Netaji Purshottam Bahire Vs. State of Maharashtra and ors. - Court Judgment

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prisons act, 1894 - sections 46 and 48a - constitution of india, 1950 - article 20(2) and guidelines for premature release framed by state government in 1978; category (6) - double jeopardy - prisoner punished for violating parole - article 20(2) is not attracted.;mere placement of a prisoner from one category to the other under the fixed guidelines for premature release would not amount to either prosecution or punishment. - article 14: [r.m. lodha, s.a. bobde & s.b. deshmukh, jj] retiral benefit - classification between part time lecturers and full time teachers held, the part-time lecturers form a class by themselves and the said classification between part time lecturers and full-time teachers for purpose of granting retrial benefits cannot be said to be unconstitutional or bad in law -- consumer protection act, 1986 -- article 16; right to pension held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. retirement benefit; differentiation between full time teachers and part-time lecturers government resolution providing for retrial benefits to full-time teaching staff part-time lecturer were not entitled to said benefit held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. - 'punishment' means judicial penalty awarded by a court administering criminal law as distinguished from statutory authority and would not include other punishments like disciplinary actions under various provisions including rules of jail or the prisons act. his conduct in the jail for all these years appears to be good.v.a. mohta, j.1. the petitioner netaji bahire is undergoing life imprisonment in yerawada central jail, pune. in sessions trial no. 1 of 1977 decided on 31st may, 1978 by the sessions judge, ratnagiri, he was convicted for an offence under section 302 read with section 303 of the indian penal code and sentenced to life imprisonment and rigorous imprisonment for one year.2. the petitioner is a resident of village kuveshi, taluka rajapur, district ratnagiri. he had applied for parole leave, which was granted. he was released for 10 days on 23rd october, 1981 and upon his request the said leave was extended twice for the same period. he did not surrender in time. after a lapse of period of little more than two years - to be exact on 4th january, 1984 he was arrested by yellow gate police station, bombay for an offence under sections 380 and 447, indian penal code for which he was sentenced to rigorous imprisonment for one month by the metropolitan magistrate, bombay. for not surrendering in jail after expiry of the leave, disciplinary proceedings were initiated against him by the jailor under section 46 read with section 48-a of the prisons act as a result, punishment of forfeiture of earned remissions for 330 days and permanent removal from remission system was imposed upon him.3. by this petition, he has sought premature release on the basis of the old guidelines dated 16th november, 1978 issued by the government for premature releases under the '14 year rule' of prisoners serving life sentences. it is common ground that the crime committed by the petitioner falls under category 3(b) for which 18 years period of total imprisonment including remissions is specified. though he has completed that period, he has not been released because, according to the respondents, he falls in the category of 'escapees' - for which the 24 years period of imprisonment is specified. we reproduce for ready reference the said category :-(6) escapees :prisoners who have escaped from 24 yearslawful custody while undergoing (twenty four years)imprisonment or who absconded while on parole or furlough.'4. two submissions are made by shri gawankar, learned counsel for the petitioner :-(1) placing the petitioner in category (6) amounts to double punishment which is constitutionally prohibited by article 20(2).(2) the petitioner cannot be placed in category (6) because he cannot be said to have 'absconded' as envisaged in that category.we consider both these submissions completely devoid of any substance.5. article 20(2) mentions that 'no person shall be prosecuted and punished for the same offence more than once'. settled legal position is that the terminology 'prosecuted and punished' used in the said clause indicates that the clause is not attracted unless the person has been both prosecuted and punished and that both the proceedings referred to in the clause must be proceedings before a court of law or a judicial tribunal. the prosecution means an initiation of proceedings of a criminal nature before a court of law/judicial tribunal in accordance with the procedure prescribed in the statute, which creates the offence and regulates the punishment. 'punishment' means judicial penalty awarded by a court administering criminal law as distinguished from statutory authority and would not include other punishments like disciplinary actions under various provisions including rules of jail or the prisons act. maqbool hussain v. state of bombay : 1983ecr1598d(sc) .6. in this background, it is impossible to hold that mere placement of a prisoner from one category to the other under the fixed guidelines for premature release would amount to punishment as a result of prosecution. indeed in this placement there is neither prosecution nor punishment.7. our attention was invited by the learned counsel to a division bench decision of this court in dyandeo sidhu pote v. state, criminal writ petition no. 644 of 1992, decided on 8th october, 1992 in which the placement in category (6) of the guidelines was held to attract article 20(2). it is apparent that the attention of the division bench was not drawn to the decisions of the supreme court interpreting the phraseology 'prosecuted and punished' found in that article. with respect, the said decision has been rendered per incuriam.8. second submission is that this is a case of mere overstaying and not absconding. the word 'abscond' means 'to withdraw or absent oneself in a private manner; run away, often with stolen valuables, in order to avoid a legal process; decant (new webster dictionary). distinction between the two concepts is fine but certain. all is a question of intention, for which no direct evidence is generally available. it is question of inference to be drawn from totality of circumstances. common sense is not irrelevant for drawing inferences. here is a case of a convict, who was resident of a far off hamlet in ratnagiri district, and who was housed in a pune jail. he was granted parole for total period of thirty days in three instalments. he neither applied for extension nor surrendered in jail for over two years. he was accidentally apprehended at bombay because of an offence under section 380 read with section 447, indian penal code. from these basic facts and in the absence of any details about his whereabouts during the long period and absence from jail, the only reasonable inference to be drawn is that he is absconding while on parole. this is not a case of mere overstaying.9. in this connection, our attention was invited to a decision of this court in the case of ashok v. state of maharashtra 1988 m.l.j. 903 wherein against the factual backdrop of that case, this court held that it was a case of mere overstaying and not of absconding. the factual background of that case has no similarity with the matter at hand hence the ratio decidendi of that decision cannot apply.10. though we see no merit in any of the points, there is one aspect which cannot be ignored altogether. that is about the penalty of permanent removal from the remission system. that punishment appears to be too harsh. a period of seven years has elapsed since the imposition of this penalty. his conduct in the jail for all these years appears to be good. under all these circumstances, we do hope and trust 'that the authorities would review his case and impose any other reasonable punishment.11. with the above observations, we dismiss this petition and discharge the rule.