GOVT. OF A.P. & ANR.versusB. JAGJEEVAN RAO

                   [2014] 7 S.C.R. 523


                   GOVT. OF A.P. & ANR.                       A
                             v.
                   8. JAGJEEVAN RAO
               (Civil Appeal No. 80 of 2009)
                      MAY 12, 2014                            B
        [DIPAK MISRA AND N.V. RAMANA, JJ.]

    Service Law:

      A.P.C.S. (CC&A) Rules, 1991 - Rule 25 - Interpretation C
of - Imposition of sentence by disciplinary authority -
Consideration of - Held: Disciplinary Authority is to consider
the conduct of Government servant that led to his conviction
on criminal charge before imposing the appropriate
punishment - In view of the expected standard of              o
administration, conviction on the charge of corruption is to be
viewed seriously - Employer cannot be compelled to take an
employee back in service unless conviction is set aside - On
facts, employee convicted for the offences punishable under
the 1988 Act- On application u/s. 389(1) Cr.P.C., suspension E
of sentence by High Court, though not directed stay of
conviction - Order of dismissal of employee by the
Department, invoking power ulr. 25 upheld by the tribunal but
set aside by High Court - High Court erred in its interpretation
of r. 25(1) and in not keeping in mind the distinction between F
stay of conviction and suspension of sentence, thus, order
passed by the High Court set aside - Constitution of India,
 1950 - Article 311 (2) - Prevention of Corruption Act, 1988 -
Code of Criminal Procedure, 1973 - Section 389(1).

    The respondent was convicted for the offences             G
punishable under the Prevention of Corruption Act, 1988.
An application was filed u/s. 389(1) Cr.P.C. The High Court
directed suspension of sentence. No order of stay of
conviction was passed. After the order of conviction was
                            523                               H
    524      SUPREME COURT REPORTS             [2014] 7 S.C.R.


A passed, the Department dismissed the respondent from
  service, invoking power under Rule 25 of A.P.C.S. (CC&A)
  Rules, 1991. The tribunal upheld the order of dismissal.
  In writ petition, the High Court held that when the
  criminal appeal was pending for adjudication and there
B was suspension of sentence, the Department could not
  have passed an ord1~r of dismissal and set aside the
  order of dismissal. Hence the instant appeal.

       The question which arose for consideration was
C whether an inquiry should have been held under Article
  311 (2) of the Constitution, regard being had to the
  scheme of Rule 25(1) 1)f the A.P.C.S. (CC&A) Rules, 1991.

          Allowing the appeal, the Court

D      HELD: The requirement of the A.P.C.S. (CC&A)
  Rules, 1991, as it seems, is that the conduct of
  Government servant that had led to conviction on the
  criminal charge and the circumstances of the case are to
  be considered by the disciplinary authority before
E imposing the appropriate punishment. Keeping in view
  the expected standard of administration, conviction on
  the charge of corruptie>n has to be viewed seriously and
  unless the conviction is annulled, an employer cannot be
  compelled to take an employee back in service.
  Therefore, the High Court clearly erred in its interpretation
F of Rule 25(1) and further committed illegality in not
  keeping in mind the distinction between stay of
  conviction and suspension of sentence as envisaged
  under Section 389(1) of Cr.P.C. The judgment and order
  of the High Court, being sensitively susceptible, is set
G aside. [Paras 10, 11 and 12] (503-C; 504-C-E]

       The Director of Collegiate Education vs. S. Nagoor
  Meera (1995) 3 SCC 377: 1995 (2) SCR 308 K.C. Sareen
  vs. CBI, Chandigarh (2001) 6 SCC 584: 2001 (1) Suppl. SCR
H 224 Rama Narang vs. Ramesh Narang (1995) 2 SCC 513:
        GOVT. OF A.P. v. 8. JAGJEEVAN RAO                      525


  1995 (1) SCR 45 Union of India vs. Tulsiram Patel AIR 1985          A
 SC 1416: 1985 (2) Suppl. SCR 131 Shankar Dass vs. Union
  of India (1985) 2 SCC 358: 1985 (3) SCR 163; The Director
I of Collegiate Education vs. S. Nagoor Meera (1995) 3 SCC
  377: 1995 (2) SCR 308 - referred to.
                                                                      8
                      Case Law Reference :

     (1995) 3 sec 377           Referred to          Para 5, 10

     c2001 > 6 sec 584          Referred to          Para 5, 7

     (1995) 2 sec 513           Referred to          Para 6

     AIR 1985 SC 1416           Referred to          Para 8

     (1985) 2 sec 358           Referred to          Para 10

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 80                D
of 2009.

    From the Judgment and Order dated 07.08.2007 in WP
No. 16102/2007 of the High Court of Judicature, Andhra
Pradesh at Hyderabad.
                                                                      E
    D. Mahesh Babu, Suchitra Hrangkhawl, Amit K. Nain, T.V.
Bhaskar Reddy, G.N. Reddy for the Appellants.

     M. Vijaya Bhaskar for the Respondent.

     The Judgment of the Court was delivered by                       F

     DIPAK MISRA, J. 1. Calling in question the legal propriety
of the judgment and order dated 7.8.2007 passed by the
Division Bench of the High Court of Judicature, Andhra
Pradesh at Hyderabad in W.P. No. 16102/2007 whereby the               G
High Court has overturned the decision rendered by the A.P.
State Administrative Tribunal (for short,'the Tribunal) in O.A. No.
2206/2007 vide order dated 19.04.2007, the present appeal
has been preferred by special leave.
                                                                      H
    526    SUPREME COURT REPORTS                [2014] 7 S.C.R.


A     2. The facts lies in a narrow compass. The respondent
  herein was chargesheiated for offences punishable under
  Section 7 and 13(1 )(d) read with Section 13(2) of the
  Prevention of Corruption Act, 1988 (for short, 'the Act') and
  eventually after trial was convicted and sentenced to rigorous
B imprisonment of one year and payment of fine of Rs.1000/- with
  a default clause. He assailed the conviction and sentence in
  Criminal Appeal No. 3711/2007 and the High Court vide order
  dated 29.03.2007 in Crl.A.M.P. No. 497/2007 entertaining an
  application under Section 389(1) of the Code of Criminal
c Procedure, 1973 (for short, 'the Code') directed suspension of
  sentence and enlargement of bail on certain conditions. Be it
  noted, the High Court did not direct stay of the judgment of
  conviction recorded by the learned trial judge.

       3. After the conviction the Department of Finance issued
D G.O.No.91 dated 16.4.2007 dismissing the respondent from
  service by invoking power under Rule 25 of A.P.C.S.(CC&A)
  Rules, 1991 (for short, 'the Rules'). The correctness of said
  order of dismissal was called in question before the Tribunal
  on the foundation that once there was an order under Section
E 389(1) of the Code, the concerned Department could not have
  taken recourse to Rule 25(1) of the Rules to dismiss the
  respondent from service. The Tribunal repelled the said
  submission of the respondent and resultantly, dismissed the
  original application.
F
       4. Being dissatisfied with the aforesaid decision, the
  respondent preferred a writ petition and the High Court
  analysing the effect and impact of Rule 25(1) of the Rules and
  taking note of the order passed in criminal appeal came to hold
G that when the criminal appeal was pending for adjudication and
  there had been suspension of sentence, the concerned
  Department could not have passed an order of dismissal from
  service, and accordingly quashed the order of the tribunal and
  lancinated the order of dismissal.

H
           GOVT. OF A.P. v. B. JAGJEEVAN RAO                 527
                   [DIPAK MISRA, J.]
     5. It is contended by Mr. Babu, learned counsel for the         A
appellant that the High Court has fallen into grave error in
interpreting Rule 25 of the Rules and has misconstrued the
issue pertaining to the stay of conviction, and .order of
suspension of sentence as engrafted under Section 389(1) of
the Code. He has relied on the decisions rendered in The             B
Director of Collegiate Education Vs. S. Nagoor Meera 1 and
K.C. Sareen Vs. CBI, Chandigarh 2 .

     6. It is not in dispute that the respondent was convicted by
the Principal Special Judge for SPE & ACB Cases fpr the
offences punishable under the Act. The High Court, as the order      C
would reflect, had only directed suspension of sentence. There
was no order of stay of conviction. It is well settled in law that
there is a distinction between suspension of sentence and stay
of conviction. This has been succinctly stated in Rama Narang
Vs. Ramesh Narang3 :                                                 D

      "? ........ .
      "Section 389(1) empowers the Appellate Court to order that
      the execution of the sentence or order appealed against        E
      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) empowers the Appellate Court to order
      that the execution of the sentence or order appealed
      against be suspended pending the appeal. What can be
                                                                     F
      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 Sections 357 or 360 or the Code?
      Obviously, the order referred to in Section 389(1) must be     G
      an order capable in execution. An order of conviction by

1.   (1995) 3 sec 377. ·
2.   c2001) a sec 584.
3.   (1995) 2 .sec 513.                                              H
    528       SUPREME COURT REPORTS                   [2014] 7 S.C.R.·


A         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.
B
          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 would be invoked. in such situations,
          the attention of the Appellate Court must be specifically
c         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
D         to fall upon conviction how can it be 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
E         if it thought that case was made out for grant of interim stay
          of the conviction order, with or without conditions attached
          thereto, it may have granted an order to that effect."

      7. A similar view has been expressed in K.C. Sareen Vs.
F CB/, Chandigarh (supra).

       8. The question, thus, emerges whether an inquiry should
  have been held under Article 311 (2) of the Constitution, regard
  being had to the scheme of Rule 25(1) of the Rules. In this
  context, we would like to extract a passage from the
G pronouncement of the Constitution Bench in Union of India Vs.
  Tulsiram Pate/4. In the said case, the officer concerned was
  convicted under Section 332 of the IPC and the learned
  Magistrate had released him on probation under the Probation

H   4.   AIR 1985 SC 1416.
       GOVT. OF A.P. v. 8. JAGJEEVAN RAO                  529
               [DIPAK MISRA, J.]

of Offenders Act. Considering the said factual position the      A
Constitution Bench opined thus:

    "152. The second ground upon which the High Court rested
    its decision is equally unsustainnble. The circumstances
    which were taken into consideration by the disciplinary 6
    authority have been sufficiently set out in the order. of
    compulsory retirement, they being that the Respondent's
    conviction under section 332 of the Indian Penal Code and
    the nature of the offence committed which led the
    disciplinary authority to the conclusion that the further C
    retention of the Respondent in the public service was
    undesirable. The mention of section 332 of the Indian
    Penal Code in the said order itself shows that Respondent
    was himself a public servant and had voluntarily caused
    hurt to another public servant in the discharge of his duty
    as such public servant or in consequence of an act done D
    by that person in the lawful discharge of his duty. The facts
    here are eloquent and speak for themselves. The
    Respondent had gone to the office of his superior officer
    and had hit him on the head with an iron rod. It was
    fortunate that the skull of Raj Kumar was not fractured E
    otherwise the offence committed would have been the
    more serious one under section 333. The Respondent was
    lucky in being dealt with leniently by the Magistrate btlt-
    these facts clearly show that his retention in public service
    was undesirable. In fact, the conduct of the Respondent F
    was such that he merited the penalty of dismissal from
    government service and it is clear that by imposing upon
    him only the penalty of compulsory retirement, the
    disciplinary authority had in his mind the_ fact thaLtne.--
    Magistrate had released him on probation. We accordingly G
     hold that clause (i) of Rule 19 of the Civil Services Rules
    was rightly applied to the case of the Respondent."

    9. Having stated the principle, we shall now advert to the
Rule position. Rule 25(1) being relevant is reproduced below:
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    530       SUPREME COURT REPORTS                   [2014] 7 S.C.R.


A       "Special Procedure in Certain Cases: Notwithstanding
    anything contained in Rule 20 to Rule 24

         (1) where penalty is imposed on a Government Servant on
    the ground of conduct which has led to his conviction on a
S   criminal charge, the disciplinary authority may consider the
    circumstances of the case and make such orders thereon as
    it deems fit."

       10. The requirement of the said Rule, as it seems, is that
  the conduct of Government servant that had led to conviciion •
C on the criminal charge anci the circumstances of the case are
  to be considered by the disciplinary authority before imposing
  the appropriate punishment. In the case at hand, the respondent
  was convicted under Section 7 and 13(1 )(d} read with Section
  13(2) of the Act and sentenced to one year rigorous
D imprisonment. In almost similar case in S. Nagoor Meera
  (supra), a two-Judge Bench, after referring to the conceptual
  mandate of Article 311 (2) and after referring to the dictum in
  Shankar Dass Vs. Union of lndia 5 has expressed thus:

          "10. What is really relevant thus is the conduct of the
E
          government servant which has led to his conviction on a
          criminal charge. Now, in this case, the ·respondent has
          been found guilty of corruption by a criminal court. Until the
          said conviction is set aside by the appellate or other higher
          court, it may not be advisable to retain such person in
F         service. As stated above, if he succeeds in appeal or other
          proceeding, the matter can always be reviewed in such a
          manner that he suffers no prejudice.

          11. The Tribunal has given yet another reason for quashing
G         the show-cause notice, viz., that whereas the conviction of
          the criminal court wa1s on 4-2-1991, the impugned show-
          cause notice was issued only on 27-10-1993. The
          appellant has explained that though the respondent (sic

H . 5.   (1985) 2 sec 358.
         GOVT. OF A.P. v. B. JAGJEEVAN RAO                       531
                     [DIPAK MISRA, J.]
     appellant) .had come to know the conviction soon after the          A
     judgment of the criminal court, of the order of the High
    ·Court suspending the sentence. It is stated that after
     obtaining legal advice, the show-cause notice was issued.
     In our opinion, the delay, if it can be called one, in initiating
     the proceedings has been properly explained - and in any            B
     event, the delay is not such as to vitiate the action taken."

     11. Regard being had to the aforesaid enunciation of law
and keeping in view the expected standard of administration,
conviction on the charge of corruption has to be viewed
seriously and unless the conviction is annulled, an employer             C
cannot be compelled to take an employee back in service.
Therefore, the High Court has clearly erred in its interpretation
of Rule 25(1) and further committed illegality in not keeping in
mind the distinction between stay of conviction and suspension
of sentence as envisaged under Section 389(1) of the Code.               D

     12. In the result, the appeal is allowed, the judgment and
order of the High Court, being sensitively susceptible, are set
aside. There shall be no order as to costs.
Nidhi Jain                                             Appeal allowed.
                                                                         E