* THE HONOURABLE SRI JUSTICE V. ESWARAIAH AND THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR + WRIT PETITION Nos: 8000, 10742, 11154, 11977, 12883, 13904, 16005, 17004 and 4608 of 2009; 3087, 3313, 4280, 4528, 4564, 6661, 9386, 9956, 12076, 14006, 15659, 16164, 16857, 23127, 23797, 23926, 24969 and 28270 of 2008; 598, 25608, 26773, 26965 and 27116 of 2007 % Dated 17.11.2009 # The State of A.P. represented by its Principal Secretary to Government, Municipal Administration and Urban Development Department, A.P., Secretariat, Hyderabad and others. …PETITIONERS VERSUS $ P. Rajasekhar and others. …RESPONDENTS ! Counsel for the Petitioners: GP FOR SERVICES I ^Counsel for the Respondents: MR. D.LINGA RAO MR. K. SUBBA RAO MR. P.V. RAMANA MR. D. BALA KISHAN RAO MR. V. VENUGOPAL RAO <GIST: >HEAD NOTE: ? Cases referred 1) (1995) 3 SCC 377 2) (1997) 11 SCC 383 3) (1997) 7 SCC 514 4) (2001) 6 SCC 584 5) 1997 SCC (L&S) 1766 6) (2007) 10 SCC 385 7) 2006 (6) ALT 771 (DB) 8) 2008 (3) ALT 612 9) (2006) 5 SCC 446 10) 1999 (4) ALD 39(DB) 11) 2004 (4) Supreme 537 = 2004 (11) SCC 26 12) (1985) 2 SCC 358 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEETH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos: 8000, 10742, 11154, 11977, 12883, 13904, 16005, 17004 and 4608 of 2009; 3087, 3313, 4280, 4528, 4564, 6661, 9386, 9956, 12076, 14006, 15659, 16164, 16857, 23127, 23797, 23926, 24969 and 28270 of 2008; 598, 25608, 26773, 26965 and 27116 of 2007 BETWEEN: The State of A.P. represented by its Principal Secretary to Government, Municipal Administration and Urban Development Department, A.P., Secretariat, Hyderabad and others. …PETITIONERS AND P. Rajasekhar and others. …RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES I Counsel for the Respondents: MR. D.LINGA RAO MR. K. SUBBA RAO MR. P.V. RAMANA MR. D. BALA KISHAN RAO MR. V. VENUGOPAL RAO The Court made the following: COMMON ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) In this batch of cases, the question involved is regarding the authority of the State/Disciplinary Authority to impose penalty on a Government servant, based upon his conduct leading to his conviction on a criminal charge, as provided under Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (hereinafter referred to as CCA Rules). The said issue is no more res integra in view of the pronouncements of the Supreme Court in DY. DIRECTOR OF COLLEGIATE EDUCATION (ADMN.) v. S. NAGOOR MEERA[1]; UNION OF INDIA v. V.K. BHASKAR[2]; UNION OF INDIA v. RAMESH KUMAR[3]; K.C. SAREEN v. CBI[4]; HARYANA STATE COOP. SUPPLY & MARKETING FEDERATION LTD. v. N.K. SHARMA[5]; NOIDA ENTREPRENEURS ASSN. v. NOIDA[6]; apart from a Division Bench judgment of this Court in MUNICIPAL CORPORATION OF GUNTUR v. B. SYAMALA KUMARI[7]. 2. One such matter involving the same issue was decided by the Andhra Pradesh Administrative Tribunal (APAT) by order dated 19.04.2007 in O.A.No.2206 of 2007 whereunder the order of the State in G.O.Ms.No.91 Finance (ADM-III) Department dated 16.04.2007 dismissing the employee from service by invoking Rule 25 (1) of the Rules referred to above was upheld. The said employee preferred WP.No.16102 of 2007 before this Court. The said writ petition was allowed by another Division Bench by order dated 07.08.2007 holding, inter alia, that though the petitioner was dismissed in view of his conviction in C.C.No.34 of 2002 on the file of the Special Judge for SPE and ACB cases, City Civil Court, Hyderabad, a criminal appeal being Crl.A.No.371of 2007 was filed against the said judgment before this Court and the sentence of imprisonment imposed by the learned Special Judge was suspended by this Court vide Crl.A.MP.No.497 of 2007 dated 29.03.2007. This Court, therefore, held that in view of the pendency of the criminal appeal as well as the suspension of sentence imposed by the ACB Court, the judgment passed by the ACB Court has not become final, therefore, passing of G.O.MS.No.91 at this stage amounts to violation of the special procedure as laid down under Rule 25 of the CCA Rules and thereby the same is hit by principles of subjudice and consequently the order of the tribunal as well as the G.O.Ms.No.91 dated 16.04.2007 referred to above was set aside. Neither the petitioner nor the respondent appears to have brought to the notice of the aforesaid Division Bench; the decisions of the Supreme Court referred to above. 3. Based on the aforesaid pronouncement of the Division Bench in the aforesaid WP.No.16102 of 2007, the APAT has allowed several of the OA’s involved in this batch and set aside the order of dismissal by holding that in view of the pendency of the criminal appeal and the suspension of sentence, the order of dismissal is not sustainable. Consequently, while setting aside the said dismissal order the tribunal directed the State to reinduct the applicants forthwith with a liberty to pass appropriate orders leaving it open for Government to keep the applicants under suspension under Rule 8(2)(b) of the CCA Rules. The aforesaid orders are questioned by the State in this batch of writ petitions. 4. For the purpose of appreciating the contentions and the issue involved, as briefly referred to above, the facts in WP.No.8000 of 2009 are as under: (a) The respondent herein was working as a Bill Collector in Nizamabad Municipal Corporation. He was involved in ACB trap case out of which C.C.No.41 of 2003 was registered with the Principal Special Judge for SPE and ACB Cases Hyderabad. Under judgment dated 17.03.2008 the respondent was convicted and against the said conviction he preferred an appeal before this Court being Crl.A.No.469 of 2008. Pending the said criminal appeal by orders of this Court dated 10.04.2008 in Crl.A.MP.No.695 of 2008, the sentence imposed on the respondent in C.C.No.41 of 2003 was suspended. However, in view of the conviction of the respondent, the petitioners vide proceedings bearing No.Rc.A3/2347/2000 dated 28.05.2008 passed orders of dismissal against the respondent. Questioning the said orders, the respondent filed O.A.No.4088 of 2008 before APAT. The respondent relied upon the decision of this Court in WP.No.16102 of 2007 dated 27.08.2008 referred to above by contending that he is also similarly placed and the dismissal order is liable to be set aside following the said decision. (b) The petitioners resisted the contention of the respondent by placing reliance upon the decision in Nagoor Meera’s case (1 supra) as well as Ramesh Kumar’s case (3 supra) and also relied upon another unreported decision of this Court in WP.No.13421 of 2006 and batch dated 27.09.2006 in support of the contention that disciplinary authority need not wait till the criminal appeal preferred by the Government servant is disposed of and notwithstanding the pendency of the appeal and suspension of the sentence, the disciplinary authority can pass an order of dismissal against the convicted employee. (c) The tribunal, however, has followed the decision of this Court in WP.No.16102 of 2007 referred to above and set aside the order of dismissal passed against the respondent with liberty to the petitioners to invoke Rule 8(2)(b) of the CCA Rules, if they so desire, whereby the petitioners can suspend the Government employee pending appeal. The said order, as stated above, is under challenge in this writ petition. 5. We have heard the learned Government Pleader for Services I in support of the writ petitioners and M/s. D. Linga Rao, Mr. K. Subba Rao, Mr. P.V. Ramana, Mr. D. Balal Kishan Rao and Mr. V. Venugopal Rao, Advcoates, the learned counsel appearing for the respondents in this batch of cases. 6. As mentioned in the opening paragraph, since the issue is already covered by the decisions of the Supreme Court and a reported decision of a Division Bench of this Court, the said Division Bench has elaborately extracted all the relevant rules relating to the issue and has also discussed the ratio of the decisions of the Supreme Court referred to above. We, therefore, do not propose to burden this judgment with all the said details all over again. We may also mention that the decision of another Division Bench of this Court in WP.No.16102 of 2007 was also cited before yet another Division Bench in CHIEF RATIONING OFFICER v. T. V. RAMA SHARMA[8], which also considered the self-same issue as we are now concerned with. The said Division Bench was of the view that had the various decisions of the Supreme Court and the reported decision of the Division Bench of this court were brought to the notice of the later Division Bench which decided WP.No.16102 of 2007, the decision of the later Division Bench would have been otherwise. Their Lordships, therefore, allowed the writ petition by applying the ratio of Nagoor Meera’s and Sareen’s case referred to above and upheld the order of dismissal passed against the Government servant. 7. The said Division Bench judgment in Chief Rationing Officer’s case (8 supra) was not brought to the notice of APAT in the present batch of cases leading to the impugned judgments being passed by the tribunal by following the decision in WP.No.16102 of 2007. 8. We would briefly indicate the Rule, which empowers the disciplinary authority to impose punishment on the Government servant based upon his conduct leading to his conviction in a criminal case. Rule 25 of the CCA Rules is extracted below: Rule 25. Special procedure in certain cases: - Notwithstanding anything contained in Rule 20 to Rule 24 – (i) Where penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) Where the disciplinary authority is satisfied for reasons to be recorded it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or (iii) Where the Government is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule. [Provided further that no such consultation with the Commission is necessary before any orders are made in any case under clause (i) of this rule.] Rule 8(2) (b) of the CCA Rules is as follows: “Rule 8. Suspension:- (1)… (2) A Government servant shall be deemed to have been placed under suspension by an order of the authority competent to place him under suspension – (a)… (b) with effect from the date of his conviction if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.” Rule 9 provides for minor and major penalties and the relevant portions of Rule 9 (ix) and (x) together with proviso are as follows: Rule 9. Penalties: - (i) to (viii)… (ix) removal from service which shall not be a disqualification for future employment under the Government; (x) dismissal from service which shall ordinarily be a disqualification for future employment under the Government: Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in [clause (ix) or clause (x)] shall be imposed; Provided further that in any exceptional case and for special reasons to be recorded in writing, any other penalty may be imposed.” 9. The aforesaid Rule 25 of the CCA Rules originally contained the proviso after clause (iii) which was as follows: “Provided that the Government servant may be given an opportunity of making representation, on the penalty proposed to be imposed before any order is made in a case under clause (ii)” The second proviso thereof is as follows: “Provided further that the commission shall be consulted, where such consultation is necessary, before any orders are made in any case under these Rules.” Both the aforesaid provisos were amended and vide G.O.Rt.No.6421 GA (Ser-C) Department dated 29.12.1993 the first proviso was deleted and vide further amendment under G.O.Ms.No.240 GA (Ser-C) Department dated 14.08.2003 the second proviso shown above was added, which says as follows: “Provided further that no such consultation with the commission is necessary before any orders are made under clause (i) of this Rule.” 10. Article 311 (2) of the Constitution of India provides as follows: “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.- (1)… (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to given such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply – (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. 11. In Nagoor Meera’s case (1 supra) the Supreme Court held as follows: “…The tribunal seems to be of the opinion that until the appeal against conviction is disposed of, action under clause (a) of 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…” “What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge…Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service…” 12. In V. K. Bhaskar’s case (2 supra) the Supreme Court disapproved the view of the tribunal in holding that the respondent could not be dismissed invoking the provisions of Rule 19(i) because the appeal filed by him against conviction and sentence is pending in the High Court. 13. In Ramesh Kumar’s case (3 supra) the Supreme Court held at para 6 as follows: “6. A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the Appellate Court the order of dismissal based on conviction stands obliterated and dismissed Govt. servant has to be treated under suspension till disposal of appeal by the appellate Court. The rules also do not provide the Disciplinary Authority to await disposal of the appeal by the Appellate Court filed by a government servant for taking action against him on the ground of misconduct which has led to his conviction by a competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent Court of law has not lost its string merely because a criminal appeal was filed by the respondent against his conviction and the Appellate Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate Court has power to suspend the execution of sentence and to release an accused on bail. When the appellate Court suspends the execution of sentence, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 CrPC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellate Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court.” 14. I n HARYANA STATE COOP. SUPPLY & MARKETING FEDERATION LTD.’s case (5 supra) following the ration of Nagoor Meera’s case (1 supra) the Supreme Court held as follows: “2. We have heard the learned counsel for the parties. The High Court was in error in holding that since revision petition was pending the appellant could not take action against the respondent employee under Rule 19(3) of the Rules on the basis of his conviction for offences involving moral turpitude. The fact that the criminal revision petition had been filed by the respondent employee and the same was pending in the High Court does not mean that the appellant was precluded from taking action under Rule 19(3) of the Rules. This matter has been examined recently by this court in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera [(1995) 3 SCC 377]. In that case the Court has considered clause (a) of the proviso to Article 311(2) of the Constitution which prescribes for dispensing with the requirement of giving reasonable opportunity to an employee where the employee is dismissed or removed or reduced in rank on the ground of conduct which hassled to his conviction on a criminal charge. The Court has held that merely because an appeal has been filed against the conviction by the employee does not mean that the conviction is suspended during the pendency of the appeal and that suspension of sentence has to be distinguished from suspension of conviction and that it is open to the competent authority to proceed against the government servant during the pendency of the appeal. It has, however, been laid down that if the government servant is later acquitted the order can always be revised and the government servant can be reinstated andhe will be entitled to all the benefits to which he would have been entitled to had he continued the service. The same principle is applicable in the matter of exercise of powers under Rule 19(3) of the Rules because the said provision is akin to the provision in clause (a) of the proviso to Article 311(2). We are, therefore, unable to uphold the impugned judgment of the High Court.” 15. Lastly in K.C. Sareen’s case (4 supra) the Supreme Court held in paras 12 and 13 as follows: “12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic policy. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction. 13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.” 16. The Division Bench of this Court in an elaborate judgment in Syamala’s case (7 supra) after considering all the decision referred to above held in Para 30 as follows: “30. Suspension of the sentence imposed by the criminal Court, the Criminal Appeal preferred against the criminal Court judgment, neither necessitates the government servant being continued under suspension nor does it preclude the Disciplinary Authority from exercising his discretion under clause (a) of the second proviso to Article 311(2) or Rule 25(i) of the A.P.C.S. (C.C&A)