Rajasthan High Court - Jaipur
Tikam Singh vs State Of Rajasthan And Others on 19 January, 2001
Author: B.S. Chauhan
Bench: B.S. Chauhan
ORDER CHAUHAN, J.
1. The instant writ petition has been filed for seeking direction to the respondents to reinstate him and for quashing the order dated 29.3.2000 (Annx. 7), by which petitioner stood dismissed from service.
(2). The facts and circumstances giving rise to this case are that petitioner was an employee of the Revenue Department of the State of Rajasthan and while he was working in Patwar Mandal, Ludhawari, district Bharatpur, a criminal case for the offences under Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act (for short, "the Act") was registered against him and he was also put under suspension vide order dated 7.10.91. As the criminal case remained pending for a long time, the suspension order was revoked vide order dated 23.3.93. Subsequently he was again put under suspension. A departmental enquiry was initiated against him by the Disciplinary Authority by serving a charge sheet alongwith statement of allegations on 3.7.90, wherein the allegations had been the same as were in the criminal case. Petitioner filed the reply on 6.8.93 that enquiry could not be proceeded with till the criminal case was decided. Vide judgment and order dated 4.9.96, the learned trial Court convicted the petitioner for the aforesaid offence and sentenced him to undergo rigorous imprisonment for one year with a fine of Rs. 500/- for the offence under Section 7 of the Act and for the offence under Sections 13(1)(d) and 13(2) of the Act, a sentence to undergo rigorous imprisonment for two years with a fine of Rs. 1000/-was imposed against him; however, the sentences were ordered to run concurrently. Petitioner preferred Criminal Appeal No. 545/1996 before this Court against the said judgment and order of the trial Court and vide order dated 26.9.96 (Annx. 4), the sentence was suspended. Petitioner was reinstated vide order dated 23.10.98 after the interim order passed by this Court in the said criminal appeal on 26.9.96 but his services have been terminated vide order dated 29.3.2000 (Annx. 7), Hence this petition.
(3). Mr. Sharma, learned counsel for the petitioner, has submitted that the services of the petitioner could not have been terminated in view of the interim order passed by this Court in 26.9.96, by which the order of conviction as well as of sentence passed by the trial Court has been suspended and, thus, the impugned order dated 29.3.2000 is illegal and deserves to be quashed.
(4). An order passed by any Authority in contravention of the order passed by the Court can be held to be unenforceable in view of the judgment of the Hon'ble Supreme Court in Mulraj vs. Murli Raghunathji Maharaj (1). But the question does arise: whether a convict has a right to continue in or to be reinstated in service during the pendency of his appeal etc.? Under the provisions of the Statutory Rules and the provisions of Article 311 of the Constitution, a person who stands convicted by the competent criminal court, is liable for termination of his services straightway without holding any enquiry. There has been conflicting views on the issue whether in exercise of the power under Section 389(1) Cr. P.C., the Appellate Court can suspend the conviction also alongwith 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 "convic-tion" also, as "conviction" has no where been used in the provisions of the Code of Criminal Procedure or any other Rules or Regulations or any other enactment and no provision has been made for suspension of conviction in appeal. (Vide V. Sun-dararamireddy vs. Slate (2), and M. Srinivas Reddy vs. Stale (3).
(5). In Rama Narang vs. Ramesh Narang (4), the Hon'ble Apex Court held that the Appellate Court, in exercise of its powers u/Sec. 389(I) Cr. P.C., is competent not only to suspend the sentence but also the conviction. The Court has observed as under:-
"In such a situation, 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 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 thereto? No one can be allowed to play hide and seek with the court, he cannot suppress the precise purpose, for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate."
(6). The Hon'ble Apex Court reconsidered the judgment in Rama Narang (supra) in State of Tamil Nadu vs. A. Jaganathan (5), wherein the Hon'ble Apex Court reversed the judgment of the High Court slaying the operation of conviction in exercise of the power under Section 389(1) Cr. P.C. The Court observed as under:-
"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 respondent.....who was the Police Inspector.....had been convicted under Sections 392, 218 and 466 I.P.C. while the other respondents, who are also public servant, have been convicted under the provisions of the Prevention of Corruption Act. In such case, the discretionary power to suspend the conviclion either under Section 389 or under Section 482 Cr. P.C. should not have been exercised. The order impugned, thus, cannot be sustained."
(7). Thus, in view of the aforesaid, a clear picture emerges that the Appellate Court in exceptional case may put the conviction in abeyance alongwith the sentence, but such a power requires to be exercised with great circumspection and caution and for that the applicant must satisfy the Court as what evils are going to visit him if the conviction is not suspended. The Court has to consider the facts properly pleaded by the applicant in a judicious manner and examine whether the facts and circumstances involved in the case warrant such a course.
(8). The instant case requires consideration as per the aforesaid settled legal proposition. The first question does arises whether this Court, vide order dated 26.9.1996, has in fact suspended the conviction alongwith the sentence? Mr. Sharma was confronted with the pleadings of the case as in the entire proceedings, his case has been only that this Court had suspended the sentence and there is no pleading whatsoever that conviction had also been suspended and whether in such circumstances it was permissible for him to argue that the termination order is in violation of the order of this Court dated 26.9.96.
(9). In para 6 of the petition, it has been slated as under:-
"Alongwith the appeal, S.B. Criminal Misc. Application No. 697/96 under Section 389 Cr.P.C. was also submitted for suspension of sentence and the said application was allowed by the Hon'ble Court vide order dated 26.9.96 and the sentence awarded to the petitioner was suspended."
(10). Para 8 of the petition reads that when the sentence was suspended by this Court vide order dated 29.6.1996, the petitioner was reinstated. In Grounds Clause (C), again it has been stated that "the sentence was awarded by the Special Judge on 4.9.96 and the sentence was suspended by the Hon'ble High Court on 26.9.96."
(11). The order passed by this Court dated 26.9.96 contains the heading as under:-
"S.B. Criminal Misc. Application under Section 389 Cr. P.C. for suspension of sentence during pendency of the appeal."
(12). The order further reads that the sentence as awarded vide order dated 4.9.96 shall not be given effect to till the disposal of the Appeal No. 545/96.
(13). There is nothing on record to show that petitioner has given special reasons in his application under Section 389(1) Cr. P.C. before the Appellate Court as what difficulties he was going to suffer if the conviction was not stayed, nor there is any reasoned order passed by the Appellate Court. Moreso, only sentence has been kept in abeyance and there is nothing in the order to show that conviction has also been put under suspension.
(14). Mr. Sharma has submitted that even if the relief of staying the operation of conviction also had not been prayed for before the Appellate Court, the Court is free to do so. The submission is preposterous for the reason that unless the relief is specifically asked for, the Court cannot grant it, as held by the Hon'ble Supreme Court in M/s. Trojan & Co. vs. RM.N.N. Nagappa Chettiar (6), Life Insurance Corporation of India vs. Jyotish Chandra Biswas (7), and Rhone Poulenc (India) Ltd. vs. Stale of Orissa (8).
(15). The petition has been drafted in a very casual and cavillier manner and does not meet the requirements of proper pleadings. It is settled principle of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the petition. In Bharat Singh vs. State of Haryana (9), the Hon'ble Supreme Court has observed as under:-
" In our opinion, when a point, which is obstansibly a point of law, is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter affidavit. While in pleadings, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in support of such facts have to be pleaded and annexed to it."
(16). Similar view has been reiterated in Larsen &Tubro vs. State of Gujarat (10), National Building Construction Corporation vs. S. Raghunathan & ors. (11), and Ram Narain Arora vs. Asha Rani & ors. (12).
(17). In Re : Sanjiv Datta (13), the Apex Court has also observed as under:-
"Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from.....the filling of incomplete and inaccurale pleadings..... and the failure to remove office objections......they do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive dis- service to the litigants and create embarrassing situation with Court leading to avoidable, unpleasantness and delay in disposal of matters. This augurs ill for the health of our judicial system."
(18). Drafting the petition in such a manner amounts to contempt of Court. Moreso, for seeking a relief, the petitioner has to lake a specific ground, without which the Court cannot grant the relief. (Vide Life Insurance Corporation of India vs. Jyotish Chandra Biswas (supra). No relief can be granted in a case where pleadings are so vague.
(19). There is another aspect of the matter which Court should not lose sight of. In the instant case, petitioner stood convicted under the provisions of the Prevention of Corruption Act. Reinstatement of the petitioner during pendency of the criminal appeal before this Court would not only demoralise the administration but also facilitate the petitioner to prepatriate the crime and in such a situation, he would be in a position to hold the administration on ransom. Interest of justice requires refusal of such a relief. Even if the employee is acquitted by a criminal court, the Department has a right to hold the disciplinary proceedings and pass appropriate order of punishment against the delinquent. (Vide Nelson Motis vs. Union of India & Anr. (14), Stale of Karnataka & Anr. vs. T. Venkataramanappa (15) and Senior Superintendent of Post Offices vs. A. Gopalan (16).
(20). Thus, I fail to understand that if removal of an employee even after being acquitted is permissible, how the employee can seek reinstatement merely because his conviction/sentence has been stayed by the Appellate Court. It is for the Department to pass an appropriate order considering the facts and circumstances of the case, taking into account the nature and magnitude of the offence committed by the delinquent, in which he stood convicted and in such matters, the equity courts must act with most circumspection and unless there are compelling circumstances, it must keep its hands off.
(21). It is settled legal proposition that to do substantial justice, the Court may not interfere with an order even if it is wrong. (Vide Dal Singh vs. King Emperor (17), Municipal Board, Pratabgarh & Anr. vs. Mahendra Singh Chawla & ors. (18), Bashpal Malhotra vs. Mrs. Satya Rajput & Anr. (19), Mohammad Swalleh & ors. vs. Illrd Addi-lional District Judge, Meerut & Anr. (20) and Income Tax Appellate Tribunal through President vs. V.K. Agarwal & Anr. (21).
(22). It may also be a case of loss of confidence wherein the services of an employee can be erminated, as held by the Hon'ble Supreme Court in Sudhir Vishnu Panvalkar vs. Bank of India.
(23). Thus, in view of the above, I reach the inescapable conclusion that the petition is totally frivolous and misconceived as petitioner has not been granted the relief of suspension of conviction though the entire writ petition is on the ground that once the operation of the conviction has been stayed, petitioner must be reinstated. In a case where an employee has been convicted for the offence under the Prevention of Corruption Act, even if operation of the conviction is stayed, the relief of reinstatement should not ordinarily be granted.
(24). The case does not present special features warranting interference with the impugned order. Petition is accordingly dismissed without notice to the other party.