The proviso to Article 311(2) of the Constitution, which exempts certain cases from the requirement of a departmental enquiry, applies only to cases where there is a final conviction on a criminal charge.

( 1 ) BOTH the petitions raise similar question of law to be determined. The petitioner in either was employed -- in one case as relieving trains clerk at Aligarh and in the other as assistant goods clerk at Hathras Killah station. They were prosecuted for offences under Section 409 I. P. C. , in relation to certain acts done by them in the performance of their duties. Ram Nath Gautam, petitioner in writ petition No. 3729 of 1959, was also prosecuted in the same transaction for an offence under Section 477-A I. P. C. also. The Magistrate who tried the petitioners on these charges convicted them for the said offences by his order dated 18-12-1956. A few days later they filed appeals before the Sessions Judge, Aligarh who allowed the same on 15-2-1958. Before, however, the appeals could be disposed of by the learned Sessions Judge but after they had been instituted before him, the Divisional Superintendent, Allahabad, who was the appointing authority in the case of the two petitioners, dismissed them from service by his order dated 25-2-1957. Admittedly the petitioners were not charge-sheeted separately by the departmental authorities. No enquiry either was held against them on those charges departmentally. But the order of dismissal was passed on the strength of the finding reached by the Magistrate who had convicted them for offences under Sections 409 and 477-A I. P. C. After the appeals had succeeded the petitioners approached the respondent to reinstate them. This request of theirs was not accepted. In the meantime they commenced these petitions asking the dismissal orders dated 25th February 1957, by which the petitioners were dismissed, and the order dated 9-10-1958 by which the respondent declined to reinstate them, to be quashed.

( 2 ) THE facts which lie within a small compass are not disputed. The respondent also does not claim that any departmental enquiry was held against the two petitioners. But he has justified the two orders on the ground that in view of the conviction of the petitioners by the Magistrate the protection embodied in Clause (2) of Article 311 of the Constitution was not applicable to their cases. For this they have relied on the proviso under it which is to the effect that Clause (2) is inapplicable where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to a conviction on a criminal charge. That the petitioners had been convicted for offences under Sections 409 and 477-A I. P. C. by the trial Court is admitted. It also is not disputed that they were acquitted on those charges by the appellate Court. Another fact which must have been noticed is that the dismissal orders were passed at a time when appeals against their convictions were already pending before the Sessions judge who ultimately allowed them. The question which arises, therefore, is whether the case of the two petitioners, even though they were ultimately acquitted on appeal, is covered by sub-clause (a) of the proviso under Clause (2) of Article 311 of the Constitution. Article 311 is in the nature of a constitutional guarantee in favour of persons who are members of civil services or holding civil posts under the Union or a State. Clause (2) thereof requires that a person as aforesaid shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It imposes an obligation on the authority competent to dismiss, remove or reduce in rank a servant under the State or the Union to give to the servant concerned reasonable opportunity of showing cause against the action proposed to bo taken in regard to him. The dimissing authority has, therefore, to come to a conclusion on the charges levelled against the public servant and the action proposed to be taken in regard to him before making the order. The proviso relieves him from this obligation where a person is dismissed or