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PETITIONER: UNION OF INDIA AND OTHERS

       Vs.

RESPONDENT: SHRI RAMESH KUMAR

DATE OF JUDGMENT:       02/09/1997

BENCH: K. VENKATASWAMI, V. N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T V.N. KHARE. J      The appeal  is directed  against the  other 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 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  the respondent  would be  entitled to  get normal subsistence allowance with the relevant rules.      The respondent  while serving  as Inspector  in food  & 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  services 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"..      After a lapse of four years of passing of the order  of dismissal, the  respondent filed  an application  before the

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Central Administrative Tribunal, New Delhi, under section 19 of the  Central Administrative Tribunal Act, 1985 (hereafter referred to  as the Act) for quashing the order of dismissal till filling  of the criminal appeal in the High Court.  The Tribunal, by  the impugned  order allowed the application of the respondent  and granted  relief as  prayed for,  in  the application.      It appears  that the Tribunal 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  respondents is  to be treated under suspension till  the final  judgement 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 decision cited before  the Tribunal.   Undisputedly the respondent is governed by  the CCS(CCA) Rules, 1965 readwith the provision 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  or      conduct  which   has  led   to  his      conviction          on  a  criminal      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.      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      cames to the             conc usion      that  the  offence  for  which  the      public    servant     has      been      convicted was  such as to retention      the  public   service  prima  facie      undesirable,     it can       impos      e upon  him  under  Rule  19(1)  of      CCS(CCA) Rules,   1965, the penalty      of dismissal  or removal 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.      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   his      suspension      proceeding      his

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    dismissal,  removal  or  compulsory      retirement as the case   may    be;      and      (b) Whether  or not the said period      shall be treated         as  period      of spent spent on duty."      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 sentences 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 the appeal by the Appellate Court  filed by  Govt. servant  for talking action against him on the ground of misconduct which has led to his conviction by  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 component  Court of  law has  not lost  its string merely.   Because a criminal appeal was filled by the respondent against  his conviction  and the  Appellant Court has suspended  the execution  of sentence  and enlarged  the respondent on  bail.   This  matter  may  be  examined  from another angles.   Under  Section 389 of the code of Criminal Procedure, the appellant Court has power to  suspend the  of sentence and  to release  an accused  on  bail.    When  the appellant Court  suspends the  execution of  sentences,  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 sentences  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 Appellant  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.      Before we  part with  this case, we would like to refer the  decision  of  this  court  in  the  case  of  State  of Maharashtra V.  Chandrabhan  (AIR  1983  SC  *)#),  and  two 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 provides 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 Court was totally misplaced.     The  Tribunal   further   relied   upon   two administrative orders  passed by  the  Delhi  Administration whereby  two  employee  of  the  Delhi  Administration  were reinstated after  the High  Court suspended the execution of

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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 misplaces for the reason being that  those orders  passed were not in conformity with law.      For the  foregoing reasons,  the orders  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.