CHAUHAN, J. - (1.) THE instant writ petition has been filed for seeking direction to the respondents to reinstate him and for quashing the order dated 29. 3. 2000 (Annx. 7), by which petitioner stood dismissed from service.
(2.) THE facts and circumstances giving rise to this case are that petitioner was an employee of the Revenue Department of the State of Rajasthan and while he was working in Patwar Mandal, Ludhawari, district Bharatpur, a criminal case for the offences under Sections 7 and 13 (1) (d) and 13 (2) of the Prevention of Corruption Act (for short, "the Act") was registered against him and he was also put under suspension vide order dated 7. 10. 91. As the criminal case remained pending for a long time, the suspension order was revoked vide order dated 23. 3. 93. Subsequently he was again put under suspension. A departmental enquiry was initiated against him by the Disciplinary Authority by serving a charge sheet alongwith statement of allegations on 3. 7. 90, wherein the allegations had been the same as were in the criminal case. Petitioner filed the reply on 6. 8. 93 that enquiry could not be proceeded with till the criminal case was decided. Vide judgment and order dated 4. 9. 96, the learned trial Court convicted the petitioner for the aforesaid offence and sentenced him to undergo rigorous imprisonment for one year with a fine of Rs. 500/- for the offence under Section 7 of the Act and for the offence under Sections 13 (1) (d) and 13 (2) of the Act, a sentence to undergo rigorous imprisonment for two years with a fine of Rs. 1000/- was imposed against him; however, the sentences were ordered to run concurrently. Petitioner preferred Criminal Appeal No. 545/1996 before this Court against the said judgment and order of the trial Court and vide order dated 26. 9. 96 (Annx. 4), the sentence was suspended. Petitioner was reinstated vide order dated 23. 10. 98 after the interim order passed by this Court in the said criminal appeal on 26. 9. 96 but his services have been terminated vide order dated 29. 3. 2000 (Annx. 7), Hence this petition. Mr. Sharma, learned counsel for the petitioner, has submitted that the services of the petitioner could not have been terminated in view of the interim order passed by this Court in 26. 9. 96, by which the order of conviction as well as of sentence passed by the trial Court has been suspended and, thus, the impugned order dated 29. 3. 2000 is illegal and deserves to be quashed. An order passed by any Authority in contravention of the order passed by the Court can be held to be unenforceable in view of the judgment of the Hon'ble Supreme Court in Mulraj vs. Murti Raghunathji Maharaj (1 ). But the question does arise: whether a convict has a right to continue in or to be reinstated in service during the pendency of his appeal etc. ? Under the provisions of the Statutory Rules and the provisions of Article 311 of the Constitution, a person who stands convicted by the competent criminal court, is liable for termination of his services straightway without holding any enquiry. There has been conflicting views on the issue whether in exercise of the power under Section 389 (1) Cr. P. C. , the Appellate Court can suspend the conviction also alongwith suspension of sentence for the reason that there has been controversy whether the words "order appeal against" may be so wide as to include the "conviction" also, as "conviction" has no where been used in the provisions of the Code of Criminal Procedure or any other Rules or Regulations or any other enactment and no provision has been made for suspension of conviction in appeal. (Vide V. Sundararamireddy vs. State (2), and M. Srinivas Reddy vs. State In Rama Narang vs. Ramesh Narang (4), the Hon'ble Apex Court held that the Appellate Court, in exercise of its powers u/sec. 389 (1) Cr. P. C. , is competent not only to suspend the sentence but also the conviction. The Court has observed as under:- "in such a situation, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind under Section 389 (1), it is under an obligation to support its order for reasons to be recorded by it in writing. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction, how can it be expected to assign reasons thereto? No one can be allowed to play hide and seek with the court, he cannot suppress the precise purpose, for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate. " The Hon'ble Apex Court reconsidered the judgment in Rama Narang (supra) in State of Tamil Nadu vs. A. Jaganathan (5), wherein the Hon'ble Apex Court reversed the judgment of the High Court staying the operation of conviction in exercise of the power under Section 389 (1) Cr. P. C. The Court observed as under:- "that being so, the facts of the decision relied on have no application to the present case. This apart, the High Court, though made an observation but did not consider at all the moral conduct of the respondent. . . who was the Police Inspector. . . had been convicted under Sections 392, 218 and 466 I. P. C. while the other respondents, who are also public servant, have been convicted under the provisions of the Prevention of Corruption Act. In such case, the discretionary power to suspend the conviction either under Section 389 or under Section 482 Cr. P. C. should not have been exercised. The order impugned, thus, cannot be sustained. "
(3.) THUS, in view of the aforesaid, a clear picture emerges that the Appellate Court in exceptional case may put the conviction in abeyance alongwith the sentence, but such a power requires to be exercised with great circumspection and caution and for that the applicant must satisfy the Court as what evils are going to visit him if the conviction is not suspended. The Court has to consider the facts properly pleaded by the applicant in a judicious manner and examine whether the facts and circumstances involved in the case warrant such a course. The instant case requires consideration as per the aforesaid settled legal proposition. The first question does arises whether this Court, vide order dated 26. 9. 1996, has in fact suspended the conviction alongwith the sentence? Mr. Sharma was confronted with the pleadings of the case as in the entire proceedings, his case has been only that this Court had suspended the sentence and there is no pleading whatsoever that conviction had also been suspended and whether in such circumstances it was permissible for him to argue that the termination order is in violation of the order of this Court dated 26. 9. 96. In para 6 of the petition, it has been stated as under:- "alongwith the appeal, S. B. Criminal Misc. Application No. 697/96 under Section 389 Cr. P. C. was also submitted for suspension of sentence and the said application was allowed by the Hon'ble Court vide order dated 26. 9. 96 and the sentence awarded to the petitioner was suspended. " ;