The suspension of a sentence does not negate the fact of conviction, and Rule 33 allows the disciplinary authority to impose penalties without holding an inquiry in cases where an employee has been convicted on a criminal charge.

Ramesh Ranganathan, J.

This writ petition is filed seeking a writ of certiorari to quash the impugned order dated 31.12.2016 passed by the first respondent; a writ of mandamus directing the respondents to reinstate the petitioner in service with all consequential benefits including arrears of salary, or in the alternative to treat the petitioner to be continuing under suspension till the disposal of Criminal Appeal No. 419 of 2016 or till the date of his superannuation whichever is earlier.

2. Facts, to the limited extent necessary, are that the petitioner was appointed as a Junior Executive in the respondent corporation on 03.08.1990 and was, thereafter, promoted as an Assistant Engineer. He was promoted as an Engineer, and was thereafter promoted as a Senior Engineer, and then as a Deputy Manager and then as a Manager in the year 2009. He was, lastly, promoted as Senior Manager in 2014. A First Information Report was lodged against the petitioner on 13.01.2011 alleging that he had demanded illegal gratification towards the dues of the contractor amounting to Rs. 21-22 lakhs. The petitioner was arrested and, as he was in judicial custody for more than 48 hours, he was placed under suspension, as per Rule 23 (2) of the Conduct, Discipline and Appeal Rules, by order dated 15/17.01.2011. The petitioner’s suspension was revoked by order dated 28.12.2012. While matters stood thus, the Special Court C.B.I, vide order in C.B.I. Case No. 01 of 2011 dated 17.12.2016, convicted the petitioner for the offence under Section 7 (2) read with Section 17 (1) of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of five years and with fine of Rs. 10,000/-. Consequent on his conviction, the impugned order dated 31.12.2016 was passed imposing on the petitioner the punishment of dismissal from service with effect from the date of the final judgment passed by the Court of the Special Judge Anti Corruption C.B.I. on 17.12.2016 convicting the petitioner.

3. Aggrieved by the order passed by the C.B.I. Court, the petitioner preferred Criminal Appeal No. 419 of 2016 before this Court, which appeal is said to be still pending on the file of this Court. The petitioner was enlarged on bail on 09.01.2017 and, by order dated 11.01.2019, execution of the sentence was suspended during the pendency of the appeal.

4. Sri Rakesh Thapliyal, learned counsel for the petitioner, would submit that, since the sentence imposed on the petitioner by the C.B.I. Judge has been suspended by this Court, the order passed by the competent authority, under Rule 33 (1) of the Conduct Disciplinary and Appeal Rules, would no longer remain in force; the mere fact that criminal proceedings were instituted against the petitioner did not discharge the respondents of its obligations to conduct a disciplinary inquiry against the petitioner, more so, since the order of punishment, imposed on him, is for alleged misconduct;

since Rule 33 (1) confers a discretion on the competent authority, it was open to him, instead of imposing the penalty of dismissal from service on the petitioner, to place him under suspension; and since the petitioner’s sentence has been suspended in appeal, the impugned order necessitates being set-aside, leaving it open to the authorities to consider placing the petitioner under suspension during the pendency of the Criminal Appeal.

5. On the other hand Sri Shobhit Saharia, learned counsel appearing on behalf of the respondent-corporation, would submit that, on conviction by a competent Criminal Court, Rule 33 (1) confers power on the competent authority to impose any of the penalties stipulated in Rule 26; in case Rule 33 (1) is applicable, there is no obligation cast on the employer to once again conduct a departmental inquiry, since the basis for imposing the punishment is the conviction of the petitioner on a criminal charge; the charge, for which the petitioner was convicted, is for an offence under the