

petition the Division bench of this Court had observed that once an

accused is released on probation after conviction there was express

immunity from any kind of departmental proceedings against him

provided by Section 12 of the Probation of Offenders Act and the

conviction was unactionable. As noticed already, this judgment stands

overruled by a Full Bench of this Court and therefore, the petitioner

cannot derive any benefit from the judgment of the Division Bench.

6. As far as grant of full pay and allowances and other benefits to an

employee who has been found guilty in a criminal case but released on

probation for the period he had remained under suspension is

concerned, it was not contended by learned counsel for the petitioner

that the respondents did not have any authority to deny him those

benefits upon his being reinstated after revocation of his suspension. It

was also not argued that there was any violation of any rule governing

the services of the petitioner by any of the respondents. In this regard a

reference can be made to a Division Bench judgment of this Court in

"Naresh Ahlawat Vs. Mahanagar Telephone Nigam Ltd", 131 (2006)

Delhi Law Times 46 wherein also the question of payment of full salary

and allowances etc. for the period of suspension of the concerned

employee of that case who had been held guilty in a criminal case by

the trial Court but acquitted in appeal had come up for consideration.

The Division Bench after taking note of some judgments of the

Supreme Court to the effect that mere acquittal of an employee in a

criminal case will not ipso facto entitle him to get all the consequential

benefits for the period of his suspension including that of treating that

period as spent on duty for the purposes of computing pensionary

benefits observed that unless it is shown that the decision of the

authorities in not treating the suspension period as the period spent on

duty by the suspended employee was totally illegal or perverse Writ

Court would not interfere in that administrative decision of the

concerned authority. In the present case the decision was sought to be

challenged only on the ground that with the release of the petitioner on

probation his conviction could not come in his way for getting

consequential benefits after revocation of his suspension and in that

contention I have found no merit. The respondents could justifiably

place him under suspension the moment criminal case was registered

against him as is provided under Rule 115 of the Delhi School

Education Rules, 1973 and after being held guilty could restrict his

entitlement to subsistence allowance only and I do not find any

illegality in that decision taken by respondents no. 1 and 2 despite the

fact that the management of the School had changed its earlier

recommendation to the respondent no. 1 and 2 not to pay to the

petitioner full pay and allowances for the period of his suspension by

recommending to respondents 1 and 2 after withdrawal of the earlier

petition by the petitioner that he should be treated as on duty during the

period of suspension. In fact regarding this subsequent

recommendation the management‟s stand here was that it had wrongly

made that recommendation relying upon the judgment of this Court in

Iqbal Singh‟s case (supra) when the Supreme Court‟s decisions were to

the contrary.

7. This writ petition, thus, being devoid of any merit, is dismissed

but without any orders as to costs.

P.K. BHASIN, J FEBRUARY 24, 2011/pg