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2008 DIGILAW 337 (RAJ)

Teekam, Chand Meena v. State of Rajasthan

2008-02-04

P.B.MAJMUDAR

body2008
JUDGMENT 1. - By invoking extra-ordinary jurisdiction of this Court, the petitioner has challenged the order passed by the State Government in appeal by which the appellate authority vide its order dated 24.8.2007 has dismissed the appeal of the petitioner and confirmed the order passed by the disciplinary authority by which the petitioner is removed from the service on the ground of conviction in a criminal case. 2. The petitioner was subjected to a criminal case for an offence under Section 409 I.P.C. and Section 13 of the Prevention of Corruption Act. He was convicted by the Criminal Court and was awarded two years imprisonment. On the basis of the said conviction order, the disciplinary 1 authority initially passed an order at Annexure-4 by which the petitioner was removed from the service. The said order was passed on 23.11.2002. The aforesaid order was challenged in appeal. The appellate authority partly allowed the said appeal and remanded the matter back to .the disciplinary authority with a direction to pass fresh order in accordance 1 with law. The said remand order of the appellate authority is at Annexure-6 in the compilation. The disciplinary authority in its order observed that the petitioner was given opportunity of submitting his case by order dated 19.3.2005 and that the petitioner had not submitted any other material except stating that his sentence was suspended by the High Court in criminal appeal. The disciplinary authority has also considered this aspect. The disciplinary authority after considering the facts and circumstances of the case as well as after considering the order of conviction and after following the principles of natural justice, passed an order of removal of the petitioner from the service. Operative part of the order is at page 52. The petitioner thereafter carried the order further in appeal. The appellate authority came to the conclusion that simply because the sentence is suspended, is no ground for coming to the conclusion that the petitioner cannot be removed from service in view of his conviction. The appellate authority found that the petitioner was given reasonable opportunity by the disciplinary authority, but he has failed to place any material on record. The appellate authority, accordingly, dismissed the said appeal by an order dated 24.8.2007. The aforesaid order is impugned in this writ petition at the instance of the petitioner. 3. The appellate authority found that the petitioner was given reasonable opportunity by the disciplinary authority, but he has failed to place any material on record. The appellate authority, accordingly, dismissed the said appeal by an order dated 24.8.2007. The aforesaid order is impugned in this writ petition at the instance of the petitioner. 3. Learned counsel for the petitioner has fairly submitted that it is not disputed that the petitioner is convicted in a corruption case and was awarded sentence for two years. He further submitted that the criminal appeal of the petitioner is admitted by this Court and the petitioner is released on bail by suspending the sentence. It is submitted that in view of the fact that the sentence is suspended by this Court, the department should not have terminated the services of the petitioner. It is further submitted that simply because the petitioner is convicted in a criminal case is no ground to remove him from service as the disciplinary authority is required to apply its mind before passing such order. 4. In my view, this is thoroughly a misconceived petition. It is not in dispute that the petitioner is removed from the service on the ground of his conviction in a criminal case. The petitioner is convicted in connection with a serious offence. After the remand of the order of the appellate authority, the disciplinary authority gave opportunity of hearing to the petitioner and considered the material on record and ultimately, the petitioner was removed from the service in view of his conviction. Simply because his sentence is suspended is no ground for coming to the conclusion that the department cannot remove the petitioner in view of his conviction in a criminal case. The petitioner has not produced any material before the disciplinary authority for justifying his case that in spite of his conviction, he should be continued in service. Simply because the sentence is suspended, it cannot be said that the order of conviction is also stayed and it cannot be also said that the petitioner is acquitted from the said case simply because sentence has been suspended in criminal appeal. The department was, therefore, perfectly justified in passing the impugned order. 5. Learned counsel for the petitioner, however, relied upon the decision of the Hon'ble Supreme Court in the case of Punjab Water Supply Severage Board & Anr. The department was, therefore, perfectly justified in passing the impugned order. 5. Learned counsel for the petitioner, however, relied upon the decision of the Hon'ble Supreme Court in the case of Punjab Water Supply Severage Board & Anr. v. Ram Sajivan & Anr., reported in (2007) 9 SCC 86 . In the said case, the order of reinstatement passed by the High Court was set aside by the Supreme Court and in para 11 of the said judgment, it has been held that it is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under Rule 14 of the Rules of 1968 which incorporates the principle contained in Article 311(2) proviso (a). The Supreme Court has also held that the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features, if any. In the instant case, the disciplinary authority already gave the hearing to the petitioner and considering the material on record and after considering the fact that the petitioner is convicted in a serious offence under the Prevention of Corruption Act and on that basis, impugned order of removal is passed. At this stage, a reference is also required to be made to. the decision of the Supreme Court in the case of Dy. Director of Collegiate Education (Admn.) v. Nagoor Meera reported in AIR 1995 SC 1364 wherein the Supreme Court has held in para 7, as under : ''7. This clause, it is relevant to notice, speaks of 'conduct which has led his conviction on a criminal charge.' It does not speak of sentence of punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal ''the, execution of the sentence or order appealed against be suspended and also if he is in confinement that he be released on bail or on his own bond." Section 389(1), it may be noted, speaks of suspending the execution of the sentence or order'', it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the convcition - an aspect dealt with recently in Rama Narang v. Ramesh Narang, (1995) 1 JT (SC) 515. At pages 524 and 525 , the position under Section 389 is stated thus "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'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be 4 expected to assign reasons relevant thereto ? ... If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be 4 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, a with or without conditions attached thereto, it may have granted an order to that effect." 6. In view of the aforesaid position, it is clear that when a person is convicted in a criminal case, it is not necessary to hold any regular enquiry and on the basis of such conviction, the department can pass appropriate order as deemed fit and in accordance with law and after considering the material available on record for reaching to such conclusion. As pointed out earlier in the present case the appellate authority had also sent the matter back to the disciplinary authority for deciding the matter fresh and thereafter, the disciplinary authority after going through the documents on record and after hearing the petitioner, passed the order of removal which order is also upheld by the appellate authority. In that view of the matter, it cannot be said that the disciplinary authority has committed any error in passing the impugned order. As pointed out earlier, it is immaterial whether the petitioner is released on bail and whether his sentence is suspended as the fact remains that the conviction order is still at large and, therefore, the authority was perfectly justifying in passing the impugned order in question. However, considering the fact that the aforesaid order is passed only in view of the conviction of the petitioner in a criminal trial, if ultimately the petitioner is acquitted, he may make appropriate application to the department to reinstate him in service and that time the authority will consider the question about the reinstatement of the petitioner in case acquittal order is passed in favour of the petitioner. 7. Subject to what is stated above, the writ petition is dismissed.Writ Petition Dismissed. *******