STATE OF KERALA AND ORS. Vs. S. ANITHA

JUDGEMENT

(1.) This Writ Appeal has been filed against the judgment dated 19.11.2009 in W.P(C).No.9795 of 2009 by which judgment, the Writ Petition filed by the petitioner/respondent has been allowed. Brief facts of the case giving rise to the Writ Appeal are:

(2.) A counter affidavit in the Writ Petition was filed on behalf of the State pleading that in view of the conviction of the petitioner, the power under clause (a) of the second proviso to Article 311(2) of the Constitution of India was invoked. Reference of the Government order dated 27.8.1998 has also been made in the counter affidavit. The learned Single Judge heard the Writ Petition and by judgment dated 19.11.2009 allowed the Writ Petition by setting aside Exhibit P3 and directing the respondent to reinstate the petitioner in service. The State of Kerala, aggrieved by the said judgment, has come up in this Writ Appeal.

(3.) Sri.P.I.Davis, learned Senior Government Pleader appearing for the appellant has submitted that no error was committed in dismissing the petitioner from service consequent to her conviction. It is submitted that even though the conviction order was stayed by this Court in Crl.A.No.477 of 2009, the conviction has not come to an end and the mere fact that conviction has been stayed does not entitle the petitioner to claim reinstatement in service. He further submits that in exercise of power under clause (a) of the second proviso to Article 311(2) of the Constitution of India, there is no requirement of giving hearing to the petitioner. It is further submitted that in accordance with Rule 18 of the Civil Services (Classification Control and Appeal) Rules, 1960, in the event the Criminal Appeal is allowed and subsequently the conviction is set aside in appeal, the petitioner is entitled to be reinstated with all the benefits to which she would have been entitled had she been in service. He further submitted that Rule 18 proviso mandates that consequent to the conviction, the employee is to be dismissed forthwith irrespective of the fact that appeal is pending or that execution of sentence is suspended as per Rule 18 proviso. It is further submitted that under the threat of contempt of the judgment, although the petitioner was reinstated in service, such reinstatement was subject to the decision in the appeal.