- (1.)THE petitioner was working as a Male Nursing Assistant in the Government Stanley Hospital. He filed O.A.No.7094 of 2000 before the Tamil Nadu Administrative Tribunal seeking to set aside the order dated 01.12.1999 passed by the second respondent - Dean, Government Stanley Hospital.
(2.)BY the impugned order, the petitioner was removed from service on account of his conviction by the Sessions Court, Chennai in S.C.No.125 of 1994 dated 29.09.1994. The petitioner was shown as Accused No.2 in the Sessions Trial and the Sessions Court convicted the petitioner in terms of Section 307 read with 34 IPC and he was also sentenced to five years rigorous imprisonment.
The petitioner was given a show cause notice asking why he should not be removed from service. The contention of the petitioner was that he had preferred appeal in Criminal Appeal No.568 of 1994 and in view of the pendency of the appeal, the punishment need not be imposed on him. However, by order dated 01.12.1999, the petitioner was removed from service. Challenging the same, the petitioner filed appeal before the first respondent. The appeal was also rejected by the first respondent by order dated 27.11.2000 according to the counter affidavit filed by the respondents.

The contention raised by the petitioner before the Tribunal was that in view of the pendency of the criminal appeal, he cannot be removed from service and the conviction by the trial court had nothing to do with the employment and the hospital and no enquiry was conducted in terms of the penalty imposed on him.

(3.)ON notice from the Tribunal, the second respondent has filed a counter affidavit dated 24.07.2001. In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.45174 of 2006.
The contentions raised by the petitioner are no longer res integra. In identical circumstances, the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras Vs. S.Nagoor Meera reported in 1995 (3) SCC 377, in paragraphs 8 to 10 held as follows:-

"8. We need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.

9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. 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 government servant-accused 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. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Dass V. Union of India (SCC p.362 para 7)

"Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service 'on the ground of conduct which has led to his conviction on a criminal charge'. But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly."
10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellant or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice".