C.V. Bhadang, J.

1. Heard Advocate Shri Shelat for the petitioner and learned Assistant Government Pleader Shri Rao for the respondents.

2. The petitioner joined the service as a Sepoy at Central Prison, Nagpur on 1.11.19964 and was eventually confirmed on 1.11.1965. The petitioner had put in 26 years of service before his dismissal on 8.9.1990, which order is subject matter of challenge in this petition.

3. On 29.4.1988, it is said that the petitioner was on leave and had gone to the Court of Judicial Magistrate First Class, Darwha District Yavatmal for his personal work. It so happened that the petitioner entered the Court room, chewing Pan. The learned Magistrate, taking cognizance of the incident, issued a show-cause-notice to the petitioner and proceeded to convict him for the offence punishable under Sections 116 and 117 of the Bombay Police Act (Fort short “the Act”). The petitioner was accordingly fined for Rs.50/ for the said offence. It appears that this incident and consequent order of conviction and sentence was not brought to the notice of his superiors by the petitioner. It further appears that subsequently it came to the knowledge of the competent authority, who proceeded to dismiss the petitioner from service by an order dated 8.9.1990 on the ground that it is not in public interest to retain the petitioner in service.

4. The petitioner challenged this order of dismissal in a departmental appeal before the Deputy Inspector of General Central Prison, Eastern Region, Nagpur. By an order dated 17.12.1990 the appeal came to be dismissed thereby confirming the order dated 8.9.1990. This was challenged by the petitioner in Writ Petition No.2904/1990 before this Court. On constitution of the Maharashtra Administrative Tribunal (MAT), the writ petition was transferred to the MAT and was registered as T.A. No.1391/1992. The learned Members of the MAT by a judgment and order dated 8.10.2003 has been pleased to dismiss the transfer application, which order is subject matter of challenge in the present petition.

5. The respondents have filed a return and have opposed the petition. It is contended that the petitioner was convicted and sentenced under the provisions of the Bombay Police Act in the year 1988 and the conduct of the petitioner as a member of disciplined force was unbecoming of a public servant. The petitioner also did not bring to the notice of the superiors the incident and the consequent order passed. It was only in the year 1990 that the information was received and acting on the basis of the conviction and in particular the Government Circular dated 12.6.1986 (Annexure RI), the competent authority has inflicted the punishment of dismissal. It is submitted that the departmental appeal as well as challenge before the MAT has been rightly negatived.

6. It is submitted by the learned Counsel for the petitioner that the basis on which the order is passed is firstly the conviction and the sentence in the nature of fine imposed under Sections 116 and 117 of the Act and secondly on the allegation that this was not brought to the notice of the competent authority by the petitioner. The learned Counsel submits that so far as the later ground is concerned, the privilege enjoyed by the competent authority under proviso (a) to Article 311 (2) of the Constitution of India would not be available. In other words, it is submitted that it is only on the basis of the conviction, the competent/disciplinary authority can act under proviso (a) to Article 311 (2) of the Constitution of India. It is, thus, submitted that insofar as the ground of non-communication of the incident by the petitioner is concerned, it would require a show-cause-notice before the same is acted upon. It is undisputed that such a show-cause-notice has not been issued. He, therefore, submitted that the second ground/reason would not survive and cannot be called into aid in support of the impugned action. Insofar as the ground of conviction is co