ORDER
D.S.R. Varma, J.
1. Heard the learned Government Pleader for Services-I, appearing for the petitioners, as well as the learned Counsel appearing for the respondent.
2. This Writ of Certiorari is filed, under Article 226 of the Constitution of India, seeking to quash the order, dated 6-11-2007, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for brevity ‘the Tribunal’), allowing O.A. No.4517 of 2007, filed by the respondent herein, seeking to set aside the proceedings Rc. No. A1/2203/2001/Proceedings No. 201/2007, dated 7-7-2007, of the Chief Rationing Officer, Hyderabad, petitioner No. 1 herein. Petitioners are the respondents and the respondent is the applicant, in the O.A., before the Tribunal. For the sake of convenience, in this order, the petitioners and the respondent will be referred to as “the petitioner No. 1 and petitioner No. 2” and “the respondent”, respectively.
3. The facts, in brief, are that the respondent, while working as a Senior Assistant under the respondent No. 1, was implicated in a trap case by the A.C.B., authorities for receiving illegal gratification. Subsequently, he was placed under suspension and thereafter reinstated into service. A case in C.C. No. 3 of 2003 was registered before the Principal Special Judge for S.P.E., and A.C.B., Cases, Hyderabad (for brevity “the trial Court”), in which the respondent was convicted and sentenced to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 1,000/-. Aggrieved by the same, the respondent had preferred an appeal Criminal Appeal No.638 of 2007, along with Crl.A.M.P. No. 899 of 2007, in which this Court, by order, dated 12-6-2007, has suspended the sentence imposed against him. Thereafter, the competent authority i.e., petitioner No. 1, passed order vide proceedings Rc. No. A1/2203/2001, dated 7-7-2007, dismissing the respondent from service, without conducting any enquiry, as postulated under Rule 9(x) read with Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for brevity “the Rules”). Challenging the said order, dated 7-7-2007, the respondent has filed O.A. No. 4517 of 2007 before the Tribunal.
4. The Tribunal, after hearing both sides and considering the entire material, available on record, allowed the O.A., setting aside the dismissal order, dated 7-7-2007. Aggrieved by the same, the petitioners have filed the present writ petition.
5. From a perusal of the impugned order, it appears that the respondent was involved in a criminal case for receiving illegal gratification. After a full-fledged trial, he was convicted and sentenced also. On appeal, this Court, by order, dated 12-6-2007, suspended the sentence only, but not the conviction. As a sequel of the said order of conviction and sentence, by the trial Court, the petitioner No. 1 had passed order of dismissal of the respondent from service, as postulated under the Rules. Aggrieved thereby, the respondent had filed O.A. No. 4517 of 2007 before the Tribunal.
6. Notwithstanding the rule position, contemplated under the Rules, the Tribunal had allowed the O.A., placing reliance on the judgment, dated 7-8-2007, passed by a Division Bench of this Court, in W.P. No. 16102 of 2007, whereunder and whereby, in similar circumstances, the order of dismissal was set aside.
7. The said judgment, dated 7-8-2007, of the Division Bench of this Court, in W.P. No. 16102 of 2007, was placed before us wherein reliance was placed on Rule 25 of the Rules.
8. For the sake of convenience and ready reference, it is apt to extract Rule 25 of the Rules, which reads thus:
Rule 25. Special procedure in certain cases: Notwithstanding anything contained in Rule 20 to Rule 24-
(i) where 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 Governor 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 as it deems fit:
Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.
[Provided further that no such consultation with the Commission is necessary before any orders are made q under Clause (i) of this rule].
9. Sub-rules (ii) and (iii) of Rule 25 of the Rules deal with the circumstances where an enquiry is reasonably found to be impracticable or in the interest of the security of the State, it is not expedient to hold any enquiry. But, as per Sub-rule (i), the disciplinary authority, notwithstanding anything contained in Rules 20 to 24 of the Rules, may consider the over all circumstances of the case and pass appropriate orders as it deems fit.
10. From the above, it is obvious that the disciplinary authority, depending upon the facts and circumstances, mentioned in Sub-rules (i), (ii) and (iii) of Rule 25 of the Rules, can exercise its discretionary jurisdiction to some extent and pass appropriate orders. The expression “appropriate orders” would include imposition of any penalty, as provided under Rule 9, even without conducting any enquiry.
11. Basing on the said rule position, it was further held by the Division Bench of this Court, in W.P. No.16102of 2007, as under:
Thus, the above provisions make it clear that in case of conviction in a criminal proceedings, the disciplinary authority may consider the circumstances of the case and make such orders as it deems fit. But, at this juncture, it is not out of place to mention that on the conviction and sentence imposed against the applicant by the A.C.B., Court, the applicant has preferred an appeal before this Court in Crl.A. 371 of 2007 wherein the sentence imposed by the A.C.B., Court has been suspended and the said appeal is pending adjudication. At this stage, the G.O., in question has been issued y the 1st respondent dismissing the applicant. In this regard, it is needless to observe that in view of the pendency of the criminal appeal as well as the suspension of the sentence imposed by the A.C.B., Court, the judgment passed by the A.C.B., Court has not become final. Therefore, passing of G.O.Ms. No. 91, at this stage, amounts to violation of the special procedure as laid down under Rule 25 of the Rules and thereby, the same is hit by the principle of subjudice.
12. However, the learned Government Pleader for Services I, appearing for the petitioners, has brought to the notice of this Court the judgment, dated 7-9-2006 (sic. 27-9-2006), rendered by another Division Bench of this Court, in W.P. No. 13421 of 2006 and batch (Municipal Corporation of Guntur v. B. Syamala Kumari), in which the entire gamut of the controversy on the present issue, had been taken into consideration, including the effect of suspension of sentence by the appellate Court, and held as under:
…While the damage suffered by the delinquent government servant can be adequately compensated later, when final orders are passed setting aside an illegal order of dismissal, an interim order, pending disposal of the O.A., directing that such a government servant be continued in service would seriously impair the integrity and efficiency of Public Service and demoralize other honest government servants. The incalculable harm which such orders can cause, if eventually the O.A. was to be dismissed, cannot be over-emphasized. The Tribunal must exercise caution while passing interlocutory orders of this nature.
13. In the said judgment, dated 7-9-2006 (sic. 27-9-2006), in W.P. No. 13421 of 2006 and batch, the Division Bench further discussed the aspect of Rule 25(i) of the Rules and as per the observations of the said Division Bench the expression “conduct” has different connotations, depending upon the facts and circumstances of each case.
14. Any conduct can be brought into the fold of Sub-rule (i) of Rule 25 of the Rules, for the purpose of imposing any punishment, without conducting any enquiry. However, the punishment shall commensurate with the gravity of misconduct.
15. The said Division Bench, while relying on a judgment of the apex Court in Managing Director ECIL, Hyderabad v. B. Karunakar , illustratively pointed out that if somebody is imposed with some penalty for traffic violation, such imposition of penalty, though can be brought into the fold of the expression “conduct”, as referred to under Article 311(2) of the Constitution of India as well as Rule 25(i) of the Rules, a simple punishment can be imposed, basing on the alleged misconduct. In other words, it need not necessarily result in dismissal of service, in all cases, where an employee has been convicted.
16. It was further pointed out by the said Division Bench that Rule 20 (1) of the Rules prohibits imposition of penalties, specified in Clauses (vi) to (x) of Rule 9 of the Rules, except after an enquiry is held in the manner specified under Rules 20 and 21 of the Rules.
17. In this context’, the learned Government Pleader for Services I, appearing for the petitioners, would submit that in view of the proviso to Sub-rule (x) of Rule 9 of the Rules, the incumbent has to be necessarily dismissed from service.
18. But, it is to be remembered that in the light of the observations made by the Division Bench of this Court, in the order, dated 27-9-2006 in W.P. No. 13421 of 2006 and batch, such a conclusion can be arrived at only after the enquiry is conducted by the Department, as contemplated under Rules 20 and 21 of the Rules. Therefore, the above contention of the learned Government Pleader cannot be sustained.
19. In fact, as per Rule 25 of the Rules, the disciplinary authority has got a wider scope and discretionary jurisdiction to impose punishment or not, including the quantum of punishment.
20. This situation has been made clear in the decision of the apex Court, as was observed by the Division Bench of this Court, in the above said batch of writ petitions, in K.C. Sareen v. C.B.I., Chandigarh 2001 AIR SCW 3339.
21. However, a word of caution has been added by the said Division Bench to the effect that the power conferred under Rule 25(i) of the Rules has to be exercised fairly, justly and reasonably, following the observations made by the apex Court in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera . In other words, the disciplinary authority has to necessarily take into account the entire conduct of the delinquent officer and the gravity of the misconduct and also as to whether such misconduct would have any impact on the administration.
22. In this context, we feel it apposite to extract the observations made by the Division Bench of this Court, in W.P. No. 13421 of 2006 and batch, dated 27-9-2006, while dealing with the scope of Rule 25 and 25(i) of the Rules, which is as under:
Under the 1st proviso to Rule 9 of the A.P.C.S. (C.C. & A) Rules, 1991, in every case in which the charge of acceptance from any person of any gratification, other than the legal remuneration, as a motive or reward for providing or forbearing to provide any official acts, is established the penalty of removal or dismissal is required to be imposed. Under Rule 20(1) all major penalties, including the punishment of removal or dismissal under Rule 9, can only be imposed after an enquiry is held. The first proviso to Rule 9 was substituted by G.O.Ms. No. 205, dated 5-6-1998. The very fact that such a proviso was inserted in Rule 9, and not in Rule 25, can only mean that the discretion conferred on the disciplinary authority under Rule 25(i), to consider the facts and circumstances of the case and make such orders thereon as it deems fit, is not circumscribed by the limitation prescribed under the first proviso to Rule 9.
23. Therefore, the law is well settled that mere suspension of sentence shall not necessarily lead to any kind of penalty as enumerated under Clauses (vi) to (x) of Rule 9 of the Rules.
24. Of course, in Service law Jurisprudence, it has been reiterated that the suspension of conviction and sentence together is totally alien to the Service jurisdiction. But, it was made very clear that such jurisdiction of suspending the conviction shall be in rarest or exceptional cases, depending upon the facts and circumstances of each case. But, suspension of sentence, by itself, does not confer any right to interfere with any penalty imposed by the disciplinary authority, exercising its jurisdiction under Rule 25(i) of the Rules.
25. In the present case, it is on record that the respondent was charge-sheeted for receiving illegal gratification and the conviction, imposed by the trial Court, in the criminal case registered against him, is not suspended. So long as the conviction is not suspended, the same shall be deemed to be in operation and the effect of the said conviction does not cease.
26. From the above facts and circumstances, particularly keeping in view the nature of charges levelled against the respondent and the consequential conviction and sentence, recorded by the trial Court, inasmuch as, the sentence only has been suspended by this Court, we are of the view that the order of dismissal of the respondent from service, passed by the disciplinary authority, exercising the jurisdiction under Rule 25(i) of the Rules, does not warrant any interference by this Court.
27. From a perusal of the judgment, dated 7-8-2007, passed by the Division Bench of this Court, in W.P. No. 16102 of 2007, relied on by the Tribunal, it is obvious that none of the judgments of the apex Court as well as this Court in W.P. No. 13421 of 2006 and batch, dated 27-9-2006, were brought to the notice of either the said Division Bench or the Tribunal. We are of the view that had the observations and the decisions of the apex Court, including the decision in Sareen’s case 2001 AIR SCW 3339, been brought to the notice of the said Division Bench of this Court, the judgment rendered by it in W.P. No. 13421 of 2006 and batch, dated 27-9-2006 (sic. W.P. No. 16102 of 2007 dated 7-8-2007), would have been otherwise.
28. From the judgment, dated 7-8-2007, in W.P. No. 16102 of 2007, we could see the observations of the Division Bench, and for the sake of convenience, it is apt to extract the relevant portion of the said observations, which is thus:
…So the respondents have power to keep the public servant out of service after the conviction till the conviction became final to pass appropriate orders in accordance with Rule 25 of the A.P.C.S. (CC & A) Rules viz., after the conviction becomes final, the orders can be passed under Rule 25 of A.P.C.S. (CC & A) Rules. Till then, it is always open for them to exercise powers under Rule 8(2)(b) of the A.P.C.S. (CC & A) Rules, 1991 to keep the convicted Government servant out of service or employment, pending finalisation or confirmation of the conviction by the appellate/revisional courts and passing orders under Rule 25 of A.P.C.S., (CC & A) Rules, 1991.
29. The above observations of the Division Bench appear to be contrary to the settled legal proposition laid down by the apex Court as well as Rule 25 of the Rules.
30. We are of the further view that the observations of the Tribunal are totally in conflict with the clear intent of Rule 25(i) of the Rules and the object thereof. Therefore, we are of the firm view that the Tribunal had totally misread the scope of Rule 25(i) of the Rules, while making the above observations, contrary to the principles laid down by the apex Court in Sareen’s case 2001 AIR SCW 3339.
31. Therefore, following the judgments of the apex Court in Sareen’s case 2001 AIR SCW 3339 and Nagoor Meera’s case AIR 1995 SC 1364, since the same are binding on this Court, the impugned order is liable to be set aside.
32. In the result, the writ petition is allowed, at the stage of admission, setting aside the order, dated 6-11-2007, passed by the Tribunal, in O.A. No. 4517 of 2007. However, there shall be no order as to costs.
