R.A.Sharma - (1.) SRI Mnrari Lal, respondent no. 2 was the driver of the petitioner, U. P. State Road Transport Corporotion (hereinafter referred to as the Corporation). Due to rash and negligent driving the bus of the Corporation was involved in a serious accident. Respondent no. 2 was prosecuted and convicted on 27-6-1976 for offence under Section 304-A of Indian Penal Code. Appeal filed by respondent no. 2 against his conviction was dismissed. On 28-1-1977 and his revision was also dismissed on 11-4- 1979. Thereafter vide order dated 2-9-1981 the Corporation dismissed respondent no. 2 in exercise of powers under proviso (a) to clause (2) of Article 311 of the Constitution of India on the ground of his conviction of a criminal court. Against the order of dismissal, respondent no. 2 filed a claim petition before the U. P. Public Services Tribunal, Lucknow Service Tribunal vide its order dated 31-12-1987 has allowed the claim petition of respondent no. 2 and quashed the order of dismissal on the ground that the Corporation has passed an order of dismissal without giving any opportunity of being heard.
(2.) AGAINST this order of the Service Tribunal, the Corporation has filed his writ petition before this Court which has been admitted and interim stay was granted in favour of the Corporation. Learned counsel for the Corporation has made following submissions in support of the writ petition :- (i) Service Tribunal was not justified in holding that as respondent no. 2 has been, dismissed on the ground of conviction in a criminal case and not on the ground of conduct whioh has led to his conviction on a criminal charge opportunity of being heard was required to be given to the employee. (ii) Order of dismissal cannot be set-aside on the ground that it is retrospective in operation because retrospective part is severable from the main order and main order can remain intact even after retrospective part is set-aside. It has been settled by the Supreme Court in the case of Union of India v. Tulsiram Patel, AIR 1985 SC 14 i 6 that before passing the order under proviso (a) to Clause (2) of Article 311 of the Constitution of India, it is not necessary to give an opportunity of being heard to servant concerned. This case was followed by Honourable Supreme Court in the case of Trikha Ram v. K. Seth, AIR 1988, SC 285. View of the Service Tribunal that the order of dismissal on account of conviction on a criminal charge cannot be passed without giving an opportunity of being heard cannot be sustained and the distinction made between dismissal on the ground of conviction on a criminal charge and dismissal on the ground of conduct which has led to conviction on a criminal charge is too hyper technical and is liable to be ignored. View of learned Single Judge in the case of State v. Sadanand Misra, 1984 (2) LCD 294, on the basis of which the Service Tribunal has taken aforesaid view, stands over-ruled by a Division Bench of this Court io Shy am Narain Shukla v. State of U. P. (1989) UP LB EC 418. In that case termination of service of Shukla was set aside by this Court on the ground that dismissal order was based on the conviction and not on the conduct which led to conviction on criminal charge and as such he was entitled to be heard as contemplated by Article 3U of the Constitution. This view was over-ruled by Division Bench on the ground that after judgment of Supreme Court in Tulsiram Patel's case hearing is not required to be given.
(3.) THE order of dismissal was passed by the Corporation on 2-9-1981 with effect from 27-5-1979. Order of dismissal cannot be passed with retrospective effect. However, this part of the order is severable and can be set aside without disturbing main order of dismissal it is in accordance with the law laid down in R. Jeevaratnam v. State of Madras, AIR 1966 SC 951 and the relevant extract of this judgment is quoted below :- "THE order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension that is to say, from May 20, 1949/. In substance this order directed that (1) the appellant be dismissed, and (2) the dismissal to operate retrospectively as from May 20, 1949. THE two parts of this composits order are separat able. THE first part of the order operates as a dismissal of the appellant as from October 17, 1950. THE invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. THE order of dismissal as from October 17, 1950 is valid and effective. THE appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service." The impugned order of the Public Services Tribunal is as such, liable to be set aside.-;