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2010 DIGILAW 2105 (RAJ)

Sher Singh v. State of Rajasthan

2010-12-21

PREM SHANKER ASOPA

body2010
JUDGMENT 1. - The petitioner was appointed on the post of Lower Division Clerk in the Commercial Taxes Department on 20th October, 1975. However, due to revengeful action on the part of the opposite party, a criminal case was under Sections 307, 326/34 and 324/34 IPC was registered against him and other family members and he faced trial in the court of Additional Sessions Judge (Fast Track) Bandikui. The learned trial judge vide judgment dated 30th September, 2003 convicted the petitioner under Sections 307, 326/34 and 324/34 IPC and sentenced him to undergo simple imprisonment for eight years. 2. Against the said judgment of conviction and sentence, the petitioner has preferred a Criminal Appeal under Section 374 Cr.P.C. before this Court which has been registered as S.B. Criminal Appeal No. 1450/2003. Initially, this sentence of the petitioner was suspended by this Court vide order dated 29.4.2004 but thereafter to petitioner filed further Misc. Application (S.B. Criminal Misc. Application No. 776/2004) and after learned counsel for the petitioner, learned PP and also the counsel for he complainant, conviction was stayed by the Court vide order dated 24.11.2005. However, before passing the order of stay of conviction by this Court, the respondents vide order dated 14.1.2004 terminated the services of the petitioner with immediate effect under Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the CC&A Rules') on the ground of his conviction in a criminal case. 3. Learned counsel for the petitioner submits that no disciplinary enquiry was initiated against the petitioner and sole basis for imposing the penalty of termination upon the petitioner was the judgment of conviction which has been stayed. Thus, the very foundation inflicting penalty no more exist and as such the order impugned is liable to be set aside. In support of his submissions, learned counsel for the petitioner places reliance on the order dated 16.2.2010 passed by this Court in the case of Sunder Lal Bairwa v. State of Rajasthan & Anr., S.B. Civil Writ petition No. 13261/2008 wherein in similar circumstances, this Court has allowed the writ petition, quashed and set aside the order of penalty and directed the respondents therein to reinstate the petitioner in service. 4. 4. On the other hand, learned counsel for the respondents submits that the appeal is still pending adjudication and merely because conviction has been stayed by the court, will not absolve him from conviction and the order of penalty inflicted in the facts and circumstances does not require any interference. However, the counsel has not disputed the order passed in the case of Sunder Lal Bairwa (supra). Learned counsel for the respondents further submits that the respondents were justified while passing the order inflicting penalty upon the petitioner under the CC&A Rules but on account of later development which has taken place and the order of conviction being stayed, the petitioner is not entitled for consequential benefits prior to order of stay of conviction. The submission made by the learned counsel for the respondents appears to be justified and the petitioner will be entitled for consequential benefits from the date, the order of conviction being stayed by the court and not prior thereto. 5. I have heard learned counsel for the parties and have gone through the record of the writ petition. 6. As regards the facts are concerned, the same are not in dispute to the effect that in a criminal case, after petitioner is being convicted for offence under Sections 307, 326/34 and 324/34 IPC vide judgment dated 30.9.2003 criminal appeal no. 1450/2003 was preferred and initially his sentence was suspended vide order dated 29.4.2004 and thereafter by Misc. Application filed by the petitioner, conviction was also stayed by the Court vide order dated 24.11.2005. It is not the case where the respondents have initiated departmental enquiry against the petitioner in addition to the criminal case registered against him and only on account of being convicted by the court of competent jurisdiction the enquiry under the Rules was dispensed with under Rule 19 of the CC & A Rules and the petitioner was removed from service vide order dated 14.1.2004. 7. The legal position with regard to the 'stay of operation of the order' which had been considered by the Supreme Court has been dealt with by the coordinate Bench of this Court in the case of Sunder Lal (supra). 8. 7. The legal position with regard to the 'stay of operation of the order' which had been considered by the Supreme Court has been dealt with by the coordinate Bench of this Court in the case of Sunder Lal (supra). 8. Before proceeding further, I think it appropriate to go through the order dated 24.11.2005 passed on the stay application filed by the petitioner in S.B. Criminal Appeal No. 1450/2003 wherein this Hon'ble Court while staying conviction of the petitioner has taken note of the fact that the services of the petitioner had already been terminated by the department vide order dated 14.1.2004 which was received by him on 22.1.2004. The order dated 24.11.2005 reads as under: "Applicant-appellant Sher Singh who is a Government servant has sought stay of the judgment of conviction and sentence recorded against him on 30.9.2003 in Sessions Case No. 69/2001 for offences under Section 324/34, 307 and 326/34 IPC. Thereafter, the department has suspended him vide order dated 14.10.2003. The applicant-appellant has also been terminated by the department vide order dated 14.1.2004 which was received by him on 22.1.2004. This Court has already suspended his sentence on 29.4.2004. His learned counsel has submitted on the strength of the case in Smt. Akhtari Bi v. State of MP, JT 2001 (4) SC 40 that the appeal being statutory right, the trial Court's verdict does not attain finality during pendency of appeal. The trial shall be deemed to be continuing despite conviction. He has further submitted that in view of the pronouncement of the Hon'ble Apex Court in the case of Ram Narang v. Ramesh Narang, (1995) 2 SCC 513 and judgment of the Division Bench of this Court in Kanhaiya v. State, D.B.Cr. Misc. Application No. 652/2001 in DB Criminal Appeal No. 733/2000 , where the conviction is capable of execution, the same may be stayed on a specific request made in this regard by the convict in appropriate cases for reasons to be recorded in writing. He has also submitted that the offences found proved against the applicant does not involve moral turpitude. His appeal is likely to take a pretty long period before it is finally adjudicated. In the instant case, conviction is capable of execution as it may entail termination from service. He has also submitted that the offences found proved against the applicant does not involve moral turpitude. His appeal is likely to take a pretty long period before it is finally adjudicated. In the instant case, conviction is capable of execution as it may entail termination from service. He has, therefore, prayed that the conviction of the applicant may also be stayed so that he may not be visited with further adverse consequence flowing from the order of termination and may if possible and if so advised seek remedy in this regard by taking proper proceedings as per law. Learned PP has vehemently opposed the application but he could neither point out anything fro the record nor could cite any authority taking contrary view of such matters. He has simply submitted that the appeal itself may be heard and disposed of at an early date. I have considered the rival submissions made at the bar. Keeping in view of the settled law in this behalf by the authoritative pronouncements of the Hon'ble Apex Court as well as of this Court a also the fact that the appeal shall be deemed to be a continuance of the trial which has yet not attained finality and the conviction recorded against the applicant-appellant is capable of execution, I deem it just and proper to stay the conviction in the interest of justice. Consequently, the applicant is allowed and the conviction of the applicant-appellant Sher Singh is hereby stayed till the disposal of his appeal." 9. What is the distinction between 'quashing' and 'staying operation' of the order impugned, which was earlier considered by Apex Court while examining scope of Section 22(1) of Sick Industrial Companies (Special Provisions) Act, 1985 in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assocn., 1992 (3) SCC1 wherein the Apex Court observed as infra: "10. ........while considering the effect of ad interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. " 10. It was further considered by the Apex Court in Ravikant S. Patil v. Sarvabhouma S. Bagali, 2007 (1) SCC 673 observed ad infra: "15. It deserves to be clarified an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. But that as it may, in so far as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, It is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction." (emphasis supplied) 11. After following the said judgments, the Co-ordinate Bench in the case of Sunder Lal (supra) recorded the following finding: "From what has been observed by the Apex Court (supra) it is clear that "quashing" of an order results in restoration of the position as stood prior to the order being quashed but at the same time, "staying operation" of the order will make it in-operative from the date of passing of stay order and the order of stay does not render the conviction non-existent; but it remains non-operative." 12. However, in the case on hand, since the penalty of removal was inflicted on account of conviction in a criminal case, the operation where of has been stayed by the Court vide order dated 24.11.2005 (Annexure-2), which makes the order of conviction non-operative as held by the Apex Court in the case of Ravikant S. Patil (supra), the order of penalty of termination dated 14.1.2004, in the opinion of this Court, cannot be held to be operative from the day, operation of conviction being stayed (vide order dated 24.11.2005). 13. Consequently, the writ petition stands allowed and the order dated 14.1.2004 (Annexure-1) is quashed and set aside in the light of the order dated 24.11.2005 (Annexure-2) passed In S.B. Criminal Appeal No. 1450/2003 and the respondents are directed to reinstate the petitioner in service with national fixation of pay and the petitioner will be entitled for consequential benefits which are admissible under the law w.e.f. 24.11.2005 and not prior thereto. 14. Since this Court has not examined the order of penalty on merits but has only taken note of legal consequence flowing from the order staying operation of the conviction by Court, it will always be open for the respondents to initiate any action permissible under the law. It is also made clear that in case the criminal appeal filed by the petitioner fails, then the respondents are at a liberty to pass proper fresh order but in that event also, the salary and allowances from the date of stay of conviction till the date of decision of the appeal, shall not be recovered.Writ Petition allowed-Authorities free to take action after disposal of Appeal. *******