The suspension of the order of conviction does not nullify the conviction, and action can be taken to remove a government servant who has been convicted of a criminal charge, even if the sentence or order is suspended by the appellate court or the accused is released on bail pending the appeal.

Arijit Pasayat, C.J.

1. In this appeal under S.5 of the Kerala High Court Act, 1958 ( in short the 'Act') challenge is to the order passed by the learned single Judge, vacating the interim order of stay passed earlier.

2. Brief reference of factual position would suffice. Appellant was convicted by the Special Judge, Trichur in C.C.No. 9 of 1998 in respect of offences relatable to S.7 and 13 (2), read with S.13 (1) (d) of the Prevention of Corruption Act, 1988 (in short the 'P.C. Act') In Crl.A.No. 551 of 1991, an application, (Crl.M.P.No. 3387,) was filed for stay of operation of the judgment and the order convicting the accused. By order dated 13.9.1999, the learned single Judge passed the following order:

"In the light of the submission that the petitioner faces a dismissal order, there will be a stay of operation of the judgment of the trial court and the order convicting the accused also will stand suspended for a period of six months."

An interim order passed in the Original Petition No. 20706 of 1999 on 12.8.1999, was subsequently vacated on 14.10.1999.

3. According to learned counsel for the appellant, since there has been stay of operation of the judgement of the trial court and suspension of the order of conviction, in the Criminal Appeal there should not have been an order directing his removal from service. Learned counsel for the State submitted that the appellant has been convicted of offences relatable to the receipt of illegal gratification, under the P.C. Act. In that view of the matter it is against , public policy to direct his continuance in service.

4. It is to be noted that in Deputy Director of Collegiate (Admn.) v. S. Nagoor Meera (JT (1995) 3 SC 32), it was observed that the order to be passed by the Government relates to the conduct which has led his conviction on a criminal charge, and is not really relatable to the sentence or punishment awarded. Merely because the sentence is suspended and the accused is released on bail, the conviction does not cease to be operative. S.389 of the Code of Criminal Procedure, 1973 (in short 'the Code') empowers the appellate court to order that pending the appeal the execution of the sentence or order appealed against be suspended and, if he is in confinement, that he be released on bail, or on his own bond. S.389 (1) speaks of suspending the execution of the sentence or order. It does not speak of suspension of conviction. This point was again highlighted by the Apex Court in Union of India v. V.K. Bhaskar (1997) 11 SCC 3S3). In Deputy Director of Collegiate Education (Admn.) v. S. Nagoor Meera (AIR 1995 SC 1364) it was observed by the apex court as follows:--

"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 cannot be said that until the appeal against the conviction is disposed of action under Clause (a) of second proviso to Art.311 (2) is not permissible. The more appropriate course in all such cases is to take action under clause (a) of second proviso to Art.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 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 the serious offence by a criminal court."

The aforesaid decision was taken note of by one of us (Radhakrishan, J.) in Chandrasekharan Nair v. Commissioner of Police & others (1997 (2) KLJ 351). In Nagoor Meera's case supra, it was observed