Kurian Joseph, J.

1. After the amendment to R.18 of the Kerala Civil Services (Classification Control and Appeal) Rules (hereinafter referred to as the Rules) by introducing a second proviso to the Rule, is the dismissal/removal from service of a Government servant. who is convicted on a criminal charge by a criminal court and sentenced to imprisonment and or with fine is automatic is the question to be decided in these cases.

2. The petitioner in the former case Sudheer, an employee under the Kerala State Road Transport Corporation, was convicted by the Judicial First Class Magistrate, Attingal on 1.10.2003 in C.C.340/1999 for an offence under S.498-A read with S.34 of the Indian Penal Code. He was sentenced to undergo simple imprisonment for one year and pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for another six months. Petitioner filed Criminal Appeal No.477/2003 before the Sessions Court, Trivandrum. By order dated 28.10.2003 in Crl. M. P. No. 2320/2003 the sentence was suspended. Thereafter the petitioner filed Crl. M.P. No. 383/2004 praying for suspension of the conviction. Petitioner submitted before the lower appellate court that unless the conviction is suspended petitioner was likely to be terminated from service. The learned Sessions Judge, referring to two decisions of the Supreme Court in Rama Narang v. Ramesh Narang, 1995 (2) SCC 513 and K.C. Sareen v. CBI, Chandigarh, 2001 (6) SCC 584 and finding that exceptional circumstances existed in the case justifying the suspension of the conviction so as to save the petitioner from the consequences which would otherwise follow, passed an order on 19.3.2004 suspending the conviction. Ext. P1 is the order of suspension of sentence and Ext. P2 is the order of conviction. However, as per Ext. P6 order dated 17.5.2004 the petitioner was dismissed from service invoking the second proviso to R.18 of the Rules.

3. The petitioner in the later case -- Chandrasekharan -- who is a Government servant working as Rationing Inspector, at the relevant time was on deputation to the Civil Supplies Corporation. He was convicted by the Judicial First Class Magistrate Court, Manjeri in C.C.No.260/1999 under S.409 and 418 of the Indian Penal Code. He was sentenced to undergo simple imprisonment for one month for offence under S.418 IPC and simple imprisonment for three months with a fine of Rs. 1,000/- for the offence under S.409. The petitioner filed appeal as Criminal Appeal No. 1/2004 before the Sessions Court, Manjeri. As per Ext. P2 order dated 2.1.2004 in Crl.M.P.No. 2/2004 in Crl. Appeal No. 1/04 the sentence was suspended. As per Ext. P3, the petitioner was terminated from service on account of the conviction.

4. Sri. K.R.B. Kaimal, counsel appearing for the petitioner in the former Writ Petition, contends that the dismissal from service under the amended Rule is not automatic. What the Rule contemplates is invocation of the second proviso to Art.311 of the Constitution of India and action under that Rule is to be taken, taking note of the conduct leading to the conviction. Since both the sentence and conviction have been suspended, there is no justification in dismissing the petitioner from service.

5. Sri. S. Gopakumaran Nair, learned counsel appearing for the petitioner in the latter case, submits that taking note of the conduct of the petitioner, the disciplinary authority had a duty to consider whether the misconduct is grave enough to impose major penalty. In other words merely because the Rule provides for dismissal or removal from service on conviction in a criminal case, the said extreme penalty is not automatic. It is submitted that in the instant case, the disciplinary authority has not applied its mind at all as to whether it is a situation warranting the invocation of second proviso to R.18 of the Rules.

6. Sri. James Koshy, learned Standing Counsel for the KSRTC and Sri. K.J. Josemon, learned Senior Government Pleader, submit that after the