Sub-clause (a) of the proviso to Article 311 (2) of the Constitution does not apply where the conviction on a criminal charge is set aside in appeal or revision.

OAK, J. :- The following question of law has been referred to this Full Bench:

"Would the provisions of Article 311 (2) of the Constitution of India apply to the case of the appellant in the circumstances of the present case?"

2. The facts of the case are these, Kunwar Bahadur was employed as a clerk in the Evacuee Property Department. On 17-5-1956 he was convicted by a Special Judge (Anti-Corruption) for taking a bribe. On 21-5-1956 the Deputy Custodian of Evacuee Property, Allahabad passed an order terminating Kunwar Bahadur's services with effect from 17-5-1956. No opportunity to show cause as provided in Article 311 (2) of the Constitution of India was given to him before passing the order dated 21-5-1956. Kunwar Bahadur appealed against the order of conviction. The appeal was allowed by this Court on 9-4-1957. Kunwar Bahadur instituted a suit in the Court of the Civil Judge, Allahabad for a declaration that the order of removal of the plaintiff from service is void, and the plaintiff continues in service. He also claimed the recovery of arrears of pay up to the date of the suit The plaintiff's suit was dismissed by the trial Court. Kunwar Bahadur, plaintiff has appealed to this Court.

3. When the appeal came up for hearing before a Division Bench of this Court, learned counsel for the parties advanced arguments on the question whether the plaintiff was entitled to the protection of clause (2) of Article 311 of the Constitution. On finding that there is some conflict of opinion on this question, the Division Bench referred the question of law quoted above to a Full Bench.

4. The question for consideration is whether the plaintiff appellant is entitled to the protection of clause (2) of Article 311 of the Constitution. Clause (2) of Article 311 states:

"No such person as aforesaid shall 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:

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;

(b) .. .. ..

(c) .. .. .. "

5. According to Mr. N. D. Pant appearing for the defendants-respondents, the present case is covered by sub-clause (a) of the proviso. Consequently, the plaintiff cannot get the benefit of clause (2) of Article 311. According to Mr. M. P. Singh appearing for the plaintiff-appellant, the present case is not covered by sub-clause (a) of the proviso. So, the plaintiff is entitled to the benefit of clause (2) of Article 311.

6. In M. S. M. Railway Co. v. Ranga Rao, AIR 1940 Mad 269 it was held that if a railway company had the right to dismiss its servant when he was convicted, he could not be compelled to take him back into its employment when the conviction was set aside at some later date as a result of revision proceedings.

7. Similarly, in N. W. R. Johnson v. General Manager, B. N. Railway, AIR 1955 N. U. C. (Cal) 1793 it was held that once a government servant is dismissed upon a ground which is valid at the time of dismissal, it does not follow that he must be taken back if later on that ground disappears. Under rule 1706-R a railway servant is liable to dismissal from service upon conviction by a criminal Court, and the railway company cannot be compelled to take him back into its employment when the conviction is set aside in appeal at some later date.

8. It will be seen that Ranga Rao's case, AIR 1940 Mad 269 was decided by Madras High Court long before the commencement of the Constitution of India. The decision by Calcutta High Court in Johnson's case, AIR 1955 NUC (Cal) 1793 seems to be based largely on the relevant provisions of the Railway Code. So, these two decisions are not of much help for understanding the true scope of Article 311 of the Constitution.

9. In U. P. State v. Mohammad Nooh, AIR 1958 SC 86 their Lordships of the Supreme Court observed on page 95