SBCWP No.5683/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.5683/2002. Gopal Singh @ Gopi Ram Vs. State of Rajasthan & Ors. Date of Order : November 6, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri V.D. Gathala for the petitioner. Shri Hemant Gupta, Additional Government Counsel. **** BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition has been filed against the order of petitioner's removal passed consequent upon his conviction by the learned Additional District & Sessions Judge (Fast Track) Sikar in Cr.Case No.5/2001 for offences under Sections 307 and 325 IPC. Petitioner was sentended by the court to undergo rigorous imprisonment of five years and fine of Rs.1000/-. 3) Shri V.D. Gathala, learned counsel for the petitioner has argued that petitioner has filed appeal against the aforesaid judgment of conviction and sentence. Appeal is pending before this court in SBCWP No.5683/02. 2 which this court vide its order dated 15/10/2001 has suspended the sentence awarded to the petitioner. So long as appeal is not finally decided, order of conviction does not attain finality and therefore it cannot be treated a final conviction for the purpose of Article 311(2) of the Constitution. It was argued that order of removal having been passed at a premature stage is liable to be set-aside. This order deprived the petitioner of his right enshrined under Article 21 of the Constitution of India. 4) Shri Hemant Gupta, learned Additional Government Counsel argued that mere suspension of sentence does not render the provision inoperative conviction by the trial court form valid basis for removal of a government servant on the ground of misconduct which led to his conviction. Learned counsel relied on the judgment of Apex Court in Deputy Director of Collegiate Education (Administration), Madras Vs. S.Nagoor Meera : (1995) 3 SCC 377. 5) Having considered the arguments aforesaid and the ratio of the judgment of Supreme Court in S.Nagoor Meera supra, I find that mere suspension of sentence cannot be an impediment for the government to invoke provisions of clause (a) of second proviso to Article 311 (2) of the Constitution. It can on that basis alone remove an employee who has been convicted on a criminal charge. In fact, Supreme SBCWP No.5683/02. 3 Court in the aforesaid case reiterated its earlier judgment in Rama Narang Vs. Ramesh Narang and held that Section 389(1) merely empowers the appellate court to suspend the execution of senence pending appeal. When it is sought to be executed, an order of sentence is called in question because an order of conviction by itself is not capable of exeuction under the Code. In that case, Hon'ble Supreme Court reversed the judgment of Tamilnadu Tribunal which held that untill appeal against order of conviction is disposed of, action under clause (a) of second proviso to Article 311(2) of the Constitution is not permissible. Thus, argument which is being advanced before this court already stands considered and rejected by the Supreme Court in S.Nagoor Meera. 6) I therefore do not find any merit in this writ petition which is accordingly dismissed with the aforesaid directions. 7) At this stage, learned counsel for the petitioner argued that even though petitioner was convicted by the order of the trial court on 21/8/2001 but the respondents have vide order dated 3/7/2002 removed the petitioner w.e.f. 21/8/2000. Learned counsel for the respondents however submitted that this is simply a typographical error because order also states that petitioner was removed w.e.f. the date of the judgment but in that order, date of the judgment has inadvertantly been recorded as SBCWP No.5683/02. 4 21/8/2000 in place of 21/8/2001. 8) Even though respondents submitted that this was a typographical error but if petitioner makes a representation to the respondents inviting their attention to the fact that if actually he has been deprived of his any legitimate dues such as subsistance allowance or any other dues for the aforesaid period of one year, they shall consider and decide the representation in accordance with law. As and when representation is submitted by the petitioner, respondents shall decide the same within a period of three months from the date of its submission. (MOHAMMAD RAFIQ), J. anil