Holding

Section 12 of the Probation of Offenders Act, 1958 only removes statutory disqualifications attached to a conviction and does not compel reinstatement after departmental dismissal; the dismissal stands, altered to removal from service.

Summary

Bakshi Ram, a constable of the Central Reserve Police Force, was convicted under Section 10(1) of the CRPF Act for forcibly entering a constable's room and assaulting his wife, and was sentenced to four months' rigorous imprisonment. While his appeal against the conviction was pending, the department dismissed him from service; he was later released on probation under Section 4 of the Probation of Offenders Act, 1958. He challenged the dismissal before the Rajasthan High Court, which reinstated him, holding that Section 12 of the Probation Act removed any disqualification arising from his conviction. The Supreme Court examined the scope of Section 12 and held that it only removes statutory disqualifications provided by other laws, not departmental punishments such as dismissal. Consequently, the Court set aside the High Court order, altered the penalty from dismissal to removal from service, and refused reinstatement. The appeal by the Union of India was allowed.

Issues considered

The scope and effect of Section 12 of the Probation of Offenders Act, 1958 with respect to removal of disqualification arising from a criminal conviction.
Whether a dismissal from service on the ground of conviction can be set aside and the employee reinstated when the offender is released on probation.

Legislation cited

Central Reserve Police Force Act, 1949s. 10(1)
Probation of Offenders Act, 1958s. 12, s. 3, s. 4, s. 9

Subjects

Probation of Offenders ActSection 12disqualificationdismissal from serviceremoval from serviceCRPF Actdepartmental punishmentreinstatementconvictionprobation

Judgment

UNION OF INDIA AND ORS.
A
v.
BAKSHI RAM

MARCH 1, 1990

B [K. JAGANNATHA SHETTY AND R.M. SAHA!, JJ.)

Probation of Offenders Act, 1958: Section 12-Scope of-
Release on probation after conviction-Does not obliterate the stigma of
conviction-"Shall not suffer disqualification, if any, attaching to a
conviction of an offence under such law"-Refer to disqualification by ;:
some law other than the Probation of Offenders Act.
c
Central Reserve Police Force Act, 1949: Section JO(n)-Const-
able-Acting prejudicial to good order and discipline-Conviction-
Release on probation-DLimissal from service-Held not entitled to
reinstatement-Penalty of 'dismissal' altered into 'removal from service'.
D
The respondent, a constable, convicted under section lO(n) of the
Central Reserve Police Force Act, 1949 but released on probation under
section 4 of the Probation of Offenders Act, 1958, was dismissed from
service. He challenged his dismissal before the High Court which
ordered his reinstatement holding that there was no disqualification for
E him to continue in service, for section 12 of the Probation of Offenders
Act, 1958 has the effect of removing the disqualification attaching to his
conviction. Hence this appeal by the Union of India.

Allowing the appeal and setting aside the order of the High Court,
this Court, '1.
F
HELD: 1. Section 12 of the Probation of Offenders Act, 1958 only
directs that the offender 'shall not suffer disqualification, if any, attach-
ing to a conviction of an offence under such law'. Such law in the
context is the other law providing for disqualification on account of
conviction e.g. if a law provides for disqualification of a person for
G being appointed in any office or for seeking election to any authority or
body in vie'¥ of his conviction, that disqualification by virtue of section >--
12 stands removed. 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. Section 12 does not preclude the department from taking
H action for misconduct leading to the offence or to his conviction theron

760
U.O.J. v. BAKSHI RAM 761

as per law. It was not intended to exonerate the person from depart-
A
mental punishment. [766B-C; 765E]

· R. Kumaraswami Aiyer v. The Commissioner, Municipal Council
Tiruvannamalai and Anr., [1957] Cr. LJ 255; Embaru (P) v. Chairman
Madras Port Trust, [1963] 1 LLJ 49 Mad; A. Satyanarayana Murthy v.
Zonal Manager L.I.C., AIR 1969 A.P. 371; Prem Kumar v. Union of B
India & Ors., [1971] Lab. & Ind. Cases 823; Om Prakash v. The
Director Postal Services & Ors., [1971] I SLR 648 and Director of
Postal Services & Anr. v. Daya Nand, [1972] SLR 325, approved.

The Div[. Personnel Officer Southern Railway & Anr. v. T. R.
Challappan, [1975] 2 SLR 587, followed.
c
2. 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 section 3 or 4 of the Act
does not deal with the conviction; it only deals with the sentence which
the offender has to undergo. Instead of sentencing the offender, the D
Court releases him on probation of good conduct. The conviction, how-
ever, 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. Therefore the question of respon-
dent's restatement into service does not arise. However, the penalty of E
dismissal from service is altered into removal from service. [765C-D, F; 766E]

Tulsi Ram Patel v. Union of India, [1985] Suppl. 2 SCR 131 and
Trikha Ram v. V.K. Seth & Anr., [!987] Suppl. SCC 39, followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1312 F
of 1990.

From the Judgment and Order dated 6. 7. 1988 of the Ra jasthan
High Court in D.B. Civil W.P. No. 71/77.

S. Hegde, Additional Solicitor General, A. Subba Rao for G
----" C.V.S. Rao for the Appellants.

S.C. Birla for the Respondent.

The Judgment of the Court was delivered by
H
762 SUPREME COURT REPORTS [ 1990] I S.C.R.

K. JAGANNATHA SHETTY, J. Special leave granted.
A
Bakshi Ram respondent was a constable in the Central Reserve
Police Force at Devli in Rajasthan. On 17th March 1971 at about 8.45
p.tn. he along with another constable forced entry into the room of
Garib Das the constable of the CRP Group Centre band platoon.
B Ga rip Das was then not present in the room. His wife Savitri Devi who
was in_side tried to prevent their entry, but in vain. Both the constables
caught hold of her and misbehaved with her.

The respondent was tried for an offence under Section JO( I) of
;
the Central Reserve Police Force Act, 1949. Section 10 of the Act sets
C out less heinous offences and Section JO(!) refers to any act or omis-
sion which, though not specified in the Act, is prejudiciable to good
order and discipline. On the evidence adduced in the case he was
found guilty of the charge and by judgment dated 23rd March 1971 he
was sentenced to four months R.I. by the Magistrate Ist Class and
Commandant Group Centre, CRPF, Deoli (Rajasthan). He was
D lodged in the Civil Jail, Jaipur to undergo the sentence.

In view of his conviction and sentence, the Department by way of
disciplinary action dismissed him from service. This action was taken
when his appeal against the conviction and sentence was pending
before the Sessions Judge. The learned Judge by judgment dated 22
E September 1971 upheld the conviction but released him under the
Probation of Offenders Act, 1958 ("the Act"). Apparently he was
released under Section 4 of the Act upon furnishing bonds to keep
peace and be of good behaviour for a period of six months. The
respondent complied with those conditions. After expiry of the period
of good conduct, he moved the High Court with Writ Petition under
F Article 226 of the Constitution challenging his dismissal from service.
The High Court relying upon Section 12 of the Act has set aside the
dismissal and directed that he should be reinstated into service with all
consequential benefits. The High Court has expressed the view that
the sole reason for dismissal of the respondent was his conviction
under Section JO(l) of the Central Reserve Police Force Act but in
G view of Section 12 'of the Probation of Offenders Act, 1968, there was
no disqualification for him to continue in service. This is how the High
Court observed:

"The Clear language of Sectibn 12 of the Probation of
Offenders Act, 1958 which provides that a person dealt
H with under the provisions of Section 3 or Section 4 of that
U.0.l. v. BAKSHI RAM [SHETrY, J.] 763

Act shall not suffer disqualification, if any, attaching to a
A
conviction under any law, notwithstanding anything con-
tained in any other law. This provision has the effect of
removing disqualification attaching to the petitioners' con-
viction under Section JO(n) of the C.R.P.F. Act. Section 12
of the Probation of Offenders Act dealing specifically with

• this situation clearly provides that the provisions therein is
'notwithstanding any thing contained in any other law.'
Hence, effect has to be given to the same."

The judgment of the High Court has been challenged in this
appeal.
B

Since the result of the appeal turns on the scope and meaning of c
Section 12 of the Probation of Offenders Act, it is necessary to set out
the Section. Section 12 is in these terms:

"12. Removal of disqualification attaching to conviction-
D
Notwithstanding anything contained in any other law, a
person found guilty of an offence and dealt with under the
provisions of Section 3 or Section 4 shall not suffer dis-
qualification, if any, attaching to a conviction of an offence
under such law,
E
Provided that nothing in this section shall apply to a person
who, after his release under Section 4, is subsequently
sentenced for the original offence."

Section 3 of the Probation of Offenders Act, 1958 provides
power to the Court to release certain offenders after admonition. Sec- F
tion 4 provides power to the Court to release certain offenders on
probation of good conduct. Under the disposition made by the Court
under Section 4 the sentence is suspended during the period of proba-
tion and the offender is released on his entering into a bond to keep
peace and be of good behaviour. Section 9 provides for procedure in
case of offender failing to observe conditions of bond. The Court, if G
satisfied, that the offender has failed to observe any of the conditions
~-.
of bond for keeping good behaviour could sentence him for the origi-
nal offence or where the failure is for he first time, then, without
prejudice to the continuance in force of the bond, the Court may
impose upon him a penalty not exceeding fifty rupees.
H
764 SUPREME COURT REPORTS [1990] 1 S.C.R.

A It will be clear from these provisions that the release of the offender '1
on probation does not obliterate the stigma of conviction. Dealing
with the scope of Sections 3, 4 and 9 of the Probation of Offenders
Act, Fazal Ali, J., in The Divisional Personnel Officer, Southern Rail-
way and Anr. etc. v. T.R. Challappan etc., [1975] 2 SLR 587 at 596
speaking for the Court observed:
B
"These provisions would clearly show that an order of
release on probation comes into existence only after the
accused is found guilty and is convicted of the offence.
Thus the conviction of the accused or the finding of the
;
Court that he is guilty cannot be washed out at all because
that is the sine qua non for the order or release on proba-
c tion of the offender. The order of release on probation is
merely in substitution of the sentence to be imposed by the
,..i-.._
Court. This has been made permissible by the Statute with
a humanist point of view in order to reform youthful
offenders and to prevent them from becoming hardened
D criminals. The provisions of Section 9(3) of the Act
extracted above would clearly show that the control of the
offender is retained by the criminal court and where it is
satisfied that the conditions of the bond have been broken
by the offender who has been released on probation, the
Court can sentence the offender for the original offence.
E This clearly shows that the factum of guilt on the criminal
charge is not swept away merely by passing the order
releasing the offender on probation. Under sections 3, 4, or
6 of the Act, the stigma continues and the finding of the
misconduct resulting in conviction must be treated to be a
conclusive proof. In these circumstances, therefore, we are
F unable to accept the argument of the respondents that the
order of the Magistrate releasing the offender on probation
obliterates the stigma of conviction."

As to the scope of Section 12, learned Judge went on (at
596):
G
"It was suggested that Section 12 of the Act completely
obliterates the effect of any conviction and wipes out the
disqualification, attached to a conviction of an offence
under such law. This argument, in our opinion, is based on
a gross misreading of the provisions of Section 12 of the
H Act, the words "attaching to a conviction of an offence
U.0.1. v. BAKSHI RAM (SHE1TY, J.] 765

under such law" refer to two contingencies: (i) that there
A
must be a disqualification resulting from a conviction and
(ii) that such disqualification must be provided by some law
other than the Probation of Offenders Act. The Penal
Code does not contain any such disqualification. There-
fore, it cannot be said that section 12 of the Act contemp-
lates an automatic disqualification attaching to a conviction B
and obliteration of the criminal misconduct of the accused.
It is also manifest the disqualification is essentially different
in its connotation from the word 'misconduct'."
;
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 Section 3 or 4 of the c
Act does not deal with the conviction; it only deals with the sentence
which the offender has to undergo. Instead of sentencing the offender,
the Court releases him on probation of good conduct. The conviction
however, remains untouched and the stigma of conviction is not ob-
literated. In the departmental proceedings the delinquent could be D
dismissed or removed or reduced in rank on the ground of conduct
which has led to his conviction on a criminal charge; (See Article
311(2)(b) of the Constitution and Tulsiram Patel case: l 1985] Supp. 2
SCR 131 at 282).

Section 12 of the Act does not preclude the department from E
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 Sec-
tion 12. On this aspect, the High Court speak with one voice. The F
Madras High Court in R. Kumaraswami Aiyer v. The Commissioner,
Municipal Council Tiruvannamalai and Anr., [1957] Crl. L.J. 225 Vol.
58 and Embaru (P) v. Chairman Madras Port Trust, [1963] 1 LLJ 59
Mad., the Andhra Pradesh High Court in A. Satyanarayana Murthy v.
Zonal Manager, L.l.C., AIR 1969 AP 371, the Madhya Pradesh High
Court in Prem Kumar v. Union of India and Ors., [1971] Lab & Ind. G
cases 823, the Punjab & Haryana High Court in Om Prakash v. The
Director Postal Services (Post and Telegraphs Deptt.) Punjab Circle,
Ambala and Ors., [1971] 1SLR643. The Delhi High Court in Director
of Postal Services and Anr. v. Daya Nand, [1972] SLR 325 have expre-
ssed 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 [1975] 2 SLR H

l 587.
766 SUPREME COURT REPORTS I 1990) I S.C.R.

A In Trikha Ram v. V.K. Seth and Anr., [1987) Supp. SCC 39 this
Court afer referring to section 12 has altered the punishment of dismis-
sal of the petitioner therein into "removal from service", so that it may
help him to secure future employment in other establishment.

Section 12 is thus clear and it only directs that the offender "shall
B
not suffer disqualification, if any, attaching to a conviction of an
offence under such law". Such law in the context is other law providing
for disqualification on account of conviction. For instance, if a law
provides for disqualification of a person for being appointed in any
office or for seeking election to any authority or body in view of his
conviction, that disqualification by virtue of Section 12 stands :
-c removed. That in effect is the scope and effect of Section 12 of the Act.
But that is not the same thing to state that the person who has been
dismissed from service in view of his conviction is entitled to reinstate-
ment upon getting the benefit of probation of good conduct. Appa-
rently, such a view has no support by the terms of Section 12 and the
order of the High Court cannot, therefore, be sustained.
D
In the result the appeal is allowed. The impugned order of the
High Court is set aside. However, we alter the penalty of dismissal
from service into 'removal from service' as it was done in Trikha Ram's ---,..._
case.
E In the circumstances of the case, we make no order as to costs.

T.N.A. Appeal allowed.

J

I
J