APHC010652022025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] THURSDAY,THE FOURTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO: 33806/2025 Between: Malladi Murthysree ...PETITIONER AND The State Of Ap and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. DEVALARAJU ANIL KUMAR Counsel for the Respondent(S): 1. GP FOR SERVICES I The Court made the following: 2 HON’BLE SRI JUSTICE NYAPATHY VIJAY W.P.No.33806 of 2025 ORDER: The present writ petition is filed declaring the impugned proceedings in Rc.No.461298/2018/M2, dated 03.04.2024 issued by the respondent No.2 keeping the petitioner under dismissal from service as illegal and arbitrary. 2. The petitioner was convicted in C.C.No.33 of 2017 and was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,50,000/- for the offence punishable under Section 13 (1) (e) r/w 13 (2) of the Prevention of Corruption Act, 1988. Pursuant to that, the Petitioer was dismissed from service on 03.04.2024. 3. In the Criminal Appeal filed thereon, this Court on 21.12.2023 enlarged the petitioner on bail by suspending the sentence of imprisonment imposed by the learned III Additional District Judge,-cum-Special Judge for SPE and ACB cases, Visakhapatnam. Questioning the dismissal pursuant to conviction on 08.12.2023, the present writ petition is filed. 3 4. Heard learned counsel for the petitioner and learned Assistant Government Pleader for Services-I 5. Learned counsel for the petitioner submits that as the sentence was suspended in Criminal Appeal, the petitioner was entitled to be continued in service. 6. Learned Assistant Government Pleader would submit that as conviction is recorded, the petitioner cannot be continued in service and the impugned order warrants no interference. 7. Considering the facts and circumstances of the case, this Court is of the opinion that a public servant on conviction and sentenced to rigorous imprisonment is not entitled to seek for continuance in service unless the conviction itself is suspended or annulled. In this case, the conviction was not suspended. 8. Hon’ble Supreme Court in The Deputy Director of Collegiate vs. S. Nagoor Meera1, considered this aspect and after referring to proviso to Article 311(2) of the Constitution of India, held that public servant need not be continued in service till criminal appeal is adjudicated or on account of suspension of sentence. The Hon’ble Supreme Court held that though 1 1995 (3) SCC 377 4 conviction may not be a ground for dismissal, but “conduct which led to conviction” can be the ground for dismissal. The paragraphs 6 to 10 are extracted below for ready reference: “6.Article 311(2) declares that no person, who is a member of the civil service of the Union or All-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso, however, carves out three exceptions to the said rule. We are concerned with the first exception mentioned under clause (a). Insofar as it is relevant, the second proviso reads as follows: "Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground o f conduct which has led to his conviction on a charge." 7. This clause, it is relevant to notice, speaks of "conduct which has led his conviction on a criminal charge". It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal "the execution of the sentence or order appealed against be suspended and also if he is in confinement that he be released on bail or on his own bond." Section 389(1), it may be noted, speaks of suspending "the execution of the sentence or order", it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the conviction - an aspect dealt with recently in Rama Narang v. Ramesh Narang (1995 (1) J.T. 515). At pages 524 and 525, the position under Section 389 is stated thus: 5 "Section 389(1) empowers the Appellate Court to order that the execution of the sentence or ordcr 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 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- Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 or the Code? Obviously, the order re- ferred to in Section 389(1) must be an order capable in 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...... hi 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 Section 389(1) of the Code would be invoked. in such situations, the attention of the Appellate Court must be specifically invited to die consequence that is likely to fall to enable it to apply its mind to the issue since under Section 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. " 6 8. We need not, concerns ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders 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 was a case arising under Section 267 of the Companies Act, which provided a disqualification on the ground of conviction for an offence involving moral turpitude.. 9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 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. It should be remembered that the action under clause (a) of the second proviso to Article 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 Article 311(2). As held by this court in Shankardass v. Union of India (1985 (2) S.C.R. 358): "Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to 7 dismiss a person from services "on the ground of conduct which has led to his conviction on a criminal charge." But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly." 10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated, above, if he succeeds in appeal or other proceedings, the matter can always be reviewed in such a manner that he suffers no prejudice” 9. The above judgment was quoted with approval by the Hon’ble Supreme Court in Government of Andhra Pradesh vs. B.Jagjeevan Rao 2 and LIC vs. Mukesh Poonamchand Shah3. 10. In view of the above legal principle, this Court does not find any merit to interference with the impugned order. Accordingly, the writ petition is dismissed. No order as to costs. 2 2014(13) SCC 239 3 2020(12) SCC 144 8 As a sequel, the miscellaneous petitions if any shall stand closed. __________________ NYAPATHY VIJAY,J Date: 08.12.2025 eha 9 HON’BLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO: 33806/2025 DATE: 08.12.2025 eha