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SUPREME COURT OF INDIA
Dipak Misra and N.V. Ramana, JJ.
Govt. of A.P. and Anr. – Appellant
Vs.
B. Jagjeevan Rao – Respondents
Civil Appeal No. 80 of 2009
Decided On: 12.05.2014
Criminal Procedure code 1973 - Section 389 - Prevention of Corruption Act, 1988 - Section 7/13 – Appeal against Conviction – Employee – Retired from service - Correctness of said order of dismissal was called in question before Tribunal on foundation that once there was an order Under Section 389(1) of Code concerned Department could not have taken recourse to Rule 25(1) of Rules to dismiss Respondent from service - Tribunal repelled the said submission of Respondent and resultantly dismissed original application Being dissatisfied with the aforesaid decision Respondent preferred a writ petition and High Court analyzing effect and impact of Rule 25(1) of Rules and taking note of order passed in criminal appeal came to hold that when the criminal appeal was pending for adjudication and there had been suspension of sentence – Held, What is really relevant thus is conduct of government servant which has led to his conviction on a criminal charge - Now in this case Respondent has been found guilty of corruption by a criminal court. Until said conviction is set aside by appellate or other higher court it may not be advisable to retain such person in service. As stated above if succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice - Tribunal has given yet another reason for quashing show-cause notice, viz. that whereas conviction of criminal court impugned show-cause notice was issued only - Appellant has explained that though Respondent had come to know conviction soon after judgment of criminal court, of order of High Court suspending sentence - It is stated that after obtaining legal advice 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 delay is not such as to vitiate action taken - Regard being had to aforesaid enunciation of law and keeping in view expected standard of administration conviction on charge of corruption has to be viewed seriously and unless conviction is annulled an employer cannot be compelled to take an employee back in service 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 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 - Appeal is allowed
JUDGMENT :
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 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.
2. The facts lies in a narrow compass. The Respondent herein was charge-sheeted for offences punishable Under Section 7 and13(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 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. 371/2007 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 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 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 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.
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 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.
5. It is contended by Mr. Babu, learned Counsel for the 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 Director of Collegiate Education v. S. Nagoor Meera, (1995) 3 SCC 377 and K.C. Sareen v. CBI, Chandigarh, (2001) 6 SCC 584.
6. It is not in dispute that the Respondent was convicted by the Principal Special Judge for SPE & ACB Cases for the offences punishable under the Act. The High Court, as the order 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 v. Ramesh Narang, (1995) 2 SCC 513:
7...
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) 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
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