LPA No. 1367/2007 1

REPORTABLE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ LETTERS PATENT APPEAL No. 1367/2007

% Date of decision: March 30, 2009

BSES RAJDHANI POWER LIMITED .... Appellant

Through Mr. Sandeep Sethi, Sr. Advocate

with Mr. S.N. Choudhri, Advocate.

versus

MADAN MOHAN RATAWAL AND ANOTHER .... Respondents

Through Mr. G.D. Gupta, Sr. Advocate with

Mr. S.K. Sinha & Mr. Vikram Saini, Advocates.

CORAM:

HON’BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ? Yes.

3. Whether the judgment should be reported

in the Digest ? Yes.

SANJIV KHANNA, J:

1. BSES Rajdhani Power Limited has filed the present intra court

appeal against the judgment dated 23

rd

October, 2007 allowing the

writ petition filed by Mr. Madan Mohan Ratawal, the respondent

herein and quashing and setting aside the order of removal dated 6

th

LPA No. 1367/2007 2

February, 2006 and order passed by the Appellate Authority dated

26

th

April, 2006 confirming the said order of removal. Learned single

Judge has directed that the respondent-Mr. Madan Mohan Ratawal

be reinstated with consequential benefits including arrears of pay.

Facts

2. The respondent was appointed with Delhi Electricity Supply

Undertaking, subsequently rechristened as Delhi Vidyut Board, in

Janauary,1983. Consequent upon unbundling of Delhi Vidyut Board

in 2002, the respondent started working with the appellant company.

3. The respondent was convicted under Section 324B of the

Indian Penal Code by the judgment dated 14

th

January, 2005 of the

Sessions Court on an FIR registered pursuant to a complaint filed by

the respondent‟s wife.

4. The respondent has filed an appeal against the said judgment

and conviction before the High Court of Allahabad, which was

admitted on 2

nd

March, 2005.The respondent has been admitted to

bail.

5. Consequent upon conviction, a show cause notice dated 5

th

January, 2006 was issued to the respondent under Section 19(2) of

the Central Civil Services (Classification, Control and Appeal) Rules,

1957 (hereinafter referred to as the CCS(CCA) Rules). By Order dated

LPA No. 1367/2007 3

13

th

February, 2006 the respondent was dismissed from service on

the basis of his conviction under Section 324B of the Indian penal

Code.

6. In the meanwhile, the respondent had filed an application for

stay of judgment and conviction before the High Court of Allahabad

making specific reference to the pendency of departmental

proceedings and the order terminating his service on the basis of

conviction by judgment dated 14

th

January, 2005. The respondent

made a prayer for stay of conviction and sentence. High Court of

Allahabad on 7

th

March, 2006 passed the following order:-

“Heard learned counsel for the appellant.

Operation of the order of conviction and

sentence dated 14.1.2005 passed in Sessions

Trial No. 423 of 2005 shall remain suspended

till the pendency of this appeal.”

7. Armed with the aforesaid order dated 7

th

March, 2006, the

respondent pressed his appeal before the Appellate Authority against

the order of termination. The Appellate Authority by its order dated

26

th

April, 2006 dismissed the appeal. As stated above, both the

order of removal dated 6

th

February, 2006 and the order of the

Appellate Authority confirming the said order dated 26

th

April, 2006

have been set aside by the learned single Judge.

LPA No. 1367/2007 4

The Relevant Rule

8. Rule 19(2) of the CCS(CCA) Rules reads as under:-

“(2) Action on conviction.—(a) On a

criminal charge.—The following principles

should apply in regard to action to be taken in

cases where Government servants are

convicted on a criminal charge:-

(i) In a case where a Government servant

has been convicted in a Court of Law of an

offence which is such as to render further

retention in public service of a Government

servant prima facie undesirable, the

Disciplinary Authority may, if it comes to the

conclusion that an order with a view to

imposing a penalty on the Government

servant on the ground of conduct which had

led to his conviction on a criminal charge

should be issued, issue such an order without

waiting for the period of filing an appeal, or, if

an appeal has been filed, without waiting for

the decision in the first Court of appeal.

Before such an order is passed, the Union

Public Service Commission should be

consulted where such consultation is

necessary.

(ii) As soon as a Government servant is

convicted on a criminal charge, he may, in

appropriate cases, be placed under

suspension, if not already suspended.

(iii) In a case where the conviction is not for

an offence of the type referred to in sub-

paragraph (i) above, the Disciplinary Authority

should call for and examine a copy of the

judgment with a view to decide on taking

such further departmental action, as might be

deemed appropriate.”

LPA No. 1367/2007 5

9. The said Rule empowers the Disciplinary Authority to impose

penalty on a Government servant on the ground of conduct, which

has led to his conviction on a criminal charge. What is required to be

examined by the Disciplinary Authority is whether the conduct of the

Government servant that has led to his conviction on the criminal

charge, warrants punishment of dismissal from service on the ground

that retaining the public servant in Government service is

undesirable. It is not mandatory for Disciplinary Authority to dismiss

a Government servant convicted on a criminal charge. The conduct of

the officer which has led to his conviction has to be examined and a

considered decision taken. This is clear from sub-clause (iii) which

refers to conviction of a Government servant for an offence of the

type not referred in sub-clause (i), i.e., for an offence which would

render further retention of public servant undesirable. In such cases,

further departmental action as may be deemed appropriate can be

initiated. Thus, Rule 19(2) is an enabling provision, which requires

the Disciplinary Authority to consider, examine and come to the

conclusion, after application of mind and considering the entire

circumstances of the case, whether the employee should be

dismissed from service in view of the conviction or any further

departmental action should be taken. In a given case upon

conviction, the Government servant in question may be suspended if

LPA No. 1367/2007 6

he is not already suspended, or dismissed or departmental action

may be initiated under Rule 19(2) of the CCS(CCA) Rules. Albeit, in a

given case no action whatsoever may be warranted or taken.

Examining a similar provision in Divisional Personnel Officer,

Southern Railway Vs. T.R. Chellappan, reported in (1976) 3 SCC

190, the Court examined Articles 311(2) and (3) of the Constitution

of India as well as the relevant Rules and had observed as under:-

“9...........An analysis of the provisions of

Article 311(2)(a) extracted above would

clearly show that this constitutional guarantee

contemplates three stages of departmental

inquiry before an order of dismissal, removal

or reduction can be passed......... Proviso (a)

to Article 311(2), however, completely

dispenses with all the three stages of

departmental inquiry when an employee is

convicted on a criminal charge. The reason for

the proviso is that in a criminal trial the

employee has already had a full and complete

opportunity to contest the allegations against

him and to make out his defence. In the

criminal trial charges are framed to give clear

notice regarding the allegations made against

the accused, secondly, the witnesses are

examined and cross-examined in his presence

and by him; and thirdly, the accused is given

full opportunity to produce his defence and it

is only after hearing the arguments that the

Court passes the final order of conviction or

acquittal. In these circumstances, therefore, if

after conviction by the Court a fresh

departmental inquiry is not dispensed with, it

will lead to unnecessary waste of time and

expense and a fruitless duplication of the

same proceedings all over again. It was for

this reason that the founders of the

Constitution thought that where once a

delinquent employee has been convicted of a

criminal offence that should be treated as a

sufficient proof of his misconduct and the

LPA No. 1367/2007 7

disciplinary authority may be given the

discretion to impose the penalties referred to

in Article 311(3), namely, dismissal, removal

or reduction in rank. It appears to us that

proviso (a) to Article 311(2) is merely an

enabling provision and it does not enjoin or

confer a mandatory duty on the disciplinary

authority to pass an order of dismissal,

removal or reduction in rank the moment an

employee is convicted. This matter is left

completely to the discretion of the disciplinary

authority and the only reservation made is

that departmental inquiry contemplated by

this provision as also by the Departmental

Rules is dispensed with. In these

circumstances, therefore, we think that Rule

14(i) of the Rules of 1968 only incorporates

the principles, enshrined in proviso (a) to

Article 311(2) of the Constitution. The words

“where any penalty is imposed” in Rule 14(i)

should actually be read as “where any penalty

is imposable”, because so far as the

disciplinary authority is concerned it cannot

impose a sentence. It could only impose a

penalty on the basis of the conviction and

sentence passed against the delinquent

employee by a competent court. Furthermore

the rule empowering the disciplinary authority

to consider circumstances of the case and

make such orders as it deems fit clearly

indicates that it is open to the disciplinary

authority to impose any penalty as it likes. In

this sense, therefore, the word “penalty” used

in Rule 14(i) of the Rules of 1968 is relatable

to the penalties to be imposed under the

Rules rather than a penalty given by a

criminal court.”(emphasis supplied).

10. In a subsequent portion of the judgment, the Supreme Court

referred to aspects that should be taken into consideration while

exercising power under Art. 311(2)(a) of the Constitution of India

and under the relevant rules and it was observed;

“21.....The word “consider” merely connotes

that there should be active application of the

mind by the disciplinary authority after

LPA No. 1367/2007 8

considering the entire circumstances of the case

in order to decide the nature and extent of the

penalty to be imposed on the delinq uent

employee on his conviction on a criminal charge.

This matter can be objectively determined only

if the delinquent employee is heard and is given

a chance to satisfy the authority regarding the

final orders that may be passed by the said

authority. In other words, the term “consider”

postulates consideration of all the aspects, the

pros and cons of the matter after hearing the

aggrieved person. Such an inquiry would be a

summary inquiry to be held by the disciplinary

authority after hearing the delinquent employee.

It is not at all necessary for the disciplinary

authority to order a fresh departmental inquiry

which is dispensed with under Rule 14 of the

Rules of 1968 which incorporates the principle

contained in Article 311(2) proviso (a). This

provision confers power on the disciplinary

authority to decide whether in the facts and

circumstances of a particular case what penalty,

if at all, should be imposed on the delinquent

employee. It is obvious that in considering this

matter the disciplinary authority will have to

take into account the entire conduct of the

delinquent employee, the gravity of the

misconduct committed by him, the impact which

his misconduct is likely to have on the

administration and other extenuating

circumstances or redeeming features if any

present in the case and so on and so forth. It

may be that the conviction of an accused may

be for a trivial offence as in the case of the

respondent T.R. Chellappan in Civil Appeal No.

1664 of 1974 where a stern warning or a fine

would have been sufficient to meet the

exigencies of service. It is possible that the

delinquent employee may be found guilty of

some technical offence, for instance, violation of

the transport rules or the rules under the Motor

Vehicles Act and so on, where no major penalty

may be attracted. It is difficult to lay down any

hard and fast rules as to the factors which the

LPA No. 1367/2007 9

disciplinary authority would have to consider,

but I have mentioned some of these factors by

way of instances which are merely illustrative

and not exhaustive. In other words, the position

is that the conviction of the delinquent employee

would be taken as sufficient proof of misconduct

and then the authority will have to embark upon

a summary inquiry as to the nature and extent

of the penalty to be imposed on the delinquent

employee and in the course of the inquiry if the

authority is of the opinion that the offence is too

trivial or of a technical nature it may refuse to

impose any penalty in spite of the conviction.

This is a very salutary provision which has been

enshrined in these Rules and one of the

purposes for conferring this power is that in

cases where the disciplinary authority is satisfied

that the delinquent employee is a youthful

offender who is not convicted of any serious

offence and shows poignant penitence or real

repentance he may be dealt with as lightly as

possible. This appears to us to be the scope and

ambit of this provision. We must, however,

hasten to add that we should not be understood

as laying down that the last part of Rule 14 of

the Rules of 1968 contains a licence to

employees convicted of serious offences to insist

on reinstatement..........”

11. Same view has been taken by the Supreme Court in Union of

India Vs. Tulsiram Patel, reported in (1985) 3 SCC 398, Union of

India Vs. Sunil Kumar Sarkar, reported in (2001) 3 SCC 414 and

Union of India Vs. P.Chandra Mouli, reported in (2003) 10 SCC

197.

LPA No. 1367/2007 10

The Orders

12. We have examined the two orders passed by the Disciplinary

Authority and the Appellate Authority dated 6

th

February, 2006 and

26

th

April, 2006. The Disciplinary Authority while passing the order

dated 6

th

February, 2006 has recorded as under:-

“AND WHEREAS, Shri Madan Mohan

Ratawal has been found guilty by the Hon‟ble

Addl. Session Judge, Gautam Budh Nagar

under Section 324 IPC and has been

sentenced to undergo rigorous imprisonment

for a period of one year vide order dated

14/01/2005 announced in the open court.

AND WHEREAS, A show cause notice

bearing no. Sr. Mgr. [HR]/DC -26/2005-

06/1998 dated 03/01/2005 was issued to Shri

Madan Mohan Ratawal affording him an

opportunity to show cause as to why a

penalty of dismissal from service which will

disqualification for future employment may

not be imposed upon him.

AND WHEREAS, Shri Madan Mohan

Ratawal has submitted his reply dated

20/0/2006(sic) stating that he has filed an

appeal against the conviction in the Hon‟ble

High Court and Hon‟ble High Court has

admitted his appeal for hearing.

AND WHEREAS, the reply submitted by him

has thoroughly been considered by the

undersigned. The admission of appeal by the

Hon‟ble High Court does not mean that the

conviction and sentence have been revoked.

The reply has not been found convincing and

satisfactory.

LPA No. 1367/2007 11

NOW THEREFORE, the undersigned being

the Disciplinary Authority, keeping in view all

the facts and circumstances of the case has

come to the conclusion that Shri Madan

Mohan Ratawal is not a fit person to be

retained in service and a penalty of Removal

from Service of BSES Rajdhani Power Limited

is hereby imposed upon him.”

13. The above order passed by the Disciplinary Authority does not

meet and satisfy the requirements of Rule 19(2) of the CCS(CCA)

Rules. There is no reasoning or ground given by the Disciplinary

Authority to come to the conclusion why and for what reason

conviction of the respondent and the conduct justified his order of

removal. The order does not show application of mind by the

Disciplinary Authority for imposing the said punishment. The

Disciplinary Authority was required to apply his mind to the

allegations made, the order of conviction and the stand taken by the

respondent including the decree of divorce by mutual consent and

reach a conclusion that in view of the conviction, the conduct merits

penalty of removal. We are not stating that the order of removal

could not or should not have been passed in the present case. The

Disciplinary Authority could have on the basis of material reached the

said conclusion and finding, but Disciplinary Authority has failed to

elucidate and disclose the basis and reasoning for his conclusion and

thus there is a jurisdictional error in the order passed by the

LPA No. 1367/2007 12

Disciplinary Authority for failure to deal with the contentions raised

and give his reasoning and grounds. The said error relates to the

decision making process and is, therefore, amenable to judicial

review.

14. The order dated 26

th

April, 2006 again is a non-speaking and a

non-reasoned order, which does not refer to the requirements of

Rule 19(2) of the CCS(CCA) Rules. The relevant portion of the said

order reads as under:-

“AND WHEREAS, the Appellate Authority

has very carefully gone through the contents

mentioned in the Appeal dated 17.03.2006. It

has been observed that the sentence and

conviction has temporarily been suspended

vide order dated 07.03.2006 whereas a

penalty of removal has already been imposed

upon Shri Madan Mohan Ratawal vide order

dated 06.02.2006 i.e. much prior to the

delivering of the order of the Hon‟ble High

Court, Allahabad. Moreover the suspension of

conviction and sentence does not mean that

the conviction and sentence have been

revoked whereas it remains alive.

AND WHEREAS, Shri Madan Mohan

Ratawal has been given personal hearing on

24.04.2006 and during the personal hearing

also he could not adduce any new points.

AND WHEREAS, the Appellate Authority

taking into account all the facts and

circumstances of the case in totality has

rejected the appeal preferred by Shri Madan

Mohan Ratawal, Sr. Instrument Repairer &

Tester, E.No. 29108.

LPA No. 1367/2007 13

NOW THEREFORE, the orders of the

Appellate Authority are hereby conveyed to

Shri Madan Mohan Ratawal, Sr. Instrument

Repairer & Tester, E.No. 29108 accordingly.”

15. In substance, the said order merely records that the Appellate

Authority has taken into account all facts and circumstances and

rejected the appeal without being specific and dealing with the

contentions and issues raised and going into the aspects required to

be examined for passing an order under Rule 19(2) of the CCS(CCA)

Rules.

16. The Appellate Authority noticed the order passed by the High

Court of Allahabad dated 7

th

March, 2006 staying both the conviction

and sentence of the respondent. The said order dated 7

th

March,

2006 has been quoted above. The Appellate Authority has

incorrectly recorded that suspension of conviction and sentence has

no meaning as the conviction and sentence remain alive and have

not been revoked. The difference between suspension of sentence

and stay of conviction by the Appellate Court is not understood and

appreciated. Mere filing and admission of an appeal or even grant of

bail/suspension of sentence does not obliterate the judgment of

conviction. An order granting stay of conviction has a different

connotation and meaning. In a number of cases, the Supreme Court

has drawn this distinction between an order suspending the sentence

LPA No. 1367/2007 14

and an order staying the conviction of an accused. To this extent the

appellate order again suffers from jurisdictional and apparent legal

infirmity.

17. An order suspending the sentence does not affect the order of

conviction and the conviction does not cease to be operative. It only

has the effect of releasing the appellant accused on bail. However,

stay of conviction, which is rare and an exception, has the effect of

staying the conviction itself, i.e., the conviction will not be operative

from the date of the stay, though this by itself does not render the

conviction or the judgment non-existent. The order of conviction

cannot be given effect to (Ravikant S. Patil Vs. Sarvabhouma S.

Bagali, reported in JT 2006 (10) SC 578). Drawing this distinction,

the Supreme Court in Lalsai Khunte Vs. Nirmal Sinha, reported in

(2007) 9 SCC 330 has held that once an order staying the conviction

is passed, it makes the conviction non-operative and, therefore, in

such cases the accused is not disqualified from contesting elections

on the ground that he has been convicted.

18. Shree Chamundi Mopeds Limited Vs. Church of South

India Trust Association CSI Cinod Secretariat, Madras,

reported in (1992) 3 SCC 1 relied by the appellants is a case

interpreting Section 22 of the Sick Industrial Companies (Special

Provisions) Act, 1985 and the effect of stay order passed in the writ

LPA No. 1367/2007 15

proceedings after dismissal of the appeal of the sick company by the

Appellate Authority under Section 25 of the aforesaid Act. In the said

case, on a writ petition filed by the sick company, a stay order was

passed against the order of the Appellate Authority and the question

arose whether this by itself would amount to revival of proceedings

before the appellate authority under the Sick Industrial Companies

(Special Provisions) Act, 1985. Supreme Court rejected the said

contention. The said decision and observations made therein are not

relevant to the issue and question raised before us. An order for stay

does not mean that the judgment under appeal is wiped out from its

existence nor do the disposed of proceedings get revived before the

appellate authority. Quashing or setting aside an order or judgment

results in restoration of the position as it stood on the date prior to

passing of the impugned judgment. But once the appellate court

passes an order staying the conviction, the said stay order has to be

given effect to and the departmental authorities cannot ignore and

proceed on the basis that the officer stands convicted by the lower

Court. Conviction order, its implementation and consequences stand

stayed.

Subsequent Events

19. Learned counsel for the appellant has submitted that the facts

existing on the date when the Disciplinary Authority had passed the

LPA No. 1367/2007 16

order of termination dated 6th February, 2006 are relevant and

subsequent order of stay of conviction dated 7th March, 2006 though

passed before the order passed by the Appellate Authority dated 26th

April, 2006 is wholly irrelevant.

20. The scope and power of the Appellate Authority under Rule 27

of the CCS(CCA) Rules is wide and broad. The said Rule reads as

under:-

“27. Consideration of Appeal

(1) In the case of an appeal against

an order of suspension, the A ppellate

Authority shall consider whether in the light of

the provisions of Rule 10 and having regard to

the circumstances of the case, the order of

suspension is justified or not and confirm or

revoke the order accordingly.

(2) In the case of an appeal against

an order imposing any of the penalties

specified in Rule 11 or enhancing any penalty

imposed under the said rules, the Appellate

Authority shall consider-

(a) whether the procedure laid down in

these rules has been complied with and if not,

whether such non-compliance has resulted in

the violation of any provisions of the

Constitution of India or in the failure of

justice;

(b) whether the findings of the

Disciplinary Authority are warranted by the

evidence on the record; and

(c) whether the penalty or the

enhanced penalty imposed is adequate,

inadequate or severe;

LPA No. 1367/2007 17

and pass orders-

(i) confirming, enhancing, reducing, or

setting aside the penalty; or

(ii) remitting the case to the authority

which imposed or enhanced the penalty or to

any other authority with such direction as it

may deem fit in the circumstances of the

cases :

provided that-

(i) the Commission shall be consulted in all

cases where such consultation is necessary;

(ii) if such enhanced penalty which the

Appellate Authority proposes to impose is one

of the penalties specified in Clauses (v) to (ix)

of Rule 11 and an inquiry under Rule 14 has

not already been held in the case, the

Appellate Authority shall, subject to the

provisions of Rule 19, itself hold such inquiry

or direct that such inquiry be held in

accordance with the provisions of Rule 14 and

thereafter, on a consideration of the

proceedings of such inquiry and make such

orders as it may deem fit:

(iii)if the enhanced penalty which the

Appellate Authority proposes to impose is one

of the penalties specified in Clauses (v) to (ix)

of Rule 11 and an enquiry under Rule 14 has

been held in the case, the appellate authority

shall make such orders as it may deem fit

after the appellant has been given a

reasonable opportunity of making a

representation against the proposed penalty;

and

(iv)no order imposing an enhanced penalty

shall be made in any other case unless the

appellant has been given a reasonable

opportunity, as far as may be in accordance

with the provisions of Rule 16, of making a

LPA No. 1367/2007 18

representation against such enhanced

penalty.

(3) In an appeal against any other

order specified in Rule 23, the Appellate

Authority shall consider all the circumstances

of the case and make such orders as it may

deem just and equitable.”

21. The submission that Appellate Authority cannot take into

consideration the stay order dated 7

th

March,2007, should be rejected

in view of the language of Rule 27 of the CCS(CCA) Rules, which

gives equal and co-extensive powers to the Appellate Authority. It

gives discretion to the Appellate Authority to set aside the order

passed by the Disciplinary Authority and remand the matter. In case

a matter is remanded back, the Disciplinary Authority will be bound

to take into consideration the order passed by the appellate Court

staying the conviction and in such cases no order of dismissal can be

passed. Secondly, appellate proceedings under Rule 27 are

continuation of the disciplinary proceedings. The proceedings before

the Disciplinary Authority and the Appellate Authority cannot be put

into two watertight compartments. An appeal is normally

continuation of the proceedings before the disciplinary authority.

Thirdly, the Order passed by the lower authority merges in the order

passed by the appellate authority.

22. In Rameshwar Vs. Jot Ram, reported in (1976) 1 SCC 194, it

was held that subsequent events can have three impacts. Firstly,

LPA No. 1367/2007 19

bearing on the cause of action; secondly, on nature of relief; and

thirdly, on importance to create and destroy substantive rights. Relief

can be moulded or become unserviceable or obsolete on account of

subsequent developments even during appellate stage but the party

claiming relief or relying upon the change must have the same right

from which the first or moulded relief flows. Subsequent events can

be constitutive of substantive rights but in narrow category of cases.

However, subsequent events may influence equitable jurisdiction to

mould reliefs. Where reliefs are discretionary, injustice due to

change in facts should be avoided. Requirement of the statute on

presence and absence of facts at the time of relief requires

consideration of up-dated circumstances. However, rights vested by

statute cannot be divested by equitable doctrine. The Supreme Court

quoted with approval the following passage from Ramji Lal Vs.

State of Punjab, reported in AIR 1966 Punjab 274 and has

observed as follows:-

“..........Courts, do very often

take notice of events that happen

subsequent to the filing of suits

and at times even those that have

occurred during the appellate

stage and permit pleadings to be

amended for including a prayer for

relief on the basis of such events

but this is ordinarily done to avoid

multiplicity of proceedings or when

the original relief claimed has, by

reason of change in the

circumstances, become

inappropriate and not when the

LPA No. 1367/2007 20

plaintiff‟s suit would be wholly

displaced by the proposed

amendment (see Steward v. North

Metropolitan Tramways Company)

and a fresh suit by him would be

so barred by limitation.”

One may as well add that while taking cautious

judicial cognisance of “post-natal” events, even

for the limited and exceptional purposes

explained earlier, no court will countenance a

party altering, by his own manipulation, a change

in situation and plead for relief on the altered

basis.”

23. In subsequent judgments, the Supreme Court has held that

subsequent events while the matter is sub-judice or in seisin before

the appellate forum should be taken into consideration. Appellate

Authority can grant relief taking into account subsequent facts, which

have happened or come into existence after the order passed by the

disciplinary authority. This is on the principle that appellate forums

are entitled to examine both facts and law, perform nearly same

duties and have same powers as courts/forums of original

jurisdiction. Appeal is under the processual law is in nature of a

rehearing and the appellate forum has right to mould the relief. (

Refer Dalip Vs. Mohd. Azizul Haq reported in (2002) 3 SCC 607

and other decisions quoted therein).

24. In Kedar Nath Agarwal Vs. Dhanraji Devi, reported in

(2004) 8 SCC 76 decision in the case of Rameshwar (supra) was

distinguished in the following words:-

LPA No. 1367/2007 21

“28. Strong reliance was placed by the

contesting respondents on a decision of this

Court in Rameshwar v. Jot Ram before the High

Court as well as before us. In Rameshwar the

tenant had become “deemed purchaser” under

the Punjab Security of Land Tenures Act, 1953.

During the pendency of appeal, the “large”

landowner died and his heirs became “small”

landowners. It was, therefore, contended on

behalf of the landowners in appeal that since

appeal is continuation of suit, subsequent event

of death of the original owner should be

considered. This Court, however, refused to take

note of subsequent event on equitable

considerations. Keeping in view the agrarian

reforms, this Court said:

“To hold that, if the landlord dies at some

distant date after the title has vested in the

tenant, the statutory process would be reversed

if by such death, his many children, on division,

will be converted into small landholders, is to

upset the day of reckoning visualised by the Act

and to make the vesting provision „a teasing

illusion‟, a formal Festschrift to agrarian reform,

not a flaming programme of „now and here‟.

These surrounding facts drive home the need

not to allow futurism, in a dawdling litigative

scene, to foul the quick legislative

goals.(emphasis supplied)

25. The Supreme Court also observed as under:-

“16. In our opinion, by not taking into

account the subsequent event, the High Court

has committed an error of law and also an error

of jurisdiction. In our judgment, the law is well

settled on the point, and it is this: the basic rule

is that the rights of the parties should be

determined on the basis of the date of

institution of the suit or proceeding and the

suit/action should be tried at all stages on the

cause of action as it existed at the

commencement of the suit/action. This,

however, does not mean that events happening

after institution of a suit/proceeding, cannot be

considered at all. It is the power and duty of the

court to consider changed circumstances. A

court of law may take into account subsequent

events inter alia in the following circumstances:

(i) the relief claimed originally has by reason

of subsequent change of circumstances become

inappropriate; or

(ii) it is necessary to take notice of

subsequent events in order to shorten litigation;

or

LPA No. 1367/2007 22

(iii) it is necessary to do so in order to do

complete justice between the parties.

26. In Pratap Rai Tanwani Vs. Uttam Chand, reported in

(2004) 8 SCC 490 the Supreme Court on the question of subsequent

events and their relevance has held that the appellate court should

evaluate and adjudicate the subsequent events and their effect. In

Lekh Raj Vs. Muni Lal, reported in (2001) 2 SCC 762, the Supreme

Court observed:

“11. The law on the subject is also settled. In

case subsequent event or fact having bearing on

the issues or relief in a suit or proceeding, which

any party seeks to bring on record, the court

should not shut its door. All laws and procedures

including functioning of courts are all in aid to

confer justice on all who knock its door. Courts

should interpret the law not in derogation of

justice but in its aid. Thus bringing on record

subsequent event, which is relevant, should be

permitted to be brought on record to render

justice to a party. But the court in doing so

should be cautious not to permit it in a routine.

It should refuse where a party is doing so to

delay the proceedings, harass the other party or

doing so for any other ulterior motive. The

courts even before admitting should examine,

whether the alleged subsequent event has any

material bearing on issues involved and which

would materially affect the result.”

27. Rule 19(2) as quoted above states that an order under sub-rule

2 clause (i) can be passed without waiting for period for filing of

appeal or if appeal is filed without waiting for the decision of the first

LPA No. 1367/2007 23

court of appeal. The Disciplinary Authority, therefore, is competent

to pass an order under the aforesaid clause without waiting for the

period for filing of an appeal to be over or without waiting for the

order of the appellate court. Disciplinary Authority is not required to

wait and has power to pass an order after conviction order is passed

by the trial court. However, there is no bar in Rule 19(2) or under

Rule 27 of the CCS(CCA) Rules prohibiting and debarring the

Appellate Authority from taking into consideration subsequent events.

Rule 19(2)(i) prevents the Government servant from taking an

adjournment or deferring an order on the ground that he has

preferred an appeal or time for preferring an appeal has not expired.

The said words do not stipulate that an order passed by the Appellate

Criminal Court staying the conviction cannot be taken into account.

Neither the words bar or prohibit the Appellate Authority from taking

into consideration the order passed by the Appellate Criminal Court.

We may note here that the Disciplinary Authority while passing an

order under Rule 19(2)(i) does not go into the merits and demerits of

the conviction order. Its role and scope is confined to other aspects

relating to retention/punishment of the Government servant in

service i.e. whether it is undesirable to retain the Government

servant in service in view of his conduct resulting in the conviction.

It is the appellate criminal court which examines the question of

LPA No. 1367/2007 24

suspension of sentence or stay of conviction. Order of stay of

conviction once passed has to be given due notice and cannot be

ignored.

28. Learned counsel for the appellant submitted that if the

Appellate Court acquits the respondent, he would be reinstated with

back wages. On consideration, the said argument does not stand to

reason. Firstly, there is an order of stay of conviction and the appeal

is likely to be taken up for hearing after considerable time. Secondly,

in such cases the employer normally invokes the principle of „no pay

for no work‟ and after reinstatement an order is passed on the right

to back wages. Back wages cannot be claimed as a matter of right.

Thirdly, the employee has to sustain himself and provide for self and

his family during the period he has been granted stay of conviction

and his appeal is heard by the Appellate Criminal Court. Fourthly, in

case the Appellate Court upholds the conviction, the appellant will be

at liberty to pass an order under Section 19(2) of the CCS(CCA)

Rules.

29. In the present case, we have held that the order passed under

Rule 19(2) of the CCS(CCA) Rules both by the Disciplinary Authority

and the Appellate Authority are liable to be set aside. Even if we

remand the matter back to the Disciplinary Authority, no order for

LPA No. 1367/2007 25

dismissal/removal can be passed in view of the stay order granted by

the High Court of Allahabad dated 7th March, 2006.

30. Counsel for the appellant relied upon observations made in K.

Prabhakaran Vs. P. Jayarajan, reported in AIR 2005 SC 688. In

this decision it has been observed that a judgment of an appellate

criminal court exonerating the accused has the effect of wiping out

the conviction by the lower court, but the result of this legal fiction is

limited for the purpose for which it is created, should not be

extended beyond its legitimate field. A legal fiction does not pre-

suppose existence of state of facts that did not exist and were

uncertain till the acquittal order was passed. Thus, acquittal by the

Appellate Criminal Court by legal fiction has the effect of wiping out

the lower court's conviction, yet it cannot be given retrospective

effect to wipe out the disqualification on the date of scrutiny of

nomination, when the conviction of the order of the lower court was

operative. In the said case, nominations were filed on 24th April,

2001, poll was held on 10th May, 2001 and the result was declared

on 13th May, 2001. On 15th June, 2001, the appellant therein had

filed an election petition under the Representation of Peoples' Act,

1951 on the ground that the respondent therein was convicted for a

total term exceeding two years and was disqualified. During the

pendency of the said election petition, the Court of Session by order

dated 25th July, 2001 partly allowed the appeal of the respondent

therein maintaining conviction and sentence but held that the

sentence would run concurrently and thereby reducing the total

period of sentence to less than two years. The question arose

whether judgment dated 25th July, 2001 passed by the Session

Judge has retrospective operation, for the elections that were held

earlier, i.e., before 25th July, 2001. The Supreme Court held that the

LPA No. 1367/2007 26

respondent therein was disqualified on the date of scrutiny of

nominations, which was prior and before the pronouncement of the

Session Judge. The factual and actual position existing on the said

date was relevant and subsequent developments were not relevant.

The Supreme Court in the said case was concerned with Section 8(3)

of the Representation of Peoples' Act, 1951 and the question involved

was with reference to the actual position as it existed on the specific

date, i.e., the date of scrutiny of nomination papers before elections

were held. It was observed that subsequent developments cannot be

taken into consideration for the purpose of Section 8(3) of the

Representation of Peoples' Act, 1951. The scrutiny of nomination is

done before the elections are held and for the purpose to permit

candidates to stand in elections. Per se, in such cases, the factual

position existing on the date when nominations are scrutinized is

relevant. Subsequent change in facts after scrutiny of nominations, if

permitted and allowed will require taking into consideration the

unknown and doubtful future. This will lead to odd results including

situations where candidates, who are disqualified, being permitted

and allowed to contest elections, only to be declared disqualified

after elections results are declared. The ratio and the reasoning in

the said case cannot be applied to the facts of the present case. The

object and purpose of Rule 19(2) of the CCS(CCA) Rules is different

and separate. Rule 19(2) of the CCS(CCA) Rules does not serve the

same purpose and objective as Section 8(3) of the Representation of

Peoples' Act, 1951. The election petition is filed after the election is

held and cannot be considered as continuation of the scrutiny

proceedings by the election officer. Election petitions are not and

cannot be equated with appellate proceedings against an order

passed by a disciplinary authority.

LPA No. 1367/2007 27

31. In the present case, before the appeal was decided by the

Appellate Authority, High Court of Allahabad had already stayed the

conviction order. This is the second distinguishing feature between

the present case and the decision of the Supreme Court in the case

of K. Prabhakaran (supra). Admittedly, in case there was an order

of stay on conviction before the date of scrutiny of nominations, the

respondent in K Prabhakaran‟s case (supra) would not have been

disqualified. In the present case, on the date when the Appellate

Authority had passed the order, the respondent's conviction had been

stayed. This is a relevant factor and distinguishes the present case

from the case of K. Prabhakaran (supra).

32. In these circumstances, we do not find any merit in the present

appeal and the same is dismissed. However, we would like to clarify

that the appellant will have to pass an order in respect of back wages

for the period 7

th

February, 2006 till 23rd October, 2007 in

accordance with the relevant service rules. The respondent will be at

liberty to challenge the said order in case, if he so desires in

accordance with law. The respondent will be entitled to full back

wages with effect from 23rd October, 2007, i.e. from the date

judgment was passed by the learned single Judge. Accordingly, with

the aforesaid observations we quash th e order of

punishment/removal dated 6th February, 2006 and the order of the

LPA No. 1367/2007 28

Appellate Authority dated 26th April, 2006. Back wages with effect

from 23

rd

October, 2007 will be paid within 4 weeks.

(SANJIV KHANNA)

JUDGE

(AJIT PRAKASH SHAH)

CHIEF JUSTICE

MARCH 30, 2009

VKR/P