IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1196 of 2004 Decided on : May 18, 2009 H.R.T.C. and another …Petitioners. Versus Ramesh Kumar …Respondent. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners : Mr. H.S. Rawat, Advocate. For the Respondent : Mr. Surender Thakur, Advocate, vice Mr. P.P. Chauhan, Advocate. Per Surjit Singh, Judge ( Oral ) Himachal Road Transport Corporation and its Regional Manager at Rampur have filed the present writ petition, under Articles 226 and 227 of the Constitution of India, seeking review of order dated 20th August, 2004, passed by the then State Administrative Tribunal, in Original Application No.2110 of 2004, whereby while allowing a Civil Miscellaneous Application, for interim relief, operation of the order of termination of service of respondent Ramesh Kumar has been stayed. 2. Relevant facts are that the respondent was charged with and tried for offences, punishable under Sections 376, 342, 417 and 506 of the Indian Penal Code, by the Sessions Court. The Court found him guilty on all the four counts and sentenced him to varying terms of imprisonment, including seven years imprisonment and fine of Rs.20,000/-, in respect of offence, Whether reporters of the local papers may be allowed to see the judgment? …2… punishable under Section 376 of the Indian Penal Code. Respondent filed appeal against his conviction and sentence in this Court, which was admitted. The appeal is still pending. Judgment of trial Court has not been stayed, though the sentence has been suspended (but not the conviction). 3. After the conviction of the respondent, the petitioners removed him from service, under CCS (CCA) Rules, 1965. Though the order does not state as to under which particular Rule it has been passed, it can be presumed to have been passed, under Rule 19 of the said Rules, which provides for imposition of penalty, on a government servant, without holding any enquiry, under Rules 14 to 18, if he is found guilty of misconduct, which has led to his conviction, on a criminal charge. 4. Respondent challenged the order of termination of his service, by filing Original Application before the Tribunal. He also made an application, seeking stay of order of his removal from service, pending disposal of the Original Application. Learned Tribunal passed the order staying the operation of the order of removal from service. It is against this order that the present writ petition is directed. 5. We have heard the learned counsel for the parties and perused the record. 6. Learned Tribunal has relied upon a judgment of the Hon’ble Supreme Court, in Akhtari Bi (Smt.) versus State of M.P., (2001) 4 SCC 355, to support its order. In the said judgment, it has been held that appeal being a statutory right, in …3… criminal matters, the trial Court’s verdict does not attain finality, during the pendency of appeal and the trial is deemed to be continuing, despite conviction. That was a case in which a convict, who had been languishing in jail for more than five years, applied for suspension of sentence. It was in that background that the aforesaid observation came to be made by the Hon’ble Supreme Court. 7. There is another judgment by the Hon’ble Supreme Court, which is by a Constitution Bench. The citation is: B.R. Kapur versus State of Tamil Nadu, AIR 2001 SC 3435, in which, interpreting the provision of Articles 164 and 173, read with Section 8 of Representation of the People Act, which provides for disqualification of a person from contesting the election to the Parliament, on being convicted on a criminal charge, it has been held that the conviction does not mean the conviction by the trial Court and its upholding by the appellate Court but, in fact, it means conviction even by the trial Court and it shall be deemed to be outstanding and continuing pending appeal and, therefore, the disqualification prescribed by Section 8(3) of the Representation of the People Act would be attracted. 8. Applying the aforesaid law declared by the Constitution Bench to the facts of the present case and also in view of Government of India instructions issued vide OM dated 29th November, 1966, as amended by OM dated 19th September, 1975, which says that the penalty can be imposed upon a government servant upon his conviction for an act of misconduct, without waiting for the decision of the first Court of …4… appeal, we are of the firm view that the impugned order of the learned Tribunal is patently illegal and unsustainable. Hence, the writ petition is allowed and the impugned order is set a side. Writ petition stands disposed of. ( R.B. Misra ), J. May 18, 2009(sd) ( Surjit Singh ), J.