Central Administrative Tribunal - Allahabad
Maqsood Ahmed vs Union Of India Through The Secretary on 16 December, 2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 16th day of December 2010
Original Application No. 747 of 2007
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr.D.C. Lakha, Member (A)
Maqsood Ahmed, age about 47 years, S/o Late Jan Mohammad, UDC (Compulsorily Retired) MES-432661, HQ, CWE (A/F), Bamrauli, Qtr. No. TE/125/1 PAC Line, Old Cantt, Allahabad. Vill. Kharwain, Po. Sarai Raja, Distt. Allahabad.
.. Applicant
By Adv. : Shri L. M. Singh
V E R S U S
1. Union of India through the Secretary, Ministry of Defence, New Delhi.
2. Engineer-in-Chief Branch IHQS, of MOD (Army) Kashmir House, DHQ, P.O. New Dehli-110011.
3. Chief Engineer, Engineers Branch, Headquarters Central Command, Lucknow, Pin 900354 C/o 56 APO.
4. CommanderWorks Engineer, (AF), Military Engineering Services, Bamrauli, Allahabad -211012.
5. Garrison Engineer, (East) old Cantt, Allahabad.
.... Respondents
By Adv. : Shri S.N. Chatterji
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial) The applicant, working as UDC in the office of Engineering Branch, Headquarters, Central Command, was tried by a Criminal Court and was convicted and sentenced for offences under Section 148, 307 read with Section 149 of the Indian Penal code. This has resulted in the respondents issuing a show cause notice vide order dated 05-10-2006. the applicant had preferred representation, but the authorities have by order dated 28-11-2006, without holding any further inquiry, passed the penalty of compulsory retirement. This order was passed after the appellate court had stayed both the order of conviction and sentence, vide Annexure A-10. Appeal preferred by the applicant against the order of compulsory retirement could was not successful. The Appellate authority has inter alia held as under vide Annexure A-2 order dated 04-06-2007:-
(C) The Appellate Court has not acquitted the individual of the charges. The Appellate Court directed that Shri Maqsood Ahmed, convict of Session Trial No.233/2004, be released on bail on furnishing a personal bond and two securities each in the like amount to the satisfaction of learned court concerned and passed directions that execution of conviction and sentences imposed upon him is also suspended. Disciplinary action has, therefore, been been taken against Shri Maqsood Ahmed correctly in accordance with Rule 19(i) of CCS (CCA) Rules 1965. the penalty of Compulsory Retirement is considered just & fair in view of conviction of Shri Maqsood Ahmed by the Trial Court.
2. The applicant has come up against the aforesaid two orders on various grounds as contained in para 5 of the O.A.
3. Respondents have contested the O.A. They have justified their action.
4. Counsel for the applicant argued that when sentence alone is stayed, the conviction remains and action taken by the authorities would under such circumstances be held legal, whereas, when the conviction as well as sentence are stayed, there is nothing on the basis of which the applicant could be visited with the penalty of compulsory retirement.
5. Counsel for the respondents justified their action stating that the applicant was not acquitted and was only granted bail and stay of conviction.
6. Arguments were heard and documents perused. Conviction is a disqualifications in certain cases and in service matter, such a conviction could enable the authorities to invoke the provisions of rule 19 of the CCS(CC&A) Rules, 1965 for punishment as the extent of conduct of the individual which resulted in conviction warranted. While in some cases where the stay of conviction would give relief to the individual in that the disqualification may not be fastened, in so far as service matter is concerned, the Apex courts have taken consistent view that what decides is the conduct that had led to the conviction and stay of sentence or any other order (meaning order of conviction) would not save the individual from being proceeded against under the rules, as it is conduct which is the main criterion. In this regard, the following decisions would be appropriate to be referred to:
(a) Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera, (1995) 3 SCC 377,
6. Article 311(2) declares that no person, who is a member of the civil service of the Union or All India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso, however, carves out three exceptions to the said rule. We are concerned with the first exception mentioned under clause (a). Insofar as it is relevant, the second proviso reads as follows:
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.
7. This clause, it is relevant to notice, speaks of conduct which has led his conviction on a criminal charge. It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Section 389(1), it may be noted, speaks of suspending the execution of the sentence or order, it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the conviction an aspect dealt with recently in Rama Narang v. Ramesh Narang1. At pages 524 and 525, the position under Section 389 is stated thus: (SCC pp. 524-525, paras 15 and 16) Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does order in Section 389(1) mean order of conviction or an order similar to the one under Section 357 or Section 360 of the Code? Obviously the order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities.
* * * In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order for reasons to be recorded by it in writing. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? ... If such a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect.*
8. We need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the conduct which has led to his conviction on a criminal charge and there can be no question of suspending the conduct. We are, therefore, of the opinion that 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.
9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 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-accused is acquitted on appeal or other proceeding, the order can always be revised and if 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 a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2).
(b) State of T.N. v. A. Jaganathan, (1996) 5 SCC 329, at page 330 :-
1. Leave granted.
2. Counsel for parties are heard.
3. The respondents in these four appeals are the government employees. All the four were convicted by the Judicial Magistrate, Erode for various criminal offences and sentenced to undergo various sentences. The said conviction and sentences were affirmed by the Sessions Judge/Special Judge, Erode. The respondents then approached the High Court in Criminal Revision accompanied with an application under Section 389(1) CrPC for suspension of convictions as well as the sentences. The High Court after considering the ambit and scope of the provisions contained in Sections 374 and 389(1) of the Code of Criminal Procedure and the relevant provisions of law and relying on the decision of this Court rendered in Rama Narang v. Ramesh Narang1 took the view that for the reasons to be recorded in writing by the appellate court, the conviction or order of sentence can be suspended during the pendency of the same. The High Court also took the view that the power of the appellate court or the High Court to suspend the conviction or sentence is always inherent and can be exercised at any stage, subject to the condition that the appellate court should be approached and satisfied with the reasonings to be recorded in writing and further, if anyone wants to stop the proceedings which have been initiated for disqualification or removal from service or reduction in rank in respect of a public servant one has to look into the moral conduct very much involved in such a case and only when the court is satisfied with such conduct, then the remedy provided under different statute cannot at all be stopped. After taking the aforesaid view and on consideration of the fact that the respondents will lose the meagre stipend, if the prayer for suspending the conviction during the pendency of the revisions is not granted, the High Court passed the impugned orders suspending the conviction as well as the sentences awarded to the respondents. It is against these orders that the State has filed these appeals. The submission of the learned counsel appearing for the State is that the High Court has passed the impugned orders relying on the decision in Rama Narang case1 wherein this Court took the view that in appropriate cases the conviction and sentences can be suspended in exercise of powers under Section 482 CrPC. After going through the decision referred to above and the facts of the present case we find that the decision relied upon has no application to the facts of the cases before us. In Rama Narang case1 the conviction and sentences both were suspended on the reasoning that if the conviction and sentences are not suspended the damage would be caused which could not be undone if ultimately the revision of the appellants of that case was allowed. But in the present case, we find that in the event the revisions against their conviction and sentences are allowed by the High Court the damage, if any, caused to the respondents with regard to payment of stipend etc. can well be revived and made good to the respondents. If such trifling matters are taken into consideration, we think, then every conviction will have to be suspended pending appeal or revision involving the slightest disadvantage to a convict. That being so the facts of the decision relied on have no application to the present case. This apart, the High Court though made an observation but did not consider at all the moral conduct of the respondents inasmuch as respondent Jaganathan who was the Police Inspector attached to Erode Police Station has been convicted under Sections 392, 218 and 466 IPC, while the other respondents who are also public servants have been convicted under the provision of Prevention of Corruption Act. In such a case the discretionary power to suspend the conviction either under Sections 389(1) or under Section 482 CrPC should not have been exercised. The orders impugned thus cannot be sustained.
7. In the instant case, the offence is attempt to murder, a moral turpitude. However, the applicants conviction has been stayed by the high court, though not much of reasons have been spelt out. In any event, we cannot go into the same as it is the discretion and within the inherent power of the High Court. The question is whether under such circumstances, the applicant is entitled to the relief sought for.
8. Applicant has relied upon the decision in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali,(2007) 1 SCC 673 but the same relates to disqualification in election whereas in respect of service matter, the decision in Nagoor Meera (supra) is the most appropriate one.
9. Keeping in view the elaborate discussion and the ultimate decision in the case of Nagoor Meera (supra) the application has to only fail. Accordingly, the same is dismissed but with no orders as to cost.
(D.C. Lakha) (Dr. K.B.S. Rajan)
Member-A Member-J
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