T.R. Subbaraman and Others vs State and Another

Krishnaswamy Reddy, J.—The point raised in these petitions is whether the dismissal of the petitioners by the authorities on a conviction

recorded by the trial court while their appeals against their convictions are pending, is valid under law,

In Cri. M. P. 3311 of 1968, the petitioner was convicted u/s 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and

sentenced to undergo R. I. for one year, by the Special Judge, Salem, by his judgment dated 15-5-1968. Against the said conviction, the petitioner

filed an appeal in this Court in C. A. 332 of 1968 which was admitted on 17-5-1968. After conviction while the appeal is still pending, the

Collector of Salem by his proceedings dated 12-11-1968, dismissed the petitioner from service from the date on which he was placed under

suspension, namely, with effect from 20-11.1966 (afternoon).

In Cri. M. P. 759 of 1969, the petitioner was convicted u/s 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act by the Special

Judge, Coimbatore and Nilgiris and sentenced to undergo R. I. for one year by his judgment dated 30-11-1968. The petitioner filed an appeal

before this Court in C. A. 786 of 1968 which was admitted on 2-12-1968. While the appeal was pending, it appears that proceedings for

disciplinary action was sought to be taken by the authorities against the petitioner in consequence of the conviction. The petitioner filed this

application for stay of proceedings. Interim stay was granted on 3-4-1969.

The petitioner in Cr. M. P. 2070 of 1969 was convicted under Sections 120-B, Penal Code, 409 read with Section 109, Penal Code, 477-A,

Penal Code, 467 read with 471, Penal Code etc. and the provisions of the Prevention of Corruption Act etc., and sentenced to varying terms of

rigorous imprisonment for three years to seven years by the Additional Special Judge, Turichirapalli by his judgment dated 11-6.1968. He

preferred an appeal in C. A. 366 of 1968 which was admitted on 17-6-1968 and it is pending. In the meanwhile, it appears that the Chief

Engineer issued a Memo dated 23-11-1968 calling upon the-petitioner to show cause why he should not be dismissed from service in view of his

conviction. On this, the petitioner filed this application to stay further proceedings by the Chief Engineer in pursuance of his memorandum till the

disposal of the appeal.

Thus, we see that in the first case, the dismissal is based upon a conviction by the trial Court and in two later cases, show cause notices were

issued based upon the conviction by the trial Court, It is contended by the learned Counsel for the petitioners that the order of dismissal based

upon the conviction by the trial Court cannot be sustained as the ''conviction'' contemplated under Article 311 of the Constitution must be

construed as a conviction confirmed on the termination of all proceedings by way of appeal or revision against such conviction. In other words,

what is contended is that an order of dismissal cannot be made till all proceedings were terminated in respect of such conviction. To appreciate this

contention, we have to note Article 311 of the Constitution and the relevant rules framed by the Madras Government under Article 309 of the

Constitution. Article 311 of the Constitution reads thus:

(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 and where it is proposed, after such enquiry, to

impose on him any such penalty, until he has been given a reasonable opportunity of making representations, on the penalty proposed, but only on

the basis of the evidence adduced during such enquiry:

Provided 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 . . .

By Clause (2) of Article 311, the framers of the Constitution gave guarantee of protection to the Government servants employed under the Union

or a State that no action mentioned therein such as dismissal or removal or reduction in rank would be taken against them without giving them a

reasonable opportunity of showing cause against the proposed punishment. This assurance is in consonance with natural justice provided to every

person in the country. To this assurance, provisos (a), (b) and (c) have provided three exceptions, of which we are concerned with (a). If 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, Clause (2) of Article

311 will not apply, namely, that the reasonable opportunity of being heard is taken away. This is obviously based on the principle that the

Government servant concerned had the full opportunity in the course of a trial while facing a criminal charge and that, therefore, a second

opportunity of establishing his innocence is found to be unnecessary.

Proviso (a) to Article 311 refers to conviction resulting on a criminal charge on the ground of the conduct of the person convicted. Once a

conviction is recorded by a competent Court of law against a person and where his conduct is involved, such conduct is being gone into in full by

the trial Court and, therefore, such conviction by a criminal Court is itself taken as basis for the punishment provided under Clause (2) of Article

311 without any further enquiry.

The question now raised is whether the word ''conviction'' which occurs in proviso (a) refers to conviction only by a trial Court or whether it

should be taken as a conviction confirmed by the appellate Court or the Court of revision as the case may be. It is contended that the authorities

can take action contemplated under Clause (2) of Article 311 only after all the proceedings are terminated by way of appeal or revision in respect

of a conviction. In other words, it is stated that the authorities should wait to take action under the said clause till all the proceedings are terminated.

There is no substance in this contention. The conviction referred to in proviso (a) is a conviction recorded by a competent Court of law on a

criminal charge. The trial Court trying a person on a criminal charge is competent to record a conviction if the charge is proved. Once a conviction

is recorded by a competent Court, it becomes final unless the statutory remedies provided to the person convicted are taken by him and such

convictions set aside.

Conviction"" begins to operate as soon as it is recorded. It subsists till it is set aside by an appellate Court or a Court of revision. What is

contemplated in Proviso (a) to Article 311 (2) is a subsisting conviction or a conviction in force. In an appeal or a revision against a conviction, the

conviction is not suspended. It is only the sentence or order in consequence of such conviction is suspended. Even when an appeal or revision is

pending, the conviction is alive and it does not cease to exist. u/s 426 (1), Criminal P. C., the appellate Court may suspend the execution of the

sentence or order pending an appeal against a conviction. Similarly, u/s 438, Criminal P. C., the Sessions Judge or District Magistrate, while

exercising the powers of revision and while a report of recommendation for reduction or alteration of sentence or order is made to the High Court,

can suspend the execution of sentence or order as the case may be. It is clear from these provisions that the conviction is not suspended while the

appeal or revision is pending. I am, therefore, of the view that once the conviction is recorded by a competent Court of law on a criminal charge

and until such conviction is set aside either on appeal or revision, such conviction remains effective and can be made the basis of dismissal, removal

or reduction in rank of a public servant.

In U. P. State v. Mohd. Nooh AIR 1958 SC 86, their Lordships of the Supreme Court observed on page 95:

... under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where

the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the Court

or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or

revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective.

The same principle will apply to the conviction by a criminal Court of the first instance.

There cannot be any doubt, if action is taken under Clause (2) of Article 311, based on a conviction on a criminal charge and if such conviction

is set aside either on appeal or revision, such an order ceases to have effect even from the time of conviction by the trial Court as the conviction

becomes non est the very moment it is set aside. But, however, there is no bar for the authorities to take action under Clause (2) of Art 311, on the

basis of a conviction by the trial Court without waiting for the result in an appeal or a re. vision even if such an appeal or revision is pending. It is of

course for the authorities to decide whether they should take action under Clause (2) of Article 311 immediately after conviction by the trial Court

or wait for the result of a possible appeal or revision. Such considerations will depend upon the expediency in the interests of justice in a particular

given case. The following cases were cited before me by the learned Counsel for the petitioners- Dilbagh Rai Jarry Vs. The Divisional

Superintendent, Northern Rly. and Others, ; The Divisional Superintendent, Northern Railway, Allahabad Vs. Ram Saran Das, ; Union of India

(UOI) Vs. R. Akbar Sheriff, ; Dhanji Ram Sharma Vs. Union of India and Another, .

The above decisions do not have a bearing on the point raised in these petitions. These are cases where the authorities contend that once

action was taken under Clause (2) of Article 311 on the basis of a conviction by trial Court, such action cannot be questioned even if such

conviction was subsequently set aside on appeal or revision. It was held in all these cases that once the conviction is set aside, the conviction

ceased to operate even from the date of such conviction by the trial Court. In these cases, the power of the authorities to take action under Article

311 (2) on the basis of conviction by the trial Court was not questioned.

It is worthwhile to note the rules made by the Madras Government under Article 309 of the Constitution. Though under proviso (a) to Article

311 (2), it was not necessary to give an opportunity to the concerned person before taking action under Clause (2) of Article 311 to hear his

representation, Rule 17 (c) (i) (1) of the Madras Civil Services (Classification, Control and Appeal) Rules provides that the person against whom

action is taken on the basis of conviction shall be given a reasonable opportunity of making any representation that he may desire to make and such

representation, if any, shall be taken into consideration before the order imposing the penalty is passed. This provision confers an advantage to the

person against whom action is taken, so that he might make representation in respect of the penalty to be imposed on him. By virtue of this clause,

it appears that show cause notices were given to the petitioners before taking action.

In the result, I find that the action taken by the authorities against the petitioners is perfectly justifiable under law. The petitions are, therefore,

dismissed. The appeals may be expedited for hearing.