1997 JTR(SC) 1164
1997 AIR(SC) 3531 ; 1997 AIR(SCW) 3627 ; 1997 2 CLR 1177 ; 1997 68 DLT 730 ; 1997 77 FLR 478 ; 1997 7 JT 645 ; 1997 LIC 3475 ; 1997 3 LLN 729 ; 1998 1 RLW(Raj) 102 ; 1997 4 RSJ 153 ; 1997 5 Scale 660 ; 1997 7 SCC 514 ; 1997 SCC(L&S) 1774 ; 1997 SCR 668 ; 1997 4 SCT 265 ; 1997 2 UJ 661 ; 1997 3 UPLBEC 1603 ; 1997 KHC 1052 ; 1997 8 Supreme 234
1997(8) Supreme 234
SUPREME COURT OF INDIA
K. Venkataswami and V.N. Khare, JJ.
Union of India and Ors. -Appellants
versus
Shri Ramesh Kumar -Respondent
Civil Appeal No. 1323 of 1991
Decided on 2.9.1997
Counsel for the Parties :
For the Appellants : H.L. Aggarwal, Sr. Advocate, Avatar Singh Rawat, D.S. Mahara, and C.V.S. Rao, Advocate.
For the Respondent : K.K. Gupta, Advocate. (NP).
IMPORTANT POINT
Order dismissing a public servant from service on ground of misconduct leading to his conviction by a competent Court does not loose its string merely because a criminal appeal was filed against conviction and Appellate Court suspended the sentence.
Act
Referred
:CENTRAL CIVIL SERVICES CLASSIFICATION, CONTROL AND APPEAL RULES : R.19(i), R.19
CONSTITUTION OF INDIA : Art.311(2)
CRIMINAL PROCEDURE CODE : S.389
PREVENTION OF CORRUPTION ACT : S.5(2)
(A) The case involves the interplay of the Criminal Procedure Code, the Constitution of India, the Central Civil Services Classification, Control and Appeal Rules, and the Prevention of Corruption Act. Section 389 of the Cr.P.C. empowers an appellate court to suspend execution of sentence and release an accused on bail, keeping the conviction in abeyance but not obliterating it. Article 311(2) of the Constitution, read with Rule 19 of the CCS (CCA) Rules, 1965 and provisions of the Vigilance Manual, governs dismissal proceedings for public servants convicted of misconduct. Section 5(2) of the Prevention of Corruption Act, 1947, addresses conviction for accepting illegal gratification. The Tribunal erred in treating suspension of sentence as rendering the dismissal order void, when the rules and law contemplate continued efficacy of the dismissal order during appeal.
(B) Key legal principles include: suspension of sentence under Section 389 Cr.P.C. does not nullify a conviction or the order of dismissal; the Disciplinary Authority retains power to act under Rule 19 based on misconduct leading to conviction; subsistence allowance is not payable during suspension of sentence unless specifically provided; and reliance on prior administrative orders contrary to law is misplaced.
Facts of the case:
The respondent, an Inspector in the Food and Civil Supplies Department, was arrested by the Anti-Corruption Branch for accepting illegal gratification. He was suspended, later convicted under Section 5(2) of the Prevention of Corruption Act, 1947, sentenced to imprisonment and fine, and dismissed from service under Rule 19 of the CCS (CCA) Rules, 1965. He filed a criminal appeal and prayed for bail. The High Court suspended execution of sentence and released him on bail. After four years, he approached the Central Administrative Tribunal seeking quashing of the dismissal order and subsistence allowance for the period, which the Tribunal allowed.
Findings of Court:
The Tribunal erred in holding that suspension of execution of sentence by the High Court obliterated the conviction and the order of dismissal, making the respondent entitled to subsistence allowance. Rule 19 does not provide for such suspension of disciplinary action, and the orders relied upon by the Tribunal were not in conformity with law.
Issues:
Whether suspension of execution of sentence by an appellate court operates to quash the order of dismissal and entitles a government servant to subsistence allowance during the pendency of the appeal.
Ratio Decidendi:
Suspension of sentence under Section 389 Cr.P.C. keeps the conviction in abeyance but does not nullify it; consequently, the order of dismissal based on misconduct leading to conviction remains effective and does not lose its force merely because an appeal is filed and bail is granted.
Result:
The appeal is allowed, the impugned order of the Central Administrative Tribunal is set aside, and no order as to costs is made.
(A) The case involves the interplay of the Criminal Procedure Code, the Constitution of India, the Central Civil Services Classification, Control and Appeal Rules, and the Prevention of Corruption Act. Section 389 of the Cr.P.C. empowers an appellate court to suspend execution of sentence and release an accused on bail, keeping the conviction in abeyance but not obliterating it. Article 311(2) of the Constitution, read with Rule 19 of the CCS (CCA) Rules, 1965 and provisions of the Vigilance Manual, governs dismissal proceedings for public servants convicted of misconduct. Section 5(2) of the Prevention of Corruption Act, 1947, addresses conviction for accepting illegal gratification. The Tribunal erred in treating suspension of sentence as rendering the dismissal order void, when the rules and law contemplate continued efficacy of the dismissal order during appeal.
(B) Key legal principles include: suspension of sentence under Section 389 Cr.P.C. does not nullify a conviction or the order of dismissal; the Disciplinary Authority retains power to act under Rule 19 based on misconduct leading to conviction; subsistence allowance is not payable during suspension of sentence unless specifically provided; and reliance on prior administrative orders contrary to law is misplaced.
Facts of the case:
The respondent, an Inspector in the Food and Civil Supplies Department, was arrested by the Anti-Corruption Branch for accepting illegal gratification. He was suspended, later convicted under Section 5(2) of the Prevention of Corruption Act, 1947, sentenced to imprisonment and fine, and dismissed from service under Rule 19 of the CCS (CCA) Rules, 1965. He filed a criminal appeal and prayed for bail. The High Court suspended execution of sentence and released him on bail. After four years, he approached the Central Administrative Tribunal seeking quashing of the dismissal order and subsistence allowance for the period, which the Tribunal allowed.
Findings of Court:
The Tribunal erred in holding that suspension of execution of sentence by the High Court obliterated the conviction and the order of dismissal, making the respondent entitled to subsistence allowance. Rule 19 does not provide for such suspension of disciplinary action, and the orders relied upon by the Tribunal were not in conformity with law.
Issues:
Whether suspension of execution of sentence by an appellate court operates to quash the order of dismissal and entitles a government servant to subsistence allowance during the pendency of the appeal.
Ratio Decidendi:
Suspension of sentence under Section 389 Cr.P.C. keeps the conviction in abeyance but does not nullify it; consequently, the order of dismissal based on misconduct leading to conviction remains effective and does not lose its force merely because an appeal is filed and bail is granted.
Result:
The appeal is allowed, the impugned order of the Central Administrative Tribunal is set aside, and no order as to costs is made.
JUDGMENT
V.N. Khare, J.-This appeal is directed against the order dated March 2, 1990 passed by the Central Administrative Tribunal, New Delhi whereby it has set aside the order of dismissal dated August 30, 1983 and further directed the appellants to treat the period beginning from the date of dismissal of the respondent till the disposal of criminal appeal filed by the respondent in the Delhi High Court, as period of suspension for which respondent would he entitled to get normal subsistence allowance in accordance with the relevant rules.
2. The respondent while serving as Inspector in Food and Civil Supplies Department of the Delhi Administration was arrested by Anti-Corruption Branch for accepting illegal gratification. Consequently the respondent was placed under suspension. Later on, the Special Sub Judge, Delhi on 30.7.83 convicted the respondent under Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo imprisonment for three years and to pay a fine of Rs. 500/- and in default to further undergo six months imprisonment. After the respondent was convicted by Special Sub Judge, Delhi, the Disciplinary Authority dismissed the respondent from service under Rule 19 of CCS (CCA) Rules, 1965 read with the provisions of Vigilance Manual. Simultaneously, the respondent filed a criminal appeal, along with a prayer for bail against conviction and sentence recorded by Special Sub Judge, Delhi before the High Court of Delhi. After the appeal was admitted, the High Court passed the following 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 to the satisfaction of the trial Court.
3. After a lapse of four years of passing of the order of dismissal, the respondent filed an application before the Central Administrative Tribunal, New Delhi, under Section 19 of the Central Administrative Tribunal Act, 1985 (hereinafter referred to as the Act) for quashing the order of dismissal and issuing a direction to the appellants to grant subsistence allowance for the period beginning from the date of dismissal till filing of the criminal appeal in the High Court. The Tribunal, by the impugned order allowed the application of the respondent and granted reliefs as prayed for, in the application.
4. It appears that the Tribunal while allowing the application, was of the view that by suspension of the execution of sentence by the High Court the conviction recorded by the Special Sub Judge against the respondent and the order of dismissal passed by the Disciplinary Authority have lost their efficacy and the respondent is to be treated under suspension till the final judgment to be delivered by the High Court in appeal preferred by the respondent. This view of the Tribunal is neither borne out from the rules applicable to the respondent nor by any judicial decisions cited before the Tribunal. Undisputedly, the respondent is governed by the CCS (CCA) Rules, 1965 read with the provisions of Vigilance Manual. Rule 19 of CCS (CCA) Rules, 1965 which is applicable in the present case reads thus:-
"Rule 19 of CCS (CCA) Rules, 1965
Notwithstanding anything contained in Rule 14 to Rule 18 :-
(i) Where any penalty is imposed on a Govt. servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) and (iii)..................provided in these rules.
The disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit.
Rules 15.2 and 15.3 as occurring in Chapter-VII of the Vigilance Manual are extracted below :-
Chapter-VII of Vigilance Manual (Para 15.2 and 15.3)
15.2..........................accused public servant.
15.3 If the Disciplinary Authority comes to the conclusion that the offence for which the public servant has been convicted was such as to retention in the public service prima facie undesirable, it can impose upon him under Rule 19(1) of CCS (CCA) Rules, 1965, the penalty of dismissal or removal or compulsory retirement from service as may be considered appropriate, with reference to the gravity of offence, without holding any enquiry or giving him a show-causes notice as provided in proviso to Article 311(2) of the Constitution.
F.R. 54(1)..............make a specific order :-
(a) Regarding the pay and allowance to be paid to the Govt. servant for the period of his absence from duty including the period of suspension proceeding his dismissal, removal or compulsory retirement; as the case may be; and
(b) Whether or not the said period shall be treated as period spent on duty.
5. A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Govt. 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 dismissed Govt. 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 filed by a Govt. servant for taking action against him on the ground of misconduct which has led to his conviction by a competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent Court of law has not lost its string 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. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate Court has power to suspend the execution of sentence and to release an accused on bail. When the appellate Court suspends the execution of sentence, and grants bail to an accused the effect of the order is that 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 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 Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because 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 the disposal of Criminal Appeal by the High Court.
6. Before we part with this case, we would like to refer the decision of this Court in the case of State of Maharashtra v. Chandrabhan1, and two administrative orders heavily relied upon by the Administrative Tribunal in allowing the application of the respondent. In the case of Chandrabhan (supra) the validity of second proviso to Rule 151 of the Bombay Civil Service Rules which provided for payment of subsistence allowance at the rate of Rs. 1 per month to a Govt. servant who is convicted by a competent Court of law and sentenced to imprisonment and whose appeal against the conviction and sentence is pending, was challenged and struck down by this Court. The question involved in the said case was entirely different than the question which was to be resolved by the Tribunal. We are, therefore, of the opinion that reliance of this decision of the Supreme Court was totally misplaced. The Tribunal further relied upon two administrative orders passed by the Delhi Administration whereby two employees of the Delhi Administration were reinstated after the High Court suspended the execution of their sentences in appeals filed by them. Assuming that the facts of those cases and the present case are alike, reliance of such orders was totally misplaced for the reason being that those orders passed were not in conformity with law.
7. For the foregoing reasons, the order dated 2.3.1990 passed by the Central Administrative Tribunal, New Delhi is set aside. The appeal is allowed. There shall be no order as to costs.
Appeal allowed.
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Parallel Citations of other Journals :
Union of India & Ors. v. Shri Ramesh Kumar, 1997 (8) Supreme 234 : 1997(7) JT 645 (SC) : 1997(7) SCC 514 (SC)
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