The only issue that we are required to consider is whether, notwithstanding the proviso to Rule 11(1) of the Delhi Police (Punishment and Appeal) Rules, 1980 (for short the Rules) a police officer can be dismissed or removed from service during the pendency of a first appeal against an order of conviction and sentence.

2. With the consent of learned counsel for the parties, we heard submissions on this issue arising out of O.A. No.544/2006 decided by the Central Administrative Tribunal, Principal Bench, New Delhi on 9th March, 2007 in a batch of connected original applications. It was agreed that WP(C) No.1044/2008 be treated as the main case.

3. For facility of reference Rule 11(1) of the Rules and its proviso read as follows:- “11. Punishment on judicial conviction.- (1) When a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence and if in its opinion that the offence is such as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service without calling upon him to show cause against the proposed action provided that no such order shall be passed till such time the result of the first appeal that may have been filed by such police officer is known.” (Emphasis supplied)

4. The broad facts in all these cases are not in dispute. Suffice it to say, in WP(C) No.1044/2008, the Respondent was convicted of an offence under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988. The conviction was handed down on 11th December, 2002 and he was sentenced to undergo two years simple imprisonment and a fine of Rs.2000/-. In default of payment of fine, he was to undergo simple imprisonment for a further period of two months. The sentence was awarded on 16th December, 2002.

5. Against the conviction and sentence, the Respondent filed an appeal in this Court being Crl.A. No.995/2002 and by an order dated 10th November, 2003 the sentence was suspended. The appeal is still pending disposal.

6. On 9th December, 2005, the Petitioner issued a circular pursuant to a decision rendered by the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, 1995 (3) SCC 377. The essence of the circular is that in view of the judgment of the Supreme Court, orders could be passed dismissing or removing a convicted police officer under Clause (a) of the second proviso to Article 311(2) of the Constitution during the pendency of his first appeal against the order of conviction and sentence. The circular provides that an order passed under Clause (a) of the second proviso to Article 311(2) of the Constitution is not barred, merely because the sentence is suspended by the appellate Court or the convict has been released on bail. In view of this, the disciplinary authority was required to take action under the Constitution in appropriate cases. This circular was issued in supersession of an earlier circular dated 6th January, 1994.

7. For facility of reference the circular dated 9th December, 2005 reads as follows:- “The Constitution of India provides [ Article 311 (2) (a)] that a Government servant can be dismissed/removed from service or reduced in rank on the ground of conduct which has led to this conviction on a criminal charge. On the other hand, section 11(1) of the Delhi Police (Punishment and Appeal) Rules provides that action to dismiss/remove etc. of police officers on conviction in a criminal case can only be taken after the result of the first appeal is known. In a Civil Appeal No.2992 of 1995 (arising out of S.L.P. (C) No.684 of 1995) “ Deputy Director of Colleg