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Andhra High Court · body

2000 DIGILAW 123 (AP)

S. MAHABOOB BASHA v. State Of A. P.

2000-02-22

BILAL NAZKI

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BILAL NAZKI, J. ( 1 ) THE petitioner has been convicted under the provisions of Prevention of Corruption Act and sentenced to different sentences for different charges. An appeal has been filed by him which has been admitted and the sentence has been suspended, he was also granted bail. But, the petitioner wants that the conviction should be suspended so that he is not removed from service. He relies on a judgment of Supreme Court being Ram narang v. Ramesh Narang, 1995 (1) JT (SC) 515. At Pages 524 and 525 of the judgment the power of the Appellate Court under Section 389 Cr. PC was discussed by the Supreme Court as under:"section 389 (1) empowers the Appellate court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does order in section 389 (1) empower the Appellate court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does order in section 389 (1) mean order of conviction or an order similar to the one under section 357 or 360 of the Code? obviously, the order referred to in section 389 (1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. . . In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389 (1) of the Code could be invoked. In such situations, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under section 389 (1) it is under an obligation to support its order for reasons to be recorded by it in writing . In such situations, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under section 389 (1) it is under an obligation to support its order for reasons to be recorded by it in writing . If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto?. . . . . . If such a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect. "after this judgment, however, another judgment came being Deputy Director of collegiate Education (Admn) v. S. Nagoor meera, AIR 1994 SC 1364, which gave a new dimension to the power of suspension of conviction. The Supreme Court tried to interpret Section 389 (1) in the context of article 311 (2) of the Constitution as the matter before the Supreme Court concerned a Public Officer. In the present case, we are concerned with an employee of the State road Transport Corporation. The Supreme court in that judgment held that, it is the conduct of the person which leads to his conviction that makes him liable to be dismissed, removed or reduced in rank. Therefore, even if conviction of a government employee is suspended, he can still be removed from service under article 311 (2) of the Constitution as the conduct which led to his conviction could not be suspended. The important factor to be taken into consideration while exercising power under Article 311 (2) was not the effect of conviction but the conduct leading to conviction. The important factor to be taken into consideration while exercising power under Article 311 (2) was not the effect of conviction but the conduct leading to conviction. The Supreme Court further suggested as an appropriate course that, in matters where a Government servant is convicted and his appeal is pending, the appropriate authority should not wait for the result of the appeal but should proceed under Article 311 (2) for removal, dismissal or reduction in rank and is such Government servant succeeds in the appeal the order of the Government passed under Article 311 (2) can be revised and such Government servant can be made entitled to all the benefits which would be available to him in law. ( 2 ) SINCE the law is clearly laid down by the Supreme Court, now the only question remains is, whether the A. P. State Road transport Corporation has any rule which could empower the respondents to remove the petitioner from service on the basis of conduct which led to his conviction, in other words, is there a provision in the employees (Classification, Control and appeal) Regulations applicable to the petitioner pari materia to Article 311 (2 ). Regulation No. 9 (l) of A. P. State Road transport Corporation Employees (Classification, Control and Appeal) regulations lays down among other things, that the employee is liable to be dismissed from service in the following circumstances, namely (a) conviction by a Court on a criminal charge; or (b) serious misconduct; (other clauses not relevant ). Regulation 9 (2) lays down that an employee shall be liable to be removed from service in the following circumstances, namely (a) committing an offence for which he is liable to be dismissed under clause (1) above; or (b) misconduct; other clauses are not relevant for the purpose of the present case. The Constitution makes conviction in an offence to be misconduct. Therefore, reading Regulations 9 (1) and 9 (2) together, it is clear that, power is given to the respondents to remove or dismiss an employee who is convicted in a case. It is also clear that, the respondents have the power to remove or dismiss an employee from service if misconduct is proved against him. Therefore, reading Regulations 9 (1) and 9 (2) together, it is clear that, power is given to the respondents to remove or dismiss an employee who is convicted in a case. It is also clear that, the respondents have the power to remove or dismiss an employee from service if misconduct is proved against him. The Supreme Court in the judgment deputy Director of Collegiate Education (Admn) v. S. Nagoor Meera (supra) while dealing with the power of Appellate Court whether it could suspend the conviction, or not, as was laid down in Ram Narang v. Ramesh Narang (supra) further stated that, in such cases other factors were relevant. In para 10 it is stated;"10. What is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal Court. Until the said conviction is set aside by the Appellate or other higher Court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice. "even if this Court has the power to suspend the conviction, even then, in the light of the judgment above it would not be advisable to suspend such conviction because once a person is convicted for corruption and sentenced to imprisonment of one year, it will not be advisable to retain such a person in service. The situation can however be reversed if such a person is acquitted in appeal. ( 3 ) FOR these reasons, I am not inclined to suspend the conviction of the petitioner. The application is accordingly dismissed.