Anand Kumar vs State Of Rajasthan
2022 Latest Caselaw 8292 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11197/2021

Anand Kumar S/o Ramesh Kumar, Aged About 32 Years, Ward No.6, Sector No.12, Hanumangarh Junction Junction, Tehsil And District Hanumangarh, At Present Posted At School Lecturer (English) At Govt. Sr. Secondary School, Damodra, Panchayat Samiti Sam, District Jaisalmer.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Education Department, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)

2. The Director, Secondary Education Department Bikaner, Rajasthan.

3. The Joint Director (School Education), Jodhpur Division, Jodhpur.

4. The District Education Officer, Headquarter, Secondary Education, Jaisalmer, Rajasthan.

5. Principal, Govt. Sr. Secondary School, Damodra, Block Sam, District Jaisalmer.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. C.S. Kotwani.
For Respondent(s)          :     Mr. Hemant Choudhary, G.C.
                                 Mr. Vishal Jangid, Dy.G.C.


              HON'BLE MR. JUSTICE ARUN BHANSALI
                             Order

27/06/2022

This writ petition has been filed by the petitioner aggrieved

against the order dated 10.08.2021 (Annex.21), whereby in

pending proceedings under Rule 16 of the Rajasthan Civil Services

(Classification, Control & Appeal) Rules, 1958 ('the Rules of

1958'), exercising powers under Rule 19(i) based on conviction of

the petitioner in a criminal case, he has been dismissed from

service.

(2 of 8) [CW-11197/2021]

The petitioner, who was serving as Senior Teacher (English)

at Government Senior Secondary School, Damodra, Block Sam,

District Jaisalmer came to be convicted by the Court of Judicial

Magistrate, Hanumangarh under Section 498A IPC by judgment

dated 04.02.2021 with punishment of simple imprisonment for

one year and Rs.500/- as penalty.

The petitioner filed appeal against the judgment dated

04.02.2021, the Sessions Judge, Hanumangarh by its order dated

10.02.2021, suspended the sentence passed by the trial court on

04.02.2021.

By order dated 30.03.2021 (Annex.11), the petitioner was

placed under suspension under Rule 13 of the Rules of 1958 and

was relieved on 01.04.2021.

Feeling aggrieved of the order of suspension, the petitioner

filed SBCWP No.6981/2021, which came to be withdrawn by the

petitioner with liberty to file appeal on 12.05.2021. The appeal

was filed by the petitioner before the competent authority under

Rule 22 of the Rules of 1958.

On 21.05.2021 (Annex.16), the petitioner was issued a

charge-sheet under Rule 16 of the Rules of 1958 on account of his

conviction by the Court of Judicial Magistrate, Hanumangarh. The

petitioner responded to the said charge-sheet by the response

(Annex.18), inter-alia, seeking time to produce request

documents. Whereafter, filed a detailed response on 14.06.2021

(Annex.19) and further communication dated 29.07.2021

(Annex.20).

The competent authority by its order dated 10.08.2021,

noticing the circumstances, the contentions raised by the

petitioner and coming to the conclusion that instead of continuing

(3 of 8) [CW-11197/2021]

with the proceedings under Rule 16, it would be appropriate to

exercise powers under Rule 19(i) of the Rules of 1958, recorded

his satisfaction for exercising of the said powers and passed the

order dismissing the petitioner from service.

Feeling aggrieved of the order dated 10.08.2021, the

petitioner filed the present writ petition on 13.08.2021.

It appears that an advance copy was supplied to the

respondents, who sought time to file reply and the matter

remained pending.

On 15.03.2022, when the matter came up before the Court,

learned counsel for the petitioner informed that conviction of the

petitioner has been stayed in S.B. Cr. Revision Petition

No.191/2022 on 04.03.2022.

Learned counsel for the respondents prayed for and was

granted time to file reply. A reply to the petition has been filed on

17.04.2022.

Learned counsel for the petitioner made submissions that the

order impugned dated 10.08.2021 has been passed by the

respondents exercising powers under Rule 19(i) of the Rules of

1958 on account of conviction of the petitioner by the criminal

court while the proceedings under Rule 16 of the Rules of 1958

were pending.

Submissions have been made that as the conviction of the

petitioner has been stayed by a Co-ordinate Bench of this Court on

04.03.2022, basis on which the order impugned dated 10.08.2021

was passed by the respondents, having come to an end, the order

impugned deserves to be quashed and set-aside.

Submissions have been made that looking to the nature of

proceedings, wherein the allegations against the petitioner for

(4 of 8) [CW-11197/2021]

offence under Section 323 IPC, were not proved and charges

under Section 498-A IPC, which allegations were made after the

petitioner had filed proceedings for divorce, as counter blast and

therefore, the competent authority should have examined the

matter in correct perspective. Further submissions have been

made that as now the conviction of the petitioner has been stayed

by this Court, the petitioner is entitled for reinstatement.

Reliance has been placed on Sher Singh v. State of

Rajasthan & Anr. : 2011(1) WLC 669.

Learned counsel for the respondents vehemently opposed

the submissions. It was submitted that once the petitioner stands

convicted, based on which the order dated 10.08.2021 was passed

by the competent authority, merely because the conviction has

subsequently been stayed, cannot be a reason for reinstatement

of the petitioner as the order staying the conviction of the

petitioner, would not relate back and/or would operate to create

status quo ante and therefore, the petition deserves dismissal.

Reliance has been placed on Ravikant S. Patil v.

Sarvabhouma S. Bagali : (2007) 1 SCC 673 and State of

Rajasthan & Anr. v. Shiv Puri : D.B. Special Appeal Writ

No.695/2019, decided on 04.07.2019.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The dates are not in dispute wherein the petitioner was

convicted by the competent criminal court on 04.02.2021; the

sentence awarded by the trial court was stayed by the Sessions

Court on 10.02.2021; the petitioner was issued a charge-sheet

under Rule 16 of the Rules of 1958 on 21.05.2021 based on his

conviction and the competent authority while exercising powers

(5 of 8) [CW-11197/2021]

under Rule 19(i) of the Rules of 1958 imposed the punishment of

dismissal from service on account of conviction on 10.08.2021.

Thereafter, the conviction of the petitioner came to be stayed by a

Co-ordinate Bench of this Court on 04.03.2022.

The difference between suspension of sentence and stay of

conviction was brought out by the Hon'ble Supreme Court in the

Case of Ravikant S. Patil (supra), wherein it was, inter-alia, laid

down as under :-

"(15) It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction."

One of the requisites, which were indicated by the Hon'ble

Supreme Court in the above judgment was that the Court staying

the conviction must be alive to the consequence of the stay.

A perusal of the order passed by a Co-ordinate Bench while

staying the conviction reveals that the Court has, inter-alia,

noticed and observed as follows :-

"Counsel for the petitioner submits that due to aforesaid decision by the trial court the petitioner will loose his job for none of his fault even if the appeal preferred by him is allowed belatedly. Counsel for the petitioner submits that the petitioner's employer has already proceeded to terminate his service on count of conviction on 10.08.2021."

...... ...... ...... ...... ......

"Counsel for the petitioner submits that, though, the law is broadly against staying of conviction but in rarest of rare case intervention of Court is called for.

Learned Public Prosecutor opposed granting of stay on conviction stating that after all conviction is conviction and

(6 of 8) [CW-11197/2021]

more particularly when a person is discharging pious duty of teaching.

This Court takes note of the fact that the petitioner is offering reasonable compensation to his wife although valid divorce has taken place between them; the sentence awarded is of one year's simple imprisonment under Section 498-A IPC; the offence is of private nature; the petitioner being a government servant; the offence alleged does not attract colour of 'moral turpitude' nor has any bearing on his employment and last but not least taking into consideration judgment of Smt. Pushpa Devi @ Rani (supra) is inclined to allow the stay petition.

Accordingly, the stay petition is allowed and during pendency of this revision petition, the order of conviction dated 04.02.2021 passed by learned Judicial Magistrate, Hanumangarh in Criminal Case No.205/2018 is stayed."

(emphasis added)

A perusal of the above would reveal that it was specifically

brought to the notice of the Court staying the conviction that the

services of the petitioner have already been terminated on

account of conviction on 10.08.2021 and the Court taking into

consideration the nature of submissions made before it passed the

order staying the conviction.

The issue as to whether once the order of dismissal based on

conviction has been passed and the conviction has been stayed

subsequently, whether the same would affect the order of

dismissal already passed has been considered by this Court in

Sunder Lal Bairwal v. State of Rajasthan & Anr. : S.B. Civil Writ

Petition No.13261/2008, decided on 16.02.2010 (at Jaipur Bench),

which was followed in the case of Sher Singh (supra).

In the case of Sher Singh (supra), the petitioner therein was

convicted on 30.09.2003 initially the sentence was suspended on

29.04.2004, whereafter, on another application, the conviction

was stayed on 24.11.2005, however, before passing the order of

stay of conviction, on 14.01.2004 his services were terminated

invoking provisions of Rule 19(i) of the Rules of 1958. The Court

extensively quoted the order of stay of conviction and after

(7 of 8) [CW-11197/2021]

referring to the judgments of the Hon'ble Supreme Court in Shree

Chamundi Mopeds Ltd. v. Church of South India Association :

1992(3) SCC 1 and in the case of Ravikant S. Patil (supra), came

to the conclusion and directed as under :-

"12. However, in the case on hand, since the penalty of removal was inflicted on account of conviction in a criminal case, the operation where of has been stayed by the Court vide order dated 24.11.2005 (Annexure-2), which makes the order of conviction non-operative as held by the Apex Court in the case of Ravikant S. Patil (supra), the order of penalty of termination dated 14.1.2004, in the opinion of this Court, cannot be held to be operative from the day, operation of conviction being stayed (vide order dated 24.11.2005).

13. Consequently, the writ petition stands allowed and the order dated 14.1.2004 (Annexure-1) is quashed and set aside in the light of the order dated 24.11.2005 (Annexure-2) passed in S.B. Criminal Appeal No.1450/2003 and the respondents are directed to reinstate the petitioner in service with national fixation of pay and the petitioner will be entitled for consequential benefits which are admissible under the law w.e.f. 24.11.2005 and not prior thereto.

14. Since this Court has not examined the order of penalty on merits but has only taken note of legal consequence flowing from the order staying operation of the conviction by Court, it will always be open for the respondents to initiate any action permissible under the law. It is also made clear that in case the criminal appeal filed by the petitioner fails, then the respondents are at a liberty to pass proper fresh order but in that event also, the salary and allowances from the date of stay of conviction till the date of decision of the appeal, shall not be recovered."

In view of what has been laid down by a Co-ordinate Bench

of this Court in the case of Sher Singh (supra), the issue as

agitated by learned counsel for the respondents regarding order of

dismissal having been passed before the stay of conviction, is no

more res integra.

So far as judgment cited by learned counsel for the

respondents are concerned as noticed in the case of Ravikant S.

Patil (supra), the Hon'ble Supreme Court distinguished between

the suspension of sentence and stay of conviction and its effect,

which aspect has already been noticed herein-before by this Court

as well as in the case of Sher Singh (supra).

(8 of 8) [CW-11197/2021]

So far as the judgment in the case of Shiv Puri (supra) is

concerned, the Division Bench, in peculiar facts of the case,

wherein the petitioner aspired to join the office of the Public

Prosecutor, despite stay of his conviction for serious offences,

upheld the discretion exercised by the State in not according

appointment, which judgment besides as having been delivered in

the 'peculiar circumstances' by the Division Bench, as the same

relates to appointment and present is a case where the person in

service has been dismissed, would have no application.

In view of the above discussion, following the judgment in

the case of Sher Singh (supra), the petition filed by the petitioner

is allowed. The order dated 10.08.2021 (Annex.21) is quashed

and set-aside in view of order dated 04.03.2022 passed in S.B.

Criminal Revision Petition No.191/2022 and the respondents are

directed to reinstate the petitioner in service with notional fixation

of the pay and the petitioner would be entitled for consequential

benefits, which are admissible under the law w.e.f. 04.03.2022

and not prior thereto.

Since the Court has not examined the order of penalty on

merits, but has only taken note of legal consequence flowing from

the order staying the order of conviction by this Court, it will

always be open for the respondents to initiate any action under

the law. It is also made clear that in case the criminal appeal filed

by the petitioner fails, the respondents would be at liberty to pass

appropriate fresh order.

(ARUN BHANSALI),J Rmathur/-

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