B.S.Chauhan, J. - (1.) This Reference has been made by the learned Single Judge not agreeing with the judgment in the case of Sadanand Mishra v. State of U.P. and Anr., (2000) 1 AWC 180 , wherein it has been held that in case the Appellate/Revisional Court stays the operation of conviction and sentence in exercise of its powers under Sections 389 or 482 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.), his conviction could not be a ground for removal from service.
(2.) The learned Single Judge has referred to the following questions. i)Whether under Section 389 (1) Cr.P.C. it is open to the appellate Court to suspend only execution; whether it be execution of a sentence or execution of order; or ii)Whether the Appellate Court can suspend the entire order appealed against. The facts and circumstances of the case giving rise to the said Reference are that petitioner who was working as a Class IV employee in the Trade Tax Department of the State of U.P. was prosecuted in a criminal case and convicted vide judgment and order dated 14.2.2002 for the offences pubishable under Sections 302/325/323 I.P.C. On being convicted he was removed from service by the State Authority vide order dated 27.3.2002 in exercise of its powers under Article 311 (2) of the Constitution. The petitioner was granted bail by this court sitting in appeal, staying the operation of execution of the sentence vide order dated 29.8.2002. On being enlarged on bail he filed representation for reinstatement which was rejected vide order dated 23.9.2002. Being aggrieved, he filed the writ petition submitting that once this Court had stayed the operation of the sentence, he should have been reinstated. It appears that during the course of the argument it has been submitted before the learned Single Judge that powers of this Court under Section 389 Cr.P.C. are unfettered and the Appellate Court can stay the operation of conviction or order appealed against also. Hence this Reference.
(3.) The issue involved herein is of great importance. The provisions of Article 311 (2) of the Constitution of India or any analogous statutory rules empowers the state to terminate the services if the conduct of the employee has lead to his conviction on a criminal charge.;