Criminal Appeal No. 1019 of 2003 · Uttarakhand High Court

challenged the aforesaid orders on other grounds as well. Counter affidavit has been filed by the State in which the impugned orders dated 24.7.2003 and

30.7.2003 have been justified. Further recourse has been taken in the counter affidavit to the Government Order dated 12.10.1979 which says that if an appeal is filed against the order of conviction and even if the same has been admitted, an employee against whom criminal appeal is pending is liable to be dismissed under Article 311 (2) (a). Be that as it may, consequent to the filing of the writ petition, learned counsel for the petitioner has moved a Civil Miscellaneous Application No. 1965 of 2005 by which another fact has been brought to the record which is that the execution of sentence awarded by the trial court has been stayed by order dated

21.11.2003 which has been passed by a learned Single Judge of the High Court of Judicature at Allahabad in a 4 pending Criminal Appeal of the petitioner bearing No. 1019 of 2003, which reads as follows :- (cid:147)Heard learned counsel for the appellant Sri Shashank Shekhar. None appeared on behalf of other party. Perused the order dated 5.3.03 passed by this court whereby appellants have already been granted bail. It is submitted that the appellant no. 2 Dalchand is a teacher and has been in service since 1.10.1988. During trial he was in service but after conviction he has been terminated from the service vide annexures 1 and 2 and his sentence awarded by the court below be suspended. aforesaid Considering submission made by for the appellant, execution of sentence awarded by court below Dalchand shall remain stayed until further order of the court. (cid:148) learned counsel Although, no formal amendment has been made in the writ petition, learned counsel for the petitioner contends that since the High Court of Judicature at Allahabad has stayed the execution of sentence awarded to the petitioner, he is liable to be reinstated in service and the order of termination of his services is liable to be set aside.

This argument of the petitioner is wholly misconceived, for the simple reason what has been stayed by the High Court of Judicature at Allahabad is the execution of the sentence and not the (cid:147)conviction(cid:148) of the petitioner. Requirement under Article 311 (2) (a) is (cid:147)conviction on a criminal charge(cid:148). The conviction of the petitioner under Sections 302/34, 201 I.P.C. by a competent criminal court still stands and, therefore, the argument of the petitioner is wholly misconceived. Moreover, where the execution of sentence is stayed no benefit can be granted to the petitioner presently in the writ petition, as has been laid down by the Supreme Court in Union of India and others v. Ramesh Kumar 5 (1997) 7 SCC 514. The Supreme Court in the above case has held that in cases where an employee is dismissed from service on the ground of his misconduct leading to his conviction by a competent court of law, it will not loose its sting merely because a criminal appeal has been filed against the order of conviction and the appellate court has suspended the execution of sentence and enlarged the employee on bail.

All the same, what is important is what has already been stated above, the order of the conviction against the petitioner still stands and has not been stayed. Towards the end of the arguments, learned counsel for the petitioner states that there is a provision for appeal under Section 11 of the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003 and he may be permitted to file an appeal. It is too late in the day to make such a submission. This Court finds absolutely no merit in the writ petition, which is liable to be dismissed and is hereby dismissed. No order as to costs.

22.6.2010 Avneet (Sudhanshu Dhulia, J.)