* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + WRIT PETITION NO.12234 of 2008 % 12-02-2009 # Ch.Gopala Rao. PETITIONER VS. $ 1. Southern Power Distribution Co. of A.P. Limited, Corporation office, Tirupati, rep. by its Chairman and Managing Director & others. ..RESPONDENTS ! COUNSEL FOR PETITIONER: MR.M. JNARDHAN RAO ^COUNSEL FOR RESPONDENT Nos.1 TO 3: MR. P.R.BALARAMI REDDY (SC FOR AP TRANSCO). COUNSEL FOR RESPONDENT NO.4: MR. V.RAVI KIRAN (SC FOR SPL.PP FOR ACB) < Gist: > Head Note: ? CITATIONS: 1) 2001(5) SUPREME 437 2) 2006(6) ALT 771 (DB) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWELFTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 12234 of 2008 Between: Ch. Gopala Rao, S/o. Ramalingam, R/o. D.No.7-17-95, 4th lane, Srinagar , Guntur. ..... PETITIONER AND 1 Southern Power Distribution Company of A.P., Limited Corporate office, Tirupati, rep by its Chairman and Managing Director. 2 Southern Power Distribution Company of A.P., Limited Tirupati, rep by its Chief General Manager/HRD. 3 The superintending Engineer, Operation, APSPDCL., Guntur. 4 The Director General, ACB., Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of mandamus or any other appropriate writ or writs, order or direction declaring the proceedings dt. 27.5.2008 in Memo No.CGM(HRD)/DS/AS-III/PO(DC)/F7-VJA/D.NO.892/08 on the file of the 1st respondents herein as illegal, arbitrary, unconstitutional , without jurisdiction and violative of the provisions of APSEB Employees (D&A) Regulation ; Award costs. Counsel for the Petitioner: MR. M.JANARDHAN RAO Counsel for the Respondent Nos.1 to 3: MR. P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : ORDER: Petitioner Ch.Gopala Rao worked as Assistant Engineer, APSPDCL, Musunur, Krishna District, from 18.08.2000 to 08.03.2003. He was trapped by A.C.B. Officials for receiving illegal gratification. He came to be placed under suspension on 07.03.2003. Thereafter, the authorities revoked his suspension and posted him to the control of the Superintending Engineer/Operation/SPSPDCL/Guntur. The criminal case against the petitioner went on trail and ultimately, the petitioner came to be convicted for the offences under Section 7 and 13(i)(d) r/w.13(2) of the Prevention of Corruption Act, 1988, and sentenced to suffer rigorous imprisonment for one year and pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 7 of the Prevention of Corruption Act, 1988, and rigorous imprisonment for one year and pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 13(i)(d) r/w.13(2) of the Prevention of Corruption Act, 1988, by judgment dated 08.04.2008 in C.C.No.7 of 2004 on the file of the Special Judge for SPE & ACB Cases, Vijayawada. Consequent on his conviction, the Chairman and Managing Director, Southern Power Distribution Company of A.P. Limited-1st respondent issued proceedings, dt 27.05.2008 vide Memo.No.CGM(HRD)/DS/AS- III/PO(DC)/F7-VJA/D.No.892/08, dismissing the petitioner from service. The petitioner filed Criminal Appeal No.487 of 2008 assailing the judgment of conviction and sentence passed in C.C.No.7 of 2004 secured interim suspension of sentence of imprisonment imposed for the offences under Sections 7, 13(i)(d) r/w.13(2) of the Prevention of Corruption Act, 1988, vide order dated 18.04.2008 passed in Crl.A.M.P.No.741 of 2008. The order of dismissal is under challenge in this writ petition. It is the contention of the petitioner that since the sentence has been suspended by the appellate Court, the conviction recorded by the trial Court cannot be based for dismissing him from service. For better understanding of the grievance of the petitioner, I deem it appropriate to refer paras.7 and 8 of the affidavit filed in support of the writ petition and they are as follows: “7. I further submit that the disciplinary authority based on the conviction, cannot pass order of removal in routine manner in each and every case. It is incumbent on the disciplinary authority to assess the situation as per the merits of each case. But, without doing so, based on the instructions of the 3rd respondent herein, I am removed from service. I submit that there is no independent finding by the 1st respondent, with regard to desirability or otherwise of my continuance in service. But in a routine manner, I am dismissed from service. I submit that in case I succeed in the appeal, it would be incumbent on the part of the respondent Company to pay me the entire arrears of salary and other attendant benefits accrued to me. I submit that the trial Court has convicted me erroneously and the same is subject matter of the appeal before this Hon’ble Court. 8. I submit that based on the memo issued by 4th respondent herein, directing to dismiss me from service, the 1st respondent herein has passed the impugned order. I submit that the disciplinary authority i.e., 2nd respondent herein has taken the decision based on the letter of 4th respondent herein and thereby the discretionary power that is available with the disciplinary authority is taken away on the advice given by some other authority. The facts and circumstances of the case clearly disclose that the 2nd respondent has not exercised his discretionary power while issuing the impugned order and acted at the behest of 4th respondent. In other words, the 1st respondent surrendered his jurisdiction to the 4th respondent and acted accordingly. The Hon’ble Supreme Court, in various decisions, has held that the disciplinary authority alone shall exercise power while dealing with disciplinary matters and imposing punishment. It was also held by Hon’ble Supreme Court that any higher authority or other authority including Vigilance Commissioner cannot dictate terms to the disciplinary authority. The Hon’ble Supreme Court, in a case between Union of India Vs. Tulsiram Patel, reported in 1985(3) SCC 398 has held that where a disciplinary authority comes to know that a Government Servant has been convicted for a criminal charge, it must consider whether his conduct which has lead to his conviction was such as warrants imposition of punishment and if so, what that punishment should be. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned Government Servant. The Disciplinary Authority has to pass the requisite order on considering the entire matter. In view of the above view taken by Hon’ble Supreme Court, the impugned order is liable to be set aside inasmuch as issuing of impugned order by the 1st respondent has not only taken away his discretionary power but also the substantive right of appeal and revision available to me. It is also pertinent to mention here that the 4th respondent herein is not authorized to advise the 1st respondent to impose major penalty of dismissal from service which is contrary to the law laid down by Hon’ble Supreme Court. Had the 2nd respondent taken an independent decision on his own, the decision could have been otherwise. Therefore, looking from any angle, the impugned order is liable to be set aside as being illegal, arbitrary and violative of Arts.14 & 16 of the Constitution of India. If the impugned order is allowed to stand, it would occasion failure of justice. I submit that I have rendered service in the department, the impugned order is issued without application of mind.” 2. Rule Nisi came to be issued on 04.09.2008. 3. 2nd respondent filed counter-affidavit. It is stated in the counter- affidavit that the petitioner was kept under suspension from the date of his trap vide Memo.No.SE/O/VJA/Adm/U1/ FAE’s/D.No.580/2003, dated 07.03.2003. He was convicted in C.C.No.7 of 2004 by the Court of the Special Judge for SPE & ACB Cases, Vijayawada, on 08.04.2008. The Additional Secretary to Government, Energy Department, Hyderabad, has advised vide letter No.1195/Vig.A1/03-08, dated 26.05.2008 to dismiss the petitioner from service in view of the conviction by the trial Court. Misconduct leading to conviction on a criminal charge constitutes grave misconduct on the part of the petitioner and accordingly, he is dismissed from service as stipulated in G.O.Ms.No.2 Gen. Admn.(Ser.C) Department, dated 04.01.1999 adopted by A.P. Transco vide T.O.O. (Addl.Secy.) Ms.No.214, dated 11.11.2002. It is further stated in the counter-affidavit that the provisions of sub-regulations (1) and (2) of Regulation 10 of A.P. Transco Employees Discipline and Appeal Regulations shall not apply where it is proposed to impose on member of a service any of the penalties mentioned in Regulation 5 on the ground of conduct which has led to his conviction on a criminal charge where the authority competent to impose the penalty is satisfied that for reasons to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry or give such opportunity. What is suspended by the High Court is only sentence and not the conviction of the petitioner and therefore, the order of dismissal consequent on conviction of the petitioner is legal and proper and the same is not liable to be set aside. 4. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the respondents 1 to 3. 5. Learned counsel appearing for the petitioner submits that consequent on the suspension of sentence imposed on the petitioner by the trial Court, the conviction remains inoperative and inasmuch as the validity of the conviction is required to be examined by the appellate Court in Criminal Appeal No.487 of 2008. The learned counsel further submits that in similar circumstances, learned single Judge of this Court granted interim suspension of the dismissal order in WPMP NO.27789 of 2007 in WP No.21429 of 2007. Learned counsel also placed reliance on the Division Bench judgment of this Court in W.A.No.1424 of 2008, wherein the Division Bench of this Court refused to interfere with the interim suspension granted in W.P.No.11750 of 2008. 6. Per contra, learned Standing Counsel appearing for the respondents 1 to 3 submits that the delinquent government employee, who has been convicted in a criminal case on a charge of corruption, has no right to continue in service pending criminal appeal even though the sentence is suspended. In support of his submission, reliance has been placed on the judgment of Supreme Court in K.C.Sareen v. C.B.I., Chandigarh[1] and a Division Bench judgment of this Court in Municipal Corporation of Guntur v. B.Syamala Kumari[2]. 7. The issue fell for consideration in the Municipal Corporation of Guntur v. B.Syamala Kumari’s case (2 supra) is whether a government servant, on his conviction in a criminal case, is automatically liable to be dismissed from service and whether on the sentence being suspended in appeal he is required to be continued in service/under suspension etc. The Division Bench, after referring the judgment of the Supreme Court in K.C.Sareen v. C.B.I., Chandigarh’s case (1 supra), observed as hereunder: “Before parting with these batch of cases, we must record our concern regarding the interlocutory orders being passed by the Tribunal, in these matters, without considering the adverse consequences which such orders may have on public administration. The Tribunal ought not, as a matter of course, grant interim stay of the orders of dismissal, or for that matter any other penalty imposed by the Disciplinary Authority under Rule 25(i) of the A.P.C.S. (C.C.& A) Rules. Directing a government servant to be continued in service, pending disposal of the O.A., though the order of dismissal/removal/compulsory retirement was passed on his conviction on a criminal charge of corruption, misappropriation or of such similar acts, is against larger public interest. While the damage suffered by the delinquent government servant can be adequately compensated later, when final orders are passed setting aside an illegal order of dismissal, an interim order, pending disposal of the O.A., directing that such a government servant be continued in service would seriously impair the integrity and efficiency of Public Service and demoralize other honest government servants. The incalculable harm, which such orders can cause, if eventually the O.A. was to be dismissed, cannot be over-emphasized. The Tribunal must exercise caution while passing interlocutory orders of this nature.” 8. 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. When a public servant was 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 demoralizing 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 fall out 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. 9. I am of the view that mere sentence of suspension of imprisonment does not take out the stigma of conviction of the petitioner. Suspension of sentence of imprisonment imposed by the criminal court in the criminal appeal preferred against the judgment of the trial court neither necessitated the government servant being continued under suspension nor does it preclude the disciplinary authority from exercising its discretion under clause (a) of the second proviso to Article 311(2) of the Constitution of India or Rule 25(i) of the A.P.C.S. (C.C.&A) Rules, 1991, to impose any penalty which it deems fit including dismissal from service. Hence, I find that the order passed by the 1st respondent dismissing the petitioner from service consequent on the conviction of the petitioner in a criminal case cannot be faulted. 10. Accordingly, the writ petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:12th February, 2009. Note: L.R.Copy to be marked. B/O cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KSRANI} [1] 2001(5) Supreme 437 [2] 2006(6) ALT 771 (DB)