An order of removal from service based merely on a conviction recorded by a criminal court is illegal and violative of Article 311(2) of the Constitution, which requires an opportunity of hearing to be given before passing such an order.

S. C. Mathur, J.

1. The State of Uttar Pradesh has directed this writ petition against the judgment and order dated 1-11-1983 passed by the U. P. Public Services Irrbanal I, Lucknow.

2. Sada Nand Misra, opposite party No. 1 was posted in an office at Pratapgarh under the Directorate of National Cadet Corps at Lucknow. It appears that he was prosecuted for offences punishable under Sections 323 and 325 of the Indian Penal Code. The Judicial Magistrate, Pratapgarh, convicted opposite party no. 1 by his judgment and order dated 29-6-1979. The conviction was recorded both under Section 323 as well as under Section 325 of the Indian Penal Code. Against this order opposite party no. 1 preferred criminal appeal which came up to be disposed of by the learned Sessions Judge, Pratapgarh, by his judgment and order dated 15-10-1979. It appears that the opposite party did not succeed in the appeal. Thereafter, he along with co-accused Maha Nand filed Criminal Revision No. 397 of 1979 in this Court. This Court by Judgment and Order dated 30-7-1981 maintained the conviction under Section 323 but set aside the conviction recorded under Section 32S of the Indian Penal Code. The sentence awarded in respect of the offence punishable under Section 323 of the Indian Penal Code was also reduced. The amount of fine too was reduced. The ultimate result, therefore, is that opposite party no. 1 was convicted only for the offence punishable under Section 323/34 of the Indian Penal Code for which he spent 17 days in jail and had to pay a fine of Rs. 150/-. After opposite patty ho. 1's appeal had been disposed of by the learned Sessions Judge but before his revision was decided by this court, his appointing authority passed an order on 19-4-l980 removing him from service. This order reads as follows :-

"Since you have been convicted under Section 323 and 325 IPC vide judgment dated 29-6-79 passed by Sri Ramesh Chandra Tiwari Judicial Magistrate, Pratapgarh in case No. 339/78; U. P. Slate v. Ram Kumar, Sadanand, Mahanand and others, on charge of causing voluntarily hurt and causing grievous hurt to. Sri Ram Chandra on 7 Jan. at 12.00 hrs., therefore, you cannot be retained in service any longer. I, therefore, remove you from the post of Senior Division Clerk with effect from the date of receipt of this order."

Against this order of removal from service opposite party no. 1 preferred departmental appeal which was rejected. Thereafter opposite party no. 1 preferred claim petition before the Public Services Tribunal. The Public Services Tribunal by its impugned order dated 1-11-1983 allowed the claim petition and quashed the order dated 194-1980. Aggrieved by the order of the Tribunal the State has preferred the instant writ petition.

Before the Tribunal the case of the petitioner was that the impugned order could not be passed without giving him opportunity of hearing. In support of his submission reliance was placed upon a Division Bench decision of this Court in Dost Mohammad v. Union of India, 1980 ACJ 270. In this case Dost Mohammad had been convicted under Section 323 of the Indian Penal Code and on the basis of this conviction his services were terminated. The power to terminate was purported to have been exercised under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Division Bench was of the opinion that although the rule did not require opportunity of hearing to be afforded when, the order of termination was passed on the basis of conviction by a criminal court, still the principles of natural justice required such an opportunity to be afforded. The Tribunal relied upon this authority and held that since the order dated 19-4-1980had been passed without giving opportunity of hearing to opposite party no. 1, the same was liable to be quashed. The learned counsel for opposite party no. 1 has relied upon this judgment before me also.

4. Learned counsel for the State, however, submitted that in view of th