K. Ramamoorthy, J.
1. The petitioner, who was in the Indian Army holding the rank of Havildar, has challenged the order of dismissal dated 16.5.1994 and the letter dated 18.10.1996 by which the petitioner was denied pensionary benefits.
2. While the petitioner was in service in June, 1990, he was in his village on leave. There was some criminal case against him, and the petitioner was accused of having assaulted some persons. The trial court by order dated 16.7.1991 found the main accused Harbir Singh guilty under Section 302 IPC and the with Section 149 IPC. There were other accused and all the accused were further held guilty under Section 323 IPC. All the accused were sentenced to imprisonment for life and fine of Rs.500/- under Section 302 read with Section 149 IPC and further sentenced to three months RI under Section 323 read with Section 149 IPC. On the basis of conviction by the trial court, the Brigadier Commander, 170 Infantry Brigade passed the following order of dismissal on the 30th of July, 1991:-
CAUSE OF DISMISSAL AND ITEM OF TABLE IN RULE 17 OF ARMY RULES 1954 READ WITH ARMY ACT SECTION 20(3) OF ARMY ACT, 1950.
1. “Dismissed from service w.e.f. 16 July, 1991 being convicted by Hon’ble Court of Addl Sessions Judge, Bhiwani(Haryana) on 16 Jul 91 and sentenced under Section 302 read with Section 149 IPC to undergo imprisonment for life and also to pay a fine of Rs.500/- (Five hundred) and in default of payment of fine, to undergo rigorous imprisonment for six months. He has also been convicted and sentenced under Section 148 IPC to undergo regourous imprisonment for six months and further convicted and sentenced under Section 323 read with Section 149 IPC to undergo rigorous imprisonment for three months. However, all the substantive sentences of imprisonment shall run concurrently.”
2. Dismissal from service sanctioned in accordance with Army Rule 17 of Army Rules 1954 read with Army Act Section 20(3) of Army Act, 1950 by Commander 170 Infantry Brigade.”
3. There was an appeal to the High Court challenging the judgment of the trial court, and therein, the main accused was found guilty of homicide and sentenced to five years RI and fine of Rs.500/-. The High Court found the injuries inflicted by the other co-accused were of minor in nature and found them guilty under Section 323 of IPC and the sentence undergone by them was considered sufficient. The matter was carried by way of a special leave petition to the Supreme Court of India by the petitioner.
4. On the 18th of August, 1991, another communication dated 18.8.1991 was sent to the petitioner. The same is as under:-
DISMISSAL FROM SERVICE: CASE FIR No.189 DATED 18 JUN 90 U/S IPC 148, 302, 323/149 AGAINST NUMBER 2870389 K HAV VED PARKASH SANGWAN
1. You have been convicted by Addl Sessions Judge, Bhiwani (Haryana) in your above mentioned civil case and awarded life-imprisonment.
2. In view of the above, you have been dismissed from service wef 16 Jul 91 by Cdr 170 Inf Bde, under the provisions of para 423 of Regulations for the Army 1962 (Revised Edition 1967).
3. Please acknowledge receipt of this letter.”
5. The Supreme Court, by order dated 11.4.1994, released the petitioner on probation under Section 360 Cr.P.C. maintaining the conviction of the petitioner under Section 323 IPC.
6. On the 16th of May, 1994, a Discharge Certificate was issued by the Record Officer, OIC Records and the same reads as under:-
DISCHARGE CERTIFICATE IN LIEU OF IAFY-1964
(Issued in accordance with Army Act Section 23 and Army Rule 12).
Army Number: 2870389K Rank: Havaldar(GD)
Name: Ved Prakash Sangwan of 13 Raj RIF is dismissed from the service by the orders of the Commander 170 Infantry Brigade, C/o, 56 APO under Army Act Section 20(3) of Army Act, 1950.
His dismissal takes effect from 16th July, 1991.
Cause of dismissal: Dismissed from service having been convicted by Court of Addl. Sessions Judge Bhiwani (Haryana) on 16 July 1991 under Section 302 read with Section 149 IPC to undergo imprisonment for life. The sentence reduced and convicted with Section 323 IPC with award of the punishment already undergone vide the Supreme Court of India, Criminal Appellate Jurisdiction, New Delhi Order No.510647 dated 11 April, 1994.”
7. On the 2nd of June, 1994, the Brigadier Commander had written to the father of the petitioner:
Reg: Pension & re-instatement into service.
1. High Court of Punjab and Haryana has found No.2870389 Ex.Hav.Ved Prakash guilty under Section 323 of IPC and convicted him to imprisonment for life. After this Supreme Court in appeal decreased his punishment but held him guilty.
2. Under Army Rules Brigade Commander has discretionary power to decide whether so convicted accused should be kept in service in the Army or not. In this case Commander 170 Infantry Brigade has dismissed him from Army Service on his having been found guilty which is correct according to law.
3. Such a person is not entitled to pension or other pensionary benefits.”
8. On the 7th of August, 1994, the petitioner had made a representation to the Ministry of defense. On the 11th of August, 1994, the Record Officer, OIC Records passed the following order:
RE-INSTATEMENT INTO SERVICE.
1. Reference our letter No.RNE/X dated 2.6.94 and your letter dated Nil May 1994.
2. High Court of Punjab and Haryana had sentenced you to imprisonment for life on finding you guilty under Section 323 of IPC. After his Supreme Court deceased your sentence on your appeal sent your conviction continued. A detailed reply has been sent to Sub Kripa Ram on this case. Please get in touch with sub Kripa Ram on this subject.”
9. On the 23rd of August, 1994, the petitioner made a representation to the OIC Records, Raj RIF Records Officer, Delhi Cantt., requesting that an order of discharge may be passed so that he may draw service pension and other benefits.
10. By letter dated 18.10.1996, the request of the petitioner was rejected, including the claim for pension. The letter reads as under:
“1. Refer to your application dated 07 August, 1994.
2. Your case has been turned down by Ministry of defense. In view of above you cannot be reinstated in the Army and no pensionary benefits re-admissible to you.”
11. On the 6th of February, 1997, the writ petition was presented in this Court.
12. The main points mentioned in the writ petition are: First, the respondents had dismissed the petitioner from service under Section 20 of the Army Act, 1950 without giving show cause notice under Rule 17 of the Army Rules, 1954. According to the petitioner, the dismissal order dated 16.5.1994 is void ab initio. The second point is that the petitioner having put in minimum qualifying service for pension, his case should have been
considered and he should have been granted pension. The third point taken is that the Pension Regulation 113 is ultra vires the Constitution, which confers an arbitrary power on the authority concerned to deprive the persons like the petitioner from getting pension when the rule does not lay down any guidelines. The petitioner has also stated that the respondent had acted in gross violation of his Fundamental Rights under Articles 14 & 21
of the Constitution of India
13. In the counter-affidavit filed by the respondents, it is stated that there has been delay in filing the writ petition against the order which was passed in August, 1994. On the 16th of July, 1991, the petitioner was convicted by the Additional Sessions Judge, Bhiwani, Haryana. On this basis, by order dated 16.7.1991, the petitioner was sent to District Jail,
Bhiwani. He was dismissed from service on the 16th of July, 1991 in accordance with Rule 17 of the Army Rules, 1954 and para 145 of the Army Regulations. The respondents have referred to the order dated 11.4.1994 by the Supreme Court giving the petitioner the benefit of Section 360 Cr.P.C. As per Regulation 113 of the Pension Regulations for Army, 1961, an individual who is dismissed under the provisions of the Army Act, 1950 is not eligible for pension. According to the respondents, Regulation 16(a) of the Pension Regulations for Army, 1961 would not apply to the case of the petitioner. In paragraph 12 of the counter, it is stated by the respondents:
“The petitioner had completed 15 years of service on the day of his dismissal from service however the petitioner was not entitled to service pension under para 113 (1) of pension regulation as the petitioner was dismissed from service in accordance with AA Section 20(3) read in conjunction with Army Rule 17.”
14. The petitioner filed rejoinder on the 27th of March, 1998. It is the case of the petitioner in the rejoinder that the Supreme Court passed the order for the benefit of the petitioner. The respondents had not acted fairly in considering the case of the petitioner after order passed by the Supreme Court on the 11th of April, 1994. In paragraph 3 of the rejoinder, it is stated:
“That the Hon’ble Supreme Court has held that Section 12 of Probation of Offenders Act, 1958 statutorily provides that an offender who has been released on probation shall not suffer disqualification attaching to a conviction of the offence for which he has been convicted notwithstanding anything contained in any other law. After release on probation the minimum that respondents are required to do is to change order of dismissal to removal from service. That admittedly the petitioner has not been awarded any punishment for any offence during service. His service is satisfactory.”
It is stated in paragraph 4 of the rejoinder by the petitioner:
“That admittedly the petitioner has minimum qualifying service i.e., more than 15 years, for pension under the Rules (para 12). It is well settled law laid by Hon’ble Supreme Court that mere order of dismissal from service does not deprive a person under Army Act of his pensionary rights. A separate order can be passed under Pension Regulation after serving show cause notice. It is also well settled law that principles of natural justice are implicit in every decision making function. These can be denied only if there is express statute stating so. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice.”
15. The learned counsel for the petitioner, Mr.J.S.Manhas, submitted that the order of dismissal passed by the authority concerned is illegal and that has been given effect to from a date earlier to the actual date on which the order was passed. He submitted that the respondents were failed to give notice under Rule 17 of the Army Rules, 1954 and no notice was given, and, therefore, the order of dismissal is void in law.
16. The learned counsel for the petitioner, Mr.J.S.Manhas, further submitted that the Supreme Court had released the petitioner on probation under Section 360 of the Cr.P.C., and, therefore, the petitioner cannot be deprived of his pensionary benefits. The learned counsel submitted that the respondents had not considered the scope of order passed by the Supreme
Court in the light of the provisions of Section 12 of the Probation of
Offenders Act, 1958. The learned counsel submitted that under Section 12 of the said Act, whatever disqualification is attached to the petitioner, that would completely stand obliterated and the resultant position is that there has been no conviction against the petitioner by a criminal court, and, therefore, the petitioner cannot be deprived of his service. The learned counsel went to the extent of submitting that the petitioner is entitled to be reinstated in service, even though the plea taken in the rejoinder is that the respondents could pass only an order of discharge which would not affect the right of the petitioner to get pension and other benefits. The learned counsel did not advance any argument in respect of vires of Regulation 113 of the Pension Regulations for Army, 1961.
17. The learned counsel for the petitioner, Mr.J.S.Manhas, relied upon the following rulings, while dealing with the scope of Section 12 of the Probation of Offenders Act, 1958:
1. “Iqbal Singh Vs. Inspector General of Police & Others”,
2. “Union of India & Others Vs. Tulsiram Patel”,
3. Shankar Dass Vs. Union of India & Another”,
4. “Union of India & Others Vs. Corporal A.K.Bakshi & Another”,
18. Mr.J.S.Manhas, the learned counsel for the petitioner, referred to the following judgments of this Court with reference to the claim for pension:
1. “Hazara Singh Vs. Chief of the Air Staff”, 1982 (1) SLR 521.
2. “A.K.Malhotra Vs. Union of India & Others”, 1997 (4) SLR 151.
19. The learned counsel for the respondents, Ms.Geeta Luthra, submitted that the respondents had acted in accordance with the provisions of the Army Act, 1950 and the Army Rules, 1954, and when the petitioner had been convicted by a criminal court and that conviction had been maintained by the Supreme Court of India, the petitioner cannot rely upon the fact that he was released on probation under Section 360 of the Cr.P.C. and consequently, he cannot press into service the provisions of Section 12 of the Probation of Offenders Act, 1958. The learned counsel submitted that Section 12 of the Probation of Offenders Act, 1958 would not apply to a case arising under the Army Act, 1950, and, therefore, the petitioner is not entitled to any relief in a petition under Article 226 of the Constitution
20. I shall deal with the cases cited at the Bar before going into the facts of the instant case.
21. In “Iqbal Singh Vs. Inspector-General of Police & Others”, , Iqbal Singh filed the writ petition challenging his order of dismissal from service. He was appointed as a Constable by the Commandant, Delhi Armed Police on the 6th of April, 1953. On the 27th of February, 1957, he was promoted as Head Constable and confirmed on that post by order dated 7.3.1963 by the Assistant Inspector-General of Police. When the
petitioner was in his village on leave in August, 1966, he was involved in a criminal case and was tried under Section 336/337 of the Indian Penal
Code. He was convicted under Section 337 of the Indian Penal Code but was given the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958. The appeal by the petitioner therein to Sessions Judge was unsuccessful and the revision petition filed by the petitioner to the High Court met with the same fate. The petitioner was suspended from service in 1966. That was revoked on the 6th of September, 1967 and he was reinstated. After reinstatement, the petitioner therein was sent for training. On the 15th of November, 1968, an order was passed by the authority concerned dismissing him from service. The order of dismissal reads as under:-
“On having been convicted in case FIR No.186 dated 26.8.1966 under Sec. 336/337 Indian Penal Code, PS Shri Hargovind Pur, District Gurdaspur, Head Constable Iqbal Singh No.287/L (now under training at PTC Phillapur) is hereby dismissed from the Force with effect from 15.11.1968.”
He was not convicted under Section 336 IPC. The order of dismissal did not also consider the consequences of the release of the petitioner under Probation of Offenders Act, 1958. One of the main submissions before the Court was that the petitioner having been given the benefit of Section 4 of the Act, the disqualification attaching to his conviction could not form the basis of the order of dismissal and the petitioner would be entitled to the protection under Section 12 of the Probation of Offenders Act, 1958. The Division Bench of this Court, dealing with this contention held that the petitioner had the protection under Section 12 of the Act, and, there-
fore, there was no disqualification. Consequently, the order of dismissal was set aside.
22. Dealing with the scope of Section 12 of the Probation of Offenders Act, 1958, the Division Bench, in “Iqbal Singh Vs. Inspector-General of Police & Others”, , held:
“Section 12 of the Act uses the word “disqualification” and the meaning given to this word in Webster’s Third New International Dictionary is:_
“(i) the act of disqualifying or the state of being disqualified” (protesting his disqualification from office under the new law);
(ii) "something that disqualifies or incapacitates" (A crime conviction is automatically a disqualification for that public office)."
The word “disqualify” is also stated to mean – making someone unfit for something. The further meaning given is that the person may be deprived within the meaning of the word “disqualify” of any right or privilege. We are of the view that the words “disqualification, if any, attaching to a conviction of an offence” as used in Section 12 of the Act would include a person’s losing his right or qualification to remain or to be retained in service. Section 12 of the Act, clearly saves the convict from sufering such disqualification attaching to his conviction. In respect of his conviction, the petitioner had the protection of Section 12 and he was saved from suffering any disqualification such as the one which resulted in his dismissal.”
22. In Union of India & Others Vs. Tulsiram Patel”, , the Supreme Court dealt with the scope of Article 311(2) of the Constitution. At page 1472 (AIR), Rule 19 of the Civil Services Rules was dealt with. That rule reads as under:-
“19. Special procedure in certain cases. Notwithstanding anything contained in rule 14 to 18 _
(i) Where any penalty is imposed on Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or,
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in thee rules.
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit;
Provided that the Commission shall be consulted; where such consultation is necessary, before any orders are made in any case under this rule.”
The Supreme Court dealt with Rule 37 of the CISF Rules, 1969, that is, Central Industrial Security Force Rules, 1969 under the Central Industrial Security Force Act, 1968. Rule 37 of the CISF Rules, 1969 reads as under:-
“37. Special procedure in certain cases _ Notwithstanding anything contained in rule 34, rule 35 or rule 36, where a penalty is imposed on a member of the force_
(a) on the ground of conduct which had led to his conviction on a criminal charge; or
(b) where the disciplinary authority is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules:
the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit.
A member of the force who has been convicted to rigorous imprisonment on a criminal charge shall be dismissed from service. In such cases, no evidence need be given to prove the charge. Only a notice shall be given to the party charged proposing the punishment of dismissal for his having been convicted to rigorous imprisonment and asking him to explain as to why the proposed punishment of dismissal should not be imposed.”
Referring to the duty of the Government, duty of the employer to act in accordance with Article 311, the Supreme Court posited:
“Not much remains to be said about clause (a) of the second proviso to Article 311. To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan’s case . This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant’s conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court’s power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass Vs. Union of India this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.”
Dealing with the case of the respondent, Tulsiram Patel, who was before the Supreme Court, the Supreme Court said:
“The respondent, Tulsiram Patel, was a permanent auditor in the Regional Audit Office, MES, Jabalpur. It appears that orders were issued by Headquarters, CDA, CC, Meerut, stopping the increment of the respondent for one year. One Raj Kumar Jairath was at the relevant time the Regional Audit Officer, MES, Jabalpur. On July 27, 1976, the respondent went to Raj Kumar’s office and demanded an explanation from him as to why he had stopped his increment whereupon Raj Kumar replied that he was nobody to stop his increment. The respondent then struck Raj Kumar on the head with an iron rod. Raj Kumar fell down, his head bleeding. The respondent was tried and convicted under Section 332 of the Indian Penal Code by the First Class Judicial Magistrate, Jabalpur. The Magistrate instead of sentencing the respondent to imprisonment applied to him the provisions of Section 4 of the Probation of Offenders Act, 1958, and released him on his executing a bond of good behaviour for a period of one year. The respondent’s appeal against his conviction was dismissed by the Sessions Judge, Jabalpur. The Controller General of defense Accounts, who was the disciplinary authority in this case, imposed upon the respondent the penalty of compulsory retirement under clause (i) of Rule 19 of the Civil Services Rules. The said order was in the following terms:
“Whereas Shri T.R.Patel, Pt.Auditor (Account No.8295888) has been convicted on a criminal charge, to wit, under Section 332 of IPC.,
Whereas it is considered that the conduct of the said Shri T.R.Patel, Pt.Auditor, (Account No.8295888) which has led to his conviction, is such as to render his further retention in the public service undesirable,
Now, therefore, in exercise of the powers conferred by Rule 19(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the undersigned hereby direct that the said Shri T.R.Patel, Pt.Auditor, (Account No.8295888) shall be compulsorily retired from service with effect from 25.11.1980.”
The respondent thereupon filed a departmental appeal which was dismissed.”
The Supreme Court further proceeded to say:
“Thereafter the respondent filed in the Madhya Pradesh High Court as writ petition under Article 226 and 227 of the Constitution. Relying upon Challappan’s case the High Court held that no opportunity had been afforded to the respondent before imposing the penalty of compulsory retirement on him. It further held that the impugned order was defective inasmuch as it did not indicate the circumstances which were considered by the disciplinary authority except the fact of conviction of the respondent.
We are unable to agree with either of the two reasons given by the High Court for setting aside the order of compulsory retirement. So far as the first ground upon which the High Court proceeded is concerned, as already pointed out that part of the judgment in Challappan’s case is not correct and it was, therefore, not necessary to give to the respondent any opportunity of hearing before imposing the penalty of compulsory retirement on him.
It was, however, argued that the penalty imposed upon the respondent was not dismissal or removal from service but of compulsory retirement and, therefore, clause (a) of le 311(2) did not apply. The argument cannot be accepted. The compulsory reirement of the respondent was not by reason of his reaching the age of superannuation or under other rules which provide for compulsorily retiring a government servant on his completing the qualifying period of service. The order of compulsory retirement in this case was under clause (i) of Rule 19 of the Civil Service Rules and was by way of imposing upon him one of the major penalties provided for in Rule 11. It is now well settled by decisions of this Court that where an order of compulsory retirement is imposed by way of penalty, it amounts to removal from service and the provisions of Article 311 are attracted. (See State of UP Vs. Shyam Lal Sharma , and the cases referred to therein).
The second ground upon which the High Court rested its decision is equally unsustainable. The circumstances which were taken into consideration by the disciplinary authority have been sufficiently set out in the order of compulsory retirement, they being that the respondent’s conviction under Section 332 of the Indian Penal Code and the nature of the Offence Committee which led the disciplinary authority to the conclusion that the further retention of the respondent in the public service was undesirable. The mention of section 332 of the Indian Penal Code in the said order itself shows that respondent was himself a public servant and had voluntarily caused hurt to another public servant in the discharge of his duty as such public servant or in consequence of an act done by that person in the lawful discharge of his duty. The facts here are eloquent and speak for themselves. The respondent had gone to the office of his superior officer and had hit him on the head with an iron rod. It was fortunate that the skull of Raj Kumar was not fractured otherwise the offence committed would have been the more serious one under Section 333. The respondent was lucky in being dealt with leniently by the Magistrate but these facts clearly show that his retention in public service was undesirable. In fact, the conduct of the respondent was such that he merited the penalty of dismissal from government service and it is clear that by imposing upon him only the penalty of compulsory retirement, the disciplinary authority had in his mind the fact that the Magistrate had released him on probation. We accordingly hold that clause (i) of Rule 19 of the Civil Services Rules was rightly applied to the case of the respondent.”
The Supreme Court had noted that the disciplinary authority, while passing the order of compulsory retirement, had in its mind the order of the Magistrate releasing the delinquent on probation. Dealing with the appeals arising under Rule 37 of the CISF Rules, 1969, the Supreme Court held that the disciplinary authority concerned applied Rule 37 (b) of the CISF Rules, 1969 and clause (b) of the second proviso to Article 311(2) were rightly applied to the cases of the delinquent officials.
24. Shankar Dass Vs. Union of India & Another”, , the appellant was working in Delhi Milk Supply Scheme Department a Cash Clerk. He filed a suit challenging the order passed against him and the matter ultimately dealt with by this Court in second appeal being RSA.142/68 and judgment was rendered on the 13th of April, 1971. The learned Single Judge, before whom the matter came for disposal, allowed the appeal. The learned Judge followed the dictum laid down by this Court in “Iqbal Singh Vs. Inspector General of Police & Others”, .
The learned Judge observed:
“In view of the express provisions of Section 12 of the Probation of Offenders Act, 1958, the appellant could not have been removed without compliance of Article 311 of the Constitution of India.”
This was challenged in LPA.No.380/71 and the Division Bench of this Court referred to judgment of the learned Single Judge and dismissed the suit. The Division Bench followed the dictum laid down by a Full Bench of this Court. The Division Bench observed:
Turning now to the merits of the appeal, the points in controversy now stand settled by a decision of the Full Bench of this Court reported as “Director of Postal Services and Another Vs. Daya Nand”, 1972 SLR 325. The facts of the cited case were that Trikha Ram was an employee of the Indian Posts & Telegraphs Department. Trikha Ram along with another was charged under Sections 468/34 and 420/511 Indian Penal Code. Both of them pleaded guilty to the charges and were convicted of the same. Instead of being sentenced, however, they were placed on probation for one year under Section 4 of the Probation of Offenders Act, 1958. Thereupon, Trikha Ram was dismissal under proviso (a) to Article 311(2) of the Constitution of India without being given an opportunity either to rebut any charges or to show cause against any proposed punishment. Dissatisfied with the order of his dismissal, Trikha Ram filed a writ petition in the High Court for quashing of the order of his dismissal. Deshpande J., speaking for the court, held:-
“Proviso (a) to Article 311(2) exempts the punishing authority from compliance with the giving of both these opportunities under Article 311. The reason for the dispensing with both these opportunities by proviso (a) seems to be the following: Firstly, the accused person has a much better opportunity of rebutting the charges against him in a criminal trial as compared to a departmental inquiry. Secondly, the conviction on a criminal charge is generally a greater punishment than the departmental punishment of dismissal, removal, reduction in rank etc. As the accused had an opportunity to show cause why he should not be convicted and sentenced by a criminal court it is thought needless that he should be given an opportunity to show cause against the lesser penalty of a departmental punishment such as a dismissal or removal. At any rate, for whatever reasons, the framers of the Constitution have decided by enacting proviso (a) that both the opportunities in Article 311(2) should be dispensed with.
Whenever a Government servant is convicted of a criminal offence (unless in an exceptional case the charge is a trivial or technical one like a traffic offence) the punishment of dismissal would be inflicted on the convict as a matter of course. It is only in theory that it is true that the punishing authority has to consider which particular punishment should be imposed on the convicted person. In practice, however, continuance of a convict in Government service would be always regarded as undesirable unless the conviction was for a technical offence.
The object of section 12 of the Probation of Offenders Act, 19858 is to remove a disqualification attached to conviction. It does not go beyond it. The object of proviso (a) to Article 311(2) of the Constitution of India is totally different. The criminal trial having given the full benefit of the rule of audi alteram partem of natural justice to the accused person, the framers of the Constitution thought that it would not only be unnecessary but inappropriate and harmful to public interest to allow the convicted person to insist on a second hearing before he is visited with the punishment of dismissal, removal or reduction in rank. This is sound public policy. Its object is that the departmental punishment should follow quickly after the conviction by a criminal court. Government should not be required to keep a convicted person in service and to pay him his salary by having resort to a second inquiry in a departmental proceeding. This object is totally unrelated to the object of section 12 of the Probation of Offenders Act, 1958. It is unthinkable therefore, that the affect of section 12 of the probation of Offenders Act should be that a totally unnecessary second inquiry would have to be held by the Government before punishing an employee who has been convicted after a full criminal trial. This is additional reason why dispensing with the second inquiry by proviso (a) to Article 311(2) of the Constitution of India cannot be regarded as a disqualification within the meaning of Section 12 of the Probation of Offenders Act, 1958.
A fortiori, an ordinary statute of Parliament like the Probation of Offenders Act, 1958 cannot be so construed as to have the effect of amending or modifying proviso (a) to Article 311. Even if it is assumed for the sake of argument that the word “disqualification” used in Section 12 of the Probation of Offenders Act is wide enough to include to Article 311(2), such construction would have the effect of nullifying proviso (a). The word “conviction” had acquired a legal meaning by being used in the Criminal Procedure Code etc., prior to the framing of the Constitution.
The word “conviction” would have to be construed in proviso (a) to Article 311 of the Constitution of India in the same sense in which it was used previously, say in the Criminal Procedure Code, namely, conviction for an offence. After such a conviction a Government employee cannot claim the benefit of second inquiry because of proviso (a) to Article 311. Section 12 of the Probation of Offenders Act, 1958cannot be so construed as to give a new meaning to the word `conviction’ in proviso (a) to Article 311(2), namely, that the disqualification which attached to conviction prior to the enactment of Section 12 of the Probation of Offenders Act would n longer attach to it, even in proviso (a) to Article 311(2) of the Constitution of India. Section 12 of the Probation of Offenders Act, 1958 may modify the Representation of Peoples Act or administrative practice. But it cannot modify a constitutional provision. If it is construed to modify proviso (a) to Article 311(2) of the Constitution of India then Section 12 itself could be held to be ultra vires the Constitution. It is clear that proviso (a) to Article 311(2) of the Constitution of India dispensing with procedure prescribed in Article 311 cannot be regarded as a “disqualification” within the meaning of Section 12 of the Probation of Offenders Act, 1958.”
The learned counsel for the respondent frankly conceded that the judgment of the Full Bench would be applicable to the instant case.”
This judgment of the Division Bench was challenged before the Supreme Court. The Supreme Court in paragraph 4 of the judgment concurred with the view taken by the Division Bench and disapproved the reasoning of the learned Single Judge. In paragraph 4 of the judgment, the Supreme Court observed:
“Section 12 of the Probation of Offenders Act must be placed out of way first. It provides that notwithstanding anything contained in any other law a person found guilty of an offence and dealt with under the provisions of S.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 S.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 “Disqualification 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 “disqualification” is used in S.12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the learned single Judge of the Delhi High Court.”
Dealing with the merits of the case, the Supreme Court held:
“It is to be lamented 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 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 nonparking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Cl.(a) of the second proviso to Art. 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. 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 backwages 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 this appeal which we quantify at Rupees five thousand. The appellant will report for duty punctually at this former place of work on April 1, 1985.”
The Supreme Court, referring to the circumstances to which the appellant before the Supreme Court was placed, observed:
“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 money 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.”
The view taken by the Supreme Court is that Section 12 of the Probation of Offenders Act, 1958 cannot be applied. The decision in “Iqbal Singh Vs. Inspector General of Police & Others”, runs counter to the view taken by the Supreme Court in “Shankar Dass Vs. Union of India & Another”, .
25. In “Rajbir Vs. State of Haryana”, , the appellant before the Supreme Court was convicted for an offence under Section 323 of the Code of Criminal Procedure. The Supreme Court held:
“From the judgment of the High Court it appears that though the sentence imposed for the offence u/s.323 of the Code was six months, the appellant and the co-accused had already suffered over one year’s impriosonment. Ordinarily, in a situation as here, there would be no need to interfere. Learned counsel for the appellant has, however, pressed the appeal as the appellant is in Government service and if the conviction and sentence are maintained, he would lose his service. Both the parties to the assault were close relations. There is no material on the record to indicate that the appellant had any previous conviction. in the absence of such evidence, we treat the appellant as a first offender. he is entitled to be admitted to the benefits of probation under S.3 of the Probation of Offenders Act, 1958, taking into consideration the circumstances of the case, the nature of the offence and the character of the appellant. While maintaining his conviction we direct that he shall be released on probation of good conduct under S.4 of the Act. The Chief Judicial Magistrate, Bhiwani, before whom the appellant is directed to appear within four weeks from today shall release him after due admonition. We do not consider it necessary to direct him to enter into a bond in the facts of the case.”
The Supreme Court released the appellant on probation of good conduct, under Section 4 of the Probation of Offenders Act, 1958. It is significant to notice that the Supreme Court took note of the fact that if the convition and sentence are maintained, the appellant therein would lose his
26. In “Swarn Singh Vs. State Bank of India & Another”, 1986 (Supp) SCC 566, following the view taken in Shanker Dass’s case , the Supreme Court passed the following order:-
“The contention that the petitioner having been released under Section 4 of the Probation of Offenders Act, 1958, the disqualification attaching to his conviction for having committed an offence punishable under Section 61(1)(a) of the Punjab Excise Act, 1914 stood removed by Section 12 of the Act, cannot prevail. The matter is concluded by the recent decision of this Court in Shankar Dass Vs. Union of India, . In that case the court has laid down that conviction on a criminal charge was not a disqualification falling within the purview of Section 12 of the Act. It also referred to clause (a) of the second proviso to Article 311(2) of the Constitution which confers a power on the government to dismiss a person “on the ground of conduct which has led to his conviction on a criminal charge”. It cannot therefore be said that the State Bank of India could not take recourse to Section 10 of the Banking regulations Act, 1949 in directing the removal from service of the petitioner upon his conviction under Section 61(1)(a) of the Act as he was guilty of conduct which led to his conviction by the criminal court involving moral turpitude.
The special leave petition is accordingly dismissed.”
27. In “Trikha Ram Vs. V.K.Seth & Another”, , The Supreme Court altered the punishment of dismissal into removal of service so that the order of punishment did not operate as a bar and disqualification for
future employment in any other organisation.
28. In “Union of India & Others Vs. Bakshi Ram”, , the Union of India challenged the judgment of the Rajasthan High Court taking the view that the respondent was entitled to the benefits of Section 12 of the Probation of Offenders, 1958 and the respondent did not suffer any disqualification. The respondent was prosecuted for an offence under Section 10(1) of the Central Reserve Police Force Act, 1949. The Magistrate(Ist Class) and Commandant Group Centre, CRPF, Deoli(Rajasthan) sentenced him to undergo RI for four months. In view of the conviction and sentence, the Department dismissed him from service. The respondent before the Supreme Court had preferred an appeal before the Sessions Judge and the learned Sessions Judge, by judgment dated 22.9.1971, upheld the conviction but released him under Probation of Offenders Act, 1958 and released him under Section 4 of that Act upon furnishing a bond, as required. After expiry of the period of good conduct, as mentioned in the judgment of the learned Sessions Judge, the respondent, before the Supreme Court, moved the
High Court of Rajasthan challenging the order of dismissal against him.
29. The High Court of Rajasthan, relying upon the Section 12 of the Probation of Offenders Act, 1958, set aside the order of dismissal and directed his reinstatement in service. The High Court took the view that there was no disqualification for him to continue in service. That was challenged before the Supreme Court. Dealing with the scope of the conviction by a criminal court, the Supreme Court observed:
“In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The Court while invoking the provisions of S.3 or 4 of the Act does not deal with conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the Court release him on probation of good conduct. The conviction however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. See Art. 311(2)(b) of the Constitution and Tulsiram Patel case, .”
Dealing with the scope of Section 12, the Supreme Court observed:
“Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The Section was not intended to exonerate the person from departmental punishment. The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise. That seems obvious from the terminology of S.12. On this aspect, the High Courts speak with one voice. The Madras High Court in R. Kumaraswami Aiyer Vs. The Commissioner, Municipal Council, Tiruvannamalair, 1957 Cri LJ 255 and Embru (P) Vs. Chairman Madras Port Trust, (1963) 1 Lab LJ 49 (Mad) the Andhra Pradesh High Court in a. Satyanarayana Murthy Vs. Zonal Manager, LIC, the Madhya Pradesh High Court in Prem Kumar Vs. Union of India, 1971 Lab IC 823; The Punjab & Haryana High Court in Om Prakash Vs. The director Postal Services (Posts and Telegraph Deptt.) . The Delhi High Court in Director of Postal Services Vs. Daya Nand, 1972 Serv LR 325 : 1972 Lab IC 736 have expressed the same view. This view of the High Courts in the aforesaid cases has been approved by this Court in T.R. Challappan’s case, .”
Ultimately, the Supreme Court observed:
“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 S.12 stands removed. That in effect is the scope and effect of S.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 S.12 and the order of the High Court cannot, therefore, be sustained.”
The dictum laid down by the Supreme Court is clear.
30. In “Additional DIG of Police, Hyderabad Vs. P.R.K. Mohan”, , the scope of Section 12 of the Probation of Offenders Act, 1958 was dealt with by the Supreme Court. A Division Bench of the Andhra Pradesh
High Court held that as the respondent, before the Supreme Court, was dealt with under Section 12 of the Probation of Offenders Act, 1958, the order of dismissal was liable to be quashed on that ground alone. The learned Single Judge had observed that it cannot preclude the competent authorities from
taking appropriate disciplinary proceedings. The Supreme Court held:
“It is settled law that Section 12 of the Probation of Offenders Act, 1958 does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The section was not intended to exonerate the person from departmental punishment. It was clarified; the section only directed 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. This Court, therefore, held that merely because a sentence of imprisonment has been substituted by an order passed under Section 12 of the Probation of Offenders Act, 1958, the effect of the conviction is not obliterated altogether and it would be open to the authorities to take departmental proceedings on the basis thereof (see Union of India Vs. Bakshi Ram, . Therefore, the observation of the appellate court on the interpretation of Section 12 is not correct.
But the learned Single Judge as well as the Division Bench while setting aside the order of punishment observed that the authorities/department will not be precluded from taking appropriate disciplinary action against the delinquent. Since we have clarified the law on the subject, the only thing left for the authorities would be to consider the effect of the modification in the order of sentence from imprisonment to probation and pass a fresh order whether under Section 12 of the CRPF Act or dehors that provision. We do not think it necessary to interfere as we have indicated the scope of the fresh order to be passed by the authorities. We dispose of this appeal accordingly with no order as to costs.”
31. In “Hari chand Vs. Director of School Education”, , the Supreme Court followed the principle laid down in Shankar Dass Vs. Union of India & Another”, . The appellant before the Supreme Court was for an offence under Section 408 IPC and was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,000/- The Sessions Court, in appeal, upheld the conviction and set aside the sentence and directed that the appellant be released on probation under Section 4(1) of the Probation of Offenders Act, 1958. As the appellant was convicted for an offence under Section 408 IPC, the appellant was dismissed from service by the Director of School Education. That was challenged before the High Court of Punjab & Haryana. By order dated 25.3.1985, that was dismissed, which was challenged before the Supreme Court. The High Court of Punjab & Haryana took the view, “as the appellant has been released on probation, this would not affect his service career in view of the Section 12 of the Probation of Offenders Act, 1958”. The Supreme Court held:
“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, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from Government service.”
32. In view of the law laid down by the Supreme Court, the facts of the instant case have to be noticed. On the 30th of July, 1991, the petitioner was dismissed from service on the basis of conviction by the criminal court. The matter was ultimately carried in appeal before the Supreme Court. On the 11th of May, 1994, the Supreme Court passed the following
order in Criminal Appeal No.281/94 filed by the petitioner/ Ved Prakash:
The appellant has been convicted for the offence under Section
323 IPC and has been sentenced for the period of imprisonment already undergone. The learned counsel for the appellant has pointed out that the appellant was employed as Havaldar in the Army and had served in the Army for more than 15 years and as a result of the sentence of imprisonment which has been imposed on his, he has lost his job. The learned counsel submits that if instead of being sentenced to imprisonment the benefit of the provisions of Section 360 Cr.P.C. is granted to the Appellant he would be able to approach the authorities for consideration of his case.
We have considered the facts and circumstances of the case and having regard to the nature of the offence for which the appellant has been convicted we consider it a fit case in which the benefit of Section 360 Cr.P.C. should have been given to the appellant. The appeal is, therefore, allowed. The conviction ofthe appellant under Section 323 IPC is maintained but the sentence of imprisonment will stand substituted by an order for release on probation under Section 360 Cr.P.C. on his furnishing a personal bond with one surety to the satisfaction of the Additional Sessions Judge, Bhiwani to keep the peace and be of good behaviour for a period of one year.”
On the 23rd of August, 1994, the petitioner made a representation to the OIC Records, Raj RIF Records Officer, Delhi Cantt, which reads as under:-
“1. I, No.2870389K Ex-Hav (GD) Ved Prakash Sangwan has served in Army from 29 May 1976 to 15 July, 1991 for the period of 15 years 1 month 18 days.
2. Consequent to my conviction by High Court for offence punishable under Section 302 IPC, I was dismissed from the Army service by Commander 170 Inf Bde vide AA Sec 20(3) of Army Act, 1950 w.e.f. 16 July, 1991.
3. The said conviction has been set aside by the order of Hon’ble Supreme Court except the conviction under Section 323 IPC. Accordingly, the sentence of imprisonment has been substituted by an order for release on probation under Section 360 Cr.P.C. on furnishing a personal bond with one surety (copy of the order of Hon’ble Supreme Court is attached herewith as Annexure 1).
4. I have already furnished a personal bond with one surety before Additional Sessions Judge, Bhiwani as required by the aforesaid order of the Supreme Court (copy of the same is attached as Annexure 2).
5. In view of the above, since my sentence of conviction for offence has been substituted by an order of release by the Hon’ble Supreme Court of India, it is humbly requested that my order of dismissal may kindly be re-considered and the same be substituted by an order of discharge so that I may be eligible to draw my service pension and other benefits applicable to Exservicemen.”
On the 18th of October, 1996, the Record Officer, OIC Records wrote to the petitioner stating:
“1. Refer to your application dated 07 August, 1994.
2. Your case has been turned down by Ministry of defense. In view of above you cannot be reinstated in the Army and no pensionary benefits re-admissible to you.”
33. The effect of the order of the Supreme Court dated 11.5.1994 is that the respondents could act under Rule 17 of the Army Rules, 1954. That Rule reads as under:-
17. Dismissal or removal by Chief of Army Staff and by other officers._Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal court or a court-martial, no person shall be dismissed or removed under sub-section (1) or sub-section (3) of Sec. 20, unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service;
Provided that if the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may, after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government.”
34. The question, in the light of the law laid down by the Supreme Court and the rulings referred to above, is: “Whether the respondents could act under Rule 17 of the Army Rules, 1954 and pass an order of dismissal against the petitioner?” There is no provision in the Army Act, 1950 and the Army rules, 1954 dealing with the situation where a court of law had released a person on probation of good conduct. At the time when the Army Act was enacted in 1950, there was a provision in the Criminal Procedure Code. Therefore, while considering a case of an accused who had been released on probation, his case has to be considered in the light of the order passed by the Court releasing him on probation. When services of such a person are dispensed with by the department concerned, it would not amount to dismissal or removal within the meaning of Rule 17 of the Army Rules, 1954. Rule 17 of the Army Rules, 1954 does not contemplate a case where any Army personnel had been released on probation of good conduct. The order of the Supreme Court in the instant case has to be given effect to. The respondents are bound by it by virtue of Article 141 of the Constitution of India. the power exerciseable under Rule 17 of the Army Rules, 1954 is subject to the order of the Supreme Court. The question, inter alia, arises, could it be said that after an Army personnel is released on probation of good conduct, he can be dismissed from service on the premise that his conviction is maintained by the Supreme Court. The legal effect of the order of the Supreme Court is that no doubt the conviction remains, but it gets dissolved in the order of the Supreme Court without, in any way, affecting the right of the Army personnel to get his pension. The services of the Army personnel could be dispensed with. If that is not so, full effect of the order of the Supreme Court cannot be achieved and the order of the Supreme Court would become brutum fulmen. Such a situation is not envisaged in the Constitution of India.
35. Regulation 113 of the Pension Regulations for Army, 1961 reads as under:-
Individuals dismissed or discharged under the Army Act
113. (a) An individual who is dismissed under the provisions of the Army Act, is ineligible for pension or gratuity in respect of previous service.
(b) An individual who is discharged under the provisions of Army Act and the rules made thereunder remains eligible for pension or gratuity under these Regulations.”
The right of a person to get pension has to be considered as per this regulation, if he is discharged from service. The words ‘discharge’, ‘dismissal’ or ‘removal’ are not defined in the Army Act, 1950 and the Army Rules, 1954. In the service jurisprudence, when a person is dismissed from service, there is no chance of his getting employment elsewhere. But if a person is discharged from service, that would not affect his rights to get pension and other benefits. This Court had an occasion to consider the scope of an order passed by the defense Department where services of a person were dispensed with invoking power under Section 18 of the Air Force Act, 1950. That Section reads as under:-
“18. Tenure of service under the Act._Every person subject to this Act shall hold office during the pleasure of President.
The doctrine of Presidential pleasure._The constitutional power of the President under Art. 310 and Sec. 18 of the Act could not possibly be judged on the touchstone of Art. 14 of the Constitution of India. An individual act of the President in exercise of that power may perhaps be capable of being judged at that touchstone where for example two similarly situated officers may have been differently dealt with but that situation does not obtain in the present case because it is not the case of the petitioner that a similarly situated officer, as he was, was differently dealt with. Even if the two powers, the power of the President under Art. 310 and under Sec. 18 of the Act and the power of the Central Government under Sec. 19 of the Act may ultimately, having regard to the Government of India (Allocation of Business) Rules, 1961, be exercisable by the same authority. The foundation of the two powers is distinct and could not be ignored. The former is found in the Constitution and is the Presidential power which the Central Government is competent to exercise by virtue of the Government of India (Allocation of Business) Rules, 1961. The power of the Central Government is a statutory power which it is competent to exercise by virtue of being the Central Government. The two powers could not, therefore, be equated in the matter of testing if they are capable of being abused, or be subjected to colourable exercise.”
36. This Court dealt with that aspect in LPA.94/75 by judgment dated 24.8.1981 in “Hazara Singh Vs. Union of India etc.”. In the LPA, the Division Bench dealt with the order of the learned Single upholding the order of the President dismissing the appellant from service. The appellant was also denied the pensionary benefits. He filed CWP.1129/79. Both the LPA and
the writ petition were heard by the Division Bench. Separate judgments were rendered by the Division Bench. The judgment rendered in the writ petition is reported in “Hazara Singh Vs. Chief of the Air Staff”, 1982 (1) SLR 521.
37. The learned counsel for the petitioner, Mr.J.S.Minhas, referred to the judgment of the Division Bench in the above cited case.
38. The appellant in the LPA before the Division Bench was granted Commission on the 4th of November, 1949 and on the 16th of March, 1971, the appellant, when he was working as Wg.Commander, was issued with a showcause notice. On the 21st of September, 1971, an order was passed under section 18 of the Air Force Act, 1950 dismissing the appellant from service with immediate effect. The Division Bench observed:
“Though we, therefore, uphold the impugned order and will affirm the judgment of the single judge we cannot but observe that in case the power is exercised under Section 18 in terms of Article
310 of the Constitution it would be advisable for the authorities to avoid using the word `Dismissal’ which in common parlance does amount to punishment and amounts to casting a stigma on an employee. But for the fact that the appellant is a member of the defense forces, and action is under Section 18 of the Act, the use of the word `dismissal’ would have made the order bad if no enquiry had been held previously. The reason is that because the Act also by Sec. 10 provides that if a person is to be penalised an enquiry must precede it. If therefore the President chooses to exercise his pleasure under Article 310 he may simply terminate
an employee’s service without using the word `dismissed’ which has in common parlance come to mean termination by way of punishment. It is well to remember that it not only necessary that justice is done but that it must seem to be done. It is essential to give a greater assurance to the members of armed force (who do not enjoy many of the statutory safeguards enjoyed by members of civil services) and who must be reassured that a serious application of mind was made at the highest before taking action against him. We need not say more.”
There, having rejected the case of the petitioner that the order of dismissal should be set aside, the respondents dealt with his claim for pension. By memo dated 27.4.1979, the petitioner in the writ petitioner was asked to show cause why his pension should not be forfeited under Regulation 16(a) of the Pension Regulations. By Order dated 4.6.1979, the pension was forfeited. The argument before the Division Bench was that the respondents therein were not entitled to invoke the power under Regulation 16(a) of the Pension Regulations as the services of the petitioner were dispensed with under pleasure doctrine envisaged in Article 310 of the Constitution
of India and the Section 18 of the Air Force Act, 1950. The question posed by the Division Bench was:
“That real question that calls for determination is whether Regulation 16 (a) will apply to the case of a person against whom dismissal or removal order is not passed as a measure of punishment as provided in the Act but he is dismissed from service under the pleasure doctrine of the President.”
Regulation 16(a) Section 1, Chapter II of the Pension Regulations for Air Force, 1961 reads as under:-
“When an officer who has to his credit the minimum period of qualifying service required to earn a pension, is cashiered or dismissed or removed from the service his pension may, at the discretion of the President, be either forfeited or be granted at a rate not exceeding that for which he would have otherwise qualified, had he required on the same date.”
The Division Bench held:
“Now, it would be understandable if as a consequence of court martial or the enquiry under the Act and Rules a person is dismissed or cashiered, where he has had full opportunity to meet the charge and to prove his innocence, but has failed and thereafter, an order forfeiting pension is made. In such a course the officer would know the reasons for proceeding against him and could in answer to proceedings under Regulation 16(a) show that no order of forfeiture or total forfeiture of pension should be made. But where, as in the present case dismissal is in exercise of Presidential pleasure under Article 310 of Constitution read
with Section 18 of the Act. It is apparent that no reasons will be told or known to the officer. In such a case if Regulation 16(a) could be invoked it would virtually amount to condemning and depriving a person of his pension without giving him an opportunity because in such a situation what could, an officer say, in his defense, when he does not know the reason why Presidential pleasure has been withdrawn from him. These considerations lead us irresistible to the conclusion that resort could only be had to Regulation 16(a) if it had been preceded by an order of dismissal, or cashiering either in pursuance of a court martial trial or in pursuance of an action taken under Section s 19 and 20 of the Act and the rules. As admittedly none of the eventualities were present the condition precedent to taking action under Pension Regulation 16(a) were lacking. The respondents seek to justify the action under Regulation 16(a) on the sole ground of use of the word `dismissed’, even when the order of 21.2.1971 is passed under Section 18 of the Act. Though the pleasure doctrine is quite all embracing still we must not forget that our Constitution abhors arbitrariness, and proclaims clearly that it is a government of laws and not of men that we are having, so that interpretation which permits an unfettered way of arbitrary action must necessarily receive short shrift when interpretation of statute is given by the courts. We are of the view that the jurisdiction to take action under Pension Regulation 16(a) arises only when an officer has been dismissed or cashiered, as a measure of punishment. Admittedly that is not the case in the present instance. Thus the President lacked the jurisdiction to proceed against the petitioner under Pension Regulation 16(a). The impugned order of 4.6.1979 is, therefore, without authority of law and deserves to be quashed.”
The Division Bench issued a writ of mandamus directing the respondents to pay pension to the petitioner. The situation in the instant case is different as there was no conviction by a criminal court. Even though there is conviction as the petitioner had been dealt with under the Probation of Offenders Act, 1958, as observed by the Supreme Court in “Union of India &
Others Vs. Tulsiram Patel”, , the respondents ought to have considered the case of the petitioner for the grant of pension.
39. The learned counsel for the petitioner, Mr.J.S.Manhas, heavily relied on a judgment of this Court in “A.K.Malhotra Vs. Union of India & Others”, 1997 (4) SLR 151. In that case, a Full Bench of this Court had to consider the scope of Regulation 16(a) of the Pension Regulations, 1961 and Rules 14(5) and 15 of the Army Rules, 1954 on a reference made by a learned Single Judge of this Court. The petitioner before the Full Bench was tried by GCM and he was found guilty of a few charges. The punishment imposed was cashiering, rigorous imprisonment for six months and forfeiting all arrears of pay and allowances and other public money due to him at the time of cashiering. When the matter went to the Chief of Army Staff for confirmation, the Chief of the Army Staff confirmed first two sentences. With reference to the third forfeit ring of pay and allowances, that was remitted. That means the sentence imposed by the Court Martial with reference to forfeit ring stood set aside. The orders were promulgated on the 16th of March, 1991. The petitioner in that case retired on the 31st of May, 1990 and he was initially paid a provisional pension. On the 13th of November, 1992, a show-cause notice was issued to him under Regulation 16(a) of the Pension Regulations for Army, 1961 as to why his pension should not be forfeited. On the 4th of January, 1994, the President of India passed an order forfeiting the entire pensionary benefits of the petitioner therein. That was challenged before this Court. Making a comparative study of the rights of persons in civil service and in the Army, the Full Bench observed:
(i) While a person employed in the civil services can be sentenced by an ordinary Criminal Court, the said Criminal Court does not have power to dismiss the person from service nor reduce him in rank nor order that his retiral or other benefits be forfeited. But the position of those governed by the Army Act is different. The Court Martial has power under Section 71 of the Army Act-as part of the power to impose punishments-to order dismissal, reduction of rank/forfeiture of pay, pension etc.
(ii) Again while a person employed in the civil service and who is later dismissed from service after a departmental inquiry or consequent to conviction by an ordinary Criminal Court is not entitled to pension, the position in the Army is different. Army personnel, even if dismissed from service either in a departmental inquiry or who are cashiered pursuant to Court Martial, can be granted pension under Regulation 16(a) wholly or in part. To that extent, the Army personnel are better placed than those in civil services.”
Rule 14(5) of the Army Rules, 1954 was empowered to terminate the service of Army personnel for misconduct after a departmental inquiry, or conviction by an ordinary criminal court with or without pension.
40. The situation is similar to the position that would emerge on a reading Rule 17 of the Army Rules, 1954 and Regulations 113 of the Pension Regulations for Army, 1961. The Full Bench, in “A.K.Malhotra Vs. Union of India & Others”, 1997 (4) SLR 151. ultimately, held:-
“From the aforesaid rulings, the legal position can be summarised as follows: Under Regulations 3 and 4 so far as pension is concerned and Regulations 2A and 4 so far as gratuity is concerned, army personnel have normally a right to pension or gratuity and other benefits to the extent the Court Martial has not, as a measure of punishment for an offence, though it fit to deprive them of. It is then in the discretion of the President acting under Regulation 16(a) to forfeit a part of whole of their pension. This discretion is not absolute. Merely because the punishment of cashiering, dismissal or removal has been imposed by the Court Martial, the pensionary benefits under Regulation 16(a) or other benefits do not stand forfeited. On the other hand, the fact that upto the date of the offences which were the subjectmatter of Court Martial proceedings, the service was satisfactory and the fact that the Court Martial had not thought it fit to forfeit the whole or part of pensionary or other benefits, ought to be taken into account by the Competent Authority under Regulation 16(a). Even while considering these later factors, the normal rule is that pensionary and other benefits are to be granted unless the Competent Authority comes to the conclusion that the service of the officer taken as a whole was not satisfactory from the beginning or unless the offences which are proved and for which he has been sentenced are so extraordinarily grave that the entire previous satisfactory service is to be excluded from consideration. That would be a rare situation. Indeed if the offence committed was so extraordinarily grave, one would have expected the Court Martial itself to forfeit the pensionary or other benefits. If, therefore, the Court Martial, in a given case, did not think that the offences wiped out the rights accrued from and otherwise satisfactory service, then the Competent Authority must, in our view record good reasons as to why the normal rule of granting pensionary and other benefits is not to be followed and as to why the authority thinks that this is an extraordinarily grave case where these benefits should be totally or partially cut. The reference is answered accordingly.
Applying the aforesaid principles to the show cause notice and the order of punishment, we are satisfied on perusal of the record which has been placed before us by the Government that neither the impugned order nor the record produced before us contains any indication that the above principles were borne in mind by the Competent Authority. If the Court Martial did not think of forfeiting the pension and other benefits (and in fact the third sentence of depriving these benefits was set aside on revision), then good reasons must be recorded or assigned for not following the normal rule of grant of pension etc., if the service was otherwise satisfactory upto the date of commission of these offences. No extraordinary grave situation referable to an offence which had the effect of wiping out the otherwise satisfactory service has been relied upon nor recorded. The fact that provisional pension was given from 1.6.90 for a few years was also not taken into account. It is clear to us that an assumption was made, which is not warranted by law, that the very sentence of cashing and 6 months R.I was sufficient to require denial of full pensionary benefits (vide Flag A, Note 38 and page 5 B (Zila Sainik Board’s report). We have, therefore, no option but to quash the impugned order.”
The Full Bench posited:
We quash the impugned order for the aforesaid reasons. The quashing of the order would naturally require the respondents to reconsider the matter in the light of the legal principles laid down above. We order accordingly.”
The ultimate decision of the Full Bench is:
“A further question has arisen as to whether in respect of these pension matters, we should leave the parties to fight out a fresh litigation in the event the respondent passing an order adverse to the petitioner wholly or partly. Having regard to the long delay in the matter and on a consideration of the facts and submissions, we have though it fit to issue the following directions:
1. The respondents will issue a supplemental show cause notice, consider the reply of the petitioner and pass fresh orders in the light of what is stated above, within 6 months from today.
2. The supplemental show cause notice, reply thereto and the decision taken will be filed in the writ petition.
3. In case the orders go in favour of the petitioner no question arises. In case, however the petitioner is not satisfied with the order, he can file objections to the same and the correctness of the order can be decided thereafter rather than drive the petitioner to a fresh writ petition and an LPA etc. The respondents have not rejected to this course.
The writ petition is allowed, the impugned order is quashed and the petition is disposed of in terms of the above directions. The respondent will decide afresh his entitlement to pension, gratuity and other retiral benefits including leave encashment.”
Here also, the situation is different as there is no conviction by a criminal court.
41. The legal position which emerges out of the above discussion is that if a person is released on probation by a criminal court after maintaining the conviction, at the time of dispensing with the services, it is incumbent on the respondents to consider the past service of the personnel and then decide whether even though the personnel had been released on probation of good conduct, he could be deprived of his pension. The petitioner had averred in the writ petition that he was promoted to the rank of Havaldar on merit in normal course. He was not awarded any minor or major punishment during his service. He was sent for training as a Unit Instructor Signals and other courses obtaining very high grading. The petitioner stated that the criminal case was set up against him owing to some rivalry among the relations. The respondents have not denied these facts in the counter. In the letter dated 18.10.1996, no reasons have been given by the respondents. As mentioned in paragraph 12 of the counter-affidavit, which is already extracted, the only answer given with reference to the claim of pension is that the petitioner is dismissed from service. Under the circumstances, this is no answer at all in law. The respondents had failed to act in accordance with law in dealing with the claim of the petitioner for pension. The Record Officer, while communicating the order of Ministry of defense, had dealt with the claim of reinstatement and had stated that no pensionary benefit is admissible to the petitioner. This is no consideration in accordance with law.
42. The case presents a situation suigeneris with reference to the right of an Army personnel like the petitioner being dealt with under Rule 17 of the Army Rules, 1954 when he is released under Probation of Offenders Act, 1958 by the Supreme Court. The point is res integra. The order passed by the respondents sending the petitioner out of service cannot be characterised as dismissal or removal or discharge simplicitor. The word ‘discharge’ has its own connotation in the light of Section 23 of the Army Act, 1950 and the Rules 11 & 12 of the Army Rules, 1954. The petitioner’s services can be dispensed with under Rule 17 in view of the conviction, but in the light of the order of the Supreme Court dated 11.4.1994, the right of the petitioner to get pensionary benefits cannot be denied. Keeping in view the comparative study of the rights of persons in civil service and in the Army by the Full Bench of this Court in “A.K.Malhotra Vs. Union of India & Others”, 1997 (4) SLR 151, it is hereby declared that the order passed by the respondents dismissing the petitioner from service is only dispensing with his services. The letter dated 18.10.1996 denying the pensionary benefits to the petitioner is set aside.
43. The respondents shall grant pensionary benefits to the petitioner in view of his past service and orders to that effect shall be issued by the respondents on or before the 30th of June, 2000.
44. The writ petition stands allowed to the above extent.
45. There shall be no order as to costs.