IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 9285 of 2009(E) ------------------------- PETITIONER(S): ----------------- 1. RAMACHANDRAN.V. AGED 54 YEARS, THOPPIL HOUSE, PERUMPAZHUTHOOR DESOM, NEYYATTINKARA, WORKING AS ASI, ARYANCODE POLICE STATION. 2. S. ABDUL RAHIM, AGED 57 YEARS, S/O. SAIDUMUHAMMED, ASIM MANZIL, CHERUTHALAVILAKAM BALARAMAPURAM, THIRUVANANTHAPURAM. WORKING AS ASI, KOLLAM EAST POLICE STATION. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENT(S): ------------------- 1. THE GOVERNMENT OF KERALA REP. BY SECRETARY, HOME DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF POLICE(RURAL), THIRUVANATHAPURAM. GOVERNMENT PLEADER SRI.ANTONY MUKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009, ALONG WITH WPC NO. 9795 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.9285/09 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE ORDER NO.H1/27898/08 DT 16.3.2009 ISSUED BY THE 3RD RESPONDENT. EXT.P2: TRUE COPY OF THE SAID ORDER DT 3.7.08 IN CRL.M.P.NO.1980/08 IN CRL.APPEAL NO.555/2008 OF THE SESSIONS COURT, THIRUVANANTHAPURAM. EXT.P3: TRUE COPY OF THE ORDER DT 7.4.09 IN CRL.M.P.NO.881/2009 IN CRL.APPEAL NO.555/2008 OF THE ADDITIONAL SESSIONS COURT, TRIVANDRUM. EXTS. OF R3 EXT.R3(a): TRUE COPY OF THE GO(P) NO.26/98 DT 27.8.98 OF P&ARD DEPARTMENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOs. 9285 & 9795 OF 2009 ========================= Dated this the 19th day of November, 2009 J U D G M E N T In so far as WP(C) No.9285/09 is concerned, the petitioners were working as Assistant Sub Inspectors in the Police. 2. While working as Police Constables, they were accused in CC No.568/98 on the file of Judicial First Magistrate Court-II, Neyyatinkara. On conclusion of the trial, Trial Court convicted the petitioners to undergo rigorous imprisonment for six months and to pay fine with default sentence. Appeal is filed as Criminal Appeal No.555/08 before the Additional Sessions Judge-II, Thiruvananthapuram where it is pending, and the sentence imposed by the Trial Court was suspended. Based on the conviction and sentence imposed by the Trial Court, by Ext.P1 order dated 16/3/09, invoking the proviso to Rule 18 of the Kerala Civil Services (Classification Control and Appeal) Rules, the petitioners were removed from service. Subsequently, in Criminal MP No.881/2009 in Criminal Appeal No.555/2008, the Additional Sessions Judge-II, Thiruvananthapuram, passed Ext.P3 order, the operative portion of which reads as under: WPC 9285 & 9795/09 :2 : Subject to the fulfillment of the condition of execution of the bond by the petitioners herein as ordered in Crl.M.P.1980/08 in Crl.Appeal 555/08, the operation of the conviction of the petitioners recorded by the Judicial First Class Magistrate-II, Neyyattinkara as per his judgment dated 21/6/08 in C.C.No.568/98 will stand suspended till the disposal of Crl.Appeal 555/08. Thereafter, the petitioners claimed reinstatement which was not conceded and therefore the writ petition is filed. 3. In so far as the petitioner in WP(C) No.9795/09 is concerned, while working as Officer in charge of Malsya Bhavan of the Fisheries Department, she was implicated as accused in CC No.66/04 before the Enquiry Officer and Special Judge, Thiruvananthapuram. After completing the trial, by judgment dated 9/2/2009, the petitioner was convicted and sentenced for rigorous imprisonment for a period of two years along with fine with default sentence, a copy of the judgment is Ext.P1. Against Ext.P1, petitioner filed Criminal Appeal No.477/09. In the Criminal Appeal, this Court passed Ext.P2 order dated 6th of March, 2009, the operative portion of which reads as under: Admit. Public Prosecutor takes notice. Execution of the sentence imposed on the petitioner/appellant shall stand suspended and the WPC 9285 & 9795/09 :3 : conviction is stayed on the petitioner executing a bond for Rs.25,000/- (Twenty five thousand only) with two solvent sureties each for the like amount to the satisfaction of the trial court. It is further ordered that out of the total fine amount, Rs.35,000/- shall be deposited at the time of executing the bond and the balance amount of Rs.35,000/- shall be deposited within one month from the date of release. Prior to Ext.P2, on 4/3/2009, Ext.P3 order was passed by the 2nd respondent removing the petitioner from service invoking the power under the proviso to Rule 18 of the Kerala Civil Services (Classification Control and Appeal) Rules. Here again, the petitioner states that this Court having stayed her conviction, her removal from service is erroneous. 4. The argument of the learned Government Pleader is that conviction of the petitioners entitles the respondents to invoke the power of removal as provided in Rule 18 of the Rules. It is stated that once the power of removal is exercised, the question of reinstatement arises only if the conviction and sentence is set aside by the Appellate Court. It is contended that in these cases, the appeals filed admittedly are pending, and therefore, at this state, there is no justification for claiming reinstatement in service. WPC 9285 & 9795/09 :4 : 5. Rule 18 enables the authority concerned to order removal of the Government Servant, who has suffered conviction and sentence at the hands of a Criminal Court. The circumstances in which the power can be invoked have been laid down by this Court in the judgment in Sudheer v. K.S.R.T.C (2004(3) KLT 217). However, the Government servant is liable to be removed only when there is a conviction imposed by a Criminal Court. Such conviction stands obliterated when the Appellate Court which is seized of the matter, orders stay of the very conviction itself, after duly adverting to the circumstances of the case. Once conviction itself is stayed, all consequences of such conviction also should cease to exist until the appeal is decided. 6. As at present, in both these cases, conviction has been stayed by the respective Appellate courts. If that be so, the consequences of the conviction which are evidenced by Ext.P1 in WP(C) No.9285/09 and Ext.P3 in WP(C) No.9795/09 cannot survive. Therefore, these two orders deserve to be set aside and I do so. WPC 9285 & 9795/09 :5 : 7. The respondents are directed to reinstate the petitioners in service. However, it is made clear that this judgment will not stand in the way of the respondents initiating fresh action, if warranted, depending upon the outcome of the appeals filed by the petitioners or on the Appellate Court vacating the stay of conviction. Writ petitions are disposed of as above. ANTONY DOMINIC, JUDGE Rp