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PETITIONER: THE     DEPUTY    DIRECTOR    OF    COLLEGIATE     EDUCATION

       Vs.

RESPONDENT: S. NAGOOR MEERA

DATE OF JUDGMENT24/02/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) PARIPOORNAN, K.S.(J)

CITATION:  1995 AIR 1364            1995 SCC  (3) 377  JT 1995 (3)    32        1995 SCALE  (2)1

ACT:

HEADNOTE:

JUDGMENT: B.P. JEEVAN REDDY, J.: 1.   Leave granted.  Heard counsel for the parties. 2.   The  respondent  was working as Superintendent  in  the office of the Regional Deputy Director Collegiate Education, Madurai  in  1986.  Complaints of corruption  were  received against  him.  An enquiry was held into those complaints  by the  vigilance and Anti-Corruption Department  which  opined that  the charge was true.  Accordingly, the respondent  was prosecuted  before the Chief Judicial  Magistrate,  Madurai, who convicted the respondent under Section 420 of the Indian Penal  Code  and Section 5 of the Prevention  of  Corruption Act.   The charge was that the respondent received a sum  of Rs.10,000/- from one Vijay Kumar promising him. to secure  a job for him.  He,was sentenced to undergo rigorous 34 imprisonment  for  one  year  in addition  to  fine  of  Rs. 1,000/-.   The respondent filed an appeal in the High  Court against  the  conviction  and  sentence  aforesaid  and   on 14.2.1991,  the court suspended the sentence imposed on  the respondent and released him on bail. 3.   On  October 27, 1993 the Deputy Director of  collegiate Education issued a notice to the respondent calling upon him to show cause why he should not be dismissed from service in view  of  his conviction by the criminal  court.   The  show cause  notice  expressly recites that inasmuch as  the  High Court  has  only suspended the sentence, his  conviction  is still  in force.  The notice also recites the nature of  the offence for which the respondent was convicted. 4.   Soonafter   receiving  the  show  cause   notice,   the respondent  filed  Original  Application No.  6851  of  1993 before   the  Tamil  Nadu  Administrative   Tribunal.    His submission,  which has been upheld by the Tribunal, is  that inasmuch  as the sentence imposed upon him by  the  criminal court  has  been  suspended by  the  appellate  court  (High Court),  no  proceedings can be taken  for  terminating  his

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services  under  and  with reference to clause  (a)  of  the second  proviso  to Article 311(2) of  the  Constitution  of India.   The Tribunal has quashed the aforesaid  show  cause notice on the following reasoning :               "Therefore, it is clear that once the sentence               has  been suspended admitting the  appeal  the               criminal    proceedings  of  the  Lower  Court               which ended in conviction and sentence of  the               applicant is being continued in the  appellate               court and it can end only when the proceedings               in  the appellate court come to an end.   Till               then  the applicant cannot be proceeded  under               the provisions of the T.N.C.S.(C.C.A) Rules as               has been done in this case.  Yet another  flaw               is that there has been inordinate delay of two               years  and eight months after  the  conviction               and sentence was passed by the Lower Court  in               issuing the impugned show cause notice.   This               inordinate  delay is unexplained.   Therefore,               the show cause notice to the applicant is  not               sustainable  in law till the  appellate  court               disposes of the Criminal Appeal." 5.   The correctness of the said order is questioned by  the Deputy Director of the Collegiate Education in this appeal. 6.Article 311(2) declares that no person, who is a member of the  civil  service of the Union or All-India service  or  a civil  service  of a State or holds a civil post  under  the Union  or a State shall be dismissed, removed or reduced  in rank  except after an enquiry in which he has been  informed of   the  charges  against  him  and  given   a   reasonable opportunity of being heard in respect of those charges.  The second proviso, however, carves out three exceptions to  the said  rule.   We  arc concerned  with  the  first  exception mentioned under clause (a).  Insofar as it is relevant,  the second proviso reads as follows:               "Provided  further that this clause shall  not               apply-  (a)  where a person  is  dismissed  or                             removed  or  reduced in rank on the  ground  o f               conduct  which has led to his conviction on  a               charge." 7.   This  clause,  it  is relevant  to  notice,  speaks  of "conduct which has led his conviction on a criminal charge". It does not speak of sentence or punishment awarded.  Merely because  the  sentence is suspended and/or  the  accused  is released  on  bail,  the conviction does  not  cease  to  be operative. 35 Section 389 of the Code of Criminal Procedure, 1973 empowers the  appellate court to order that pending the  appeal  "the execution  of  the  sentence or order  appealed  against  be suspended  and  also  if he is in  confinement  that  he  be released on bail or on his own bond." Section 389(1), it may be  noted,  speaks  of  suspending  "the  execution  of  the sentence   or  order",  it  does  not  expressly  speak   of suspension  of conviction.  Even so, it may be  possible  to say that in certain situations, the appellate court may also have  the power to suspend the conviction - an aspect  dealt with  recently  in Rama Narang v.  Ramesh Narang  (1995  (1) J.T. 515).  At pages 524 and 525, the position under Section 389 is stated thus:               "Section  389(1) empowers the Appellate  Court               to order that the execution of the sentence or               ordcr  appealed against be  suspended  pending               the appeal.  What can be suspended under  this

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             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 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  re-               ferred  to in Section 389(1) must be an  order               capable in execution.  An order of  conviction               by  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......  hi 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  powe r               under  Section  389(1) of the  Code  would  be               invoked. in such situations, the attention  of               the  Appellate  Court  must  be   specifically               invited  to die 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  rea-               sons 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  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 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.  " * 8.   We need not, concerns ourselves any more with the power of the appellate court under the Code of Criminal  Procedure for  the reason that what is relevant for clause (a) of  the second  proviso to Article 311(2) is the "conduct which  has led to his conviction on a criminal charge" and there can be no  question of suspending the conduct.  We are,  therefore, of  the  opinion  that taking proceedings  for  and  passing orders  of  dismissal,  removal or reduction in  rank  of  a government  servant  who has been convicted  by  a  criminal court is not barred merely because the sentence or order  is suspended  by the appellate court or on the ground that  the said  government servant-accused has been released  on  bail pending the appeal. It  was  a case arising under Section 267 of  the  Companies Act,  which  provided a disqualification on  the  ground  of conviction for an offence involving moral turpitude.. 36 9.   The Tribunal seems to be of the opinion that until  the appeal  against the conviction is disposed of, action  under clause  (a) of the second proviso to Article 311(2)  is  not

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permissible.  We see no basis or justification for the  said view.   The more appropriate course in all such cases is  to take  action  under  clause (a) of  the  second  proviso  to Article  311(2) once a government servant is convicted of  a criminal charge and not to wait for the appeal or  revision, as  the case may be.  If, however, the  government  servant- accused  is  acquitted on appeal or  other  proceeding,  the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in  service. The, other course suggested, viz., to wait till the  appeal, revision and other remedies are over, would not be advisable since  it would mean continuing in service a person who  has been convicted of a serious offence by a criminal court.  It should be remembered that the action under clause (a) of the second  proviso to Article 311(2) will be taken  only  where the conduct which has led to his conviction is such that  it deserves  any  of the three major punishments  mentioned  in Article  311(2).   As held by this court in  Shankardass  v. Union of India (1985 (2) S.C.R. 358):               "Clause  (a) of the second proviso to  Article               311(2)  of  the Constitution  confers  on  the               government the power to dismiss a person  from               services  "on the ground of conduct which  has               led  to his conviction on a criminal  charge."               But  that power like every other power has  to               be  exercised fairly, justly  and  reasonably.               Surely, the Constitution does not  contemplate               that a government servant who is convicted for               parking  his  scooter  in  a  no-parking  area               should  be  dismissed from  service.   He  may               perhaps  not  be entitled to be heard  on  the               question  of penalty since clause (a)  of  the               second  proviso  to Article 311(2)  makes  the               provisions of that article inapplicable when a               penalty  is  to  be imposed  on  a  Government               servant on the ground of conduct which has led               to  his conviction on a criminal charge.   But               the right to impose a penalty carries with  it               the duty to act justly." 10.  What is really relevant thus is the conduct  of     the 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  service.  As stated, above, if he succeeds in appeal  or other proceedings, 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 the show cause notice, viz., that whereas the conviction  of the criminal court was on 4.2.1991, the impugned show  cause notice  was  issued only on 27.10.1993.  The  appellant  has explained  that though the respondent had come to  know  the conviction  soonafter  the judgment of  the  criminal  court there  was a doubt whether action can be taken  against  the respondent in view 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  event, the delay is not such as to vitiate the action taken. 12.  The appeal is accordingly allowed 37 and the order of the Tribunal is set aside.

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13.  Since the appellant himself has chosen to issue a  show cause  notice to the respondent before passing orders  under the  said clause, the respondent is given four  weeks’  from today  to submit his explanation.  The appellant is free  to pass  such orders thereafter as may be found appropriate  in the circumstances. 14.  No costs.