Deepak S/O Laxman Shinde vs State Of Maharashtra
2005 Latest Caselaw 254 Bom

ORDER

A.S. Bagga, J.

1. The applicant has been convicted for the offence punishable under Section 7 as also Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. On first count he is sentenced for R.I. for three years and to pay a fine of Rs. 2,000/-, in default to suffer R.I. for six months. For second count, he has been sentenced to undergo R. I. for three years and to pay a fine of Rs. 2,000/-, in default, to suffer further R. I for six months. The applicant has preferred criminal appeal and the appeal has been admitted.

2. By order on separate application, i.e. Criminal Application No. 16/2005, the applicant has been admitted to bail. By the present application, the applicant has prayed for suspension of the order of conviction. The argument is that the applicant/convict is an employee of M.S.E.B. and because of the conviction, his services are likely to be terminated. It is further pointed out that if the applicant succeeds in appeal, even on his reinstatement, he is not entitled to get backwages. It has been argued that the petitioner would suffer irreparable injury in case his service is terminated on account of his conviction. It is further pointed out that there is Circular which inter alia states that upon conviction of an employee, the provisions under the Service Regulation No. 10(a) are to be invoked and action to terminate the service of such employee should be taken forthwith. Instruction No. (2) further states that in case such convict gets acquitted in appeal, he should be reinstated in service but he shall not be eligible for any payment from the date of termination of his service, to the date of reinstatement on the principle of 'no work no pay'. Under these circumstances, it is prayed that this is a fit case for suspension of order of conviction.

3. In short, the argument that services of the applicant/convict are likely to be terminated and because of a particular circular, if he is required to be reinstated on his appeal being allowed, he will not be entitled to get backwages, therefore, the conviction should be suspended. In support for suspension of conviction, Shri Dhorde, learned Counsel for the applicant, has placed reliance on two judgments, one Pralhad Sitaram Yeole v. State of Maharashtra, 2002(3) Mh.LJ. 377, decided by this Court and another judgment by Division Bench of this Court in Bhagwan Tapiram Sapkale v. State of Maharashtra, reported in 2001(2) Mh.L.R. 292. In both these cases, the order of conviction was stayed. True it is, that in both these cases on the similar facts conviction has been stayed. Reasons in both these decided cases for suspension of the sentence inter alia was that the employee/convict in the event of appeal against conviction being allowed was not to get backwages. Whether or not conviction should be suspended will have to be decided on the basis of fact of each particular case.

4. I have gone through both the rulings. In the considered opinion of this Court, what is binding on this Court is the law that in suitable cases, conviction can be stayed. True, in both the cases, conviction was stayed inter alia on the ground that the employee, in the event of his appeal being allowed, was not entitled to backwages on his reinstatement. It is important to note the decision of the Supreme Court in the case between K.C. Sareen v. C.B.I. Chandigarh, 2001 AIR SCW 3339, wherein it is observed that, when a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair morale of other persons manning such office, and it is held that it is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold any public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. A duty is cast on the Court to look at all aspects including ramifications of keeping conviction in abeyance. 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 against conviction if the sentence of imprisonment is suspended. Finally, it is observed that 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. K. C. Sareen's case, in which the aforesaid observations have been made, has been subsequently followed by the Supreme Court in Union of India v. Atar Singh, .

5. After having heard learned Counsel for the applicant and after having gone through the judgments on which reliance has been placed and in view of the observations by the Apex Court, it is not possible to hold that it is exceptional case for suspension of conviction. I am of the considered view that the convict/applicant is not likely to get backwages in itself would not fall in the "exceptional case" and, therefore, this Court rejects the application.