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2014 DIGILAW 106 (ALL)

SURENDRA NATH VERMA v. STATE OF U. P.

2014-01-10

MAHESH CHANDRA TRIPATHI, RAJES KUMAR

body2014
JUDGMENT Hon’ble Rajes Kumar, J.—Heard Sri Shyamal Narain, Advocate, assisted by Sri Ashwani Kumar Mishra, learned counsel for the petitioner, Sri Mahendra Pratap, Advocate, appearing on behalf of the State as Special Counsel and Sri Pankaj Rai, learned Additional Chief Standing Counsel. 2. The brief facts of the case are that the petitioner was serving as Medical Officer (Homoeopathic). It is alleged that the wife of the petitioner has committed suicide on 25.5.2002. A First Information Report was lodged against him on 27.5.2002 under Sections 302, 498-A and 328 IPC, P.S. Attarsuiya, District-Allahabad. By the judgment dated 21.4.2009 in Sessions Trial No. 350 of 2004, the Additional Sessions Judge, Fast Track Court, Court No. 20, convicted the petitioner and awarded punishment under Section 498-A IPC for two years rigorous imprisonment with fine of Rs. 3000/- and under Section 306 IPC for four years rigorous imprisonment with fine of Rs. 10,000/-. The petitioner filed a Criminal Appeal No. 2605 of 2009 in which by an order dated 7.5.2009, the petitioner was granted bail and the effect and operation of the impugned judgment and order dated 21.4.2009 was stayed by this Court. It appears that in pursuance of the criminal proceeding, the petitioner has been suspended. However, when the petitioner was released in pursuance of the order passed by this Court, the petitioner applied for his reinstatement. The Secretary Medical, Health, Government of U.P. reinstated him after quoting the order of the Criminal Appeal No. 2605 of 2009. Purportedly, in compliance of the interim order of the High Court dated 7.5.2009. The petitioner filed the Writ Petition No. 27895 of 2010 seeking relief for direction to decide his representation dated 29.12.2009 for fixing his pay in the pay scale in accordance with the recommendation of 6th Pay Commission and also pay him basic pay including pay band coupled with dearness allowance in consonance with recommendation of 6th Pay Commission w.e.f. November, 2009. 3. While entertaining the writ petition on 17.5.2010, the Division Bench of this Court has made the following observation : “We are unable to appreciate as to how the petitioner was reinstated after his conviction. The law in this regard is fairly well-settled. 3. While entertaining the writ petition on 17.5.2010, the Division Bench of this Court has made the following observation : “We are unable to appreciate as to how the petitioner was reinstated after his conviction. The law in this regard is fairly well-settled. In B.R. Kapoor v. State of T.N., (2001) 7 SCC 231 ; State of Maharashtra v. Gajanan, (2003) 12 SCC 432 and Navjyot Singh Siddhu v. State of Punjab, AIR 2007 SC 1003 , the Supreme Court held that unless the attention of the Court hearing the Criminal Appeal is directed and that reasons are recorded for staying conviction, a Government servant convicted on the criminal charges is not entitled to be reinstated in service. In the present case, we do not find that the attention of the High Court in Criminal Appeal was drawn or any argument was placed to stay the operation of the judgment for the purposes of reinstatement of the petitioner in service. There is no mention in the appellate order that the petitioner is a Government servant and is under suspension. The High Court has not stayed the conviction of the petitioner. The stay of the effect and operation of the judgment cannot be treated as stay of conviction. The Medical and Health Department appears to have passed the order without seeking advise of the Law Department. We, therefore, direct the State to explain the circumstances in which the petitioner was reinstated in service.” 4. It appears that at the instance of the petitioner the interim order dated 7.5.2009 passed in Criminal Appeal No. 2605 of 2009 has been modified and in which last paragraph of the order dated 7.5.2009 is modified as follows: “The effect and operation of the sentence of the applicant by impugned judgment and order dated 21.4.2009 passed by the Additional Sessions Judge, Fast Track Court, Court No. 20, Allahabad in ST No. 350 of 2004 shall remain stayed during the pendency of the appeal”. 5. Thereafter, by the impugned order dated 2.8.2010 Annexure 12 to the writ petition, petitioner has been suspended. 6. On 25.10.2013, after hearing the parties, the Court has made the following observations : “The suspension order is being challenged on the various grounds, one of the main grounds is that the petitioner has been suspended without contemplating the inquiry proceeding. 5. Thereafter, by the impugned order dated 2.8.2010 Annexure 12 to the writ petition, petitioner has been suspended. 6. On 25.10.2013, after hearing the parties, the Court has made the following observations : “The suspension order is being challenged on the various grounds, one of the main grounds is that the petitioner has been suspended without contemplating the inquiry proceeding. On 10.10.2013, the matter was taken up and counsel for the petitioner submitted that once the earlier suspension order has been revoked, it is no more in existence and the impugned order is a fresh order of suspension wherein no inquiry is contemplated still the suspension order is continuing. Learned Standing Counsel was directed to look into the matter. The Standing Counsel filed the short counter-affidavit today. Paragraph Nos. 9 and 10 of the short counter-affidavit are reproduced as follows : “9. That after the aforesaid pursuant to interim order granted by the Hon’ble Court in Criminal Appeal No. 2605 of 2009, the suspension order of the petitioner was revoked vide order dated 7.11.2009 and he was given posting at Government Homeopathic Hospital Asni, Fatehpur. 10. That after considering upon the view taken by the Hon’ble Apex Court in B.R. Kapoor v. State of Tamil Nadu case, the petitioner was re-suspended vide order dated 2.8.2010 but no enquiry officer has been nominated till date for initiating or concluding the departmental enquiry against the petitioner”. In the aforesaid paragraph, it is admitted that after the suspension order dated 2.8.2010, no enquiry officer has been nominated till date for initiating or concluding the departmental enquiry against the petitioner. In effect, no inquiry proceeding is pending. In the suspension order also there is nothing to suggest that any inquiry proceeding is contemplated. Annexure SCA-II which is letter written by the Director to the Chief Standing Counsel. In paragraph No. 5, it is stated that no inquiry officer has been nominated for inquiry. Once the earlier suspension order is revoked, it is no more in existence. It is a matter of utter surprise that when the impugned fresh suspension order has been passed, why the inquiry has not been contemplated and how without contemplating the inquiry, the suspension order has been passed and allowed to continue till date. Once the earlier suspension order is revoked, it is no more in existence. It is a matter of utter surprise that when the impugned fresh suspension order has been passed, why the inquiry has not been contemplated and how without contemplating the inquiry, the suspension order has been passed and allowed to continue till date. The Principal Secretary, Medical Health Education is directed to explain that why without contemplating the inquiry, the petitioner has been suspended by the impugned order and the same has been allowed to continue and for such act why necessary action may not be contemplated against him and in the event the suspension order is set aside and for the harassment being caused to the petitioner. Why heavy cost may not be imposed.” 7. In pursuance of the aforesaid order, Sri J.P. Sharma, Principal Secretary, Medical Education, U.P. Lucknow, filed supplementary counter-affidavit dated 12.11.2013. The relevant paragraphs are reproduced below : “That, the petitioner has been convicted and sentenced under Section 306, 498-A IPC for 4 and 2 years R.I. Respectively. The petitioner was sent to jail on 21.4.2009 and was released on 18.5.2009. In this way the petitioner was in jail exceeding 48 hours with effect from his date of conviction. He has not been dismissed, removed consequent to such conviction dated 21.4.2009. That, when the petitioner was suspended on 19.8.2002 pending investigation and was in jail exceeding 48 hours his detention, Dr. B.N. Singh was enquiry officer, who retired from service from the post of Director Homoeopathy U.P. on 30.4.2011. That, the petitioner was again suspended on 2.8.2010. The order dated 2.8.2010 has been passed due to conviction of petitioner in S.T. No. 350 of 2004 and was in jail exceeding 48 hours from the date of conviction. It is very humbly submitted that due to reasons that are not clear as of date, an enquiry officer was not appointed in this case. The deponent tenders his unconditional apology to the Hon’ble Court on this point. As soon as the error was discovered, the deponent has issued an order dated 6.11.2013 appointing Dr. Anad Kumar Chaturvedi, Principal National Homoeopathic Medical College Allahabad as the enquiry officer in this case.” 8. On record, there is one short counter, affidavit filed by Dr. A.K. Singh, Medical Officer Homoeopathy (Legal Cell), High Court, Allahabad on behalf of respondent Nos. 3 and 4. Anad Kumar Chaturvedi, Principal National Homoeopathic Medical College Allahabad as the enquiry officer in this case.” 8. On record, there is one short counter, affidavit filed by Dr. A.K. Singh, Medical Officer Homoeopathy (Legal Cell), High Court, Allahabad on behalf of respondent Nos. 3 and 4. The relevant paragraphs of the short counter-affidavit dated 24.10.2013 are reproduced below : “That by means of the supplementary-affidavit filed by the petitioner in the present writ petition, it is submitted that except than the criminal case, no departmental proceeding has been proceeded or contemplated against the petitioner. That after hearing upon the case vide order dated 10.10.2013, this Hon’ble Court was pleased to direct to the authorities to file the submission regarding the facts whether any departmental enquiry is contemplated or initiated against the petitioner for the said criminal case or not, directing to put up the case on 23.10.2003. That in compliance of the Hon’ble Court’s order the information was sent to the department and after verifying and examining the records of the suspension order and case of the petitioner, it has been found that the petitioner was suspended vide order dated 1.6.2002 due to restraining him in Central Jail Naini, Allahabad since 1.6.2002, in case crime No. 89 of 2002 under Section 498A, 328, 302 I.P.C. for allegations of his wife. That pursuant to the suspension order dated 1.6.2002, the Enquiry Officer was also appointed vide Government Order dated 19.8.2002, appointing Dr. B.N. Singh, Principal of Government National Homoeopathic College, Lucknow as enquiry officer. Thereafter, the enquiry officer has submitted his enquiry report dated 1.7.2003 before the State Government. For kind perusal of this Hon’ble Court, copy of the letter dated 1.7.2003 is being filed herewith and marked as Annexure SCA-1 to this counter-affidavit. That after the aforesaid pursuant to interim order granted by the Hon’ble Court in Criminal Appeal No. 2605 of 2009, the suspension order of the petitioner was revoked vide order dated 7.11.2009 and he was given posting at Government Homoeopathic Hospital Asni, Fatehpur. That after considering upon the view taken by the Hon’ble Apex Court in B.R. Kapoor v. State of Tamil Nadu, case the petitioner was re-suspended vide order dated 2.8.2010 but no Enquiry Officer has been nominated till date for initiating or concluding the departmental enquiry against the petitioner. That after considering upon the view taken by the Hon’ble Apex Court in B.R. Kapoor v. State of Tamil Nadu, case the petitioner was re-suspended vide order dated 2.8.2010 but no Enquiry Officer has been nominated till date for initiating or concluding the departmental enquiry against the petitioner. For kind perusal of this Hon’ble Court, copy of the letter of instruction dated 15.10.2013 is being filed herewith and marked as Annexure SCA-2 to this counter-affidavit.” 9. From the aforesaid averments, the factual aspect, which emerges is that a First Information Report was lodged on 27.5.2002, under Sections 498-A, 302 and 328 IPC, the petitioner has been sent to jail by the judgment dated 21.4.2009 in Sessions Trial No. 350 of 2004, the Additional Session Judge/Fast Track Court No. 20, Allahabad convicted the petitioner and awarded punishment under Section 498A IPC for two years rigorous imprisonment with fine of Rs. 3000/- and under Section 306 IPC four years rigorous imprisonment with fine of Rs. 10,000/-. Against the said order, Criminal Appeal No. 2605 of 2009 is pending in which the effect and operation of the sentence awarded to the appellant by the judgment and order dated 21.4.2009 has been stayed during the pendency of appeal. The petitioner was suspended on 19.8.2002. The petitioner moved an application for revocation of the suspension order, which has been rejected vide order dated 29.3.2007. Both the aforesaid orders have been challenged by the petitioner by way of Writ Petition No. 57588 of 2009. When the initial order was passed by this Court on 7.5.2009 staying the operation of the judgment dated 21.4.2009 and when the petitioner was released, the petitioner filed an application for his reinstatement. When the writ petition came up for consideration, it is informed that the suspension order has been revoked by the order dated 7.11.2009 and the petitioner has been posted as Medical Officer at Fatehpur. In the light of the aforesaid observation, the writ petition stood disposed of vide order dated 9.11.2009. 10. It appears that when the petitioner was suspended on 19.8.2002, disciplinary proceeding was contemplated. It also appears from the short counter-affidavit that Professor B.N. Singh, Principal of Government National Homoeopathic College, Lucknow, had been appointed as the inquiry officer, who submitted the inquiry report on 1.7.2003. The copy of the inquiry report is SCA-1. 10. It appears that when the petitioner was suspended on 19.8.2002, disciplinary proceeding was contemplated. It also appears from the short counter-affidavit that Professor B.N. Singh, Principal of Government National Homoeopathic College, Lucknow, had been appointed as the inquiry officer, who submitted the inquiry report on 1.7.2003. The copy of the inquiry report is SCA-1. However, it is admitted that on the said inquiry report, no order has been passed by the disciplinary authority. It appears that when the petitioner had again been suspended on 2.8.2010, no inquiry proceeding was contemplated in the order. However, as per the supplementary counter-affidavit dated 12.11.2013 by the order of the Principal Secretary, Medical Education, U.P., Lucknow dated 6.11.2013 Dr. Anand Kumar Chaturvedi, Principal National Homoeopathic Medical College, Allahabad has been appointed as an inquiry officer. In the said affidavit, it is stated that Dr. B.N. Singh was the inquiry officer, who retired from service from the post of Director, Homoeopathy, U.P. on 30.4.2011. However, there is nothing in the affidavit, filed by Sri J.P. Sharma, that Dr. B.N. Singh has submitted the inquiry report dated 1.7.2003. 11. Learned counsel for the petitioner submitted that under Rule 4 (4) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the “Rules, 1999”), on conviction being awarded, the petitioner could have been dismissed or removed from the service forthwith, but such power has not been exercised. To the contrary while exercising power under rule 4 (8) of the Rules, 1999, the petitioner’s suspension has been revoked. The impugned suspension order has been passed only on the basis of the observation made by this Court in the order dated 17.5.2010 without application of mind and without going into the fact that initial interim order has been modified by this Court and the sentence has been stayed on consideration of entire facts and circumstances, mentioned in the modification application, wherein the entire facts have been stated and brought to the notice of the Court and, therefore, the suspension order is wholly unjustified. He further submitted that when this Court has made a query that whether any inquiry proceeding has been contemplated, hurriedly the inquiry officer has been appointed mechanically without going into the record that the inquiry report has already been submitted by Dr. He further submitted that when this Court has made a query that whether any inquiry proceeding has been contemplated, hurriedly the inquiry officer has been appointed mechanically without going into the record that the inquiry report has already been submitted by Dr. B.N. Singh in the year 2003, thus, the initiation of inquiry proceeding and the appointment of the inquiry officer is wholly unjustified. He submitted that the petitioner is under suspension since 2002 and the entire family is starving, therefore, on humanitarian ground, the suspension order is liable to be revoked. 12. Learned counsel for the respondents submitted that when the petitioner was arrested and put to jail, there was a deemed suspension under Rule 4 (3) (a) of Rules, 1999 and Rule 4 (3) (b) provides that on the representation being made, the suspension could be revoked, but such right has not been given under Rule 4 (4) of the Rules, 1999 after the conviction and, therefore, after the conviction, the suspension order could not be revoked. However, when the officer concerned realised the mistake, the suspension order dated 19.8.2002 has been passed on consideration of the entire facts and circumstances of the case, which is wholly justified. He submitted that since the petitioner is already convicted and the appeal is pending before this Court, it only amounts that criminal proceeding is pending even after the stay of the sentence and, therefore, in law, the petitioner can be suspended and suspension can continue. 13. We have considered rival submissions. 14. It would be useful to refer Rule 4 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the “Rules 1999”). “4. 13. We have considered rival submissions. 14. It would be useful to refer Rule 4 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the “Rules 1999”). “4. Suspension.—(1) A Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority : Provided that suspension should not be restored to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty; Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belongs to Group ‘A’ and ‘B’ posts under suspension under this rule; Provided also that in the case of any Government Servant or class of Government Servants belonging to Group ‘C’ and ‘D’ posts, the Appointing Authority may delegate its power under this rule to the next lower authority. (2) A Government Servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government Servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may, at the discretion of the Appointing Authority or the Authority to whom the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to that charge. (3) (a) A Government Servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority Competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours. (b) The aforesaid Government Servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. (b) The aforesaid Government Servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provisions contained in the rule, pass appropriate order continuing the deemed suspension from the date of release from custody or invoking or modifying it. (4) Government Servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority Competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed removed consequent to such conviction. Explanation.—A period of forty-eight hours referred to in sub-rule (11) be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment shall be taken to account. Explanation.—A period of forty-eight hours referred to in sub-rule (11) be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment shall be taken to account. (5) Where a penalty of dismissal or removal from service imposed upon a Government servant is set-aside in appeal or on review under these rules or under rules rescinded by these rules and the case is remitted for further inquiry or action or with any other directions : (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the original order of dismissal or removal; (b) if he was not under suspension, he shall, if so directed by the appellate or Reviewing Authority, be deemed to have been placed under suspension by an order of the Appointing Authority on and from the date of the original order of dismissal or removal: Provided that nothing in this sub-rule shall be construed as affecting the power of the Disciplinary Authority in a case where a penalty of dismissal or removal in service imposed upon a Government servant is set-aside in appeal or on review under these rules grounds other than in merits of the allegations which, the said penalty was imposed but the case is remitted for further inquiry or action or with any other directions to pass an order of suspension being further inquiry against him on those allegations so however, that any such suspension shall not have retrospective effect. (6) Where a penalty of dismissal or removal from service imposed upon a Government servant is set-aside or declared or rendered void in consequence of or by a decision of a Court of law and the Appointing Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof of a minor nature omitted: (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the Appointing Authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal; (b) if he was not under such suspension, he shall, if so directed by the Appointing Authority, be deemed to have been placed under suspension by an order of the Competent Authority on and from the date of the original order of dismissal or removal. (7) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the Authority Competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings. (8) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until it is modified or revoked by the Competent Authority. (9) A Government Servant placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamental Rule 53 of the Finance Hand Book, Volume II, Part II to IV.” 15. In the case of Rama Narang v. Ramesh Narang and others, (1995) 2 SCC 513 , the Hon’ble Apex Court held that the Appellate Court, in exercise of its powers under Section 389 (1), Cr.P.C., is competent not only to suspend the sentence but also the conviction in a rare case. In the case of Rama Narang v. Ramesh Narang and others, (1995) 2 SCC 513 , the Hon’ble Apex Court held that the Appellate Court, in exercise of its powers under Section 389 (1), Cr.P.C., is competent not only to suspend the sentence but also the conviction in a rare case. The Court has observed as under : “In such a situation, 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 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 thereto ? No one can be allowed to play hide and seek with the Court, he cannot suppress the precise purpose, for which suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate.” 16. The Hon’ble Apex Court after reconsidered its judgment in Rama Nagang (Supra) in subject decision in the case of State of Tamil Nadu v. A.Jaganathan, 1996 (33) ACC 641 (SC), reversed the judgment of the High Court where under the conviction under the order of the Trial Court was stayed in exercise of the power under Section 389(1), Cr.P.C. In the said case, the High Court had observed that the power of the Appellate Court or the High Court to suspend the conviction of sentence is an inherent power and can be exercised at any stage of the proceedings, however, the Appellate Court should record reasons, in writing. In that case, had the conviction not been stayed, the convict was going to loose the stipend. The Apex Court held as under : “............The High Court, though made an observation but did not consider at all the moral conduct of the respondent ...... who was the Police Inspector....had been convicted under Sections 392, 218 and 466, I.P.C. while the other respondents, who are also public servants, have been convicted under the provisions of the Prevention of Corruption Act. In such a case, the discretionary power to suspend the conviction either under Section 389 or under Section 482, Cr.P.C. should not have been exercised. who was the Police Inspector....had been convicted under Sections 392, 218 and 466, I.P.C. while the other respondents, who are also public servants, have been convicted under the provisions of the Prevention of Corruption Act. In such a case, the discretionary power to suspend the conviction either under Section 389 or under Section 482, Cr.P.C. should not have been exercised. The order impugned, thus, cannot be sustained.” 17. In the case of B.R. Kapur v. State of T.N. and another, 2002 (46) ALR 156 (SC), the Apex Court considered the scope of the provisions of Section 389, Cr.P.C. observing that suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence which has attracted the sentence of imprisonment. The suspension of the execution of the sentence, therefore, does not remove the disqualification of being a convict and its consequential effect. The said case was in respect of the issue as to whether being a convict, the respondent in that case was qualified to seek election to the Legislative Assembly. 18. In the case of K.C. Sareen v. Central Bureau of Investigation, 2001 (43) ACC 511 (SC), the Hon’ble Apex Court examined a case wherein a Government servant who had been convicted under the provisions of the Prevention of Corruption Act was to loose the job in case the conviction was not stayed. The Court held that when a public servant is found guilty of corruption by a Court, he has to be treated as a corrupt until he is exonerated by the superior Court in appeal/revision. Mere stay of the conviction during pendency of the appeal should not confer any bonus upon such an employee for the reason that if such a public servant is permitted to hold the office and to do official act (unless he is absolved from such findings by the superior Court), the public interest may suffer irreparable. It may impair the moral of other persons manning the office and may erode the confidence of the people in public institutions besides demoralising the other honest public servants. 19. It may impair the moral of other persons manning the office and may erode the confidence of the people in public institutions besides demoralising the other honest public servants. 19. In the case of State of Maharashtra v. Gajanan and another, 2005 (Suppl.) ACC 166 : AIR 2004 SC 1188 , the Hon’ble Supreme Court reitereated a similar view placing reliance upon the judgment in K.C. Sarin (Supra) and Union of India v. Atar Singh and another, (2003) 12 SCC 434 : 2002(44) ACC 820 (SC). In the later case, the Apex Court had held that a conviction should not be suspended merely on the ground that non-suspension of the conviction may entail removal of the Government servant from service. 20. In the case of Ravikant S. Patil v. Sarvabhowma S. Bagali, (2007) 1 SCC 673 , the Hon’ble Supreme Court held as under : “it deserves to be clarified that an order granting stay of conviction is to 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 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 nonexistent, but non-operative.........All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.” (Emphasis added).” 21. In the case of Navjot Singh Sidhu v. State of Punjab and another, 2007 (58) ACC 60 (SC) : 2007(52) AIC 174 (SC), the Hon’ble Apex Court held that the Appellate Court can suspend “an order appealed against”, i.e. the order of conviction only if the convict specifically establishes the consequences that may follow if the operation of the order is not stayed. Stay of conviction must be granted in a rare case only in special circumstances. 22. In the present case, such situation is not before us. Therefore, these judgements are not much useful so far as the controversy involved in the present case is concerned. 23. Stay of conviction must be granted in a rare case only in special circumstances. 22. In the present case, such situation is not before us. Therefore, these judgements are not much useful so far as the controversy involved in the present case is concerned. 23. As stated above, in the present case, the question for consideration is that if in the second suspension order dated 2.8.2010, inquiry is not contemplated whether such suspension order is vitiated in the facts and circumstances of the case. 24. It is admitted that while passing the suspension order dated 2.8.2010, fresh inquiry proceeding has not been contemplated and the inquiry officer has not been appointed and as per the counter-affidavit filed by the Principal Secretary, Medical Education, U.P., Lucknow dated 6.11.2013, Dr. Anand Kumar Chaturvedi, Principal National Homoeopathic Medical College, Allahabad has been appointed as an inquiry officer. 25. It is not in dispute that when the petitioner was sent to jail, he was suspended by order dated 1.6.2002, the inquiry was contemplated and Dr. B.N. Singh, Principal of Government National Homoeopathic College, Lucknow was appointed as inquiry officer vide Government Order dated 19.8.2002. As per the short counter-affidavit dated 24.10.2013, the inquiry officer has submitted his inquiry report dated 1.7.2003 before the State Government. However, no further order has been passed by the disciplinary authority. In the circumstances, we are of the view that once the inquiry proceeding has been initiated and has not been culminated into a final order, passed by the disciplinary authority, it is deemed to be pending and no fresh inquiry order was required to be issued. 26. We are surprised to note that when an inquiry proceeding has already been contemplated and the inquiry report has been submitted and the same has not been culminated by passing final order by the disciplinary authority and without there being any order for fresh inquiry by the disciplinary authority how the new inquiry officer has been appointed. The appointment of Dr. Anad Kumar Chaturvedi, Principal National Homoeopathic Medical College Allahabad vide Government Order dated 6.11.2013 is not justified. In view of the above, it is clear that the departmental disciplinary proceeding is still pending. 27. The appointment of Dr. Anad Kumar Chaturvedi, Principal National Homoeopathic Medical College Allahabad vide Government Order dated 6.11.2013 is not justified. In view of the above, it is clear that the departmental disciplinary proceeding is still pending. 27. It may be mentioned here that against the conviction order, the petitioner filed Criminal Appeal No. 2605 of 2009 in which by the order dated 7.5.2009, the petitioner was granted bail and the effect and operation of the impugned conviction order and judgment dated 21.4.2009 was stayed. The petitioner moved modification application. In the modification application, he has given the entire facts about his suspension. On the application for modification, the Court on 7.5.2009 has modified its earlier order. By the order dated 7.5.2009, the effect and operation of the sentence of the petitioner by the impugned judgment and order dated 21.4.2009 has been stayed during the pendency of appeal. Though the facts mentioned in the modification application have not been referred in the order dated 7.5.2009 and the reason for the modification have not been given but it can be presumed that the modification order has been passed on a consideration of the facts mentioned in the modification application. After the modification of the order, it comes out that the sentence awarded by the judgment dated 21.4.2009 has been stayed during the pendency of appeal on consideration of entire facts and circumstances of the case. Now the question arises that if the sentence is stayed by the appellate Court whether Rule 4(4) of the Rules, 1999 is applicable and still continues to operate. 28. When the petitioner was sent to jail in pursuance of the FIR and he remained in jail for more than 48 hours under Rule 4 (3)(a) of the Rules, 1999, the petitioner was deemed to have been suspended and even no order was required for such deemed suspension. Rule 4 (3)(b) of the Rules, 1999 provides that on representation being made, the suspension could be revoked. Rule 4 (4) of the Rules, 1999 further provides deemed suspension when conviction order is passed. It contemplates deemed suspension with effect from the date of conviction, in the event of the conviction for an offence the delinquent employee is sentence to a term of imprisonment exceeding 48 hours and is not forthwith dismissed or removed consequent to such conviction. Rule 4 (4) of the Rules, 1999 further provides deemed suspension when conviction order is passed. It contemplates deemed suspension with effect from the date of conviction, in the event of the conviction for an offence the delinquent employee is sentence to a term of imprisonment exceeding 48 hours and is not forthwith dismissed or removed consequent to such conviction. Rule 4 (8) of the Rules, 1999 contemplates the provision for the revocation of the suspension. 29. Under the Statutory Rules and Article 311 of the Constitution of India a person holding a civil post can neither be dismissed nor can be removed in rank without holding an enquiry. However, proviso (a) to Clause (2) of Article 311 of the Constitution provides for an exception to the aforesaid rule to the effect that an employee can be dismissed or removed or reduced in rank on the ground of his conduct which has led to his conviction on a criminal charge, without holding any enquiry. 30. In the present case, admittedly, the sentence is more than 48 hours and no order of dismissal or removal consequent to such conviction is passed, therefore, under Rule 4(4) of the Rules, 1999, the petitioner can be deemed to be placed under suspension or can be continued to be placed under suspension by an order of competent authority. 31. Now the question is that what is the effect of stay of sentence by the Criminal Appellate Court. We are of the view that the suspension of sentence does not amount to the stay of conviction. 32. In the case of Lalsai Khunte v. Nirmal Sinha and others, (2007) 3 SCC (Crl.) 149 : (2007 AIR SDW 1591). In para 14, the Apex Court observed that the suspension does not amount to temporarily washing out the conviction. It has further been observed that conviction still remains, only the operation of the order and the sentence remains suspended and that does not amount to temporary stay of the conviction. 33. The Constitution Bench of the Apex Court in the case of K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 : AIR 2005 SC 688 . In para 42 the Apex Court has held that the suspension is not of conviction or sentence, but it is only the execution of the sentence or order which is suspended and not obliterated. 34. In para 42 the Apex Court has held that the suspension is not of conviction or sentence, but it is only the execution of the sentence or order which is suspended and not obliterated. 34. The aforesaid decisions have been followed by the Division Bench of this Court in the case of Radhey Shyam v. State of U.P. and others, 2008 (4) ALJ 16. 35. It is settled principle of law that criminal proceeding and departmental proceeding are two separate and independent proceedings and both the proceedings can continue simultaneously. 36. In Writ Petition No. 54159 of 2012, Mohd. Ismail Naqvi v. High Court of Judicature at Allahabad Thru’ Registrar and another, decided on 23.5.2013, on consideration of the decisions of the Apex Court, this Court has laid down the following principles on the subject : “(a) Departmental proceeding and the criminal proceeding are two different and distinct proceedings. The purpose of both the proceedings are different. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offence shall make satisfaction to the public whereas the departmental enquiry is meant to maintain discipline in the service and efficiency of public service. (b) There would be no bar to proceed, simultaneously with departmental enquiry and the trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. (c) The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. The strict standard of proof or applicability of the Evidence Act stands excluded. (d) The only ground for staying the disciplinary proceeding is “that the defence of the employee in the criminal case may not be prejudiced.” (e) ‘Advisability’, ‘desirability’ or ‘propriety’, as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be and should not be delayed unduly. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices involved. (f) The interest of the administration and good governance demand that the proceedings are concluded expeditiously. It must be remembered that the interest of the administration demands that the undesirable elements are thrown out on any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty, but to keep the administrative machinery unsullied by getting rid of bad elements in the services. (g) It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. (h) Stay of disciplinary proceedings cannot be, and should not be, a matter of course, but a considered decision. Even if it is stayed at one stage, the decision may require reconsideration, if the criminal case gets unduly delayed. (i) The standard of proof required in the departmental proceedings is not the same as is required to prove a criminal charge and even if there is an acquittal in the criminal proceedings, the same does not bar departmental proceedings. (j) In the absence of any provision in the Service Rule for reinstatement, if an employee is honourably acquitted by a criminal Court, even then no right is conferred on the employee to claim any benefit, including the reinstatement for reason that the standard of proof required for holding a person guilty by a criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond a reasonable doubt, the accused is assumed to be innocent. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond a reasonable doubt, the accused is assumed to be innocent. (k) It is settled law that the strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc., but it may not of any help in the disciplinary proceedings.” We fully agree with the above principle laid down by this Court. 37. From the aforesaid factual and legal position, the following emerges: The departmental disciplinary proceedings is pending against the petitioner. Criminal proceedings and departmental disciplinary proceedings can go on together. Petitioner has been convicted in a criminal proceeding and has been sentenced for more than 48 hours. The petitioner has not yet been dismissed or terminated from service in exercise of powers under proviso (a) to Clause (2) of Article 311 of the Constitution of India or otherwise. The granting of bail or staying of sentence does not amount to stay of conviction. After conviction under Rule 4 (4), the petitioner shall be deemed to be placed under suspension or can be continued to be placed under suspension unless the suspension is revoked under sub-Rule (8) of Rule 4. The petitioner has been placed under suspension by the impugned order. Thus, impugned suspension order cannot be said to be without jurisdiction. Sub-Rule 8 of Rule 4 of Rule 1999, provides that any suspension ordered or deemed to have been ordered or to continue in force under under this Rule shall continue to remain enforced unless it is modified or revoked by the competent authority. It means that the competent authority has a power to revoke the deemed suspension or suspension which has been ordered to continue on the facts and circumstances of the case. 38. It means that the competent authority has a power to revoke the deemed suspension or suspension which has been ordered to continue on the facts and circumstances of the case. 38. In the present case the suspension order has been revoked merely on the ground that the conviction has been stayed by this Court and it appears that in view of the observations made by the Division Bench of this Court in Writ Petition No. 27985 of 2010 on 17.5.2010 by the impugned order the petitioner has been suspended. The disciplinary authority on the facts and circumstances has not considered “Advisability’, ‘desirability’ or ‘propriety” etc. as to whether the petitioner may be allowed to be reinstated or to be kept him suspended. These are factual aspects which are to be considered by the competent authority as to whether to revoke the suspension order or to continue to place the employee under suspension. Let the disciplinary authority may examine these aspects of the matter and pass the appropriate order expeditiously, preferably within a period of one month from the date of presentation of the certified copy of this order. Disciplinary authority is further directed to conclude the disciplinary proceeding expeditiously, preferably within a period of three months from the date of presentation of the certified copy of this order, if there is no legal impediment, in accordance to law. The Disciplinary authority is further directed to consider the claim of the petitioner relating to fixation of salary etc., in accordance to law. 39. In view of the aforesaid observations and directions, both the writ petitions stand disposed of.