Rama Jois, J.
1. This Writ Petition is by a Sub-Inspector of Police who has been dismissed from service on the basis of the conduct which has led to his conviction, on a criminal charge under Section 353 of the Indian Penal Code.
2. The facts of the case are as follows:--While the petitioner was working as Sub-Inspector of Police at Mangalore a criminal case was filed against him on a charge under Section 353 IPC., that he assaulted a police constable who was discharging his public duty. By his order dated 23-3-82 the Learned Judicial Magistrate First Class (II Court) Mangalore, held the petitioner guilty of the charge levelled against him and imposed the penalty of Rigorous Imprisonment for a period of three months. Aggrieved by the said conviction and sentence the petitioner preferred an appeal before the Sessions Judge, Dakshina Kannada at Mangalore in Cr. A. No. 27/82 on 29-3-82. The Learned Sessions Judge, in exercise of the powers under Section 389(1) of the Cr.P.C. suspended the execution of the sentence. The operative portion of the order reads :
'Sentence suspended on the appellants (each of them) executing a bond in a sum of Rs. 5,000/- with one surety for the like sum to the satisfaction of the lower Court.
Dated this the 29th day of March 1982.
Sd/- S. V. Tilgul,
On 31-5-82 the Deputy Inspector General of Police, Intelligence, Bangalore issued a notice to the petitioner to show cause, as to why he should not be dismissed from service on the basis of the conduct which led to his conviction. The show cause notice reads :
' SHOW CAUSE NOTICE
Whereas you Sri P. Mahalinga are working as PSI, SSB, Bangalore, since 4-7-1981 and while you were working as ASI of Police at Bajpe Airport, you assaulted, on 1-10-1980 one Sri Balakrishna Hegde, PC, Mangalore Traffic East P. S. while he was on traffic duty at P.V.S. Junction, Kodialbail in Mangalore City, and a case was registered against you in that connection at Mangalore East P.S. in Cr. No. 85/80 Under Section 353 r/w 34 IPC.
Whereas the above mentioned misconduct has led to your conviction to undergo rigorous imprisonment for three months on a criminal charge of 'Assault' in C. C. No. 6590 of 1980 Under Section 353 IPC on 23-3-1981 by the JMFC (II Court), Mangalore and whereas on careful study of the judgment and considering the circumstances of the case, I find you guilty of grave misconduct as a Police Officer and whereas for the charge of misconduct mentioned above, ending in conviction, I propose to dismiss you from service, following the procedure contemplated under Rule 9 of the KSP (DP) Rules.
Therefore, I, D. R. Karthikeyan, D.I.G.P. Intelligence, Bangalore, hereby direct you to show cause in writing direct to me within 15 days from the receipt of this notice by you, why action as aforesaid should not be taken against you.'
3. To the said notice the petitioner furnished his reply. His Stand was as the sentence had been suspended, no penalty could be imposed, having regard to the wording of Rule 9 of the Karnataka State Police (Disciplinary Proceedings) Rules, 1965. The disciplinary authority however did not agree with the petitioner. He proceeded to impose the penalty of dismissal from service. Aggrieved by the said order the petitioner has presented this Writ Petition.
Sri P. Vishwanatha Shetty, Learned Counsel for the petitioner has urged the following two contentions :
1. In view of the interim order made by the Learned Sessions Judge, the sentence as well as the conviction got suspended and therefore there was no conviction on the basis of which the disciplinary authority could act and impose the penalty of dismissal from service against the petitioner.
2. in any event even if the interim order issued by the Learned Sessions Judge is to be understood as suspending the sentence only, it clearly follows from that order that no sentence is imposed so far against the accused and therefore in view of the wording of Rule 9 of KSP(DP) Rules the disciplinary authority had no authority to impose the penalty.
4. I am unable to agree that the effect of the interim order made by the Learned Sessions Judge is that the conviction also is temporarily wiped out. The effect of the said order is, that pending disposal of the appeal, the sentence viz.. the R.I. for a period of three months imposed against the petitioner shall not be executed. It does not mean that the conviction of the petitioner on the charge also got suspended. Hence it was perfectly lawful for the disciplinary authority to impose the penalty of dismissal from service against the petitioner on the basis of the conduct which led to his conviction.
In order to appreciate the second contention, it is necessary to set out the relevant part of Rule 9 on which the Learned Counsel relies. It reads :
'9. SPECIAL PROCEDURE IN CERTAIN CASES :-
Notwithstanding anything contained in Rules 6, 7 and 8--
(i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge ; or
(ii) ** (iii) **
the Disciplinary authority shall inform the Police Officer of the proposal to take action against him and of the allegation, as far as they can in public interest be communicated to him, and after giving him an opportunity to make any representations, may consider the circumstances of the case and pass such orders thereon as it deems fit.
Provided that the Commissioner shall be consulted before passing such orders in any case in which such consultation is necessary.'
What the Rules provides is that where it is considered expedient to impose a penalty on a Government servant, on the ground of conduct which led to his conviction, the disciplinary authority could impose the penalty on the concerned Government servant if the conduct which led to the conviction, warrants the imposition of the said penalty.
6. Learned Counsel's interpretation of the stay order in Criminal Appeal and of Rule 9 is as follows : For the time being, there is no imposition of the penalty at all. Therefore no action under Rule 9 aforesaid was permissible as the rule can be invoked only after the penalty is imposed.
7. The contention is fallacious. Firstly, the words 'penalty imposed' used in Rule 9(1) has reference to the penalty imposed in a departmental inquiry and in criminal trial. The wording of the Rule-- 'where a penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority shall inform the police officer of the proposal to take action against him and of the allegations, clearly indicates that it speaks of an action, initiated by the disciplinary authority only. The opening part of the rule is no doubt not 'happily worded. It should have been 'where a penalty is proposed to be imposed' etc. However a reading of the rule which prescribes the procedure for imposing penalty on the basis of the conduct which had led to the conviction of a civil servant clearly shows that whenever penalty is proposed to be imposed under that special circumstance, without an inquiry, under that Rule, the limited opportunity contemplated by that Rule should be given. This Rule is nothing but reproduction of the exception to Clause (2) of Article 411 of the Constitution incorporated in Clause (a) of the proviso thereunder.
Secondly, the fact that the execution of the sentence is suspended does not mean that sentence is not imposed. On the other hand, because the sentence is imposed against the petitioner the necessity arose for him to seek the suspension of its execution. Hence it is clear that when the petitioner has been convicted for an offence under Section 353 I.P.C. and sentence has been imposed, the disciplinary authority was perfectly competent to take action under Rule 9 of the Rules read with the proviso (a) to Clause(2) of Articles 311 of the Constitution.
8. The principle, that so long the conviction stands, any disqualification arising out of such conviction continues to exist, is also supported by the observations of the Supreme Court in the case Vidyacharan Shukla v. Purushottam Lal Kaushik, : 2SCR637 . In that case, the Supreme Court held that if the nomination of a candidate, who was, on conviction for an offence, sentenced to imprisonment for two years or more and who therefore suffered a disqualification imposed by law to be a candidate at an election to the Lok Sabha, had been accepted at an election to Lok Sabha and he was elected in the election, and his 'election was challenged in an election petition, if before the election petition was decided, the conviction had been set aside in appeal, the election could not, thereafter be set aside on the ground of such disqualification. Having taken that view the Supreme Court observed that the position in a converse case might not be the same, i.e, a case where the nomination of a candidate had been rejected on the ground of such conviction. The relevant portion of the Judgment of the Supreme Court decision is contained in para 37 which reads :
'37. It is possible that, difficult anomalous situations may arise if the rule in MANNI LAL v. PARMAI LAL is applied to a converse hypothetical case wherein the candidate whose nomination is rejected on account of his disqualification vis. conviction and sentence exceeding two years imprisonment existing as a fact on the date of scrutiny of nominations, brings an election Petition challenge the election of the returned candidate on the ground that his nomination was improperly rejected, as his qualification had been, as a result of his subsequent acquittal by an Appellate Court, annulled and obliterated with retroactive force.'
The above observations, indicate that in such a case, it would be difficult to say that the returning officer had improperly rejected the nomination of such a candidate as on the date when he took that decision, the conviction and the disqualification flowing therefrom did exist, because he cannot be expected to anticipate that in the criminal appeal preferred by such person the conviction and sentence would be set aside. The present case is analogous to the converse case referred to in para 37 of the aforesaid Judgment of the Supreme Court. Therefore having regard to the plain wording of Rule 9 of the Rules read with the proviso to Clause(2) of Article 411 of the Constitution, I find it difficult to accept the contention urged for the petitioner that the disciplinary authority had no power to take disciplinary action on the basis of the conduct of the petitioner which had led to his conviction. I am also unable to agree that just because the execution of the sentence had been suspended the action was impermissible. As already stated, the punishment imposed by the disciplinary authority is based on the conviction which is in force and not on the basis of the sentence, the execution of which is suspended.
9. Learned Counsel submitted that if the petitioner were to succeed in the appeal, but in the meanwhile he stands dismissed he would suffer irretrievably. It is no doubt true that would be the position, because the Rules, as they stand now, are silent as to what should happen to the penalty if the conviction is set aside in appeal. It is for the rule making authority to examine this aspect and to frame an appropriate rule, like providing for reinstatement of the civil servant so removed if ultimately the conviction is set aside and the civil servant concerned is honourably acquitted, treating the intervening period as leave without allowance and subject to such other specified conditions. Till such a Rule is made, it might also be open to the appellate or revisional authorities under the Police Act and the Rules framed thereunder to give appropriate relief, if they consider it just and expedient to do so in any appeal or revision, if preferred by the petitioner against the order of dismissal. It is also open for the petitioner to request the authority to keep his appeal or revision pending till the decision in the criminal Appeal. Whatever that may be there is no legal infirmity in the impugned order.
10. The Learned Counsel for the petitioner, however, contended that from the contents of the impugned order it is clear that the disciplinary authority had not exercised his independent mind but had simply dismissed the petitioner from service just because his official superior said so. This point is raised, because the disciplinary authority had referred a question to the Director General of Police for his opinion to which there is a reference in the impugned order the relevant portion of which reads as follows--
'Before, taking action under Rule 9 of the KSP. (DP) Rules, 1965, against the SI who was convicted on a criminal charge, the matter was referred to the Director General of Police for a clarification as the PSI had preferred a criminal appeal in the matter of conviction and it was pending disposal. The Director General of Police in the letter cited has clarified that the accused PSI in question who is convicted in Cr. No. 85/80 of Mangalore East P. S. under Section 353 IPC r/w Section 34 IPC has to be dismissed from service and as per the decision of the High Court of Karnataka in the case of H. P. Ramannagowda v. Supdt. of Police, Hassan in W.P. No. 3703/79 and also the decision of the Supreme Court of India in the case of Spadigam v. State of Kerala in 1970 KLJ 47, the principles of natural justice do not require that the employer must wait for the decision of the criminal case or appeal before proceeding with a domestic enquiry.'
From the aforesaid portion of the impugned order it is clear that the disciplinary authority entertained a doubt as to whether he should wait till the disposal of the Criminal Appeal for the purpose of taking action against the petitioner because the sentence had been suspended. The higher authority rightly clarified that it was unnecessary to wait till the disposal of the appeal and the disciplinary authority could proceed to make the order as there has already been a conviction against the petitioner.
11. The Learned Counsel, however, submitted that in the course of the reply, the Head of Department had expressed that the petitioner should be dismissed from the service. From, the contents, of the, show cause notice and the order it is clear that the disciplinary authority itself had made up its mind to impose the penalty against the petitioner on the basis of his conduct which led to his conviction and he did not act on the pressure of the higher authority. This is evident from the fact, whatever be the wording of the reply, the action was proposed by the disciplinary authority on its own initiative and not because the Head of the Department had asked him to do so.
12. For the reasons aforesaid I make the following orders:
The Writ Petition is rejected.