JUDGMENT B.S. Chauhan and Arun Tandon, JJ.
1. This writ petition has been filed against the judgment and order of the Central Administrative Tribunal dated 04.01.2008 whereby the Original Application No. 336 of 2007 of the present petitioner seeking quashing the order of punishment of dismissal from service dated 16.03.2007 has been dismissed.
2. The facts giving rise to this petition are; the petitioner, while working in the Income-tax Department at Ghaziabad, was trapped and caught red-handed by the Central Bureau of Investigation while accepting bribe of Rs. 500/-. He was put under suspension by the Department vide order dated 17.06.2002. Petitioner was put to trial and has been convicted by the competent Criminal Court vide judgment and order dated 06.04.2006, after holding him guilty under the provisions of Section 7 read with Section 13 (1)(d) of the Prevention of Corruption Act. Punishment of one year imprisonment and Rs. 5000/- as fine had been imposed. Petitioner claims that he has filed an appeal against the said judgment and order of conviction and the Appellate Court has enlarged him on bail. Despite the order of bail, the petitioner has been dismissed from service vide order dated 16.03.2007 because of his being convicted by the competent Criminal Court. The appeal against the order of dismissal from service has also dismissed. The petitioner therefore approached the Tribunal where his claim has been rejected vide order dated 04.01.2008. Hence the present writ petition.
3. Learned Counsel for the petitioner has submitted that the order of dismissal of the petitioner from service merely on the ground of conviction is bad in view of the fact that he has been enlarged on bail, which amounts to stay of the conviction also.
4. On the other hand, learned Counsel for the respondents has vehemently opposed the writ petition contending that in exercise of power under Section 389 of the Code of Criminal Procedure (hereinafter called the 'Cr.P.C.'), the Appellate Court has a very limited power to stay the conviction and in the instant case, as there is no stay of conviction, the order of dismissal from service cannot be challenged on any ground that petitioner has been granted bail by the appellate Court, the petition is liable to be dismissed.
5. We have considered the rival submissions made by learned Counsel for the parties and perused the record.
The question does arise as to whether a convict employee has a right to continue in or to be reinstated in service during the pendency of his appeal after conviction by the trial Court?
6. Under the statutory rules and Article 311 of the Constitution of India, a person holding a civil post can neither be dismissed nor removed nor can be reduced 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.
7. There had been conflicting views on the issue whether in exercise of the power under Section 389 (1) of the Cr.P.C, the Appellate Court can suspend the conviction also along with suspension of sentence for the reason that there has been controversy whether the words " order appeal against" may be so wide as to include the "conviction". The word "conviction" has no where been mentioned/explained under the provisions of the Code of Criminal Procedure or any other Rules or Regulations or any other enactment.
8. No provision has been made for suspension of conviction in appeal. (Vide V. Sundararamireddy v. State 1990 Cr.L.J. 167; and M. Srinivasulu Reddy v. State Inspector of Police 1993 Cr. L.J. 558.)
9. In Rama Narang v. Ramesh Narang and Ors. , 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 he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate.
10. The Hon'ble Apex Court after reconsidered its judgment in Rama Narang (supra) in subject decision in the case of State of Tamil Nadu v. A. Jaganathan , 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. The order impugned, thus, cannot be sustained.
11. In B.R. Kapur v. State of T.N. and Anr. , 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.
12. In K.C. Sareen v. Central Bureau of Investigation , 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 irreparably. 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.
13. In State of Maharashtra v. Gajanan and Anr. AIR 2004 SC 1188, the Hon'ble Supreme Court reiterated a similar view placing reliance upon the judgment in K.C. Sarin (supra) and Union of India v. Atar Singh and Anr. . 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.
14. In 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 not rule but is an exception to be Resorted to in rare cases depending upon the facts of a case the facts of a case. where the execution of the sentence is stayed the conviction to operate. But where conviction it self is stayed the effect is that the conviction will not be operative from not from the date of stay. An order of stay of course does not render the conviction non existent but only 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).
15. In Navjot Singh Sidhu v. State of Punjab and Anr. , the Hon'ble Apex Court held that the Appellate Court can suspend "a 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.
16. Thus in view of the aforesaid, a clear picture emerges that the Appellate Court in exceptional case may put the conviction in abeyance along with the sentence, but such a power requires to be exercised with great circumspection and caution and for that the applicant must satisfy the Court as what evils are going to visit him if the pleaded by the applicant in a judicious manner and examine whether the facts and circumstances involved in the case warrant such a course. Relief of staying the conviction cannot be granted only on the ground that an employee may loose his job.
17. Be that as it may, admittedly the petitioner had been trapped and thereafter convicted and sentenced by the competent Criminal Court. His appeal against the conviction and sentence is pending consideration , he has been enlarged on bail it does not amount to staying the conviction also. Petitioner has been convicted under the provisions of the prevention of Corruption Act he does not deserve any sympathy of this Court under Article 226 of the Constitution of India. Even if there has been some Minot irregularities in the procedure while dismissing the petitioner from service we refuse to exercise our equitable jurisdiction. In case petitioner succeeds in his criminal appeal, he will have a right to approach the competent authority for recall of the order of dismissal but granting any relief to him at this stage would demoralize all other officers of the department.
18. Thus, the facts and circumstances of the case do not warrant any interference. Petition is accordingly dismissed.