SHANKER DASS versus UNION OF INDIA & ANR.

Citation: [1985] 3 S.C.R. 163 · Decided: 12-03-1985 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Case Allowed

Judgment (excerpt)

.) 
' 
SHANKER DASS 
v. 
UNION OF INDIA & ANR. 
March 12, 1985 
(Y.V. CHANDRACHUD. C.J., D.A. DESAI AND AMARENDRA NA-TH 
. 
SE!\, J.J.J 
Constitution of India 1950, Article 311 (2) and Probation of Offenders Act 
1958, Sections 3,4and12~-E1nployee~Prosecuted and convicted for' breach of 
trust-Released under the Probation of Offenders Act-Dismissed from service 
summarily consequent upon convicti~n-:-DismiSsa/ order whether permissible and 
valid-Right to impose penalty ~arries with it a duty- to act justly. 
Words & Phrase ; 
'disqualification'-Meanlng of sectioa 12 Probation 
of Offenders Act, 
1958. 
The appellant was employed as a Cash Clerk in a Department under 
the ad1ninistrative control of the Government of India. He was prosecuted for 
breach of trust in respect of a sum of Rs. 500. He repaid the amount and 
pleaded guilty to the charge. The Magistrate accepting the pica convicted the 
appellant under [section 409 of the Indian Penal Code, but having regard to 
the peculiar circ.umstances relatin~ to the crime and the adverse circumstances 
in which the appeHant was placed, when he committed the offence, viz. his 
son died during the Period, his wife fell down from an upper storey and was 
seriously injured, hi<l daughter fell ill and that illness lasted for about eight 
months ; released him under section 4 of the Probation of _Offenders Act, 1958 
As a result of thi~ conviction, the appellant was dismissed from service sum-
marily, 
The appellant filled a suit for setting aside his dismissal from service, 
contending that since he was relased under the Probation of Offenders Act, 
A 
B 
c 
D 
E 
F 
1958, it was not permissible for the al:!;thorities to impose the penalty of"dis-
G 
missal from service. The suit was diSi;nissed on the ground that since the 
appellant was convicted of a criminal ~barge he was liable to be dismissed 
under clause (a) of the second proviso to Article 311(2) of the Constitution. 
The appellant's first appeal was dismissed, but the second appeal to the 
High Court was allowed by a Single Judge on the ground that by virtue of the 
provision contained in section 12 of the Probation of Offenders Act 1958, the 
A 
164 
SUPREME COURT REPORTS 
(1985] 3 S. C.R. 
a ppe1lant could not 
be dismissed from service without affording him a 
r~asonable opportunity of being heard, as required by Arti~le 311 (2) of the 
Constitution. The Letters Patent Appea I of the Government of India against 
the judgment was allowed by a Division Bench. 
Allowing the appellant's appeal to this Court, 
B 
HELD : 1. The Judgment of the Division Bench of the High Court in 
c 
D 
E 
F 
G 
the Letters Patent is set aside, and the appellant shall be reinstated in service 
forthwith, with full back wages from the date of dismissal until reinstate-
ment. I 168EJ 
2. Section 12 of the Probation of Offenders Act, 1958 provides that 
notwithstanding anything contained in any other law, a per_.::on found guilty of 
an offence and dealt with under the provision:> of section 3 or 4 thereof, 
"shall not suffer disqualHlcation" 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, entitied "Disqualifications for membership of Pariament 
and State Legislatuers" and Chapter IV entitled "Disqualifications for Voting" 
contain provisions which disqualify persons convicted of certain charges from 
C:eing members of legislatures or from voti,1g at ell!ctions to legislatures. That is 
the sense in which th'J w:>rd "di')Qllalific1tion" is used in section 12 of the 
Probation of Offenders Act, 1958. [166F-HJ 
In the instant case, it is therefore not possible to accept the reasoning 
of the Single Judge~in the Second Appeal. 
3. Clause (a) of the second proviso to Article 311 (2) of the Constitution 
confers on the Government the power to dismiss a person fro1n &ervice ''on the 
ground of conduct which has led to his conviction on a criminal charge''. But, 
that power, 1ike every other power has to be exercised fairly, justly and reason~ 
ably. The Constitution do;;e not contemplate that a Government servant who is 
convicted for parking his scooter in a no-parking area should be dismissed fro:n 
service. 
H

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