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1993 Supreme(Guj) 161
Gujarat High Court
Judgename :C.K.THAKKER
P.J.RADADIA - Appellant
Versus
STATE BANK OF SAURASHTRA - Respondent
S.C.A.3346 of 1991
Decided On : 04/26/1993
Headnote:Service & Employment - Dismissal - Release on probation in case of misappropriation of Rs. 1,65,000/- - Petitioner could not claim reinstatement on ground that he was neither convicted nor sentenced - Probation is granted only after recording conviction.
The release of the offender on probation does not obliterate the stigma of conviction. In criminal trial, conviction is one thing and sentence is another. The court while invoking the provisions of the Probation of Offenders Act, 1958 or Section 360 of the Code of Criminal Procedure, 1973, does not interfere with conviction. It only deals with sentence 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 undisturbed. In fact, finding of guilt and conviction by a competent court is a sine qua non for the order of release of offender on probation. Here justice is tempered with mercy intended to reform the offender with a view of seeing that he does not become hardened criminal. Court is, therefore, unable to accept the argument that the order releasing the petitioner on probation obliterated conviction and hence the petitioner could claim reinstatement.
[Para 5]
Bipartite Settlement of 1966 - Clause 19.3(b) - Power of dismissal with retrospective effect - Constitutional validity - In substance such an order is from date of order with superadded direction that the order should operate retrospectively as from an anterior date - No illegality or invalidity in order specially when covered under Bipartite binding Settlement.
An order of dismissal withs retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to the valid and severable part of the order.
[Para 7]
In the instant case, there is a binding settlement which empowers the respondent-bank to dismiss its employees retrospectively and thus even that action is permissible. Court, therefore, does find any substance in that contention.
[Para 8]
Constitution of India, 1950 - Arts. 311 & 311(2) - Cashier was clerk with Bank - Not a Civil servant - Provisions of Art 311(2) could not be pressed into service - In the instant case even after conviction show cause notice given & reply considered before order - Order not illegal.
It is an admitted fact that even after conviction, a show cause notice, was issued to the petitioner, his reply was considered and thereafter the order of punishment was passed. The said action can never be said to be illegal or contrary to law. The provisions of Art.311(2) of the Constitution of India cannot be pressed into service by the petitioner inasmuch as he cannot be said to be a "Civil servant" within the meaning of Article 311.
[Para 6]
( 1 ) THIS petition is filed against an order of dismissal passed by the Regional Manager of the State Bank of Saurashtra on 8/01/1991 and confirmed by the Zonal Manager (Appellate Authority) on 15/03/1991 being illegal, ultra vires and unconstitutional.
( 2 ) TO appreciate the controversy raised in the petition, few relevant facts may now be stated : it is the case of the petitioner that he was working as Cashier-cumclerk with the respondent-Bank of Jasdan Branch. A complaint was filed against him on 15/09/1989 in connection with offences punishable under Sees. 420, 419 and 467 of the Indian Penal Code. It was alleged against the petitioner that by tempering with a demand draft of a customer of the Bank, the petitioner misappropriated an amount of Rs. 1,65,000/ ~, A criminal case came to be registered against him. The petitioner pleaded guilty to the charge on 15/03/1990 and prayed for grant of probation. Judicial Magistrate (First Class), Jasdan after considering the facts and circumstances, released the petitioner on probation for a period of three years by a judgment and order dated 30/04/1990. In the meanwhile, however, the petitioner was suspended by an order dt. 15/08/1989 by the Bank after criminal case was filed and the petitioner was arrested. After the judgment by the Criminal Court, the petitioner applied for reinstatement in service but a notice came to be issued by the respondent- bank on 13/09/1990, asking him to show cause as to why he should not be dismissed from service with effect from the date of the judgment of Judicial Magistrate (First Class), Jasdan, i. e. , from 30/04/1990. The petitioner submitted his reply. By the impugned order, the Regional manager dismissed the petitioner from service with retrospective effect and the order came to be confirmed by the appellate authority. Being aggrieved by these orders, the petitioner has approached this Court by filing the present petition.
( 3 ) MR. P. V. Hathi, learned Counsel for the petitioner contended that the order is illegal, inasmuch as no retrospective effect could have been given to the order of dismissal. He also contended that Clause 19. 3 (b) of Bipartite Settlement of 1966 by which such power is conferred on the Bank to dismiss an employee with retrospective effect must be held to be arbitrary, unreasonable and ultra vires. It was submitted that there was total non-application of mind on the part of the Bank in not considering the material fact that the petitioner was not convicted and sentenced but was granted probation and, hence, he could not have been dismissed from service. No reasonable opportunity was afforded to the petitioner and the bank had pre-judged and pre-determined the issue. The order is thus violative of Art. 311 of the Constitution of India. Finally, it was submitted that the appellate authority recorded some additional reasons for which no opportunity of being heard was given to the petitioner. The order passed by the appellate authority was, therefore, violative of the principles of natural justice and fair play.
( 4 ) MR. A. S. Vakil for Mr. S. B. Vakil, on the other hand, supported the order passed by the respondent-authority. He submitted that when probation was granted to the petitioner, it could not be said that he was not convicted. In fact probation was granted to the petitioner only because he was convicted. Benefit of probation can be granted only after recording conviction against the offender. He submitted that Clause 19. 3 (b) on which reliance was placed by the Bank is legal and valid. It was pursuant to the settlement dated 10/10/1966 known as first Bipartite Settlement of 1966 that the Bank is entitled to dismiss its employees with retrospective effect. It is specifically stated in the affidavit of Mr. P. L, Vijaykumar, Deputy manager (Law), State Bank of Saurashtra, that the Bank is entitled to dismiss its employee retrospectively by exercising power under Clause 19. 3 (b) of the settlement and that
