JUDGMENT

S. Sagir Ahmad, J. - The petitioner whild working as Senior Division Clerk under Dy. Director General, NCC, U.P., Lucknow, was implicated in Case Crime No. 747 of 1978 registered at Police Station Kotwali, District Pratapgarh, under Sections 146, 148, 304, 327, 324, of the Indian Penal Code. There were a number of other persons involved in that case and all of them including the petitioner were prosecuted in Sessions Trial No. 63 of 1980.

2, In this petition we are not concerned with other persons but so Far as the petitioner is concerned, he was convicted and sentenced as under:

(i) life imprisonment under section 302/149 IPC,

(ii) 6 months under section 147 IPC.

(iii) 6 months under section 354/149 IPC.

(iv) 6 months under section 323/149 IPC.

3. Against his conviction referred to above, the petitioner filed an Appeal before this Court which is pending and in which he has been granted bail.

4. By the order dated 31101985 (contained in Annexure1) passed by the Deputy Director General, NCC, U.P., the petitioner was removed from service.

5. The order of removal was challenged by the petitioner in a departmental appeal filed before the State Government which was rejected and the order of the State Government rejecting the appeal was communicated to the petitioner by letter dated 2091988 issued by the Directorate, NCC, U.P., a copy of which has been filed as Annexure3 to the writ petition. Thereafter petitioner made several representations to the Opposite Parties pointing out that this court by an interim order passed in the Criminal Appeal had stayed the operation of the order of conviction passed by the Trial Court and therefore, he should be reinstated. This request too was considered by the Opposite Parties and by letter dated 241990 (Annexure7) the representations for reinstatement were rejected.

6. The petitioner has now come to this court.

7. It is contended by the Counsel for the petitioner that the Opposite Parties in removing the petitioner from service on his conviction in Sessions Trial No. 63 of 1980, have committed manifest error of law in as much as they had not, while passing the order of removal, considered the conduct of the petitioner which had lead to his conviction. It is contended that the order of removal was passed in gross violation of the provisions of Clause (a) of the Second Proviso to Article 311(2) of the Constitution which indicates that the removal or dismissal should be passed on the ground of conduct which had lead to the conviction of an employee on criminal charge. It is also contended that it was incumbent upon the opposite parties to have given an opportunity of hearing to the petitioner before removing him from service on the ground of his conviction. Learned counsel for the petitioner also contended that once the operation of the order of conviction was stayed by this court in the Criminal Appeal filed by the petitioner, the opposite parties ought to have reinstated the petitioner in service as the order of conviction had ceased to be operative on account of the interim order passed by this court.

8. Opposite parties have filed a counter affidavit in which they have pointed out that while the petitioner was posted at Pratapgarh in 18 Bn. N.C.C., he was convicted under Sections 323/325 IPC by the court of Judicial Magistrate, Pratapgarh and sentenced to one month's R.I. and a fine of Rs. 50 under section 323 IPC and was further sentenced to two month's R.I. and a fine of Rs. 500 under section 325 IPC. The appeal filed before the Sessions Judge, Pratapgarh and the revision filed thereafter in this court by the petitioner were dismissed but quantum of punishment was reduced. On account of the above conviction, petitioner was removed from service in the year 1980 but the order of removal was setaside by the U.P. Public Service Tribunal and he was reinstated in service w.e.f. November, 1983.

9. It is further pointed out in the counter affidavit that the petitioner came to be involved in another crim