Monday, 21 October 2019

Whether conviction of accused is suspended if his sentence is suspended?

In the light of the admitted position that it is only the
petitioner’s sentence which had been stayed by the High Court and
that there is no stay of the petitioner’s conviction under Section 363,
366, 368, 376 IPC, I find absolutely no merit in the petitioners’
contention. It is the settled legal position that mere suspension of
sentence or grant of bail to the accused in criminal proceedings,
cannot imply that the conviction ceases to operate. The only effect of
such suspension, during the pendency of an appeal, is that the accused
is protected from incarceration, and the same does not in any manner
affect the conviction order.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 15.10.2019
W.P.(C) 10100/2017 & CM No.41286/2017

SANTOSH KUMAR Vs  DELHI JAL BOARD
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI


1. The present writ petition under Articles 226 and 227 of the
Constitution of India filed by the workman assails the award dated
25.08.2017 passed by the learned Labour Court-XVII, Karkardooma
Courts, Delhi in LIR No.515/2017, whereunder the petitioner’s claim
for reinstatement in service has been rejected.
2. The petitioner, who was working as an Assistant Pump Driver
in the respondent/Delhi Jal Board was involved in an incident leading
to registration of a FIR No.51/2010 against him under Section 363,
366, 368 and 376 of the Indian Penal Code, 1860 (IPC) at Police
Station Kotwali Dehat, Bulandsahar, U.P. The petitioner came to be
arrested on 22.09.2010 and consequently he was on 09.02.2011 placed
under deemed suspension w.e.f. the date of his arrest, which
suspension continued from time to time.
3. After trial, the petitioner was convicted on 05.12.2011 under
Sections 363, 366, 368 and 376 IPC by the Court of the Additional

District and Sessions Judge, Bulandsahar, U.P and sentenced to life
imprisonment. The petitioner thereafter preferred an appeal before the
Hon’ble High Court of Judicature at Allahabad wherein, vide order
dated 18.02.2013, he has been granted bail and stay of the fine
imposed on him.
4. In the light of his conviction the respondent, after issuing him a
show cause notice, imposed the penalty of removal from service on
the petitioner on 02.08.2013 and consequently relieved him on
20.06.2014.
5. Aggrieved by his termination, the petitioner raised an industrial
dispute which came to be rejected after the labour Court found that the
disciplinary authority had, after considering the relevant factors,
rightly come to the conclusion that the petitioner’s further retention in
service was undesirable.
6. The present petition has been filed assailing the aforesaid award
passed by the Labour Court. Learned counsel for the petitioner
submits that even though the petitioner’s appeal is still pending
adjudication before the High Court, once his sentence stands
suspended and he has been released on bail, the respondent is duty
bound to take him back in service as the effect of the said suspension,
would tantamount to the order of conviction and sentence being
treated as non est. He, therefore, prays that the impugned award be
set aside as the same has been passed without properly appreciating
the effect of his sentence being suspended by the High Court.
7. Mr.Rameezuddin Raja, who appears on advance notice on
behalf of the respondent, while supporting the impugned order

submits that in view of the settled position that mere suspension of
sentence does not imply that the order of conviction has been stayed
or that the employer should ignore the fact and effect of such
conviction. He, therefore, prays that the writ petition be dismissed.
8. I have considered the submissions of the learned counsel for the
parties and with their assistance perused the record.
9. In the light of the admitted position that it is only the
petitioner’s sentence which had been stayed by the High Court and
that there is no stay of the petitioner’s conviction under Section 363,
366, 368, 376 IPC, I find absolutely no merit in the petitioners’
contention. It is the settled legal position that mere suspension of
sentence or grant of bail to the accused in criminal proceedings,
cannot imply that the conviction ceases to operate. The only effect of
such suspension, during the pendency of an appeal, is that the accused
is protected from incarceration, and the same does not in any manner
affect the conviction order.
10. In this regard, reference may be made to the decision in Union
of India & Ors. v. Ramesh Kumar AIR 1997 SC 3531, wherein the
Supreme Court held as under:-
“6. Rules 15. 2 and 15.3 as occurring in Chapter VII of
the Vigilance Manual are extracted below:
Chapter VII of Vigilance Manual (para 15.2 & 15.3)
15.2...accused public servant.
15.3. If the Disciplinary Authority comes to the conclusion
that the offence for which the publice servant has been
convicted was such as to retention in the public service
prima facie undesirable, it can impose upon him under Rule
19(1) of CCS (CCA) Rules, 1965, the penalty of dismissal or
removal or

compulsory retirement from service as may be considered
appropriate, with reference to the gravity of offence,
without holding any enquiry or giving him a show-cause
notice as provided in proviso to Article 311(2) of the
Constitution.
F.R. 54(1)… make a specific order:
(a) Regarding the pay and allowance to be paid to the Govt.
servant for the period of his absence from duty including the
period of suspension proceeding his dismissal, removal or
compulsory retirement; as the case may be; and
(b) Whether or not the said period shall be treated as period
spent on duty.”
11. In the light of the aforesaid, it is evident that even though the
petitioner’s sentence has been suspended during the pendency of his
appeal, the conviction order against him continues to operate. The
respondent, therefore, was justified in coming to the conclusion that
further retention of the petitioner in service was undesirable.
Needless to state that in case the petitioner is successful in his pending
challenge to the order of conviction before the High court, it will be
open for him to approach the respondent with a request to reconsider
his dismissal from service.
12. For the aforesaid reasons, this Court finds absolutely no
infirmity in the impugned award warranting exercise of its writ
jurisdiction under Article 226/227 of the Constitution of India.
13. At this stage, it is noticed that the present writ petition, which is
wholly meritless, could not be taken up for preliminary hearing for the
last two years mainly on account of non-availability of the learned
counsel for the petitioner. The writ petition along with pending
application is dismissed with costs of Rs.10,000/- payable to the Delhi

High Court Staff Welfare Fund within four weeks.
REKHA PALLI, J
OCTOBER 15, 2019

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