*THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.Nos. 13421, 7829, 16217 AND 16322 OF 2006 W.P. NO. 13421 OF 2006: % Dated 27-09-2006 # Municipal Corporation of Guntur …. Petitioner Vs. $ Smt. B. Syamala Kumari, Junior Assistant, Municipal Corporation of Guntur and another. …. Respondents ! Counsel for the Petitioner: Spl. Govt. Pleader and Sri B. Venkata Ratnam ^ Counsel for the Respondents: Mr. P.V. Ramana <GIST: > HEAD NOTE: ? Cases referred [1] 1983(2) SLR 493 2 2001 AIR SCW 3339 3 1975 SC 2216 4 AIR 1985 SC 1416 5 1993(4) SCC 727 6 AIR 1986 SC 1173 7 AIR 1985 SC 772 8 1997(5) Scale 660 9 AIR 1995 SC 1364 10 AIR 1991 SC 772 11 AIR 1984 SC 1587 12 2005(7) SCC 567 13 AIR 1990 SC 166 14 2004(12) SCC 588 15 AIR 1966 SC 1942 16 2001(4) SCC 448 17 2002(4) SCC 578 18 1993(3) ALT 471 (FB) 19 (1986) 3 SCC 103 20 AIR 1960 SC 356 21 (2004(7) SCC 558 22 (1944) 2 All ER 293 23 (1991) 4 SCC 139 24 (1990) 3 SCC 682 25 AIR 1965 SC 1887 26 (2002) 4 SCC 234 27 2004(1) SCC 547 28 (2004)5 SCC 568 29 (2002)4 SCC 638 THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.NOS. 13421, 7829, 16217 AND 16322 OF 2006 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) W.P. NO. 13421 OF 2006: Aggrieved by the interlocutory order of the A.P. Administrative Tribunal, in O.A. No. 2414 of 2006 dated 27.04.2006, whereby the petitioner was directed not to dismiss the 1st respondent-applicant from service, on the basis of the judgment of the Special Judge for SPE & ACB Cases, Vijayawada, in C.C. No. 40 of 2000 dated 04.03.2006, pending further orders, the present writ petition is filed by the Municipal Corporation of Guntur. Brief facts, to the extent necessary, are that the 1st respondent-applicant was working as a Junior Assistant in the Municipal Corporation, Guntur. Consequent upon a trap laid by the A.C.B, while the 1st respondent-applicant was demanding and accepting a bribe of Rs.800/- to do an official favour, a case was registered against her in C.C. No. 40 of 2000 before the Special Judge for SPE & ACB Cases, Vijayawada. The Special Judge, by order dated 04.03.2006, convicted the 1st respondent-applicant under Section 248(2) Cr.P.C. and sentenced her to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- for offences under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The 1st respondent- applicant preferred Criminal Appeal No. 390 of 2006, and this Court, by order in Crl.M.P. No. 436 of 2006 in Crl. Appeal No. 390 of 2006 dated 20.03.2006, suspended the sentence and granted her bail pending disposal of the Criminal appeal on condition of her executing a bond of Rs.10,000/- with two sureties each for a like sum to the satisfaction of the Special Judge for SPE & ACB Cases, Vijayawada. Apprehending that she may be dismissed from service, in view of the judgment rendered by the Special Judge for SPE & ACB cases, Vijayawada, in C.C. No. 40 of 2000, the 1st respondent-applicant approached the Tribunal and sought for an interim direction to the respondents not to dismiss her from service in view of the suspension of the sentence by the High Court. The 1st respondent-applicant relied on an earlier order passed by the Tribunal, in O.A. No. 2857 of 2005 dated 25.06.2005, which in turn had relied on its earlier orders and the observations of this Court in W.P. No. 10515 of 2005 dated 29.04.2005. The Tribunal held that in view of the said orders, and with a view to maintain consistency, the petitioners herein must be directed not to dismiss the 1st respondent-applicant from service based on the judgment of the Special Judge for SPE & ACB Cases, Vijayawada, in C.C. No. 40 of 2000 dated 04.03.2006, pending further orders. The Government, in its memo No. 2935/VIG.IV.2/2001-03 dated 18.03.2006, while informing that the Special Judge for SPE & ACB Cases, Vijayawada had pronounced judgment on 04.03.2006, and had convicted and sentenced the 1st respondent-applicant to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,000/- and in default to suffer simple imprisonment for a period of three months, requested the 1st petitioner herein to obtain a copy of the judgment and advised them to dismiss the 1st respondent-applicant from service in view of her conviction and as per the orders of the Government in G.O.Ms. No. 2, G.A. (SER.C) Dept, dated 04.01.1999. W.P. NO. 7829 OF 2006: Aggrieved by the interlocutory order of the Tribunal, in O.A. No. 642 of 2005 dated 07.02.2005, suspending the proceedings of the 2nd petitioner herein, dated 28.02.2005, the present writ petition is filed. The 1st respondent-applicant was appointed as a Tracer on 06.10.1990 in the office of the Commissioner, Bodhan Municipality. He was subsequently promoted as a Town Planning Building Overseer on 11.10.2002. While he was working in the office of the Commissioner, Bodhan Municipality, the 1st respondent-applicant was trapped by the A.C.B on 06.04.1993 and was placed under suspension on 18.10.1993. He was subsequently reinstated into duty with effect from 31.07.1999. The Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, in C.C. No. 2 of 1994 dated 14.10.2004, convicted the 1st respondent-applicant under Section 248(2) Cr.P.C. Assailing the said judgment, the 1st respondent-applicant filed Crl. Appeal No. 2348 of 2004 and this Court, in Crl.M.P. No. 6547 of 2004 in Crl. Appeal No. 2348 of 2004 dated 08.11.2004, passed the following order:- “The petitioner shall be released on bail on the same terms and conditions that were imposed by the Court below. On such execution, the execution of sentence stands suspended.” In his proceedings dated 28.02.2005, the 2nd petitioner took note of the fact that the 1st respondent-applicant was found guilty of the charges framed against him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and was convicted under Section 248(2) Cr.P.C. by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. The 2nd petitioner dismissed the 1st respondent- applicant from service with immediate effect, in exercise of the powers conferred under Clause (X) of Rule 9 read with sub-rule (1) of Rule 20 of the A.P.C.S (CC & A) Rules, 1991 and as required under the proviso to Rule 9 of the A.P.C.S (CC & A) Rules, 1991, G.O.Ms. No. 568 dated 23.05.1981 and G.O.Ms. No. 255 dated 17.05.1984. Aggrieved thereby the 1st respondent-applicant filed O.A. No. 642 of 2005 before the Tribunal. The Tribunal, relying on its earlier orders in O.A. No. 2857 dated 24.06.2005 and the observations of this Court in W.P. No. 10515 of 2005 dated 29.04.2005, held that, in order to maintain consistency, the proceedings dated 28.02.2005 should be suspended pending further orders. Aggrieved thereby, the present writ petition is filed. W.P. NO. 16217 OF 2006: This writ petition is filed by Sri M. Yellaiah, Deputy Tehsildar, District Supply Office, Medak against the order of the Tribunal, in O.A. No. 3773 of 2005 dated 27.04.2006, whereby the order of dismissal from service was upheld by the Tribunal following the judgment of the Apex Court. The Tribunal held that, since Rule 25(1) did not contemplate any show cause notice being given, the impugned order could not be faulted for not issuing a show cause notice to the petitioner-applicant before the impugned order of dismissal was passed. W.P.NO. 16322 OF 2006: This writ petition is filed against the order of the Tribunal, in O.A. No. 3425 of 2006 dated 21.06.2006, whereby the Tribunal directed the petitioners herein to keep the 1st respondent-applicant out of service and continue him under suspension, pending disposal of the criminal appeal by the High Court, by paying subsistence allowance in accordance with the rules. The respondent-applicant was working as a Selection Grade Secretary in the Agricultural Market Committee, Khammam. He was trapped by the ACB, on 24.03.2000, while accepting a bribe of Rs.2,250/- and was thereafter suspended from service, vide G.O.Ms. No. 507 dated 15.05.2000, with effect from 15.05.2000. The respondent- applicant was convicted in C.C. No. 34 of 2001 by the Special Judge for SPE & ACB Cases, Hyderabad and sentenced to undergo rigorous imprisonment for a period of one year under Section 7 of the Prevention of Corruption Act and also to pay a fine of Rs.2,250/- under Section 13(1)(d) of the Prevention of Corruption Act. Aggrieved thereby the petitioner preferred an appeal and this Court, by order in Crl.M.P. No. 814 of 2006 in Crl.A. No. 679 of 2006 dated 06.06.2006, suspended the sentence imposed on the respondent-applicant. Apprehending that he would be dismissed from service, pursuant to the order of conviction in C.C. No. 34 of 2001 dated 10.05.2006, the respondent-applicant approached the A.P. Administrative Tribunal. He relied on the judgment of the Apex Court in State of Maharashtra Vs. Chandhrabhan[1] and sought a declaration that the action of the respondents, in not taking steps to reinstate him into service, was improper, illegal and unjust. The Government Pleader, on the other hand, relied on the judgment of the Apex Court in K.C. Sareen Vs. C.B.I., Chandigarh[2] and on the government memo No. 1621/SPL.B/ 2001-1, G.A. (SPL.B) Department dated 26.11.2001. The Tribunal held that the case of the respondent- applicant was squarely covered by the judgment of the Apex Court in Chandhrabhan1. The Tribunal also took note of the fact that the Government, in its memo No. 3907/71/A2/Fr-II/99, dated 28.02.2000, in view of the judgment of the Apex Court in Chandhrabhan1, had ordered that a Government servant under suspension, whether he was lodged in prison or released on bail on his conviction, pending consideration of his appeal, must be paid subsistence allowance. The Tribunal held that, since the respondent-applicant had been suspended with effect from 15.05.2000, he must be continued under suspension by paying subsistence allowance till the disposal of the criminal appeal pending before this Court. While holding that the relief claimed by the respondent-applicant, of reinstatement into service pending disposal of the criminal appeal before the High Court, could not be granted, the Tribunal directed the petitioners herein to keep the respondent-applicant out of service and continue him under suspension pending disposal of the criminal appeal by the High Court, by paying subsistence allowance in accordance with the rules. Aggrieved thereby the respondent-applicant approached this Court filing W.P. No. 13225 of 2006. This Court, while dismissing the writ petition at the stage of admission, by order dated 03.07.2006, took note of the fact that the respondent- applicant was assailing the action of the petitioners herein in continuing him under suspension inspite of the fact that his conviction by the Special Judge for SPE and ACB Cases, Hyderabad was suspended pending criminal appeal. This Court noted that the Tribunal, taking into consideration the principles laid down by the Apex Court in Chandhrabhan1, had directed continuation of the petitioner under suspension and payment of subsistence allowance in accordance with the rules and, in view of the same, it did not find any ground to interfere with the order of the Tribunal. During the pendency of proceedings before the Tribunal, the respondent-applicant was dismissed from service vide proceedings dated 20.06.2006. A copy of the order was served on the respondent-applicant on 08.07.2006, after orders were passed by the Tribunal in O.A. No. 3425 of 2006 on 21.06.2006 and by this Court, in W.P. No. 13325 of 2005, on 03.07.2006. It is stated that, aggrieved by the said order of dismissal from service, the respondent-applicant approached the Tribunal in O.A. No.1976 of 2006 which is still pending before the Tribunal. Since common questions, as to whether a government servant, on his conviction in a criminal case, is automatically liable to be dismissed from service, whether on the sentence being suspended in appeal he is required to be continued in service/under suspension etc arise for consideration in all these writ petitions, they were heard together and are now being disposed of by a common order. Sri P.V. Ramana, Sri G. Vidyasagar, Sri D. Balakishan Rao and Sri Y.S. Venkat Rao, learned Counsel appearing on behalf of the government servants/delinquent employees, (applicants before the Tribunal), would emphasize that the applicants were entitled to be continued in service/under suspension as the order of sentence, imposed on them in the criminal case, has been suspended in the criminal appeal filed by them before this Court. Learned Government Pleader appearing on behalf of the Government, the Learned Special Government Pleader appearing on behalf of the Agriculture Market Committee, and Sri B. Venkatratnam, Learned Standing Counsel appearing on behalf of the Municipal Corporation, would contend that, on an employee being convicted in a criminal case, he was automatically liable to be dismissed from service and mere suspension of the sentence, pending criminal appeal, would neither entitle him to be continued in service nor to be placed under suspension. Sri P. V. Ramana, learned Counsel, would rely on The Divisional Personnel Officer Southern Railway Vs. T.R. Chellappan[3], in support of his submission that a government servant could not, automatically, be dismissed from service on his conviction by a criminal Court and that the disciplinary authority, in exercise of the powers conferred under Rule 25 of the APCS (CC&A) Rules, 1991, was required to consider all the facts and circumstances of the case and take an appropriate decision as to the punishment to be imposed in this regard. Learned Counsel would submit that a delinquent employee, as held in T.R. Chellappan3, was entitled to be put on notice and given an opportunity of being heard by the competent authority before action was taken against him under Rule 25. Learned Counsel would submit that, while T.R. Chellappan3 was a three Judge bench judgment, the subsequent judgment of the Apex Court in K.C. Sareen2 was a judgment of a two member bench and since the judgment in T.R. Chellappan3 was of a larger bench, the said judgment would prevail not withstanding a contrary view taken in K.C. Sareen2. Learned Counsel would submit that, since the Constitution bench judgment in Union of India Vs. Tulsiram Patel[4] has been considered by the subsequent Constitution bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar[5], even if it were to be held that the delinquent employee was not entitled for an opportunity of being heard, nonetheless he must, atleast, be held to be entitled for an opportunity to submit his written objections to the judgment of the criminal Court, since the judgment of the criminal Court is also a material document, based on which the competent authority proposes to take action against the government servant under Rule 25 of the APCS (CC&A) Rules. Learned Counsel would rely on Ram Chander Vs. Union of India[6] in this regard. He would submit that, under Rule 8 (2)(b), an employee was required to be kept under suspension pending disposal of the criminal appeal and, on a reading of the rules in their entirety, the delinquent employee ought not to be dismissed from service merely on the ground that he was convicted in a criminal case, and that he must atleast be kept under suspension, if not permitted to continue in service, pending disposal of the Criminal Appeal. Sri G. Vidyasagar, learned Counsel, while adopting the arguments of Sri P.V. Ramana, would reiterate that mere conviction in a Criminal Case would not justify automatic dismissal from service of a government servant. Sri D. Balakishan Rao, learned Counsel for the petitioner in W.P. No. 16217 of 2006, would place reliance on the judgment of the Apex Court in Shankar Das Vs. Union of India[7]. Sri Y.S. Venkat Rao, learned Counsel, would submit that since the order of the Tribunal in O.A. No. 3425 of 2006 has been upheld by this Court in W.P. No. 13225 of 2006 dated 03.07.2006, it was not open to the Government and the Commissioner and Director of Marketing to challenge the very same order of the Tribunal, in O.A. No. 3425 of 2006 dated 21.06.2006, by way of W.P. No. 16322 of 2006. Learned Government Pleader for Services, on the other hand, would submit that the Apex Court in K.C. Sareen2 has held that an appellate Court should not suspend the order of conviction passed by the criminal Court in cases under the Prevention of Corruption Act and, therefore, on conviction, the Government servant was automatically required to be dismissed from service. Learned Government Pleader would rely on Union of India Vs. Ramesh Kumar[8] and Dy. Director of Collegiate Education (Admn.) Vs. S. Nagoor Meera[9]. He would submit that, in view of Clause (X) of Rule 9 of the A.P.C.S. (C.C&A) Rules, 1991, the Government servant, on charges of corruption and misappropriation being established, was liable to be automatically dismissed from service. Learned Special Government Pleader, appearing on behalf of the learned Advocate General, would submit that, on his conviction in a criminal case, an employee is deemed to be under suspension under Rule 8(2)(b) only till the order of dismissal is passed and that no employee was entitled to contend that he should be continued under suspension till disposal of the criminal appeal or that he should not be dismissed from service till then. Learned Special Government Pleader would submit that, the prescription under Clause (X) of Rule 9 of the A.P.C.S (C.C&A) Rules, 1991, which mandates imposition of punishment of dismissal from service on charges of corruption being established, must also be read into Rule 25 as the very purpose of making the rules is to ensure that dishonest and corrupt employees are not permitted to continue in service. Learned Special Government Pleader would submit that the judgment of the Supreme Court in Chandrabhan1 has been distinguished in the subsequent judgment of the Supreme Court in Ramesh Kumar8 and, therefore, reliance can no longer be placed on the earlier judgment in Chandrabhan1. Before we examine the rival contentions, it is necessary to take note of the relevant constitutional provisions and the applicable rules. Article 311 of the Constitution of India reads as under:- 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (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 give 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. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. A.P. CIVIL SERVICE (CLASSIFICATION, CONTROL AND APPEAL RULES, 1991 Rule 8 of the A.P.C.S. (C.C&A) Rules, 1991 relates to suspension. Rule 8. Suspension:- (1) A member of a Service may be placed under suspension from service. (a) where a disciplinary proceedings against him is contemplated or is pending, or (b) where in the opinion of the authority competent to place the Government servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the State, or (c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial. (d) A member of a service may be placed under suspension from service even if the offence for which he was charged does not have bearing on the discharge of his official duties. (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) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise for a period exceeding forty-eight hours; (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. Explanation:- The period of forty-eight hours referred to clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (c) the order of suspension ceases to be operative as soon as the criminal proceedings, on the basis of which the Government servant was arrested and released on bail, are terminated. (3) where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on revision or review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal, or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void, in consequence of or by a decision of a court of law and the authority competent to impose the penalty, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the authority competent to impose the suspension from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. (5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority which made or is deemed to have made the order or by an authority to which that authority is subordinate. (b) Where a Government servant is suspended or deemed to have been suspended, whether in connection with any disciplinary proceeding or otherwise, and any other disciplinary proceeding is commenced against him