Manmohan Sarin, J.
1. Petitioner has filed the present petition praying for a writ of certiorari for quashing the office order bearing No. 1639/SIO(P)/Vig./2003/D-241 dated 26.10.2006 issued by the Deputy Law Officer, Vigilance (annexure P-1) and office order dated 25.9.2006. On perusal of the writ petition, we find that order dated 25.9.2006 is not annexed with the writ petition. Learned Counsel admits that the said order is not annexed and submits that the challenge to the same may be taken as not pressed. Petitioner also seeks a writ quashing Section 95(2)(a) of Delhi Municipal Corporation Act, 1957 as being vocative of fundamental rights and ultra virus of the Constitution. Quashing of Regulation 9(1) of DMC Services (Control and Appeal) Regulations, 1959 is also sought. The relevant facts giving rise to this petition may be briefly noted as under:
2. Petitioner was working with the respondent MCD as a Malaria Inspector under its Najafgarh Zone. Petitioner claims being employed with MCD since 7.3.1978. He has rendered unblemished service for decades. Unfortunately, a trap was laid and the petitioner was allegedly caught red handed by the CBI on 5.2.2003 while accepting a bribe of Rs. 500 from the complainant for not issuing challans for his hotel. Petitioner was remanded to judicial custody up to 19.2.2003. Accordingly, he was placed under suspension w.e.f. 5.2.2003 vide order dated 7.3.2003. In due course, the petitioner was prosecuted pursuant to the case registered by the CBI under the Prevention of Corruption Act being RC DAI-2003-A-0009. After trial petitioner is convicted vide judgment dated 10.3.2006 passed by Shri S.K. Kaushik, Special Judge, CBI and has been sentenced to undergo 2 years R.I. and pay a fine of Rs. 10,000/- and in default R.I. for months for the offence punishable under Section 7 of the Prevention of Corruption Act. He is also sentenced to RI for 3 years and pay a fine of Rs. 15,000/- and in default R.I. for four months under Section 13(2) read with Section 13(1)(d) of the Act.
3. Petitioner has preferred an appeal against order of conviction/sentence before this Court wherein the sentence of the petitioner has been suspended, however, the conviction has not been suspended. Following the arrest and being remanded in judicial custody, the petitioner remained under suspension and was being paid subsistence allowance as applicable under the Rules. The subsistence allowance continued to be paid till May, 2006. The said subsistence allowance being paid was enhanced from 50% to 75% of the basic salary in November, 2003 as is evident from the order dated 5.11.2003. After conviction and order on sentence being passed by the Special Judge, CBI in March, 2006, respondent stopped paying subsistence allowance from June 2006. Respondent also by invoking the provisions of Section 95(2)(a) of the DMC Act, read with Regulation 9(1) of DMC Services (Control and Appeal) Regulations, 1959, dismissed the petitioner from service without holding any departmental inquiry. The said provision provides that where the employees have been convicted on a criminal case, issuance of show cause notice or holding of a departmental inquiry was not required for imposition of the penalty on municipal employee on the ground of conduct leading to his conviction in a criminal case. The competent authority having considered all the relevant facts in relation to the judgment and conviction of the petitioner, considered it prudent to dispense with departmental inquiry by invoking provisions of Section 95(2)(a) of DMC Act and thereupon dismissed the petitioner.
4. The first contention sought to be raised before us by Mr.Sandeep Sethi, Sr. Advocate is that the denial of the subsistence allowance to the petitioner during the pendency of criminal appeal is unfair as it tantamounts to denial of basic livelihood. It was sought to be urged that the petitioner is even being disabled from pursuing his criminal appeal. Learned Counsel sought to place reliance on State of Maharashtra v. Chandrabhan Tale reported at : (1983)IILLJ256SC . Reference may be made to the following observations of the Supreme Court in para 23.
Any departmental inquiry made when payment of subsistence allowance contrary to the provision for its payment, is vocative of Article 311(2) of the Constitution has been held by this Court in the above decision. Similarly, any criminal trial of civil servant under suspension without payment of the normal subsistence allowance payable to him under the Rule would be vocative of that Article. Payment of subsistence allowance at the normal rate pending the appeal filed against the conviction of civil servant under suspension is a step that makes the right of appeal fruitful and it is, thereforee, obligatory. Rejection of the normal subsistence allowance to the nominal sum of Re.1 per month on conviction of a civil servant under suspension in a criminal case pending his appeal filed against that conviction, whether the civil servant is on bail or has been lodged in prison on conviction pending consideration of his appeal, is an action which stultifies the right of appeal and is consequently unfair and unconstitutional. Just as it would be impossible for a civil servant under suspension who has no other means of subsistence to defend himself effectively in the trial court without the normal subsistence allowance - there is nothing on record to show in these areas to show that the civil servants concerned in these cases have any other means of subsistence - it would be impossible for such civil servants under suspension to prosecute his appeal against his conviction fruitfully without payment of the normal subsistence allowance pending his appeal.
5. From the foregoing observations, it would be seen that thrust appears to be that pending appeal against conviction/sentence, the subsistence allowance being paid should continue to be paid so that the concerned employee is not deprived of his means of livelihood or his pursuit for engagement of counsel for his legal remedies.
6. Mr.Sethi also sought to place reliance on observations in the judgment in relation to the justification for provision of minimal subsistence allowance pending the criminal trial or appeal to enable the concerned employee who is unable to work to make his both ends meet. In the present case, petitioner has been paid subsistence allowance as per service rules applicable to him during the period of his suspension from service. However, after his conviction by the Special Judge, CBI under Prevention of Corruption Act, the municipal authorities have invoked the provision of Section 95(2)(a) of the Act read with relevant Regulation referred above and also relying on O.M. No. 5S-DSP-25 dated 10.6.1985 issued by Central Vigilance Commission and dismissed petitioner from service vide order dated 26.10.2006. The dismissal order is based on the conduct of petitioner which led to his conviction on criminal charge. As a result of passing of the said order of dismissal, petitioner ceases to be in service and, accordingly, there is no question of payment of any subsistence allowance to him as is contended. His conviction is still continuing. Under the circumstances, we are of the view that petitioner can't seek grant of subsistence allowance for purposes of pursuing the remedy in appeal as long as conviction is continuing. Learned Counsel for the petitioner in these circumstances has not pressed the submission with regard to the constitutional validity of Section 95(2)(a) of the DMC Act and Regulation ix(1) of the DMC Services (Control and Appeal) Regulations. The writ petition is dismissed for the foregoing reasons.