S. C. Mathur, J. - (1.) THE State of Uttar Pradesh has directed this writ petition against the judgment and order dated 1-11-1983 passed by the U. P. Public Services Irrbanal I, Lucknow.
(2.) SADA Nand Misra, opposite party No. 1 was posted in an office at Pratap-garh under the Directorate of National Cadet Corps at Lucknow. It appears that he was prosecuted for offences punishable under Sections 323 and 325 of the Indian Penal Code. The Judicial Magistrate, Pratapgarh, convicted opposite party no. 1 by his judgment and order dated 29-6-1979. The conviction was recorded both under Section 323 as well as under Section 325 of the Indian Penal Code. Against this order opposite party no. 1 preferred criminal appeal which came up to be disposed of by the learned Sessions Judge, Pratapgarh, by his judgment and order dated 15-10-1979. It appears that the opposite party did not succeed in the appeal. Thereafter, he along with co-accused Maha Nand filed Criminal Revision No. 397 of 1979 in this Court. This Court by Judgment and Order dated 30-7-1981 maintained the conviction under Section 323 but set aside the conviction recorded under Section 32S of the Indian Penal Code. The sentence awarded in respect of the offence punishable under Section 323 of the Indian Penal Code was also reduced. The amount of fine too was reduced. The ultimate result, therefore, is that opposite party no. 1 was convicted only for the offence punishable under Section 323/34 of the Indian Penal Code for which he spent 17 days in jail and had to pay a fine of Rs. 150/-. After opposite patty ho. 1's appeal had been disposed of by the learned Sessions Judge but before his revision was decided by this court, his appointing authority passed an order on 19-4-l980 removing him from service. This order reads as follows :- "Since you have been convicted under Section 323 and 325 IPC vide judgment dated 29-6-79 passed by Sri Ramesh Chandra Tiwari Judicial Magistrate, Pratapgarh in case No. 339/78; U. P. Slate v. Ram Kumar, SADAnand, Mahanand and others, on charge of causing voluntarily hurt and causing grievous hurt to. Sri Ram Chandra on 7 Jan. at 12.00 hrs., therefore, you cannot be retained in service any longer. I, therefore, remove you from the post of Senior Division Clerk with effect from the date of receipt of this order." Against this order of removal from service opposite party no. 1 preferred departmental appeal which was rejected. Thereafter opposite party no. 1 preferred claim petition before the Public Services Tribunal. The Public Services Tribunal by its impugned order dated 1-11-1983 allowed the claim petition and quashed the order dated 194-1980. Aggrieved by the order of the Tribunal the State has preferred the instant writ petition. Before the Tribunal the case of the petitioner was that the impugned order could not be passed without giving him opportunity of hearing. In support of his submission reliance was placed upon a Division Bench decision of this Court in Dost Mohammad v. Union of India, 1980 ACJ 270. In this case Dost Mohammad had been convicted under Section 323 of the Indian Penal Code and on the basis of this conviction his services were terminated. The power to terminate was purported to have been exercised under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Division Bench was of the opinion that although the rule did not require opportunity of hearing to be afforded when, the order of termination was passed on the basis of conviction by a criminal court, still the principles of natural justice required such an opportunity to be afforded. The Tribunal relied upon this authority and held that since the order dated 19-4-1980had been passed without giving opportunity of hearing to opposite party no. 1, the same was liable to be quashed. The learned counsel for opposite party no. 1 has relied upon this judgment before me also. 4: Learned counsel for the State, however, submitted that in view of the proviso (a) to the Second proviso to clause (2) of Article 311 of the Constitution, no show cause notice was required to be served upon opposite party no. 1. Apart from this provision, the learned counsel for the State was unable to invite my attention to any service rule under which an order of removal from service could be passed on the basis of conviction recorded by a criminal court. 5. The learned counsel for the State cannot derive any benefit from provi$o (a). Under Clause (1) of Article 311 it has been provided that no person who is a member 15-Rep. (Suppl.) of a civil service of the Union or an AH India Service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Clause (2) provides that no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Under this provision an order of removal from service can be passed only after giving reasonable opportunity of being heard. The second proviso contains exceptions to this rule. Clause (a) provides thus : " (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge." An enquiry under this clause may not be held when the order of removal from service is passed on the ground of couduct which has led to his conviction on a criminal charge but the enquiry is not dispensed with where the order is based merely on the conviction recorded by the criminal court. The order of removal from service which has been reproduced hereinabove has not been passed "on the ground of conduct which has led to his conviction on a criminal charge," but on the ground of conviction itself. In my opinion, therefore, the enquiry which the principles of natural justice require to be held could not be dispensed with in the present case. 6. Before parting with the case it may be pointed out that the opposite party no. .1 had been convicted for a minor offence punishable under Section 323 of the Indian Penal Code. It has to be considered by the appointing authority whether for such a minor offence the extreme penalty of removal from service was called for. The order of removal does not indicate that mind was applied to this aspect of the matter. In the circumstances I am of the opinion that the order of the Tribunal does not suffer from any manifest error. 7. In view of the above the petition fails and is hereby dismissed with costs to opposite party no. 1. The counsel's fee of opposite party no. 1 shall be taxed according to the certificate filed but not exceeding Rs. 300/-. Petition dismissed;