Sentence suspended by High Court yet Govt wants to dismiss on basis...

Sentence suspended by High Court yet Govt wants to dismiss on basis of conviction

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Question: I have been convicted by the trial court in a case of corruption under Section 7 and 13 of the Prevention of Corruption Act, 1988. I appealed against this to the High Court and the High Court has admitted my appeal and has also suspended the sentence by granting bail to me. Even then, the department wants to dismiss me from service merely on the basis of the conviction even without conducting a formal departmental enquiry. My question is how can the Government dismiss me on the basis of the conviction when it is under challenge in the high court and when the high court has itself suspended my sentence? Is it legal?

Answer: The suspension of sentence is done under Section 389(1) of the Cr.P.C. pending appeal before a higher court against the order of conviction. In fact, Section 389(1) allows two things pending the appeal:

(1) the execution of the sentence may be suspended;

(2) the order appealed against itself may be suspended (this is more closer to the order of “conviction” itself being suspended).

Section 389(1) of Cr.P.C. is reproduced below:

389. Suspension of sentence pending the appeal; release of appellant on bail.— (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.”

Thus, it should be clear that suspension of the sentence by the appellate court is different from the order of conviction itself being suspended.

Nowadays, generally, in the cases of corruption, while the suspension of sentence may be ordered by the high court, which implies that the convicted public servant would get bail, the order of conviction is rarely suspended. In the absence of this, the conviction order remains in existence and is not suspended pending appeal.

Now, let us see whether it is permissible to dismiss or remove a Government servant from his service on the basis of his conviction, even without conducting a detailed departmental enquiry.

Firstly, please understand that Article 311 of the Constitution itself permits it. Article 311(2) of the Constitution lays down that no Government servant shall be dismissed or removed or reduced in rank except after a detailed inquiry; however, one of the exceptions to this rule provided in the said Article is that no such inquiry shall be necessary 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. Article 311 is reproduced below (the relevant parts thereof have been underlined):

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.”

Thus, Article 311(2) of the Constitution itself says that no departmental inquiry shall be necessary for dismissal, removal or reduction in rank of a Government servant on the ground of conduct which has led to his conviction on a criminal charge.

Similar rules exist in the service rules of Government servants also. For example, in the case of Central Government servants, Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, lays down as under:

19. Special procedure in certain cases.- Notwithstanding anything contained in rule 14 to rule 18 –

(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or

(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules,

the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:

Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i):

Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.”

Since Rule 14 of the said CCS (CCA) Rules relates to procedure for imposing major penalties and lays down detailed procedure for holding a departmental inquiry, Rule 19 which starts with the words “Notwithstanding anything contained in Rule 14 to Rule 18…” therefore allows a penalty to be imposed on a Government servant even without holding such a departmental inquiry where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge.

Please also note that the language in Article 311(2) of the Constitution, as well as in Rule 19 of the CCS (CCA) Rules, speaks of penalty “on the ground of conduct which has led to his conviction on a criminal charge”. It does NOT speak of penalty “on the ground of conviction on a criminal charge”.

Thus, such penalty is imposed NOT on the basis of the “conviction” itself, but on the basis of the “conduct which has led to his conviction”. There is a difference between the two. So, even if the “conviction” itself has been suspended under Section 389 Cr.P.C. (though generally it is only the sentence which is suspended and not the conviction), the department may still consider removing or dismissing the convicted Government servant on the basis of the “conduct which led to his conviction”, provided it uses the appropriate form of language. However, it depends on facts of a given case as to what exactly was suspended by the high court under Section 389 of Cr.P.C. and on what basis the Government is taking action to dismiss the Government servant without conducting a detailed departmental inquiry, though generally speaking it may be permissible as explained above.

 

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