By the Court.—This writ petition has been filed against the judgment and order of the Central Administrative Tribunal dated 04.01.2008 whereby the Original Application No. 336 of 2007 of the present petitioner seeking quashing the order of punishment of dismissal from service dated 16.03.2007 has been dismissed.

2. The facts giving rise to this petition are; the petitioner, while working in the Income-tax Department at Ghaziabad, was trapped and caught red-handed by the Central Bureau of Investigation while accepting bribe of Rs. 500/-. He was put under suspension by the Department vide order dated 17.6.2002. Petitioner was put to trial and has been convicted by the competent Criminal Court vide judgment and order dated 6.4.2006, after holding him guilty under the provisions of Section 7 read with Section 13 (1)(d) of the Prevention of Corruption Act. Punishment of one year imprisonment and Rs. 5000/- as fine had been imposed. Petitioner claims that he has filed an appeal against the said judgment and order of conviction and the Appellate Court has enlarged him on bail. Despite the order of bail, the petitioner has been dismissed from service vide order dated 16.3.2007 because of his being convicted by the competent Criminal Court. The appeal against the order of dismissal from service has also dismissed. The petitioner therefore approached the Tribunal where his claim has been rejected vide order dated 4.1.2008. Hence the present writ petition.

3. Learned Counsel for the petitioner has submitted that the order of dismissal of the petitioner from service merely on the ground of conviction is bad in view of the fact that he has been enlarged on bail, which amounts to stay of the conviction also.

4. On the other hand, learned Counsel for the respondents has vehemently opposed the writ petition contending that in exercise of power under Section 389 of the Code of Criminal Procedure (hereinafter called the ‘Cr.P.C.’), the Appellate Court has a very limited power to stay the conviction and in the instant case, as there is no stay of conviction, the order of dismissal from service cannot be challenged on any ground that petitioner has been granted bail by the appellate Court, the petition is liable to be dismissed.

5. We have considered the rival submissions made by learned Counsel for the parties and perused the record.

6. The question does arise as to whether a convict employee has a right to continue in or to be reinstated in service during the pendency of his appeal after conviction by the trial Court?

7. Under the statutory rules and Article 311 of the Constitution of India, a person holding a civil post can neither be dismissed nor removed nor can be reduced in rank without holding an enquiry. However, proviso (a) to Clause (2) of Article 311 of the Constitution provides for an exception to the aforesaid rule to the effect that an employee can be dismissed or removed or reduced in rank on the ground of his conduct which has led to his conviction on a criminal charge, without holding any enquiry.

8. There had been conflicting views on the issue whether in exercise of the power under Section 389 (1) of the Cr.P.C., the Appellate Court can suspend the conviction also along with suspension of sentence for the reason that there has been controversy whether the words “order appeal against” may be so wide as to include the “conviction”. The word “conviction” has nowhere been mentioned/explained under the provisions of the Code of Criminal Procedure or any other Rules or Regulations or any other enactment.

9. No provision has been made for suspension of conviction in appeal. (Vide V. Sundararamireddy v. State, 1990 Cr. L.J. 167; and M. Srinivasulu Reddy v. State Inspector of Police, 1993 Cr. L.J. 558).

10. In Rama Narang v. Ramesh Narang and others, (1995) 2 SCC 513, the Hon’ble Apex Court held that the Appellate Court, in exercise of its powers under Section 389 (1), Cr.P.C., is competent not only to suspend the sentence but also t