Dismissal of an employee on the ground of conviction on a criminal charge requires a show cause notice unless the dismissal is for conduct leading to the conviction.

( 1 ) THE main question in this Regular Second appeal is whether the proviso to Article 311 (2) of the Constitution is attracted to the facts of this case. The relevant part of the proviso reads as follows:-

"provided that this clause shall not apply-

(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". The facts of the case are that the plaintiff, Narain Singh, who is also the appellant in this Court was a cook-mate in the Willingdon Hos- pital, New Delhi. On 3rd August, 1964 the plaintiff played cards with one Gajjay Singh, Khidmatgar and another person Prem Singh when there was a police raid and all the three persons present were taken into custody. This led to the challans being filed in the criminal court against all these persons except Prem Singh. The plaintiff pleaded guilty and he was sentenced to a fine of Rs. 40. 00 and imprisonment till the rising of the court. Following this conviction the appellant was removed from service. According to the plaintiff his services were terminated on the ground that he was convicted on a criminal charge and no snow cause notice or other opportunity was given to him and his case is that this action was invalid. Jt is undisputed that the appel- lant was a quasi permanent employee of the Willingdon Hospital and so the only question that is involved in this appeal is whether he could be dismissed without any show cause notice on account of the pro- visions of proviso to Article 311 (2) of the Constitution.

( 2 ) ON this question the trial court held that as the plaintiff was dismissed on conduct which led to his conviction, hence no show cause notice was necessary. This view has been affirmed by the Additional Senior Subordinate Judge. Now the plaintiff has come to this Court in second appeal.

( 3 ) THE main contention of Mr. Shiv Charan Singh on behalf of the appellant is that the appellant has not been dismissed on conduct which led to his conviction; instead the appellant has been dismissed be- cause of his conviction. Learned counsel contends that there is a great difference between being dismissed for conduct which led to the con- viction and being dismissed because of the conviction. For the pur- pose of showing that the plaintiff has in fact been dismissed for being convicted and not for conduct leading to the conviction, I having been referred to the plaint and the written statement. In para 6 of the plaint the plaintiff stated as follows:-

"that the Management served no show cause notice on the plaintiff as to why he should not be dismissed from ser- vice on account of his conviction in the criminal court but instead Dr. H. L. Khosia, Senior Staff Surgeon and Medical Superintendent removed the plaintiff from service with immediate effect without affording him any opportunity to explain the charge against him. "in the written statement in para 10, it was stated as follows:-

"10. Para No. 6 is denied, there is no necessity to give the plaintiff a show cause notice as he was removed from service as a result of his conviction on a criminal charge by the court of Shri v. K. Kapur, S. D. M. , New Delhi. It is denied that the order of removal is illegal, improper, high handed, uncalled for and malafide and inoperative. "i have also been referred to para No. 1 of the preliminary objections in the written statement which runs as follows:-

"1. The matter is" not justiciable. The plaintiff was re- moved from service on the grounds of conduct which led to his conviction on a criminal charge. "it will be seen from these pleadings that according to the plaintiff he was removed from service because of the criminal prosecution. This is admitted in Para No. 10 of the written statement although in the preliminary objections it is stated that the plaintiff was removed because of the conduct leading to the conviction. The plaintiff filed a replication in which paras Nos. I to 4 as prelimnary obje