D.K. Kapur, J.
(1) The main question in this Regular Second appeal is whether the proviso to Article 311(2) of the Constitution is attracted to the facts of this case. The relevant part of the proviso reads as follows:-
'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'.
The facts of the case are that the plaintiff, Narain Singh, who is also the appellant in this Court was a cook-mate in the Willingdon Hospital, New Delhi. On 3rd August, 1964 the plaintiff played cards with one Gajjay Singh, Khidmatgar and another person Prem Singh when there was a police raid and all the three persons present were taken into custody. This led to the challans being filed in the criminal court against all these persons except Prem Singh. The plaintiff pleaded guilty and he was sentenced to a fine of Rs. 40.00 and imprisonment till the rising of the court. Following this conviction the appellant was removed from service. According to the plaintiff his services were terminated on the ground that he was convicted on a criminal charge and no snow cause notice or other opportunity was given to him and his case is that this action was invalid. Jt is undisputed that the appellant was a quasi permanent employee of the Willingdon Hospital and so the only question that is involved in this appeal is whether he could be dismissed without any show cause notice on account of the pro- visions of proviso to Article 311(2) of the Constitution.
(2) On this question the trial court held that as the plaintiff was dismissed on conduct which led to his conviction, hence no show cause notice was necessary. This view has been affirmed by the Additional Senior Subordinate Judge. Now the plaintiff has come to this Court in second appeal.
(3) The main contention of Mr. Shiv Charan Singh on behalf of the appellant is that the appellant has not been dismissed on conduct which led to his conviction; instead the appellant has been dismissed be- cause of his conviction. Learned counsel contends that there is a great difference between being dismissed for conduct which led to the con- viction and being dismissed because of the conviction. For the purpose of showing that the plaintiff has in fact been dismissed for being convicted and not for conduct leading to the conviction, I having been referred to the plaint and the written statement. In para 6 of the plaint the plaintiff stated as follows:-
'THAT the Management served no show cause notice on the plaintiff as to why he should not be dismissed from ser- vice on account of his conviction in the criminal court but instead Dr. H. L. Khosia, Senior Staff Surgeon and Medical Superintendent removed the plaintiff from service with immediate effect without affording him any opportunity to explain the charge against him.'
In the written statement in para 10, it was stated as follows:-
'10.Para No. 6 is denied, there is 'no necessity to give the plaintiff a show cause notice as he was removed from service as a result of his conviction on a criminal charge by the court of Shri v. K. Kapur, S.D.M., New Delhi. It is denied that the order of removal is illegal, improper, high handed, uncalled for and malafide and inoperative.'
I have also been referred to para No. 1 of the preliminary objections in the written statement which runs as follows:-
'1.The matter is' not justiciable. The plaintiff was re- moved from service on the grounds of conduct which led to his conviction on a criminal charge.'
It will be seen from these pleadings that according to the plaintiff he was removed from service because of the criminal prosecution. This is admitted in Para No. 10 of the written statement although in the preliminary objections it is stated that the plaintiff was removed because of the conduct leading to the conviction. The plaintiff filed a replication in which paras Nos. I to 4 as preliminary objections were not admitted and were denied. This means that the plea of the defendant Union of India to the effect that the plaintiff was removed for conduct leading to his conviction was denied. Issues were framed of which issues Nos. 2 and 3 here concerned with whether the claim of the plaintiff has justificiable and whether the removal of the plaintiff was illegal as alleged. The Union of India led no evidence to show that the plaintiff was dismissed as a result of conduct leading to his conviction.
(4) I have now to consider whether the plaintiff was removed on account of his conduct or on account of his conviction. There is no finding on this question by the courts below and also no evidence has been led by the defendant on the question. In order to establish that the matter was not justificiable it was necessary for the defendant Union of India to establish the claim that Article 311(2) of the Constitution was not applicable to the case of the plaintiff because he has been removed from service on account of conduct leading to his conviction. There being no evidence on record to show that this was the reason for the removal of the plaintiff this appeal has obviously got to succeed. In case evidence had been led showing that the appellant had been removed on account of his conduct as opposed to his conviction then the question might have been whether the competent authority had to examine the appellant in order to determine the nature of the penalty to be imposed on him.
(5) I have been referred to Rajinder Singh-v. The Punjab State and another 1969, S.L.R. 754 on this question. In that judgment it was held by their Lordships of the Punjab and Haryana High Court that if a person is dismissed on account of conduct leading to his conviction (though the distinction between conduct and conviction is not mentioned in that case) the dismissing authority has still to determine as to what penalty has to be imposed and this requires a show cause notice. I have not been referred to the rules dealing with the punishment which could have been imposed on the plaintiff, but I am satisfied that if the plaintiff was dismissed for a conduct leading to his conviction then the nature of the punishment to be applied would have to be decided by the authority concerned. The offence was a trivial one and seems to be unconnected with the professional duties of the plaintiff. It would, thereforee, normally be not a case in which the extreme penalty of dismissal should have been inflicted. However, I am of the view that the appellant has not been dismissed for his conduct and this question is completely academic.
(6) I have been referred to Akella Satvanarayana Murthy, v.Zonal Mancacer, Life Insurance Corporation of India, Madras, : AIR1969AP371 where their Lordships have pointed out the distinction between dismissing a person for his conduct and dismissing a person for his conviction. Although that was a case under the Life Insurance Corporation Act. the distinction between the two is clearly brought out in the following extract of the judgment:-
'BUT the order itself, which we have set out. does not say so. There is a clear distinction between dismissing an official for his conduct and dismissing an 'official for his conviction, The order impugned shows as if it is a dismissal flowing from a conviction. We are, thereforee, inclined to view that the disciplinary authority did not deal with the official under Regulation 39(4) (i) but dismissed him because he was convicted of an offence under Section 409, Indian Penal Code . This the disciplinary authority is precluded from doing under Section 12 of the Probation Offenders Act, 1958.'
It will, thereforee, appear that this authority clearly supports the plaintiff's case. There is in my opinion also a clear distinction between dismissing the plaintiff for his conduct and dismissing him because he was convicted. If he was dismissed because of his conduct then no enquiry was necessary but if he was dismissed because he was convicted then an enquiry was necessary.
(7) In the circumstances this appeal has got to be accepted and the plaintiff is entitled to a declaration that his dismissal from service is contrary to Artich 311 of the Constitution.
(8) I may mention that at the hearing of this appeal the counsel for the respondent wanted to produce the original order showing that the appellant had been dismissed for his conduct and not on account of his conviction. This evidence is not admissible at this stage. It is also contended that this is the impugned order in the suit and hence it should have been on record and ought -to be permitted to be produced now. This fact had to be proved by the defendant so as to bar the claim of the plaintiff. It was not proved, I fail to see how I can let in further evidence at this stage. The suit of the appellant has to be decreed on the ground that he was entitled to a show cause notice.
(9) In view of the above circumstances, this appeal has to be accepted and a decree granted to the plaintiff declaring that his removal from service is illegal and he still continues to be in service. In the circumstances, the appellant will have his costs throughout.