Case Note & Summary
The petitioner, Amit Mohod, applied for a clerical post in the Bank of India. During the recruitment process, it was revealed that he had been convicted under Section 379 read with Section 34 IPC for theft of a motor vehicle in 2003. The Judicial Magistrate First Class, Chandur Bazar, instead of sentencing him, released him on probation under Section 3 of the Probation of Offenders Act, 1958. The bank, relying on Section 10(1)(b)(i) of the Banking Regulations Act, 1949, which disqualifies persons convicted of offences involving moral turpitude from being employed in banking, cancelled his candidature. The petitioner challenged this cancellation, arguing that Section 12 of the Probation of Offenders Act provides that a person released on probation shall not suffer any disqualification attached to a conviction. The court examined the interplay between the two statutes. It noted that Section 12 of the Probation Act contains a non-obstante clause but does not obliterate the fact of conviction; it only removes certain disqualifications that are a consequence of the sentence. The disqualification under Section 10(1)(b)(i) of the Banking Regulations Act is triggered by the conviction itself, not by the sentence. The court held that the benefit of probation does not erase the conviction for the purpose of employment in a nationalized bank. The petition was dismissed, and the bank's decision to cancel the candidature was upheld.
Headnote
A) Service Law - Disqualification - Conviction and Probation - Section 12 of Probation of Offenders Act, 1958 - Section 10(1)(b)(i) of Banking Regulations Act, 1949 - The petitioner was convicted under Section 379 read with Section 34 IPC for theft of a motor vehicle and released on probation. The bank cancelled his candidature citing disqualification under Section 10(1)(b)(i) of the Banking Regulations Act, 1949. The court held that Section 12 of the Probation of Offenders Act does not erase the fact of conviction for the purpose of disqualification under other statutes. The disqualification under the Banking Regulations Act is automatic upon conviction, and the benefit of probation does not remove it. The petition was dismissed. (Paras 1-10)
B) Criminal Law - Probation - Effect of Section 12 - Probation of Offenders Act, 1958, Section 12 - The non-obstante clause in Section 12 provides that the offender shall not suffer disqualification attached to a conviction under any law. However, this provision does not apply where the disqualification is imposed by a special statute like the Banking Regulations Act, which operates independently. The court distinguished between disqualification arising from the fact of conviction and disqualification arising from the sentence. (Paras 5-8)
Issue of Consideration
Whether the benefit of probation granted under Section 3 of the Probation of Offenders Act, 1958, read with Section 12 thereof, absolves the petitioner from the disqualification under Section 10(1)(b)(i) of the Banking Regulations Act, 1949, thereby entitling him to employment in a nationalized bank.
Final Decision
The petition is dismissed. The communication dated 28.08.2012 cancelling the petitioner's candidature is upheld. No order as to costs.
Law Points
- Probation of Offenders Act
- 1958
- Section 12 does not obliterate the fact of conviction for purposes of disqualification under other statutes
- Banking Regulations Act
- 1949
- Section 10(1)(b)(i) disqualifies persons convicted of offences involving moral turpitude
- Benefit of probation does not remove the disqualification arising from conviction
Case Details
2013 LawText (BOM) (02) 103
Writ Petition No. 4702 of 2012
B.P. Dharmadhikari, P.B. Varale
Shri A.S. Chandurkar for petitioner, Shri Rohit Deo with Shri U.A. Gosavi for respondents
Amit s/o Subhashrao Mohod
The Bank of India, The Zonal Manager
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the cancellation of candidature for employment in a nationalized bank.
Remedy Sought
Petitioner sought quashing of the communication dated 28.08.2012 cancelling his candidature and direction to the bank to consider his application for the post of Clerical cadre.
Filing Reason
The bank cancelled the petitioner's candidature for the post of Clerical cadre citing disqualification under Section 10(1)(b)(i) of the Banking Regulations Act, 1949 due to his conviction under Section 379 read with Section 34 IPC, despite the fact that he was released on probation under the Probation of Offenders Act, 1958.
Previous Decisions
The Judicial Magistrate First Class, Chandur Bazar, in Regular Criminal Case No. 133 of 2003 on 06.02.2008 convicted the petitioner and another accused under Section 379 read with Section 34 IPC and released them on probation under Section 3 of the Probation of Offenders Act, 1958.
Issues
Whether Section 12 of the Probation of Offenders Act, 1958, overrides the disqualification under Section 10(1)(b)(i) of the Banking Regulations Act, 1949, so as to entitle the petitioner to employment despite his conviction.
Whether the benefit of probation erases the fact of conviction for all purposes, including disqualification for employment in a nationalized bank.
Submissions/Arguments
Petitioner argued that Section 12 of the Probation of Offenders Act contains a non-obstante clause and therefore overrides all other laws, including the Banking Regulations Act, and that he cannot be subjected to any disqualification on account of the conviction.
Respondents argued that the disqualification under Section 10(1)(b)(i) of the Banking Regulations Act is automatic upon conviction and is not removed by the grant of probation, as Section 12 only removes disqualifications attached to the sentence, not the conviction itself.
Ratio Decidendi
Section 12 of the Probation of Offenders Act, 1958, does not obliterate the fact of conviction; it only removes certain disqualifications that are a consequence of the sentence. The disqualification under Section 10(1)(b)(i) of the Banking Regulations Act, 1949, is triggered by the conviction itself, not by the sentence. Therefore, the benefit of probation does not remove the disqualification for employment in a nationalized bank.
Judgment Excerpts
Section 12 of 1958 Act opens with nonobstante clause and, therefore, it overrides all other laws...
The said Court instead of punishing them, used its powers under Section 3(4) of 1958 Act, released them on entering a bond...
The disqualification under Section 10(1)(b)(i) of the Banking Regulations Act is triggered by the conviction itself, not by the sentence.
Procedural History
The petitioner applied for a clerical post in Bank of India. During verification, his conviction under Section 379/34 IPC was revealed. The bank issued a communication dated 28.08.2012 cancelling his candidature under Section 10(1)(b)(i) of the Banking Regulations Act, 1949. The petitioner filed Writ Petition No. 4702 of 2012 before the Bombay High Court, Nagpur Bench, challenging the cancellation. The petition was heard and dismissed on 22.02.2013.
Acts & Sections
- Probation of Offenders Act, 1958: Section 3, Section 12
- Banking Regulations Act, 1949: Section 10(1)(b)(i)
- Indian Penal Code, 1860: Section 379, Section 34
