Essay on Removal of Disqualification attached to Conviction in India !
Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and admitted to the benefit of release on probation under Section 3 or Section 4 of the Act, shall not suffer disqualification, if any, attached to the conviction of an offence under such law.
It is indeed a salutary provision which facilitates the rehabilitation of the released probationer. The object of this section is to save the probationer from various civil disabilities resulting from his conviction. For example, if a person is debarred from contesting election on account of disqualification, his release on probation will negative this disqualification and he may contest election.
Further, the conviction of an employee simpliciter without anything more, will not result in his automatic dismissal from service if he has been allowed the benefit of being released on probation by the sentencing court. This view finds support in a number of judicial pronouncements of the Supreme Court.
However, removal from service or part of it as a departmental punishment is not an essential and automatic consequence of conviction on a criminal charge and therefore, the provisions of Section 12 of the Act relating to the removal of disqualification attaching to conviction are not attracted in case of removal from service of the delinquent employee who is released on probation. The judicial trend in this regard is discernible from the cases cited hereunder:—
In Kehar Singh v. Regional Employment Officer, Chandigarh, the petitioner was convicted for theft under Section 380 of IPC and was dealt with under Section 4 of the Probation of Offenders Act, 1958. He was removed from service consequent to the decision of the Court. On appeal, he was reinstated on the ground that phraseology of Section 12 of the Probation of Offenders Act is express, explicit and mandatory and seeks to remove disqualification attaching to conviction in probation cases.
In the case of Divisional Personal Officer Southern Rly. v. Т.Н. Challappan, the Supreme Court ruled that Section 12 of the Probation of Offenders Act does not contemplate automatic disqualification of a person released on probation. This case involved disposal of three appeals by the Supreme Court in all of which points involved were identical.
In one case, a railway pointsman was arrested on August 12, 1972 at Irimpanan railway station in Southern Railway for drunkenness and indecent behaviour and a criminal case under Section 51-A of the Kerala Police Act was registered against him. He was found guilty and was released on probation under Section 3 of Probation of Offenders Act instead of being sentenced to a term of imprisonment.
He was removed from service on disciplinary ground on January 3, 1973 for misconduct which had resulted into his conviction. The High Court held that the probationer was removed from service only on the ground of his conviction without being heard and as no penalty was imposed on him, the order of dismissal must be quashed. His writ petition was therefore, admitted.
In the second case, respondent Narsingh was a railway Khalasi in Jodhpur railway workshop and was found in possession of stolen copper weighing four and half kilograms. He was prosecuted and ultimately convicted by Magistrate under Section 3 of the Indian Railway Property (Unlawful Possession) Act, 1916.
On appeal, the learned ADJ, Jodhpur while maintaining the conviction of the accused set aside the sentence and ordered his release on probation under the Probation of Offenders Act. The respondent was removed from service on February 26, 1971 on the basis of his conviction. Here also, the High Court allowed the writ petition and quashed the dismissal order.
In the third case, one Abdul Hamid, a peon at railway workshop, Jodhpur was prosecuted and ultimately convicted under Section 420 of IPC by Special Magistrate, Jodhpur on September 9, 1970. The Magistrate, however, released him on probation of good conduct instead of sentencing him.
The disciplinary authority i.e., Assistant Mechanical Engineer, by an order dated February 13, 1971 removed him from service on the ground of conviction and rejected his departmental appeal. The respondent therefore, moved an appeal to the High Court under Article 226 of the Constitution which was allowed by the Court.
In all the aforesaid three cases, the Government went in appeal to the Supreme Court. The learned counsel for the appellants (Government) in all these cases raised the issue of Section 12 of the Probation of Offenders Act and stressed that the provision of this section contemplates automatic disqualification attached to the conviction and not the obliteration of misconduct of the accused so as to debar the disciplinary authority from imposing penalty under rules against employees who have been convicted for misconduct.
The respondent’s counsel, on the other hand, argued that if the Magistrate does not choose after convicting the accused, to pass any sentence on him but releases him an probation, the stigma of conviction is completely washed out and obliterated.
The Supreme Court, quoting the phraseology used in Sections 3 and 4(1) of the Probation of Offenders Act, held that conviction is not washed out at all. The order of release on probation is merely a substitution of sentence imposable by Court. Section 12 therefore, does not afford immunity against disciplinary proceedings for misconduct.
In deciding the case of Shanker Dass v. Union of India, the Supreme Court took a liberal view of the provision of section 12 of the Probation of Offenders Act, 1958 and ordered the appellant to be reinstated in service. In this case, the appellant misappropriated Rs. 500 from the Delhi Milk Service and thus committed breach of trust.
He pleaded guilty of the charge and was convicted under Section 409 I.P.C., by the trial court and released on probation under Section 4 of the Probation of Offenders Act. As a result of this conviction he was dismissed from service in April, 1964. The Supreme Court while allowing the appeal, observed that in the instant case the crime was committed under personal misery compounded by the appalling delays of law.
The Court further observed that a government servant convicted on criminal charge and released on probation, cannot be said to be liable to be dismissed in view of Section 12 of the Probation of Offenders Act which is a beneficial provision. The Court therefore, set aside the order of the High Court of Delhi and reinstated the appellant in service.
In Iqbal Singh v. I.G. Police, Delhi, the accused a police head-constable was convicted for an offence under Section 337 of IPC but was given the benefit of the provision of Section 4 of the Probation of Offenders Act, 1958. Consequent to his prosecution, the accused was suspended and subsequently dismissed from service on the ground of conviction.
The Delhi High Court observed that the words “disqualification if any, attaching to a conviction of an offence” used in Section 12 of the Act would not include a person’s losing his right or qualification to remain or to be retained in service.
According to the High Court, Section 12 of the Act clearly saves the convict from suffering such disqualification attaching to his conviction. In respect of his conviction, the accused had the protection of Section 12 and he was saved from suffering any disqualification such as the one which resulted in his dismissal.
Similarly, in Rajbir Raghubir Singh v. State of Haryana, the accused a Government servant was convicted and placed on probation for good conduct under the Probation of Offenders Act, 1958. It was held by the Supreme Court that in particular facts of the case, the conviction should not affect his service.
In State (Assistant Inspector of Labour, Circle II, Nagar Coil v. S. Radhakrishnan, the accused was convicted under Section 25 of the Tamil Nadu Weights and Measures (Enforcement) Act, 1956, the Madras High Court allowed the benefit of release on probation to the accused under Section 3(1) of the Probation of Offenders Act and held that the release was not to constitute disqualification attached to Section 12 of the Act affecting his service.
But in Hari Singh v. State of U.R, it was held that benefit of probation extended to the Government servant does not exonerate him from disciplinary proceeding only because benefit of Section 4 has been given to him.
In the case of State of Karnataka v. M. Chandrappa and another, the State had filed an appeal against the acquittal order passed by the High Court for release of the accused on probation. But the Supreme Court dismissed the appeal and observed that it was a fit case where accused could be released on admonition with direction that his conviction would not suffer disqualification for holding post and continuing in service.
In this case, the accused assaulted a constable who was merely waiting for bus that would reach him to Police Station. He was found guilty of offence under Sections 352 and 353, I.P.C. The accused was a teacher who had come to know that there was some sort of enquiry against him and this constable had enquired about him. Hence, seeing the constable he abused and assaulted him under mental pressure.
The Supreme Court held that the constable could not be said to be engaged in executing duty at the time of incident and therefore, the accused was allowed the benefit of Section 3 of Probation of Offenders Act. Similar view was expressed by the Supreme Court in Rajbir v. State of Haryana also.
In Trikha Ram v. V.K. Seth, the Supreme Court reiterated that an offender convicted for a criminal offence and released on probation cannot be dismissed by disciplinary authority in view of Section 12 of the Probation of Offenders Act as it will operate as a disqualification for future employment. Hence the dismissal of the accused was converted into removal from service so that it may help the petitioner to secure future employment in other establishment.
However, in Union of India and others v. Bakshi Ram, the Supreme Court observed that release of offender on probation does not obliterate stigma of conviction. In the instant case, the accused was dismissed from service in view of his conviction under Section 10 of the Central Reserve Police Force Act and the court held that he was not entitled to reinstatement in service upon getting the benefit of probation of good conduct under Section 4 of the Probation of Offenders Act, 1958.
The Supreme Court, in this case pointed out that Section 12 of the Probation of Offenders Act clearly directs that the offender “shall not suffer disqualification, if any, attaching to a conviction of an offence under such law”. But the section does not preclude the Department from taking action for misconduct leading to the offence or conviction thereon as per law.
Therefore, Section 12 of the Act does not intend to exonerate the person from departmental punishment. In result, the Supreme Court allowed the appeal setting aside the order of the High Court and altered the punishment of dismissal to that of removal from service so that it helps the appellant to secure employment elsewhere.
In Karam Singh v. State of Punjab and another, the accused was a member of the Punjab Police Force. He was convicted for the offence under Sections 302/34 and 324, 323, I.P.C. by the Sessions Court. In appeal, his convictions under Sections 302/34 and 324 was set aside but conviction under Section 323 was still maintained by the High Court, which allowed the accused the benefit of being released on probation.
Thereafter, the accused sought reinstatement in service. The Police Dept, declined to reinstate him in view of the provisions of rule 16.2(2) of Punjab Police Rules as he was already dismissed from service. The accused challenged this order of the Punjab Police in the Supreme Court.
The Apex Court held that once the accused was convicted, it forms the basis for taking action under proviso to Article 311(2) of the Constitution which will be subject to the ultimate result of the prosecution case. If the case ends in favour of the accused and he gets honourably acquitted, then the authorities are required to consider his reinstatement.
In the instant case, the accused is still convicted under Section 323 and it is a disqualification though he was released on probation. Under these circumstances the ratio in Bakshi Ram’s case, would be applicable to this case. The Court therefore, dismissed the appeal but his dismissal was converted into removal from service.
In Dunna Lal v. State of Uttar Pradesh, the Allahabad High Court held that when a convict was placed on probation for good conduct, the employer should not terminate his service on the ground of conviction during pendency of appeal against conviction. On application by the employee, the employer should review order of termination when probation is granted to the convict in appeal. Justice S.I. Jafri of the Allahabad High Court observed, that “once a convict is placed on probation for good conduct under the provisions of the Probation of Offenders Act, 1958, the employee should not terminate his service by virtue of conviction.”
In Sunil Kumar Parida v. State of Orissa, the Supreme Court ordered the release of the accused who had undergone a part of his imprisonment, giving him benefit of Sections 3 and 4 of the Probation of Offenders Act so that he could get the benefit of Section 12 of the Act and may not be adversely affected by the disqualification attached with imprisonment. The Court directed the accused to appear before the Sub-Divisional Magistrate of Neelgirima and receive the probation order within six weeks.