IMPORTANT POINTS
An order made under the provisions of the probation of offenders Act, would not prohibit initiation of disciplinary proceeding in case of commission of a grave act of indiscipline.
The term ‘considers and determine’ in proviso (b) of Article 311(2), Constitution of India would not carry with it the principles of natural justice.
Misconduct of physically assaulting a higher authority being a serious matter, in such a case efflux of time would not come in the way of initiating departmental proceedings if there exists a satisfactory explanation for delay

JUDGMENT

S.B. Sinha, J.—

Leave granted.

2.These two appeals by special leave involving common question of law and fact were taken up for hearing together and are being disposed of by a common judgment. Respondents herein were employed on work charge basis. One of the workman was transferred. Respondents were opposing the said order of transfer. They allegedly assaulted one of their senior officers as the said order of transfer despite protests was not cancelled. A First Information Report was lodged. Their services were terminated on 8.8.1994. They were found guilty in the criminal case and were convicted by the learned Trial Judge by an order dated 29.4.2000. They preferred an appeal thereagainst. However, an industrial dispute was raised questioning the said order of termination. The said dispute was referred to the Labour Court for adjudication by the State Government. By an Award, re-instatement of the respondents was directed by the said Court with continuity of service but without back wages. A Writ Petition preferred thereagainst by the appellant was dismissed by the High Court by an Order dated 22.11.2000, whereupon the respondent joined his services. In the meanwhile, an appeal preferred by the respondent was also dismissed by an Order dated 17.4.2001 by the appellate court. A show cause notice was issued as to why their services should not be terminated in view of the judgment of conviction having been upheld by the learned Additional District Judge. Respondents filed their show cause whereafter an order terminating their services on the charges of misconduct was passed on 6.8.2001. On a revisional application filed by the respondents, the High Court by a Judgment dated 24.8.2001 directed them to be released on probation.

3.A Writ Petition filed by the respondents was disposed of directing the petitioner to decide the representations made by them within two months. Pursuant to the said Order, a representation was filed which was rejected. A writ petition was again filed questioning the said order which by reason of the impugned judgment has been allowed by the High Court.

4.Mr. Vijay Kaushal, learned counsel appearing on behalf of the appellant raised short contention in support of this appeal viz. that High Court committed a manifest error in passing the impugned judgment, insofar as it failed to take into consideration that the respondents being guilty of a serious misconduct, could not have been directed to be re-instated in services only because they were let off on probation. Strong reliance in this behalf has been placed on Union of India and Others v Bakshi Ram1 [(1990) 2 SCC 426].

5.Mr. Nidhesh Gupta, learned counsel appearing on behalf of the respondent, on the other hand, submitted that this Court should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India having regard to the passage of time and particularly in view of the fact that no disciplinary proceeding was initiated against the delinquent employees.

6.The learned counsel relying on the decision of this Court in The Divisional Personnel Officer, Southern Railway and Another v. T.R. Chellappan etc.2 [(1976) 3 SCC 190] urged that services of an employee cannot be terminated without initiating any departmental proceedings. The learned counsel argued that in any event the appellant having not questioned the Award of the Labour Court, was bound to give effect thereto.

7.This Court in various decisions has considered the application of the provisions of Probation of Offenders Act, 1958; the purpose whereof not marring the offenders normal life by removing him from the natural surrounding of his house. See Arvind Mohan Sinha v. Amulya Kumar Biswas and Others3 [(1974) 4 SCC 222] and Hansa v. State of Punjab4 [(1977) 3 SCC 575].

8.We are, however, not called upon to determine a question as to whether the High Court was correct in its judgment giving benefit of the Probation of Offenders Act to the respondents. The quest