Hon’ble Dr. Devendra Kumar Arora, J.—Heard learned Counsel for the petitioner and learned Standing Counsel.

2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India, challenging the order of dismissal dated 21.6.2012 passed by the Executive Engineer, Flood Work Division, Barabanki, inter alia on the ground that the petitioner was convicted in Sessions Trial No. 542 of 2005, under Sections 147, 148, 452, 308/149, 325/149, 323/149, 504 and 506 I.P.C. and Section 3 (1) (x) of S.C./S.T. Act.

3. According to the petitioner, he was engaged as Workcharge employee on a Class-IV post by the Department of Irrigation in the year 1998 and while working as such, his services were regularized on 8.11.2006 by the Chief Engineer (Sharda Sahayak), Ganga Sinchai Bhawan, Telibagh, Lucknow. On account of levelling criminal charges, he was placed under suspension. Subsequently, he was convicted in criminal case (Sessions Trial No. 542 of 2005, under Sections 147, 148, 452, 308/149, 325/149, 323/149, 504 and 506 I.P.C. and Section 3 (1) (x) of S.C./S.T. Act) vide judgment and order dated 5.5.2012. Feeling aggrieved, the petitioner has filed Criminal Appeal No. 705 of 2012. In this appeal, this Court, vide order dated 1.6.2012, has granted bail and in pursuance thereof, he was released from jail on 6.6.2012. Presently, the criminal appeal is pending disposal.

4. Submission of the learned Counsel for the petitioner is that after being released from jail, the petitioner has moved an application for revocation of his suspension but mischievously, the said application was not taken on record and in an arbitrary manner, he was removed from service by the Executive Engineer, Flood Work Division, Barabanki vide order dated 21.6.2012 without affording opportunity of hearing. Feeling aggrieved, the petitioner has filed the present writ petition inter alia on the ground that by mere conviction in a criminal case, any employee cannot be made eligible for removal from his service and further impugned order of dismissal has been passed in utter violation of Article 311 (1) of the Constitution of India.

5. Elaborating his submission, learned Counsel for the petitioner has submitted that the sentence of the petitioner has already been suspended and an appeal is pending before this Court, so the petitioner is entitled for reinstatement in service. He further submits that before passing the impugned order of dismissal, the conduct of the petitioner was not examined by the opposite parties.

6. To strengthen his submission, learned Counsel for the petitioner has placed reliance upon Bhagwan Mishra v. State of U.P. and others, 2012 (30) LCD 859, wherein this Court has observed that a Government servant cannot be dismissed from service merely on the ground of conviction. Appropriate Authority has to consider the conduct of such employee leading to his conviction.

7. On the other hand, learned Standing Counsel submits that during the trial, the petitioner was suspended. When he was convicted, only then the impugned order was passed for dismissal. The petitioner is not entitled for reinstatement. He has submitted that law do not provide the Disciplinary Authority to await disposal of the appeal by the appellate Court for taking action against him on the ground of misconduct, which has led to his conviction by a competent Court of law.

8. I have examined the submission of the learned Counsel for the parties and gone through the record.

9. After hearing both the parties and on perusal of the material available on record, it appears that the petitioner is a convicted person, who is presently on bail granted by this Court. Thus, the sentence of the petitioner has been suspended, which was awarded by the competent Court of law. The appeal is pending before this Court. During the trial, he was suspended and only after conviction, the impugned order has been passed for his dismissal from the service.

10. It may be noted that in