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Judgment
Aggrieved by the proceedings of the first respondent dated 13.3.1998, removing him from the service of the Agricultural Co-operative Bank on
the ground of conviction by the Criminal Court, the petitioner has filed the above writ petition to quash the same and for direction to the
respondents to reinstate him into Bank''s service with all consequential benefits.
The case of the petitioner is briefly stated hereunder :- He joined as Secretary in the 2nd respondent Co-operative Bank in the year 1975.
While so, for as offences under Sections 409 and 477-A, I.P.C., a case was registered on the file of Judicial Magistrate-I Tiruchirapalli and the
learned trial Magistrate convicted him till the rising of the court and directed him to pay a fine of Rs.750. On the basis of his conviction, his services
have been terminated by the Special Officer of the second respondent Bank on 3.1.92. As against the sentence and conviction, the petitioner filed
Criminal Appeal No.236 and 244 of 1990, since he was tried in two criminal cases in C.C.Nos.230 and 231 of 87. In the appeal, the learned
Sessions Judge passed an order setting aside the conviction and directed to refund the fine amount and also let off him u/s 3 of the Probation of
Offenders Act. On the basis of legal opinion, he was reinstated on 15.12.97. Based on the direction issued by the Deputy Registrar of Co-
operative Societies, the President of the Bank issued a show-cause notice on 30.12.97 calling upon him to submit his explanation as to why he
should not be terminated from service. AS against the proceedings of the Deputy Registrar, he filed W.P.No.1531 of 1998 and the same is
pending before this court. While so, the first respondent herein issued a show cause notice on 20.2.98 purporting to Act u/s 77 of the Co-
operative Societies Act, calling upon him to show cause as to why he should not be terminated from service on the basis that judgment of the
Sessions. Judge has only set-aside the sentence and not conviction. He submitted his explanation. But without considering his explanation, the first
respondent passed an order directing the Bank to remove the petitioner from the services of the Bank in and by order dated 9.3.98. Even without
waiting as to whether the President is taking steps or not, the first respondent has passed the impugned order dated 13.3.98 removing him from
service. Aggrieved by the said order, the petitioner has filed the above writ petition.
The Joint Registrar of Co-op. Societies, Tiruchirapalli Region, Tiruchy, first respondent herein, has filed a counter affidavit disputing various
averments made by the petitioner. It is stated that the petitioner was an employee of the 2nd respondent bank. Since the petitioner was convicted
in C.C.No.230 of 1987 and sentenced to pay a fine of Rs.500 for each offence under Sections 409 and 477-A, I. P. C., and imprisonment till the
rising of the Court, and also convicted u/s 409, IPC by the same Magistrate in C.C.No.231 of 1987 and sentenced to pay a fine of Rs.250 and
imprisonment till the rising of the Court, his services were terminated by the Special officer of the Bank with effect from 3.1.92 as the employee
had attracted disqualification as per Rule 149 (5) of the Tamil Nadu Co-operative Societies Rules, 1988. In the appeals in Cri. Appeal Nos.244
and 236 of 1990. the Sessions Court. Trichy set aside the sentences and released him u/s 3 of the Probation of Offenders Act, after due
admonition, since the elected Board of the Bank which took over the management of the Bank on 1.11.96. reinstated him into service, the
petitioner and the Vice President of the respondent No. 2 Bank were directed by the Joint Registrar (first respondent) to show cause by a notice
dated 20.2.98 as to why the petitioner should not be removed from the services of the Bank. They both sent their representations, As there was no
merit in their representations, the 2nd respondent was directed to remove the petitioner from the services of the Bank forthwith. The direction was
issued u/s 77(2) of the Tamil Nadu Co-operative Societies Act on 9.3.98. As the Vice President of the Bank (2nd respondent) did not comply
with the direction issued u/s 77 of the said Act, orders were issued u/s 77 (3) of the said Act on 13.3.98, removing the petitioner from the services
of the Bank. It is also stated that the first respondent is competent to pass the impugned order; accordingly prayed for dismissal of the writ petition.
Heard the learned counsel for the petitioner as well as respondents.
Whether the impugned order of the first respondent removing the petitioner from the service of the Bank is sustainable in the light of the order
passed by the sessions Court, Tiruchirapalli in Criminal Appeal Nos. 244 of 1990 and 236 of 1990 in which he was released u/s 3 of the
Probation of Offenders Act. It is seen from the records that the petitioner was sentenced to imprisonment till the rising of Court and also to pay a
fine of Rs.500 and Rs.250 in C.C.Nos.230 of 1987 and 231 of 1987 respectively for offence under sections 409 and 477-A of Indian Penal
Code. Therefore, the services of the petitioner were terminated by the Special office of the bank with effect from 3.1.92. as the employee had
attracted the disqualification as per Rule 149 (5) of the Tamil Nadu Co-operative Societies Rules, 1988, according to which a person who is
found guilty, of any offence involving moral turpitude shall cease to be an employee of a society. The petitioner filed appeals in Criminal Appeal
Nos. 244 of 1990 and 236 of 1990 before the Sessions Court, Trichy against the conviction and sentence awarded by the Judicial Magistrate-
No.I, Trichy. The Sessions Court, Trichy, while confirming the convictions in both the cases, has set aside the sentences and released him u/s 3 of
the Probation of Offenders Act, 1958, after due admonition. The petitioner made representation, based on the judgment of the learned Sessions
Judge. The Bank after getting the legal opinion, permitted the petitioner to reinstate into service of the Bank. Subsequently, the first respondent has
passed the impugned order dated 13.3.98, removing the petitioner from service, by quoting Rule 149 (5) of the Tamil Nadu Co-operative
Societies Rules, 1988 on grounds of moral turpitude"".
In this back-ground now I shall consider the legal position. Section 3 of the Probation of Offenders Act, 1958 speaks about power of Court to
release certain offenders after admonition. It reads thus:-
Section 3. Power of court to release certain offenders after admonition:-When any person is found guilty of having committed an offence
punishable u/s 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code (45 of I860), or any offence
punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no
previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of
the case including the nature of the offence and the character of the offender, it is expedient so to do, then notwithstanding anything contained in an
other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct u/s
4 release him after due admonition.
It is the grievance of the petitioner that the Sessions Court let off him u/s 12 of the Probation of Offenders Act specifically stating that the petitioner
loses his employment if the sentence and fine is allowed to be there. Section 12 of the Probation of Offenders Act reads thus:-
Section 12 Removal of disqualification attaching to conviction,-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 disqualification, if any attaching to a conviction or an offence
under such law:
Provided that nothing in this section shall apply to a person who, o after his release u/s 4, is subsequently sentenced for the original offence.
Learned counsel for the petitioner, even at the outset, very much relied on a three Judges Bench decision of the Supreme Court in the case of
The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, . Their Lordships, after considering the scope
of Sections 3,4 and 12 of the Probation of Offenders Act, have held as follows:- (paragraphs 12 and 13)
Another point which is closely connected with this question is as to the effect of section 12 of Act which runs thus:
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 disqualification, attaching to a conviction of an offence under such law. "" 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 Act. The words ""attaching to a conviction of an
offence under such law"" refer to two contingencies: (i) that there 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. Therefore, it cannot be said that section 12 of the Act contemplates an automatic disqualification attaching to a conviction and
obliteration of the criminal misconduct of the accused. It is also manifest that disqualification is essentially different in its connotation from the word
''misconduct''. Disqualification cannot be an automatic consequence of misconduct, unless the statute so requires. Proof of misconduct may or may
not lead to disqualification, because this matter rests on the facts and circumstances of a particular case or the language in which the particular
statute is covered, in the instant case neither Art. 311(2) proviso (a) nor Rule 14 (i) of the Rules of 1968 contain any express provision that the
moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311(2)
proviso (a) is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show cause notice. Rule 14
despite incorporating the principle of proviso (a) to Article 311(2) enjoins on the disciplinary authority to consider the circumstances of the case
before passing any order. Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without anything
more will result in his automatic dismissal or removal from service.
Para 13........In our opinion, however, Section 12 of the Act refers to only such disqualifications as are expressly mentioned in other statutes
regarding holding of offices or standing for elections and so on. This matter was considered by a number of High Courts and there is a consensus
of judicial opinion on this point that Section 12 of the Act is not an automatic disqualification attached to the conviction itself.
On the other hand, learned counsel for the respondents has very much relied on two Judges Bench decision of the Supreme Court in the case of
Union of India and others Vs. Bakshi Ram, , wherein Their Lordships have observed as follows:- (paras 10, 11 and 13)
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 Sec. 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 offencer, the Court releases 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 Union of India and
Another Vs. Tulsiram Patel and Others, :
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 Section 12.......
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 Sec.12 stands removed. That in effect is the scope and effect of Sec.12 of the Act. But that is not the same thing to
stale 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 Sec. 12 and the order of the High Court cannot, therefore, be
sustained.
It is true that Their Lordships have considered the earlier three Judges decision in The Divisional Personnel Officer, Southern Railway and Another
Vs. T.R. Chellappan and Others, . Learned counsel appearing for the petitioner, by pointing out the positive conclusion arrived at by the 3 Judges
Bench in The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, , would contend that conviction or an
employee simpliciter without anything more cannot be a ground for automatic dismissal or removal from service.
Now in the light of this legal position, I shall consider the other decisions referred to by the learned counsel for the petitioner. In Rajbir Vs. State
of Haryana, , Their Lordships released the appellant therein on probation of good conduct u/s 4 of the Act, in view of the fact that the parties to
the assault were close relations. After saying so, they observed that,
We are of the view that in the peculiar facts of the case, the conviction should not affect his service.
In Aitha Chander Rao v. State of A. P., 1981 SCC (Cri) 637, after releasing the appellant therein on probation of good conduct u/s 4 of the
Probation of Offenders Act, Their Lordships have observed thus:-
As the appellant has been released on probation, this may not affect his service career in view of Section 12 of the Probation of Offenders
Act.
The other decision referred to is in the case of Additional D.I.G. of Police, Hyderabad v. P.R.K. Mohan, (1997) 11 SCC 571 . With regard
to implication of Section 12. Their Lordships have held thus:-
para 4. 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 dis-qualification, 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 u/s 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 and others Vs. Bakshi Ram, . Therefore, the observation of the appellate court on the interpretation of Section 12 is not correct.
In State of Karnataka v. M. Chandrappa, 1987 Cri.L.J. 950, a Division Bench of Karnataka High Court has observed thus:- (para 8)
...We reverse the order of acquittal passed by the court below in so far as A-1 is concerned and convict him for the offence punishable u/s 352,
IPC and instead of sentencing him, we release him on admonition under Sec.3 of the Probation of Offenders Act. We also make it clear that as
provided u/s 12 of the Probation of Offenders Act and as observed by their Lordships of the Supreme Court in the case of Rajbir Vs. State of
Haryana, his conviction shall not suffer disqualification for holding the post and continuing in service.
In J.S.- Summary of Cases (Extracts Gopalan, In re, 1986 L.W. (Crl.) 58, Ratnavel Pandian (as His Lordship then was), has observed thus:-
...Having regard to the above submission made by the learned counsel for the petitioner while confirming the conviction, I set aside the sentence of
fine imposed on the petitioner, and instead, invoking the provisions of Sec. 4(1) of the Probation of Offenders Act, I direct the petitioner to be
released on probation of good conduct, on his entering into a bond for a sum of Rs.1,000 with one surety to appear and receive sentence when
called upon during a period of six months, and in the meantime to keep the peace and be of good behaviour, in this connection, I would like to
make it clear that as contemplated u/s 12 of the Probation of offenders Act, the petitioner shall not suffer disqualification, if any, attaching to this
conviction...
In State by Asst. Inspector of Labour, Nagarcoil v. S. Radhakrishnan, 1989 Cri.L.J. 1161, Janarthanam, J., after holding that the accused-
respondent guilty u/s 25 of the Tamil Nadu Weights and Measures (Enforcement) Act, 1958, in lieu of sentencing him to pay fine, released him u/s
3(1) of the Probation of Offenders Act after due admonition and made it clear that the release of the accused-respondent u/s 3(1) of the Act
would not be construed as a disqualification attached to conviction u/s 12 of the Probation of Offenders Act.
In the light of the legal position, learned counsel for the petitioner would submit that the impugned order of the first respondent dated 13.3.98
removing the petitioner from the services of the Bank cannot be sustained. It is seen that initially the petitioner was charge-sheeted for offences
under Sections 409 and 477-A of the Indian Penal Code and the learned Judicial Magistrate-No. 1 Tiruchirapalli convicted him till the rising of the
court and also directed him to pay fine of Rs.750 in two cases. On the basis of the conviction, his services had been terminated by the then Special
Officer of the 2nd respondent Bank on 3.1.92. As against the conviction and sentence, the petitioner preferred criminal appeal in Cri.Appeal Nos.
236 and 244 of 1990 because he was tried in two criminal cases. In the appeals, the learned sessions Judge, passed an order confirming the
conviction and directed to refund the fine amount and also ordered to release him u/s 3 of the Probation of Offenders Act. Thereafter, he made a
representation based on the judgment of the learned Sessions Judge. Though he was reinstated even on 15.12.97 based on the opinion of the
Government Pleader, after attending duty, the Deputy Registrar of Co-operative Societies issued a direction to the Bank on 29.12.97 for his
removal. Though Mr. C. Selvaraju learned counsel for the petitioner has elaborately argued with reference to the power of the Deputy Registrar of
Co-operative Societies for issuing such direction and contended that as per Section 77 (1) of the co-operative Societies Act, the Registrar alone
has power to direct the Society or a Bank to remove a person from the office and not the other officers in view of the fact that against the
proceedings of the Deputy Registrar of Co-operative societies, the very same petitioner has filed a writ petition before this Court in W. P.No.
1531 of 1998 and obtained stay and the same is also pending as on date, I am of the view that it is unnecessary to consider this aspect in this writ
petition. Though Section 12 of the Probation of Offenders Act does not preclude the department from taking action against his misconduct leading
to the offence or his conviction thereon as per law and as observed by Their Lordships in The Divisional Personnel Officer, Southern Railway and
Another Vs. T.R. Chellappan and Others, , the conviction of a delinquent employee simpliciter without anything more will not result in his automatic
dismissal or removal from service. Added to this, the learned Sessions Judge in order to protect his services, released him u/s 3 of the Probation of
Offenders Act. In the light of the above factual and legal position referred to above, the impugned proceedings of the first respondent dated
13.3.98 is quashed and the respondents are directed to reinstate the petitioner in service with all service benefits and without salary and other
monetary benefits for the period in which he was not in service, within a period of four. (4) weeks from the date of receipt of a copy of this order.
Writ Petition is allowed. No costs. Consequently, W.M.P.No.18000 of 2000 is closed.