ORDER
1. Facts of the case are that the appellant Harcharan Singh is convicted under S. 5(2) of the Prevention of Corruption Act and sentenced to undergo Rigorous Imprisonment for 5 years with a fine of Rs. 2000/-. He is also convicted under S. 161 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for one year with a fine of Rs. 1000/-.
2. The appeal was admitted on 14-10-1988. On this date his prayer for bail was accepted; recovery of fine was also stayed. In this Criminal Miscellaneous application No. 4471 of 1998, the petitioner has averred that after being released on bail, he rejoined his service as a Lower Division Clerk with Punjab State Electricity Board at Mukerian Hydel Project at Patiala. He is due to retire from service on 28-2-1998. In para No. 7, the averment is as under :-
“That the appellant has learnt that Punjab State Electricity Board is taking active steps to dismiss the appellant on account of his conviction in the present case.”
3. In subsequent para, he has mentioned that if he is dismissed from service due to his conviction, he is likely to loose all retiral benefits. He has no other source of income except his salary and after retirement, his retiral benefits. Therefore, it is prayed that during the pendency of the appeal, operation of the impugned judgment of conviction and sentence dated 3-10-1988 be stayed. In the attached affidavit, the appellant has sworn on oath the averments made in para No. 7 verbatim and in the verification clause, he has mentioned that these facts are true and correct to his knowledge and belief.
4. Petitioner’s learned counsel vehemently argued that if operation of his conviction is not stayed, the Punjab State Electricity Board is going to dismiss him from service and thus to deny him all his retiral benefits including pension. Therefore, the learned counsel submits that in the interest of justice, operation of the order of conviction be stayed as not to entail any disqualification/damage to the petitioner so far his service/retiral benefits are concerned. To support his contention, he has relied on Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, AIR 1995 SC 1364 and State of Tamil Nadu v. Jaganathan, 1996 Cri LJ 3495 : (AIR 1996 SC 2449).
5. After hearing the appellant’s learned counsel at length, in my considered view, the aforesaid relief cannot be granted in this case.
6. In Rama Narang v. Ramesh Narang (1995) 1 JT (SC) 515, the Apex Court has held :-
“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 S. 389(1) empower 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 execution of the order. Does ‘Order’ in S. 389(1) mean order of conviction or an order similar to the one under S. 357 or 360 of the Code ? Obviously, the order referred to in S. 389(1) must be an order capable of 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 S. 389(1) of the Code should be invoked. In such situations, the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under S. 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.”
7. In Jaganathan’s case (1996 Cri LJ 3495) (supra), the Apex Court considered the provisions of S. 389(1), Code of Criminal Procedure and observed that in Rama Narang’s case (1995 (1) JT (SC) 515) (supra), the conviction and sentence both were suspended on the reasoning that if the conviction and sentences are not suspended the damage would be caused which could not be undone if ultimately the revision of the appellants of that case is allowed. In Jaganathan’s case (1996 Cri LJ 3495) (supra), their Lordships held as under (at p. 3496 of Cri LJ) :-
“But in the present case, we find that in the event the revisions against their conviction and sentences are allowed by the High Court the damage, if any, caused to the respondents with regard to payment of stipend etc. can well be revived and made good to the respondents. If such trifling matters are taken into consideration, we think, then every conviction will have to be suspended pending appeal or revision involving the slightest disadvantage to a convict. That being so the facts of the decision relied on have no application to the present case. This apart, the High Court though made an observation but did not consider at all the moral conduct of the respondents inasmuch as respondent Jaganathan who was the Police Inspector attached to Erode Police Station has been convicted under Ss. 392, 218 and 466, IPC, while the other respondents who are also public servants have been convicted under the provisions of Prevention of Corruption Act. In such a case the discretionary power to suspend the conviction either under S. 389(1) or under S. 482, Cr.P.C. should not have been exercised. The orders impugned thus cannot be sustained.”
8. In Nagoor Meera’s case (AIR 1995 SC 1364) (supra), the Apex Court has considered the situation where after conviction the Government servant is liable to be dismissed. On that ground, the Apex Court has held :-
“Taking proceedings for and passing order 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 sentence or order is suspended by the appellate Court or on the ground that the said Government servant-accused has been released on bail pending the appeal. It cannot be said that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Art. 311(2) is not permissible. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Art. 311(2) once a Government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. 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. The action under clause (a) of the second proviso to Art. 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 Art. 311(2).”
9. In view of these judgments of the Apex Court, the operation of the order of conviction can be suspended if circumstances so warrant. In this case the appellant is going to retire on 28-2-1998, i.e., tomorrow. He has not averred that he has received any show cause notice for his dismissal. In the petition as well as in his affidavit, he has not disclosed the source of information through which he came to know that the Punjab State Electricity Board is taking active steps to dismiss him due to his conviction in this case.
10. Even if it be true that the Punjab State Electricity Board is proceeding to dismiss the appellant from service, there is no reason to hold that the damage likely to be caused to the appellant on being dismissed could not be undone if ultimately the appeal is allowed and he is acquitted of both the charges. In case appeal is allowed, damage, if any, caused to the appellant with regard to payment of pension and other retiral benefits can well be revived and made good to the appellant. As the Apex Court has observed that if such trifling matters are taken into consideration, then every conviction will have to be suspended pending appeal or revision involving the slightest disadvantage to a convict. This appeal is not a case of that type where such type of discretionary power to suspend the conviction either under Ss. 389 and 482 of the Code of Criminal Procedure should be exercised.
Accordingly, the petition is dismissed without issuing notice to the respondent.
11. Petition dismissed.