Rajasthan High Court

Gauri Shankar vs J V V N Ltd Andors on 27 May, 2022

Bench: Sameer Jain

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 13984/2016

Gauri Shankar S/o Shri Mahadev Nath, aged about 58 years,
resident of Daslana, Tehsil Ladpura, Distt. Kota.
                                                                   ----Petitioner
                                   Versus
1.     Jaipur Vidyut Vitaran Nigam Limited, through its Chief
       Engineer (O & M), JPD, Jaipur.
2.     Superintending Engineer, Jaipur Vidyut Vitaran Nigam
       Limited, Jaipur Discom, Kota Circle, Kota.
3.     Executive Engineer (CD-II), Jaipur Vidyut Vitaran Nigam
       Limited, Kota.
4.     Assistant Engineer (B-II), Jaipur Vidyut Vitaran Nigam
       Limited, Kota.
                                                                ----Respondents

For Petitioner(s) : Mr. Lokesh Sharma with Mr. Seoji Ram For Respondent(s) : Ms. Priya Pareek for Mr. Sandeep Singh Sehkhawat

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

Judgment Reserved on 29/04/2022 Judgment Pronounced on 27/05/2022

1. Present writ petition is filed against the order dated

15.02.2002 passed by respondent Assistant Engineer whereby the

petitioner was dismissed from service on the ground of being

convicted under Section 307/34 of Indian Penal Code on

12.12.2001.

2. The present writ petition is filed with limited prayers which

reads as follows:-

"i) the respondents may kindly be directed to reinstate the petitioner back in service keeping

(2 of 7) [CW-13984/2016]

the fact into consideration that the benefit of section 12 of the Probation of Offenders Act was extended in favour of the petitioner by this Hon'ble Court and except the said criminal case neither any enquiry nor any other proceedings is pending against the petitioner;

ii) any other order or direction which this Hon'ble Court deems just and proper may also be passed in the facts and circumstances of the case."

3. Learned counsel for the petitioner has submitted that the

petitioner was a permanent and substantive employee of

respondents-company JVVNL. After carrying out approximately 22

years of service, on 15.02.2002, he was dismissed from service

w.e.f. 12.12.2001 on account of his conviction on a criminal

charge under Section 307/34 of Indian Penal Code in the light of

order of learned trial Court dated 12.12.2001.

4. Against the order of trial Court dated 12.12.2001 in Session

Case No.53/2001, S.B. Criminal Appeal No.1064/2001 titled

as Dhanraj & Ors. Vs. State of Rajasthan was filed whereby

vide judgment dated 27.07.2015, the petitioner was granted

benefit under Section 12 of the Probation of Offenders Act, 1958

(hereinafter referred to as 'Act of 1958') and following order was

passed:-

"i) The appeal filed on behalf of accused appellants is partly allowed;

ii) The conviction of the accused appellants is altered from Section 307/34 and 324/34 IPC to 324/34 IPC.

iii) The accused appellant Gauri Shankar is given the benefit of Probation of offenders' Act and it is directed that he shall be released on probation under section 4 of the Probation of offenders Act for a period of one year, provided he furnishes a personal bond of Rs. 20,000/- (Rs. Twenty Thousand) with one surety of the

(3 of 7) [CW-13984/2016]

like amount before the trial court with the stipulation that he will appear before the Court concerned and receive the sentence awarded by the trial court as and when he is called upon to do so during the period of one year, and in the meantime he shall keep peace and be of good behaviour and will not commit any offence during the period of probation.

iv) The accused appellant Gouri Shankar is also extended the benefit of Section 12 of the Probation of Offenders' Act, so that the impugned judgment will not affect his future in any way.

v) The bail bonds, as indicated above shall be furnished by appellant Gauri Shankar before the trial court within a period of three months from today.

vi) The accused appellant Gouri Shankar is on bail. His bail bonds will be cancelled by the trial court only after submitting the fresh bail bonds before the trial court within the aforesaid stipulated period of three months.

vii) So far as accused appellants Dhanraj and Radha Mohan are concerned, their conviction is maintained; and their sentence is reduced to the period already undergone by them in confinement, as indicated above.

viii) The sentence of the accused appellants Dhanraj and Radha Mohan was suspended and they are on bail. They need not to surrender and their bail bonds stand cancelled.

Impugned judgment stands modified, as indicated hereinabove."

5. It is the claim of the petitioner that once immunity under

Section 12 of Act of 1958 is granted, he should be reinstated back

in service and for that he has filed application dated 06.10.2015

and representation dated 26.04.2016, but the respondents did not

(4 of 7) [CW-13984/2016]

considered either of them and it is in this background that the

present writ petition was filed.

6. Per contra, learned counsel for the respondents has

submitted that the object of the Probation of Offenders Act, 1958

is reformative, for the purpose of rehabilitation of the offender.

She has submitted that the Act of 1958 does not deal with

conviction, it only deals with the sentence which the offender has

to undergo. The conviction remains untouched and Section 12

does not obliterate stigma of conviction. The criminal trial and

conviction is one thing, sentence is another and the departmental

punishment for misconduct is yet another thing. She has drawn

attention of this Court on the authoritative pronouncement of

Hon'ble Apex Court in Union of India & Ors. Vs. Bakshi Ram

reported in AIR 1990 SC 987. She has further drawn attention of

this Court to another judgment of Hon'ble Apex Court, directly on

the issue, titled as Sushil Kumar Singhal Vs. Regional

Manager, Punjab National Bank reported in (2010) 8 SCC

573 wherein it was held that once an employee stands convicted

of an offence involving moral turpitude, it is his misconduct that

leads to his dismissal and Section 12 cannot be applied to grant

reinstatement.

7. Learned counsel for the petitioner, in his arguments, by

relying upon judgment of the Division Bench of this Court titled as

H.R. Choudhary Vs. Central Administrative Tribunal & Ors.

in D.B. Civil Writ Petition No.12437/2012, contends that in

cases of imposing major penalty, in view of conviction in criminal

case, procedure established under Central Civil Services

(Classification, Control and Appeal) Rules, 1965 (hereinafter

referred to as 'CCA Rules, 1965') must be followed and for non

(5 of 7) [CW-13984/2016]

observance of the same, major penalty, like dismissal from

service, cannot be imposed.

8. This Court has heard the submissions advanced by

respective counsels for both sides, scanned the record of the writ

petition and gone through the judgments cited at Bar.

9. On perusal of pleadings of the writ petition and the prayer, it

is absolutely clear that the only prayer made by the petitioner is

for reinstatement along with consequential benefits in the light of

immunity given under Section 12 of the Act of 1958 vide orders of

the Hon'ble Court in S.B. Criminal Appeal No.1064/2001 dated

27.07.2015. Except for that there is no pleading in the writ

petition for the application/violation of the CCA Rules of 1965.

Judgment cited/referred to by the respondents makes it clear that

the Court while invoking provisions of the Act of 1958 does not

deal with conviction; it only deals with the sentence which the

offender has to undergo. Instead of sentencing the offender, the

Court releases him on probation of good conduct. The conviction

however, remains untouched. In the departmental proceedings,

the delinquent employee could be dismissed or removed or

reduced in rank on the ground of conduct which has led to his

conviction in a criminal charge.

10. Section 12 of the Act of 1958 is reproduced below:-

"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

(6 of 7) [CW-13984/2016]

subsequently sentenced for the original offence."

The Apex Court, in the case of Union of India Vs. Bakshi Ram

(supra), has observed the following:-

"13. Section 12 is thus 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. Apparently, such a view has no support by the terms of Section 12 and the order of the High Court cannot, therefore, be sustained."

It is also clear, from the above quoted judgment, that after

dismissal from service in view of conviction and on subsequent

release on probation, reinstatement is not automatic.

11. The word "disqualification" contained in Section 12 of the Act

of 1958 refers to a disqualification "provided in other statues" as

held in the case of Sushil Kumar Singhal (supra), the relevant

part of which is reiterated below:-

"18. In view of the above, the law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word `Disqualification' contained in Section 12 of the Act, 1958 refers to a disqualification provided in other Statutes, as explained by this Court in the

(7 of 7) [CW-13984/2016]

above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the Act, 1958."

The Apex Court has time and again held that, in criminal trial, the

conviction is one thing and sentence is another. The departmental

punishment for misconduct is yet another. The provisions of

Section 12 of the Act of 1958 does not preclude the department

from taking action for misconduct leading to the offence or to his

conviction thereupon as per law. The section was not intended to

exonerate the offender from departmental punishment. It was

limited to disqualification under other law, like for contest of

election under Representation of People Act, 1951, etc.

12. The reliance placed by petitioner on the Division Bench

judgment of H.R. Choudhary (supra) is dehors and beyond the

pleadings. There is no contention raised in the writ petition for

violation of carrying out provisions under the CCA Rules 1965 qua

the Rules 14, 16 and 19.