JUDGMENT
K.S. Radharkrishnan, J.
1. The question that has come up for consideration in this case is whether a person
convicted of offence under Sections 403 and 409 IPC and who is still continuing in service
is entitled to claim as of right increment, grade promotion, pay revision etc. Learned
single rejected the claim. Aggrieved by the same this appeal has been preferred.
2. Writ Petitioner while working as Headmaster of Korom Devisahayam A.U.P.
School misappropriated money in ‘Sanchaika’ scheme. Consequently he was convicted
and sentenced to undergo simple imprisonment for three years under Section 403 and simple
imprisonment for one year under Section 409 IPC by the Judicial First Class Magistrate,
Payyannur. Matter was carried in appeal to the Additional Sessions Court, Thalassery
in Crl. Appeal No. 70 of 1997. The Sessions Court suspended the sentence and not
the conviction. Impact of the said preceding on the claim for increment, grade
promotion, pay revision etc. is the issue involved in the case. Though the appellant
was convicted by the criminal court he was allowed to continue in the school as
Assistant Teacher. He raised claim for annual increment, grade promotion etc. Same
was rejected by the Assistant Educational Officer as well as the Deputy Director of
Education, Kannur. Further he was also informed that the service book is also with
the criminal court.
3. We are of the view that a person who is n service cannot as a matter of right
claim annual increment, grade promotion, pay revision etc. since he was already found
guilty by the criminal court. It is true he has filed an appeal but the appellate court
stayed only the sentence and not the conviction. It is always open for the Department
to take action against him under Rule 18 of the Kerala Civil Services (Classification,
Control and Appeal) Rules. Mere fact that he was allowed to continue in service
does not mean that he is entitled as of right to increment, higher grade, pay revision
etc. The charge levelled against the appellant is criminal breach of trust. Apex Court
in K.C. Sareen v. C.B.I., Chandigarh (2001 (6) SCC 584) cautioned criminal court
that the order of conviction be suspended only in exceptional cases. The Court held
as follows:
“The legal position, therefore, is this: though the power to suspend an order of conviction,
apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited
to very exceptional cases. Merely because the convicted person filed an appeal in challenge of
the conviction the court should not suspend the operation of the order of conviction. The court
has a duty to look at all aspect including the ramifications of keeping such conviction in abeyance.”
The Court also held:
“When a public servant is found guilty of corruption after a judicial adjudicatory process
conducted by a court of law, judiciousness demands that he should be treated as corrupt until
he is exonerated by a superior court. The mere fact that an appellate or revisional forum has
decided to entertain his challenge and to go into the issues and findings made against such public
servants once again should not even temporarily absolve him from such findings. If such a public
servant becomes entitled to hold public office and to continue to do official acts until he is
judicially absolved form such findings by reason of suspension of the order of conviction, it is
public interest which suffers and sometimes, even irreparably”
In view of the above judicial pronouncement and in view of the fact that the appellate
court has not yet stayed the order of conviction, we concur with the view of the
learned Judge and reject the claim of the appellant for increment, grade promotion and
pay revision. We find no infirmity in the departmental authorities rejecting the claim.
Appeal therefore lacks merits and ti is accordingly dismissed.