UNION OF INDIA AND ORS.versusSHRI RAMESH KUMAR

A                         UNION OF INDIA AND ORS.
                                     v.
                            SHRI RAMESH KUMAR

                             SEPTEMBER 2, 1997

B              [K. VENKATASWAMI AND V.N. KHARE, JJ.]

          Service Law :

          Convictio!t-Conviction of govemment employee 011 a criminal charge
C of illegal gratification-Dismissal from the service without holding proper
  enquiry-Criminal appeal against conviction pending-Employee filing ap-
  plication for reinstatement-Tribunal allowing the application-Held, the
  employee has no right to be reinstated in service when his appeal against
  conviction is admitted and execution of sentence suspended during the pen-
  dency of appeal-<XA (CCS) Rules, 1965, Rule 19(i)-Vigilence Manual,
D Chapter VII, paras 15.2 and 15.3--Prevention of Corrnption Act, 1947, Sec-
  tion 5(2).

         Rei11statement-Right to-Held, does not arise on mere filing of appeal
  against the conviction upon which disciplinary action was based-The con-
E viction stands during the pe11dency of the appeal till it is set aside.
          Criminal Procedure Code, 1973 :

         Section 389-Suspension of sentence by the appellate court:-lmplica-
  tion of-The sente11ce based 011 the convii:tion gets postponed or is kept in
F abeyance during pendency of appeal-Conviction however conti11ues till it is
  set aside-Discipli11ary action against the govemment servant based on such
  conviction, held, will stand unimpaired during the pendency of the appeal.

        The respondent, a government employee, was arrested on the ground
  that he accepted illegal gratification and he was placed under suspension.
G The trial court convicted him for an offence under Section 5(2) of the
  Prevention of Corruption Act. As a result of his conviction, the Discipli-     •
  nary Authority dismissed him from service by invoking Rule 19 of the CCS
  (CCA) Rules without holding detailed enquiry. The High Court admitted
  the respondent's .appeal against his conviction and passed an interim
H order suspending execution of the sentence. After four years of his dismiss-
                                       668
                                                                 0
                        U.0.1. v. RM1.ESH KUMAR                          669
 al, respondent filed an application before the Central Administrative · A
 Tribunal seeking his reinstatement in service. The Tribunal allowed the
 application. Hence this appeal by the Union of India.

       Allowing the appeal, the Court

                                                                                B
       HELD : 1. Under Rule 19 of the CCS (CCA) Rules, the Disciplinary
 Authority is empowered to take action against a government 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 convic-
 tion stands obliterated and the dismissed government servant has to be         C
 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 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     D
 respondent from service on the ground of misconduct leading to his
 conviction by a competent court of law has not lost its sting 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. [672-F-H]
                                                                                E
         2. Under Section 389 Cr.P.C., the appellate court has power to
  suspend the execution of sentence and to release the accused on bail. When
  the appellate court suspends execution of the sentence and grants bail to
  the accused, the effect of the order is that the sentence based on conviction
  is for the time being postponed, or kept in abeyance during the pendency F
  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 govern-
  ment servant on a misconduct which lead to his conviction by the court of G
  law does not lose its efficacy merely because the 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 disposal of criminal appeal by the High      tJ
    670                    SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A Court. [673-B-D]
            State of Maharashtra v. Chandrabhan Tale, AIR (1983) SC 803, dis-
    tinguished.
                                                                                    ·-·
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1323 of
B   1991.

          From the Judgment and Order dated 2.3.90 of the Central Ad-
    ministrative Tribunal, Delhi in O.A. No. 1087 of 1989.

            H.L. Aggarwal, Avatar Singh Rawat, D.S. Mahara and C.V.S. Rao
c for the Appellants.
            K.K. Gupta (N.P.) for the. Respondent.

            The Judgment of the Court was delivered by

D         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
E   the respondent would be entitled to get normal subsistence allowance in
    accordance with the relevant rules.

        The respondent while serving as Inspector in Food & Civil Supplies
  Department of the Delhi Administration was arrested by Anti-Corruption
F Branch for accepting illegal gratification. Consequently the restfondent 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 Corrup-
  tion 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,
G 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
H was admitted, the High Court passed the following order :-
                U.0.1. v. RAMESH KUMAR [V.N. KHARE, J.]                   671

            "Pending hearing of the appeal, the -execution of the sentence A
         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."

         After a lapse of four years of passing of the order of dismissal, the   B
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       C
impugned order allowed the application of the respondent and granted
reliefs as prayed for, in the application.

       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 D
the conviction recorded by the Special Sub !udge 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 E
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                                         F

            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 G
        charge, or

            (ii) & (iii) ......... provided in these rules.

           The disciplinary Authority may consider the circumstances of
        the case and make such orders thereon as it deems fit.          H
    672                    SUPREME' COURT REPORTS (1997] SUPP. 3 S.C.R.

A       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 & 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 f acie undesirable,
            it can impose upon him under Rule 19(1) of CCS (CCA) Rules,
c           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-cause notice as provided in proviso to Article 311(2) of the
            Constitution.

D               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
E
               (b) Whether or not the said period shall be treated as period
            spent on duty."

            A bare reading of Rule 19 shows that the Disciplinary Authority is
F   empowered to take action against a Govt. servant on the ground of mis-
    conduct 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
G   the Disciplinary Authority to await disposal of the appeai 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
H   conviction by a competent Court of law has not lost its string merely
               U.0.1. v. RAMESH KUMAR [V.N. KHARE, J.]                 673
because a criminal appeal was filed by the respondent against his convic- A
tion 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 execu- B
tion 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 suspen-
sion of execution of sentence under Section 389 Cr.P.C. an accused avoids
undergoing sentence pending criminal appeal. However, the conviction C
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 ord::r of D
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.

       Before we part with this case, we would like to refer the decision of E
this Court in the case of State of Maharashtra v. Chandrabhan, AIR (1983)
SC 898, and two administrative orders heavily relied upon by the Ad-
ministrative 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 F
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 G
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 the~.
Assuming that the facts of tliose cases and the present case are alike, H
    674                  SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A reliance of such orders was totally misplaced for the reason being that
    those orders passed were not in conformity with law.

          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.

    R.K.S.                                                 Appeal allowed.