Mahesh Pal Singh vs Govt. Of Nct Of Delhi
2012 Latest Caselaw 740 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment delivered on 03.02.2012

+      W.P.(C) 663/2012 & CM No. 1433/2012

       MAHESH PAL SINGH                                                    ..... Petitioner

                     versus

       GOVT. OF NCT OF DELHI                                             ..... Respondent

Advocates who appeared in this case:

For the Petitioner : Dr K.S. Chauhan and Mr Ajit Kumar Ekka For the Respondent : Mr Mirza Amir Baig for Mr Anjum Javed

CORAM:

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE G. P. MITTAL

BADAR DURREZ AHMED (ORAL)

1. This writ petition is directed against the order dated 02.11.2011 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi in OA

No.3219/2010. The petitioner was aggrieved by his dismissal from service on the

invocation of Rule 19 of the CCS (CCA) Rules, 1965, whereby a penalty is

imposed on a Government servant on the ground of conduct which has led to his

conviction on a criminal charge. The petitioner was dismissed by an order dated

31.08.2001.

2. An FIR No. 25/2007 dated 24.04.2007 was filed against the petitioner under

the provisions of Section 7/13 of Prevention of Corruption Act, 1988. By a

judgment dated 04.05.2010, the learned Special Judge, Delhi convicted the

petitioner under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of

Corruption Act, 1988. By an order dated 05.05.2010 passed by the learned Special

Judge, Delhi, the petitioner was sentenced to undergo rigorous imprisonment for a

period of three years and a fine of Rs 30,000/- was also imposed on him under

section 7 of Prevention of Corruption Act, 1988, in default whereof, he was to

undergo simple imprisonment for a period of six months. He was also sentenced

to undergo rigorous imprisonment for three years and a fine of Rs 30,000/- under

Section 13(2) of the said Act and in default of payment of fine, he was to further

undergo simple imprisonment for six months. The sentences were to run

concurrently.

3. Thereafter, the petitioner, being aggrieved by the order of conviction and

sentence, filed an appeal before this Court being Criminal Appeal No. 645/2010.

Along with the said appeal, the petitioner also moved an application for suspension

of sentence being Crl.M.(B) No. 758/2010. By an order dated 24.05.2010, the

sentence of the petitioner was suspended till the decision in the appeal and he was

directed to be released on bail on his executing bail bonds in the sum of Rs15,000/-

with one surety in the like amount to the satisfaction of the Trial Court.

4. The argument of the petitioner before the Tribunal as also before us is that

the power of dismissal by imposing penalty under Rule 19 of CCS(CCA) Rules,

1965, ought not to have been invoked in view of the fact that that appeal was

pending against the conviction order on the date on which the dismissal order dated

31.08.2010 came to be passed. The Tribunal, in our view, has correctly concluded

that the pendency of the appeal would not come in the way of taking action under

the said Rule 19. The clear distinction is that the Delhi High Court while hearing

the appeal only suspended the sentence, whereas the conviction was not interfered

with. The conviction would hold good till it is set aside, if at all, by the High Court

on the conclusion of the appeal. As of now, only the petitioner's sentence has been

suspended and his conviction continues to hold good. On this aspect of the matter,

the Tribunal has correctly placed reliance on the decision of the Supreme Court in

the case of Union of India v. Ramesh Kumar: AIR 1997 SC 3531, wherein the

Supreme Court observed as under:-

"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 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 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 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 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."

(underlining added)

5. The learned counsel for the petitioner also sought to place reliance on a

decision of a Coordinate Bench of the Tribunal in Ex. Ct. (Exe.) Shiv Charan's

case, which finds mention in paragraph 9 of the impugned judgment. The Tribunal

has rightly concluded that that case stood on a different footing as the Rules

applicable thereto specifically provided that so long as there was an appeal pending

against the conviction, steps were not to be taken with regard to imposition of

penalty on the person concerned. That situation does not obtain in the present case

and the Tribunal has correctly distinguished that case from the present case.

In view of the foregoing, we see no reason to interfere with the Tribunal's

order.

The writ petition is dismissed.

BADAR DURREZ AHMED, J

G. P. MITTAL, J

FEBRUARY 03, 2012 BG