{"id":12120,"date":"2000-05-04T00:00:00","date_gmt":"2000-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hav-ved-prakash-sangwan-vs-union-of-india-on-4-may-2000"},"modified":"2017-04-11T13:00:30","modified_gmt":"2017-04-11T07:30:30","slug":"hav-ved-prakash-sangwan-vs-union-of-india-on-4-may-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hav-ved-prakash-sangwan-vs-union-of-india-on-4-may-2000","title":{"rendered":"Hav. Ved Prakash Sangwan vs Union Of India on 4 May, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Hav. Ved Prakash Sangwan vs Union Of India on 4 May, 2000<\/div>\n
Equivalent citations: 2000 VAD Delhi 749<\/div>\n
Author: K Ramamoorthy<\/div>\n
Bench: K Ramamoorthy<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
K. Ramamoorthy, J.<\/p>\n
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.\n<\/p>\n
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:-\n<\/p>\n
     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.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
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.\n<\/p>\n
4.   On the 18th of August, 1991, another communication dated 18.8.1991 was sent to the petitioner. The same is as under:-\n<\/p>\n
     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<\/p>\n<\/blockquote>\n
     1.  You  have  been convicted by  Addl  Sessions  Judge,  Bhiwani (Haryana)  in your above mentioned civil case and  awarded  life-imprisonment.\n<\/p><\/blockquote>\n
     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).\n<\/p><\/blockquote>\n
     3. Please acknowledge receipt of this letter.”\n<\/p><\/blockquote>\n
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.\n<\/p>\n
6.   On  the 16th of May, 1994, a Discharge Certificate was issued  by  the Record Officer, OIC Records and the same reads as under:-\n<\/p>\n
     DISCHARGE CERTIFICATE IN LIEU OF IAFY-1964    <\/p>\n
     (Issued in accordance with Army Act Section 23 and Army Rule 12).\n<\/p><\/blockquote>\n
     Army Number: 2870389K Rank: Havaldar(GD) <\/p>\n
     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.\n<\/p><\/blockquote>\n
     His dismissal takes effect from 16th July, 1991.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
7.   On  the 2nd of June, 1994, the Brigadier Commander had written to  the father of the petitioner:\n<\/p>\n
     Reg: Pension & re-instatement into service.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     3.  Such a person is not entitled to pension or other  pensionary benefits.”\n<\/p><\/blockquote>\n
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:\n<\/p>\n
     RE-INSTATEMENT INTO SERVICE.\n<\/p><\/blockquote>\n
     1.  Reference  our letter No.RNE\/X dated 2.6.94 and  your  letter dated Nil May 1994.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
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.\n<\/p>\n
10.  By letter dated 18.10.1996, the request of the petitioner was  rejected, including the claim for pension. The letter reads as under:\n<\/p>\n
     “1. Refer to your application dated 07 August, 1994.\n<\/p>\n
     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.”\n<\/p>\n
11.  On the 6th of February, 1997, the writ petition was presented in  this Court.\n<\/p>\n
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
\nconsidered  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
\nof the Constitution of India<\/p>\n
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,
\nBhiwani. 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:\n<\/p>\n
     “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.”\n<\/p>\n
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:\n<\/p>\n
     “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.”\n<\/p><\/blockquote>\n
     It is stated in paragraph 4 of the rejoinder by the petitioner:\n<\/p><\/blockquote>\n
     “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.”\n<\/p><\/blockquote>\n
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.\n<\/p>\n
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
\nCourt  in  the light of the provisions of Section 12 of  the  Probation  of
\nOffenders 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.\n<\/p>\n
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:\n<\/p>\n
     1.  “Iqbal Singh Vs. Inspector General of Police &  Others”,  <\/p>\n<\/blockquote>\n
     2. “Union of India & Others Vs. Tulsiram Patel”, <\/p>\n<\/blockquote>\n
     3. Shankar Dass Vs. Union of India & Another”, <\/p>\n<\/blockquote>\n
     4.  “Union of India & Others Vs. Corporal A.K.Bakshi &  Another”, <\/p>\n<\/blockquote>\n
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:\n<\/p>\n
     1.  “Hazara Singh Vs. Chief of the Air Staff”, 1982 (1) SLR 521.\n<\/p>\n
     2.  “A.K.Malhotra Vs. Union of India & Others”, 1997 (4) SLR 151.\n<\/p>\n
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
\nof India.\n<\/p>\n
20.  I  shall  deal with the cases cited at the Bar before going  into  the facts of the instant case.\n<\/p>\n
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
\npetitioner 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
\nCode.  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:-\n<\/p>\n
     “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.”\n<\/p>\n
     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-\n<\/p>\n
fore,  there was no disqualification. Consequently, the order of  dismissal was set aside.\n<\/p>\n
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:\n<\/p>\n
     “Section  12 of the Act uses the word “disqualification” and  the meaning  given to this word in Webster’s Third New  International Dictionary is:_ <\/p>\n
     “(i) the act of disqualifying or the state of being disqualified” (protesting his disqualification from office under the new law);\n<\/p><\/blockquote>\n
 (ii) \"something          that\ndisqualifies        or\nincapacitates\"\n          (A crime conviction is\n          automatically a disqualification for that\n          public office).\"\n\n \n\n<\/pre>\n
     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.”\n<\/p><\/blockquote>\n
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:-\n<\/p>\n
     “19. Special procedure in certain cases. Notwithstanding anything contained in rule 14 to 18 _<\/p>\n<\/blockquote>\n
     (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<\/p>\n<\/blockquote>\n
     (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, <\/p>\n<\/blockquote>\n
     (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.\n<\/p><\/blockquote>\n
     the disciplinary authority may consider the circumstances of  the case and make such orders thereon as it deems fit;\n<\/p><\/blockquote>\n
     Provided  that  the Commission shall be  consulted;   where  such consultation is necessary, before any orders are made in any case under this rule.”\n<\/p><\/blockquote>\n
     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:-\n<\/p><\/blockquote>\n
     “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_<\/p>\n<\/blockquote>\n
     (a) on the ground of conduct which had led to his conviction on a criminal charge; or<\/p>\n<\/blockquote>\n
     (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:\n<\/p><\/blockquote>\n
     the disciplinary authority may consider the circumstances of  the case and pass such orders thereon as it deems fit.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     Referring  to the duty of the Government, duty of the employer to  act in accordance with Article 311, the Supreme Court posited:\n<\/p><\/blockquote>\n
     “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.”\n<\/p><\/blockquote>\n
     Dealing  with  the  case of the respondent, Tulsiram  Patel,  who  was before the Supreme Court, the Supreme Court said:\n<\/p><\/blockquote>\n
     “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:\n<\/p><\/blockquote>\n
     “Whereas Shri T.R.Patel, Pt.Auditor (Account No.8295888) has been convicted  on  a criminal charge, to wit, under  Section  332  of IPC., <\/p>\n
     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, <\/p>\n
     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.”\n<\/p><\/blockquote>\n
     The  respondent thereupon filed a departmental appeal  which  was dismissed.”\n<\/p><\/blockquote>\n
     The Supreme Court further proceeded to say:\n<\/p><\/blockquote>\n
     “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.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     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).\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
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”, .\n<\/p>\n
The learned Judge observed:\n<\/p>\n
     “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.”\n<\/p><\/blockquote>\n
     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:\n<\/p><\/blockquote>\n
     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:-\n<\/p><\/blockquote>\n
     “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.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     The  learned  counsel  for the respondent frankly  conceded  that  the judgment of the Full Bench would be applicable to the instant case.”\n<\/p><\/blockquote>\n
     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:\n<\/p><\/blockquote>\n
     “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.”\n<\/p><\/blockquote>\n
     Dealing with the merits of the case, the Supreme Court held:\n<\/p><\/blockquote>\n
     “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.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     The Supreme Court, referring to the circumstances to which the  appellant before the Supreme Court was placed, observed:\n<\/p><\/blockquote>\n
     “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:_ <\/p>\n
     “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.”\n<\/p><\/blockquote>\n
     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”, .\n<\/p><\/blockquote>\n
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:\n<\/p>\n
     “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.”\n<\/p>\n
     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
\nservice.\n<\/p>\n
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:-\n<\/p>\n
     “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.\n<\/p>\n
     The special leave petition is accordingly dismissed.”\n<\/p>\n
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
\nfuture employment in any other organisation.\n<\/p>\n
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
\nHigh Court of Rajasthan challenging the order of dismissal against him.\n<\/p>\n
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:\n<\/p>\n
     “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, .”\n<\/p><\/blockquote>\n
     Dealing with the scope of Section 12, the Supreme Court observed:\n<\/p><\/blockquote>\n
     “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, .”\n<\/p><\/blockquote>\n
     Ultimately, the Supreme Court observed:\n<\/p><\/blockquote>\n
     “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.”\n<\/p><\/blockquote>\n
     The dictum laid down by the Supreme Court is clear.\n<\/p><\/blockquote>\n
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
\nHigh 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
\ntaking appropriate disciplinary proceedings. The Supreme Court held:\n<\/p>\n
     “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.\n<\/p>\n
     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.”\n<\/p>\n
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:\n<\/p>\n
     “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.”\n<\/p>\n
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
\norder in Criminal Appeal No.281\/94 filed by the petitioner\/ Ved Prakash:\n<\/p>\n
     “Leave granted.\n<\/p><\/blockquote>\n
     The  appellant has been convicted for the offence  under  Section
\n     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.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     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:-\n<\/p><\/blockquote>\n
     “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.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     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).\n<\/p><\/blockquote>\n
     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).\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     On  the  18th of October, 1996, the Record Officer,  OIC  Records wrote to the petitioner stating:\n<\/p><\/blockquote>\n
     “1.  Refer to your application dated 07 August, 1994.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
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:-\n<\/p>\n
     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;\n<\/p>\n
     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.”\n<\/p>\n
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.\n<\/p>\n
35.  Regulation  113  of the Pension Regulations for Army,  1961  reads  as under:-\n<\/p>\n
     Individuals dismissed or discharged under the Army Act<\/p>\n<\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     (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.”\n<\/p><\/blockquote>\n
     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:-\n<\/p><\/blockquote>\n
     “18.  Tenure  of service under the Act._Every person  subject  to this Act shall hold office during the pleasure of President.\n<\/p><\/blockquote>\n
     COMMENT<\/p>\n
     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.”\n<\/p><\/blockquote>\n
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
\nthe 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.\n<\/p>\n
37.  The learned counsel for the petitioner, Mr.J.S.Minhas, referred to the judgment of the Division Bench in the above cited case.\n<\/p>\n
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:\n<\/p>\n
     “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
\n     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
\n     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.” <\/p><\/blockquote>\n
     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
\nof India and the Section 18 of the Air Force Act, 1950. The question  posed by the Division Bench was:\n<\/p>\n
     “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.”\n<\/p><\/blockquote>\n
     Regulation 16(a) Section 1, Chapter II of the Pension Regulations  for Air Force, 1961 reads as under:-\n<\/p><\/blockquote>\n
     “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.”\n<\/p><\/blockquote>\n
     The Division Bench held:\n<\/p><\/blockquote>\n
     “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
\n     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.” <\/p><\/blockquote>\n
     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  &
\nOthers  Vs. Tulsiram Patel”, ,  the  respondents ought to have considered the case of the petitioner for the grant of pension.\n<\/p>\n
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:\n<\/p>\n
     (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. <\/p>\n<\/blockquote>\n
     (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.”\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
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:-\n<\/p>\n
     “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.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     The Full Bench posited:\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     The ultimate decision of the Full Bench is:\n<\/p><\/blockquote>\n
     “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:\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     2.  The  supplemental  show cause notice, reply  thereto  and  the decision taken will be filed in the writ petition.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
     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.”\n<\/p><\/blockquote>\n
     Here  also, the situation is different as there is no conviction by  a criminal court.\n<\/p><\/blockquote>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
44.  The writ petition stands allowed to the above extent.\n<\/p>\n
45.  There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Hav. Ved Prakash Sangwan vs Union Of India on 4 May, 2000 Equivalent citations: 2000 VAD Delhi 749 Author: K Ramamoorthy Bench: K Ramamoorthy ORDER 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-12120","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nHav. 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