A government servant can be removed from service under Article 311(2) of the Constitution after conviction by a trial court, even though an appeal is pending.

( 1 ) PETITIONER was a police constable in U. P. Police. He, alongwith tow others, was convicted, vide Judgment dated 23. 4. 1990, under Section 302 I. P. C. and was sentenced to life imprisonment. All the three Services including the petitioners were further sentenced to two years R. I. for the offence under section 201 I. P. C. and one year R. I. for the offence under Section 4 of dowry Prohibition Act. All the sentences were directed to run concurrently. Against his conviction, the petitioner has filed an appeal which is still pending. After his conviction, the petitioner has been removed from service vide order dated 2. 8. 1990 in exercise of power under Sub Clause (a) of Second Proviso to Article 311 (2) of the Constitution of India, read it with Government order dated 12. 10. 1979. It is against the above order that the petitioner has as filed this writ petition in which validity of Government order dated 12. 10. 1979 has also been al challenged.

( 2 ) LEARNED counsel for the petitioner in support of the writ petition has made only one submission: namely that the Government cannot pass an order under Sub Clause (a) of second proviso to Article 311 (2) of the Constitution, until the appeal filed by the petitioner against his conviction is decided in as much as the words conduct which has led to his conviction on a criminal charge means the final conviction as decided by the appellate Court. Learned Standing Counsel has deducted the above submission.

( 3 ) A member of a civil service of a State or who holds civil post under the State cannot be dismissed or removed or reduced in rank except in accordance with the procedure prescribed by Clause (2) of Article 311 of the Constitution. Second Proviso to Clause (2) however, lays down that this Clause shall not apply to the contingencies contained in its Sub-Clause (a) (b) and (c) Sub- Clause (a) being relevant is reproduced below: Provided further that this Clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; The Government of U. P. vide order dated 12. 10. 1979 has laid down that after a Government servant has been convicted by the Trial Court he can be dismissed, removed or reduced in rank without waiting for the result of the appeal and if ultimately the appeal is allowed and the conviction is set-aside he is liable to be re-instated with full back wages.

( 4 ) IT is true that appeal is a continued on of the original proceeding which has resulted in conviction, but, as laid down by Supreme Court in the case of State of U. P. v. Mohammad Nooh, the relevant extract from which is reproduced below, the original decree or the conviction neither stands suspended nor docs it become inoperative after the appeal is filed, with the result that order of conviction passed by the Sessions Court stands and remains a valid order on which action is laible to be taken by the Government; But as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v; Pirthichand Lal. 45 Ind App 52; ILR 45 Cat 670 at pp. 678 and 679; (AIR 1918 PC 151 at pp. 152- 153 (J), whatever be the theory under other systems or law, under the Indian Law and procedure and original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of the appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In this connection reference may be made to a Division Bench decision of this Court in Radhey Govind Swarup v. Union of India. relevant extract from has been laid down that an o