IGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) N0. 4254 0f 2007 PETITIONER : Rakesh Shrivastava, son of Shri Gorelal Shrivastava, aged about 35 years, permanent resident of Bagbahra, P.S. Bagbahra, District Mahasamund (CG). VERSUS RESPONDENTS 1. State of Chhattisgarh, through the Secretary, Ministry of Home, DKS Bhawan, Raipur. 2. The Director General of Police, Police Headquarters, Raipur. 3. The Superintendent of Police, Kabirdham. (WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA) (SB: Hon'ble Mr. Satish K. Agnihotri, J.) Present : Shri B.P. Sharma, Advocate for the petitioner. Smt. Smita Ghai, Panel Lawyer for the State/respondents. ORAL ORDER (Passed on 28‘“ of March, 2008) 1. The petitioner impugns the validity of the order dated 01.05.07 (Annexure P/7) whereby, the services of the petitioner was terminated in exercise of power under rule 19 (l) of Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 read with regulation 238 of the Police Regulations. 2. The facts in brief, necessary for decision of the case, are that in the intervening night of 22nd and 23rd May, 2002, one person namely Baldau died in the police custody in presence of the petitioner along with other Constables. The petitioner was, thereafter, charge-sheeted and in the Trial Court, the petitioner was convicted for an offence punishable under sections 304 Part 11/149, 330/149 and ‘ 348/149 and 201 of the Indian Penal Code, and was convicted for two years R.I. and fine of Rs. 1000/— by judgment dated 28.02.2005 passed by the Additional Sessions Judge (F.T.C.), Kabeerdham (Kawardha) (CG). 3. The petitioner preferred an appeal to the High Court against the judgment of conviction and sentences dated 28.02.2005. The High Court, in Criminal Appeal No. 273/05, filed by the petitioner, by order dated 31.03.2005 (Annexure P/2), suspended the sentences awarded to the petitioner and he was directed to be H released on bail. Consequently, the earlier order of termination has been revoked and the petitioner was called upon to report his duty in the office of Superintendent of Police, Kabirdham vide order dated 02.06.05 (Annexure P/4). . Thereafter, a show cause notice dated 02.09.06 (Annexure P/5) was issued to the petitioner holding that, during the pendency of Criminal Appeal since the petitioner has already been convicted for an offence punishable under sections 304 Part 11/149,330/149, 348/149, 201 of the Indian Penal Code, the department can proceed departmentally for taking appropriate action. The petitioner has flled his reply to the show cause notice on 10.09.06. Finally, the services of the petitioner was terminated by the impugned order dated 01.05.07, under the provisions of rule 19 (1) of Chhattisgarh Civil Services (Classification, Control and Appeal), rules, 1966 read with regulation 238 of the Police Regulations, on the basis of his conviction by the Trial Court for having committed offences. . The petitioner has filed this petition seeking quashing of the impugned termination order dated 01.05.07 on the ground that appeal is pending consideration, therefore, the order of termination should not have been passed. . Position of law is very clear that if a government servant has been convicted and sentenced to rigorous imprisonment.(for short ‘R.I.’), he shall be dismissed from service. Mere filing of an appeal does not stay the conviction of sentence. Rule 19 (1) of Chhattisgarh Civil Services (Classification, Control and Appeal), Rules 1966 reads as under: “19. Special Procedure in certain cases — Notwithstanding anything contained in rule 14 to rule 18:- (i). where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, 0r (ii). where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or 3 1 o9 (iii). where the Governor 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.” 7. It is well settled that on a judgment of conviction against which an appeal or revision is flled, an employer or Appropriate Government, as the case may be, need not wait for taking an action against convicted employee, till the appeal or revision is decided against the conviction. However, if the conviction is set aside subsequently in appeal or otherwise, the order of dismissal will cease to have effect and the employee would be entitled to be reinstated and back wages from the date of dismissal till he is properly dismissed in compliance with Article 311 (2) of the Constitution or relevant service rules. The employee could not seek the relief, that till decision of the Criminal Appeal no action against him on the show cause notice, issued under rule 19 be taken. (s 8. Regulation 238 of the M.P. Police Regulations, which have been adapted by the State of Chhattisgarh, reads as under: A “238. Conviction in criminal offence- When a police officer has been sentenced by the Trial Court to rigorous imprisonment upon conviction of a criminal offence, he shall be dismissed from the force: Provided that if his offence was not of a serious or disgraceful nature, and the imprisonment has not been so prolonged as to be of itself degrading, it shall be in the discretion of the Inspector-General to allow his retention in the force.” 9. Bare perusal of the provisions of law as stated above, it is well established that once the petitioner, being a member of police force, is convicted for an offence committed by him and sentenced to R.I., the police offlcer shall be dismissed from the service. Pendency of appeal in the High Court may not come in the way of dismissal from service and the order impugned herein is just and proper and needs no interference. In the event, petitioner succeeds in criminal appeal, he may take recourse to other remedy which may be available to him, under the provisions of law. 10. In view of the foregoing, the appeal is dismissed, summarily. Sd/- l t Satish K. Agnihotri Judge r