Delhi High Court
S.S. Chowdhary vs Municipal Corporation Of Delhi on 10 January, 2005
Equivalent citations: 116(2005)DLT622, 2005(79)DRJ711, 2006(2)SLJ249(DELHI)
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. These petitions raise a common question of law, and are based on facts which are similar in material content. The Petitioners have been convicted under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and have been sentenced to rigorous imprisonment and fine. Both the Petitioners have filed appeals against Sentence, which has ordered to remain suspended during the pendency of the respective Appeals. The Petitioners claimed for the quashing of the dismissal order and for their reinstatement with all consequential benefits. The Petitioners also pray for subsistence allowance.
2. Article 311 of the Constitution provides, inter alia, that "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" he may be dismissed from service. Rule 19 of the Central Civil Services Rules envisages an imposition of a penalty on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. The DDA Conduct, Disciplinary and Appeal Regulations, 1999 also enables the Disciplinary Authority to impose any penalty where the concerned "employee has been convicted on a criminal charge or on the strength of facts or conclusions arrived at by a judicial trial".
3. The controversy raised in these Petitions is no longer res integra in view of a catena of judgments of the Hon'ble Supreme Court. The Constitution Bench had been called upon to interpret Article 311 of the Constitution in Union of India v. Tulsi Ram Patel, . This is what it said:
70. ....... The conclusion which flows from the express language of the second proviso is inevitable and there is no escape from it. It may appear harsh but, as mentioned earlier, the second proviso has been inserted in the Constitution as a matter of public policy and in public interest and for public good just as the pleasure doctrine and the safeguards for a government servant provided in clauses (1) and (2) of Article 311 have been. It is in public interest and for public good that a government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence is such that he should not be permitted to continue to hold the same rank, that he should be reduced in rank. Equally, where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an inquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him; and similarly, where in the interest of the security of the State it is not expedient to hold an inquiry, it is in the public interest and for public good that where one of the three punishments of dismissal, removal or reduction in rank is called for, it should be summarily imposed upon the concerned government servant. It was argued that in a case falling under clause (b) or (c), a government servant ought to be placed under suspension until the situation improves or the danger to the security of the State has passed, as the case may be, and it becomes possible to hold an inquiry. This argument overlooks the fact that suspension involves the payment at least of subsistence allowance and such allowance is paid at public expense, and that neither public interest would be benefited nor public good served by placing such government servant under suspension because it may take a considerable time for the situation to improve or the danger to be over.
4. In Deputy Director of Collegiate Education (Administration), Madras, , His Lordship B.P. Jeeven Reddy had expressed the opinion that Article 311 second proviso does not speak of sentence of punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. In Union of India and Ors. v. Ramesh Kumar, :
6. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the appellate court the order of dismissal based on conviction stands obliterated and the dismissed government servant has to be treated under suspension till disposal of appeal by the appellate court. The rules also do not provide the disciplinary authority to await disposal of the appeal by the appellate court filed by a government servant for taking action against him on the ground of misconduct which has led to his conviction by a competent court of law. Having regard to the provisions of rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate court has power to suspend the execution of sentence and to release an accused on bail. When the appellate court suspends the execution of sentence, and grants bail to an accused the effect of the order is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 CrPC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the court of law does not lose its efficacy merely because the appellate court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell into error in holding that by suspension of execution of sentence by the appellate court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of criminal appeal by the High Court.
7. Before we part with this case, we would like to refer to the decision of this Court in the case of State of Maharashtra v. Chandrabhan Tale and two administrative orders heavily relied upon by the Administrative Tribunal in allowing the application of the respondent. In the case of Chandrabhan the validity of the second proviso to Rule 151 of the Bombay Civil Service Rules which provided for payment of subsistence allowance at the rate of Re 1 per month to a government servant who is convicted by a competent court of law and sentenced to imprisonment and whose appeal against the conviction and sentence is pending, was challenged and struck down by this Court. The question involved in the said case was entirely different from the question which was to be resolved by the Tribunal. We are, therefore, of the opinion that reliance on this decision of the Supreme Court was totally misplaced. The Tribunal further relied upon two administrative orders passed by the Delhi Administration whereby two employees of the Delhi Administration were reinstated after the High Court suspended the execution of their sentences in appeals filed by them. Assuming that the facts of those cases and the present case are alike, reliance on such orders was totally misplaced for the reason being that those orders passed were not in conformity with law.
5. In Union of India v. V.K. Bhaskar, , their Lordships S.C. Agrawal and G.T. Nanawati had held that the pendency of an appeal against conviction did not operate as a bar to the passing of a dismissal order on the ground of the employee's conviction on a criminal charge. The previous decision of the Hon'ble Supreme Court in Tulsi Ram's case (supra) had been specifically referred to. In K.C. Sareen v. CBI, Chandigarh, His Lordshjip K.T. Thomas, speaking for the Bench, opined as follows:
7. Shri Vikram Chaudhari, learned counsel for the appellant repeated before us those grounds and further submitted that as a trial can logically reach its final end only when the appellate court decides the matter the conviction passed by the trial court cannot be treated as having become absolute. He made an endeavor to draw support for the said proposition from the following observations made by this Court in Akhtari Bi v. State of M.P., :
"Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction".
8. By the said observation this Court did not mean that the conviction and sentence passed by the trial court would remain in limbo automatically when they are challenged in appeal The said observation was made in a different context altogether when notice of the executive government was drawn to the need to appoint requisite number of Judges to cope up with the increased pressure on the existing judicial apparatus, and for highlighting the consequences of non-filing existing vacancies of Judges in the High Courts. We are unable to appreciate how the said observation can be culled out of the said context for the purpose of using it in a different context altogether such as this where the convicted accused is seeking to have an order of conviction suspended during the pendency of the appeal. ....
12. ... When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.
6. In State of Tamil Nadu v. A. Jaganathan, , their Lordships Faizanuddin and S.P. Kurdukar were of the view 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". All these cases pertained to an employee/Government servant. Hon'ble Supreme Court has gone much further to apply the same rationale to even a Chief Minister of a State. In B.R. Kapur v. State of T.N. and Anr., :
34. It is true that the order of the High Court at Madras on the application of the second respondent states: "Pending criminal appeals the sentence of imprisonment alone is suspended and the petitioners shall be released on bail...", but this has to be read in the context of Section 389 under which the power was exercised. Under Section 389 an appellate court may order that "the execution of the sentence or order appealed against be suspended ...". It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the execution of the sentences, therefore, does not remove the disqualification against the second respondent. The suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals field by the second respondent. The fact that she secured the suspension of the execution of the sentences against her did not alter or affect the convictions and the sentences imposed on her and she remained disqualified from seeking legislative office under Section 8(3).
7. Confronted with the overwhelming nature of these precedents delivered by different Benches of the Apex Court, learned counsel for the Petitioner drew my attention to State of Maharashtra v. Chandrabhan Tale, . However that case is of little assistance to the Petitioners. The question that had arisen was that whether subsistence allowance of Re 1 per month complied or conformed with the law? The Court was of the opinion that the quantum of the relief was illusory and meaningless. The extracted observations relied upon on behalf of the Petitioners cannot be stretched to extremity that subsistence allowance must be paid even after a delinquent employee has been sentenced/convicted merely because he has filed an appeal in which the sentence has been suspended.
20. The learned Judges of the Division Bench have found in the judgment under appeal that the object and purpose of the main Rule 151 is to provide for subsistence allowance pending suspension of the civil servant and that the subsistence allowance mentioned in the main Rule and the second proviso means bare minimum which can reasonably be provided for a civil servant who is kept under suspension and without work and therefore not entitled to full wages. If the civil servant under suspension, pending a departmental enquiry or a criminal trial started against him, is entitled to subsistence allowance at the normal rate which is a bare minimum required for the maintenance of the civil servant and his family, he should undoubtedly get it even pending his appeal filed against his conviction by the trial court, and his right to get the normal subsistence allowance pending consideration of his appeal against his conviction should not depend upon the chance of his being released on bail and not being lodged in prison on conviction by the trial court. Whether he is lodged in person or released on bail on his conviction pending consideration of his appeal, his family requires the bare minimum by way of subsistence allowance. Subsistence allowance provided for in the second proviso at the nominal rate of Rs. 1 per month is illusory and meaningless. The contention of the appellant that even the nominal sum of Rs. 1 per month is subsistence allowance for a civil servant under suspension is as unreasonable as the contention of the appellant that what should be the subsistence allowance for a civil servant under suspension is for the authority empowered to frame rules under Article 309 of the Constitution to consider and that the civil servant who has entered service is bound by the second proviso. The sum of Re 1 per month can never sustain a civil servant for even a day much less for a month.
8. I find no merit in the petitions. It may be that sentence/conviction has been suspended pending the disposal of the petitioners appeals. The Respondents nevertheless have the power to dismiss the Petitioners. A fortiori it would be an absurdity for the Respondents to be held liable to pay the Petitioners a subsistence allowance. In the event that they succeed in their appeal the natural consequences would flow which would include payment of all monetary benefits.
9. The writ petitions are without merit and are accordingly dismissed.