Gorelal @ Dadu and Shiv Shankar Lal vs State of U.P.

Rakesh Tiwari, J.—Heard Counsel for the petitioner, the standing counsel for respondent No. 1, 2 & 3 and Sri C.B. Yadav representing respondent No. 4.

The petitioner has challenged order dated 31.3.2008 appended as annexure-1 to the writ petition, which reads as under:

izs"kd] la;qDr f''k{kk funs''kd] >kalh e.My >kWalh A

lsok esa] ftyk fo|ky; fujh{kd] ckWank A

i=kad ek0 @ ckWank @ 12411&12 @ 2007&08 fnukad &31-03-2008

fo"k;& b.VjehMh;V dkyst] frUnokjk] ckWank dh vke lHkk ds nks lnL;ks dh lekIr djus ds lEcU/k esa A

egksn;] mi;qZDr fo"k;d vkids ikl Jh gfjvkse ^''kqDy^ lnL; izcU/k lfefr vkfn b.VjehfM;V dkWyst] frUnokjk dk i= fnukad&26-02-2008 ewy:i esa �okfilh visf{kr� layXu dj vko;''d dk;Zokgh gsrq izsf"kr fd;k tk jgk gS A

Jh ''kqDy vkfn }kjk mDr i= ds ek/;e ls voxr djk;k x;k gS fd laLFkk ds nks vkthou lnL;ksa Jh f''ko''kadj yky iq= Jh ckydUuk rFkk Jh xksjs yky mQZ nknw iq= izlknh mQZ cydUrk fuoklhx.k ekStk frUnokjk ftyk ckWank dks vij l= U;k;k/kh''k Rofjr U;k;ky; ckWank us l= ijh{k.k la[;k 241@89 eqdnek vijk/k la0 17@98 /kkjk 304 �1�@34 Hkkjrh; n.M+ lafgrk ds tqeZ esa nks"kh ikrs gq, izR;sd dks nl&nl o"kZ ds lJe dkjkokl ,oa ,d&,d gtkj :i;s ds vFkZn.M ls n.Mkfo"V fd;k x;k gS A

iz''kklu ;kstuk dh /kkjk&4 dh mi/kkjk &7 ds �3 ,oa 4� esa ;g Li"V izkfo/kku gS fd og uSfrd iru lEcfU/kr fdlh vijk/k ds fyn nks"kh Bgjk;k x;k gks ;k dksbZ Hkh O;fDr ftls dksVZ vkQ fdzehuy izkslhtj 1988 dh /kkjk 109 ;k 110 ds v/khu ln~O;ogkj ds fy, tekur nsus dk vkns''k fn;k x;k gS] vU;Fkk gksus ij Hkh lk/kkj.k lHkk dk lnL; gksus ds fy, v;ksX; lnL; gS A

mDr ls ;g Li"V gS fd Jh f''ko''kadjyky ,oa Jh xksjsyky mQZ nknw laLFkk dh izca/k lfefr esa izcU/kd ds :i es dk;Zjr gS A

mDr lnL;ksa esa Jh xksjs yky nknw mQZ nknw orZeku esa laLFkk dh izcU/k lfefr eas izcU/kd ds :i esa dk;Zjr gS A

vr% vki rRdky Jh xksjsyky mQZ nknw dks izcU/kdh; nkf;Roks ls eqDr djrs gq, izcU/k lfefr ds ''kss"k dk;Zdky ds fy, miizcU/kd Jh lUrks"k dqekj ik.Ms; dks laLFkk dk izHkkj lkSius gsrq vko;''d dk;Zokgh djus dk d"V djs A layXud&mDor~ ewy:i esa A

Hkonh;] g0 v0 �misUnz dqekj� la;qDr f''k{kk funs''kd

It appears from perusal of the impugned order that by means of some complaints against the petitioners - Shiv Shanker Lal and Gorelal alias Dadu, both of whom claimed to be life member of the committee of management, it was brought to the notice of the authority that the petitioners have been convicted in sessions trial No. 214 of 1998 (case crime No. 17/1998), u/s 304(1)/34 IPC and sentenced to undergo ten years rigorous imprisonment and fine of Rs. 1000/- each. After noticing provisions of Section 4(7) (3 & 4) of the Scheme of Administration, the authority found that if a person has been found guilty of moral turpitude or against whom an order of conviction has been passed, then such person becomes dis entitled or ineligible to remain a member of the general body.

The petitioner by virtue of being member of the general body has also been elected as manager of the institution. In the circumstances, the authority has held the petitioners having been convicted and sentenced to 10 years'' R.I. with fine of Rs. 1000/- each u/s 304(1)/34 IPC, to be ineligible to remain a member of the general body and consequently as elected member of the committee of management working on the post of Manager and further appointed the Deputy Manager to take over charge of manager from the petitioner and function as Manager of the institution.

Contention of the counsel for petitioners is that execution of the aforesaid order of conviction and sentence dated 9.11.2004 passed by the Additional Sessions Judge/Fast Track Court No. 9, Banda in S.T. No. 214 of 1998, u/s 304(1)/34 IPC, has been suspended in Criminal Appeal No. 5907 of 2004 filed by the petitioners and hence the petitioner is entitled to continue as Manager of the committee of management and contest forthcoming elections scheduled to be held in June 2008.

The order dated 16.4.08 passed by the High Court in Criminal Appeal No. 5907of 2004, is as follows:

This is an application for suspension of order of sentence dated 9.11.2004 passed in S.T. No. 214 of 1998, u/s 304(1)/34 IPC by the Additional Sessions Judge/F.T.C. No. 9, Banda.

Heard Sri Pratap Kanchan Singh holding brief of Sri Pratap Vikram Singh, learned Counsel for the appellants, learned A.G.A. and have gone through the material on record.

The appellants No. 1 to 3 namely Shiv Shanker, Raja and Dadu were released on bail in criminal appeal No. 5907 of 2004 by an order of this Court dated 18.11.2004 and the realisation of fine was stayed. The appellant No. 1 to 3 seek suspension of sentence on the grounds that they were members of the committee of management of Intermediate College, Tindwara, district Banda. On the basis of order of conviction the District Inspector of Schools, Banda has disqualified the membership of the appellants. The order of disqualification of membership was passed four years after the order of conviction and sentence. According to the appellants fresh election for the committee of management is scheduled to be held in June 2008. The appellants No. 1 to 3 want to contest the election.

Having taken into consideration the submissions advanced on behalf of both the parties and contents of the affidavit filed in support of the application , the execution of impugned order of sentence passed against the appellant No. 1 to 3 shall remain suspended during the pendency of appeal.

No other point has been argued by the counsel for petitioner. Sri C.B. Yadav, counsel for respondent No. 4-Deputy Manager of the Institution who has already taken over charge of Manager and is functioning as such, submits that mere suspension of the sentence in appeal does not in any manner vitiate the order of conviction. He has relied upon judgment of this Court in State of U.P. through Secretary Education. Govt. of U.P. and Anr. v. Sri Sada Nand Mishra in Special Appeal No. 238(S/B) of 2000, reported in 2001 (4) E.S.C. 1732-in support of his contention.

In that case, Sri Sada Nand Mishra had assailed the order of his removal from service in a writ petition on the ground that although he was convicted for commission of an offence u/s 302 IPC but in appeal the order of conviction was stayed, and hence he should be allowed to continue in service. His writ petition was allowed, impugned order removing him from service as well as orders dated 20.9.1988 and 18.6.1994 communicated to the petitioner in that case vide letter dated 28.6.1994 passed in the departmental appeal were quashed by the Hon. Single Judge of this Court. But in the special appeal filed by the State against the order of Hon. Single Judge, A Division Bench of this Court held as under:

Hon''ble Supreme Court in Union of India and others Vs. Ramesh Kum, observed that the respondent was arrested on the ground that he accepted illegal gratification. He was placed under suspension. The trial court convicted him u/s 5(2) Prevention of Corruption Act, 1947. As a result of this conviction, the Disciplinary Authority dismissed him from service by invoking Rule 19 of the CCS (CCA) Rules 1965 without holding detailed disciplinary enquiry. The High Court admitted the respondent''s appeal against his conviction and passed the following interim 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. 5000/- with one surety in the like amount...." After four years of his dismissal respondent filed an application in the Central Administrative Tribunal seeking his reinstatement in service. The Tribunal allowed the application. Reversing the order of the Tribunal. Held:

Under Rule 19 of the CCS(CCA) Rules 1965, 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 taking action against him on the ground of misconduct which had led to his conviction by a competent court of law. Having regard to the provisions of the rules, the order dismissing 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 sentences and enlarge the respondent on bail.

Under Section 389 of the Cr.P.C. the appellate court has power to suspend the execution of sentence and to release the accused on bail. When the appellate court suspends execution of the 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 u/s 389 of Cr.P.C. 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 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 disposal of criminal appeal by the High Court.

It seems that the attention of the Hon''ble Single Judge was not drawn towards the law on the subject declared by the Hon''ble Supreme Court. In the present case, the conviction and punishment appealed against was stayed by this Court but it does not mean that will not in any manner vitiate either the order of the disciplinary authority or in any manner said order can be used to circumvent the order of removal passed against the respondent.

In my opinion, the order suspending execution of the sentence in appeal, does not take away the rigours of the order of conviction. It is only the execution of sentence which remains suspended during pendency of the appeal and the conviction continues till it is set aside or quashed by a court of competent jurisdiction. This view finds support from the decision of the Apex Court in Union of India and others Vs. Ramesh Kum, wherein it has been held that dismissal or removal on the ground of conduct which led to government employee''s conviction on a criminal charge, then such an employee cannot be reinstated in service when his appeal against conviction is admitted and execution of sentence suspended during pendency of appeal. The Apex Court was of the view that sentence based on conviction get postponed or is kept in abeyance during pendency of the appeal and will not lose its effectiveness and continues till it is set aside i.e. it is unimpaired during pendency of the appeal. The Apex Court while considering this aspect of the matter in that case, held in the following terms:

...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 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. u/s 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 u/s 389 Cr.P.C. 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.

For the reasons stated above, this Court is of the considered view that merely because the order of sentence has been suspended in appeal, that will not vest the petitioners with other rights under the Scheme of Administration either to continue as Manager of the Institution or contest the election.

In the facts and circumstances of the case and in view of the law aforesaid, this Court is not inclined to interfere with the impugned order. The petition has no force and is accordingly dismissed. No order as to costs.