BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 30/11/2010

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD).No.4839 of 2010

A.John Antony doss .. Petitioner

1.Director of Technical Education,

Chennai-25.

2.The Principal,

Government Engineering College,

Tirunelveli. .. Respondents

PRAYER

Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorarified Mandamus calling for the records connected with the impugned order of dismissal passed by the second respondent in his proceedings No.4608/E2/05 dated 13.06.05 and confirmed by the first respondent and the contents of the same was communicated by the second respondent by his order dated 12.02.2010 in proceedings No.3529/E2/06 and quash the same and consequently direct the second respondent to reinstate the petitioner with continuity of service with all other monetary and other service benefits.

!For Petitioner ... Mr.S.Govindan

^For Respondents... Mr.S.C.Herlod Singh

Government Advocate

:ORDER

The petitioner has come forward to challenge the order of the second respondent, the Principal, Government Engineering College, Tirunelveli, dated 13.06.2005 and confirmed by the first Respondent by order, dated 12.02.2010 and after setting aside the same seeks for a direction to reinstate him with continuity of service with all other monetary benefits.

2. Notice of motion was ordered on the writ petition on 12.04.2010. Though notice were served on the respondents, no counter affidavit was filed.

3. Heard Mr.S.Govindan, learned counsel appearing for the petitioner and Mr.S.C.Herold Singh, learned Government Advocate appearing for the respondents.

4. The case leading to the termination of the petitioner was as follows; a)The petitioner was appointed on compassionate ground as Gardener by the second respondent and his services were regularised on 03.07.1986 and he had also completed his probation on 02.07.1987. Subsequently, he was appointed as Watchman in the time scale of pay and he had also got selection grade on 22.04.1997.

b)The petitioner was involved in a road accident on 21.08.2003 in which his cycle and motor cycle of the Principal was involved. At the instance of the second respondent, a criminal case was registered against the petitioner at Perumalpuram Police Station, Tirunelveli in Cr.No.1301 of 2003 for offences under Sections 341, 307 and 427 IPC and it was tried in S.C.No.392 of 2003 under Sections 341, 307 and 427 IPC.

c) The Chief Judicial Magistrate, Tirunelveli by judgment, dated 10.02.2005 convicted the petitioner in respect of the offences under Sections 341, 323 and 427 IPC and imposed a fine of Rs.500/- in default one week simple imprisonment for the offence under Section 341 IPC; sentenced to undergo one year rigorous imprisonment and imposed a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment for the offence under Section 323 IPC and imposed a fine of Rs.500/- in default to undergo one month simple imprisonment for the offence under Section 427 IPC.

d) During trial before the criminal Court, the College Principal Senthil was examined as PW5. It was stated that the petitioner while going in the road deliberately put the cycle as an obstruct, so to prevent the Principal's Motor cycle to go out further and the Principal fell down and sustained injuries. But, the Court below found that there was no premediation and even to assess the nature of injuries, the doctor was not examined before the criminal Court. So that the second respondent gave a memo to the petitioner and he has been warned and let off many times. As soon as the order of the criminal Court made available, the second respondent by an order, dated 13.06.2005 removed the petitioner from service on the strength of the conviction. e) The petitioner preferred an appeal against his conviction before the Sessions Court in Crl.A.No.53 of 2005. The Additional Sessions Judge, Fast Track Court No.I, Tirunelveli by his judgment dated 27.04.2006 confirmed the finding rendered by the trial Court. However, let off the petitioner under the provisions of Probation of Offenders Act, after getting good conduct by entering the jail for three years, in terms of Section 4(1) of the Probation of Offenders Act. On the strength such order, the petitioner preferred an application to the second respondent and brought to his notice about his subsequent release by the provisions of the Probation of Offenders Act. f)The petitioner also filed an appeal to the first respondent, the Director of Technical Education, Chennai, who in turn sought for information of the State Government. The State Government by communication, dated 17.10.2007 rejected the request and recorded as follows in the said communication; "I am directed to invite attention to your letter cited and to inform you that the Appellate Court has upheld the findings of the lower Court regarding conviction and as the conviction of the individual has not been set aside and it still persists the Government is not bound to reinstate the individual in service as the removal of the individual from service itself is ordered based on the conviction ordered by the Court of Assistant Sessions Judge and Chief Judicial Magistrate.

Challenging these two orders, the writ petition came to be filed.

5. Notice of motion was ordered on 12.04.2010. Mr.S.Govindan, learned counsel appearing for the petitioner, placed reliance upon the following two judgments of the Honourable Supreme Court

i) (1985) 2 SCC 358 (SHANKAR DASS V. UNION OF INDIA)

ii) (1976) 3 SCC 190 (DIVISIONAL PERSONNEL OFFICER V. T.R.CHELLAPPAN)

and contended that Section 12 of the Probation of Offenders Act, 1958 will not be a bar for continuance of public servant and no independent charges were framed by way of any disciplinary proceedings.

6. However, in the above two decisions cited by the learned counsel for the petitioner, the binding precedent of the Supreme Court where neither noted or even if noted were not discussed in respect of the issue on hand. The Supreme Court vide judgment in T.R.CHELLAPPAN's case (cited supra) dealt with the scope of the release under the Probation of Offenders Act and service jurisprudence. In paragraphs 11 to 13 the Honourable Supreme Court has held as follows; "11. This brings us to the consideration of two interconnected questions, namely, as to what is the effect of the order of the Magistrate releasing the accused on probation and the effect of Section 12 of the Probation of Offenders Act. It was suggested by the respondents that if the Magistrate does not choose, after convicting the accused, to pass any sentence on him, but releases him on probation then the stigma of conviction is completely washed out and obliterated, and, therefore, Rule 14(i) of the Rules of 1968 will not apply in terms. We are, however, unable to agree with this somewhat broad proposition. A perusal of the provisions of the Probation of Offenders Act, 1958, clearly shows that the mere fact that the accused is released on probation does not obliterate the stigma of conviction. The relevant portion of Section 3 of the Probation of Offenders Act, 1958, hereinafter referred to as 'the Act' runs thus: "? notwithstanding anything contained in any 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 under Section 4, release him after due admonition."

Similarly the relevant part of Section 4(1) of the Act runs thus: "?notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour."

Section 9(3) and (4) of the Act reads as under:

"9. (3) If the Court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith-

(a) sentence him for the original offence; or

(b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the Court may fix, the Court may sentence the offender for the original offence."

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 of release on probation of the offender. The order of release on probation is merely in substitution of the sentence to be imposed by the 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 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. 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 unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.

12. Another point which is closely connected with this question is as to the effect of Section 12 of the 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, if any, 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 18 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 Article 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 principles 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.

13. It was, however, suggested that Rule 14(i) of the Rules of 1968 is the provision which contains the disqualification by dispensing with the departmental inquiries contemplated under Rules 9 to 13 of the said Rules. This cannot be the position, because as we have already said Rule 14(i) only incorporates the principle of proviso (a) to Article 311(2). If Section 12 of the Probation of Offenders Act completely wiped out the disqualification contained in Article 311(2) proviso (a) then it would have become ultra vires as it would have come into direct conflict with the provisions of the proviso (a) to Article 311(2). 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."

7. On the question of imposing penalty on the strength of such conviction in paragraph 21, the Supreme Court has observed as follows;

21. The word "consider" has been used in contradistinction to the word "determine". The rule-making authority deliberately used the word "consider" and not "determine" because the word "determine" has a much wider scope. The word "consider" merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the final orders that may be passed by the said authority. In other words, the term "consider" postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an inquiry would be a summary inquiry to be held by the disciplinary authority after hearing the delinquent employee. It is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under Rule 14 of the Rules of 1968 which incorporates the principle contained in Article 311(2) proviso (a). This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T.R. Chellappan in Civil Appeal No. 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where no major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider, but I have mentioned some of these factors by way of instances which are merely illustrative and not exhaustive. In other words, the position is that the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction. This is a very salutary provision which has been enshrined in these Rules and one of the purposes for conferring this power is that in cases where the disciplinary authority is satisfied that the delinquent employee is a youthful offender who is not convicted of any serious offence and shows poignant penitence or real repentance he may be dealt with as lightly as possible.

. . .

The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fairplay. The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interests of administration to retain such a person in service."

8. Reference was also made to the judgment reported in 1985 2 SCC 358,(cited supra), wherein the Honourable Supreme Court once again considered the scope of the relief that can be claimed under Section 12 of the Probation of Offenders Act. In paragraphs 4 and 7 it was observed as follows;

4. 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 Section 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 Section 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 "Disqualifications 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 Section 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.

7. 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 insofar 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 no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 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."

9. But, T.R.CHELLAPPAN's case (cited supra) came to be reviewed by the Constitution Bench of the Supreme Court in Union of India v. Tulsiram Patel reported in (1985) 3 SCC 398. The Supreme Court analysed the scope of Article 311(2)(a) of the Constitution of India and held as follows :

114.So far as Challappan case1 is concerned, it is not possible to find any fault either with the view that neither clause (a) of the second proviso to Article 311(2) nor clause (i) of Rule 14 of the Railway Servants Rules is mandatory or with the considerations which have been set out in the judgment as being the considerations to be taken into account by the disciplinary authority before imposing a penalty upon a delinquent government servant. Where a situation envisaged in one of the three clauses of the second proviso to Article 311(2) or of an analogous service rule arises, it is not mandatory that the major penalty of dismissal, removal or reduction in rank should be imposed upon the concerned government servant. The penalty which can be imposed may be some other major penalty or even a minor penalty depending upon the facts and circumstances of the case. In order to arrive at a decision as to which penalty should be imposed, the disciplinary authority will have to take into consideration the various factors set out in Challappan case1. It is, however, not possible to agree with the approach adopted in Challappan case1 in considering Rule 14 of the Railway Servants Rules in isolation and apart from the second proviso to Article 311(2), nor with the interpretation placed by it upon the word "consider" in the last part of Rule 14. Neither Rule 14 of the Railway Servants Rules nor a similar rule in other service rules can be looked at apart from the second proviso to Article 311(2). The authority of a particular officer to act as a disciplinary authority and to impose a penalty upon a government servant is derived from rules made under the proviso to Article 309 or under an Act referable to that article. As pointed out earlier, these rules cannot impinge upon the pleasure of the President or the Governor of a State, as the case may be, because they are subject to Article 310(1). Equally, they cannot restrict the safeguards provided by clauses (1) and (2) of Article 311 as such a restriction would be in violation of the provisions of those clauses. In the same way, they cannot restrict the exclusionary impact of the second proviso to Article 311(2) because that would be to impose a restriction upon the exercise of pleasure under Article 310(1) which has become free of the restrictions placed upon it by clause (2) of Article 311 by reason of the operation of the second proviso to that clause. The only cases in which a government servant can be dismissed, removed or reduced in rank by way of punishment without holding an inquiry contemplated by clause (2) of Article 311 are the three cases mentioned in the second proviso to that clause. A rule which provides for any other case in which any of these three penalties can be imposed would be unconstitutional. Service rules may reproduce the provisions of the second proviso authorizing the disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a rule, however, cannot be valid and constitutional without reference to the second proviso to Article 311 (2) and cannot be read apart from it. Thus, while the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of his power to dispense with the inquiry is derived from the second proviso to Article 311(2) and not from any service rules. There is a well-established distinction between the source of authority to exercise a power and the source of such power. The Court in Challappan case1 was, therefore, in error in interpreting Rule 14 of the Railway Servants Rules by itself and not in conjunction with the second proviso (at that time the only proviso) to Article 311(2). It appears that in Challappan case1 the Court felt that the addition of the words "the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit" warranted an interpretation of Rule 14 different from that to be placed upon the second proviso. This is also not correct. It is true that the second proviso does not contain these words but from this it does not follow that when acting under the second proviso, the disciplinary authority should not consider the facts and circumstances of the case or make an order not warranted by them. It is also not possible to accept the interpretation placed upon the word "consider" in Challappan case1. According to the view taken in that case, a consideration of the circumstances of the case cannot be unilateral but must be after hearing the delinquent government servant. If such were the correct meaning of the word "consider", it would render this part of Rule 14 unconstitutional as restricting the full exclusionary operation of the second proviso. The word "consider", however, does not bear the meaning placed upon it in Challappan case1. The word "consider" is used in Rule 14 as a transitive verb. The meaning of the word "consider" as so used is given in the Oxford English Dictionary as "To contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of". The relevant definition of the word "consider" given in Webster's Third New International Dictionary is "to reflect on: think about with a degree of care or caution". Below this definition are given the synonyms of the word "consider" these synonyms being "contemplate, study, weigh, revolve, excogitate". While explaining the exact different shades of meaning in this group of words, Webster's Dictionary proceeds to state as under with respect to the word 'consider':

" 'Consider' often indicates little more than think about. It may occasionally suggest somewhat more conscious direction of thought, somewhat greater depth and scope, and somewhat greater purposefulness."

It is thus obvious that the word "consider" in its ordinary and natural sense is not capable of the meaning assigned to it in Challappan case1. The consideration under Rule 14 of what penalty should be imposed upon a delinquent railway servant must, therefore, be ex parte and where the disciplinary authority comes to the conclusion that the penalty which the facts and circumstances of the case warrant is either of dismissal or removal or reduction in rank, no opportunity of showing cause against such penalty proposed to be imposed upon him can be afforded to the delinquent government servant. Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Challappan case1. As pointed out earlier, considerations of fair play and justice requiring a hearing to be given to a government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte ad interim orders on the application of a plaintiff, petitioner or appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order?

115.The decision in Challappan case1 is, therefore, not correct with respect to the interpretation placed by it upon Rule 14 of the Railway Servants Rules and particularly upon the word "consider" occurring in the last part of that rule and in interpreting Rule 14 by itself and not in conjunction with the second proviso to Article 311(2). Before parting with Challappan case1, we may, also point out that that case never held the field. The judgment in that case was delivered on September 15, 1975, and it was reported in (1976) 1 SCR at pages 783 ff*. Hardly was that case reported then in the next group of appeals in which the same question was raised, namely, the three civil appeals mentioned earlier, an order of reference to a larger Bench was made on November 18, 1976. The correctness of Challappan case1 was, therefore, doubted from the very beginning.

127.Not much remains to be said about clause (a) of the second proviso to Article 311(2). 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 case1. 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 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 v. Union of India464 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.

147.In all matters before us the challenge to the validity of the impugned orders was confined only to legal grounds, the main ground being based upon what was held in Challappan case1 and the application of principles of natural justice. The contentions with respect to these grounds have been considered by us in the preceding part of this Judgment and have been negatived. In most of the matters the writ petitions contain no detailed facts. Several of the petitioners have gone in departmental appeal but that fact is not mentioned in the writ petitions nor the order of the appellate authority challenged where the appeals have been dismissed. Many government servants have combined together to file one writ petition and in the case of such of them whose departmental appeals have been allowed and they reinstated in service, the petitions have not been amended so as to delete their names and they have continued to remain on the record as petitioners. Several petitions are in identical terms, if not, almost exact copies of other petitions. No attempt has been made in such matters to distinguish the case of one petitioner from the other. Apart from contesting the legal validity of the impugned orders, hardly anyone has even stated in his petition that he was not involved in the situation which has led to clause (b) or clause (c) of the second proviso to Article 311 being applied in his case. There is no allegation of mala fides against the authority passing the impugned orders except at times a me re bare allegation that the order was passed mala fide. No particulars whatever of such alleged mala fides have been given. Such a bare averment cannot amount to a plea of mala fides and requires to be ignored. In this unsatisfactory state of affairs so far as facts are concerned, the only course which this Court can adopt is to consider whether the relevant clause of the second proviso to Article 311(2) or of an analogous service rule has been properly applied or not. If this Court finds that such provision has not been properly applied, the appellant or the petitioner, as the case may be, is entitled to succeed. If, however, we find that it has been properly applied, the appeal or petition would be liable to be dismissed, because there are no proper materials before the Court to investigate and ascertain whether any particular government servant was, in fact, guilty of the charges made against him or not. It is also not the function of this Court to do so because it would involve an inquiry into disputed questions of facts and this Court will not, except in a rare case, embark upon such an inquiry. For these reasons and in view of the directions we propose to give while disposing of these matters, we will while dealing with facts refrain from touching any aspect except whether the particular clause of the second proviso to Article 311(2) or an analogous service rule was properly applied or not.

10. Therefore, a release under the Probation of Offenders Act is certainly a conviction empowering the disciplinary authority to inflict punishment in terms of Article 311(2)(a). In such cases there is no necessity to hold any enquiry and the competent authority can take advantage of the punishment imposed on the Government Servant. Further he has applied his mind before inflicting the punishment as noted in above cases.

11. However, the Supreme Court in Union of India v. Parma Nanda reported in (1989) 2 SCC 177 carved out one exception of penalty inflicted under Article 311(2)(A) namely the Government servant being removed from services on the circumstances that lead to his conviction by the criminal Court. In those cases, the Court once again refused to go into the proportionality of the punishment imposed by the authority. The Honourable Supreme Court in that judgment has observed as follows;

"29.We may however, carve out one exception to this proposition. There may be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under clause (a). This power has been conceded to the court in Union of India v. Tulsiram Patel10 where Madon, J., observed: (SCC pp. 501-02, para 127)

"[W]here 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.... 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 government servant concerned. 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 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 v. Union of India11 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."

12. But, in the light of the Parma Nanda's case (cited supra), this Court by itself is not inclined to go into the proportionality of the punishment. But, both the authorities have not applied the mind on the said issue.

13. But, in the present case, the impugned order came to be passed on the strength of the conviction of the judgment of the trial Court and the impugned order of the second respondent on advise from the state Government came to be passed on the strength of the appellate Court order. The State Government by letter dated 17.10.2007 had communicated to the first respondent and the first respondent based on the communication from the Government gave a correct decision that release under the probation of Offenders Act also amount to conviction, but there is no discussion, whether the appellate authority has applied his mind in respect of the proportionality of the punishment met out by the petitioner.

14. Therefore, the impugned orders are liable to be set aside. Accordingly they are set aside and the matter is remanded for fresh disposal by the second respondent. The second respondent will apply his mind on the basis of the judgment obtained by the petitioner in the criminal Court in C.C.No.53 of 2005 dated 27.04.2006 and also decide the nature of punishment should be inflicted on the petitioner, in accordance with law, within a period of 12 weeks from the date of receipt of a copy of this order and the result should be communicated to the petitioner. Thereafter, if the petitioner is still aggrieved about any adverse order passed by the second respondent, there is time enough for him to approach this Court after exhausting all remedies available under law.

15. In the result, the writ petition is partly allowed to the extent indicated above. No costs.

jikr

To

1.Director of Technical Education,

Chennai-25.

2.The Principal,