# Sadanand v. District Judge, Allahabad

- **Citation:** (2013) 1 ILRA 397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-05
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadanand-v-district-judge-allahabad-42513
- **Pages:** 10

## Headnote

Constitution of India, Art.-226- 311(2)-
Dismissal
of
Service-on
ground
of
conviction in criminal case-while against
punishment under section 366, 376
I.P.C. -appeal pending and conviction
stayed by High Court-admitted positionquoting wrong provision of law-can not
invalidate
the
order-hence
order
impugned can not be faulted- in absence
of any provision-about reinstatement
after stay of conviction-can not be
interfered by writ court -unless appeal
finally decided and the petitioner fully
exonerated.

Held: Para-16

In view of settled legal position and
foregoing
discussion
I
am
of
the
considered
opinion
that
once
the
petitioner is convicted on criminal charge
u/s 366/376 I.P.C. involving offence of
moral
turpitude
until
the
order
of
conviction is set aside in pending appeal
or other proceeding, its effect and
impact cannot be completely wiped off
or ceased to operate merely because of
execution of sentence or order appealed
against was suspended or stayed and the
petitioner was released on bail during
the pendency of said appeal. However, in
case
petitioner's
appeal
would
be
allowed and he would be exonerated
from the criminal charge or acquitted in
appeal or other proceeding, it will always
be open for the petitioner to approach
the District Judge, Allahabad, who in
turn will pass appropriate order. But in
given facts and circumstances of the
case, at this stage it is very difficult for
this Court to interfere in the impugned
order of termination of services of the
petitioner.

Case Law discussed:
(1993)3 SCC 60- A.I.R. 1999 S.C. 983; A.I.R.
1958 SC 36; A.I.R. 1985 SC 1416; A.I.R . 1995
SC 1364

## Text

1 All] Sadanand Vs. District Judge, Allahabad
397

(2) The power conferred by this
section on an Appellate Court may be
exercised also by the High Court in the
case of an appeal by convicted person to a
Court subordinate thereto.

(3) Where the convicted person
satisfies the Court by which he is
convicted that he intends to present an
appeal, the Court shall,-

(i) where such person, being on bail,
is sentenced to imprisonment for a term
not exceeding three years, or

(ii) where the offence of which such
person has been convicted is a bailable one,
and he is on bail, order that the convicted
person be released on bail unless there are
special reasons for refusing bail, for such
period as will afford sufficient time to
present the appeal and obtain the orders of
the Appellate Court under sub-section (1),
and the sentence of imprisonment shall, so
long as he is so released on bail, be deemed
to be suspended.

(4) When the appellant is ultimately
sentenced to imprisonment for a term or
to imprisonment for life, the time during
which he is so released shall be excluded
in computing the term for which he is so
sentenced."

21. A bare perusal of the provision
of Section 389 clearly goes to show that
the Appellate Court while admitting any
appeal for hearing suspends the execution
of the sentence and orders for release of
the appellant on bail but in such a
position, the order of conviction remains
intact until it is set aside by the final
verdict of the Appellate Court. Thus, the
status of the applicant despite the
admission of appeals and his release on
bail was that of convict and he cannot be
exonerated of the consequences provided
under Section 437 (ii) Cr.P.C.

22. The evidence in the present case is
that the accused persons in prosecution of
the common object of unlawful assembly
caused the death of Raja Ram and caused
fire arm injuries to two persons namely
Kanahiya and Sonu. Thus, no finding can
be recorded that there does not appear any
reasonable ground for believing that the
applicant is not guilty of the charges
levelled against him.

23. Having considered the facts and
circumstances of the case as also the legal
analogy
the
applicant
who
stood
convicted on two counts for the offences
like murder and attempt to murder can not
be allowed to be released on bail.

24. The application for bail is hereby
rejected. However the trial Court is
directed to proceed with the trial as
expeditiously as possible, keeping in view
the provisions of Sec. 309 CrPC,
preferably within a period of six months
to be computed from the date of
production of certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2013.

BEFORE
THE HON'BLE SABHAJEET YADAV,J.

Civil Misc. Writ Petition No.12954 Of 2003

Sadanand

 ...Petitioner
Versus
District Judge, Allahabad ...Respondent

Counsel for the Petitioner:
Sri Ashok Khare, Sri V.D. Chaohan
398 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Sri S.C. Misra, Sri S.P.Pandey

Counsel for the Respondents:
Sri Amit Sthalekar, Sri Pradeep Kumar
S.C.

Constitution of India, Art.-226- 311(2)-
Dismissal
of
Service-on
ground
of
conviction in criminal case-while against
punishment under section 366, 376
I.P.C. -appeal pending and conviction
stayed by High Court-admitted positionquoting wrong provision of law-can not
invalidate
the
order-hence
order
impugned can not be faulted- in absence
of any provision-about reinstatement
after stay of conviction-can not be
interfered by writ court -unless appeal
finally decided and the petitioner fully
exonerated.

Held: Para-16

In view of settled legal position and
foregoing
discussion
I
am
of
the
considered
opinion
that
once
the
petitioner is convicted on criminal charge
u/s 366/376 I.P.C. involving offence of
moral
turpitude
until
the
order
of
conviction is set aside in pending appeal
or other proceeding, its effect and
impact cannot be completely wiped off
or ceased to operate merely because of
execution of sentence or order appealed
against was suspended or stayed and the
petitioner was released on bail during
the pendency of said appeal. However, in
case
petitioner's
appeal
would
be
allowed and he would be exonerated
from the criminal charge or acquitted in
appeal or other proceeding, it will always
be open for the petitioner to approach
the District Judge, Allahabad, who in
turn will pass appropriate order. But in
given facts and circumstances of the
case, at this stage it is very difficult for
this Court to interfere in the impugned
order of termination of services of the
petitioner.

Case Law discussed:
(1993)3 SCC 60- A.I.R. 1999 S.C. 983; A.I.R.
1958 SC 36; A.I.R. 1985 SC 1416; A.I.R . 1995
SC 1364

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. Heard Sri Satya Prakash Pandey,
learned counsel for the petitioner and Sri
Pradeep Kumar for respondent.

2. By this petition, the petitioner has
challenged the order dated 10.2.2003
passed by the District Judge, Allahabad
contained in Annexure-5 of the writ
petition, whereby petitioner's services
were terminated in purported exercise of
power under the provisions of Uttar
Pradesh Temporary Government Servants
(Termination of Service) Rules, 1975
(hereinafter referred to as '1975 Rules')
indicating that he will get 30 days'
wage/salary in lieu of 30 days notice
under the said Rules.

3. It is stated that the petitioner was
appointed on the post of Driver by the
District Judge, Allahabad on 26.10.1996
after due selection in pursuance of
advertisement issued in the year 1996.
Since the date of his appointment the
petitioner was continuously working on
the said post. On 21.10.2002 he was
convicted in Session Trial No.202 of 1999
by Additional Session Judge, Allahabad
u/s 366 and 376 I.P.C. wherein he was
sentenced for 3 years and 7 years
imprisonment and fine of Rs.3000/- and
Rs.5000/-
total
Rs.8000/-
was
also
awarded against him. Feeling aggrieved
against which the petitioner has preferred
Criminal Appeal No.4563 of 2002 before
this Court, wherein on 25.10.2002 the
operation of judgment and order dated
21.10.2002 appealed against passed by
Trail court has been stayed and the
1 All] Sadanand Vs. District Judge, Allahabad
399
petitioner was also released on bail.
Initially the petitioner was placed under
suspension vide order dated 23.10.2002
intending to hold inquiry against him on
account of his detention for a period of
more than 48 hours. Thereafter a
preliminary inquiry was held against the
petitioner by Additional District Judge,
Allahabad, who submitted his report
29.1.2003
to
the
District
Judge,
Allahabad, thereupon the District Judge,
Allahabad after going through the said
inquiry report has passed an order dated
4.2.2003 intending to terminate the
services of the petitioner under 1975
Rules. The copy of preliminary inquiry
report dated 29.1.2003 and order dated
4.2.2003 passed by the District Judge,
Allahabad are on record as Annexure-2
and 1 respectively to the counter affidavit
filed in the writ petition on behalf of the
respondent.

4. It would be useful to quote the
order dated 4.2.2003 passed by the
District Judge, Allahabad contained in
C.A.-1 as under:-

"Sri Sada Nand Yadav Driver
working
in
Civil
Court
had
been
convicted by Addl. Sessions Judge, Court
No.18 on 21.10.2002 on a charge under
section 366 and 376 I.P.C. of P.S. Lalapur
District Allahabad. The report in this
respect had been submitted by Officer
Incharge Pooled Cars. The employee
having been convicted for a period of 3
years and 7 years for offence involving
moral turpitude was suspended vide order
dated 23.10.2002 by my predecessor in
office after perusing the first information
report, medical report supplementary
medical report and judgment which he
called vide his order dated 22.10.2002.
Subsequently after the grant of bail he
applied on 31.10.2002 for reinstatement
as also for grant of earned leave for the
period from 21.10.2002 to 29.10.2002 but
the same was also refused by my
predecessor in office with the observation
that he cannot be permitted to serve until
he is exonerated/acquitted inasmuch as
the offence for which he was convicted is
of moral turpitude. About three and half
months time has passed from the date
when he was convicted. It is not in the
overall interest of Government work to
allow him to continue to get subsistent
allowance without any work. Preliminary
enquiry was ordered in respect of his
conduct by my predecessor in office.
Enquiry Officer has reported that prior to
his employment in the year 1996 Session
Trial No.202/99 Crime No.77/83 was
already registered against him. in which
he had been convicted. He did not
disclose the same. Beside this, another
case crime no.39/96 under section 307
I.P.C. was also registered against him but
he was acquitted of the same prior to his
employment. Officer Incharge Pool Cars
has given preliminary enquiry report. He
has reported that employee Sri Sada Nand
is guilty of concealment of facts aforesaid
and also of his appearance in Sessions
Cases before court without permission.
He has also reported that Sri Sada Nand
Yadav has been convicted and sentenced
to 3 years rigorous imprisonment and a
fine of Rs.3,000/- for the offence under
section 366 I.P.C. and 7 years rigorous
imprisonment with a fine of Rs.5,000/- for
the offence under section 376 I.P.C. The
cases indicate that the employee had
criminal antecedents from the year 1983.
The offence in which he has been
convicted involve moral turpitude. He
cannot
be
allowed
continuance
in
Government service because of criminal
antecedents. It is but natural that any
400 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Government Officer taking work would
be scared of him. It is not known as to
when his case will come to an end and
whether he will be acquitted on bail or
will be finally convicted. He services are
temporary. The facts and circumstances in
my opinion warrant that instead of
keeping him in continuous suspension it
would be better to terminate his services
in accordance with rules after giving 30
days notice and to take some body else in
employment so that government work
does not suffer and the government is also
relieved
of
unnecessary
financial
obligation.

Let
notice
of
termination
of
temporary service to Sri Sada Nand
Yadav be given with 30 days salary in
lieu of notice. "

5. In pursuant to the said order the
District Judge Allahabad vide order dated
10.2.2003 terminated the services of the
petitioner in exercise of his power under
1975 Rules. Learned counsel for the
petitioner has submitted that since from
the material available on record and
attending circumstances it appears that
earlier
to
the
aforesaid
order
of
termination passed by the District Judge
the petitioner has already been convicted
u/s 366 and 376 I.P.C. in aforesaid case
crime, therefore, keeping in view the
aforesaid conviction of the petitioner in
mind his services were terminated by way
of simpliciter termination though the
aforesaid conviction of the petitioner was
made basis and foundation of impugned
order of termination passed against him.
Thus, such simpliciter termination is
punitive in nature and could not be passed
without holding full fledged disciplinary
inquiry against him. In support of his
submission learned counsel for the
petitioner has placed strong reliance upon
a decision of Apex Court rendered in
Dipti Prakash Banerjee Vs. Satyendra
Nath Bose National Centre for Basic
Sciences, Calcutta and others (1999) 3
SCC 60 = A.I.R. 1999 S.C. 983, wherein
the Apex Court has examined all the
earlier decisions rendered by it right from
Pashotam Lal Dhingra Vs. Union of
India A.I.R. 1958 SC 36 on the question
in issue and has held that once it is found
that misconduct is foundation of order of
simpliciter termination then such order of
termination is treated to be punitive in
nature as dismissal from service and
should be passed only after holding full
fledged
disciplinary
inquiry
against
delinquent employee.

6. There can be no quarrel with the
aforesaid proposition but I am not
inclined to go into the aforesaid details
and take the view in one way or the other
as to whether the aforesaid conviction of
the petitioner was foundation of order of
simpliciter termination of the petitioner or
it was merely motive for such termination
of services of the petitioner. In my
opinion, even if it is assumed that the
conviction of the petitioner u/s 366/376
I.P.C. was foundation of his termination
and was not merely motive to pass such
order even then in given facts and
circumstances of the case the question
arises for consideration that as to whether
before terminating the services of the
petitioner as a measure of punishment it
was essential for holding disciplinary
inquiry against him or not.

7. In this connection it would be
useful to examine the provisions of
Article 311 of the Constitution of India as
under:-
1 All] Sadanand Vs. District Judge, Allahabad
401

"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."

8. The issue as to whether the
Government employee can be punished
by imposing major penalty of dismissal,
removal or reduction in rank without
holding any disciplinary inquiry against
him where such Government employee is
convicted on a criminal charge, has been
examined by a Constitution Bench of
Apex Court in Union of India and
another Vs. Tulsiram Patel A.I.R. 1985
SC 1416, wherein it has been held that if
the Government servant is convicted on a
criminal charge it is not necessary to hold
disciplinary inquiry against him and such
inquiry can be dispensed with by the
Disciplinary Authority under clause (a) of
second proviso to Article 311 (2) and the
Disciplinary Authority can pass an order
imposing any one of the major penalties
viz. dismissal, removal or reduction in
rank upon the Government servant
without holding any disciplinary inquiry.

9. The pertinent observations made
by Apex Court in para 127 of Tulsiram
Patel's case (supra) are quoted as under:-

"Not much remains to be said about
clause (a) of the second proviso to Article
311 (2). To recapitulate briefly, where a
disciplinary authority comes to know that
a government servant has been convicted
402 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
on a criminal charge, it must consider
whether his conduct which has led to his
conviction was such as warrants the
imposition of a penalty and, if so, what
that penalty should be. For that purpose it
will have to peruse the judgment of the
criminal court and consider all the facts
and circumstances of the case and the
various factors set out in challappan's case
(AIR 1975 SC 2216). This, however, has
to be done by it ex parte and by itself.
Once the disciplinary authority reaches
the conclusion that the government
servant's conduct was such as to require
his dismissal or removal from service or
reduction in rank he must decide which of
these three penalties should be imposed
on him. This too it has to do by itself and
without
hearing
the
concerned
government servant by reason of the
exclusionary effect of the second proviso.
The disciplinary authority must, however,
bear in mind that a conviction on a
criminal charge does not automatically
entail dismissal, removal or reduction in
rank
of
the
concerned
government
servant. Having decided which of these
three penalties is required to be imposed,
he has to pass the requisite order. A
government servant who is aggrieved by
the penalty imposed can agitate in appeal,
revision or review, as the case may be,
that the penalty was too severe or
excessive and not warranted by the facts
and circumstances of the case. If it is his
case that he is not the government servant
who has been in fact convicted, he can
also agitate this question in appeal,
revision or review. If he fails in all the
departmental remedies and still wants to
pursue the matter, he can invoke the
court's power of judicial review subject to
the court permitting it. If the court finds
that he was not in fact the person
convicted, it will strike down the
impugned order and order him to be
reinstated in service. Where the court
finds that the penalty imposed by the
impugned order is arbitrary or grossly
excessive or out of all proportion to the
offence committed or not warranted by
the facts and circumstances of the case or
the
requirements
of
that
particular
government service the court will also
strike down the impugned order. Thus, in
Shankar Dass v. Union of India (1985) 2
SCC 358 : (AIR 1985 SC 772) this Court
set aside the impugned order of penalty
on the ground that the penalty of
dismissal from service imposed upon the
appellant was whimsical and ordered his
reinstatement in service with full back
wages. It is, however, not necessary that
the
court
should
always
order
reinstatement. The court can instead
substitute a penalty which in its opinion
would be just and proper in the
circumstances of the case."

10. Thus, from the aforesaid
observations it is clear that where a
disciplinary authority comes to know that
a Government servant has been convicted
in a criminal charge, it must consider
whether his conduct which has led to his
conviction was such as warrants the
imposition of penalty and if so what that
penalty should be? For that purpose it will
have to peruse the judgment of criminal
court and consider all the facts and
circumstances of the case and other
various relevant factors. But such exercise
has to be done ex-parte by the disciplinary
authority itself and once the disciplinary
authority reaches the conclusion that
Government servant's conduct was such
as to require his dismissal or removal
from service or reduction in rank, he must
decide which of these three penalties
should be imposed on him. This too has to
1 All] Sadanand Vs. District Judge, Allahabad
403
be done without hearing the concerned
Government servant by reason of the
exclusionary effect of IInd proviso to
Article 311 (2) of the Constitution of
India. The disciplinary authority must,
however, bear in mind that a conviction
on
a
criminal
charge
does
not
automatically entail dismissal, removal or
reduction
in
rank
of
concerned
Government servant. Having decided
which of these three penalties is required
to be imposed, he has to pass requisite
order.

11. In instant case it appears that
after conviction of the petitioner under
Sections
366
and
376
I.P.C.,
the
disciplinary authority has undertaken the
aforesaid exercise required to be taken by
him under law by seeking report of
preliminary inquiry and by perusing
judgment of conviction passed by the trial
court against the petitioner and it was
found that since the petitioner has been
convicted under Section 366 and 376
I.P.C. with 7 years imprisonment and that
the aforesaid offences involved moral
turpitude and that he was not sure that the
petitioner would be exonerated from the
said charges in appeal or not, therefore, it
was not found desirable to retain the
petitioner in services by keeping him
under suspension and since the petitioner
was
temporary
employee,
therefore,
instead of removing or dismissing the
petitioner from service he thought proper
to terminate the services of the petitioner
under 1975 Rules by simpliciter order of
termination.

12. Now further question arises for
consideration that as to whether being a
repository of power under clause (a) of
proviso IInd to Article 311(2) of the
Constitution of India and under 1975
Rules the order passed by the District
Judge terminating the services of the
petitioner
by
order
of
simpliciter
termination,
in
given
facts
and
circumstances of the case, can be faulted
with merely because of the reason that he
has referred wrong provision of law
and/or exercised his power under 1975
Rules instead of under clause (a) of IInd
Proviso to Article 311 (2) of the
Constitution of India. In this connection,
it is to be noted that it is well settled that
even a mentioning of a wrong provision
or omission to mention the provisions
which contains the power will not
invalidate an order where the source of
such power exist. Therefore, in my
opinion, the omission to mention the
relevant clause of IInd proviso to Article
311 (2) of the Constitution in the
impugned order will not have the effect of
invalidating the impugned order of
termination and such order of termination
can be saved by reading the same having
been passed under the applicable clause of
IInd proviso to Article 311 (2) of the
Constitution of India. Having regard to
the facts and circumstances of the case,
since the petitioner has been convicted
under section 366 and 376 I.P.C. which
involves the offence of moral turpitude,
therefore, I am of the considered opinion
that the petitioner's removal from service
on account of his conviction in aforesaid
offence cannot be faulted with and further
the order passed by the District Judge,
Allahabad terminating his services by
way
of
simpliciter
termination
in
purported exercise of power under 1975
Rules should be treated to be the removal
of the petitioner from service under clause
(a) of IInd proviso of Article 311 (2) of
the Constitution of India.
404 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

13. Lastly a further question arises
for consideration that as to whether the
disciplinary authority was required to
hold his hand and continue to keep the
petitioner in service after his conviction
under section 366 and 375 I.P.C. till
disposal of his pending appeal before this
Court or not? In this connection, learned
counsel for the petitioner could not point
out any specific rule under which during
the pendency of said criminal appeal the
disciplinary authority could stay his hand
and could not pass the order of
termination or punishment removing the
petitioner from service on account of his
conviction in aforesaid offences.

14. The Apex Court has occasion to
consider the same issue in Deputy
Director
of
Collegiate
Education
(Administration) Madras Vs. S. Nagoor
Meera A.I.R. 1995 SC 1364, wherein it
has been held that taking proceedings of
and passing orders of dismissal, removal
or reduction in rank of a Government
servant who has been convicted by a
criminal court is not barred merely
because the sentences or the order is
suspended by appellate court or on the
ground that the said Government servantaccused has been released on bail pending
appeal. It was further observed that it
cannot be said that until appeal against
conviction is disposed of, action under
clause (a) of IInd proviso to Article 311
(2) is not permissible. It was further held
that more appropriate course in all such
cases is to take action under clause (a) of
IInd proviso to Article 311 (2) once a
Government servant is convicted on a
criminal charge and not to wait for the
disposal of appeal or revision, as the case
may be. If, however, the Government
servant-accused is acquitted in appeal or
other proceeding, the order can always be
revised and if the Government servant is
reinstated, he will be entitled to all the
benefits to which he would have been
entitled to had he continued in service.

15. The pertinent observations made
by the Apex Court in aforesaid case in
paras 7 and 9 of the decision are quoted as
under:-

"7. This clause, it is relevant to
notice, speaks of "conduct which has led
his conviction on a criminal charge". It
does not speak of sentence or punishment
awarded. Merely because the sentence is
suspended and/or the accused is released
on bail, the conviction does not cease to
be operative. Section 389 of the Code of
Criminal Procedure, 1973 empowers the
appellate court to order that pending the
appeal "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."
Section 389(1), it may be noted, speaks of
suspending "the execution of the sentence
or order", it does not expressly speak of
suspension of conviction. Even so, it may
be possible to say that in certain
situations, the appellate court may also
have the power to suspend the conviction
- an aspect dealt with recently in Rama
Narang v. Ramesh Narang (1995 (1) J.T.
515). At pages 524 and 525, the position
under Section 389 is stated thus:

"Section
389(1)
empowers
the
Appellate Court to order that the execution
of the sentence or order appealed against be
suspended pending the appeal. What can be
suspended under this provision is the
execution of the sentence or the execution
of the order. Does 'Order' in Section 389(1)
empowers the Appellate Court to order that
the execution of the sentence or order
1 All] Sadanand Vs. District Judge, Allahabad
405
appealed against be suspended pending the
appeal. What can be suspended under this
provision is the execution of the sentence or
the execution of the order. Does 'Order' in-
Section 389(1) mean order of conviction or
an order similar to the one under Sections
357 or 360 or the Code? Obviously, the
order referred to in Section 389(1) must be
an order capable in execution. An order of
conviction by itself is not capable of
execution under the Code. It is the order of
sentence
or
an
order
awarding
compensation or imposing fine or release on
probation which are capable of execution
and which if not suspended, would be
required
to
be
executed
by
the
authorities...... In certain situations the order
of conviction can be executable, in the
sense, it may incur a disqualification as in
the instant case. In such a case the power
under Section 389(1) of the Code would be
invoked. in such situations, the attention of
the Appellate Court must be specifically
invited to die consequence that is likely to
fall to enable it to apply its mind to the issue
since under Section 389(1) it is under an
obligation to support its order 'for reasons to
be recorded by it in writing'. If the attention
of the Court is not invited to this specific
consequence which is likely to fall upon
conviction how can it be expected to assign
reasons relevant thereto?...... If such, a
precise request was made to the Court
pointing out the consequences likely to fall
on the continuance of the conviction order,
the Court would have applied its mind to
the specific question and if it thought that
case was made out for grant of interim stay
of the conviction order, with or without
conditions attached thereto, it may have
granted an order to that effect.

9. ........If, however, the government
servant- accused is acquitted on appeal or
other proceeding, the order can always be
revised and if the government servant is
reinstated, he will be entitled to all the
benefits to which he would have been
entitled to had he continued in service.
The, other course suggested, viz., to wait
till the appeal, revision and other
remedies are over, would not be advisable
since it would mean continuing in service
a person who has been convicted of a
serious offence by a criminal court. It
should be remembered that the action
under clause (a) of the second proviso to
Article 311(2) will be taken only where
the conduct which has led to his
conviction is such that it deserves any of
the three major punishments mentioned in
Article 311(2). As held by this court in
Shankardass v. Union of India (1985 (2)
S.C.R. 358):

"Clause (a) of the second proviso to
Article 311(2) of the Constitution confers
on the government the power to dismiss a
person from services "on the ground of
conduct which has led to his conviction
on a criminal charge." But that power like
every other power has to be exercised
fairly, justly and reasonably. Surely, the
Constitution does not contemplate that a
government servant who is convicted for
parking his scooter in a no-parking area
should be dismissed from service. He may
perhaps not be entitled to be heard on the
question of penalty since clause (a) of the
second proviso to Article 311(2) makes the
provisions of that article inapplicable when
a penalty is to be imposed on a Government
servant on the ground of conduct which has
led to his conviction on a criminal charge.
But the right to impose a penalty carries
with it the duty to act justly."

16. In view of settled legal position
and foregoing discussion I am of the
considered opinion that once the petitioner
406 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
is convicted on criminal charge u/s 366/376
I.P.C. involving offence of moral turpitude
until the order of conviction is set aside in
pending appeal or other proceeding, its
effect and impact cannot be completely
wiped off or ceased to operate merely
because of execution of sentence or order
appealed against was suspended or stayed
and the petitioner was released on bail
during the pendency of said appeal.
However, in case petitioner's appeal would
be allowed and he would be exonerated
from the criminal charge or acquitted in
appeal or other proceeding, it will always be
open for the petitioner to approach the
District Judge, Allahabad, who in turn will
pass appropriate order. But in given facts
and circumstances of the case, at this stage
it is very difficult for this Court to interfere
in the impugned order of termination of
services of the petitioner.

17. Writ petition accordingly stands
dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 13238 Of 2013

Mahip Narayan Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Girijesh Tiwari

Counsel for the Respondents:
C.S.C.
Sri Jay Ram Pandey

Constitution
of
India,
Art.-226-
Cancellation of appointment of A.B.R.C.-
made by Distt. Basic Education Officer-on
stop gap arrangement basis-till regular
selection made-argument unless regular
selection made-can not be ousted-held-in
absence of provision regarding stop gap
arrangement -appointment itself illegalcancellation-held-proper.

Held: Para-6

I have perused the appointment order
which categorically recites that the
petitioner
was
being
appointed
till
selections are held. In the aforesaid
circumstances, the appointment of the
petitioner does not appear to have been
made in accordance with the prevalent
rules. The Government Order nowhere
indicates that the Basic Education Officer
has
the
authority
to
make
an
appointment by way of a stop gap
arrangement.
In
the
circumstances,
appointment of the petitioner does not
appear to have been made in accordance
with the Government Order.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J)

1. Heard learned counsel for the
petitioner who prays for quashing of the
order dated 18.12.2012 and 20.2.2013
whereby his continuance as an Assistant
Block Resource Coordinator has been
annulled
on
the
ground
that
the
petitioner's appointment was not in
accordance with rules.

2. The contention of Sri Tripathi, is
that this order has been passed at the
behest of the direction issued by the
District Magistrate who is no authority in
the matter, and therefore, the order having
been passed on the dictate of the superior
authority who is not the statutory
authority
amounts
to
surrender
of
jurisdiction. He therefore contends that
the impugned order deserves to be
quashed.