Sachchidanand Jha, J.
1. Whether an order of release on execution of bond under Section 4 of the Probation of Offenders Act. 1958 ('the Act' in short) precludes the Government from dismissing a convict employee or entitles him to reinstatement is the point under consideration in this writ petition.
2. The facts giving rise to the petition are short. and simple. The petitioner along with his brother was put on trial for having committed offences under Sections 420 and 406 Indian Penal Code. According to the prosecution case, he had induced the complainant Thithan Paswan to pay him Rs. 2500/- as consideration for providing his unemployed son-in-law a job in the bank. The trial court found the petitioner as also his brother guilty of the offence under Section 420 I PC and sentenced them to undergo two years' rigorous imprisonment. The appellate court maintained the conviction but modified the sentence directing them to be released on execution of bond for keeping peace and good behaviour for a period of one year on 24-5-86 under Section 4 of the Act. Since the finding of guilt and order of conviction was likely to visit the petitioner with civil consequences as regards his status as Government servant, he preferred revision being Cr. Rev. 1313 of 1986 which was admitted to hearing on 19-11 -86. On 3-8-88 the impugned order was passed by the Director of Fisheries dismissing the petitioner from service on the ground of his conviction under Section 420 IPC. The present writ petition was filed on 28-9-88. Since the dismissal was on account of conviction in the criminal case which was under challenge in this Court as aforesaid, the writ petition was admitted to hearing along with Cr. Rev. 1313 of 1986, obviously because in the event of the conviction being set aside, the order of dismissal from service will have to be set aside too. Both the cases, accordingly, were heard together. However, they are disposed of by separate orders. I may mention here that having given my anxious consideration to the facts of the criminal case I am not inclined to interfere with the conviction of the petitioner and on that premise I proceed to consider the validity of the dismissal order.
3. Mr. Shyama Prasad Mukherjee, learned counsel for the petitioner, submitted that by reason of the provisions of Section 12 of the Act, the petitioner cannot be made to suffer any disqualification attached to his conviction and, therefore, the order of dismissal is bad and illegal. Counsel also contended that the order should not have been passed during pendency of the revision and the order was therefore bad on account of non-application of mind. In support of the contention counsel sought to place reliance on the Divisional Personnel Officer, Southern Railway and another v. T. R. Challappan : (1976)ILLJ68SC . He, however, beat a hasty retreat when he was reminded that the said decision had already been overruled in the well known case of Union of India v. Tulsiram Patel : (1985)IILLJ206SC . He then referred to the decisions in Trikha Ram v. V. K. Seth. : AIR1988SC285 and Union of India v. Bakshi Ram : 1990CriLJ1013 in support of the plea that the punishment should be modified and reduced to any other punishment so as not to visit the petitioner with civil consequence in future.
4. Section 12 of the Act, the interpretation of which is called form the case, may be noticed at the outset:-
'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:
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.'
A bare perusal of the section would show that the effect of release of a convict on admonition under Section 3 or execution of bond under Section 4 ' removes the disqualification resulting from conviction. Question is whether the conviction of a Government servant disqualifies him to hold the post. While it is un-disputed that the persons concerned may be subjected to an appropriate punishment relating to a midsconduct leading to his conviction or that he may also be dismissed, removed or reduced in rank on account of his conviction after a departmental enquiry or without any enquiry under proviso (a) to clause (2) of Article 311 of the Constitution, it is equally not in dispute that the conviction by itself does not result in automatic termination of the employment. There arc service rules which disqualify a convict from appointment in public service but I am not aware of any rule which causes automatic termination of his service, the power under proviso (a) to Article 311(2) of the Constitution apart, which power may be exercised in appropriate case only.
5. In Director of Postal Services v. Daya Nand, (1972 LIC 736) a Full Bench of the Delhi High Court while considering the import of Section 12 of the Act and, in particular, the meaning of the term 'disqualification' made the following observations:-
'The ordinary meaning of 'qualification' is the possession of some merit or quality which makes the possessor eligible to apply for or to get some benefit. The word 'disqualification' used in Section 12 has the opposite meanig. It imposes a disability on the person to Whom the disqualification is attached in applying for or getting such benefits. The disqualification contemplated by Section 12 is something attached to conviction, namely, something which is a consequence or the result thereof.'
The ordinary meaning of the term 'disqualify' is 'to deprive of the qualities necessary for any purpose, to make unfit, to disable', while 'disqualification' means 'state of being disqualified, anything that disqualifies or incapacitates'. According to Stroud's Judicial Dictionary (Fifth Edn.) the term means 'personal ineligibility' or 'some condition precedent to his election or appointment has not been fulfilled.' Thus, while a previous conviction may disqualify a person to appointment in public service by virtue of any rule to that effect, the conviction does not necessarily disqualify him in the sense that it would disable or incapacitate him or make him ineligible to hold the post. The power to award him any punishment apart.
6. The apex court in Shankar Dass v. Union of India, : (1985)IILLJ184SC had the occasion to consider the scope of Section 12 of the Act in the context of an order of dismissal of a Government servant resulting from his conviction on a criminal charge. Chandrachud, C. J., who spoke for the Court, observed :-
'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 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 meaning of Section 12. There are statutes which provide that the persons who are convicted for certain offences shall incur certain disqualifications. For example. Chapter III of the Representation of People Act, 1951 entitled 'Disqualification 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.'
The decision in the case of Bakshi Ram (supra) relied upon by the learned counsel for the peptitioner is also to the same effect. Interpreting the provisions of Section 12, it was observed that the Court while invoking the provisions of Sections 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 Court releases him on probation of good conduct, the conviction however remains untouched and the stigma of conviction is not obliterated. It was also said that Section 12, of the Act does not preclude the department from taking any action for misconduct leading to the offence or to his conviction thereon as per law. Dealing with the question of reinstatement in service as the consequence of order under Section 3 and 4, it was said :-
'Section 12, is clear it only directs that 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 disqalification of a peron for being apppointcd 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 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 reinstatement upon getting the benefit of good conduct.'
Their Lordships however took the view, following the case of Trikha Ram (supra), that as the offender is released from disqualifcation attaching to his conviction, he should be removed from service (and not dismissed)' so that the order of punishment does not operate as a bar and disqualification for future employment with the Government.,' and, accordingly, altered the penalty of dismissal from service into 'removal' from service.
7. Thus, the question posed for considration at the outset is answered thus. Dismissal from service based on conviction in a criminal case is not a disqualification' within the meaning of Sec. 12 of the Act. Section 12 neither precludes the Government from taking any departmental action for a misconduct leading to one's conviction as per law nor entitles the convict employee to re-instatement. It may, however, disqualify him from future employment in public services provided rules to that effect are there. Hence, in order to do away with such disqualification, when any order under Sections 3 or 4 is passed by the Court, if the Government or authority decides to take disciplinary action based on such conviction, such punishment as may disqualify him to any appointment in future should not be awarded.
8. Accordingly, I direct that the order of dismissal of the petitioner from service be altered into 'removal from service' as was done in Trikhu Ram : AIR1988SC285 and Bakshi Ram : 1990CriLJ1013 . Subject to this modification, this writ petition is dismissed. There will be no order as to costs.