The Director of Sericulture,Foulks Compound, Anaimedu, Salem 636 001 v. S. Panneerselvam & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.07.2008CORAM:THE HON'BLE MR.JUSTICE P.K.MISRAANDTHE HON'BLE MR.JUSTICE M.SATHYANARAYANANWrit Petition No.14048 of 2004andWPMP.No.16559 of 2004The Director of Sericulture,Foulks Compound, Anaimedu,Salem 636 001...Petitionervs.1. S. PanneerselvamS/o.M. Sivalingam2. The Registrar, Tamil Nadu Administrative Tribunal Chennai 104...Respondents PRAYER : Writ Petition filed under Article 226 of the Constitutionof India praying to issue a Writ of Certiorari calling for therecords pertaining to the order of the Tribunal, the 2nd respondentherein, made in O.A.No.339 of 1992 dated 5.8.2003 and quash the same.For Petitioner: Mr.K. ElangoSpecial Govt. PleaderFor Respondent-1: Mr.P. Rajendran- - -O R D E R(Order of the Court was made by P.K.MISRA, J.)Heard the learned counsel appearing for the parties.2. Respondent No.1 was appointed as Demonstrator in theSericulture Department. Soon thereafter, he was involved in anoffence relating to theft of sandalwood logs and a criminal case wasregistered. The trial court by judgment dated 30.4.1985, convictedRespondent No.1 and sentenced him to undergo rigorous imprisonmentfor six months. After such order of conviction, the departmentalauthorities by taking recourse to Rule 17(c)(i)(1) of TNCS (CCA)Rules, dismissed the present Respondent No.1 from service. At that https://hcservices.ecourts.gov.in/hcservices/ stage, Respondent No.1 filed an appeal against the order ofconviction and ultimately the appellate court, while upholding theconviction, released the Respondent No.1 by applying Section 4 of theProbation of Offenders Act (in short P.O.Act) . Armed with theaforesaid order passed by the appellate court in the criminalproceedings releasing Respondent No.1 under Section 4 of the P.O.Act, Respondent No.1 filed O.A.No.339 of 1992 before the Tamil NaduAdministrative Tribunal (in short "Tribunal"). The Tribunal came tothe conclusion that in view of the provisions contained in Section 12of the P.O. Act, the factum of conviction cannot be a ground fordismissing the officer from service and ultimately allowed suchOriginal Application and directed that he should be reinstated withall service benefits but without backwages. For coming to such aconclusion, the Tribunal appears to have placed reliance upon thedecision of this Court reported in 2000 (IV) CTC 409 (P. SUBRAMANIANv. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES). The judgment ofthe Tribunal is questioned by the Director of Sericulture in thepresent writ petition. 3. Learned counsel for the petitioner submitted that eventhough the present Respondent No.1 was released by applying Section 4of the P.O. Act by the appellate court, such order does not take awaythe fact that Respondent No.1 had been convicted on allegation oftheft of the sandalwood. Learned counsel, therefore, submitted thatrelease of the present Respondent No.1 under Section 4 of the P.O.Act cannot be construed as a ground for not taking departmentalaction and the order passed by the Tribunal should be quashed.Learned counsel for the petitioner has brought to our notice severaldecisions of the Supreme Court including the latest decision reportedin (2007) 9 SCC 86 (PUNJAB WATER SUPPLY SEWERAGE BOARD AND ANOTHER v.RAM SAJIVAN AND ANOTHER).4. Learned counsel appearing for Respondent No.1 by placingstrong reliance on the decision of this Court reported in 2000(IV)CTC 409 (P. SUBRAMANIAN v. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,TIRUCHIRAPALLI AND ANOTHER), submitted that the ratio of theaforesaid decision is squarely applicable to the present case and,therefore, the order of the Tribunal should not be interfered with.Learned counsel has also submitted in the alternative that evenassuming that the aforesaid decision is not applicable, at any rate,there should have been a regular departmental proceedings beforetaking any action. He has further submitted that, at any rate, theallegations, on the basis of which a criminal case was initiated, didnot relate to actual service of Respondent No.1 and that should notbe taken as a ground for taking any disciplinary action.5. Section 12 of the Probation of Offenders Act, 1958 readsas follows :-“12. Removal of disqualification attaching toconviction.—Notwithstanding anything contained in any other https://hcservices.ecourts.gov.in/hcservices/ law, a person found guilty of an offence and dealt withunder the provisions of Section 3 or Section 4 shall notsuffer disqualification, if any, attaching to a convictionof an offence under such law:Provided that nothing in this section shall apply to aperson who, after his release under Section 4, issubsequently sentenced for the original offence.”6. The scope of Section 12, particularly in the context ofSections 3 & 4 of the Probation of Offenders Act was considered bythe Supreme Court in the case of the Divisional Personnel Officer,Southern Railway v. T.R.Chellapan reported in (1976) 3 SCC 190 = AIR1975 SC 2216, wherein it was observed as follows :-“12. . . . It was suggested that Section 12 of the Actcompletely obliterates the effect of any conviction andwipes out the disqualification attached to a conviction ofan offence under such law. This argument, in our opinion,is based on a gross misreading of the provisions of Section12 of the Act. The words “attaching to a conviction of anoffence under such law” refer to two contingencies: (i)that there must be a disqualification resulting from aconviction; and (ii) that such disqualification must beprovided by some law other than the Probation of OffendersAct. The Penal Code does not contain any suchdisqualification. Therefore, it cannot be said that Section18 of the Act contemplates an automatic disqualificationattaching to a conviction and obliteration of the criminalmisconduct of the accused. It is also manifest thatdisqualification is essentially different in itsconnotation from the word ‘misconduct’. Disqualificationcannot be an automatic consequence of misconduct, unlessthe statute so requires. Proof of misconduct may or may notlead to disqualification, because this matter rests on thefacts and circumstances of a particular case or thelanguage in which the particular statute is covered. In theinstant case neither Article 311(2) proviso (a) nor Rule 14(i) of the Rules of 1968 contain any express provision thatthe moment a person is found guilty of a misconduct on acriminal charge he will have to be automatically dismissedfrom service. Article 311(2) proviso (a) is an enablingprovision which merely dispenses with the various stages ofthe departmental inquiry and the show-cause notice. Rule 14despite incorporating the principles of proviso (a) toArticle 311(2) enjoins on the disciplinary authority toconsider the circumstances of the case before passing anyorder. Thus, in our opinion, it is a fallacy to presumethat the conviction of a delinquent employee simpliciterwithout anything more will result in his automaticdismissal or removal from service.” https://hcservices.ecourts.gov.in/hcservices/

13. . . . In our opinion, however, Section 12 of theAct refers to only such disqualifications as are expresslymentioned in other statutes regarding holding of offices orstanding for elections and so on. This matter wasconsidered by a number of High Courts and there is aconsensus of judicial opinion on this point that Section 12of the Act is not an automatic disqualification attached tothe conviction itself.”7. Subsequently, after specifically referring to the abovedecision and analysing the position of law, it was held in (1990) 2SCC 426 = AIR 1990 SC 987 (UNION OF INDIA v. BAKSHI RAM) as follows:-“10. In criminal trial the conviction is one thing andsentence is another. The departmental punishment formisconduct is yet a third one. The court while invoking theprovisions of Section 3 or 4 of the Act does not deal withthe conviction; it only deals with the sentence which theoffender has to undergo. Instead of sentencing theoffender, the court releases him on probation of goodconduct. The conviction however, remains untouched and thestigma of conviction is not obliterated. In thedepartmental proceedings the delinquent could be dismissedor removed or reduced in rank on the ground of conductwhich has led to his conviction on a criminal charge. [SeeArticle 311(2)(b) of the Constitution and Tulsiram Patelcase, 1985 Supp (2) 131].11. Section 12 of the Act does not preclude thedepartment from taking action for misconduct leading to theoffence or to his conviction thereon as per law. Thesection was not intended to exonerate the person fromdepartmental punishment. The question of reinstatement intoservice from which he was removed in view of his convictiondoes not therefore, arise. That seems obvious from theterminology of Section 12. . . . 13. Section 12 is thus clear and it only directs thatthe 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 fordisqualification on account of conviction. For instance, ifa law provides for disqualification of a person for beingappointed in any office or for seeking election to anyauthority or body in view of his conviction, thatdisqualification by virtue of Section 12 stands removed.That in effect is the scope and effect of Section 12 of theAct. But that is not the same thing to state that theperson who has been dismissed from service in view of hisconviction is entitled to reinstatement upon getting thebenefit of probation of good conduct. Apparently, such a https://hcservices.ecourts.gov.in/hcservices/ view has no support by the terms of Section 12 and theorder of the High Court cannot, therefore, be sustained."(Emphasis supplied)8. It is no doubt true that in P. Subramanian's case (citedsupra) the learned single Judge has referred to both the decisionsabove, while coming to the conclusion that in view of the release ofthe person concerned in the said case by virtue of Section 12 of theProbation of Offenders Act, no punishment should have been imposed.For coming to the aforesaid conclusion, the learned single Judge hasalso placed reliance upon the decision of the Supreme Court in 1981SCC (cri) 637 (AITHA CHANDER RAO v. STATE OF A.P.), wherein it wasobserved that as the appellant was released on probation, this maynot affect his service career in view of Section 12 of the Probationof Offenders Act. 9. Similarly reliance was placed by the learned single Judgeon the decision reported in AIR 1985 SC 1278 (RAJBIR v. STATE OFHARYANA), wherein the Supreme Court after releasing the convictedperson on probation of good conduct, observed :-“5. We are of the view that in the peculiar facts ofthe case, the conviction should not affect his service.”10. The decision of the Supreme Court in Bakshi Ram’s casewas followed subsequently in (1997) 11 SCC 571 (ADDITIONAL D.I.G. OFPOLICE, HYDERABAD v. P.R.K. MOHAN), wherein it was observed :-“4. It is settled law that Section 12 of the Probationof Offenders Act, 1958 does not preclude the departmentfrom taking action for misconduct leading to the offence orto his conviction thereon as per law. The section was notintended to exonerate the person from departmentalpunishment. It was clarified; the section only directedthat the offender shall not suffer disqualification, ifany, attaching to a conviction of an offence under suchlaw. Such law in the context is other law providing fordisqualification on account of conviction. This Court,therefore, held that merely because a sentence ofimprisonment has been substituted by an order passed underSection 12 of the Probation of Offenders Act, 1958, theeffect of the conviction is not obliterated altogether andit would be open to the authorities to take departmentalproceedings on the basis thereof (see Union of India v.Bakshi Ram). Therefore, the observation of the appellatecourt on the interpretation of Section 12 is not correct.”11. Learned single Judge also placed reliance upon anearlier decision of another learned single Judge of this Courtreported in 1986 LW (Crl.) 58 (GOPALAN, In re), wherein the learnedsingle Judge, while applying the provisions of Section 4(1) of theProbation of Offenders Act, further observed :- https://hcservices.ecourts.gov.in/hcservices/ “I would like to make it clear that as contemplatedunder Section 12 of the Probation of Offenders Act, thepetitioner shall not suffer disqualification if anyattaching to this conviction. …”12. Learned single Judge also relied upon another decisionof a learned single Judge of this Court reported in 1989 Crl.L.J.1161 (STATE BY ASST. INSPECTOR OF LABOUR, NAGERCOIL v. S.RADHAKRISHNAN), wherein the learned single Judge after holding theaccused guilty under Section 25 of the Tamil Nadu Weights andMeasures (Enforcement Act), 1958, applied Section 3(1) of theProbation of Offenders Act and observed that release of the accusedunder Section 3(1) of the Act should not be construed asdisqualification attached to conviction under Section 12 of theProbation of Offenders Act.13. Apart from the above decisions of the Supreme Court andthe Madras High Court, the learned single Judge in Subramanian’s casealso placed reliance upon a Division Bench decision of the KarnatakaHigh Court, wherein the Division Bench, while applying Section 3 ofthe Probation of Offenders Act, observed :“8. ... We also make it clear that as provided undersection 12 of Probation of Offenders Act and as observed bytheir Lordships of the Supreme Court in the case of Rajbirv. State of Haryana, AIR 1985 SC 1278: 1985 Cri LJ 1495 hisconviction shall not suffer disqualification for holding thepost and continuing in service."14. After referring to all the above decisions, the learnedsingle Judge proceeded to observe:-“ 15. . . . Though section 12 of the Probation ofOffenders Act does not preclude the department from takingaction against his misconduct leading to the offence or hisconviction thereon as per law and as observed by TheirLordships in Divisional Personnel Officer v. T.R.Challappan, AIR 1975 SC 2216, the conviction of adelinquent employee simpliciter without anything more willnot result in his automatic dismissal or removal fromservice. Added to this, the learned Sessions Judge inorder to protect his services, released him under Section 3of the Probation of Offenders Act. In the light of theabove factual and legal position referred to above, theimpugned proceedings of the first respondent dated 13.3.98is quashed and he respondents are directed to reinstate thepetitioner in service with all service benefits and withoutsalary and other monetary benefits for the period in whichhe was not in service,……” https://hcservices.ecourts.gov.in/hcservices/

15. It is but natural for the employee / respondent to placestrong reliance upon the aforesaid decision of the learned singleJudge, which supports his case to a large extent. But the crucialquestion is whether such observation of the single Judge can befollowed, particularly in the light of the observations made by theSupreme Court in several decisions and more particularly the latestdecision reported in (2007) 9 SCC 86 (PUNJAB WATER SUPPLY SEWERAGEBOARD AND ANOTHER v. RAM SAJIVAN AND ANOTHER).16. Before adverting to the ratio of the decision in theabove Supreme Court case, it would be also appropriate to notice thatthe observation of the Supreme Court in Aitha Chander Rao’s case wasspecifically held to be not binding as a precedent by the SupremeCourt in (1998) 2 SCC 383 (HARICHAND v. DIRECTOR OF SCHOOLEDUCATION), wherein it was observed as follows :-“6. The order in the case of the said Rao was deliveredon an appeal against conviction. The conviction wassustained but, having regard to the peculiar circumstancesof the case, the said Rao was released on probation and itwas added that “this may not affect his service career inview of Section 12 of the Probation of Offenders Act”. Wedo not find in the order in Rao case any discussion of theprovision of Section 12 or of the meaning of the words“disqualification, if any attaching to a conviction of anoffence under such law” therein. The order cannot,therefore, be regarded as a binding precedent upon thepoint.7. In our view, Section 12 of the Probation ofOffenders Act would apply only in respect of adisqualification that goes with a conviction under the lawwhich provides for the offence and its punishment. That isthe 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 itspunishment also stipulates a disqualification, a personconvicted of the offence but released on probation doesnot, by reason of Section 12, suffer the disqualification.It cannot be held that, by reason of Section 12, aconviction for an offence should not be taken into accountfor the purposes of dismissal of the person convicted fromgovernment service.”(Emphasis added)17. It is interesting to note that the aforesaid decision ofthe Supreme Court was not at all cited before the learned singleJudge in P. Subramanian’s case.18. The Supreme Court in the decision reported in (2007) 9SCC 86 (cited supra), after specifically referring to the decisionsof the Supreme Court in Chellapan’s case, Aitha Chander Rao’s case https://hcservices.ecourts.gov.in/hcservices/ and Bakshi Ram’s case, Harichand’s case as well as the celebratedcase of the Union of India v. Tulsiram Patel reported in (1985) 3 SCC398, observed:-“14. It is, however, one thing to say that prior topassing of the order of termination, a disciplinaryproceeding should have been initiated, but it isanother thing to say as has been stated by the High Courtthat only because the respondents were let off onprobation, the same should not affect his service career atall.”19. It is no doubt true that the decision of the SupremeCourt in T.R. Chellapan’s (AIR 1975 SC 2216) case was by a Benchconsisting of three Judges, whereas the subsequent decision in BakshiRam’s (AIR 1990 SC 987) case was by a Bench consisting of two Judges.However, one should not lose sight of the fact that in the laterdecision, T.R. Chellapan’s case has been specifically considered andanalysed. Law is well settled that when an earlier decision of theSupreme Court is specifically considered and analysed and anyobservation is made expounding a particular position of law, it issuch later decision which is binding on the High Court because law isdeemed to have been settled in such later decision. The position,however, may be different where subsequent Bench of a lower strengthdoes not take note of an earlier decision of a co-ordinate strength or larger strength, in which event the earlierdecision may be followed. 20. In our considered opinion, in fact, there is no conflictin the opinions expressed in T.R. Chellapan’s case and the otherdecisions subsequently rendered. In such view of the matter, we donot think it would be appropriate for us to follow the decision ofthe single Judge in P. Subramanian’s case.21. In the present case, criminal case was initiated on thebasis of the allegation that the concerned employee had committedtheft of sandalwood logs. The trial court had convicted andsentenced the accused (present Respondent No.1) to undergo six monthsR.I. However, the appellate court, while confirming the finding ofguilt, applied Section 4 of the Probation of Offenders Act. As hasbeen observed in several decisions of the Supreme Court including thedecision reported in (2007) 9 SCC 86 (cited supra), release of aperson under P.O. Act does not take away the effect of finding ofguilt in a criminal case. Article 311 of the Constitution envisagesthat ordinarily a person can be punished by conducting departmentalproceedings. However, there is an exception to this. If the orderof punishment is based on conduct, which led to conviction in acriminal case, such a person can be punished even without holding aformal enquiry. The formal enquiry is dispensed with in such cases,because there is already a finding regarding the guilt relating to https://hcservices.ecourts.gov.in/hcservices/ same person. The Department has followed Rule 17(c)(i)(1) of theTNCS (CCA) Rules, which contemplates that on a person being convictedin a criminal case, by issuing notice, the departmental authoritiescan take appropriate action. 22. As observed by the Supreme Court in T.R. Chellappan'scase, a notice was required to be given to enable a person to givehis explanation relating to seriousness of the allegations. In thepresent case, such an opportunity had been given. Since it is nowwell settled that release of a person by applying the provisions ofthe P.O. Act would not take away the effect of conviction, we do notthink that there was any justification for the Tribunal to givedirection for reinstatement. As a matter of fact, such a course wasfrowned upon by the Supreme Court in (2007) 9 SCC 86 (cited supra).23. The other contention of the Respondent No.1 to theeffect that committing theft of sandalwood did not relate to the dutyof the Respondent No.1 is only stated to be rejected and by nostretch of imagination it can be said that such action would notamount to misconduct.24. For the aforesaid reasons, we allow the writ petitionand confirm the order of dismissal passed by the Department. Nocosts. Consequently, connected miscellaneous petition is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkTo1. The Director of Sericulture Foulks Compund, Anaimedu, Salem 636 001+ 1 CC To Mr.P.Rajendran, Advocate SR NO.38563W P No.14048 of 2004GR(CO)SRA(25/09/2008)