Jamna Prasad Vs State of M.P. and Others

@JUDGMENTTAG-ORDER

Bhawani Singh, C.J.

Petitioner was Assistant Teacher. He was placed under suspension on 16-2-1990 since he was arrested in a criminal case punishable u/s 302, Indian Penal Code. He was convicted by Sessions Court on 27-1-1992 and sentenced for life imprisonment. Through appeal, he challenged the judgment which was decided by this Court on 4-3-1998. His appeal was partly allowed. He was convicted u/s 326, Indian Penal Code and sentenced to seven years Rigorous Imprisonment.

The petitioner is claiming subsistence allowance till 4-3-1998 when his appeal was decided. His submission is that his conviction could not be taken final until the disposal of the appeal. Therefore, he is to be under suspension and entitled to subsistence allowance. State Administrative Tribunal did not find favour with this claim and rejected O. A. No. 2099 of 1998 by order dated 12-10-1999. For rejecting the claim, SAT placed reliance on two Apex Court decisions in Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, and Union of India v. V.K. Bhaskar, 1998 SCC (L & S) 162, though petitioner rested his claim on order of this Court dated 19-7-1988 in Vishwas Rao v. District Education Officer, Chhindwara and Anr., passed in M.P. No. 3199 of 1986.

Petitioner challenged SAT order through Writ Petition No. 1642 of 2000. During the course of submissions, apart from the decision in Vishwas Rao''s case (supra), attention of learned Judges comprising the Division Bench was drawn to another decision of this Court in Jagdish Prasad v. State of M.P., dated 6-10-1982 in M.P. No 465 of 1982. In these two decisions, the Division Bench took the view that till the appeal is pending before this Court, it could not be said that the accused stood convicted and on that basis, no order of removal could be passed, meaning thereby the order of removal could become operative from the date of judgment in appeal. Therefore, up to the date of judgment in appeal, person would be entitled to subsistence allowance. Learned Judges of the Division Bench doubt the correctness of Division Bench decision mJagdish Prasad''s case (supra) in the light of decision of Apex Court in K.C. Sareen Vs. C.B.I., Chandigarh, ] and require re-consideration by Larger Bench. This is how the matter comes before us.

In Jagdish Prasad''s case (supra), petitioner was suspended when criminal prosecution was launched against him. After conviction by the Sessions Court, he was dismissed by order dated 7-6-1976. Ultimately, appeal was decided on 21-8-1978. Petitioner contended that he was entitled to be kept under suspension till the matter was finally decided by the Apex Court where appeal was pending. Therefore, he was entitled to subsistence allowance treating him under suspension. Counsel for State admitted that when the order of removal was passed on 7-6-1976, appeal was pending in this Court which was decided on 21-8-1978, therefore, the petitioner would be entitled to subsistence allowance up to 21-8-1978 and if the order of removal was already passed and the petitioner preferred appeal to the Apex Court, it could not be contended that the order of removal will not take the effect. Accepting the plea advanced by the learned Counsel for State, Division Bench holds that until appeal was pending before this Court, it could not be said that the petitioner was convicted. As such, order of removal could not be passed. Hence, the order of removal would be operative from 21-8-1978 when the appeal was disposed of by this Court. Consequently, the petitioner was entitled to subsistence allowance up to 21-8-1978 since the order of removal had been passed, filing the appeal in the Apex Court would not affect the order of removal. Perusal of this judgment demonstrates that it has been decided on the statement of Counsel for State. Later, this judgment has been followed by another Division Bench in the case of Vishwas Rao v. District Education Officer, Chhindwara and Anr. (M.P. No. 3199 of 1986, decided on 19-7-1988) in which petitioner has been held entitled to payment of subsistence allowance till the date of dismissal of appeal against conviction by this Court.

Fundamental question for consideration is whether a person whose appeal is pending in this Court is entitled to subsistence allowance till the disposal of the appeal, taking him to be under suspension irrespective of order of removal/termination/dismissal passed by the Competent Authority after his conviction by the Criminal Court and whether stay of sentence/conviction or both make any difference.

Section 389(1) of the Code of Criminal Procedure, 1973 (''Code'' hereafter) deals with, power of the Appellate Court regarding suspension of execution of ''the sentence or order appealed against'' during the pendency of the appeal. Similar power is exercisable by the Revisional Court during the pendency of the revision u/s 401. In Rama Narang Vs. Ramesh Narang and Others, ], the Apex Court examined the scope and ambit of the powers of Appellate Court u/s 389 of the Code and said what can be suspended u/s 389(1) of the Code is the execution of sentence or the order, latter being one which is capable of execution. In Paragraph 15, Ahmadi, learned Chief Justice said :--

"15..... 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. Since the order of conviction does not on the mere filing of an appeal disappear it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a ''final order of conviction''. Such an interpretation may defeat the very object and purpose for which it came to be enacted....."

Judgment also holds that in a certain situation, the order of conviction can be executable and in such a case, power u/s 389(1) of the Code could be invoked specifically. Reference is made to Paragraph 16 of the judgment in which it is said :--

"16. 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 u/s 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 u/s 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 ? 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......"

The ratio of the judgment has been approved by the Court in K.C. Sareen''s case (supra). Thomas, J., speaking for the Court, said in Paragraph 11 that-

"The legal position, therefore, is this : though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389 (1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the Court should not suspend the operation of the order of conviction. The Court has a duty to look all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the Appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the Superior Court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the filing of the appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter."

Though the legal position may be that there may be power to suspend an order of conviction apart from the order of sentence u/s 389(1) of the Code but its exercise should be limited to very exceptional cases, after the Court looks to all aspects including the ramifications of putting the conviction in abeyance. Apex Court has recorded extensive reasons in Paragraphs 12 and 13 of the judgment as under:--

"12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. 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 a 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.

The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant, the Appellate Court or the Revisional Court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."

Thereafter, in Paragraphs 14 and 15, the Apex Court said that:--

"14. We are fortified in holding so by two other decisions of this Court. One is Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera. The following observations of this Court are apposite now: (SCC p. 281 para 9)

''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 accused Government servant 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.''

I5. The other decision is State of T.N. v. A. Jagannathan, which deals with the case of some public servants who were convicted, inter alia, of corruption charges. When the appeal filed by such public servants was dismissed, the High Court entertained a revision and ordered suspension of the sentence as well as the order of conviction, in exercise of the powers u/s 389(1) of the Code, taking cue from the ratio laid down in Rama Narang v. Ramesh Narang. But when the State moved this Court against the order of suspension of conviction, a two-Judge Bench of this Court interfered with it and set aside the order remarking that in such cases the discretionary power to order suspension of conviction either u/s 389(1) or even u/s 482 of the Code should not have been exercised."

Aptly, we may refer to the decision of Apex Court in State of Tamil Nadu Vs. A. Jaganathan, ) holding that suspension of conviction and sentence during the pendency of appeal or revision u/s 389(1) read with Section 482 of the Code should not be ordered without taking into consideration moral conduct of convicts and the consequences which may follow in case suspension of conviction is not ordered. Precisely, the Court said:--

"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 u/s 389(1) Cr.PC for suspension of conviction 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 Vs. Ramesh Narang and Others, 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 arty 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 any one 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 can not at all be stopped. After taking the aforesaid view and on consideration of the fact that the respondents will loose the meagre stipend, if the prayer for suspending the conviction during the pendency of the revisions is not granted, 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''s case (supra) wherein this Court took the view that in appropriate cases the conviction and sentences can be suspended in exercise of powers u/s 482, Cr.PC. 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''s case (supra) 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 would 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 of 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 con-- viction 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-Jagannathan 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 u/s 389(1) or u/s 482, Cr.PC should not have been exercised. The orders impugned thus can not be sustained."

In Union of India and others Vs. Ramesh Kum, ), the Apex Court happened to deal with the situation similar to the present case where the Central Administrative Tribunal by order dated March 2, 1990 set aside the order of dismissal dated August 30, 1983 and directed inter-alia to treat the period beginning from the date of dismissal of the respondent till the disposal of criminal appeal filed by the respondent in the Delhi High Court as the period of suspension for which the respondent would be entitled to get normal subsistence allowance in accordance with the relevant rules. While serving as Inspector of Food & Civil Supplies Department of the Delhi Administration, respondent was arrested by Anti-corruption Branch for accepting illegal gratification. Consequently, he was placed under suspension. The Special Sub-Judge, Delhi convicted him u/s 5(2) of the Prevention of Corruption Act, 1947 on July 30, 1983 and sentenced him to undergo imprisonment for three years and fine of Rs. 500.00 with default clause, to further undergo six months'' imprisonment. After conviction by Special Sub-Judge, disciplinary authority dismissed him from service under Rule 19 of the CCS (CCA) Rules, 1965 read with the provisions of Vigilance Manual. The respondent filed criminal appeal with prayer for bail against conviction and sentence recorded by Special Sub-Judge, Delhi before the High Court of Delhi. Admitting the appeal, the High Court passed the following order:--

"Pending hearing of the appeal, the execution of the sentence shall remain suspended and he shall be released on furnishing a personal bond in the sum of Rs. 5,000/- with one surety in the like amount to the satisfaction of the Trial Court."

Respondent filed an application before Central Administrative Tribunal, New Delhi u/s 19 of the Administrative Tribunals Act, 1985 for quashing the order of dismissal and seeking direction to the appellants to grant subsistence allowance for the period beginning from the date of dismissal till the filing of criminal appeal in the High Court. The Tribunal allowed the application and granted the relief prayed for taking the view that by suspension of the execution of sentence, the conviction and dismissal lost efficacy and he was to be treated under suspension till the final judgment of High Court in appeal preferred by him. The Apex Court found that the view taken by the Tribunal was neither borne out from the rules applicable to the respondent nor by any judicial decisions cited before the Tribunal. Examining CCS (CCA) Rules, 1965 read with the provisions of Vigilance Manual, the Court said in Paragraph 7 that :--

"7. 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 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 the 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 string 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. u/s 389 of the Code of Criminal Procedure, the Appellate Court has power to suspend the execution of sentence, and grant bail to an accused the effect of the order is that 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 u/s 389, Cr.PC, 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 Appellate Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in 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."

Rule 19 of the M.P. Civil Service (Classification, Control and Appeal) Rules, 1966, envisages-

"19. Special Procedure in certain cases.-- Notwithstanding anything contained in Rule 14 to Rule 18 :--

(i) Where any penalty is imposed on a Government servant on the ground of misconduct which has led to his conviction on a criminal charge; or

(ii) Where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules; or

(iii) Where the Government is satisfied that in the interest of the security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:

Provided that the Commission shall be consulted where such consultation is necessary before any orders are made in any case under this rule."

Order in the present case has been passed under Rule 19 (i) after his conviction on a criminal charge. (See : Union of India (UOI) Vs. V.K. Bhaskar, . Finally we may refer to Apex Court decision in B.R. Kapur v. State of T.N. and Anr. [ : (2001) 7 SCC 231J. In Paragraph 44, the Court said :--

"44. Lastly, in this connection, our attention was drawn to the case of Vidya Charan Shukla v. Purshottam Lal Kaushik. The Court held that if a successful candidate was disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process, on account of his conviction and sentence exceeding two years'' imprisonment, but his conviction and sentence were set aside and he was acquitted on appeal before the pronouncement of the judgment in the election petition pending against him, his disqualification was retrospectively annulled and the challenge to his election on the ground that he was so disqualified was no longer sustainable. This case dealt with an election petition and it must be understood in that light. What it laid down does not have a bearing on the question before us: the construction of Article 164 was not in issue. There can be no doubt that in a criminal case acquittal in appeal takes effect retrospectively and wipes out the sentence awarded by the Lower Court. This implies that the stigma attached to the conviction and the rigour of the sentence are completely obliterated, but that does not mean that the fact of the conviction and sentence by the Lower Court is obliterated until the conviction and sentence are set aside by an Appellate Court. The conviction and sentence stand pending the decision in the appeal and for (SIC) purposes of a provision such as Section 8 of the Representation of the People Act are determinative of the qualifications provided for therein."

What emerges out of the aforesaid discussion is that Appellate Court and Revisional Court can, in exercise of power under Sections 389(1)/482, Code of Criminal Procedure, 1973, stay the execution of sentence or order capable of execution but stay of conviction can be passed in exceptional cases after Court carefully examines the conduct of accused, facts of the case and possible ramifications or avoiding irretrievable consequences. However, in both the cases, the conviction and sentence can not be effaced. It is the irretrievable consequence in the former case and execution of sentence in the latter case which can be stayed. With regard to Government servant, competent authority can terminate the services after conviction by Criminal Court. Stay of execution of sentence will not debar it from doing so unless conviction is also stayed in exercise of power in light of principles laid down by the Apex Court in K.C. Sareen ''s case (supra). Further, on termination order having been passed, master and servant relationship terminates and filing of appeal and stay of execution of sentence do not revive it. He can not be taken to be under suspension from the dale of termination following conviction by Trial Court till the date of judgment by the Appellate Court. Therefore, he would not be entitled to claim subsistence allowance for this period.

The result is that the decisions of this Court in Jagdish Prasad''s case (supra), followed in Vishwas Rao''s case (supra) do not lay down correct law and are, therefore, Overruled. Matter will appear before the Division Bench for disposal on merits.