Sudhir Agarwal, J. - (1.) The only argument advanced in this petition is that the Petitioner was dismissed on 7.9.2001 pursuant to his conviction in a criminal case under Sec. 302/201 IPC, in crime No. 449/2000 decided on 29.9.01 where against the Petitioner filed an appeal, wherein sentence has been stayed by this Court vide order dated 23.10.2009 in criminal appeal No. 3604 of 2001 and therefore, the authorities ought to have reconsidered the dismissal in view of the above order of conviction.
(2.) This issue is squarely covered by the judgment of this Court in Brahma Dev v/s. Life Insurance Corporation of India, 2006(3) ALJ 710. In that case not only the sentence but even the order of conviction was stayed in appeal and effect thereof was considered. It would be useful to reproduce paragraphs 11 to 16 of the said judgment as under: 11. Now coming to question No. 1, in my view the power Under Regulation 39(4) can be exercised even if the order of conviction and sentence passed by the criminal court is stayed in appeal. A perusal of Regulation 39(4) shows that the factum of conviction on a criminal charge is sufficient to empower the Disciplinary Authority to consider the circumstances of the case and pass such orders as it may deem fit. Whether the order of conviction is operating or not or whether it is executable or not is of not much relevance for exercise of power Under Regulation 39(4) of the Regulations of 1956. 12. A similar question came up for consideration before the Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras v/s. S. Nagoor Meera AIR 1995 Supreme Court, 1364. The Apex Court considered the pari materia provisions contained in Article 311(2), second proviso, Clause (a) of the Constitution of India and said that what is relevant for exercise of power thereunder is the conduct which has led to conviction in criminal charge and not the conviction itself. There is no question of suspending the conduct of an employee when he has been convicted and in any appeal, the same is stayed. Since the Disciplinary Authority has to exercise power considering the conduct of the employee, which has led to his conviction on a criminal charge and since conduct is not stayed, therefore, even if the conviction has been stayed in appeal, the power can be exercised by the Disciplinary Authority on the basis of the conduct which has led to conviction on criminal charge. 13. The relevant observations of the Apex Court as contained in para 8 are reproduced as under: 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 laid 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. 14. It has also been held by the Apex Court in the same judgment that in cases where an employee is convicted on a criminal charge, the, appropriate course would be in all such cases to take action and not to wait for the result of the appeal or revision as the case may be. It is always open to the authorities to revise its order and reinstate the Government Servant with all the benefit if in appeal or other proceedings the Government Servant accused is acquitted. 15. Similar view has been taken by a Division Bench of this Court in the case of Mohal Lal v/s. State of U.P., 1998 (78) FLR 987 :, 1998 All LJ 987 and relying on Nagoor Meera Case : AIR 1995 SC 1364 (supra) this Court in para 7 held as under: 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 and 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. In view of this authoritative prounouncement, the order dismissing the Appellant from service cannot be set aside on the ground that the operation of the judgment by which the Appellant had been convicted Under Sec. 304, Part -I IPC has been stayed in the Criminal Appeal preferred by him. 16. In the circumstances, it cannot be held that the Respondents could not have taken recourse to Regulation 39(4) of regulation of 1956 considering the conduct led to conviction of a criminal charge. The submission of the learned Counsel for the Petitioner, therefore, is rejected.
(3.) Since the case is squarely covered by the law laid down by the aforesaid judgment, I find no merit in this submission.;