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2001 DIGILAW 651 (ALL)

STATE OF UTTAR PRADESH v. SADA NAND MISHRA

2001-07-09

R.D.SHUKLA, S.H.A.RAZA

body2001
S. H. A. RAZA, R. D. SHUKLA, JJ. ( 1 ) BY means of writ petition bearing No. 4985 (S/s) of 1994, respondent Sada Nand Mishra has assailed the order of his removal from service on the ground that although he was convicted for commission of an offence under Section 302, I. P. C. but in appeal, the order of conviction was stayed, hence, he should be allowed to continue in service. Honble single Judge allowed the writ petition and quashed the order dated 31. 10. 1985 removing the respondent from service and the orders dated 20. 9. 1988 and 18. 6. 1994 communicated to the respondent vide letter dated 28. 6. 1994 passed in the departmental appeal were quashed. The Honble single Judge also expressed the view that respondent shall be entitled to the consequential benefit of service. However, it will be open to the competent authority to pass fresh appropriate orders in accordance with law. ( 2 ) WHILE allowing the said writ petition, the Honble single Judge opined that it was necessary to provide in the impugned order that due to the conduct of the petitioner which had led to his conviction, his further retention in the public service was undesirable. In the absence of such indication and due to merely mentioning the reason of his conviction, for passing the impugned order of removal, such an order of removal is bad in law. The order of removal from service cannot be sustained particularly when the order of conviction and punishment appealed against was stayed by this Court in exercise of powers conferred under Section 389. Cr. P. C. as well as 482, Cr. P. C. The conviction order could not have been considered at all till the existence of the aforesaid stay order and hence the order passed In appeal is also illegal. ( 3 ) AGAINST the order dated 23. 9. 1999 passed by the Honble Single Judge, the State Government has preferred the present special appeal. ( 4 ) HONble Supreme Court in Union of India v. Ramesh Kumar, (1997) 7 SCC 514 , observed that the respondent was arrested on the ground that he accepted illegal gratification. He was placed under suspension. The trial court convicted him under Section 5 (2) Prevention of Corruption act, 1947. ( 4 ) HONble Supreme Court in Union of India v. Ramesh Kumar, (1997) 7 SCC 514 , observed that the respondent was arrested on the ground that he accepted illegal gratification. He was placed under suspension. The trial court convicted him under Section 5 (2) Prevention of Corruption act, 1947. As a result of this conviction, the Disciplinary Authority dismissed him from service by invoking Rule 19 of the C. C. S. (C. C. A.) Rules, 1965, without holding detailed disciplinary inquiry. The High Court admitted the respondents appeal against his conviction and passed the following interim order : "pending hearing of the appeal, the execution of the sentence shall remain suspended and he shall be released on furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount. . . . . . " After four years of his dismissal, respondent filed an application in the Central Administrative tribunal seeking his reinstatement in service. The Tribunal allowed the application. Reversing the order of the Tribunal, held:"under Rule 19 of the C. C. S. (C. C. A.) Rules, 1965, the Disciplinary Authority is empowered to take action against a Government servant on the ground of misconduct which has led to his conviction on a criminal charge. The Rules, however, do not provide that on suspension of execution of sentence by the appellate court, the order of dismissal based on conviction stands obliterated and the dismissed Government servant has to be treated under suspension till disposal of appeal by the appellate court. The Rules also do not provide the Disciplinary Authority to await disposal of the appeal by the appellate court for taking action against him on the ground of misconduct which has led to his conviction by a competent court of taw. Having regard to the provisions of the Rules, the order dismissing respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail. Under Section 389 of the Cr. P. C. , the appellate court has power to suspend the execution of sentence and to release the accused on bail. Under Section 389 of the Cr. P. C. , the appellate court has power to suspend the execution of sentence and to release the accused on bail. When the appellate court suspends execution of the sentence and grants bail to an accused, the effect of the order is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 of Cr. P. C. an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which lead to his conviction by the Court of law does not lose its efficacy merely because the appellate court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till disposal of criminal appeal by the High Court. " ( 5 ) IT seems that the attention of the Honble single Judge was not drawn towards the law on the subject declared by the Honble Supreme Court. In the present case, the conviction and punishment appealed against was stayed by this Court but it does not mean that that will not in any manner vitiate either the order of the disciplinary authority or in any manner said order can be used to circumvent the order of removal passed against the respondent. ( 6 ) THE special appeal, filed by the State Government, is accordingly allowed. The judgment and order passed by the Honble single Judge dated 23. 9. 1999 is accordingly set aside. However, it is provided that if in pursuance of the order passed by the Honble single Judge the private respondent would have been allowed to work for some time and if any salary would have been paid to him, that would not be recovered from him.